In CSX Asbestos Case, Gilkison Found Not Culpable

A federal grand jury in West Virginia has ruled that Robert Gilkison is not guilty of conspiracy to defraud CSX.

The case has undergone a number of twists and turns, beginning as far back as 2000, when CSX employee Ricky May, who had previously tested negative for asbestosis, learned that Pittsburgh-based law firm Peirce, Raimond, and Coulter, long known for their asbestos litigation, was conducting asbestos screenings.

May got in touch with former CSX employee Robert Gilkison, who had apparently been hired by the Pierce law firm as a “runner”; that is, someone who is appointed to find and solicit former colleagues for lawsuits.

Gilkison conferred with May in 2000 and allegedly suggested that May find someone who had already tested positive for asbestosis. May would then have this person “stand in” for the physical screening for asbestos-related illness, thus insuring that May would be eligible to file a claim against CSX.

May allegedly convinced Danny Jayne, a CSX worker already diagnosed with asbestosis, to impersonate him during the physical exam and X-ray, though May himself completed the associated paperwork. Gilkison stood accused of coaching both Jayne and May in their respective roles during the process.

Bridgeport radiologist Dr. Ray Herron read the X-rays as positive for asbestosis, a diagnosis that resulted in Jayne getting $7,000 from CSX, while May got $8,000.

Eventually, the scheme was exposed when a whistleblower tipped off CSX executives, and a doctor’s examination of the X-rays (Jayne’s from 1999, and again in 2000 impersonating May) revealed they were from the same individual.

To avoid prosecution, Jayne agreed to testify to his part in the scheme. May did the same, and also agreed to return his settlement. Gilkison denied any knowledge of the supposed conspiracy to defraud, and denied any part in it.

Based on the testimony of the two men, CSX filed a lawsuit against the law firm, its former employee Gilkison, and several others charging fraud and violations of federal racketeering laws. The suit focused on how much the law firm, Pierce, knew about the scheme, and who, as a result, was culpable.

On August 14 of this year, a federal jury in West Virginia ruled that Gilkison did not know about, and was not responsible for, the actions of Jayne and May. The law firm of Peirce, Raimond, and Coulter was exonerated by extension.

CSX, an international rail and truck transportation company, has been a frequent target of asbestos lawsuits. The most recent legal decision is reportedly a disappointment, according to CSX spokesman Bob Sullivan, who noted that the suit was initiated to “stand up to fraudulent actions against the company”, and to insure that the legal system operated in a fair and impartial manner.

Sullivan, who apparently feels neither objective has been accomplished, has said his company is reviewing the decision and may appeal it in the future.

Asbestos, a fibrous mineral used during most of the last century in products ranging from insulation to floor and ceiling tiles, is the primary cause of asbestosis and mesothelioma, a cancer of the mesothelial lining of the lungs and abdomen.

Asbestosis, though debilitating, is not usually fatal. Mesothelioma, particularly pleural mesothelioma, often is, in spite of medications and therapies designed to improve its outcome. In fact, fewer than ten percent of mesothelioma victims live beyond five years, with most succumbing to the disease within 18 months of diagnosis.

http://www.statejournal.com/story.cfm?func=viewstory&storyid=64683

http://www.setexasrecord.com/news/220243-alleged-asbestos-fraud-scheme-started-years-ago

http://www.wvrecord.com/news/220192-man-in-asbestos-case-to-testify-against-lawyers

http://www.ble-t.org/pr/news/headline.asp?id=22100

Asbestos Fraud Case Goes to Trial

CSX Transportation, a leader in the rail freight industry, presented their suit against a West Virginia-based doctor, a Pittsburgh-based law firm and one of the firm’s employees for filing false claims of asbestos exposure against the company. The suit, originally filed in 2005, claims that Robert Gilkison and his employers, the law firm of Peirce, Raimond and Coulter, conspired to make false insurance claims against CSX. The suit also says that two CSX workers originated the idea of scamming the rail company by switching x-ray photos. CSX filed the suit after company officials received an anonymous call that mentioned two former workers, Ricky May and Daniel Jayne, had participated in the fraud.

According to the suit, CSX claims a former employee who was previously diagnosed with asbestosis came in to have x-ray images taken, then reported to the doctor that he was another employee who had earlier shown no symptoms of the disease. After the report, CSX reached a settlement for $8,000. The suit also says that Gilkison, who once worked for the railroad company before joining the law firm, had knowledge of the x-ray swap and did not disclose the switch. CSX also stated in the suit that Gilkison actively attempted to enroll railroad workers to file other fraudulent suits against the railroad.

