Sustained Outrage

Black lung cases headed back to Raleigh County

Three lawsuits filed against the Jackson Kelly law firm, alleging a pattern of fraud and deceit in the firm’s handling of black lung cases on behalf of coal companies, are headed back to Raleigh County Circuit Court after U.S. District Judge Thomas E. Johnston remanded them on Monday. Jackson Kelly had removed the cases to federal court, arguing that the cases belong there in part because the they hinge on whether the conduct in question was allowed under the rules governing the Black Lung Benefits Act, which is exclusively federal.

In his order, which provides a helpful summary of the allegations and the issues at hand, Johnston concluded that the plaintiffs could prove their allegations of fraudulent misrepresentation under state law without having to raise a substantial issue of federal law. Johnston wrote:

Jackson Kelly relies too heavily on the BLBA as setting the standard of conduct applicable in these cases, particularly when it argues that [this] Court has subject matter jurisdiction because one issue is “whether conduct is at odds with the . . . BLBA.” At oral argument, Jackson Kelly reiterated this point when it claimed that, in order to prove their prima facie case, Plaintiffs must demonstrate that Jackson Kelly violated the provisions of 29 C.F.R. § 18.14, concerning the scope of discovery in black lung proceedings before the Department of Labor. Not one element of Plaintiffs’ claims requires resolution of this, or any other, federal question. A court may well turn to the issue of compliance with the BLBA’s provisions as a proxy or indicator of whether Jackson Kelly perpetrated a fraud as alleged, but nothing in the laws of West Virginia requires illegal conduct to satisfy the elements of common law fraudulent misrepresentation. Even if Jackson Kelly’s conduct fully complied with all applicable BLBA standards, Plaintiffs could still establish every element of their fraud claims; conversely, if Jackson Kelly failed to comply with BLBA standards, Plaintiffs would not automatically establish fraudulent misrepresentation under West Virginia law.

Later in the opinion, Johnston concludes:

Although Jackson Kelly’s briefing adequately summarizes BLBA regulations concerning discovery and evidence, at no point does Jackson Kelly identify specific regulations that must be answered to establish one or more elements of Plaintiffs’ fraudulent misrepresentation or legal malpractice claims. Instead, Jackson Kelly argues in the abstract, stating that the BLBA is so comprehensive that any dispute approaching the BLBA process must turn on substantial questions of federal law. Such an argument is utterly insufficient to carry Jackson Kelly’s burden of demonstrating the suitability of federal jurisdiction.

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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).”

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State Supreme Court to hear black lung ethics case

Updated: You can read the story about Wednesday’s arguments from today’s Gazette here.

Oral arguments are scheduled at the state Supreme Court today in the legal ethics case against Douglas Smoot, a Jackson Kelly lawyer who defends coal companies against black lung claims from former miners.

In 2009, the state bar’s Office of Disciplinary Counsel filed a formal charge against Smoot, alleging that in 2001, he wrongly withheld evidence from a miner with an eighth-grade education who was representing himself at the time. (You can read the Statement of Charge here, and Smoot’s response here.)

During two days of testimony in June 2009, Smoot acknowledged that he had removed the “narrative summary” portion of a doctor’s report before turning it over to over to Elmer Daugherty, a retired miner who spent 42 years underground. Smoot said he decided not to disclose this portion of the doctor’s report (without telling Daugherty about the missing portion) because he found the doctor’s opinion — as opposed to more objective, factual tests and X-rays — to be “equivocal” and “contradictory from one page to the next.”

But lawyer Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), testified that the portion of the doctor’s report withheld by Smoot was “highly probative,” and represented the kind of reasoned medical opinion that judges rely on when deciding black lung cases. It was a clear, unequivocal indication that Daugherty had black lung disease, Cohen said at the time, “and any suggestion otherwise is just wrong.”

The three-member panel overseeing the case recommended that the charges against be dismissed, which prompted the Office of Disciplinary Counsel to appeal the case to the state Supreme Court. You can read the ODC’s appeal here, Smoot’s response here, and the ODC’s reply to Smoot here.

Interestingly, three parties filed “friend of the court” briefs in the case, urging the justices to reject the panel’s recommendation and to find that Smoot committed an ethical violation.

Here are excerpts from the amicus briefs filed by the United Mine Workers of America:

To find, as the Panel does, that Attorney Smoot altered Dr. Zaldivar’s medical report because he was following a “common practice” or was somehow confused by the “complexity” of Black Lung practice is absurd, especially in light of the fact that Attorney Smoot submitted to the same [Administrative Law Judge]  in the same case the complete medical exam report of Dr. Robert Crisalli, which included the narrative portion favorable to Attorney Smoot’s client. Attorney Smoot is an experienced Black Lung practitioner who has made a name for himself and his firm defeating coal miners’ Black Lung claims. The Panel’s decision to give him “the benefit of the doubt on his intent” is not only inconsistent with the applicable legal standard, it ignores facts tending to show Smoot altered Dr. Zaldivar’s exam report to gain an unfair advantage over the pro se claimant.

