Anyone who has ever worked with an expert witness understands the cardinal rules of the process. The expert must provide a truthful, considered opinion. As part of that, the expert needs to have a complete picture of the circumstances he or she is asked to evaluate and the expert has to be prepared to defend his or her conclusions on cross-examination. Experts are supposed to assist the fact-finder, not provide disingenuous opinions for a quick buck.
Attorneys aren’t required by Rule 26 to disclose communications with experts that are not expected to testify, but what about experts that the lawyers intended to call as witnesses and then decided against producing? Do they get magically transformed into “trial preparation experts” as soon as they render unfavorable opinions? One major firm has not only withheld unfavorable expert reports from the other side under this logic, but made a decades-long practice of it.
The firm characterizes their practice as “aggressive.” Judges have called it “deceitful, dishonest” and “an affront to justice that simply cannot be tolerated.”
In all seriousness, the twisted tale of decades of withholding evidence from dying victims is the worst thing you’ll hear about all day….
The Center for Public Integrity released the first installment of a three-part series on the plight of miners in Appalachia struggling with the effects of a lifetime of coal mining. In the first installment, the report focuses on the legal battle going on right now (literally — there’s oral argument on this matter before the Fourth Circuit today) challenging the practices of law firm Jackson Kelly PLLC in federal black lung benefits cases.
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. 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.
In the rare cases in which miners’ lawyers have pushed for access to these materials and a judge has ordered disclosure, Jackson Kelly has fought back aggressively, arguing that it has the right to withhold them. The firm has asked higher courts to intervene and accused judges of bias. It has defied court orders, knowing administrative law judges have no contempt powers to enforce their commands, or conceded the case rather than turn over evidence.
In published decisions, judges have called the firm’s defenses of its actions “ludicrous” and “flimsy at best.” “This is pretty shocking,” a current judge wrote of Jackson Kelly’s behavior in a 2009 email obtained by the Center. “It appears to represent a long-standing pattern of misconduct.”
To break this down, the documents — as well as the findings of judges in a number of cases — reveal that Jackson Kelly litigates against unrepresented victims and shops medical information around to a gaggle of doctors that their clients (read: coal companies) can afford to pay as experts. After getting a number of opinions, Jackson Kelly has on numerous, if not most, occasions decided to only produce the reports that come down on their side. Apparently, the other doctors were never intended to testify. Yeah, I totally believe that.
Here are some of the tactics Jackson Kelly has employed over the years in different cases:
- After using Dr. Jerome Wiot, a University of Cincinnati radiologist, as an expert X-Ray analyst in almost every case, Jackson Kelly did not provide a report from Dr. Wiot in one case. After claiming there was “no proof that the Employer consulted with [Wiot] in this case,” and refusing to comply with a discovery request, Jackson Kelly was ordered by the appellate review board to produce any reports that Wiot may have made in the case. As the Center for Public Integrity writes, “Not only had the firm consulted Wiot, but he had had written reports interpreting numerous X-rays and a CT scan as consistent with complicated black lung.”
- In another case, Dr. Wiot testified that, based on X-Rays, a black lung diagnosis was a “judgment call.” Dr. Wiot also testified that a CT scan would remove all doubt. Jackson Kelly provided other experts testifying that the CT scan did not support a black lung diagnosis. The firm would not comply with discovery requests to see if the esteemed Dr. Wiot opined on the CT scan. So the lawyer for the victim contacted Dr. Wiot’s office directly and found out that not only had Jackson Kelly asked Dr. Wiot to review the CT scan, but he concluded that the more detailed image conclusively revealed black lung.
- Dr. George Zaldivar gave Jackson Kelly an expert report that included a narrative diagnosis, an X-ray reading, and some other test results. The narrative portion diagnosed the victim with complicated black lung. A senior Jackson Kelly lawyer removed the narrative portion and submitted the rest, which was only comprehensible to doctors. The affair resulted in admonitions from several courts and the senior lawyer in question losing his license for a year.
In the rare event that Jackson Kelly is forced to turn over documents that it is accused of withholding, it concedes the case rather than consent to its duty to disclose, because the firm argues that it is doing nothing legally wrong by withholding these expert reports.
Putting aside the propriety of withholding unfavorable evidence for a moment, the fundamental problem facing these miners is the fact that the system is tilted against them. The federal black lung benefits system is intended to streamline compensation without requiring a drawn-out civil suit. It’s supposed to help the miners. Unfortunately, with the decline of the United Mine Workers (who could theoretically provide attorneys for their members) and the rise of a firm like Jackson Kelly willing to master the intricacies of the administrative system and with clients willing to spend large sums to stifle what should be small potatoes benefits claims the system designed to help the miners is turned completely on its head.
Another provision of the black lung legal regime that was intended to benefit miners yet went awry is the rule barring attorneys for victims from charging their clients. Without guaranteed fees and with the deck stacked against recovering a share of the humble benefits available for award, very few lawyers even bother with the practice.
Attorney John Cline is one of the precious few willing to pursue this practice. A long-time resident of the area, Cline took up the practice after graduating from law school late in life. Now he’s potentially on the verge of scoring a landmark decision against Jackson Kelly.
A miner named Gary Fox contracted what by all accounts sounded like black lung, but lost his case on the weight of medical expert evidence lodged against him by Jackson Kelly. Fox went back to work and his condition worsened. Cline took up Fox’s case years later when Fox applied for benefits again. Noting that Jackson Kelly didn’t produce any pathological expert reports, Cline pushed the issue. The judge sided with Cline and Nelson and Jackson Kelly offered to settle rather than turn over documents. By this time, Fox was in terrible health. He opted to turn down the settlement to continue the fight for documents:
He discussed the options with Fox, leaving the choice to him. Gary and Mary talked it over and made a decision. “We wanted to press on so they wouldn’t do it no more,” Mary said recently. “We knew what we had gone through and what we were going through, and he just thought, if it could help somebody else out, we needed to press on.”
Spoiler alert: Jackson Kelly had two expert reports that it had withheld. The judge in the case wrote:
“Despite knowledge of the role pathology evidence played in the case, Employer continued to conceal the more probative reports of Drs. Caffrey and Naeye while emphasizing, and encouraging reliance upon, the report of [the hospital pathologist],” he wrote. “When Claimant’s counsel attempted to bring evidence of Employer’s conduct to light, Employer engaged in a course of conduct designed to conceal its actions; first denying the presence of the reports, then conceding liability to prevent their disclosure.”
Burke agreed with what Cline had been arguing for years. “Surely, Employer must recognize a duty to provide accurate evidence to its expert witnesses,” he wrote. “An expert’s report cannot be considered to be solely a reflection of the evidence selected and provided by a party. If such were the case, an expert medical opinion could never be accepted as a reliable diagnosis.”
The Fourth Circuit is hearing argument on whether Jackson Kelly’s actions rise to the level of fraud on the court this afternoon.
Gary Fox died in 2009. Turned out it was black lung.
But Jackson Kelly already knew that. I mean, assuming they actually read the reports they commission.
Coal industry’s go-to law firm withheld evidence of black lung, at expense of sick miners [The Center for Public Integrity]