Dr. Ray Harron, a radiologist based in Bridgeport, West Virginia, was also named in the suit. The allegations against Dr. Harron include misinterpreting x-ray images in order to give merit to the false claims. CSX also claims that Mr. Jayne, who had been diagnosed with the disease, visited Dr. Harron’s office and used Mr. May’s personal information when filling in the personal information form. This deception enabled Mr. May to receive the $8,000 settlement from CSX. Mr. May and Mr. Jayne have agreed to testify for CSX in the civil action. In return, CSX did not pursue charges against Mr. Jayne. Mr. May agreed to return the settlement money.

Marc Williams, one of the CSX attorneys pursuing the case, mentioned that the burden of proof in civil cases is much lower than that in criminal prosecutions. In a criminal case, prosecutors must show guilt “beyond a reasonable doubt”. In civil actions, plaintiffs such as CSX can win a judgment if they can establish guilt through a “preponderance of the evidence”. Mr. Williams also told jurors that Mr. Gilkison was participating in the fraud in order to keep the powerful CSX employee’s union as clients of his employer’s firm. Mr. Williams also alleged that Mr. Gilkison was afraid that, if he did alert either CSX or the media to the attempted fraud, the union would drop the law firm as their counsel and that he would lose his job.

Walter DeForest, the attorney for the Peirce law firm, claimed that Mr. Gilkison was in the dark as to the fraud. He stated that the scam started with Mr. May as an attempt to extract both money and revenge from CSX. Although the firm is widely acknowledged for holding regular asbestos screenings for union employees, Mr. DeForest said that Mr. May brought the idea to Mr. Gilkison but that he did not take it seriously and did not participate in an active fraud scheme.

Sources:
http://www.wvpubcast.org/newsarticle.aspx?id=10806

http://www.statejournal.com/story.cfm?func=viewstory&storyid=64567&catid=166

Potsdam, NY Civic Center Gets Asbestos Remediation after Cancer Deaths

In Potsdam, New York, two workers at the city’s civic center, or city hall, died this summer within three weeks of one another, raising fears of asbestos contamination in the building on Park Street in downtown Potsdam.

One, Sharon M. LaDuke, 57, died May 29 after being diagnosed with mesothelioma, a rare and often fatal cancer linked with asbestos exposure. The other, Linda M. Power, 59, a tax collector, died June 19 of ovarian cancer.

Asbestos, a fibrous mineral widely used in various building products during most of the last century, can cause irritations in the mesothelial linings of the lungs, abdomen and pelvis, leading to lesions that may develop into cancer.

The difficulty with asbestos exposure is that a single incident can trigger mesothelioma, which commonly lies dormant for several decades before producing symptoms of such intensity that doctors can diagnose it. By that time, however, the tumors have invaded so many tissues and vital organs that the prognosis is very poor, and most patients are given between a year and 18 months to live.

The illnesses in Potsdam apparently triggered an examination for asbestos, and on June 5 contractors working at the behest of the state’s Public Employee Health and Safety Bureau took a core sample through the roof into the building, and then patched the hole.

The patch, about a foot in diameter, started to leak, so officials shut the courtroom and have been holding court in the civic center board room.

During testing, the core sample demonstrated asbestos-containing mastic in tiles affixed to the courtroom ceiling, and employees were understandably upset when John Usher, an inspector from the state’s Public Employee Health and Safety Bureau, showed up on Wednesday, June 24, to address their concerns.

On May 19, Canton-based Atlantic Testing Laboratories tested 15 locations inside the civic center for asbestos, and all came back at the non-detection level, meaning there were no airborne asbestos fibers inside the building.

Two further tests have also demonstrated that the air quality in the building is safe (that is, below the U.S. Environmental Protection Agency’s Permissible Exposure Limit, or PEL, of 0.1 fiber per cubic centimeter (f/cc) of air, calculated as an 8-hour, time-weighted average, or TWA). In spite of that, Usher’s meeting with employees and union representatives – and his subsequent asbestos awareness Q&A sessions – have done little to reassure, falling as they do one day after workers returned from Power’s funeral.

Usher described the condition of the building as “typical for its age”. Potsdam Deputy Mayor Ruth F. Garner, who attended the Wednesday session, has described the employee’s furor as a “fiasco”, and says that, while there may be cause for concern, the aura of fear has created a prejudice that might not be overcome even if testing shows the building safe.

Potsdam officials are still waiting for the state’s final report, and expect that they will be cited for two violations; the first from an unlabeled boiler room pipe with asbestos insulation, the second for not providing asbestos awareness training to workers and staff. Garner said both problems have since been addressed.

