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Judge OKs black lung fraud suit against Jackson Kelly

CHARLESTON, W.Va. -- The families of three deceased coal miners may pursue lawsuits that allege the Jackson Kelly law firm wrongly concealed evidence that those miners had black lung disease, a Raleigh County judge has ruled.

Circuit Judge Harry L. Kirkpatrick III rejected an effort by Jackson Kelly to have dismissed lawsuit brought by the families of former coal miners Clarence Carroll, Normal Dale Eller, and Gary Fox.

The ruling is the latest in a more than three-year legal battle over the behavior of Jackson Kelly lawyers representing coal companies that opposed the awarding of government black lung benefits to West Virginia coal miners.

One Jackson Kelly black lung attorney has already lost his law license for a year, and the suits by Carroll, Eller and Fox seek damages against the firm for allegedly covering up evidence that the miners had the deadly disease. Jackson Kelly has denied any wrongdoing.

Jackson Kelly is the state's largest and oldest law firm, and the coal industry has long been among its major clients. The firm has said that its black lung practice -- focused on opposing benefit claims by miners -- is "among the nation's largest," with industry clients around the country.

Black lung, or coal workers' pneumoconiosis, is a debilitating and often fatal lung disease caused by breathing coal dust.

In 1969, Congress placed strict limits on airborne dust and ordered coal operators to take periodic tests inside the mines. The law has reduced black lung among the nation's miners. But, at least partly because of industry cheating on dust samples, the law has fallen short of its goal of eliminating the disease.

Under the 1969 law, coal miners are also eligible for monthly payments if they have black lung that would prevent them from working. Coal operators can challenge applications for such benefits and the resulting cases often depend on the results of X-rays and CT scans.

In the three suits against Jackson Kelly, Morgantown lawyer Al Karlin alleges that the firm's lawyers gave judges or the law firm's own experts only portions of key medical test results, withholding other evidence that proved miners had black lung. In some instances, Karlin alleges, Jackson Kelly withheld proof of black lung from miners who did not have attorneys helping with their benefits applications. Once those miners obtained lawyers, the firm tried to settle the cases and avoid revealing the fraudulent actions.

Jackson Kelly sought to have Kirkpatrick throw out the lawsuits, arguing among other things that any such civil lawsuits were pre-empted by the federal Black Lung Benefits Act.

But Kirkpatrick noted that the state Supreme Court had already ruled to suspend for one year the law license of Jackson Kelly attorney Douglas A. Smoot, concluding that Smoot had withheld evidence from retired miner Elmer Daugherty in a black lung benefits case.

Kirkpatrick wrote that "it is likely that the man on the street would be appalled at the ethical behavior exhibited by Mr. Smoot," but that Smoot apparently violated no rules of the federal black lung system.

"Nonetheless, in [the] Smoot [case], our Supreme Court of Appeals showed no compunction in promptly disciplining a lawyer for 'conduct involving dishonesty, fraud, deceit, or misrepresentation' exhibited in the representation of an employer in a federal black lung case," Kirkpatrick wrote.

"Surely, if it is acceptable that the state has the absolute right to discipline a lawyer for fraudulent conduct undertaken in the federal black lung arena, the premise that a victim of such fraud should be enabled to pursue civil redress in state court is only a short step away," Kirkpatrick said. "In fact, it is clear to this court that the state's right to sanction an attorney whose fraudulent conduct harms a black lung claimant, and the state's authority to provide a remedy for that claimant who was harmed by such conduct, should generally be on the same legal footing."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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