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Lawyer's conduct in black lung case reaches Supreme Court

Read more on the Sustained Outrage blog "here."

CHARLESTON, W.Va. --  An attorney for the State Bar asked state Supreme Court justices to suspend the law license of a black lung lawyer who removed part of a doctor's report before disclosing it to a retired miner seeking benefits in 2001.

"This conduct is deceitful. It's dishonest. It is misrepresentation," Jessica Donahue, a lawyer with the bar's Office of Disciplinary Counsel, told the justices.

But Al Emch, a Jackson Kelly attorney who spoke on behalf of his colleague Douglas A. Smoot, insisted that the regulations governing black lung cases did not require Smoot to submit the entire report.

In 2009, the Office of Disciplinary Counsel filed formal charges against Smoot, alleging that he violated the state's rules for lawyers by removing part of a doctor's 2001 report before turning it over to a retired miner with an eighth-grade education who was representing himself in the black lung claim.

After a two-day hearing in June 2009, a three-member panel recommended the dismissal of all charges against Smoot, concluding that his handling of the case was in compliance with applicable black lung law. The Office of Disciplinary Counsel immediately appealed that decision to the Supreme Court.

On Wednesday, Emch maintained that the part of the report that Smoot did disclose contained evidence that was highly beneficial to the retired miner, who was representing himself when Smoot's client, Westmoreland Coal Co., decided to fight his claim in 2001.

"We gave him the touchdown," Emch said, referring to test results that he said would have created an irrefutable presumption that the miner, Elmer Daugherty, had black lung. The withheld portion, the doctor's narrative summary, discussed multiple causes, including black lung, a history of smoking and emphysema, that could account for Daugherty's medical condition, Emch said.

"I see nothing in [the applicable] regulation that says a partial medical report can be submitted," said Chief Justice Robin Davis.

Emch countered that there was nothing in the regulation that specified what a complete report is. He said that the removal of part of the doctor's report was not misleading.

"It was altered, Mr. Emch. The report was altered," Davis shot back.

Justice Menis Ketchum wondered why, if the information they submitted indicated that Daugherty had black lung, the coal company continued to fight the case. In the years of litigation that followed, 14 doctors examined more than 30 X-rays, Daugherty underwent 11 exams by nine different pulmonologists, and six expert witnesses were deposed, he said.

"You could have just paid him and saved a lot of money," Ketchum said.

Ketchum also wondered why Smoot hadn't submitted the entire report to Daugherty and the administrative law judge presiding over the case.

"Why not give the whole report to the judge and let him decide what was most probative?" Ketchum asked.

"That was done eventually," Emch replied.

Justice Brent Benjamin asked how much could be removed from a doctor's report before it could no longer be called a report, as it was in the cover letter that accompanied the submission of the partial report to Daugherty and the administrative law judge.

Donahue argued that it was deceitful, and therefore an ethical violation, not to indicate that portions of the report had been removed.

"They took the report and tore it apart and only submitted the part they liked," she said. "It is somewhat plausible to say that the [full] report would never have come to light if [Daugherty] hadn't gotten counsel."

The litigation continued for three years after Smoot withheld part of the doctor's report.

Davis noted that when faced with a judge's order to disclose all of its information, Westmoreland decided to stop fighting Daugherty's claim.

Daugherty's lawyer, Robert Cohen, eventually pursued sanctions against Jackson Kelly from U.S. District Judge David Faber. Although Faber declined to impose sanctions, saying that a court was the wrong venue, he did forward the issue to the ODC.

"The court in no way approves the conduct of Jackson Kelly lawyers before the administrative law judge, assuming the alleged misconduct to have occurred," Faber wrote in his Aug. 30, 2006 order. He found Jackson Kelly's "excuses and arguments flimsy at best."

Steve Crislip, another Jackson Kelly lawyer representing Smoot, said that the statute of limitations had run out, and that it was wrong to proceed with charges against Smoot nine years after the incidents in question occurred.

"[Smoot] acted in good faith. He plays by the rules and he knows the rules," he said.

The United Mine Workers of America, the National Black Lung Association and Appalachian Citizens' Law Center Inc., and state Attorney General Darrell McGraw all submitted "friend of the court" briefs urging the justices to reject the panel's recommendation and to find that Smoot had violated his ethical obligations.

Reach Andrew Clevenger at aclevenger@wvgazette.com or 304-348-1723.


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