Longtime miner Gary Fox underground with the roof bolting machine he operated, driving rods into the mine’s ceiling to prevent a cave-in. Courtesy of Mary Fox and the Center for Public Integrity.
Today, lawyers for the family of deceased coal miner Gary Fox will go before the 4th U.S. Circuit Court of Appeals in Richmond, Va., to argue a key case over whether the law firm of Jackson Kelly committed “fraud on the court” in its efforts to fight Fox’s claims for federal benefits for black lung, the disease that killed him and still kills far too many Appalachian coal miners.
Underlying the case is a core question: How can the system ensure that coal companies have a chance to defend themselves while also preventing miners — many of them sick, poor and trying to navigate a legal maze without a lawyer — from being crushed by the other side’s superior resources?
The Labor Department tried to narrow the resource disparity in 2000 by issuing regulations limiting the amount of evidence both sides could introduce. This has stopped companies from overwhelming miners with dozens of interpretations of medical evidence.
But it has not addressed the thorny question raised by the Fox case: Should lawyers be allowed to obtain medical reports from large numbers of experts, submit only the favorable ones and withhold the rest?
But Chris Hamby hasn’t just covered this case. In a second, much more lengthy, well documented, and wonderfully written piece, Chris has examined the way Jackson Kelly — the coal industry’s “go-to” law firm, he calls them — handles black lung cases for coal companies. His piece describes how Jackson Kelly attorneys, representing Massey Energy’s Elk Run Coal Coal, withheld key evidence in the case: Two pathology reports that confirmed Fox indeed had complicated black lung disease. Chris explains:
The firm’s lawyers could have accepted the opinions of the doctors they’d relied on so many times before. They could have conceded that Gary’s case had merit and agreed to pay him and Mary $704.30 a month, allowing him to escape the dust destroying his lungs. Even if they chose to fight the claim, they could have allowed their experts to see all of the pathology reports as they formed their opinions.
None of that is what the lawyers at Jackson Kelly did. Instead, the firm withheld the reports; Fox, the judge and the firm’s own consulting doctors had no idea they 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. Even one of the doctors retained by Jackson Kelly originally thought Fox had black lung. After being given the pathologist’s report, he changed his mind.
Relying heavily on the pathology report, a judge denied Fox’s claim for benefits in 2001, leaving him few options. 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.
And, his story reports:
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, an investigation by the Center for Public Integrity has found. 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.
The role of lawyers in orchestrating sophisticated legal strategies to defeat claims for benefits is just the first chapter in the story of a system in which well-paid specialists thrive as miners struggle, the Center’s yearlong investigation, Breathless and Burdened, found. Coal companies rely on a cadre of doctors with prestigious affiliations, including a unit at the nation’s top-ranked hospital, to trump the opinions of miners’ physicians. Experts for hire continue a century-old tradition: denying scientific evidence that black lung can assume different appearances in different people, locking an entire class of sick miners out of the benefits system.
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. 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.
Of course, none of this will come as a big surprise to the many West Virginia families who have tried to navigate the black lung benefits system. And even the specifics of how Jackson Kelly handled these cases is familiar to some Gazette readers who remember our coverage of the case involving Jackson Kelly’s Douglas Smoot, who lost his law license for a year for his behavior in a black lung case, and our short items about the related lawsuits filed against Jackson Kelly (see here and here).
But as Chris explains, his investigation was unlike any other coverage the media has given to this issue, at least as far as I’m aware:
Until now, Jackson Kelly’s conduct in black lung cases has remained largely buried in voluminous files that are confidential because of the private medical and financial information they contain.
Over the past year, however, the Center has identified key cases and obtained written permission from miners or their surviving family members to view their entire case files. These 15 files span 40 years and include hundreds of thousands of pages. The Center also reviewed the limited publicly available information on dozens more of the firm’s cases.
These documents reveal a struggle that has been waged out of public view for more than three decades between a handful of lawyers representing miners and the nationally prominent firm. In at least 11 of the cases reviewed by the Center, Jackson Kelly was found to have withheld potentially relevant evidence, and, in six cases, the firm offered to pay the claim rather than turn over documents as ordered by a judge.
There’s more to come in this “Breathless and Burdened” project, with stories scheduled from the Center for Public Integrity tomorrow and Thursday. They’ve also partnered with ABC News, which will broadcast pieces Wednesday on World News and Nightline.
The revelations in this story should also come as no shock to West Virginia political leaders, who certainly hear frequently from constituents about problems in the black lung benefits system. At least one of our elected officials, Sen. Jay Rockefeller, D-W.Va., has legislation pending that’s aimed at least in part in fixing some of these problems.
As for Jackson Kelly, Chris Hamby reported in his story:
Jackson Kelly’s general counsel, on behalf of the firm and the individual attorneys contacted by the Center, declined repeated interview requests and would not discuss specific cases or general practices. In court filings, the firm has argued that there is nothing wrong with its approach and that its proper role is to submit the evidence most favorable to its clients.
A spokesman for Alpha Natural Resources, which purchased Massey Energy and is now opposing Fox on appeal, declined to comment on the case while it is ongoing.
I’ve asked both Jackson Kelly and Alpha Natural Resources if they would care to respond to the story. I’ll post any response they provide.
UPDATED: Stephen Crislip, general counsel for Jackson Kelly, sent me this response to my e-mail query:
We are restricted in our comments by client and professional obligations until later. Here is the exact quote from my September exchange with Chris Hamby explaining this very subject:
” We will not be able to meet your deadline. As I stated previously, we cannot comment on pending cases. The general issues you suggest the interview could be limited to cannot be separated from privileged issues; therefore, again, we would not be able to discuss the Fox case or the other issues involved until the 4th Circuit has ruled, and all involved parties have granted waivers. I am sorry. I have tried.
“We certainly would like to talk to you, and look forward to doing so, when the Fox case is over and we have had time to talk with all involved parties. Reporting on it would be incomplete if not misleading, in my opinion, until then. This response is for all the attorneys here, in my capacity as their counsel.”
Meanwhile, Chris Hamby also wrote a piece about how and why he did this story:
It is difficult to imagine someone more voiceless or whose suffering is more silent than the Appalachian coal miner.
Drive the meandering roads through the hills and hollows of southern West Virginia, and you’ll glimpse immense beauty pockmarked by crushing poverty. Hidden away here are the men and women who live and die for coal, who spend lifetimes underground and see the fruits of their labors enrich others and deliver cheap energy, who suck in dust and don’t complain as it blackens their lungs and chokes off their breath.
That is where this project was born.
I was drawn to central Appalachia in early 2012 by an earlier investigative project about a striking resurgence of black lung disease.
It was not long after the Center-NPR stories were published in July 2012 that I heard about the case of Gary Fox. His story, which is featured in the first installment of this series, is one that I could not ignore.
Slowly, I was drawn into this world of administrative courts and arcane rules that touches thousands of lives each year. There was a widespread sense among miners and their advocates that the deck was stacked against them. Many simply stopped bothering with what they considered a system gone horribly awry.
Troubling questions emerged: Were significant numbers of sick and dying miners really being wrongfully denied benefits? And, if so, how could this be happening?
“Breathless and Burdened” begins answering these questions. Over the course of about a year of reporting, it became clear that miners with classic signs of black lung indeed were being caught in the maw of a complex system, left with nothing, litigated to death …
The public also has a contract with miners, signed in 1969 with the passage of the Federal Coal Mine Health and Safety Act, which promised to take the necessary steps to eliminate black lung and, when miners did get the disease, to take care of them.
Far too often, these protections are illusory, failing miners twice.