And the National Black Lung Association and Appalachian Citizens’ Law Center, Inc.:

The hearing panel was appropriately “bothered” by the practice of turning over an adverse medical examination report without disclosing that it was disassembled and incomplete but felt “constrained by the evidence…including all [Smoot’s] witnesses who testified that the actions of [Smoot] were consistent with Black Lung practice.” However, there are two significant errors in the panel’s assessment of the record. First, the fact that others may engage in misleading conduct does not, in any case, excuse [Smoot] any more than the speeder who protests that he was not going any faster than others who were also speeding. No matter how many attorneys send out incomplete “exam reports,” particularly to pro se litigants, the conduct still involves misrepresentation.

Second, the finding is factually incorrect. When Mr. Smoot was asked if he could name a single other West Virginia attorney who engaged in this practice, the only person he could name was Bill Mattingly, another attorney in his firm.

And by West Virginia Attorney General Darrell McGraw:

[T]he Report of the Hearing Panel Subcommittee incorrectly concluded that because it is a practice within the Federal Black Lung Bar not to provide complete records, that “[t]his leaves the Panel in the position of judging the motive of [Smoot] when he disassembled and provided only part of the report,” and that the “Panel is giving the Respondent the benefit of the doubt on his intent based on all of the above.” While fraud and dishonesty might require intent or motive, misrepresentation does not.

You can read earlier coverage by Ken Ward on Sustained Outrage here and over at Coal Tattoo here. A live webcast of the oral arguments is available here.

Workers Memorial Day

An oil skimmer cleans oil from a leaking pipeline that resulted from last week's explosion and collapse of the Deepwater Horizon oil rig in the Gulf of Mexico near the coast of Louisiana Tuesday, April 27, 2010.  (AP Photo/Patrick Semansky)
An oil skimmer cleans oil from a leaking pipeline that resulted from last week's explosion and collapse of the Deepwater Horizon oil rig in the Gulf of Mexico near the coast of Louisiana Tuesday, April 27, 2010. (AP Photo/Patrick Semansky)

Today is Workers Memorial Day, a moment to recall people who died or who were injured or were made ill on the job during the previous year.

A Presidential proclamation notes that this year is the 40th anniversary of both the Occupational Safety and Health Act and the Federal Coal Mine Health and Safety Act, “which promise American workers the right to a safe workplace and require employers to provide safe conditions.”

Of course, as this day passes, people are still mourning the loss of 29 miners at the April 5 Upper Big Branch mine explosion in Raleigh County and 11 workers killed in the oil platform explosion off the coast of Louisiana on April 20. To that list, the White House adds seven more workers killed in a refinery explosion in Anacortes, Washington, on April 2 and four more workers killed in a power plant explosion in Middletown, Connecticut on Feb. 7.

These recent deaths have put workplace safety higher on our minds lately. But as President Obama’s proclamation points out, “most workplace deaths result from tragedies that claim one life at a time through preventable incidents or disabling disease.”

That’s certainly what the Gazette’s Ken Ward Jr. found. He has written about individual mine deaths for years, including this week.

Also, this week, the U.S. Centers for Disease Control featured new data on injuries and deaths among young workers, something for employers, parents and young workers to keep in mind at the start of the summer season. The rate of injury to workers aged 15 to 24 has decreased during the past 10 years, but not a significant amount.

Between 1998 and 2007, 5719 young workers died on the job, or about 572 a year. The rate is higher for Hispanic youth than non-Hispanic youth.

Young workers are also overrepresented in jobs with injury hazards, the CDC reports.

CSB barred from probe of Conn. power plant explosion


A federal agency that only last week issued urgent recommendations for protecting workers involved in gas-line purging has been barred from the site of the Connecticut power plant explosion that killed at least five workers.

Daniel Horowitz, spokesman for the CSB, said local and state officials blocked his agency’s investigation team from the site, saying the power plant construction zone was a potential crime scene. Horowitz said in an e-mail this afternoon:

… We are in the vicinity but we have no significant access to witnesses or evidence which is being seized by state police.  Our access to site is only peripheral observation.

Sunday’s explosion at a natural gas power plant being built for Kleen Energy Systems LLC at Middletown, Conn., may be the latest in a strong of accidents involving the use of natural gas to clean out pipes.

We reported on this Sunday afternoon and since then the story has been picked up by The Wall Street Journal, The New York Times,  the Christian Science Monitor, the local Middletown Press, and the Hartford Courant, among others.

Other media, including The Associated Press, are right now focused on word that some workers at the plant site had been clocking 80-hour weeks, and that one employee reported a natural gas smell an hour before the explosion.

