CSX Transportation, Inc. v. Gilkison et al

Filing 1557

MEMORANDUM OPINION AND ORDER CONFIRMING THE PRONOUNCED RULINGS OF THIS COURTRELATING TO LAWYER DEFENDANTS' MOTIONS IN LIMINE. ECF No. 1375 -- GRANTED; ECF No. 1376 -- WITHDRAWN; ECF No. 1377 -- GRANTED IN PART; ECF No. 1378 -- GRANTED IN PART/DENIED IN PART; ECF No. 1379 -- GRANTED IN PART/DENIED IN PART; ECF No. 1380 -- DEFERRED; ECF No. 1381 -- DENIED; ECF No. 1392 -- DEFERRED; ECF No. 1393 -- GRANTED IN PART; ECF No. 1394 -- DENIED; ECF No. 1395 -- GRANTED IN PAR T AND DENIED IN PART; ECF No. 1396 -- DENIED AS MOOT; ECF No. 1397 -- GRANTED IN PART AND DEFERRED IN PART; ECF No. 1398 -- GRANTED; ECF No. 1399 -- GRANTED IN PART/DENIED IN PART; ECF No. 1400 -- GRANTED; ECF No. 1401 -- WITHDRAWN; ECF No . 1402 -- GRANTED; ECF No. 1403 -- GRANTED; ECF No. 1404 -- DEFERRED; ECF No. 1405 -- GRANTED IN PART/DENIED IN PART; ECF No. 1406 -- DENIED; ECF No. 1407 -- DEFERRED;ECF No. 1408 -- DEFERRED; ECF No. 1409 -- DEFERRED. Signed by Senior Judge Frederick P. Stamp, Jr on 1/7/13. (mji) Modified on 1/7/2013 to add relationship (mji).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED RULINGS OF THIS COURT
RELATING TO LAWYER DEFENDANTS’ MOTIONS IN LIMINE1
Pending before this Court are certain motions in limine filed
by plaintiff, CSX Transportation, Inc. (“CSX”), and the defendants,
Robert N. Peirce, Jr., Louis A. Raimond, and Ray Harron, M.D.,
relative to the jury trial that is scheduled in this civil action.
This Court has reviewed these separate motions and makes the
following findings concerning motions in limine of the lawyer
defendants, Robert N. Peirce, Jr. and Louis A. Raimond:

1

This memorandum opinion and order, while filed after the jury
trial, which was completed on December 20, 2012, consists of
rulings made prior to trial at a hearing conducted on December 5,
2012. These rulings may have been altered or modified during the
trial.

1.

Motion in Limine No. 1 Seeking to Preclude CSX From Presenting

Evidence or Argument That Any Claims, Other Than the Eleven Claims
at Issue Were Allegedly Fraudulent (ECF No. 1375) -- GRANTED.
By this motion, the lawyer defendants seek to preclude CSX
from presenting evidence or argument that any claim which the
Peirce firm brought against CSX, other than the eleven claims at
issue, was fraudulent or the product of fraud.

In support of this

motion, the lawyer defendants cite Federal Rules of Evidence 401,
402, 403 and 404.

The lawyer defendants argue that such evidence

is irrelevant, it would only confuse and prejudice the jury, and it
constitutes impermissible propensity evidence.

CSX responds by

stating that while it does not have any intention of offering any
medical evidence specifically related to any claimant other than
the eleven at issue, it does intend to prove that all of the claims
brought by the lawyer defendants, including the eleven at issue,
were the result of a system of fraud designed and implemented by
all defendants.

CSX argues that it intends to examine the system

in detail, as this is proof of its case.
Plaintiff has made binding judicial admissions including the
following:
So at the end of the day, when you look at the scope of
our substantive claims, we’re talking about these eleven
specific claims.
I think the parties call them the
eleven claims at issue. As a matter of Rule 9(b) at this
point those are the only claims from which we can attempt
to prove fraud and from which we can attempt to prove
damages. ECF No. 960 *68-69.

2

I think Rule 9(b) prohibits us from sitting there trying
to prove fraud other than the eleven claims. And, in
fact, Judge Stamp already ruled that when he dismissed
the prior John Doe complaint that led to the first
amended complaint and now so we’re not going to be
getting up there, putting on -- calling an expert to
interpret an ILO form related to somebody other than the
eleven claimants at issue.
So we’re not going to be
putting on direct medical evidence trying to prove frauds
other than the eleven claimants at issue because Rule
9(b) prohibits us from doing that. Id. *80.
CSX’s responses, in light of these admissions, are simply
contrary to those representations which it never sought to modify,
amend or withdraw.
In fact, CSX now saying that while it has “no intention of
offering any medical evidence specifically related to any Peirce
claimant other than the eleven at issue” and then saying that it
intends “to prove that all claims brought by the Lawyer defendants
-- including the eleven at issue -- were the result of a system of
fraud designed and implemented by the Lawyer defendants and Dr.
Harron” is contradictory, to say the least.
If CSX wished to assert that it could still attempt to present
other claims as part of a system of fraud, it certainly could have
done so given the opportunities provided during the pretrial phases
of this civil action.
2.

Motion in Limine No. 2 Seeking to Preclude CSX From Submitting

Evidence or Arguing to the Jury Regarding Payments Made by the
Defendants to a Union Official That CSX Characterizes as Alleged
Bribes (ECF No. 1376) -- WITHDRAWN.

3

The lawyer defendants withdrew this motion as a result of an
agreement reached between the parties that CSX will not introduce
such evidence or argument.
3.

See ECF Nos. 1410 and 1418.

Motion in Limine No. 3 Seeking to Preclude CSX From Offering

Evidence and Argument Concerning Matters Pertaining to Non-Party
Witness James Corbitt (ECF No. 1377)

-- GRANTED IN PART.

By this motion, the lawyer defendants seek to preclude CSX
from offering evidence and argument concerning matters pertaining
to non-party witness James Corbitt.

Specifically, the lawyer

defendants seek to preclude evidence pertaining the background of
Mr. Corbitt, who is an x-ray technologist whose company the lawyer
defendants used to take chest x-rays of potential clients.

Such

information includes Mr. Corbitt’s prior criminal convictions and
alleged failure to follow state laws concerning licensure and
related invocation by Mr. Corbitt of the Fifth Amendment.

In

support of this argument, the lawyer defendants state that such
evidence is irrelevant and prejudicial.

Thus, they believe such

evidence is excludable under both Rule 402 and Rule 403.
CSX responds by stating Mr. Corbitt’s past conviction for
Medicare/Medicaid fraud is relevant given the lawyer defendants
knew Mr. Corbitt was ordered to “cease and desist” from taking xrays in Texas.

CSX claims it is also relevant to demonstrate the

lawyer defendants’ willful blindness to the operation of their
screening program.

