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Rule change could help coal firm in black lung lawsuit controversy

CHARLESTON, W.Va. -- Coal industry lawyers from Jackson Kelly say that a pending Obama administration rule change could clear up the controversy over allegations that the firm's lawyers repeatedly have hidden vital evidence as part of an aggressive strategy to block disabled miners from obtaining federal black-lung benefits.

The regulatory revisions, due to be approved this month by the Labor Department, could help Jackson Kelly argue that it does nothing wrong when it withholds medical reports by experts the firm eventually decides not to use as witnesses.

In late October, Charleston-based Jackson Kelly came under fire for its handling of black-lung benefits cases. The Center for Public Integrity, a nonprofit journalism organization, published the results of a year-long investigation, detailing what it described as "a cutthroat approaching to fighting miners' claims" for federal compensation for black lung.

At the heart of the issue are allegations that Jackson Kelly has, for years, withheld unfavorable evidence that, if disclosed, would have helped miners win favorable decisions on their benefit applications.

On one level in the legal world, criticism of Jackson Kelly's actions doesn't make a lot of sense. Litigation is supposed to be an adversarial process, lawyers say. Attorneys on both sides zealously advocate for their positions, and a judge or hearing board decides which is right.

Along the way, lawyers are allowed to shop for experts who can help them make their case. The other side gets to cross-examine those witnesses and review reports they might have written. However, when experts don't end up testifying, the other side doesn't usually get to see their reports or cross-examine them.

In federal court, rules of procedure generally endorse this way of doing things.

"Ordinarily," the rules says, "a party may not . . . discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial."

In a statement in response to the center's reporting, Jackson Kelly managing partner Michael D. Foster cited this line of thinking about how litigation works.

"It is important for you to know the black lung claim system was established by Congress akin to our civil litigation progress," Foster said in a statement posted on the firm's website. "A person seeking benefits must prove their claim and the party against whom they are sought is entitled to fully evaluate the claims."

Federal black-lung benefit cases, though, operate under a separate set of procedures. The Labor Department sets separate "Rules of Practice and Procedure" for cases before agency administrative law judges who handle black-lung claims.

The department's current rules of practice and procedure do not contain language similar to the federal court rules governing non-testifying witnesses.

In its proposal, published in the Federal Register on Dec. 4, 2012, the Labor Department suggested rewriting its rules of practice so that they are identical to the federal court rules. The only difference is that the department refers to whether witnesses will testify at "the hearing," rather than "at trial."

The department's proposed rule change came up very briefly in late October, when the 4th U.S. Circuit Court of Appeals heard 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, is pursuing the case because her husband was denied black lung benefits after Jackson Kelley lawyers withheld reports from two pathologists who had concluded Fox did indeed have black lung.

During his argument, Jackson Kelly lawyer Al Emch told a three-judge 4th Circuit panel that if the Labor Department finalizes its rule change and if the final rule is "interpreted correctly," the move will "aid this situation going forward."

Emch expressed concern, though, that the rule change "does not change the problem that is faced with respect to current litigation," such as pending black-lung benefits claims.

Along with the Fox case pending before the 4th Circuit, Jackson Kelly is facing a lawsuit 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.

In legal briefs, lawyers Al Karlin and John Cline, representing Mary Fox, argue that the issue with Jackson Kelly's actions is less the technical issue of what documents from the firm's experts Fox should have been able to access. What's more important, they say, is that the firm's lawyers knew Gary Fox had black lung, and still tried to argue against him getting disability benefits.

"Despite knowing, from their own experts, that Mr. Fox suffered from a progressive occupational lung disease, Elk Run contested Mr. Fox's claims <t40><t40>...<t$><t$> by developing other 'medical opinions' that they knew would present a misleading impression of Mr. Fox's medical condition," Karlin and Cline wrote.

During oral argument, Karlin told the 4th Circuit, "The issue is not whether you disclose reports or not. "The issue is when you go forward when you know you don't have a case."

Also, Karlin and Cline say that Jackson Kelly misunderstands a legal provision that protects from disclosure "work product" of those involved in preparing one side's legal case. That provision, they say, does not protect from disclosure the doctors' reports in Gary Fox's case.

"Elk Run Coal Company confuses the opinion work product of an attorney with the opinion of a non-testifying expert," Karlin and Cline say. "The cases which suggest opinion work product is immune or nearly immune from disclosure refer to the opinions of attorneys, paralegals, litigation consultants, and others involved in preparing for, planning, and/or litigating the claim. The referenced cases do not apply absolute immunity to an expert whose only involvement was offering an opinion that was adverse to the attorney's client."

Jackson Kelly lawyer Kathy Snyder, representing Elk Run Coal, argues that the reports from doctors are entitled to confidential treatment as work product.

Among other arguments, Snyder says that the Labor Department's proposed rule change for administrative law judge hearings "confirms" that the reports qualified as privileged "work product" documents.

The proposed rule changes "refute" any argument that "the work product privilege in federal black lung proceedings is, or ever was, 'divergent' from other federal litigation," Snyder says in one legal brief.

In its most recent regulatory agenda, published in late November, the Labor Department projected that it would issue a final version of the rule changes sometime this month.

Last week, Todd Smyth, chief attorney at the department's Office of Administrative Law Judges, said he was not sure exactly when the final rule would be made public. Smyth declined to comment on how the changes would affect federal black lung cases or the controversy over Jackson Kelly's handling of such cases.

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


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