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Report: Law firm hid black lung evidence

Read the report.

CHARLESTON, W.Va. -- A non-profit news organization alleged on Tuesday that one of the coal industry's major law firms has repeatedly hidden vital evidence to keep coal miners from winning federal black-lung benefits.

The Center for Public Integrity published what it said were the results of year-long investigation into the handling of black lung cases by the Charleston-based Jackson Kelly law firm.

In what it described as "part of a cutthroat approach to fighting miners' claims," the center said Jackson Kelly lawyers have for years concealed medical reports that, if disclosed, would have helped miners obtain federal compensation for the black lung.

"Jackson Kelly, documents show, over the years has withheld unfavorable evidence and shaped the opinions of its reviewing doctors by providing only what it wanted them to see," said the report, written by investigative reporter Chris Hamby. "Miners, often lacking equally savvy lawyers or even any representation, had virtually no way of knowing this evidence existed, let alone the wherewithal to obtain it."

The center said Tuesday's story is part of a three-part series following up on a 2012 project on the resurgence of black lung disease, done in partnership with NPR News and with additional reporting by The Charleston Gazette.

This new project on black lung benefits was done in partnership with ABC News, which is scheduled to broadcast stories tonight on its "World News" and "Nightline" programs.

Safety and health advocates have long complained that the black lung benefits process is difficult to navigate and stacked against coal miners and their families.

"It's clear those with black lung face too many hurdles in getting their benefits," said Sen. Jay Rockefeller, D-W.Va. "It's deeply frustrating to me, and I'm working to address this injustice and heartbreaking problem through legislation."

The Center for Public Integrity's project was unveiled on the same day that the U.S. 4th Circuit Court of Appeals was scheduled to hear oral arguments in a case over whether Elk Run Coal Co., represented by Jackson Kelly, committed "fraud on the court" in a black lung benefits case involving a West Virginia coal miner named Gary Fox.

Fox's widow, Mary Fox, is pursuing the case after her husband was denied black lung benefits after Jackson Kelley lawyers withheld reports from two pathologists who had concluded Fox indeed did have black lung, the center said in its story.

Contacted by the Gazette on Tuesday, Jackson Kelly general counsel Steve Crislip declined to respond to the specific allegations in the center's story.

Crislip provided a copy of an e-mail message he sent the center in which he said the law firm was "restricted in our comments by client and professional obligations" until the Fox case was concluded and "all involved parties have granted waivers."

"We certainly would like to talk to you, and look forward to doing so, when the Fox case is over and we have had time to talk with all involved parties," Crislip said in the e-mail message. "Reporting on it would be incomplete if not misleading, in my opinion, until then."

In a legal brief filed in the Fox case, Jackson Kelly said it is common practice and perfectly legal to withhold the sorts of records it did not disclose in that case.

"Relying on a large, well-settled body of federal law, Elk Run's counsel did not disclose the non-testifying experts' opinions to anyone in order to preserve their privileged status under the work product doctrine," the firm said. "This scenario, repeated daily by attorneys in every type of adversarial litigation, does not constitute fraud of any sort."

In their own brief, lawyers for Mary Fox told the 4th Circuit that the case involved a "scheme" to deprive a coal miner "of the benefits Congress mandated for victims of a progressive and irreversible disease."

Along with the Fox case pending before the 4th Circuit, Jackson Kelly is facing a suit in Raleigh Circuit Court that alleges the firm wrongly concealed evidence in black lung benefits cases. Jackson Kelly has denied doing anything wrong and continues to try to have the case thrown out of court.

One Jackson Kelly lawyer, Douglas A. Smoot, had his law license suspended for one year after the Supreme Court concluded he had withheld evidence from retired miner Elmer Daugherty in a black lung benefits case.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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