Black lung case continues amid allegations of tainted evidence - Clarksburg, Morgantown: News, Sports, Weather

Black lung case continues amid allegations of tainted evidence

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The attorney representing the widow of a coal miner who died of black lung disease says her civil suit will proceed even though she couldn't convince a federal appeals court that her husband's employer had tainted the legal process by withholding critical information about his condition.

Morgantown attorney Allan N. Karlin said while he was disappointed the federal 4th Circuit Court of Appeals did not find wrongdoing on the part of Elk Run Coal Co. and its legal counsel, Jackson Kelly, "we note that the court did not endorse that firm's conduct nor did it consider or resolve the more important question as to whether the firm committed common law fraud."

Mary Fox has already filed suit in Raleigh County Circuit Court, alleging Jackson Kelly's actions in her husband's case and other black lung claims "amount to fraud," Karlin said. Two similar cases are pending, he said.

Fox also wanted the 4th Circuit to reinstate her dead husband's black lung benefits to 2001, arguing that the company's decision to withhold records from its own experts and the hearing board constituted fraud.

But the appeals court maintains that while Elk Run's conduct was "hardly admirable," it didn't constitute a crime against the court. The court affirmed a Benefits Review Board finding that the coal company's actions were "not sufficiently egregious to meet the high bar for a claim of fraud on the court" because the company didn't intentionally undermine the integrity of the adjudicative process, Judge J. Harvie Wilkinson III wrote.

Asked to comment, Jackson Kelly Director of Marketing and Business Development Mary C. Hendrix said the firm was "pleased that the 4th Circuit Court of Appeals has ruled in favor of our client, and held that our client had no obligation to turn over reports from non-testifying consultants."

"As the Court noted, under our legal system, parties on all sides of a dispute are entitled to effective representation," Hendrix said. "As the Court acknowledged, the federal black lung program is intended to be adversarial. We have always believed that the actions of our attorneys were lawful. For nearly 200 years, Jackson Kelly has represented clients across West Virginia and the nation, and we have always been known as strong and able advocates and we believe our conduct in this case was consistent with our duty to represent our client."

Fox pressed the case on behalf of her late husband, Gary, whom she said was denied nearly a decade of benefits for black lung because of Elk Run's omissions. 

Gary Fox had worked in the mines for more than 30 years before his death in 2009 from black lung. He was awarded black lung benefits in 2000 even though the original pathologist, Dr. Gerald Koh, had diagnosed the mass in his lung as a pseudotumor rather than pneumoconiosis. That decision was reversed in 2001 after four pulmonary specialists retained by Elk Run said there was no evidence Gary Fox had black lung.

Those four specialists, however, had only been given the original pathology report prepared by Koh. Reports from two other pathologists retained by Elk Run's legal team — Dr. Richard Naeye and Dr. P. Raphael Caffrey — were not given to the pulmonary experts or the hearing officer.

Gary Fox represented himself at that hearing and was unaware of the existence of the other slides and pathology reports, so that information was never presented to the administrative law judge who'd ruled against him in 2001. Fox filed a new claim in 2006, this time retaining a lawyer who requested the additional reports, and "after some foot dragging, Elk Run admitted liability for (that) claim and disclosed the slides and ... documents," the appeals court noted.

In 2011, after Elk Run had admitted its liability, an administrative law judge voided Fox's 2001 denial of benefits, saying Elk Run's failure to disclose the information to its other expert witnesses "tainted their conclusions" and, while "perhaps initially not concocted as such ... taken as a whole, constitute a scheme to defraud."

But Elk Run again appealed, and while the Benefits Review Board accepted the administrative law judge's factual findings, it nonetheless held that the company's conduct "did not rise to the level of fraud on the court" because it "did not engage in a deliberate scheme to directly subvert the judicial process." Because Elk Run had admitted being liable for Fox's 2006 claim, the Review Board held that his black lung benefits were payable only from June 2006 on.

Mary Fox subsequently asked the federal appeals court to set aside the administrative law judge's 2001 decision, claiming that the judgment had been fraudulently procured because the coal company was aware her husband had black lung and withheld that information from its experts whose opinions had formed the basis of the 2001 denial of benefits. 

"While Elk Run's conduct over the course of this litigation warrants nothing approaching judicial approbation, we are unable to say that it rose to the level of fraud on the court," Wilkinson wrote, pointing out legal precedent sets a very high standard of proof. "Fox has not met that high standard in this case. 

"Elk Run's alleged fraud does not directly impact the integrity and workings of the black lung benefits process."

Wilkinson said there was nothing to suggest witnesses had been bribed or coerced or that Elk Run and its lawyers had suborned perjury. Rather, he said the "uncertainty and cynicism" Mary Fox said had been injected in the benefits process was "not harmful enough to be a wrong against the institution set up to protect and safeguard the public."