Why CSX Railroad Sued Successful Asbestos Lawyers For Racketeering

As Rich Lord reported at the Pittsburgh Post-Gazette:

The quarry has turned on the hunter in a West Virginia courtroom, and now one of the nation’s biggest transportation companies is locked in a bitter fight with one of Pittsburgh’s most prominent trial law firms.

After years of feeling like they were being railroaded by asbestosis lawsuits, lawyers for CSX Transportation in 2005 sued Robert Peirce & Associates, accusing it of fraud and negligence in the massive cases it brought. The Jacksonville-based corporation lost a 2009 trial, but in court filings in recent weeks it detailed a new theory — that the Peirce firm is a racketeering-influenced corrupt organization that has committed wire fraud and mail fraud in its pursuit of claimants and settlements. …

Prominent advocates for both the plaintiffs’ bar and defense bar said they could not think of another case in which a corporation that endured mass litigation retaliated by turning the RICO statute against its tormentor. They disagreed on the significance of the development.

“The requirements [to prove RICO] are significant and pretty hard to meet under most circumstances,” said Christopher Placitella, a prominent litigator and writer on asbestosis law with the Philadelphia-based plaintiffs’ firm Cohen Placitella & Roth. “You really have to have a unique set of facts” including a conspiracy, multiple criminal acts and a resulting loss of property.

As a result, other plaintiffs’ firms aren’t likely to be chilled by one RICO case, he said.

This isn’t entirely breaking news; six months ago the Fourth Circuit reinstated the case over statute of limitations defenses, reported about here by the anti-consumer folks at Forbes. The full complaint is new, though.

‘Suing trial lawyers for bringing successful mass torts cases’ is something of a fad these days. On the verge of losing litigation they asked be transferred to Ecuador, Chevron has sued the lawyers for the Lago Agrio Ecuadorian plaintiffs alleging RICO violations in the form of judicial tampering. Last year, Illinois Central Railroad won a verdict against two plaintiffs’ attorneys in Mississippi, alleging fraud in the pursuit of two asbestos cases by way of the plaintiffs’ lawyers failure to notify the railroad that the plaintiffs had participated in a prior asbestos-related case. (The lawyers’ brief on appeal is available here if you have ECF/PACER access.)

I don’t fault the reporter for knowing about it, but I do indeed know of another, just like the new CSX lawsuit against Robert Peirce, in which:

  • a large corporation did something bad that harmed a lot of people,
  • a particular plaintiffs’ law firm developed a specialty in those claims,
  • the plaintiffs’ firm got so good at their niche that they were consistently making a lot of money, and, armed with just the right discovery, legal theories, and experts, were able to negotiate premium settlement,
  • then, after a few cases didn’t win, the large corporation turned around and sued the trial lawyers under RICO allegations, alleging the whole thing was a scheme to defraud the corporation, etc.

I expect to see more of these claims in the future. Consider the denture cream zinc poisoning litigation; GlaxoSmithKline settled the vast majority of Super Poligrip claims, but Proctor and Gamble is fighting the Fixodent cases (pardon the expression) tooth and nail. It wouldn’t surprise me if P&G turned around on some of the losing claims and sued the plaintiffs’ firms — many of whom settled hundreds, some thousands of those cases successfully — claiming the whole thing was a fraud on the court. The whole point is to empty the pockets of the lawyers successful in particular niches and to intimidate plaintiffs’ lawyers, deterring them from filing suits, meritorious or not.

To understand the CSX versus Robert Peirce case, you need to know little about the mass torts world. There are four main types of mass tort lawyers:

  1. referral lawyers who find cases (typically through advertising) and refer them to litigators,
  2. whales, the well-capitalized firms that put up the millions of dollars in expenses necessary to pursue these cases and the trial lawyers who control the litigation, including both the discovery and the trial itself (they are often the ones listed as lead counsel or plaintiffs’ liaison counsel), and
  3. syndicate lawyers who don’t put up any money but provide sheer time and energy into litigating these cases for a portion of the attorneys’ fees at the end (this is why you sometimes see the ironic situation of a solo practitioner who practices “complex litigation” out of their home office – they do indeed practice in the area, in that they’re constantly writing briefs or discussing strategy or arguing at hearings, but they are not the ones taking calls from clients, setting clients up with physicians, paying expert fees, etc.).
  4. backers, i.e. well-capitalized firms helping to fund the litigation but who aren’t taking an active role in the litigation.

(Other than “referral lawyers,” I made those terms up.) MDL litigation like the denture cream myelopathy lawsuits can involve all four, but asbestos lawsuits tend to only really involve #1 and #3.

Using that terminology I just made up above, Robert Peirce is a whale. He funds and litigates the cases himself. Assuming a whale starts with cases that are solid enough — trust me, genuine mesothelioma cases are quite solid on liability and damages — then, as an economic matter, the whale has two ways to increase their revenue and profitability. First, they can try bringing in more cases directly and thus avoid paying referral fees and, second, they can minimize the extraordinary costs of litigation, such as by using healthcare providers or other medical services willing to provide a bulk discount.

