Years earlier, Cohen had begun unraveling Jackson Kelly’s strategy. Of the formal written questions Jackson Kelly was serving on his clients, one stood out: Do you have any medical evidence or expert reports that you haven’t already submitted? When he asked the same question, the firm refused to answer. He’d touched off a fight that continues today.
Though Jackson Kelly’s argument has evolved somewhat over the years, it has been essentially the same since at least 1990: Any doctor’s report that the firm chose not to submit was “attorney work product” — protected from discovery under a privilege meant to shield lawyers from having to disclose their personal impressions and informal communications with potential witnesses while preparing a case. The firm filed briefs outlining this argument in virtually every case reviewed in detail by the Center.
To Cohen and Cline, this argument seemed plainly wrong. The documents they wanted were not lawyers’ notes and correspondence with consultants, but formal reports written by doctors the firm had retained. They were no different than the reports that did end up in evidence, it seemed to them; the firm just didn’t like what these reports said.
Calvin’s case provided an opportunity for the review board to address the dispute. Labor Department lawyers filed a brief siding with Cohen, writing that the firm “has the obligation to disclose all evidence developed, whether favorable or unfavorable.”
In a landmark decision in October 1997, the review board agreed for the most part. The board concluded that a miner could obtain any withheld reports by meeting a series of requirements — essentially that the evidence be vital to the case and unobtainable by other means. But this left the decision of whether a miner had met the requirements up to individual judges, who would arrive at differing conclusions in the years that followed. Jackson Kelly has tweaked its arguments, and it continues to fight disclosure today.
In Calvin’s case, Jackson Kelly had to turn over any evidence it had withheld, and John’s hunch proved correct. Not only had the firm consulted Wiot, but he had had written reports interpreting numerous X-rays and a CT scan as consistent with complicated black lung. In 2008, Jackson Kelly would abandon its appeals. After 28 years, Calvin had his benefits. Two years later, he died.
Just months after the board’s decision, Cline made another discovery. By April 1998, retired miner William Harris had been trying to win benefits for 18 years. His most recent employer, Westmoreland Coal Co., had hired Jackson Kelly. When Cline began representing him in September 1997, an item’s conspicuous absence jumped out.
In Harris’ previous claim, some doctors had read X-rays as complicated black lung; others hadn’t. Wiot, who has since died, had testified that it was a “judgment call” whether the disease had reached the complicated stage. He believed it hadn’t, but a CT scan should remove any question, he’d said. CT scans are considered more accurate than X-rays because they allow doctors to see finer detail.
Harris underwent the scan, and the judge credited the negative reading of Jackson Kelly’s expert, a radiologist at Johns Hopkins, over the positive reading of Harris’ expert. Harris lost.
Why hadn’t Jackson Kelly gotten Wiot to read the CT scan? Cline wondered. After all, they’d stressed Wiot’s interpretation of the X-rays, and the judge had found that he “may be the preeminent radiologist in the country” when it came to identifying black lung.
For seven months, Cline pushed for Jackson Kelly to turn over any reports it had on Harris. Finally, he decided on an end-run. He faxed a request directly to Wiot’s secretary asking for the doctor’s interpretation of Harris’ CT scan, guessing that one existed. He soon got the response: a report finding the scan consistent with complicated black lung. Jackson Kelly had, in essence, stressed the importance of Wiot’s X-ray readings when they supported the firm’s case, then withheld his opinion of the more useful test when it didn’t.
The judge ordered Jackson Kelly to turn over any other documents it had on Harris. Instead, the firm conceded, agreeing to pay Harris benefits. Harris took the deal, ending his claim without finding out what else Jackson Kelly may have had in its files.
Cline and Cohen had uncovered some troubling signs, but just what they meant — and what to do about them — was not yet clear.
'All of the evidence'
To someone unacquainted with the federal black lung system, the claim that Gary Fox filed in May 1999 might have seemed fairly simple. He had more than 25 years of heavy exposure to disease-causing dust, virtually no history of smoking cigarettes and many of the typical signs of black lung. A doctor certified by the Labor Department had performed breathing tests and taken X-rays, concluding that he had the complicated form of the disease.
