WHEELING, W.V. – Radiologist Ray Harron of Bridgeport, W.V. doesn't want jurors in his civil fraud trial to learn that a Texas judge exposed his unreliable method, or that he pleads the Fifth Amendment, or that he lost his medical license in seven states.
He doesn't think jurors should waste time looking at X-rays, either.
He moved on Aug. 20 to preclude CSX Transportation from raising these topics in a trial that U.S. District Judge Frederick Stamp plans to start on Sept. 15.
CSX alleges that Harron conspired with Pittsburgh lawyers Robert Peirce and Louis Raimond to fabricate an asbestos lawsuit for CSX worker Earl Baylor of Kentucky.
CSX believes jurors should examine Baylor's suit in a context of mass litigation, while Harron, Peirce and Raimond believe jurors should examine it with no context at all.
Harron, Peirce and Raimond seek to shield jurors from an order that U.S. District Judge Janis Jack of Corpus Christi signed in 2005.
Jack found that in thousands of cases radiologists acting as "B-readers" of chest X-rays reported silicosis and asbestosis on separate occasions for the same plaintiff.
Jack understood as a former nurse that silicosis and asbestosis don't happen together and that they show different signs.
Among the radiologists she singled out Harron, who had testified in her court, for the harshest criticism.
When a Congressional subcommittee summoned Harron to explain, he invoked his constitutional right against self incrimination.
He has also pleaded the Fifth Amendment in depositions for civil suits.
Now his lawyer, Jerald Jones of Clarksburg, W.V. asks Stamp to keep Jack out of his trial.
"The potential for unfair prejudice is increased by the fact that the alleged bad conduct was found by a judge," Jones wrote.
"The conduct by Dr. Harron that the Texas district court found troubling is completely unrelated to any conduct at issue in this case.
"Dr. Harron was not a party to that proceeding, could not offer evidence or argue to the court, and could not appeal the decision."
Sections of the order relating to other doctors, lawyers, X-ray companies, witnesses, attorney sanctions and jurisdiction do not concern Harron, he wrote.
He wrote that CSX seeks to support an inference that because a court rejected Harron's diagnoses in unrelated litigation, his B-read on Baylor was fraudulent.
He declared Harron ready for "an extensive side trial" challenging Jack's decision.
He wrote that if jurors hear about dual diagnoses, Harron will produce evidence about causes and development of both diseases and their relationship to one another.
"Considerable trial time would thus be devoted to educating the jury on a complicated yet completely secondary medical issue," Jones wrote.
"In order to properly evaluate any allegedly fraudulent dual diagnosis, the jury would likely have to evaluate not only Dr. Harron's reports and B-reads, but the underlying X-rays and scientific evidence regarding the incidence of silicosis," he wrote.
Jones moved separately to preclude B-reads of anyone but Baylor.
"Introducing unsupported and unrelated B-reads in this way will most likely lead to jury confusion and waste of time," he wrote.
Next he moved to preclude disciplinary proceedings that followed Jack's action.
"Dr. Harron will have to spend trial time and produce evidence explaining how the conduct at issue in those proceedings differs from the conduct alleged here," he wrote.
He attached a finding of fraud and negligence from a New York administrative review board, calling it particularly prejudicial.
The New York board stated, "The record demonstrates that the respondent used his medical license to engage in an ongoing fraud on the courts."
Jones also moved to preclude evidence that Harron pleaded the Fifth Amendment.
Peirce and Raimond, echoing Harron's concerns about Judge Jack, moved on Aug. 20 to preclude evidence about silicosis litigation.
Their lawyer, Walter DeForest of Pittsburgh, called Jack's order inadmissible hearsay.
He wrote that it "could improperly influence the jury because the opinion comes from a sister judge."
In a dark corner of the case, DeForest asked Stamp to exclude evidence about illegal payments from Peirce to candidates in union elections.
Jones, expecting evidence along that line, asked Stamp to keep CSX from using it against Harron.
Also on Aug. 20, Harron and the lawyers moved to exclude testimony from Yeshiva University law professor Lester Brickman about mass asbestos litigation.
"Professor Brickman's testimony does not explain anything the jury cannot comprehend on its own," Jones wrote for Harron.
DeForest identified Brickman as an advocate for tort reform and wrote that he would base his testimony on "speculative guilt by association" with Harron.
If Stamp's jurors find in favor of CSX, they won't have to worry about calculating the railroad's damages.
On Aug. 20 all lawyers agreed that if jurors find a fraud conspiracy, a separate trial on damages will follow.