CSX claims in its Amended Complaint:

[T]he lawyer Defendants gained access to potential clients through unlawful means, retained clients and procured medical diagnoses for them through intentionally unreliable mass screenings, prosecuted clients’ claims using dishonest, fraudulent, and deceptive tactics and, ultimately, fabricated and prosecuted asbestos claims with no basis in fact. Moreover, the lawyer Defendants deliberately filed the claims they manufactured in mass lawsuits in overburdened courts to deprive CSXT of access to meaningful discovery, which in turn concealed fraudulent claims and leveraged higher settlements based on the threat of mass trials. …

Some or all rail labor unions confer “Designated Legal Counsel” status on select lawyers and advise their members to use those lawyers. Designated status is highly desirable for lawyers because it permits them or their representatives to attend union meetings and solicit clients. In the years prior to this lawsuit, one or more of the lawyer Defendants enjoyed designated counsel status with one or more rail labor unions and explicitly advertised this fact in connection with the Peirce firm’s screenings. (See Advertisement for Screening (attached as Exhibit A).) In 2003, it became known that certain rail labor officials had been accepting unlawful cash payments from lawyers in exchange for designated counsel status. …

In addition to these payments, the lawyer Defendants utilized retired railroad employees, many of whom formerly worked for CSXT, as “runners” or “investigators” to lure railroad workers to their mass screenings. A majority, if not all, of these runners/investigators had left employment claiming varying degrees of disability and were receiving disability payments from the Railroad Retirement Board (“RRB”). The lawyer Defendants caused the Peirce firm to pay these runners/investigators calculated sums to ensure that they remained eligible for federal retirement benefits, and then further fraudulently compensated them through “fringe benefits” and “off the books” reimbursements. …

Asbestosis, also known as pneumoconiosis, is a chronic inflammatory medical condition affecting the parenchymal tissue of the lungs caused by long-term, heavy exposure to asbestos. The National Institute of Occupational Safety and Health (NIOSH) maintains a standard protocol for the interpretation of chest x-rays to determine pneumoconiosis caused by asbestos exposures. NIOSH administers a specialized examination for those who wish to learn the NIOSH protocol. Physicians who pass the examination, referred to as B-Readers, visually analyze opacities and record their findings and interpretations on standard International Labor Organization, “ILO” forms. Although asbestosis is a restrictive lung disorder which usually entails pulmonary function testing, most asbestosis litigation begins with a B-Reader assigning a “positive” score on an ILO form after reviewing a patient’s x-rays and determining the physical presence of scarring caused by prolonged inhalation of asbestos. As will be explained below, the lawyer Defendants deliberately orchestrated the Peirce firm’s screenings so as to maximize the likelihood that attendees would receive positive ILO scores regardless of whether they actually exhibited signs of asbestos-related disease.

Quite salacious allegations, neatly aligned with all the nasty things big corporations have been saying about trial lawyers, unions, and treating physicians for years.

Will it work? I doubt it. Initially, this is the amended complaint in a lawsuit that CSX already lost at trial. More to the point, I have a lot of doubts about the RICO claims. Assume for the moment that the allegations are true and can be proven — an assumption which has to be made with a grain of salt, in light of the prior loss at trial, and the sheer difficulty of proving a conspiracy between independent companies. Paying off union officials to help you get injured union member lawsuits is bad. Knowingly using doctors who are too quick to diagnose asbestosis or silicosis is bad. But are they racketeering?

That part isn’t so clear. I don’t see how the railroad has standing to allege any sort of injury arising from the alleged union bribing; the Children’s drug recall lawsuits against McNeil were just dismissed for exactly that reason, i.e. the failure to show a direct connection between the wrongful conduct and an injury suffered by the plaintiff. How, exactly, is a railroad insured by a plaintiffs’ firm using unethical methods to solicit clients? It seems that I would be in a better position to sue over that than the railroad would, because I at least arguably lost business because of it. The allegedly dubious expert reports have a similar problem; one could suppose it was a “fraud on the court” to use questionable medical conclusions, but a fraud on the court is not same thing as a fraud on a person, and courts have become increasingly skeptical about racketeering claims that don’t involve a clear fraud on the plaintiff.

Returning to the big picture, though, I agree with Christopher Placitella: this isn’t likely to change anything about mass torts or about asbestos lawsuits. The lawsuit won’t deter any referral lawyers from seeking mesothelioma or asbestosis cases, won’t discourage syndicate lawyers from joining onto mass tort cases, and won’t scare backers from funding complex litigation; consider, for example, how Joseph Kohn of Kohn Swift & Graf, a reported backer of the Chevron case, isn’t named a party in the Chevron case and avoided being deposed altogether.

No, the purpose of this case is to deter Robert Peirce personally for succeeding at these cases, to punish him alone from ensuring asbestos victims receive their fair compensation. Tort reformers sometimes say lawsuits are driving companies out of business — what do they say about lawsuits designed to drive justice and accountability out of business?

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