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Legal Ethics

Law firm’s tactics in black-lung case before federal appeals court

Posted Oct 29, 2013 11:00 AM CDT
By Debra Cassens Weiss

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A federal appeals court is hearing arguments today about a law firm’s duty to disclose medical reports to miners and their families who seek black-lung benefits through an administrative law system.

At issue is whether lawyers defending the claims should be allowed to obtain medical reports from several experts, while disclosing only the ones favorable to their coal-company clients, the Center for Public Integrity reports. The appeal by the family of miner Gary Fox is before the Richmond-Va.-based 4th U.S. Circuit Court of Appeals.

The law firm defending its tactics, Jackson Kelly, contends it had no duty to disclose the reports when the plaintiff didn’t ask for them, and says the documents were protected by work-product privilege.

Jackson Kelly's case against benefits for Fox was based on a report by a local hospital’s pathologist who didn’t identify black-lung disease when examining the miner's lung tissue to rule out cancer. The law firm didn’t disclose two reports by its own experts who found the lung tissue consistent with the most severe form of black lung. The firm also encouraged the court and its consulting doctors to view the pathologist's report as the only account of the findings, the story says.

Labor Department regulations issued in 2000 limit the amount of evidence that can be introduced in black-lung benefits cases. The intent was to narrow the disparity between the coal companies and the often-unrepresented miners and their families, who can be overwhelmed with dozens of medical interpretations, the story says.

The Center for Public Integrity conducted a yearlong investigation of Jackson Kelly’s legal strategy in black-lung cases. The story says that after Jackson Kelly withheld the reports of the two experts, a judge denied Gary Fox’s claim and he went back to work in the coal mine. A later claim for benefits was allowed, but by then Fox's disease had worsened. He died while awaiting a lung transplant.

“What happened to Gary Fox was not the result of a rogue attorney or singular circumstances,” the investigative story alleges. “It was part of a cutthroat approach to fighting miners’ claims that Jackson Kelly has employed to great effect for decades, an investigation by the Center for Public Integrity has found. …

"Jackson Kelly, documents show, over the years has withheld unfavorable evidence and shaped the opinions of its reviewing doctors by providing only what it wanted them to see. Miners, often lacking equally savvy lawyers or even any representation, had virtually no way of knowing this evidence existed, let alone the wherewithal to obtain it. …

“In the rare cases in which miners’ lawyers have pushed for access to these materials and a judge has ordered disclosure, Jackson Kelly has fought back aggressively, arguing that it has the right to withhold them. The firm has asked higher courts to intervene and accused judges of bias. It has defied court orders, knowing administrative law judges have no contempt powers to enforce their commands, or conceded the case rather than turn over evidence.”

Jackson Kelly’s general counsel did not respond to requests for an interview by the Center for Public Integrity. A spokesperson did not immediately reply to a request for comment by the ABA Journal.

Prior coverage:

ABAJournal.com: "Longtime Jackson Kelly Lawyer’s License Suspended for Filing Incomplete Medical Report"

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