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Appeals court to weigh law firm strategy in black lung cases

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A federal appeals court in Richmond, Va., today will hear oral arguments in a case with potentially far-reaching implications for miners and coal-company lawyers who seek to beat back their black lung benefits claims.

Though the case involves one man, Gary Fox, and lawyers at one firm, Jackson Kelly PLLC, the principles at stake have been the subject of a decades-long fight. The U.S. Court of Appeals for the Fourth Circuit will confront complex questions about the legal and ethical duties of attorneys working in an administrative system operating with its own rules and idiosyncrasies.

Underlying the case is a core question: How can the system ensure that coal companies have a chance to defend themselves while also preventing miners — many of them sick, poor and trying to navigate a legal maze without a lawyer — from being crushed by the other side’s superior resources?

The Labor Department tried to narrow the resource disparity in 2000 by issuing regulations limiting the amount of evidence both sides could introduce. This has stopped companies from overwhelming miners with dozens of interpretations of medical evidence.

But it has not addressed the thorny question raised by the Fox case: Should lawyers be allowed to obtain medical reports from large numbers of experts, submit only the favorable ones and withhold the rest?

Jackson Kelly, perhaps the nation’s preeminent federal black lung defense firm, has argued that this is entirely proper. “The role of attorneys in federal black lung litigation, as in all other adversarial proceedings, is to evaluate all of the information, including experts’ opinions, and to offer the evidence which best supports their client’s position,” lawyer Kathy Snyder wrote in a brief.

In Fox’s case, the firm withheld two pathology reports by its own chosen experts that found his lung tissue consistent with the most severe form of black lung. Jackson Kelly did not disclose the reports, instead building its case around the report of a local hospital’s pathologist who had examined the tissue to rule out cancer and hadn’t identified black lung. The firm allowed its experts and the court to believe this was the only report that existed, leading them to the conclusion that Fox couldn’t have the disease and defeating his claim.

A yearlong Center for Public Integrity investigation found that Jackson Kelly has withheld evidence in cases spanning at least two decades. The firm’s general counsel refused interview requests and declined to answer questions about particular cases or general practices.

Before the appeals court, Jackson Kelly has framed the case as strictly about its legal obligations. It had no duty to provide Fox the reports when he didn’t ask for them, and, even if he had, the documents would have been protected by the “attorney work product” privilege, the firm argues.

The judge who sided with Fox in a 2009 decision noted that it was unlikely that an unrepresented miner would think to file a discovery motion, let alone be able to uncover the documents Jackson Kelly had. The firm’s “work product” argument has been rejected repeatedly by the highest appeals court in the administrative system, the Benefits Review Board.

Fox’s lawyers, John Cline and Al Karlin, in line with the 2009 lower-court decision, have sought to introduce ethical considerations. “[T]he issue is not a duty to disclose; it is a duty not to knowingly misrepresent the evidence to one’s own experts, to the claimant and, most important, to the [judge],” they argued in a brief.

The appeals court has scheduled oral arguments this morning, but no decision is expected for months.

It has been 25 years since a judge wrote that justice would be served “if the parties to ‘black lung’ proceedings would arrange to either fully disclose all rereadings [or] use by agreement ‘neutral’ physicians.”

Former Administrative Law Judge Edward Terhune Miller said such a change could be accomplished by regulation. “[I]f both sides were required to disclose all of the medical evidence that they may have generated in connection with a case and make it available to the other side, I think it might be very beneficial,” he said.

In a statement, the Labor Department said it was “not aware of lack of disclosure being a systemic issue recently.” Miners can request information through the discovery process, the statement said. Judges, including Burke in the Fox decision, have noted that this is unlikely to happen if the miner doesn’t have an aggressive lawyer, and a Center review of hundreds of cases found such requests rare.

Beyond the questions of law and ethics, the Fox case evokes considerations that don’t fit neatly into the legal system — considerations that find voice in the families of miners who have faced Jackson Kelly.

They talk about the men everyone knew as “Cotton” or “Breadman.” They tell stories: Of the man who climbed a hill to help a pregnant cow, collapsed from breathlessness and refused to be taken to the hospital until the calf was delivered. Of the man who held his wife’s hand, just hours from death, hallucinating and struggling to breathe, and promised to bring her a bouquet of flowers.

Patsy Caldwell has vivid memories of her husband, Charles. In his working days, he was known for his ruggedness and iron grip. In his final years, he was relegated to a hospital bed set up in the living room, an oxygen mask strapped to his face.

He finally was awarded benefits three years before his death. The struggle, Patsy said, taught her what others have learned: “When one man’s trying to fight a coal company, it’s hard.”