Bitter asbestos issue leads to bitterness on Miss. SC

John O'Brien Sep. 2, 2010, 3:00pm



JACKSON, Miss. (Legal Newsline) - A divided Mississippi Supreme Court has decided a judge was right to buy the story of asbestos attorneys in a "he said, he said" dispute over a private settlement conference, with a group of resentful dissenters lamenting the long-term effects of the decision.

Illinois Central Railroad Co. and the Pittsburgh asbestos firm Peirce, Raimond & Coulter disagreed about the settlement process set up at a private meeting in Pittsburgh in 2006. The process would have settled 216 claims against the company.

However, ICRR argues that it only agreed to immediately settle all claims except the 25 diagnosed by Bridgeport, W.Va., radiologist Dr. Ray Harron, who has been accused of fabricating lung disease diagnoses. The Peirce firm said ICRR agreed to settle all claims at the meeting.

Holmes County Circuit Court Judge Robert Goza agreed with the Peirce firm, as did the state Supreme Court on Aug. 26.

"In this case, the trial judge made informed findings of fact and law," wrote Justice James Graves, currently President Barack Obama's nominee to fill a spot on the U.S. Court of Appeals for the Fifth Circuit.

"The trial judge reviewed all of the parties' pleadings, considered all of the other affidavits submitted by the plaintiffs' attorney, (Robert) Peirce, and ICRR's attorney, (Thomas) Peters, describing their understanding of the settlement negotiations, and conducted two quite lengthy hearings on the disputed issues of fact.

"Moreover, multiple attorneys representing ICRR appeared before the trial judge and had ample opportunity to present evidence and argument."

Two justices filed dissenting opinions that sided with ICRR, which had agreed to settle the Harron claims if the Peirce firm produced diagnoses from another radiologist. The firm did, but ICRR wanted information about the doctors that performed them.

The state Supreme Court ruled the Peirce firm did not have to provide that information.

Justice Jess Dickinson was one of the dissenters.

"Today's decision (albeit a plurality) would grant to a trial judge the authority to decide whether or not the parties have settled and, if so, the terms of the settlement," Dickinson wrote.

"Never mind that in this case, the only proof of a settlement (and its terms) before the trial court was a pair of conflicting affidavits from the lawyers. Never mind that - as far as one can tell from reading the record - the plaintiffs' lawyer (whose affidavit apparently persuaded the trial judge) has never been in the presence of the trial judge.

"Never mind that there were no witnesses, and that the trial judge never even heard from the client who actually has to pay the money. And never mind that the terms of the alleged settlement were not reduced to writing - not even so much as bullet points scribbled on the back of a napkin."

Dickinson wrote that, because of the decision's reasoning, a plaintiffs attorney could sue a Mississippi city in a slip-and-fall case, have a private meeting with defense counsel then file a motion to enforce a settlement that doesn't exist.

He said a judge could find the plaintiffs attorney more credible and put the city on the hook for $25 million, leading to the same lawyer -- "delighted with the result" -- filing another lawsuit the following week.

"After diligent effort, I am unable to imagine a more absurd judicial process or result. I respectfully dissent," Dickinson wrote.

Justice Randy Pierce submitted a short concurring opinion to address Dickinson's hypothetical.

He wrote that the scenario Dickinson imagined has no application to the ICRR case -- "In other words, he compares apples to oranges," Pierce wrote.

Justice Ann Lamar, who joined in Dickinson's dissent, said the case could not have been decided by any existing state law or precedent allowing trial court judges to make findings of fact when presented with motions to enforce settlement, because none exists.

Graves wrote that trial court judges can in the ruling opinion.

"I disagree with the plurality's insinuation that, because ICRR did not ask for an additional evidentiary hearing, it somehow waived its objection to the trial judge acting as the finder of fact," Lamar wrote.

"To the contrary, ICRR made it clear on several occasions that it did not agree that the trial judge could make findings of fact. For example, in its response to plaintiffs' motion to enforce, ICRR stated: 'Illinois Central does not consent (to any] determination of disputed fact by the Court. Illinois Central agrees that this Court is empowered to render rulings of law based on undisputed facts.'"

Joining Lamar and Dickinson as dissenters were justices George Carlson and Bill Waller.

Joining Graves and Pierce in the ruling were justices James Kitchens and David Chandler. Justice Michael Randolph did not participate.

A majority is needed to overturn a lower court's order.

ICRR has made other news in Mississippi recently. A federal jury found two asbestos attorneys guilty of fraud against the company when they didn't disclose two of their clients' previous involvement in another asbestos mass action.

The Peirce firm, too, is no stranger to headlines. CSX Transportation has accused the firm of teaming with Harron to fabricate lung disease claims.

A federal judge ruled CSX's complaint missed the statute of limitations, but that decision has been appealed to the U.S. Court of Appeals for the Fourth Circuit. Oral arguments are scheduled for Oct. 26.

In that case, CSX is pointing at 1,400 claims dismissed in West Virginia by the Peirce firm after a judge implemented rules requiring plaintiffs to show they were aware that their suit was active, that it was "well-founded in fact" and that they wished to continue the litigation.

In 2005, federal court judge Janis Graham Jack uncovered duplicate and fraudulent silica diagnoses in her Texas courtroom. Many of those diagnoses were made by Harron and were made on plaintiffs who had already brought asbestos claims.

In Jack's opinion dismissing the claims, she said "These diagnoses were driven by neither health nor justice - they were manufactured for money."

Following Harron's admission that he did not even make the diagnoses of the patients whose x-rays he read, Jack noted that most of "these diagnoses are more the creation of lawyers than doctors."

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