Read the Supreme Court's opinion hereCHARLESTON, W.Va. -- A lawyer at the Jackson Kelly firm has been suspended by the state Supreme Court for one year for withholding evidence from a retired miner seeking black lung benefits.
In an opinion released Wednesday, Supreme Court justices unanimously concluded that Douglas A. Smoot violated the rules of professional conduct for lawyers by removing the "narrative summary" portion of a doctor's report before turning it over to Elmer Daugherty, a retired miner who spent 42 years underground and who was representing himself at the time.
"[I]nsofar as we have found that the withheld portion of the report had evidentiary value, we have little difficulty concluding that Mr. Smoot's conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus amounted to a violation," Chief Justice Robin Davis wrote for a unanimous court.
Smoot, who represented Westmoreland Coal Co. in resisting Daugherty's disability claim, contended that he was not required to disclose the narrative summary. He said he removed and withheld it -- without informing either Daugherty or the administrative law judge overseeing the case -- because it was "equivocal" and "self-contradictory."
Smoot also said the portion he did turn over contained clear evidence that Daugherty did have complicated pneumoconiosis, the medical term for serious black lung cases.
Davis' opinion noted that the page that referred to "large opacities" on scans of Daugherty's lungs and a hard-to-read handwritten note including the word "pneumoconiosis" that was buried in the middle of a report that was more than 25 pages long.
"[L]ooking at the raw data gleaned from the examinations, and findings such as 'Large Opacities Size A,' would not immediately inform either the ALJ or Mr. Daugherty, an unrepresented claimaint with no expertise in the area of black lung evaluations, of the conclusion that was plainly stated in the withheld narrative portion of [Westmoreland's doctor's] report," Davis wrote. "[T]he withheld narrative portion of the report would have quickly placed the reader, including the ALJ, on notice of Dr. Zaldivar's conclusion that Mr. Daugherty suffered from complicated pneumoconiosis."
The court also ordered Smoot to complete nine hours of legal education and pay for the cost of the proceedings against him.
Steven Crislip and Al Emch, two Jackson Kelly lawyers who represented Smoot during his disciplinary hearing and in front of the Supreme Court, did not return phone calls Wednesday.
Westmoreland eventually conceded its liability for Daugherty's disability, but only after he had hired a lawyer.