Black Lung Coverup
November 10, 2013 10:53 PM   Subscribe

Coal industry's go-to law firm withheld evidence of black lung, at expense of sick miners. "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."
posted by jaduncan (37 comments total) 19 users marked this as a favorite
 
The firm’s lawyers could have accepted the opinions of the doctors they’d relied on so many times before. They could have conceded that Gary’s case had merit and agreed to pay him and Mary $704.30 a month.


The lawyers cost more.
It doesn't even make sense, unless it's simply hatred.
posted by fullerine at 12:12 AM on November 11, 2013 [8 favorites]


It does makes sense, unfortunately. It's not about the cost of any particular individual suing them, it's about preventing other people from suing them. To do that they overwhelm, bully, and stonewall the people who try suing them.
posted by tychotesla at 12:34 AM on November 11, 2013 [6 favorites]


Whats new. Workers are considered assets when they are productive and liabilities when they become sick as a result of the work they do.
Hazardous industies cover up and always need to be dragged kicking and screaming to meet their responsibilities towards employees whose lives they have ruined.
I speak as someone whose father died of an asbestos related tumour aged 66.
posted by manoffewwords at 12:38 AM on November 11, 2013 [14 favorites]


It also makes sense from a billable hours standpoint.
posted by benzenedream at 1:59 AM on November 11, 2013 [1 favorite]


Miners’ lawyers are legally barred from charging claimants any fees, and the payoff, in the rare event of a win, is relatively meager.

This makes no sense. Why would plaintiff's attorneys be "legally barred" from being paid? With reference to manoffewwords' mention of asbestos, plaintiff's attorneys have made a significant business of mesothelioma, advertising on television for claimants. Why should miners be treated any differently?

Could the reason be that the late Democratic Senator Robert Byrd, whose name is on the "Federal Building and U.S. Courthouse in Beckley, W.Va." while feigning support of miners actually sold them out?
posted by three blind mice at 3:12 AM on November 11, 2013 [3 favorites]


three blind mice: "Why would plaintiff's attorneys be "legally barred" from being paid?"

On one hand, that seems like a bad idea, since miners often can't get representation. On the other hand, American lawyers often end up taking a ridiculously large part of what their clients get if they win, which seems like something that should probably be regulated.

For instance, when Erin Brockovich's law firm won a 333 million dollar settlement for the residents of Hinkley, they got 133 million of that, or almost 40%, which seems totally absurd to me.
posted by Joakim Ziegler at 3:36 AM on November 11, 2013


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.

1) Savvy lawyer or not should have gotten their bar card without the understanding of the process of Discovery.
2) The miners, like most people, suffer from the lack of good pubic education about the legal system. An attorney named Richard Graves makes a good pitch for public legal education.
3) Leaving a public legal papertrail matters for the next person suing the "bag guys". This is why the powerful have settlements and ask for a sealing of the records as part of the settlement.

and

4) In this mess there has to be more than 1 Judge who went along with the coal interests by denying Discovery or deciding false statements filed in an affidavit were "the truth". The manner by which everyone is supposed to be truthful in Court is via perjury charges. But criminal perjury charges are the rare result of a civil case. Virginia had the rare (as in the only one I've found) case where civil recovery happened for perjury - the Goltz case.

If you are the right kind of liar in the legal system you'll rarely suffer punishment and if by some miracle you are held accountable it is a wrist slap.
posted by rough ashlar at 3:51 AM on November 11, 2013 [5 favorites]


which seems totally absurd to me.

I don't disagree with that, Joakim Ziegler, but if one objective is to punish the evil doers and make them come correct, making litigation lucrative for ambulance chasers generally has positive effects.

OTOH, if you want to get the votes of miners whilst protecting the big bad companies, you would pretend to be on the side of miners by taking this financial interest away from attorneys.
posted by three blind mice at 3:57 AM on November 11, 2013 [3 favorites]


American lawyers often end up taking a ridiculously large part of what their clients get if they win

There is a reason for this beyond 'lawyers writing laws.' It meant the Federal Government didn't have to do all the investigating, which is both costly to taxpayers and subject to regulatory capture. So it provided serious incentives for private-sector lawyers to pursue a case which otherwise might never develop. A conscious strategy which environmentalists signed off on.
posted by dragonsi55 at 4:02 AM on November 11, 2013 [5 favorites]


which seems like something that should probably be regulated.

Some states do. The idea is to attempt to prevent lawyers from seeing big paydays like that.

But the system of laws and Corporate shells allow for bad behaviour by Corporation X that funnel money to Corporation Y as 'royalty payments' so that when the bad thing happens to X, X liquidates and Y keeps the profits.

I could bother to go look up the "separate" mine processing firm in coal country that decided to not fix its scrubbers and contaminated the valley area with heavy metal and when sued the result was winning a contaminated, end of life, processing plant while the profits were all nice and legally transferred to the "separate" Corporate "parent". But digging up that reference sounds like work.
posted by rough ashlar at 4:06 AM on November 11, 2013


Suddenly all I see is red text, purple background, orange links.
posted by Pope Guilty at 5:12 AM on November 11, 2013 [1 favorite]


"Why would plaintiff's attorneys be "legally barred" from being paid?"

They're not plaintiff's attorneys in the way you might think. The Federal Coal Mine Health and Safety Act of 1969 creates a system where miners can apply for compensation for black lung. Here's a brief description of how it works (or how the appeals work, I'm a bit confused). Anyway, the way the legislation is structured means that attorneys' fees are paid by the mining companies after a successful claim (otherwise miners wouldn't be able to afford a lawyer) and they can't charge fees up front. Of course, if the mining company has figured out how to always get benefits denied to miners (i.e. always win), the attorneys will never get paid, so will stop taking cases.

