Asbestos lawyers oppose subpoena of radiologist in national litigation

Steve Korris Aug. 5, 2009, 1:30am



PHILADELPHIA – Asbestos lawyers at Motley Rice in Mount Pleasant, S.C., and Provost Umphrey in Beaumont, Texas are blocking a subpoena on radiologist Jay Segarra.

The firms have moved on behalf of clients to intervene in national asbestos litigation so they can oppose the subpoena, but they haven't named the clients.

In Motley Rice's July 9 motion, John Herrick argued that if Segarra obeys an order to produce X-ray records he will violate his privilege as a consulting expert.

Bryan Blevins Jr. of Provost Umphrey adopted and joined the motion on June 23.

According to Union Carbide lawyer Marcy Croft of Jackson, Miss., Motley Rice lawyers say they represent up to 10,000 clients who need to intervene.

On July 29 Croft asked U.S. District Judge Eduardo Robreno to require names.

"At minimum, a motion must identify the specific persons on whose behalf the pleading is filed so that threshold issues such as standing, the right of intervention, and, in this case, the applicability of certain privileges can be determined," she wrote.

Robreno presides over tens of thousands of asbestos cases from around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

He took charge of the docket last year and began enforcing a rule requiring each plaintiff to file separate suits instead of a single suit against many defendants.

Robreno speeded up processes for settling and dismissing cases, and reported in May that about 500,000 claims had been resolved in four months.

In February he ordered Segarra and two other radiologists to produce records of all plaintiffs who relied on their diagnoses.

According to Herrick, a magistrate judge expanded the scope of the order to include records of persons who don't have claims before Robreno.

Herrick wrote that the order "fails to provide any mechanism to protect the records or identities of individuals whose privileged materials may be in possession of Dr. Segarra."

"These groups of individuals have not been provided adequate notice or opportunity to be heard on release of their information," Herrick wrote.

"Union Carbide should not be granted access to the records of individuals whose cases are not and never will be in this court."

He wrote that the order failed to provide a mechanism for determining which records are subject to the consulting expert privilege.

"It is not clear that Dr. Segarra would know which information he obtained on a consulting basis and which information he obtained for litigation," he wrote.

Croft answered that Motley Rice and Provost Umphrey lack standing to intervene.

She wrote that the policy behind the principle of standing prevents courts from addressing hypothetical matters.

"Instead, there must be a real and identifiable party in interest seeking relief from the court," she wrote.

"This policy is especially germane where, as here, unidentified and unnamed persons, who are not parties to the underlying action, are seeking to intervene and prevent the production of discoverable material from a third party through the assertion of a consulting expert privilege," she wrote.

"While Motley Rice and Provost Umphrey argue that a hypothetical plaintiff represented by their firm may have standing to file a motion to intervene and may even qualify for intervention under Rule 24 of the federal rules of civil procedure, at this point, the law firms' argument is simply that – hypothetical," she wrote.

She ticked off four ways that records might fall outside the privilege.

Croft wrote that plaintiffs may have prior Segarra based claims in other litigation.

She wrote that they may have submitted claims to asbestos bankruptcy trusts based on Segarra's diagnoses.

She wrote that "they may have once been found negative by Segarra but later found positive by Segarra."

She wrote that their X-rays may have been shopped from doctor to doctor "in an attempt to find a litigation screener that would declare their X-ray 'positive' and provide the basis for filing a complaint."

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