Further, CSX argues that evidence related to

4

Mr. Corbitt’s application for licensure in Ohio and other instances
where Mr. Corbitt was not authorized to take x-rays in states where
screenings were held is highly probative to show that the lawyer
defendants conducted no investigation into the medical foundation
of their clients’ claims.

Finally, CSX claims that Mr. Corbitt’s

invocation of his Fifth Amendment right is admissible in civil
litigation and should be admissible in this case, as although he
was not formally the lawyer defendants’ employee, he conducted
screenings on their behalf in 26 different states for over a
decade.
As to all matters except the Fifth Amendment assertion which
will be deferred, this Court finds that the evidence sought to be
excluded is not relevant and would unfairly prejudice the lawyer
defendants under Rule 403.
4.

Motion in Limine No. 4 Seeking to Preclude CSX From Offering

Evidence Related to Dr. Harron That Does not Involve his Work for
the Peirce Firm or Which Occurred after the Peirce Firm Stopped
Using Him as an Expert in 2005 and/or to Sever the Trial of the
Lawyer Defendants and Dr. Harron (ECF No. 1378) -- GRANTED IN
PART/DENIED IN PART.
By this motion, the lawyer defendants seek to preclude CSX
from offering evidence related to Dr. Harron that does not involve
his work for the Peirce firm or which occurred after the Peirce
firm stopped using him as an expert in 2005.

5

Further, if such

evidence is not precluded or even if it is, the lawyer defendants
seek to sever the trial of the lawyer defendants and Dr. Harron.
In support of this argument, the lawyer defendants state that such
evidence is first irrelevant and should be excluded under Rule 402
as evidence related to matters concerning Dr. Harron that have
nothing to do with his work for the lawyer defendants will not tend
to

make

any

element

of

CSX’s

case

more

or

less

likely.

Additionally, the lawyer defendants state that the evidence should
be excluded under Rule 403 because of its potential to inflame and
prejudice the jury against the lawyer defendants and because it
would result in a series of “mini-trials.”

The lawyer defendants

state that such possible mini-trials include among others, one
regarding

the

nature

of

silicosis

and

Dr.

Harron’s

work

in

interpreting x-rays in connection with that disease, the medical
licensing proceedings and how they differed from this case, and an
explanation

of

why

Dr.

Harron

did

or

did

not

Constitutional rights at a given point in time.

exercise

his

Next, the lawyer

defendants argue that CSX’s proposed evidence in this instance is
improper character evidence that will cast aspersions on the lawyer
defendants

via

Dr.

Harron’s

conduct.

Therefore,

the

lawyer

defendants argue that such evidence should be excluded under Rule
404. Finally, regarding this evidence, the lawyer defendants argue
that Judge Jack’s opinion from the silicosis case and the medical
licensing

board

findings

are

inadmissible

6

hearsay

and

could

improperly influence the jury because the opinion comes from a
judge and governmental authorities.
CSX responds by stating that this motion is moot, as it does
not intend to introduce evidence of Dr. Harron’s work for lawyers
other than the lawyer defendants except for certain instances and
as may arise in cross-examination.

The first category of evidence

is Dr. Harron’s positive read rates for the lawyer defendants and
evidence of non-Baylor B reads.

CSX argues that such evidence is

probative of the conspiracy between Dr. Harron and the lawyer
defendants and is not irrelevant.

Further, CSX asserts that even

if such evidence constitutes evidence of “other acts” within the
meaning of Rule 404(b), such rule provides that such evidence is
admissible to prove “motive,” “intent,” and “absence of mistake.”
The second category of evidence CSX plans to admit is evidence
concerning the actual prevalence of asbestosis in railroad workers,
compared to Dr. Harron’s positive read rate.

CSX argues that such

evidence is relevant to show that it is more likely than not that
Dr. Harron’s reads were fraudulent and to show that the lawyer
defendants were on notice that Dr. Harron’s findings were grossly
contrary to published scientific literature. The third category of
evidence that CSX intends to introduce are payments by the lawyer
defendants to Dr. Harron.

CSX asserts that such evidence is proof

of the existence of the conspiracy between the defendants and is
therefore relevant and admissible. The fourth category of evidence

7

that CSX intends to introduce is evidence regarding Dr. Harron’s
revocation or surrender of his medical licences. CSX contends that
such evidence is probative of Dr. Harron’s intent when generating
medical evidence for the lawyer defendants.

The final category of

evidence that CSX intends to introduce is evidence of Dr. Harron’s
assertion

of

incrimination.

his

Fifth

Amendment

privilege

against

self-

CSX argues that such evidence is admissible in

civil actions and the prior case where such right was invoked was
not unrelated to the current case.
Dr. Harron’s positive reads of others in addition to the
claimants at issue, made for the lawyer defendants, are relevant
particularly as to the conspiracy claim and not excludable under
the balancing test under Rule 403.
included

under

Rule

404(b)

as

Such evidence could also be

being

relevant,

reliable

and

necessary to show, among other things, intent or absence of
mistake.

Payments to Harron by lawyer defendants would also be

relevant.

Dr. Harron’s invocation of the Fifth Amendment in other

proceedings is not relevant and proceedings before any medical
licensing board, if they do not involve Dr. Harron’s work for
lawyer defendants, are not relevant, excludable under Rule 403, and
not admissible under Rule 404(b).

The alternative request for

separate trials is DENIED.
5.

Motion in Limine No. 5 to Preclude CSX From Submitting

Evidence or Arguing to the Jury Regarding Collateral Matters

8

Related to the Texas Silicosis Litigation Before Judge Jack and/or
to Sever the Trial of Dr. Harron (ECF No. 1379) -- GRANTED IN
PART/DENIED IN PART.
By this motion, the lawyer defendants seek to preclude CSX
from submitting evidence or argument related to the proceedings
held before Judge Jack.

In the alternative, the lawyer defendants

request that this Court sever Dr. Harron from this case and
initially try just a case with the lawyer defendants.

In support

of this argument, the lawyer defendants make four arguments.
First,

they

argue

that

evidence

of

Dr.

Harron’s

conduct

in

silicosis cases not involving the lawyer defendants is factually
inapposite and irrelevant to whether a fraud was perpetrated by the
lawyer defendants against CSX.

The lawyer defendants argue that

this irrelevance cannot be overcome merely by allegations of
conspiracy thrown into the mix, when the alleged conspiracy had
nothing to do with the unrelated silicosis matter.

Second, the

lawyer defendants contend that Judge Jack’s opinion from the
silicosis

case

is

inadmissible

hearsay

and

would

improperly

influence the jury because the opinion comes from a judge.

Third,

the lawyer defendants assert that this Court should exclude the
evidence under Rule 403, including a prohibition against using it
on cross-examination, because of its potential to inflame and
prejudice the jury against the lawyer defendants, and because it
would result in a series of “mini-trials.”

