By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
"If client is asked if any other doctors told him about his condition before the diagnosing doctor named in the [interrogatory], client should answer NO."
(An interrogatory is a set of written questions submitted by attorneys to the other side.)
This instruction goes to the heart of another problem bedeviling some of Baron & Budd's cases. The statute of limitations for filing an asbestos claim, which varies from state to state, generally begins running from the date a worker "knew or should have known" he had an asbestos-related illness--usually, when he is diagnosed. If a worker waits too long after a diagnosis to file a claim, he's out of luck.
In a telephone interview, Calhoun claimed that this document is fraudulent. "It looks like somebody is feeding you some false stuff," charges Calhoun. "This is just ridiculous. I'd be very careful in saying this is a document that came from Baron & Budd."
Baron, however, confirms that the notes are "authentic" and that they apparently came from a training session with Jennifer Calhoun. But he adds: "Jennifer just vigorously denies this...[but] what it appears to be is someone listening to Jennifer Calhoun doing a training session and then writing notes and typing them up...Jennifer has never seen that document...It was not authorized...Was the Lynell Terrell document a Baron & Budd document? I would say no. It's a Lynell Terrell document. Is this document a Baron & Budd document? I would say no. It belongs to the author, whoever that is, and it was authored without our consent."
Yet he stands by the instructions to young lawyers contained in the document that a client should answer no when asked whether he was diagnosed previously.
"If [the client's] case is going to survive, he sure as hell should answer no," Baron says.
But in the case of Larry Duane Smith, the Observer discovered how the "right" answer is not necessarily the most truthful answer.
Some helpful hints
Larry Duane Smith, a mechanical engineer technician with the Army Corps of Engineers in Oregon, filed suit against several asbestos-product manufacturers in Dallas County in 1994.
Thanks to another wayward memo from a Baron & Budd paralegal, his case would quickly hit a snag over the issue of when he was diagnosed--a question concerning the statute of limitations.
In early 1995, an internal Baron & Budd memo was accidentally handed to opposing lawyers. The memo, dated December 21, 1994, was written by then-Baron & Budd paralegal Debi La Barbera. "Mr. Smith informed me that Dr. Epsteine, in Portland, told him in 1986 that he had asbestos in his lungs. He said he spoke to Ann Worthington about this, in Portland, and she told him not to worry about it." (Ann Worthington was the attorney who referred the case to Baron & Budd.)
The statute of limitations for products liability cases in Texas is two years, so if Smith were diagnosed in 1986, his 1994 case would have been filed six years too late.
La Barbera continues: "Mr Smith has been involved in several depo's [sic] with his employer, the Army Corps of Engineers. He is a little concerned about this problem. I spoke to him concerning this. We may want to remove Dr. Epstein [sic] from the list of phys[icians]. He said he will need to be prepped well by the depo attorney. Which means he wants to spend more than an our [sic] with whomever sits his depo. I think he's okay with saying he wasn't diagnosed til dr. Craven read his CRX's." (CRX is an abbreviation for X-ray.)
"I did not circulate this memo...."
Did the earlier finding by Dr. Epsteine start the clock running too early for Smith to make his case, and was Smith being coached to lie? Baron says no; the memo shows no impropriety. "You can have asbestos in your lungs, and it doesn't start the statute of limitations running," he says. "There has to be a medical diagnosis of an asbestos-related disease." He denies that Epsteine's name was omitted from a list of all physicians Smith had seen; instead, he says, it was dropped from the expert witness list. As for the "I did not circulate this memo" bit, Baron says he has "no idea" what that's all about.
But in Dallas County, Epsteine's name appears nowhere in the answers to interrogatory questions asking a plaintiff to list all physicians he has seen, for "any reason during your lifetime." Moreover, on January 12, 1995, after the La Barbera memo was inadvertently given to the defense lawyers, Baron & Budd dismissed the case.
Two months later, on March 22, 1995, the firm filed it again in Cameron County, Texas, in the Rio Grande Valley, where most of the defendant manufacturers employed a different set of local lawyers--lawyers who were unfamiliar with the La Barbera memo's link to Smith's case.
As did his answers in the Dallas case, Smith's answers in the Cameron County suit say that Smith was "first told in 1994 by Dr. John Gotchall that Plaintiff's lung or breathing problems were related to asbestos-containing products." This time, however, Dr. Epsteine did make the list of 15 doctors whom Smith had consulted during his lifetime; the Cameron County answers say that Smith consulted Epsteine for "[g]eneral health care" in "1985-86." During his deposition last November, none of the lawyers representing asbestos manufacturers even questioned Smith about his visit with Epsteine.