But federal black lung cases are almost never simple. Lawyers like those at Jackson Kelly thrive on medical uncertainty and alternative explanations for the miner’s apparent illness. A lone piece of evidence may provide the fuel, gaining strength in the self-reinforcing spread from one doctor’s opinion to the next.
Thus it was with the pieces of lung tissue that had been surgically removed from Fox in 1998. Pathology is considered the best way to diagnose black lung, but it’s not available in many cases. In Fox’s case, Jackson Kelly took what could have been a damning piece of evidence and turned it into the centerpiece of its case.
There is no evidence that Fox grasped the significance of the pathology or connected the surgical removal of the mass to black lung. During his testimony in September 2000, Fox made only a passing reference to the surgery, which he told the judge had been to remove “a tumor.” Even recently, when asked about it, Mary said, “All I know is it wasn’t cancer.”
The report from the hospital pathologist, who is now dead, mentions the surgery’s purpose — to rule out cancer — and his diagnosis of “inflammatory pseudotumor,” essentially a mass that looked like a tumor but probably was caused by some unknown inflammatory disease. The pathologist didn’t mention the possibility of black lung, or that he had any information about Gary’s job or risk for the disease.
Jackson Kelly clearly grasped the importance of the pathology. Unknown to Fox, the firm sent the slides of lung tissue to Drs. Richard Naeye and Raphael Caffrey, both of whom had decades of experience identifying black lung and were among a small group of pathologists that Jackson Kelly used frequently.
This time, however, Naeye found that the mass appeared to be attributable, at least in part, to the dust Fox had breathed for decades. Caffrey was even clearer, concluding, “this lesion most likely represents complicated pneumoconiosis.”
Yet when the firm submitted evidence to its chosen pulmonologists — doctors who render a diagnosis incorporating the evidence provided to them — the reports by Naeye and Caffrey were nowhere to be found. Instead, Jackson Kelly allowed its group of four pulmonologists to believe that no interpretation other than the hospital pathologist’s existed.
Dr. Gregory Fino, under this impression, began his report, “I have reviewed all of the medical records that you have been able to develop regarding the above-referenced Black Lung claimant.”
In depositions, the firm’s lawyers deftly guided its experts, asking variants of the same question: Does the pathology report call into doubt a diagnosis of complicated black lung? The question more or less dictated the answer: Yes.
Pulmonologist James Castle acknowledged that he had originally diagnosed black lung, but changed his mind because of the hospital pathologist’s report.
Wielding the pathology as a cudgel to deal the final blow, Douglas Smoot, a senior attorney in the firm’s black lung unit, sought to discredit the doctor who had evaluated Fox for the Labor Department and had based his diagnosis solely on his own examination.
“Do you think that [the Labor Department-certified doctor] would have been aided by having all of the biopsy medical evidence at his hand when he reviewed this case?” Smoot asked Castle during a deposition.
“I think that he would have,” Castle answered, unaware of the bitter irony of the exchange, “and I would certainly hope so, because all of the evidence, as I’ve outlined, clearly indicates that this is not complicated disease.”
Administrative Law Judge Miller made it clear that the pathology report was vital in his decision to deny Fox’s claim. The report, he wrote, “proved the large mass in the miner’s right lung to be a pseudotumor and neither cancer nor complicated pneumoconiosis.”
In a recent interview, Miller said knowing of the reports by Naeye and Caffrey would have changed the case dramatically. “I frankly think that, when you get to that point and you are offering evidence of a certain kind and you know material is there which clearly makes that evidence false or incomplete — you just don’t do that; that’s wicked,” he said.
Without a lawyer, Fox didn’t even try to appeal. Meanwhile, Mary was battling her own health problems. “I had to have insurance at the time,” Mary recalled. “And that’s really all he knew to do, was mining.” He went back to work.