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Remember when the Federalist Society couldn’t wait until West Virginia State Supreme Court Justice Joseph Albright had been buried before offering advice about what type of judge should replace him?

Well, now the same public relations firm is shopping “legal experts” who are willing to comment on the U.S. Supreme Court’s decision Monday regarding Chief Justice Brent Benjamin’s refusal to recuse himself from Massey Energy Co.’s appeal of the Harman Mining Corp. verdict. (Read the opinion here, and coverage by the Gazette and other media outlets here, here, here and here.)

Two of the “experts” made both lists: Blair M. Gardner, a former assistant general counsel for Arch Coal who has represented the coal industry for years; and Luke Lafferre, a personal injury defense attorney who has defended multiple companies from claims stemming from exposure to asbestos, excessive noise, silica and coal dust.

Yesterday’s e-mail also offered two new faces: C. Thomas Ludden, a Michigan lawyer who wrote a “friend of the court” brief in support of Massey; and Bradley A. Smith, a law professor at Capital University who served as a commissioner on the Federal Election Commission from 2000 to 2005.

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Cross-posted from Coal Tattoo


Just in from the U.S. Supreme Court, via The Associated Press:

The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

With multimillion-dollar judicial election campaigns on the rise, the court’s decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin. At the same time, Massey was appealing a verdict, which now totals $82.7 million with interest, in a dispute with a local coal company. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

You can read the opinion here.

That didn’t take long

On Tuesday, the day before state Supreme Court Justice Joseph Albright was laid to rest in Parkersburg, I got an unsolicited e-mail from a public relations flak in northern Virginia, judging from the 703 area code on her phone number. The e-mail offered to put me in touch with “a West Virginia legal expert on the type of jurist Governor Manchin should select to fill the high court vacancy.”

Curious as to who would have hired a p.r. firm regarding Albright’s replacement, I called CRC Public Relations and asked who their client is, and they told me: the Federalist Society, a conservative legal group that, according to, at least, advocates a strict originalist interpretation of the U.S. Constitution. Philosophically, I was told, the Society’s 40,000 or so members believe in judicial restraint over what they see as judicial activism, or, as the Society’s Web site says, that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

All three of the local lawyers quoted in the e-mail — Blair Gardner, Luke Lafferre and Robert Ryan — are members. In fact, “Booter” Ryan is one of two attorneys listed on the group’s site as contacts for the West Virginia chapter.

(Astute readers will note that Gardner’s bio on Jackson Kelly’s Web site doesn’t say that he is a member. I called him and asked him, and he confirmed his association with the Society.)

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A friend of coal?

green_mike.jpgI blogged last week over at Coal Tattoo about new legislation introduced to give West Virginia coal companies more time — again — to comply with water quality limits for toxic selenium pollution. See Stalling on selenium — again.

I noted that Sen. Mike Green, D-Raleigh, the chairman of the Senate’s Energy, Industry and Mining Committee (a panel that handles all legislation affecting the coal industry) listed himself as a “Friend of Coal” in his official biography.

Today, I did a quick check just to see how friendly Sen. Green is with the coal industry, and found a few campaign contributions from the major industry his committee is supposed to oversee.

Among them:

— $500 from Randy Hansford of Riverton Coal

— $500 each from political action committees associated with Norfolk-Southern and CSX.

— $500 from coal operator Andrew Jordan.

— $800 from West Virginians for Coal.

— $250 from Arch Coal’s PAC.

— $800 from AEP.

If I have time, it would be interesting to see how much campaign cash the coal industry has donated to all of this bill’s sponsors, or to all members of the EIM committee.

For any readers who are interested, the Secretary of State’s office posts these campaign cash reports online here.

The Benjamin-Blankenship transcript

blankenshipap.jpgbenjaminap.jpgThe transcript of today’s oral argument in the Brent Benjamin-Don Blankenship case before the U.S. Supreme Court has been posted online here.

And here’s some early analysis from SCOTUSblog:

Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.

While Justice Anthony M. Kennedy may wind up with the deciding vote in a Court plainly split over the issue, he himself seemed torn between a standard of recusal that would be precise in scope, and a standard that would be no more specific than “an appearance of bias.”  And the bloc of Justices whose votes would seem to be necessary to craft any constitutional decision on recusal focused on ways to make it at least fit this particular case, but perhaps no others.  One of those Justices, John Paul Stevens, remarked at one point: “We have never confronted a case as extreme as this before.”

It was obvious that Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia were leaning heavily against writing a new constitutional rule on recusal, and it also appeared that Justice Samuel A. Alito, Jr., might wind up at that conclusion, too.

On the other side, Justice Stevens’ seeming perception that something had to be crafted to deal with situations like that involving an elected justice of the West Virginia Supreme Court might well be shared by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.