Sustained Outrage

Jackson Kelly black lung lawyer suspended

Breaking news from the West Virginia Supreme Court of Appeals: Douglas A. Smoot, a lawyer with Jackson Kelly‘s black lung practice, has been suspended from practicing law for one year for withholding evidence from a retired miner seeking black lung benefits.

You can read the opinion, authored by Chief Justice Robin Davis, here, and previous coverage here, here and here.

Smoot had conceded that he had withheld the “narrative summary” portion of a doctor’s report from Elmer Daugherty, a retired miner who spent 42 years underground who was representing himself at the time. Smoot contended that the doctor’s narrative summary was “equivocal,” so he disclosed only the “objective” portion, the tests and X-rays, and that dissembling doctors’ reports was common practice within the black lung world.

After oral arguments in September, the justices concluded that Smoot unlawfully altered a document having potential evidentiary value.

[I]t is clear that Dr. Zaldivar’s narrative report had potential evidentiary value insofar as the report included a summary of Dr. Zaldivar’s finding that Mr. Daugherty suffered from complicated pneumoconiosis, which finding was sufficient to trigger an irrebuttable presumption that Mr. Daugherty was totally disabled.

The opinion rejected Smoot’s assertion that such conduct was common practice:

[W]e find the weight of the evidence in this case commands the opposite conclusion. For example, [Administrative Law Judge] Lesniak repeatedly expressed his shock and dismay with regard to Mr. Smoot’s failure to submit Dr. Zaldivar’s entire report. Indeed, in an order remanding the case to the District Director, ALJ Lesniak declared,

I find the separating of Dr. Zaldivar’s May 16, 2001 narrative to be unconscionable and reprimand the attorney or attorneys responsible; this was a deliberate attempt to mislead the Claimant, I expected more from this law firm. I find their defense of this practice (withholding Dr. Zaldivar’s narrative, which was surely detrimental to Westmoreland’s case) to be ludicrous. I admonish the attorneys involved not to tamper with exhibits, potential exhibits and/or any type of documents which may be entered into evidence in the future.

Davis’ opinion also concluded: “[W]e have little difficulty concluding that Mr. Smoot’s conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus, amounted to a violation of Rules 8.4(c) and (d).”

In reaching this conclusion, we find no merit in Mr. Smoot’s argument that the portion of the report he tendered to the ALJ and Mr. Daugherty revealed that Dr. Zaldivar had diagnosed Mr. Daugherty with complicated pneumoconiosis. In this regard, Mr. Smoot points out that an ILO-UC form included in the version of the report he furnished to the ALJ and Mr. Daugherty included a notation of Dr. Zaldivar’s finding of “Large Opacities Size A,” which, according to Mr. Smoot, unequivocally diagnosed Mr. Daugherty as having complicated pneumoconiosis, and also contained a handwritten note by Dr. Zaldivar stating “[h]e has a combination of old TB and pneumoconiosis.” Notably, both the finding of “Large Opacities Size A,” and the difficult-to-read handwritten note, which referred only to pneumoconiosis without identifying the same as “complicated,” were contained on a single page that was buried in the midst of a report that was more than twenty-five pages long. Furthermore, looking at the raw data gleaned from the examinations, and findings such as “Large Opacities Size A,” would not immediately inform either the ALJ or Mr. Daugherty, an unrepresented claimant with no expertise in the area of black lung evaluations, of the conclusion that was plainly stated in the withheld narrative portion of Dr. Zaldivar’s report.

Mr. Smoot contends that Dr. Zaldivar’s narrative report, in and of itself, is insufficient to establish the irrebuttable presumption under 20 C.F.R. § 718.304(c), insofar as the preferred evidence is the ILO-UC form, which form was included in the materials he submitted to the ALJ and Mr. Daugherty. Accepting this representation as accurate does not change our conclusion that Mr. Smoot’s act of withholding the narrative report was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice. As noted above, the ILO-UC form was buried in the midst of a lengthy report, whereas the withheld narrative report, which was only five pages in length, set out the following conclusion in an obvious and easily found manner: “[r]adiographic evidence of emphysema, old tuberculosis, and simple and complicated pneumoconiosis.” (Emphasis added). Additionally, the end of the report contained the following conclusions:

1. There is evidence, in this case, of coal workers’ pneumoconiosis, which he has acquired through his employment as a coal miner.

2. There is a severe pulmonary impairment present.

3. The pulmonary impairment present is sufficient to prevent him from performing any and all physical work.
4. The pulmonary disability, which he has and which prevents him from performing his usual work, or, for that matter, any physical activity, is the result of a combination of emphysema and coal workers’ pneumoconiosis.

Thus, the withheld narrative portion of the report would have quickly placed the reader, including the ALJ, on notice of Dr. Zaldivar’s conclusion that Mr. Daugherty suffered from complicated pneumoconiosis. Notably,”[j]udges, [including Administrative Law Judges], are not like pigs, hunting for truffles.” State v. Honaker, 193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994) (internal quotations and citations omitted).

You can read more on this in tomorrow’s Charleston Gazette.

Updated: Here’s a link to the story that ran in the Gazette.