Heat turned up on Jackson Kelly

June 16, 2009 by Ken Ward Jr.


I wanted to make sure Coal Tattoo readers saw the story we published in today’s Gazette, about growing complaints about whether Jackson Kelly — one of the coal industry’s main law firms — is covering up evidence that coal miners have deadly black lung disease.

In summary:

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.

smootd-c-l.jpgI’ve also posted a copy of the misconduct charges filed against Jackson Kelly lawyer Douglas Smoot here,  and the two lawsuits against the firm here and here.

Updated: A copy of Smoot’s response to the misconduct charges is posted here.  Jackson Kelly has not yet filed a formal response to either of the lawsuits.

19 Responses to “Heat turned up on Jackson Kelly”

  1. Why would you have to update your post to include the response? Isn’t this admitting you didn’t have the response before you wrote your newspaper article? If you only had the charges and the two complaints when writting your article this strongly suggests that the documents were sent to you by the lawyers suing the law firm. Was that the case?

  2. fauxicon says:

    this doesn’t make sense. the lawyer states in his response that he gave the individual in question an x-ray report that clearly states there is a presence of black lung. surely that can be objectively verified. why would he do that if he intended to improperly withhold evidence?

  3. Ken Ward Jr. says:

    To “Questions of a media consumer” —

    No, I’m not admitting that I didn’t have the response … and in fact, if you look closely at the response, you’ll see that’s the case. The fax stamp at the bottom of the page indicates the response was faxed to me on June 10. The folks at the Supreme Court’s public information office were kind enough to send the Statement of Charges and the Response. The only documents I have about the disciplinary board case were obtained from the Supreme Court’s files.

    I had simply not posted the Response to the blog. I should have done that initially, but didn’t. But it’s there now.

    Thanks for your interest.


  4. demosthenes.or.locke says:

    fauxicon, you don’t get it. He gave them the X-ray report but not the narrative attached to it where the coal company’s own lawyers stated the man had black lung.

    JK has been doing this for years- I knew a friend who quit working there and got a job with a different firm because he didn’t want to be associated with this when the shit hit the fan.

  5. Dick the Butcher says:

    If the accusations in the ethics complaint is proven by an appropriate burden of proof …. the guy’s license should be annulled.

    Mr. Locke, if true … then that is a very good point regarding the distinction between the x-ray report and the narrative.

  6. fauxicon says:


    sorry, but you don’t understand the facts. you should.

    “Respondent expressly denies that the November 12, 2001 correspondence omitted documentation evidencing a finding of complicated pneumoconiosis inasmuch as the November 12, 2001 correspondence specifically included Dr. Zaldivar’s x-ray interpretation finding complicated pneumoconiosis.”

    the X-ray interpretation stating to presence of black lung was included. the narrative you refer to was a separate document, not included.

    your conclusion isn’t based on evidence of evidentiary misconduct. it’s a rush to judgment based on not understanding what happened.

  7. Dick the Butcher says:


    According to the ethics complaint:

    “On or about November 12, 2001, Respondent provided Mr. Daugherty a copy of a letter addressed [to the ALJ] which purported to include the “Exam Report of Dr. George L Zaldivar dated February 7, 2001.”

    However, this attorney allegedly removed the narrative part of the report before initially giving the remainder of the exam to the claimant. However, this attorney allegedly made no such indication to the ALJ that he actually removed part of the report during that time … therefore only providing the claimant an INCOMPLETE exam report. When someone claims they are providing an exam report, it certainly is reasonable to believe it is the complete exam report unless stated otherwise.

    Again, if the Bar carries its burden of proof with this ethics complaint …. this guy should have his license annulled.

  8. fauxicon says:


    I’m not sure you address my point. According to the response:

    “… the November 12,2001 initial disclosures included Dr. Zaldivar’s x-ray interpretation finding the most serious form of pneumoconiosis. If Respondent had intended to deceive or mislead anyone regarding Dr. Zaldivar’s opinion, he would not have submitted Dr. Zaldivar’s x-ray interpretation to the Court and to Mr. Daugherty in the initial disclosures.”

    Game over. The matter should be easy to prove one way or another.

    It seems specious to say the lawyer failed to produce additional evidence that draws the same conclusion as the evidence already provided.

  9. Dick the Butcher says:

    However, one could easily point out the difference between the documents provided in 2001 and those in 2004.

