Call for coal companies to ditch law firm Jackson & Kelly

My jaw continues to drop when I think about the scathing reports this month from the Center for Public Integrity about the law firm Jackson Kelly and their scheming with clients to screw coal miners out of black lung benefits. In “Coal industry’s go-to law firm withheld evidence of black lung, at expense of sick miners,” Chris Hamby explains the deceitful and devious manner in which Jackson Kelly attorneys intentionally withheld medical reports that validate diagnoses of serious respiratory disease in coal miners.

The irony—the disgusting irony—is how coal operators insist that their employees are their most precious resource. Alpha Natural Resources, for example, says:

“Our people are our power…What’s the secret to our success? We put our people first.”

Arch Coal proclaims

“we recognize our employees as highly valued resources.”

Most coal operators also claim “integrity” as a key company value.

Let’s face it.  Coal miners are only valued when they are running coal. They’re on their own—and Jackson Kelly sees to it—-when they develop black lung.  It’s a disease that is 100 percent preventable but only if coal operators invest and maintain appropriate dust controls.

Hamby’s investigative reporting reveals this about Jackson Kelly:

“For almost two centuries, the firm has served the coal industry. It is the go-to place for many of the industry’s giants when they want to beat back a miner’s claim for benefits.”

The law firm’s website notes that it:

“enjoys a national reputation in safety and health, Federal Black Lung…and we try to practice law in ways that honor our founders. Clients should be served effectively [and] our profession honorably. The Firm takes even more pride in the trust of our clients across three centuries.”

If you can stomach any more, they brag:

“The Firm continues to provide the highest quality legal resources and representation to coal clients nationwide. The Firm’s unique history and ties to the coal industry enable its lawyers to appreciate the client perspective as the Firm becomes an integrated member of the client’s team.  …Jackson Kelly attorneys understand the coal industry from the inside.”

Their website goes on to boast of their attorneys’ appointments to the Boards of the Kentucky Coal Association, West Virginia Coal Association, Colorado Mining Association, among others, as well as legal counsel to some of these groups.

While Jackson Kelly’s attorneys and clients sit in well-furnished conference rooms with their spit-shined shoes, their “most precious resource” cuts the coal and breathes its deadly dust. The coal miners create the wealth for their employers and their lungs suffer the consequences. When they retire—sometimes during their prime—and make a claim for black lung benefits they are foiled at every turn.

Hamby shares the story of West Virginia coal miner Gary Fox and his wife.

“Fox was used to the dusty caverns of the mines in the southern part of the state, where he’d spent more than 25 years working underground in the heart of Appalachian coal country. They had never been in a courtroom before.  …By 1999, his symptoms convinced him to apply for federal benefits. A doctor certified by the U.S. Department of Labor examined him and diagnosed the most severe form of the disease, known as complicated coal workers’ pneumoconiosis. The government ordered his employer, a subsidiary of behemoth Massey Energy Co., to begin paying him monthly benefits, but, as is almost always the case, the company appealed.”

Prior to filing his claim for black lung benefits, Fox had undergone surgery to remove a mass from his lung. The pathologists ruled out cancer, and didn’t have any reason to look for the black lung disease. As Hamby explains:

“Unknown to Fox, however, Jackson Kelly had obtained the slides of his lung tissue and sent them to two pathologists in its usual stable — doctors whose opinions typically supported the firm’s case. This time Jackson Kelly didn’t get the answer it wanted. Both pathologists wrote reports indicating the mass likely was complicated black lung.”

Jackson Kelly kept those results to themselves.

“Fox, the judge and the firm’s own consulting doctors had no idea they [the original pathology reports] existed. In the months that followed, a team of Jackson Kelly lawyers built a case around the hospital pathologist’s report and its vague diagnosis of “inflammatory pseudotumor.” They encouraged the court and their own consulting doctors to view the report as the sole, definitive account of what Fox’s lung tissue revealed.”

The judge ruled in favor of the coal company. Fox had few options, Hamby notes:

“He had a family to support, and he needed health insurance because Mary had a chronic illness. He went back to the mine, his health deteriorating. For years, no one but the firm knew of the powerful evidence that he had the severe disease and should get out of the mine’s dusty atmosphere immediately.”

“What happened to Gary Fox was not the result of a rogue attorney or singular circumstances. It was part of a cutthroat approach to fighting miners’ claims that Jackson Kelly has employed to great effect for decades. Some of the firm’s tactics go beyond aggressive advocacy, crossing into unethical behavior, according to current and former judges, lawyers and state disciplinary officials. As a result, sick and dying miners have been denied the modest benefits and affordable medical care that would allow them to survive and support their families.”

What I learned from Chris Hamby’s reporting about Jackson Kelly’s and the coal industry’s behavior disgusts me. It also disgust all of my family and colleagues who’ve read Hamby’s enlightening piece. Phil Smith, spokesman for the United Mine Workers put it this way:

“The lawyers at Jackson Kelly who hid clear evidence that miners had black lung, and the doctors at Johns Hopkins who denied the evidence of black lung on thousands of x-rays, deserve to have the harshest penalties that are possible in their professions levied against them.  But whatever those penalties are, they cannot come close to making up for the terrible pain and suffering they have caused for thousands of victims of this insidious disease who met their end choking on their last breath.”

My colleague, and miners’ advocate Tony Oppegard adds this:

“It’s long been true that coal companies use miners and then discard them when their bodies break down and they’re no longer useful in the money-making business. Coal company executives don’t see human beings with complex human emotions; they see people as machines with expiration dates. When they outlive their usefulness, they are discarded like garbage. And treated like garbage.”

“The actions of the lawyers at Jackson Kelly are shameful and dishonor all of us in the legal profession. I’ve long thought that most coal company lawyers are a dime a dozen, but the ethically-challenged attorneys profiled by the Center for Public Integrity don’t even deserve that small token of respect.”

“As for Dr. Wheeler and Johns Hopkins University, they literally make me sick. Any corrupt doctor who lives a lavish lifestyle at the expense of miners suffering from black lung isn’t worthy of compassion. The entire black lung compensation program is rife with deceit and fraud. It’s a national disgrace.”

 The coal companies in this country who currently retain Jackson Kelly for legal and lobbying services should ditch them. They should break all ties, acknowledge the scheming, and make amends to the nation’s coal miners. That’s the least they can do to demonstrate some truth to their assertions that miners are their greatest asset.