WHEELING, W. Va. - Radiologist Ray Harron doesn't remember the X-ray at the heart of CSX Transportation's fraud conspiracy suit against him and Pittsburgh lawyers, according to a CSX lawyer.
On May 4 in federal court in Wheeling, David Bolen told Magistrate James Seibert that Harron's lack of memory on an X-ray of Earl Baylor made it necessary to examine his methods through other X-ray reports.
Bolen, from the firm of Huddleston Bolen, asked Seibert to compel Harron to answer questions he refused to answer at a March 11 deposition.
Bolen said Harron's counsel objected to the relevancy of the questions. He said Harron's counsel didn't raise any issues he needed to raise in order to sustain a relevancy objection.
He said CSX alleges that Harron read X-rays as lawyers wanted.
He said Harron diagnosed asbestosis and silicosis from the same X-rays, and he called a combination of the diseases "virtually impossible."
For Harron, Jerald Jones of Clarksburg told Seibert that CSX sought to inquire into many irrelevant things.
He said he could have terminated the deposition.
"They are wearing us out on discovery, your honor," Jones said, calling the process time consuming and costly.
Walter DeForest of Pittsburgh, representing the firm of Peirce, Raimond and Coulter, said rules permit termination of a deposition if a party annoys, embarrasses or oppresses.
DeForest, taking part by telephone because the motion didn't involve his client, said CSX constantly seeks to inquire beyond the Baylor X-ray.
Bolen told Seibert CSX didn't question Harron for harassment or in bad faith.
He said the questions were relevant to methodology.
He said Harron testified at his deposition that he didn't recall Baylor's X-ray.
"They could have terminated the deposition but they chose to object to relevancy," DeForest said.
Seibert promised a quick decision on CSX's motion and two motions that DeForest and Bolen argued on May 1.
One motion before Seibert at the May 1 hearing would limit CSX in questioning physician Richard Cassoff at a deposition.
Peirce himself testified. DeForest called him to the stand and asked about Cassoff's role.
Peirce said Cassoff examined X-rays for claims in bankruptcy proceedings.
DeForest asked if CSX was involved in bankruptcy. Peirce said no.
DeForest asked what the burden the discovery would be.
"It would be enormous," Peirce said, noting it would involve more than 10,000 clients and bankruptcy trusts unrelated to CSX.
Bolen asked if Cassoff confirmed Harron's reports. Peirce said three doctors did.
As Seibert excused Peirce, DeForest said he won't call Cassoff to testify at trial. He said CSX's complaint doesn't mention Cassoff.
He said litigation is burdensome and costly.
He said CSX would open improper areas of inquiry.
"Everything that happens in this case ends up in the newspaper somehow," DeForest said.
Bolen said it didn't matter if Peirce didn't call Cassoff.
"Dr. Cassoff appears to be a central figure in this case. It's the Peirce firm that makes him an issue," Bolen said.
He said he wants to ask Cassoff how many X-rays he examined the day he examined Baylor's.
He said the firm sent Cassoff to South Carolina to examine 200 patients.
He said the firm never treated Baylor as a single case. "It was always treated as a conglomerate case," he said.
Seibert said that by his best guess, what Cassoff did with other cases probably wasn't admissible but it might lead to discovery of admissible evidence.
"Dr. Cassoff didn't do anything regarding Mr. Baylor or anybody else," DeForest said.
"I understand," Seibert replied. "I don't understand why that relationship is not an area of legitimate inquiry."
DeForest said CSX got a lot of information about the relationship. He said the case has a history of ending up in the newspapers.
"Your brief and your statements tie Dr. Cassoff directly to the central issues in this case which the plaintiff is allowed to discover," Seibert said.
DeForest called Peirce to the stand again, to testify against a motion that would compel him to produce documents.
DeForest asked Peirce if he had the documents. Peirce said the firm had them.
DeForest asked if the firm had a CT scan, data entries, work product, correspondence with Baylor, a cover letter and a completed questionnaire. Peirce said it did.
DeForest asked if CSX requested the cover letter. Peirce said, "I'd never give them my cover letter. It's obviously privileged."
Bolen asked Peirce if he was the firm's sole shareholder. Peirce said his son and Robert Daley of his firm were shareholders.
Bolen asked if he sent out standardized letters with the same content and different names. Peirce said yes.
Bolen finished, and DeForest asked Peirce about shareholders. Peirce said, "Now that I think about it I think I am the only shareholder."
He said he shared fees with his son and Daley.
"I am not the sole profit earner," he said.
Seibert excused Peirce and asked for argument.
Bolen said attorney client privilege does not protect standardized correspondence.
DeForest said he holds an old fashioned perspective about work product privilege.
"I need you to give me three or four pages on: Does a lawyer's unprofessional behavior vitiate the privilege?" Seibert said.
He said work product privilege "can keep the truth from the trial."
"I don't want a lot of pages," he said. "I want, read these cases dummy. That's all I want."
Seibert presides over discovery and other pretrial preparations.
District Judge Frederick Stamp will preside over trial. He has set it Aug. 11.
CSX seeks to recover its costs in defending and settling asbestos suits that Peirce filed with faulty diagnostic reports from Harron.
Peirce's trial strategy involves ghosts.
On April 30, DeForest asked CSX to produce reports of proceedings from 12 annual meetings of the American Railway Association medical and surgical section.
The reports range in age from 43 to 77 years.
DeForest also requested a 61-year-old letter to the medical director of CSX's predecessor, Chesapeake and Ohio Railway.