9

Fourth, the lawyer

defendants argue that CSX’s proposed evidence is quintessential
improper character evidence that will cast aspersions on the
defendants via Dr. Harron’s conduct, and therefore, should also be
excluded under Rule 404.
CSX responds by stating that Judge Jack’s opinion in the
silicosis case is the single most important fact in this litigation
and pervades every aspect of it.

CSX contends that the opinion is

not inadmissible hearsay as it is not being offered to prove the
truth of the matter asserted, but rather for the triggering effect
it had on both parties’ actions during the time period leading up
to this case.

Further, CSX states that the opinion should not be

barred under Rule 404 because it is not being used to prove a
person’s character in order to show that on a particular occasion
the person acted in accordance with the character, but instead it
is being used to show the role it played in triggering the actions
of both CSX and the lawyer defendants.

Finally, CSX argues that

Dr. Harron may be cross-examined regarding Judge Jack’s findings as
it was his own testimony on which her findings were based.
The published opinion of Judge Janis Graham Jack in In re
Silica Products Liability Litig., 398 F. Supp. 2d 563 (S.D. Tex.
2005), is not relevant in this civil action except for certain
limited purposes.

After all, the case Judge Jack decided, among

other things, did not involve the lawyer defendants and their cases
with Dr. Harron; the case did not involve asbestos litigation and

10

did not involve the civil conspiracy asserted in this civil action.
Admitting Judge Jack’s lengthy opinion would also be barred under
Rule 403 as raising the danger of unfair prejudice to the lawyer
defendants and confusion of the jury.

CSX asserts that Judge

Jack’s opinion “triggered” CSX to bring this civil action and while
this may be a factor in deciding the statute of limitations raised
by one of the summary judgment motions, it is less relevant in the
substantive aspects of this civil action, except that CSX may
inquire as of a proper witness whether the opinion is generally
critical of Dr. Harron and was a reason for the lawyer defendants
to stop using Dr. Harron as a B reader.

This can be accomplished

by a short reference to the opinion and without delving farther
into the contents thereof.

There is no reason because of lack of

relevancy and exclusion under Rule 403, to examine Dr. Harron on
Judge Jack’s specific and detailed findings except to ask him
whether the opinion was generally critical of his B readings.

The

opinion of Judge Jack is also hearsay and even if it is not offered
for the truth of the matter asserted, as CSX argues, it is not
relevant.

Based upon the above rulings, the alternative request

for a separate trial is DENIED.
6.

Motion in Limine No. 6 to Preclude CSX From Offering Evidence

Related

to

the

Peirce

Firm’s

Practice

Concerning

Third-Party

Asbestos Bankruptcy Trusts (ECF No. 1380) -- DEFERRED.

11

By this motion, the lawyer defendants seek to preclude CSX
from offering evidence related to the Peirce firm’s practice with
regard to administrative claims made on behalf of clients with
bankruptcy trusts established by asbestos manufacturers, commonly
referred to as “third-party trusts.”

The lawyer defendants make

three arguments against admission of this evidence.
lawyer

defendants

assert

that

this

evidence

is

First, the
irrelevant.

Specifically, the lawyer defendants state that such evidence has
nothing to do with whether there was a good faith basis to file the
Federal Employer’s Liability Act (“FELA”) actions against CSX.
Further, they argue that the use of this information is also
improper as this Court has previously ruled in this case that
information

regarding

claims

irrelevant and inadmissible.

made

against

third

parties

is

Second, the lawyer defendants state

that such evidence constitutes inadmissible “other act” evidence
under Rule 404.

Specifically, the lawyer defendants state that

CSX’s attempt at the introduction of evidence related to doctors
who did not produce reports used against CSX in the eleven claims
at

issue

and

whose

reports

will

not

be

relied

on

in

this

litigation, is an improper attempt to utilize collateral “other
act” evidence to potentially demonstrate propensity.

Third, the

lawyer defendants state that this evidence should be excluded under
Rule 403 based on its potentially prejudicial nature and the
confusion and waste of time that will result from having a side-

12

trial on issues related to the Peirce firm’s third-party trust
practice.
The Court is unable to find any response by CSX to this motion
in limine.

Giving CSX the benefit of the doubt, a ruling is

deferred and CSX may identify for the Court (and for opposing
counsel) the page or pages in which a response is made in CSX’s
“Combined Response to Defendants’ Motions in Limine.”

Otherwise,

this motion in limine will then be granted as unopposed.
7.

Motion in Limine No. 7 to Limit CSX’s Damage Claims and

Evidence to Alleged Damages Specifically Related to the Eleven
Claims at Issue (ECF No. 1381) -- DENIED as to Racketeer Influenced
and Corrupt Organizations Act (“RICO”) claims only, subject to
further rulings.
By this motion, the lawyer defendants seek to have this Court
limit CSX’s damages claims and evidence in this action to only
those legal bills that can be specifically related to the alleged
fraud concerning the eleven claims at issue.

Further, the lawyer

defendants seek to preclude CSX from arguing about or trying to
prove any damages from costs that it would have incurred in
litigating the underlying mass actions, regardless of the presence
of the eleven claims at issue. The lawyer defendants argue that if
the costs would have been incurred by CSX regardless of the
presence of the eleven claims, then the presence of the allegedly
fraudulent claims cannot be said to have caused CSX’s defense

13

costs.
specific

The lawyer defendants contend that in the absence of any
fraud

allegations

for

particular

claims,

the

lawyer

defendants had no duty to CSX, and CSX therefore cannot bootstrap
its defense costs for the mass actions as a whole onto the damages
it seeks for the eleven claims at issue.
In response, CSX states that regardless of whether or not the
legal bills specifically mention the claimants at issue, all of the
billing entries CSX has identified in support of its damages claim
relate to the defense of the claims at issue.

CSX argues that

damages only need “some direct relation between the injury asserted
and the injurious conduct alleged.”
Corp., 503 U.S. 258, 268 (1992).

Holmes v. Sec. Investor Prot.

CSX states that the damages it

has identified are the attorneys’ fees that it was forced to spend
to defend and obtain the dismissal of the claims at issue.
The

lawyer

defendants

are

correct

that

CSX

has

by

its

admissions limited its claims for fraud but as asserted by CSX, it
may have left open the opportunity to assert claims under RICO and
damages that might possibly arise from proof of predicate acts.
8.

Motion in Limine No. 8 Seeking to Exclude Testimony of

Plaintiff CSX’s Expert Witness Professor Lester Brickman (ECF No.
1392) -- DEFERRED.
By this motion, the lawyer defendants seek to preclude one of
CSX’s expert witnesses, Professor Lester Brickman, from testifying
on behalf of CSX at trial.

In support of this motion, the lawyer

14

defendants make four specific arguments as to why this evidence
should be excluded.

