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JACKSON KELLY LAW FIRM ACCUSED OF DEFRAUDING COAL MINERS EVIDENCE CONCEALED IN BLACK LUNG CASES, TWO LAWSUITS ALLEGE


Publication: THE CHARLESTON GAZETTE
Published: Tuesday, June 16, 2009
Page: 1A
Byline: KEN WARD JR. STAFF WRITER

Lawyers at the firm Jackson Kelly are facing a disciplinary case and new lawsuits that allege they covered up evidence that proved coal miners had deadly black lung disease.


Earlier this year, an investigative panel of the state's Lawyer Disciplinary Board filed misconduct charges against one of the firm's lawyers, Douglas A. Smoot.


Smoot hid a key portion of coal miner Elmer Daugherty's medical examination report during a 2001 case, a board investigative panel alleged. A hearing on those allegations is scheduled to start Thursday.


And two suits filed last month in Raleigh Circuit Court accuse Jackson Kelly of a widespread pattern of trying to cheat miners out of black lung benefits.


"Plaintiff is well aware of the fact that attorneys are normally not required to disclose consulting experts whose opinions are contrary to the experts they chose to rely on in their case," one of the suits against Jackson Kelly states. "However, the conduct of Jackson Kelly in its black lung representation involves knowing misrepresentation of facts, not a choice between the subjective opinions of competing experts."


Jackson Kelly officials declined to comment on the specific allegations, but maintained that neither the firm nor any of its lawyers have done anything wrong.


"We've been around a long time and have a proud tradition of representing our clients within the highest ethical standards," said Al Emch, a spokesman for the firm. "Our attorneys have not engaged in any unethical conduct. We are confident that these matters are going to be decided in our favor."


The allegations stem from Jackson Kelly's representation of coal companies that opposed the granting of black lung benefits for miners.


The cases cite instances where unnamed Jackson Kelly lawyers allegedly gave judges or the law firm's own experts only portions of the medical test results, withholding other evidence that proved miners had black lung.


In some instances, Jackson Kelly attorneys allegedly withheld proof of black lung from miners who did not have lawyers helping with their benefits cases. But once those miners obtained lawyers, and those lawyers sought complete copies of the medical evidence, Jackson Kelly tried to settle the cases and avoid revealing the fraudulent actions, the lawsuits allege.


"In developing evidence in the black lung cases, Jackson Kelly attorneys have knowingly submitted evidence that misrepresents the facts, including, in some cases, the opinions of their experts, to the [administrative law judges] who hear black lung claims," says one of the suits, filed by attorneys John C. Cline of Piney View and Allan N. Karlin of Morgantown.


Cline and Karlin represent coal miner Norman Dale Eller and the estate of coal miner Gary Fox in the suits, which seek damages and an injunction prohibiting Jackson Kelly from similar actions in the future.


In Eller's case, Jackson Kelly allegedly tried to use as evidence an incomplete CT scan that the firm's own expert had warned did not contain scans of the portions of Eller's lungs most likely to demonstrate evidence of black lung.


Also named as defendants in Eller's case are the law firm of Rundle & Rundle and lawyers S.F. Raymond Smith and Joni Cooper Rundle, who had initially represented Eller. The suit alleges legal malpractice against them.


In Fox's case, Jackson Kelly allegedly ignored the opinion of its regular experts, who said Fox had black lung, and instead tried to use as evidence the view of a hospital pathologist who argued otherwise.


In addition to the Daugherty, Fox and Eller cases, the two lawsuits cited four other black lung cases involving alleged wrongdoing by Jackson Kelly lawyers.


"The pattern and practice of Jackson Kelly's conduct in these cases demonstrates that the conduct is neither accidental nor negligent and that Jackson Kelly attorneys have knowingly misrepresented evidence to the ALJs who decide these cases as well as to the claimants," Cline and Karlin wrote in one of the suits.


Jackson Kelly is the state's oldest and largest law firm, and the coal industry has long been among its major clients.


The firm says on its Web site that its black lung practice "is among the nation's largest," with industry clients around the country.


Black lung, or coal workers' pneumoconiosis, is a debilitating and often fatal lung disease caused by breathing coal dust.


In 1969, Congress placed strict limits on airborne dust and ordered coal operators to take periodic tests inside mines. The law has reduced black lung among the nation's miners. But, at least partly because of industry cheating on dust samples, the law has fallen short of its goal of eliminating the disease.


Between 1993 and 2002, nearly 2,300 West Virginia coal miners died of black lung. West Virginia recorded the highest age-adjusted black lung death rate nationwide during that period, according to NIOSH reports.


Under the 1969 law, coal miners are also eligible for monthly benefits if they have black lung that would prevent them from working. Coal operators can challenge applications for such benefits and the resulting cases often depend on the results of lung X-rays and CT scans.


In the case that prompted ethics charges against Smoot, Daugherty was pursuing black lung benefits without a lawyer. Smoot represented Daugherty's employer, Westmoreland Coal Co.


Daugherty was initially awarded benefits, but Jackson Kelly appealed that decision on Westmoreland's behalf.


As typically happens in black lung cases, Jackson Kelly arranged for Daugherty to be examined by a doctor of the coal company's choosing, in this case Dr. George L. Zaldivar.


But afterward, Smoot provided Daugherty with only part of the doctor's report. Smoot left out a narrative in which Zaldivar diagnosed Daugherty with complicated black lung disease, according to the Lawyer Disciplinary Board's charges against Smoot.


Eventually, Daugherty hired a lawyer, Robert F. Cohen Jr., who had represented miners in black lung cases for many years. Cohen filed a request for complete copies of Zaldivar's report. When Cohen obtained the narrative in which Zaldivar diagnosed Daugherty's black lung, Cohen then sought sanctions against Jackson Kelly from U.S. District Judge David A. Faber.


Faber declined to sanction the law firm, saying his courtroom was the wrong venue for such an action. Instead, Faber referred the issue to the State Bar's Office of Disciplinary Counsel, saying the allegations against Jackson Kelly were "deeply disturbing."


An investigation by the Office of Disciplinary Counsel led to the "Statement of Charges" filed against Smoot in February by an investigative panel of the Lawyer Disciplinary Board.


The board's formal hearing on those changes is scheduled to start Thursday before a hearing panel consisting of two lawyers and one lay person. Any final ruling on the matter would come from the state Supreme Court.


Reach Ken Ward Jr. at kward@wvgazette.com


or 304-348-1702.

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