“In our experience, it’s an extensive problem,” he said of the withholding of evidence by lawyers representing coal companies. “This is something that has been going on a long time and affecting a lot of claims.”
Representatives for the coal industry’s primary trade organization and the law firm featured in the Center's story did not immediately respond to requests for comment.
The story was the first installment in a series, Breathless and Burdened, based on a yearlong investigation of the role of lawyers and doctors, working on behalf of the coal industry, in helping to defeat miners’ claims. It found that lawyers at the industry’s go-to law firm for black lung benefits cases, Jackson Kelly PLLC, for decades have withheld evidence indicating that miners whose cases they were contesting had the disease.
In court filings, the firm’s attorneys have argued that they have no obligation to disclose reports by doctors they consulted whose opinions didn’t support their case. Miners’ lawyers have argued that the firm’s approach amounts to misleading judges and the firm’s other consulting doctors.
Judges have called the firm’s actions “shocking” and “unconscionable” and its defenses “ludicrous” and “flimsy at best.”
Perhaps the signal case is that of Gary Fox, who spent more than 25 years working in the underground mines of central Appalachia. Fox filed for federal benefits in 1999. The previous year, doctors had removed a suspicious mass from his lungs. The purpose had been to rule out cancer, which they did, and a pathologist provided the vague diagnosis of “inflammatory pseudotumor.” There is no evidence this hospital pathologist knew Fox was a coal miner.
Unknown to Fox — who, like many miners, was unable to find an attorney to take his case — lawyers at Jackson Kelly obtained samples of his lung tissue taken during this procedure and sent them to two experts on whom it frequently relied in benefits cases. These doctors, however, wrote reports finding that the samples were consistent with advanced black lung.