"I'm utterly dumbfounded," he said. "I just cannot conceive of attorneys doing that. ... That's really misleading the court. It's misleading the witnesses. It's tainting the witness testimony."
Jackson Kelly's general counsel, on behalf of the firm and the individual attorneys contacted by the Center, declined repeated interview requests and would not discuss specific cases or general practices. In court filings, the firm has argued that there is nothing wrong with its approach and that its proper role is to submit the evidence most favorable to its clients.
A spokesman for Alpha Natural Resources, which purchased Massey Energy and is now opposing Fox on appeal, declined to comment on the case while it is ongoing.
Until now, Jackson Kelly's conduct in black lung cases has remained largely buried in voluminous files that are confidential because of the private medical and financial information they contain.
Over the past year, however, the Center has identified key cases and obtained written permission from miners or their surviving family members to view their entire case files. These 15 files span 40 years and include hundreds of thousands of pages. The Center also reviewed the limited publicly available information on dozens more of the firm's cases.
These documents reveal a struggle that has been waged out of public view for more than three decades between a handful of lawyers representing miners and the nationally prominent firm. In at least 11 of the cases reviewed by the Center, Jackson Kelly was found to have withheld potentially relevant evidence, and, in six cases, the firm offered to pay the claim rather than turn over documents as ordered by a judge.
Other workers' compensation programs use a panel of independent medical experts, and some judges have suggested rules requiring both sides to disclose all of their medical evidence. Such suggestions have fallen flat in the federal black lung system, where fights over evidence play out on a case-by-case basis.
The integrity of the program created more than 40 years ago is arguably more important now than in years. Government researchers have documented a revival in the disease since the late 1990s, and the number of claims filed with the Labor Department has increased in recent years. After decades of decline in the disease's prevalence, government surveillance now indicates that more than 6 percent of miners in central Appalachia are afflicted with black lung, which is increasingly affecting younger miners and taking a new, more aggressive form. Researchers suspect this is an undercount.
Though conditions have improved since landmark 1969 legislation, today's roughly 85,000 U.S. coal miners face new dangers posed by an increasingly toxic mixture of dust generated by advanced machines that rapidly chew through coal and rock. For an average wage of about $25 an hour, they risk explosions, rock falls, fires and disease.
In the past five fiscal years, the Labor Department has issued initial decisions in more than 23,000 claims, and the proportion of miners who win their cases remains low. During the 2012 fiscal year, about 14 percent of claims led to an award by the Labor Department at the initial level. The real number, after appeals, is likely lower, though no definitive statistics are available.
Coal companies appeal almost every award, and this is when lawyers like those at Jackson Kelly typically develop mounds of evidence. Even if a miner prevails before a judge, the decision must get past an administrative appeals board with a record of vacating awards, often for highly technical reasons. Four of the board's five members were appointed under the Reagan or George W. Bush administrations.
The administrative court system, originally meant to benefit miners, has evolved into a byzantine maze of seemingly endless litigation with its own rules and peculiarities that can befuddle even experienced lawyers. Much more than in civil court, the balance of power is tipped in favor of defendants, and cases receive little outside scrutiny.
Fewer than one-third of miners have a lawyer at the initial stage of their cases, Labor Department statistics show. Coal companies and their insurers, however, are almost always represented by lawyers who specialize in black lung claims.
As perhaps the preeminent federal black lung defense firm, Jackson Kelly's legal strategy offers a window into an opaque, highly technical world that touches thousands of lives each year. In the cases reviewed by the Center, the firm has argued that its tactics are entirely proper. Lawyers and judges have said the behavior revealed in these known cases likely has occurred on a widespread basis. "They played hardball," recently retired judge Daniel Leland told the Center, calling the firm's approach "an all-out effort to win every case."
But in Gary Fox's case, events unfolded that the firm's lawyers may not have anticipated. After his health became so bad that he had to stop working in late 2006, he filed another claim. This time he found John Cline, a carpenter-turned-clinic-worker-turned-attorney practicing out of his home in rural southern West Virginia.
Cline, who had seen Jackson Kelly in action for years, pressed for any withheld reports. When a judge ordered Jackson Kelly to turn over whatever it had, the firm conceded the case. But Cline and Fox continued to fight, arguing that the firm still should have to disclose anything it withheld.
In late 2008, Jackson Kelly had to turn over the pathology reports that had sat in its files for eight years. A judge determined that the firm's actions amounted to "fraud on the court," though an appeals board overturned this finding in 2012. The case is now before a federal appeals court in Richmond, Va., and it has potentially far-reaching implications for miners and their families.
Just months after finally receiving the crucial reports on his lung tissue, Gary Fox died. An autopsy proved what he had believed all along: He had complicated black lung.
The Center for Public Integrity is a nonprofit, nonpartisan investigative news organization based in Washington, D.C.