Asbestos-diagnosing doctors ordered to answer questions in CSX case in West Virginia

By Steve Korris | May 22, 2009


WHEELING, W.V. – Physicians Ray Harron and Richard Cassoff must answer CSX Transportation's questions about their roles in helping Peirce, Raimond and Coulter of Pittsburgh sue the railroad, U.S. Magistrate Judge James Seibert decided on May 14.

Harron improperly withheld answers at a March 11 deposition and Cassoff did likewise on April 24, Seibert ruled in separate orders.

He wrote that Harron's lawyer, Elizabeth Johnson, expressly violated rules of civil procedure when she instructed him not to answer questions.

In a third order he ruled that Harron must produce letters from the Peirce firm asking for chart reviews.

He rejected the firm's request to protect the letters under the attorney work product doctrine or attorney client privilege.

On May 14 the firm objected to production of the letters and asked District Judge Frederick Stamp to stay Seibert's order.

Stamp presides over CSX's claim that the Peirce firm and Harron conspired to fabricate asbestos claims. Seibert handles pretrial procedures.

Stamp dismissed broad claims but allowed one against the firm on a case involving client Ricky May and one against Harron on a case involving client Earl Baylor.

CSX deposed Cassoff because he examined Baylor at the firm's request.

Seibert held a hearing about Cassoff's deposition on May 1, and on May 4 he held one on Harron's deposition.

He promised quick decisions, and on May 14 he kept the promise.

"None of the questions Dr. Cassoff's counsel directed him not to answer related to any protected physician patient privilege but rather were general questions about people Dr. Cassoff examined the same day as the Earl Baylor examination," he wrote.

"The questions asked of Dr. Cassoff were germane to the subject matter of the pending action and therefore within the scope of discovery," he wrote.

He wrote that the firm arranged Cassoff's transportation and lodging in South Carolina.

He wrote that CSX asked Cassoff how many people he examined that day.

"Whether the answer is two or two hundred it is likely to lead to the discovery of admissible evidence," Seibert wrote.

"Everything Dr. Cassoff did the day he examined Earl Baylor is relevant," he wrote. "Did he examine 200 people plus play 36 holes of golf?"

Cassoff must also hand over tax records as evidence of his objectivity. Seibert wrote, "Did the Peirce firm pay Dr. Cassoff $100 per year or $100,000 per year?"

He wrote that CSX didn't make Cassoff's testimony relevant. "Dr. Cassoff and the Peirce firm made Dr. Cassoff's testimony relevant to this action," he wrote.

Next, Seibert scolded Johnson for instructing Harron not to answer questions.

Federal rules permit such instruction to preserve a privilege, enforce a court order or to present a motion challenging the purpose of a question.

"None of these three reasons was the basis for counsel's instruction to the witness not to answer," he wrote.

Johnson should have objected and allowed answers so she could test admissibility after the fact, he wrote.

"Counsel for defendant Harron made her choice," he wrote. "She was wrong and expressly violated the federal rules of civil procedure."

In refusing to produce the chart review letters, Seibert wrote, Harron intentionally and willfully failed to comply with national and local rules.

By failing to comply, he wrote, Harron waived attorney client privilege and work product protection.

The Peirce firm waived them too, he wrote, by failing to respond to the motion.

"Because of the long and close relation between defendants Harron and the Peirce firm, counsel for defendant the Peirce firm should have known from the time the amended complaint was filed that defendant Harron would likely have documents in which the Peirce firm claimed a protection," he wrote.

For the Peirce firm, Walter DeForest of Pittsburgh responded on May 14 that Seibert's decision was "factually and legally unsupportable."

DeForest asked Stamp to stay the order, arguing that the rules didn't obligate the firm to object to the motion because CSX addressed it to Harron and not to the firm.

He wrote that at the time the discovery was filed, no one at the firm was aware that Harron possessed responsive documents.

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