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Jackson Kelly remains under fire for black lung work

Read the Center for Public Integrity stories here.CHARLESTON, W.Va. -- West Virginia's largest law firm remains under fire this week following a major media investigation that alleged its lawyers have repeatedly hidden vital evidence as part of an aggressive strategy to block disabled coal miners from obtaining federal black-lung benefits.But one of the lawyers who is challenging Jackson Kelly's actions says the issue isn't about whether attorneys should always have to give the opposing side reports from experts they decide not to use in litigation.Instead, Morgantown lawyer Al Karlin said what's at issue is whether coal company lawyers should keep fighting against black lung claims that their own experts tell them are legitimate."The issue is not whether you disclose reports or not," Karlin said earlier this week. "The issue is when you go forward when you know you don't have a case."Karlin made his argument Tuesday before a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va.The 4th Circuit is considering a case over whether Elk Run Coal Co., represented by Jackson Kelly, committed "fraud on the court" in a black lung benefits case involving a now-deceased coal miner named Gary Fox.Fox's widow, Mary Fox, is pursuing the case after her husband was denied black lung benefits after Jackson Kelly withheld reports from two pathologists who had concluded Fox indeed did have black lung.The Fox case was featured this week in a series of articles in which the Center for Public Integrity, a nonprofit news organization, described what it called "a cutthroat approach to fighting miners' claims." In its first story, the center said that, after a yearlong investigation, it had concluded that Jackson Kelly lawyers have for years concealed medical reports that, if disclosed, would have helped miners obtain federal compensation for black lung."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," said the center's report, written by investigative reporter Chris Hamby. "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."A second story questioned the actions of a Johns Hopkins medical team that, working for coal companies, rarely finds evidence of black lung in miners, even when other experts and post-death examinations confirm the disease. ABC News partnered with the center and broadcast an account on national television Wednesday night.The issues addressed by the center and ABC have simmered for years in the coalfields, with questions about Jackson Kelly's work fighting black lung benefits claims getting more attention three years ago. In 2010, the state Supreme Court suspended the license of one of the firm's lawyers, Douglas A. Smoot, after concluding he withheld evidence from retired miner Elmer Daugherty in a black lung case.
In addition, Karlin and Piney View lawyer John Cline are pursuing a class-action suit against Jackson Kelly, alleging in the Raleigh Circuit Court case that the firm wrongly conceals evidence in black lung benefits litigation.Jackson Kelly is the state's oldest and largest law firm, and the coal industry has long been one of its major clients, a fact that the firm touts on its website.
"Jackson Kelly's lawyers aren't afraid to get their hands dirty and are frequently found at our clients' operations on surface mines, prep plants, underground mines and mine offices investigating accidents, providing training or preparing for trial," the website says. So far this week, Jackson Kelly has refused to comment on the allegations made in the center's report.The firm's general counsel, Steve Crislip, said Jackson Kelly is "restricted in our comments by client and professional obligations." Crislip also passed on an e-mail message in which he told the center it would be "incomplete if not misleading" to report on the issue until the legal cases involved are resolved.In legal briefs, though, Jackson Kelly has spelled out its position, saying it is common practice and perfectly legal to withhold the sorts of records that it did not disclose in the Fox case."Relying on a large, well-settled body of federal law, Elk Run's counsel did not disclose the non-testifying experts' opinions to anyone in order to preserve their privileged status under the work product doctrine," Jackson Kelly lawyer Kathy Snyder wrote in one legal brief. "This scenario, repeated daily by attorneys in every type of adversarial litigation, does not constitute fraud of any sort."During the oral argument in Richmond on Tuesday, Jackson Kelly lawyer Al Emch said the Fox case is really "Litigation 101" that focuses on the incorrect reading by a lower court of the ability of lawyers to protect certain materials under the "work-product" privilege.
"This cancer, if you will, and pardon the bad pun ... this decision, this mistake, this error, this misinterpretation, is the reason we are here," Emch said. "It's the essence of the work-product privilege."But in their legal brief, Cline and Karlin allege "the fraudulent conduct of Elk Run's attorneys was a deliberate scheme to directly subvert the judicial process.Jackson Kelly lawyers, Cline and Karlin say, knew that Gary Fox "had a progressive and irreversible disease." But, they say, the firm continued to fight Fox's black lung benefits claim by implementing "a scheme to undermine the adjudication process with false evidence."Karlin told the 4th Circuit there are larger issues at play about whether the black-lung benefits system is fair to disabled miners."There are some problems in the black lung system with how some attorneys litigate in the black lung system," Karlin said.Reach Ken Ward Jr. at or 304-348-1702.
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