First, the lawyer defendants argue that

Professor Brickman’s testimony amounts to an impermissible closing
argument delivered from the witness stand, which is generally not
permitted, because such summary arguments are not proper expert
testimony in that they do not aid the jury as required by Rule 702.
Second, the testimony should be excluded under Rules 702 and 403
because of its potential to unfairly prejudice and confuse the
jury.

The lawyer defendants argue that Professor Brickman has no

direct knowledge of any alleged fraud by the lawyer defendants with
respect to the eleven claims, but simply theorizes that the firm
has filed fraudulent claims based on flawed methods and hearsay.
The lawyer defendants contend that a jury will be fully capable of
determining whether or not fraud occurred based on the trial
evidence,

and

Professor

Brickman’s

testimony

is

unnecessary.

Third, the lawyer defendants argue that the evidence should be
excluded because “it is axiomatic that no expert witness may
provide a legal opinion or conclusion that the defendants’ actions
constituted fraud.”

ECF. No. 1392 *13 (citing Rahemtulla v.

Hassam, No. 05-0198, 2008 WL 2247195, at *2 (M.D. Pa. May 30, 2008)
(other citations omitted).

Fourth, the lawyer defendants assert

that Professor Brickman’s testimony should be excluded under Rule
404(b). In support of this contention, the lawyer defendants state
that it should be excluded under this rule because Professor

15

Brickman’s opinion is based upon the impermissible, and irrelevant
fallacy that a determination of whether the eleven claims at issue
were or were not fraudulent depends upon whether Dr. Harron was
generally good at reading x-rays.

The lawyer defendants further

argue, that even if Professor Brickman is allowed to testify, this
Court

should

subjects.

exclude

any

testimony

on

medical/epidemiology

The lawyer defendants make this argument because they

contend that Professor Brickman does not possess expertise in such
matters.

Therefore, they state that such testimony would unfairly

prejudice defendants and confuse a jury.
CSX responds to the lawyer defendants’ arguments by stating
that

the

fact

that

Professor

Brickman

is

not

an

expert

in

occupational health, epidemiology, statistics, or any scientific
discipline is immaterial because he is qualified as an expert in
the areas for which he is being offered.

Specifically, CSX argues

those areas are the history of asbestos litigation, asbestos claim
practices,

and

the

entrepreneurial

model

of

asbestos

claim

generation.
CSX

seems

to

offer

Professor

Brickman

on

the

“history,

structure, and inner workings of plaintiff’s lawyers who use the
entrepreneurial model” and CSX’s response essentially now limits
his testimony to that specific topic.

CSX urges this Court to

follow the asserted principle that there is a liberal policy of
admissibility. It is asserted that Professor Brickman will testify

16

on the history of asbestosis litigation, asbestosis claim practices
and the entrepreneurial model of asbestosis claim litigation.

At

the time of the hearing on the motions in limine, this Court stated
that it doubted that this is a topic that will aid the jury, which
can listen to the evidence and draw its own conclusion as to the
propriety or lack thereof of the lawyer defendants’ practice as it
relates to this particular civil action as it is now structured,
but deferred ruling at that time.2
9.

Motion in Limine No. 9 to Limit the Expert Testimony of Dr.

John E. Parker (ECF No. 1393) -- GRANTED IN PART.
By this motion in limine, the lawyer defendants seek to have
this Court limit the testimony of Dr. John E. Parker. Although the
lawyer

defendants

do

not

challenge

the

admissibility

of

Dr.

Parker’s testimony concerning his B reading study or his testimony
about

the

challenge

x-rays
five

of

the

specific

eleven
aspects

claimants
of

at

issue,

testimony

as

they

not

do

being

appropriate expert testimony based on his report and qualifications
or being otherwise inadmissible.

First, the lawyer defendants

state

Parker

that

any

testimony

by

Dr.

as

to

the

purported

prevalence of asbestosis in railroad workers should be excluded.
The lawyer defendants argue that such testimony should be excluded
because Dr. Parker does not possess a background in epidemiology or

2

At trial, CSX elected not to call Professor Brickman as a
witness.
17

statistics that would permit him to provide this testimony.

Also,

the lawyer defendants contend that Dr. Parker failed to discuss
this information in his report in detail or provide any basis for
his statements and therefore the lawyer defendants were unable to
properly cross-examine Dr. Parker at his deposition.

Further, the

lawyer defendants claim that allowing Dr. Parker to cite the actual
studies that discuss purported prevalence rates or information from
them on the stand would violate Rule 703 as Dr. Parker would be
reading inadmissible hearsay into the record because he is not an
epidemiologist or statistician.

Second, the lawyer defendants

state that Dr. Parker should be prohibited from testifying that Dr.
Harron or Dr. Breyer is a “fraud” or “dishonest” or that the lawyer
defendants committed “fraud.”

They argue that the word “fraud” is

not mentioned in his report nor would it be appropriate, because
the determination of whether fraud was committed in this case is
for the jury to decide.

Third, the lawyer defendants argue that

Dr.

precluded

Parker

should

be

from

testifying

about

the

proceedings before Judge Jack and any role he played in those
proceedings.

The lawyer defendants state that any opinions or

expert testimony should be based on the facts and evidence admitted
in this case, not some case in a different court, involving
different facts.

Further, they state that such evidence is

inadmissible under Federal Rule of Civil Procedure 26(a)(2) because
it is not mentioned in Dr. Parker’s report.

18

Fourth, the lawyer

defendants

state

that

Dr.

Parker

should

be

precluded

from

discussing 25,000 ILO forms. The lawyer defendants claim that such
testimony is inadmissible under Federal Rule of Civil Procedure
26(a)(2) because it was not discussed in his report, and further it
is excludable under Federal Rules of Evidence 401, 402, 403 and
404. Fifth, the lawyer defendants assert that Dr. Parker should be
precluded from offering testimony about medical records.

They

claim that such testimony is irrelevant, the records speak for
themselves, and such testimony has no connection to the subject
matter of Dr. Parker’s opinion.
CSX responds by stating first that Dr. Parker should be
permitted to discuss the prevalence of asbestosis among railroad
workers as he is qualified to do so and such opinions were properly
disclosed in his expert report.

Next, CSX states that Dr. Parker

should be permitted to testify that Dr. Harron and Dr. Breyer
dishonestly performed B reads for the lawyer defendants.

CSX

states that it does not intend to elicit an opinion that the
doctors committed legal “fraud,” but instead only an opinion
regarding dishonesty.

CSX then contends that Dr. Parker should be

permitted to testify about Dr. Harron’s and Dr. Breyer’s overall
positive rates for the lawyer defendants based on the B reads
produced by the lawyer defendants in this case.

CSX asserts that

such evidence is immensely probative and not barred by Federal Rule
of Evidence 404(b) because it is offered to prove state of mind.

19

Further, CSX argues that Dr. Parker should be permitted to testify
about medical records because such records are classically and
almost

exclusively

the

domain

of

expert

witness

testimony.

