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 kw...@wvgazette.com or 304-348-1702.