    In the Gazette article on this matter dated June 18th, it states as follows:

    “Under questioning from Dave Jividen, a Wheeling lawyer serving as chair of the three-member panel hearing the case, Smoot admitted that a miner seeking benefits would have wanted to see Zaldivar’s conclusions.

    Ultimately, Jackson Kelly lawyers did disclose Zaldivar’s narrative summary to Daugherty in 2004, but only as an attachment to a later report by Zaldivar, in which he changed his diagnosis and concluded that Daugherty’s disabilities were not caused by black lung.

    By that time, Daugherty had hired Morgantown attorney Robert Cohen, who testified Thursday that judges rely on “reasoned medical opinions” to make their findings. Zaldivar’s “highly probative” narrative summary represented the doctor’s reasoned medical opinion, Cohen said.

    “It’s a clear, unequivocal opinion of [black lung disease], and any suggestion otherwise is just wrong,” Cohen said.

    Anyone not familiar with the medical terminology would have difficulty interpreting the test results that Smoot did disclose to Daugherty, Cohen said. As an expert who handled numerous black lung cases, Cohen said he recognized that the information Smoot did turn over essentially acknowledged that Daugherty had the disease.”

    A reasonable person could conclude this attorney knew your typical pro se claimant would have almost no chance to actually interpret an actual x-ray report, especially without the benefit of the narrative report. So it is disingenuous to say the x-ray report provided in 2001 made any review of the narrative report unnecessary.

    Also, allegedly removing certain contents of a report and turning over the remainder of the report without informing the court or a pro se opponent of such removal is a no-no. There are certain higher standards of fair play an attorney has to meet when the opponent is pro se, as compared to one represented by legal counsel.

  10. demosthenes.or.locke says:

    Faux, do you seriously think there was nothing wrong with turning over the xray documents but keeping the narrative interpreting them? You know, hiding the only part of the medical report written in the plain english spoken by the plaintiff and the ALJ?

    Jackson Kelly’s lawyers disagree with you- their oral argument was that federal black lung is not covered by the WV rules of ethics because it is wholly within the federal system.

    Jackson Kelly is going to get fried in front of a jury for this and they deserve to be.

  11. cbc says:

    How could someone who chooses to represent himself not make it his business to read every word submitted by his adversary? To look up unfamiliar terms? To find someone who could explain it to him? These are his responsibilities, even if they are difficult.

    I would expect an ALJ to be familiar with the terminology related to the cases he or she adjudicates. That’s his or her job.

  12. fred says:

    No one here obviously has looked into the federal black lung guidelines or they would see that the Jackson Kelly attorney was within those guidelines concerning the evidence. This is simply an “appearance of impropriety.” I am sick of people demonizing coal and the folks that defend these businesses. Facts are facts and getting folks all emotionally riled up does not help. If you Choose to work in the mines then you better believe you run a strong risk of getting black lung, especially if you smoke…which most do. I hope you people enjoy turning your coffee makers on this morning and your lights, brought to you by coal.

  13. Ken Ward Jr. says:

    Actually, Fred, this issue has been covered by the Gazette, in one of the stories that Andrew Clevenger wrote from the disciplinary hearings. See:

    Emch maintained that Smoot’s actions were well within the accepted bounds of federal black lung law, a highly specialized field that he and others described as “Byzantine.”

    It was also discussed in this story:

    Facts are facts.


  14. specialecial says:

    Mr. Ward,
    I was just wondering if you planned on updating the blog once you received the formal responses from Jackson Kelly?

  15. Ken Ward Jr. says:


    I can provide a bit of an update … Jackson Kelly has removed the civil cases to federal court, where they also filed motions to dismiss. The plaintiffs have filed motions to remand to state court.

    I’ll be posting some additional documents in this issue later, as part of a relate story I’m working on.

    Readers who have a burning desire to read the documents regarding the removal/remand issue and the motions to dismiss, I’d suggest for now you visit the federal court’s website, http://www.wvsd.uscourts.gov/cmecf/default.html, and look up case number 5:09-cv-00701.

    I can also provide links, though, to two stories that my coworker Andrew Clevenger did about the lawyer disciplinary hearings:



    As well as a link to an op-ed commentary by Al Emch responding to those stories:


    Thanks for your interest,

  16. specialecial says:

    Thank you!

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