CHARLESTON, W.Va. -- Everyone assumes that big-money lawyers use every allowable tactic to win cases for rich clients who pay them. So it's hardly surprising that West Virginia's largest and oldest law firm is accused of hiding evidence at the behest of coal firms, to prevent sick and dying miners from receiving black lung compensation.
In the past week, reports have emerged that the powerful Jackson Kelly firm concealed medical findings that would have helped ill miners. Information about one case says:
West Virginia miner Gary Fox, who worked for a Massey subsidiary, suffered breathing trouble and sought federal help. A certified doctor determined that he had severe black lung. The government ordered Massey to pay Fox $704 monthly benefits -- but the company appealed, as coal owners usually do.
While defending Massey, lawyers of Jackson Kelly sent slides from an old surgery to two pathologists, and both concluded that Fox had the worst form of black lung. But Jackson Kelly hid their reports and continued to oppose compensation. The sick miner, who had no lawyer, didn't know of the pathologist findings.
However, Fox finally induced a marginal lawyer to help him -- and the lawyer persuaded a judge to order Jackson Kelly to reveal hidden files. When the concealed findings emerged, the judge ruled that the huge law firm had committed "fraud on the court" -- but Jackson Kelly appealed, and a higher board reversed the ruling. Now the case is before the Fourth Circuit federal court in Richmond. Meanwhile, miner Fox died, and an autopsy confirmed his black lung disease.
A national investigative journalism group, the Center for Public Integrity, brought this affair to light, adding that it found 10 other examples of concealment by Jackson Kelly lawyers. In a similar case, in 2011, the state Supreme Court temporarily suspended the license of one of the firm's lawyers, Douglas Smoot, for hiding black lung evidence. The high court called his actions "deceitful" and "dishonest."
A class-action lawsuit against Jackson Kelly is in progress. Meanwhile, various political leaders, upset about these allegations, want to change black lung rules to make it easier for sick miners to gain support.
If that happens, it will be an ironic backlash against coal firms that engaged high-paid lawyers to block compensation claims -- only to trigger changes bringing more claims.
Black lung, caused by airborne coal dust, is a grim disease that dooms large numbers of West Virginia miners to a choking, wheezing early death. After the Upper Big Branch tragedy, autopsies revealed that 24 of the 29 relatively young diggers who were killed already suffered the dread ailment. We hope this new uproar brings further industry reforms to reduce the curse.