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Law firm accused of withholding evidence beneficial to miners

A large West Virginia-based law firm is accused of repeatedly withholding information in attempts to help coal companies prevail against miners suing for black lung benefits, according to a story from a nonprofit investigate journalism organization.

The report, written by Chris Hamby and released Monday by the Center for Public Integrity, claims Jackson Kelly PLLC regularly did not reveal information that could have helped miners prove they were suffering from the debilitating and often fatal disease.

"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," the report states.

"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."

The law firm declined comment. In legal documents, it argues it had no obligation to turn over the information, and it presented cases that gave clients the best chance to win, according to the report.

Typically more than happy to talk about issues involving coal, several West Virginia Republican and Democratic lawmakers either chose not to comment or did not respond to requests for comment from the Daily Mail.

State Senate President Jeff Kessler, D-Marshall, said Monday he had yet to read the report. An attorney by trade, Kessler said during two years when he was in law school he clerked for the federal benefits review board that considers black lung cases.

Kessler said he was familiar with black lung statutes and the allegations of hiding evidence that have previously been reported.

"They're serious, and obviously, if true, it would undermine the administration of justice and people's opportunity to get redress in a legal proceeding," Kessler said.

"It's absolutely wrong. It needs to be investigated. If proven to be true, there needs to be serious repercussions including loss of license or more."

The center's story is the first in a three-part series called "Breathless and Burdened: Dying from black lung, buried by law and medicine." The series stems from a yearlong investigation by the center.

Stephen Crislip, general counsel for Jackson Kelly, declined to answer questions submitted in an email sent by the Daily Mail.

He provided a comment he said was the same given to the reporter who wrote the center's story and to a reporter with the Charleston Gazette. It states the company won't comment until an ongoing lawsuit referenced in the center's report is concluded.

With offices in West Virginia, five other states and Washington, D.C., Jackson Kelly employs nearly 200 attorneys. The law firm has represented the coal industry since the mid-1800s, according to it's website.

The Center for Public Integrity's story states it found at least 11 cases where Jackson Kelly -- deemed the coal industry's "go-to law firm" -- withheld evidence that potentially could have helped a miner seeking benefits.

"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," Hamby writes in the piece.

"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 report alleges the law firm would deem any medical report that would not help its case as "attorney work product." Legitimate attorney work product is protected from discovery to prevent forcing attorneys to turn over informal communications or items that include opinions, according to the story.

When ordered by a court to turn over the information, Jackson Kelly repeatedly instead offered to settle in the case, the report states.

In response to a lawsuit filed by a coal miner and a disciplinary case against an attorney at the law firm, Jackson Kelly argued it has no legal obligation to do so.

"The role of attorneys in federal black lung litigation, as in all other adversarial proceedings, is to evaluate all of the information, including experts' opinions, and to offer the evidence which best supports their client's position," lawyer Kathy Snyder wrote in a brief, according to a second story from the Center for Public Integrity.

In the coal miner's lawsuit, Administrative Law Judge Thomas Burke determined Jackson Kelly's behavior was fraudulent. The law firm is appealing; oral arguments in the appeal case were heard Monday before the U.S. Court of Appeals for the Fourth Circuit, according to the second story.

The coal miner involved in the case, Gary Fox, died from complications due to black lung in 2009, according to the center.

In addition to Kessler, the Daily Mail requested comment from all five members of West Virginia's national congressional delegation, Gov. Earl Ray Tomblin, House Speaker Tim Miley, state Attorney General Patrick Morrisey, West Virginia Coal Association President Bill Raney and United Mine Workers Association spokesman Phil Smith.

Other than Kessler, Sen. Jay Rockefeller, D-W.Va., was the only other official who chose to respond Monday.

In a statement emailed by a spokesman, Rockefeller did not specifically address the allegations against Jackson Kelly.

"It's clear those with Black Lung face too many hurdles in getting their benefits. It's deeply frustrating to me, and I'm working to address this injustice and heartbreaking problem through legislation," Rockefeller said in the statement.

"My bill takes important steps to prevent Black Lung and it creates a more fair claims process. As I've said before ... there are many ways to address this problem, and I'm always open to new ideas to help miners and their families."

In July, Rockefeller introduced a measure called the Black Lung Health Improvement Act of 2013. The bill would lower the allowable level of dust in the air at mines, require a federal black lung report annually and other measures.

Rockefeller has introduced similar measures in the past, including The Robert C. Byrd Mine and Workplace Safety and Health Act.

Sen. Joe Manchin, D-W.Va., also supports that measure. A spokesman for his office acknowledged receiving the Daily Mail's request for comment, but the senator did not immediately respond.

A spokeswoman for Rep. Shelley Moore Capito, R-W.Va., said the congresswoman had no comment. Representatives from Reps. David McKinley, R-W.Va., and Rep. Nick Rahall, D-W.Va., also did not respond.

Manchin, Capito, McKinley and Rahall all issued statements Tuesday pertaining to a coal rally Tuesday afternoon in Washington. 

A Tomblin spokeswoman did not respond to an email or phone message requesting comment. A spokeswoman said Miley was out of the state Tuesday but she would try to get a comment. None was provided.

A spokeswoman for Morrisey said, "we will not be commenting on this matter." Raney said in a phone interview he wanted to read the report before he would comment.

The center plans to release the next parts of its series today and Friday, according to it's website. A link to the stories is available at dailymail.com.

There has been an increase in the number of black lung cases after decades of declining figures, the center and others report. Health officials also note a rise in the rate of disease among younger coal miners.

Contact writer Dave Boucher at 304-348-4843 or david.boucher@dailymail.com. Follow him at www.twitter.com/Dave_Boucher1.


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