Finally, CSX asserts that this Court should permit CSX to lay a
foundation with Dr. Parker to demonstrate that admitting his
testimony regarding his experience leading up to Judge Jack’s
opinion would assist the jury and is not prejudicial.
Dr. Parker should be permitted to testify as to the prevalence
of asbestos among railroad workers if Dr. Parker relies upon in his
studies and practices. Dr. Parker may testify as to his opinion as
to Dr. Harron’s and Dr. Breyer’s overall positive rates for the
lawyer defendants and he should be allowed to testify as to medical
records as long as he is not merely adopting the opinions of other
health care practitioners related to those records.

For the

reasons set forth in this Court’s ruling on other motions, Dr.
Parker shall not testify as to his opinion in the case decided by
Judge Jack although by way of his qualification, he may assert that
he was admitted as an expert witness in that case.

He shall not

testify as to the details of those opinions until further support
is provided to this Court.
10.

Motion in Limine No. 10 to Preclude Testimony and Evidence

Regarding

the

Purported

Expected

Prevalence

Railroaders (ECF No. 1394) -- DENIED.

20

of

Asbestosis

in

By this motion, the lawyer defendants seek this Court to
preclude CSX from offering any testimony or evidence regarding the
purported expected prevalence of asbestosis in railroad workers.
The lawyer defendants state that such preclusion would also pertain
to Dr. Anil Vachani’s testimony on this issue because his opinion
is without proper statistical or scientific basis.

Specifically,

the lawyer defendants state that such testimony should be precluded
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and Federal Rules of Evidence 702, 703, and 802.

The

lawyer defendants claim that as a matter of statistical science,
Dr. Vachani’s testimony is incorrect and improper and as such, it
should be excluded.

Further, they state that such evidence is

irrelevant, prejudicial and hearsay.

The lawyer defendants state

that the evidence is irrelevant because it cannot be evidence of
alleged fraudulent intent, knowledge of falsity or guilty knowledge
because of the defendants as no record evidence indicates the
lawyer defendants were aware of the prevalence. They also argue it
is irrelevant because it does not relate to the claimants at issue
and cannot properly be applied to them.

The lawyer defendants

assert that it is unduly prejudicial because it would be confusing
and misleading to the jury and result in an undue waste of time.
The lawyer defendants claim that Dr. Vachani’s testimony would be
hearsay because he lacks expertise and knowledge in the area and
therefore, he is just simply doing the equivalent of reading the

21

articles to the jury under the guise of expert testimony.

This

Court was unable to locate a response to this particular motion in
limine in CSX’s “Combined Response to Defendants’ Motions in
Limine.”
This motion as it applies to Dr. Anil Vachani must be denied
because Dr. Vachani’s opinions may be helpful to the jury under
Federal Rule of Evidence 702 even though it may be disputed by
defendants’ experts including Professor Joseph B. Kadane.

Dr.

Vachani’s testimony may, of course, be the subject of crossexamination by CSX’s counsel.

Dr. Vachani is otherwise qualified

to testify under Rule 702.
11.

Motion in Limine No. 11 to Preclude the Testimony of CSX’s

Expert Dr. Anil Vachani, Including Testimony Regarding What is an
Appropriate Clinical Evaluation of a Patient for Asbestosis (ECF
No. 1395) -- GRANTED IN PART AND DENIED IN PART.
By this motion, the lawyer defendants seek this Court to
exclude all testimony from Dr. Anil Vachani.

In support of this

motion, the lawyer defendants state that the question for the jury
is not what a doctor would have done with a patient in a clinical
setting had one of the eleven clients at issue walked into his or
her

office

but

rather

the

question

is

--

was

it

proper

or

fraudulent for the lawyer defendants to file and prosecute the FELA
asbestos claims at issue based on the medical evidence and other
relied upon evidence?

Due to this, the lawyer defendants argue

22

that Dr. Vachani’s testimony should be excluded because it does not
address this issue or any other relevant issue in this litigation.
As such, the lawyer defendants state that its admission can only
serve to confuse the jury and needlessly waste the jury’s and this
Court’s time.
CSX responds by stating that Dr. Vachani should be allowed to
contrast the defendants’ conduct with legitimate medical practice.
CSX states that his testimony will help the jury understand how and
why the methods used by the defendants differed from good faith
medical practice and provided no meaningful basis for the lawyer
defendants or anyone else to honestly believe any of the eleven
claimants at issue has asbestosis.
This Court grants this motion as unopposed on the issues
addressed by Motion in Limine No. 11.

Otherwise, this Court has

addressed the other issues discussed in Motion in Limine No. 10,
which this Court denied.
12.

Motion in Limine No. 12 Seeking to Exclude Testimony of

Plaintiff

CSX’s

Expert

Witness

David

D.

Johnson,

III,

Esq.

Concerning Ethical Standards and Alleged Violations (ECF No. 1396)
-- DENIED AS MOOT.
By this motion, the lawyer defendants seek to have this Court
exclude testimony of CSX’s expert, David D. Johnson, III, Esq.
concerning ethical standards and alleged violations of such ethical
standards. The lawyer defendants state that Mr. Johnson’s proposed

23

testimony

on

ethical

standards

and

violations

improper, and will confuse the jury.

is

irrelevant,

The lawyer defendants

thereafter state a number of reasons this is so. Specifically, the
lawyer defendants state that a violation of West Virginia’s Rule
11, the Code of Professional Responsibility, or the general duty of
candor to a court is a subject for the Court or the Office of
Disciplinary Counsel, not a jury.
CSX responds by stating that Mr. Johnson’s testimony should be
admitted, as his opinions are imminently relevant to the issues in
this case.

CSX argues that the heart of CSX’s claim is that the

lawyer defendants filed claims knowing that there was no good faith
basis for them, and the jury cannot make that determination without
understanding what constitutes a “good faith basis.”

Further, CSX

contends that the testimony should not be excluded because it will
confuse the jury about the standard of liability.

CSX states that

with the proper instruction from this Court, the risk of confusion
is slight. Finally, CSX states that if the lawyer defendants’ view
of admissibility were correct, it would eliminate any possible
basis for the testimony of their own expert, Mr. McDermott, on the
counterclaims.
At the pretrial conference, CSX’s counsel did not indicate
they would call Mr. Johnson.
testimony

dealing

with

Even if CSX desired to call him, his

ethical

responsibilities

of

lawyer

defendants Peirce and Raimond would not be relevant to the issue of

24

fraud and would not be relevant as to “good faith.”

Even if

relevant, it would raise Rule 403 issues.3
13.

