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.