Two Pittsburgh attorneys, as well as a doctor they hired to read X-rays, were found liable by a federal civil jury in West Virginia for violating the federal Racketeer Influenced and Corrupt Organizations Act and for state-law fraud by prosecuting 11 fraudulent asbestos claims by railroad employees against CSX Transportation.
On Friday, the jury in the U.S. District Court for the Northern District of West Virginia awarded $429,240.47, which was the amount CSX said it spent to defend 11 claims it said exemplified a wider practice.
Attorneys Robert N. Peirce Jr. and Louis A. Raimond and Dr. Ray A. Harron were found liable for fraud-based RICO claims, common law fraud and fraud conspiracy claims. The jury also rejected the lawyer defendants’ counterclaims for fraudulent misrepresentations in CSX’s complaint and in its discovery responses.
U.S. District Judge Frederick P. Stamp Jr. presided over the trial in CSX Transportation v. Gilkison.
The defendants argued that the Federal Employers Liability Act complaints contained “valid medical monitoring allegations,” including that the claimants had worked at facilities or locations where asbestos was present or asbestos-containing products were used, according to court papers.
CSX argued that the lawyers’ firm retained clients by procuring medical diagnoses through “deliberately unreliable mass screenings,” and coached clients on issues like exposure to asbestos and smoking history.
The defendants countered that the firm’s “FELA asbestos practice, including its screening program, was not unusual, and CSX was well aware of this fact. As CSX employees and agents have admitted throughout discovery, in the 1990s and 2000s, many plaintiffs law firms (like the Moody firm in Virginia, Ness Motley from South Carolina, the Humphreys firm in West Virginia, the Collins firm in Buffalo, John Roven Esq. in Florida and Georgia, etc.) were conducting litigation screenings. … Many of these other firms, like the Peirce firm, were filing ‘mass actions in which a number of plaintiffs were combined,’” according to court papers.
CSX argued that Harron was reading hundreds of X-rays every day, according to court papers.
The Peirce firm was the designated legal counsel for the United Transportation Union, but the defendants argued that there was no evidence that the “11 claimants at issue retained the Peirce firm or chose to attend a Peirce firm because of a presentation or appearance made by a Peirce firm lawyer at a union meeting,” according to court papers.
At least some of the cases were filed in the West Virginia Mass Litigation Panel, which had a mediation order governing railroad cases.
Another attorney from Peirce and Raimond’s firm, Mark T. Coulter, was voluntarily dismissed.
“We thank the jury for their thoughtful and committed verdict that refuses to endorse cheating in litigation,” one of CSX’s counsel, Marc E. Williams of Nelson Mullins Riley & Scarborough in Huntington, W.Va., said in a statement. “Their verdict makes a strong statement that our system of justice must be fair, clean and honest.”
“We presented testimony of two radiologists, who read the X-rays of these 11 plaintiffs, who testified they were positive and consistent with asbestosis,” Peirce said in a statement. “We presented the testimony of witnesses, including a prominent West Virginia trial lawyer who testified we not only had a reasonable basis to file the lawsuits but we were obligated to do so. For reasons that we cannot understand the jury ignored this testimony.”
Harron’s counsel, Jerald E. Jones, of West & Jones in Clarksburg, W.Va., said the evidence did not support the verdict and his argument was that Harron was handling asbestos cases in keeping with National Institute for Occupational Safety and Health standards and International Labour Organization standards.
“I didn’t think there was sufficient evidence to support a RICO verdict,” Jones said.
Lead trial counsel for CSX was Ronald G. Franklin, a partner with McGuireWoods’ Houston office.
Williams, as well as Samuel L. Tarry Jr. and Mitchell K. Morris of McGuireWoods’ Richmond, Va., office, and Lindsey L. Hargrove of McGuireWoods’ Houston office, also prosecuted the case.
Walter P. DeForest and David J. Berardinelli, of DeForest Koscelnik Yokitis Skinner & Berardinelli in Pittsburgh, represented Peirce, Raimond and Coulter.