Motion

Submitting
Occurring

in

Limine

Evidence
After

No.

or

July

13

Seeking

Recovering
5,

2007,

to

Damages

Including

Preclude
Related
Judge

CSX
to

From

Conduct

Recht’s

Case

Management Order (ECF No. 1397) -- GRANTED IN PART AND DEFERRED IN
PART.
By this motion, the lawyer defendants seek to have this Court
exclude evidence and argument concerning events and conduct after
July 5, 2007, once CSX filed its first amended complaint and to
preclude CSX from seeking damages related to those events and
conduct.

The lawyer defendants state that such evidence is

irrelevant

and

unfairly

prejudicial

and

should

therefore

excluded under Federal Rules of Evidence 401, 402, and 403.

be
The

lawyer defendants claim that by July 5, 2007, CSX could no longer
claim that it was being misled or defrauded by any actions of the
defendants.

Therefore, they argue that any evidence post-dating

that date should not go to the jury because it is irrelevant to
CSX’s claims to being misled by the initial filings and would lead
to juror confusion. Further, the lawyer defendants assert that CSX
cannot recover damages that post-date July 7, 2008.

The lawyer

defendants argue that CSX can no longer claim to have suffered
injury

“by

reason

of”

the

alleged

3

RICO

violations

Mr. Johnson was not called as a witness at trial.
25

once

it

admittedly became aware of the alleged underlying predicate acts
and could not be said to have justifiably relied on the allegedly
fraudulent representations of the lawyer defendants.
CSX responds by stating that such evidence should not be
excluded as it is essential to provide the jury with a full and
complete understanding of the defendants’ fraud and CSX’s damages.
CSX states that the lawyer defendants cannot be permitted to create
the false impression that the claims went away upon the filing of
CSX’s

first

amended

complaint

because

the

continued to prosecute them after that date.

lawyer

defendants

CSX claims that all

of the costs accrued by it during the three-year period between the
filing of the first amended complaint and the dismissal of the last
remaining fraudulent claim stemmed from the lawyer defendants’
predicate acts of filing the mass suits at issue.

Further,

regardless if CSX’s accrual of damages stopped at the time it filed
its first amended complaint, CSX argues that it is “common sense”
that conduct occurring after the initial misrepresentation can be
relevant in a fraud case.
This Court grants this motion as to RICO claims and defers
this motion as to counterclaim fraud claims pending consideration
at trial.
14.

Motion in Limine No. 14 to Preclude CSX From Offering Evidence

Related to a November 19, 2009 Order by Judge Recht or Other
Judicial Findings (ECF No. 1398) -- GRANTED.

26

By this motion, the lawyer defendants seek to preclude CSX
from offering evidence related to a November 19, 2009 order by
Judge Recht or other judicial findings. Specifically, they request
that this Court preclude CSX from offering certain language from
this order that was included in CSX’s third amended complaint and
other factual findings by Judge Recht. The lawyer defendants argue
that such findings are hearsay and prejudicial.

CSX seems to

respond generally to this specific motion on pages 20 through 21 of
its “Combined Response to Defendants’ Motions in Limine.”

CSX

states that the full procedural history of the claims at issue is
essential

to

provide

the

jury

with

a

full

and

complete

understanding of the defendants’ fraud and CSX’s damages.
Judge Recht’s order is hearsay and not relevant and even if
relevant, it would encounter problems under Rule 403.
15.

Motion in Limine No. 15 to Preclude CSX From Arguing to the

Jury that Reports for Third-Party Asbestos Trusts by Dr. Robert
Cohen Were Issued Without his Authorization and From Admitting
Other Evidence Related to Dr. Cohen (ECF No. 1399) -- GRANTED IN
PART/DENIED IN PART.
By this motion, the lawyer defendants seek to preclude CSX
from arguing that third-party asbestos trusts by Dr. Cohen were
issued without his authorization and from admitting other evidence
related to Dr. Robert Cohen.
CSX

will

seek

to

introduce

The lawyer defendants believe that
evidence

27

related

to

the

lawyer

defendants’ practice with regard to administrative claims made on
behalf of clients with bankruptcy trusts established by asbestos
manufacturers,

commonly

referred

to

including information about Dr. Cohen.

as

third-party

trusts,

The lawyer defendants

incorporate their arguments from their Motion in Limine No. 6
dealing with the inadmissibility of third-party evidence as a
whole.

Further, the lawyer defendants state that the arguments

that CSX has indicated it intends to make regarding Dr. Cohen have
no support in the record, and should be precluded as improper and
prejudicial.

CSX argues that the issue of whether Dr. Cohen

authorized the creation of certain medical reports bearing his
signature is for the jury to decide.
The third amended complaint goes to claimants in issue and Dr.
Cohen is not alleged to be a part of any alleged conspiracy to the
extent that reports for four of eleven claimants at issue exist,
they may be relevant. CSX simply says the issue of whether certain
medical reports bore his signature without his authorization is a
“jury issue” and that the internal memo regarding Dr. Cohen goes to
intent (whether lawyer defendants were seeking bona fide opinions)
and would be a topic for cross-examination for reasons stated in
Motion in Limine No. 16 -- not relevant, not admissible under Rule
403 or Rule 404(b) -- does not focus on claims in issue.

At best,

the memo is attributable to the Peirce Law Firm not Peirce and
Raimond, two members of the firm.

28

16.

Motion in Limine No. 16 to Preclude CSX From Offering Into

Evidence an Internal Peirce Firm Memorandum that Discusses Expert
Witnesses not Used in FELA Asbestos Cases Found at Bates Nos.
692491 to 692505 (ECF No. 1400) -- GRANTED.
By this motion, the lawyer defendants seek to preclude CSX
from offering evidence of an internal Peirce firm memorandum that
discusses expert witnesses used by the Peirce firm for various
types of non-FELA asbestos cases.

The lawyer defendants make four

specific arguments as to why this memorandum should not come in:
(1) the documents was not authored by or even known by the lawyer
defendants,

and

therefore

is

irrelevant

against

them

as

individuals; (2) Dr. Cohen was not typically involved in the Peirce
firm’s FELA asbestos practice and none of his reports were provided
to CSX as part of the prosecution of the eleven claimants at issue
the memo is irrelevant; (3) the evidence constitutes “other act”
evidence that should be excluded under Rule 404(b); and (4) the
evidence

will

result

in

a

prejudicial,

time

consuming,

and

confusing mini-trial about Dr. Cohen.
CSX responds concerning the memorandum by stating, that the
internal memorandum related to Dr. Cohen is relevant and admissible
because it goes to the issue of the lawyer defendants’ intent as to
whether

they

were

seeking

bona

claimants’ medical condition.

29

fide

opinions

concerning

the

The evidence is not relevant.
memo means.

It is speculative as what the

CSX says it goes to intent but this is speculative.

The evidence is further barred by Rule 403’s balancing test.

The

evidence does not come in as Rule 404(b) evidence as it is not
relevant, reliable, or necessary.
17.