The four remaining asbestos abatement projects will come from Potsdam general funds, and be completed within three months. Trustees voted not to approve $500 per day for an air monitoring system, because all the testing so far has shown the civic center’s air is safe.

http://www.watertowndailytimes.com/article/20090625/NEWS05/306259963

http://www.watertowndailytimes.com/article/20090818/NEWS05/308189931/0/FRONTPAGE

http://www.usgs.gov/usgs-manual/handbook/hb/445-1-h/ch12.html

Palmyra, PA Asbestos Cleanup to Add $1M to Previous Cost

In December of 2008, voters in Palmyra, Pennsylvania were asked to approve a $9.88- million bond referendum to fund a variety of improvements at the district's three schools, the most urgent being asbestos removal at Charles Street School, which serves students from kindergarten through sixth grade.

The referendum was scheduled for Dec. 9 when the Palmyra Board of Education learned the state would fund almost 40 percent of the project if voters approved it, bringing the actual cost down to about $5.9 million, with $421,550 estimated for asbestos remediation.

Palmyra School District Superintendent Richard Perry described the renovations as “sorely needed”, a statement that couldn’t be truer, at least in terms of asbestos exposure among grade-school children. Asbestos, a fibrous mineral used widely in insulation, floor and ceiling tiles, and tile glues during most of the last century, is the primary culprit in diseases like asbestosis and mesothelioma.

Asbestosis, a debilitating respiratory disease, usually requires long exposure to sources of asbestos, though some individuals have been known to develop it over the course of a single year. Mesothelioma, or cancer of the mesothelial lining (in the chest and abdomen), however, requires only a single exposure. In fact, neither OSHA, the CDC, nor the American Cancer Society – the agencies charged with monitoring asbestos and asbestos-related diseases – has ever established minimum, safe levels of exposure. A day or a lifetime can trigger mesothelioma, which commonly lies dormant for several decades before producing symptoms severe enough to permit diagnosis.

By then, mesothelial cancers have so invaded tissue and vital organs that its victims are seldom given more than a year to live. Only ten percent survive more than five years, and those represent patients whose disease was caught early and treated aggressively.

Times being what they are, voters approved the referendum by a scant 13 votes. The bond will increase property taxes for residents by about $186 a year, but even in difficult times it seems a wise investment to remove the asbestos-containing floor tiles, pipe insulation, pipe fittings, and boiler-room plaster in the Charles Street School.

Even so, the asbestos remediation likely won’t be complete when students return to school in September, since the recent discovery of a thin coating of asbestos inside plaster walls during this summer’s renovation activities.

The asbestos coating, found in eight classrooms, two offices and several hallways in the oldest wing of the school, which dates to 1949, triggered an alert to the Pennsylvania Dept. of Health, the Department of Community Affairs, and other interested parties per the school’s Asbestos Hazard Emergency Response Act (AHERA) plan, which is mandated by the U.S. Environmental Protection Agency for all schools, whether private, parochial or public, regardless of the age of students.
Fortunately, no children were present when the discovery was made. They will be present when the asbestos is removed, however, and the school already has a plan in place that prevents the spread of asbestos fibers by encapsulation and a drilling regimen should workmen need to break into the walls for any reason.
Perry declined to say how many workmen were present during the discovery, for legal reasons, but assures that – since the asbestos was an integral part of the plaster – it does not pose the same risk as if it were in broken floor tiles, for example.
Unfortunately, the funds originally allocated for asbestos remediation will not cover these new encapsulation procedures, estimated to cost between $800,000 and $1 million, and the district’s construction manager, Moorestown-based Greyhawk, omitted the cost when the project was bid because the school district’s environmental consultant, Philadelphia-based Pennoni Associates, missed the line item in the report that noted asbestos in the walls.
Air tests conducted after cleaning have come back negative, and a new ventilation system – installed as part of overall renovation – will help insure that the Charles Street School’s air remains free of asbestos contamination.
Perry has said that the district would rather remove the asbestos in the walls, if possible, and the district is searching for the funds to do so. Palmyra Mayor John Gural has expressed his opinion that Pennoni Associates should cover the additional costs and do whatever is necessary to rectify the asbestos contamination.
In the meantime, Perry has assured parents, the Charles Street School is safer than it has been since it was built 60 years ago.

http://www.phillyburbs.com/news/news_details/article/26/2009/august/19/asbestos-cleanup-to-cost-1m.html
http://www.garrisonarch.com/n-PalmyraRef120908.html
http://74.125.95.132/search?q=cache:cZuV_XjtOkIJ:www.palmyra.k12.nj.us/2008%2520presentation%2520revised%25209-25-08%2520for%252011-18-08%2520meeting.pdf+Charles+Street+School+asbestos+Palmyra&cd=3&hl=en&ct=clnk&gl=us&client=firefox-a