After the State Bar's Office of Disciplinary Counsel filed formal charges against Smoot, a three-member panel held a two-day hearing on the allegations against Smoot.
At that hearing, Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), said that he believed that when defending black lung claims, Jackson Kelly sent information such as X-rays and CT scans to multiple experts, then picked only the opinions that helped their defense.
"Back in the early 1990s, I began to suspect that Jackson Kelly, as part of its strategy in black lung cases, would obtain a mess of medical evidence and then cull through it," he said. "They would take the ones that were favorable to them, then submit them to their pulmonary experts."
During that hearing, the head of the State Bar's Office of Disciplinary Counsel said her office has open files on William Mattingly, Kathy Snyder and Dorothea Clark, all of whom are members of Jackson Kelly's black lung section.
The status of those allegations could not be determined on Wednesday because the ODC's phone lines were down as the agency relocated to new headquarters.
In a footnote, Davis wrote that although the court had been presented with facts regarding conduct of other lawyers, the justices confined their analysis to Smoot's case.
Davis rejected Smoot's claim that disassembling reports was common practice within black lung cases. She quoted an order from the administrative law judge who oversaw the case, who wrote that Smoot's separating the narrative report was "unconscionable ... this was a deliberate attempt to mislead [Daugherty], I expected more from this law firm."
The quoted order continued: "I find their defense of this practice (withholding Dr. Zaldivar's narrative, which was surely detrimental to Westmoreland's case) to be ludicrous."
In May 2009, two lawsuits were filed in Raleigh County alleging that Jackson Kelly repeatedly tried to cheat miners in black lung cases. Those cases are still pending.
Reach Andrew Clevenger at acleven...@wvgazette.com or 304-348-1723.