Wednesday, April 2, 2014

Appeals Court sides with coal firm that withheld evidence of black lung - damnpamn's Blog - Blogster

Appeals Court sides with coal firm that withheld evidence of black lung - damnpamn's Blog - Blogster

January 3, 2014
4th Circuit sides with coal firm in black lung case
Jackson Kelly lawyers' withholding of evidence not 'fraud on the court'
Read the decision:

W.Va. -- Calling the behavior "hardly admirable," a federal appeals
court said Friday that the actions of coal industry lawyers who withheld
key medical evidence in a black lung benefits case did not rise to the
level of "fraud on the court."The 4th U.S. Circuit Court of Appeals
questioned the actions of the Jackson Kelly lawyers but, at the same
time, declined to wade too deeply into a dispute that has focused
attention on the law firm's work opposing benefit claims for miners.

three-judge panel ruled against the widow of a black lung victim, a
deceased West Virginia miner named Gary Fox. Fox's widow, Mary, has been
pursuing the case. Her husband was denied black lung benefits after
Jackson Kelley lawyers, representing Elk Run Coal Co., withheld reports
from two pathologists whose findings might have been helpful in proving
he had black lung.

The case was featured in an October series by
the Center for Public Integrity, a nonprofit journalism organization,
which criticized coal industry lawyers and doctors it alleged abused the
system to block disabled miners from receiving federal black lung

In a 20-page decision, the 4th Circuit ruled that concealing the pathology reports did not constitute "fraud on the court."

U.S. Supreme Court has defined fraud on the court as a "deliberately
planned and carefully executed scheme" that severely undermines the
"integrity of the judicial process." Even perjury and fabricated
evidence alone aren't enough to meet the extraordinary standard, the
courts have said.

Judge J. Harvie Wilkinson wrote that the 4th
Circuit saw "no reason to address" the case's broader implications when a
"plain, narrow disposition is available.

"We bestow no blessing
and place no imprimatur on the company's conduct, other than to hold
that it did not, under a clear chain of precedent, amount to a fraud
upon the court," Wilkinson wrote in a 20-page decision. "We now affirm
and find that Elk Run's conduct, while hardly admirable, did not, under
clear Supreme Court and circuit precedent, demonstrate the commission of
a fraud upon the court."

Wilkinson wrote that the Fox case illustrates the way litigation is supposed to work.

adversary process exists because it permits each side to present its
own case as well as to test its opponent's in order to expose
vulnerabilities of every sort and variety," he wrote. "It is, to some
extent, a self-policing mechanism."

Mary Hendrix, a spokeswoman
for Jackson Kelly issued a statement saying the firm is pleased with the
4th Circuit's decision in that regard.

"We have always believed
that the actions of our attorneys were lawful," the statement said. "For
nearly 200 years, Jackson Kelly has represented clients across West
Virginia and the nation, and we have always been known as strong and
able advocates and we believe our conduct in this case was consistent
with our duty to represent our client."

Morgantown lawyer Al
Karlin, who represented Mary Fox, said he is disappointed in the
decision but noted that the 4th Circuit neither endorsed Jackson Kelly's
conduct nor resolved whether a lesser type of fraud had occurred or

"We are surprised that the court failed to appreciate the
difficulty that Mr. Fox and so many other miners have in getting
competent counsel in federal black lung claims to protect them from
litigation tactics that undermine the pursuit of truth," Karlin said.

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