Motion in Limine No. 17 to Preclude CSX From Offering Evidence

That it Offered During Depositions to Pay to Have the Claimants at
Issue Undergo a CT Scan of the Chest (ECF No. 1401) -- WITHDRAWN.
The lawyer defendants withdrew this motion as a result of an
agreement reached between the parties that CSX will not introduce
such evidence or argument.
18.

See ECF Nos. 1416 and 1417.

Motion in Limine No. 18 to Exclude Evidence and Argument

Regarding the Alleged Lack of Proper Client Contact Between the
Pierce Firm and Its Clients (ECF No. 1402) -- GRANTED.
By this motion, the lawyer defendants seek to preclude CSX
from introducing evidence regarding the amount or form of contact
that the Peirce firm had with its clients.

The lawyer defendants

argue first that such evidence is irrelevant as the purported lack
of contact does not mean that the claim filed was fraudulent, nor
does it lead to the inference that claim was fraudulent.

Second,

the lawyer defendants state that regardless, this evidence is
highly prejudicial and should be excluded under Federal Rule of
Evidence 403, as it may make the lawyer defendants look like poor
lawyers who do not treat their clients properly or communicate
30

sufficiently with them.

Further, they assert that the evidence is

also likely to confuse the issues, mislead the jury, cause undue
delay, and waste time on issues unrelated to whether FELA claims
against CSX were fraudulent.
CSX responds by arguing that such evidence is highly probative
regarding
claims.

the

lawyer

defendants’

intent

in

prosecuting

their

Specifically, it argues that is probative of whether the

lawyer defendants were genuinely attempting to vindicate the rights
of injured persons or rather attempting to enrich themselves as
quickly and with little effort as possible based on fabricated
medical evidence.
This Court grants this motion unless the letters mentioned by
CSX in response can somehow be attributable to the claimants in
issue.

Otherwise, this evidence is not relevant and prohibited

under Rule 403 and Rule 404(b)
19.

Motion in Limine No. 19 Seeking to Exclude Evidence and

Argument Regarding the Dismissal of Certain FELA Claims in 2010,
Including Evidence or Argument that the Peirce Firm did not Obtain
Client

Consent

Before

Dismissing

the

Claims

and

Evidence

or

Argument Related to Judge Recht’s Case Management Order (ECF No.
1403) -- GRANTED.
By this motion, the lawyer defendants seek to preclude the
introduction of evidence and argument regarding the dismissal of
certain FELA claims in 2010, including evidence or argument that

31

the Peirce firm did not obtain client consent before dismissing the
claims and evidence or argument related to Judge Recht’s case
management order.
is

contrary

to

The lawyer defendants claim that such argument
written

record

evidence.

First,

the

lawyer

defendants claim that the evidence is irrelevant as just because a
claim was dismissed does not mean the claim was fraudulent.
Second, the evidence is highly prejudicial as a jury may find
against the lawyer defendants because they were allegedly poor
lawyers rather than because fraud was committed.
CSX does not seem to respond directly to this motion although
in footnote 55 at page 20 it says it is speaking to Motion in
Limine No. 19.

In any event, such evidence is not relevant to the

fraud claim relating to the claimants in issue, whether or not
consent was obtained.

Mere dismissal of any claim in issue does

not mean, without more, that the claim was fraudulent. Also, there
is no direct tie in of defendants Peirce and Raimond.
20.

Motion

in

Limine

No.

20

Seeking

to

Preclude

CSX

form

Submitting Evidence Related to Mr. Earl Baylor’s or Mr. Herman
Lincoln’s Asbestos Questionnaires That Were Never Submitted to CSX
(ECF No. 1404) -- DEFERRED.
By this motion, the lawyer defendants seek to preclude CSX
from offering evidence related to Mr. Baylor’s or Mr. Lincoln’s
asbestos questionnaires because these were never reviewed by the
lawyer defendants and were never provided to CSX as part of the

32

claims.

As such, the lawyer defendants argue that they are

irrelevant. Further, the lawyer defendants argue that the evidence
should be excluded under Rule 403 because of its potential to
inflame and prejudice the jury against the lawyer defendants due to
evidence of an employee of the Peirce firm allegedly doctoring the
questionnaires.

CSX responds by stating that the United States

Court of Appeals for the Fourth Circuit has already held that
evidence indicating the lawyer defendants falsified the “claimed
exposures” on their clients questionnaires is relevant and creates
a triable issue of fact.
holding,
arguments

the
that

Therefore, CSX states that by this

Fourth

Circuit

the

falsified

rejected

the

questionnaires

lawyer
are

defendants’
not

relevant

because they were not provided to CSX as part of the case against
CSX and there is no evidence that the lawyer defendants ever saw
the questionnaires prior to discovery in this case.

A ruling on

this motion is deferred.
21.

Motion in Limine No. 21 to Preclude CSX From Offering Evidence

and Argument Concerning the Current or Post-FELA Filing Medical
Conditions of the Individuals on Whose Behalf the Eleven FELA
Claims Were Filed (ECF No. 1405) -- GRANTED IN PART/DENIED IN PART.
The lawyer defendants seek to preclude CSX from offering
medical evidence regarding the eleven claimants that post-dates the
filing of the FELA claims.

The lawyer defendants state that the

Peirce firm did not have such evidence at the time of filing the

33

FELA

claims

or

while

prosecuting

such

claims.

The

lawyer

defendants argue that such evidence is irrelevant as it does not go
to a fact that is of consequence in this action and CSX has
previously admitted that such evidence is irrelevant to its fraud
claims.

Further, the lawyer defendants state that such evidence

would confuse the issues, mislead the jury, and unfairly prejudice
the lawyer defendants under Federal Rule of Evidence 403.

CSX

responds by stating that such evidence is probative of whether the
lawyer defendants had a good faith basis to file suit alleging that
the claimants had an asbestos-related disease.
CSX should be allowed to show medical evidence including any
CT scan report possessed by Peirce and Raimond at the time of the
particular FELA cases for the particular claimant in issue were
filed, such as the Baylor CT scan received in December 2003.
Argument that later medical evidence obtained after the filing in
a particular FELA case is not relevant to show fraud or bad faith
at a later date or that Peirce and Raimond should have had that
particular evidence available when the suit was filed.
relevant, it does not pass muster under Rule 403.

Even if

CSX seems to

have admitted as much, at least as to Baylor, in the response to an
early motion cited by Peirce and Raimond in their memo to this
motion.

34

22.

Motion in Limine No. 22 Seeking to Exclude Evidence and

Argument Related to Non-B Read X-Ray Reports (ECF No. 1406) -DENIED.
The lawyer defendants seeks to exclude the introduction into
evidence of any x-ray reading reports not performed by a National
Institute for Occupational Safety and Health (“NIOSH”) certified B
reader.

