Law firm doing dirty work for coal industry?

The Charleston Gazette's Ken Ward Jr. reports that one of West Virginia's oldest and largest law firms, Jackson Kelly PLLC, is being sued for hiding evidence of coal miners' black lung disease.  Ward writes:

"Earlier this year, an investigative panel of the state's Lawyer Disciplinary Board filed misconduct charges against Douglas A. Smoot.  Smoot hid a key portion of coal miner Elmer Daugherty's medical examination report during a 2001 case, a board investigative panel alleged.  A hearing on those allegations is scheduled to start June 18.  And two lawsuits filed last month in Raleigh Circuit Court accuse Jackson Kelly of a widespread pattern of trying to cheat miners out of black lung benefits."

If these allegations are true---cheating injured coal miners from due compensation---that's some low-down dirty work for their coal industry clients. 

Ward explains:

"The cases allege instances where unidentified Jackson Kelly lawyers gave judges or the law firm's own experts only portions of the medical test results, withholding other evidence that proved miners had black lung.  In some instances, Jackson Kelly attorneys allegedly withheld proof of black lung from miners who did not have lawyers helping with their benefits cases.  But once those miners obtained lawyers, and those lawyers sought complete copies of the medical evidence, Jackson Kelly tried to settle the cases and avoid revealing the fraudulent actions, the lawsuits allege.   ...The allegations stem from Jackson Kelly's representation of coal companies that opposed the granting of black lung benefits for miners."

For readers of The Pump Handle with experience in or research on our workers' compensation system, these allegations may not surprise you.

Ward reports that the lawsuits against Jackson Kelly was filed by attorneys John C. Cline and Allan N. Karlin who represent a coal miner named Norman Dale Eller and the estate of deceased miner Gary Fox; the attorneys assert evidence of misconduct from four additional black lung cases.  Quoting from one of the official complaints:

"The pattern and practice of Jackson Kelly's conduct in these cases demonstrates that the conduct is neither accidental nor negligent and that Jackson Kelly attorneys have knowingly misrepresented evidence to the [administrative law judges] who decide these cases as well as to the claimants."

Read all of Ward's reporting to get a snapshot of how the black lung claims process works (or fails to work).  He also provides links to the misconduct charges, and the two lawsuits.

Under the Coal Mine Health and Safety Act of 1969 (amended by Mine Act of 1977) coal miners who become totally disabled due to pneumoconiosis are eligible to receive federal black lung benefits.  The burden of proof--total disability--is steep, and depends on physicians' interpretations of x-rays and CT scans.  Typically, it's the opinions of dueling experts (employer's vs. worker's) that are assessed by an administrative law judge working for the U.S. Department of Labor.   It is anything but the non-adversarial system I interpret in the statute (see Mine Act Title IV).

We can count on Ken Ward to continue his coverage of these misconduct charges.  Can we count on Secretary of Labor Solis' MSHA to take regulatory action to PREVENT workers from developing illnesses from exposure to coal mine dust and silica???  

Thirty years from now we shouldn't need a system to provide just compensation for middle-aged miners disabled by CWP, if our nation makes a vigorous commitment NOW to END coal workers' pneumoconiosis (CWP) and silicosis.  But, it was with sincere disappointment that I reviewed the Labor Secretary's regulatory agenda issued in May, which did not mention respirable coal dust or silica.  In the related on-line agency rule list, DOL leadership indicated a plan to propose a new regulation on these airborne toxins in April 2011 (here and here).

When MSHA officials were asked by the Courier-Journal's Jim Carroll to explain the two-year timeframe to merely propose a rule on these exposure limits, the agency's spokesperson responded that setting new health standards:

"requires a significant amount of up-front time" and "since the regulatory requirements for health standards are, by their very nature, complex.  MSHA's agenda projects what the agency considers to be a reasonable timetable to develop these proposals."

I disagree.  The basic questions that MSHA must answer are:

  1. Is there evidence that miners face a significant risk of material impairment from exposure to coal mine dust and silica.
  2. Is the evidence sufficient to demonstrate that MSHA's decision is not arbitrary and capricious?
  3. Is the proposed lower exposure limit feasible for the mining industry as a whole?

 The answers are YES, YES, and YES. 

There is nothing particularly complicated or complex about the health science, the engineering, the economics, or the law.   The "complications" are value-laden political choices.  Let's call it as it is.

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You can count on Ken Ward of the Charleston to deliver half the story. Perhaps you should include references to the response to the ethics charge in YOUR report.

Ken Ward belatedly updates his article in the Coal Tatoo to include the response to the charges.

Except there is nothing in the responses to the allegations that justifies the actions of Douglas Smoot. Why don't you re-read the responses and realize that all practicing West Virginia attorneys are subject to the WV Rules of Professional Conduct, not the Department of Labor's federal black lung guidelines.

By specialecial (not verified) on 04 Dec 2009 #permalink

The investment into alternative power generating technologies such as nuclear energy may need to be measured against the potential cost when things turn against you as unfortunately happened this year in Japan. Coal prices and coal statistics show developing economies are more likely to increase their investment into & their use of coal mining in coming years because of coal's affordability and ability to quickly meet increasing demands for electricity and steel.