The

lawyer

defendants

argue

that

the

reports

are

irrelevant as they are do not involve the same x-rays that were
read by Dr. Harron and Dr. Breyer who were both certified B
readers. The lawyer defendants also argue that such evidence would
lead to confusion because a jury may not be able to draw the proper
distinction between B reads and non-B reads and the weight that
should be given to the former compared to the latter. CSX responds
by arguing that at most, the fact that a particular radiological
interpretation is not a B read goes to the weight to be afforded to
that evidence by the jury, not to its admissibility.
This is a subject that is best left for cross-examination,
particularly as to medical witnesses and it is not, if relevant,
barred by Rule 403.

Perhaps B readers are better qualified than

other specialists and the results of their readings more probative
than other readers, but that is a topic for resolution by the jury
after hearing the evidence on this subject.

The jury may well be

able to make the proper distinction between the findings of a B
reader and a non-B reader and not just believe that one x-ray

35

report by one physician or other health specialist is just the
same.
23.

Motion in Limine No. 23 Seeking to Exclude Evidence, Including

Expert Testimony, of the November 2003 CT Report of Earl Baylor
(ECF No. 1407) -- DEFERRED.
By this motion, the lawyer defendants seek to exclude evidence
of a November 2003 CT report of Earl Baylor. The lawyer defendants
argue first that, because of a lack of any evidence showing that
the lawyer defendants were aware of the CT report, what the report
stated is irrelevant to the claims of fraud against these two
individuals because the CT report’s presence in the Peirce firm’s
file does not show any awareness or intent on the defendants’ part
to defraud CSX.

Further, the lawyer defendants argue that such

evidence would only distract the jury from making its determination
on liability based on what the lawyer defendants knew by infusing
negligence concepts into the action.
CSX responds by stating that the CT report is relevant as it
demonstrates: (1) that Baylor did not have asbestosis; (2) that
Peirce

knew

or

should

have

known

that

Baylor

did

not

have

asbestosis well before he filed Baylor’s claim against CSX; and (3)
Peirce’s policy of disregarding and suppressing unfavorable medical
evidence.
Assuming Peirce and Raimond did not know about the Baylor 2003
report, the Court wants to consider further whether knowledge of

36

the filing of the report in the law firm file could or should be
imputed to Peirce and Raimond or either of them, particularly in
light of the higher standard of proof -- clear and convincing
evidence -- and the need to prove fraud by specific intent.

The

Court will leave the matter open for now.
24.

Motion in Limine No. 24 to Exclude CSX From Contending that

the November 2003 CT Report of Mr. Earl Baylor was in the Peirce
Firm’s CSX or Railroad File for Mr. Baylor (ECF No. 1408) -DEFERRED.
This motion is similar the lawyer defendants’ Motion in Limine
No. 23. By this motion, the lawyer defendants seek to preclude CSX
from contending that the November 2003 CT report of Mr. Earl Baylor
was in the Peirce firm’s CSX or railroad file for Mr. Baylor.

The

lawyer defendants argue that the report was not entered in Mr.
Baylor’s CSX file when it was received in 2003.
2007 that the report was placed in such file.

It was not until

Further, the lawyer

defendants state that the lawyer defendants were not aware of the
CT report until after CSX filed this lawsuit.

Based on this, the

lawyer defendants state that allowing CSX to argue that the CT
report was in the Peirce firm’s file related to the litigation
would be contrary to the evidence and therefore, improper and could
mislead and confuse the jury.
CSX states that as to the specific location of the CT scan
report, CSX only intends to argue that the report was entered into

37

Baylor’s electronic file in the Peirce firm’s practice manager
database by at least 2005. Further, CSX states that insofar as the
Peirce

firm’s

electronic

case

files

are

concerned,

medical

information is shared between a client’s files.
This motion is deferred for essentially the same reason the
Court has deferred ruling on Motion in Limine No. 23.

Although

without more evidence it is hard to see how the report, in and of
itself,

is

evidence

of

a

policy

by

Peirce

and

Raimond

of

“disregarding and suppressing unfavorable medical evidence” as
asserted by CSX in its response.

Of course, it may or may not

demonstrate that Baylor did not have asbestosis.
25.

Motion

in

Limine

No.

25

Seeking

to

Preclude

CSX From

Presenting Evidence or Argument Regarding Certain Statements Made
by Mr. Baylor’s Prior Counsel Related to his 2001 Claim that did
not Involve Mr. Peirce, Mr. Raimond, or the Peirce Firm (ECF No.
1409) -- DEFERRED.
By this motion, the lawyer defendants seeks to preclude CSX
from offering evidence or argument regarding statements made by Mr.
Baylor’s prior counsel related to Mr. Baylor’s 2001 claim, which
did not involve the lawyer defendants.

Specifically, they wish to

preclude the statement from Mr. Baylor’s counsel that Mr. Baylor
should accept CSX’s $7,500.00 award because the medical evidence
indicated that Mr. Baylor did not have asbestos- or silica-related
dust disease and if he did not accept the offer, his counsel would

38

need to withdraw as his counsel felt that continuing the case would
be sanctionable.

First, the lawyer defendants argue that such

evidence is irrelevant, as it was not evidence that the lawyer
defendants relied on and whether the lawyer defendants committed
fraud should not be based on evidence not relied upon. Second, the
lawyer defendants state that the evidence should be excluded under
Rule 403.

First, they argue that it should be excluded under Rule

403 because there is a risk that the jury could improperly conflate
the statements in 2001 and 2002 based on the evidence available to
Mr. Baylor’s then counsel with the conduct of the lawyer defendants
taken pursuant to different evidence at a difference time. Second,
the lawyer defendants state that it should be excluded under Rule
403 because it will result in the needless waste of valuable time
putting on evidence to distinguish between the situation faced by
Mr. Baylor’s lawyer in 2001 and 2002 and the information relied on
by the lawyer defendants in 2006.
CSX responds by stating that such evidence is relevant to the
lawyer defendants’ counterclaims in two ways.

First, CSX states

that the statements about the lack of evidence to support Mr.
Baylor’s 2002 claim place Mr. Baylor’s 2006 claim filed by the
Peirce firm within the category of cases that the Peirce firm would
not dismiss.

Second, CSX argues that the testimony is relevant to

rebut the lawyer defendants’ theory that the mere existence of the
prior settlement establishes that the Baylor claim did have a valid

39

basis.

Further, CSX states that the evidence is also relevant to

CSX’s claims.

CSX argues that the fact that Mr. Baylor was

informed in 2002 that a doctor had ruled out the possibility that
he had asbestosis is evidence that the lawyer defendants’ claim on
Baylor’s behalf was fraudulently asserted.
Evidence might be admissible regarding Peirce and Raimond’s
counterclaim as asserted by CSX in its response.

Such evidence is

less likely to be relevant on CSX’s claims of fraud but the Court
needs to defer that matter as well pending evidence at trial.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

January 7, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

40