I believe the same sort of thing is true for attorneys in Social Security disability cases. They work on contingency and take a percentage of the back payment (a person gets a lump sum payment for benefits they would have been paid had they been approved without appeal), but it looks like the law mandates their fees have the form X% or $6,000, whichever is less. You can find an attorney for your disability case because they're making money by winning a zillion fairly small cases, which isn't happening for the miners.
posted by hoyland at 5:30 AM on November 11, 2013 [2 favorites]


My new band will be called The Black Lung Coverup
posted by GallonOfAlan at 5:37 AM on November 11, 2013 [1 favorite]


My friend the audiologist did his clinical internship in a regional hospital in West Virginia, and a lot of his patients were coal miners. There was a particular piece of equipment they used to shore up tunnels, and it was so loud that miners were required to wear ear protection when operating it. However, the only way to know if it was operating reliably and keeping shafts from collapsing and killing the work crews was to listen to it and hear if it was making the correct noises. The miners were in a Catch-22: sacrifice their hearing or their lives and the lives of their coworkers.

Maybe I’m prejudiced, as so many of my ancestors come from coal country, but I think miners should be getting the same public adulation and grassroots support that’s being reserved for members of the military these days. They perform work that's just as dangerous and vital, and get the same lack of support and compensation from the people from whom they're supposed to be getting it.
posted by The Underpants Monster at 5:38 AM on November 11, 2013 [25 favorites]


Straight outta the poorest county in Virginia: Dyin' To Make a Livin'
posted by maggieb at 6:16 AM on November 11, 2013


1) Savvy lawyer or not should have gotten their bar card without the understanding of the process of Discovery.

Did you not read the article? Discovery is very limited in these tribunals, this isn't the standard civil court system.
posted by atrazine at 6:23 AM on November 11, 2013 [1 favorite]


For instance, when Erin Brockovich's law firm won a 333 million dollar settlement for the residents of Hinkley, they got 133 million of that, or almost 40%, which seems totally absurd to me.

More often than not, plaintiffs (particularly but by no means exclusively plaintiffs in environmental tort cases) are not sitting on a pile of wealth just waiting to front the very considerable legal expenses involved in going to litigation. Plaintiff's firms are there to help them get what justice may be had, but they have to eat and pay rent, too, so they are allowed to take a percentage of the ultimate settlement or award.

Most cases settle. For small dollars. A lot of plaintiff's cases are dogs, so in a plaintiff's firm the rare big winners keep the firm alive in the desert. Insofar as plaintiff's lawyers are in many cases the only way for the little guy to get justice out of a big guy, I'm inclined to think that the ongoing existence of plaintiff's firms is beneficial to the economy and to society as a whole.*

If you can think of another way to pay them, I'm all ears.

This is no small admission: I used to work for a defense firm AND I currently work in insurance.
posted by gauche at 6:24 AM on November 11, 2013 [7 favorites]


Just baffling. I want to write letters to all of the Jackson Kelly attorneys and tell them I'm ashamed of their behavior and that they can and should try to do better. And of course they aren't doing it for fun, the coal mining companies are paying them to do it. So letters to the coal industry execs. GRAR.

I want to open a center where miners can learn other career skills for free and find safer forms of employment. I want to raise a ton of money to help the lawyers who fight for miners.

I don't suppose it makes much sense for me to contact lawmakers in WV as I'm not a constituent. Just. GRAR.
posted by bunderful at 7:02 AM on November 11, 2013


Discovery is very limited in these tribunals, this isn't the standard civil court system.

Just like discovery is "limited" in arbitration and most contracts have an arbitration clause.

If the controversy is over $20 - are you not supposed to your day in court with a jury?
posted by rough ashlar at 7:08 AM on November 11, 2013


I want to write letters to all of the Jackson Kelly attorneys and tell them I'm ashamed of their behavior and that they can and should try to do better.

Why not just look at the case files and the lawyer conduct statutes in their state and send in bar grievances for each and every violation of conduct you find?
posted by rough ashlar at 7:10 AM on November 11, 2013


Miners’ lawyers are legally barred from charging claimants any fees, and the payoff, in the rare event of a win, is relatively meager.

This is a common set-up when employee's rights are denied. For example, I don't take certain classes of federal employment cases because Congress has limited how much I can charge, ostensibly to protect the employee, but really to make it hard to get a lawyer to take these cases.

The Jackson Kelly lawyers should be disbarred.
posted by Ironmouth at 7:19 AM on November 11, 2013 [5 favorites]


I want to write letters to all of the Jackson Kelly attorneys and tell them I'm ashamed of their behavior and that they can and should try to do better.

Why not just look at the case files and the lawyer conduct statutes in their state and send in bar grievances for each and every violation of conduct you find?


From the West Virginia Rules of Practice:

Rule 3.3.  Candor toward the tribunal.
      (a) A lawyer shall not knowingly:
      (1) make a false statement of material fact or law to a tribunal;
      (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
      (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
      (4) offer evidence that the lawyer knows to be false.  If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
      (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
      (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
      (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
posted by Ironmouth at 7:23 AM on November 11, 2013 [1 favorite]


From the West Virginia Rules of Practice:

Rule 3.3. Candor toward the tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;


(Rather standard - the ABA model of conduct says something similar and the states use the ABA model as a template)

Now all one needs is copies of what was actually filed VS other filed paperwork. Paperwork with a notary stamp would be best.

Because what a web site says is not 'the public record' and more 'hearsay'.
posted by rough ashlar at 7:32 AM on November 11, 2013


Thanks hoyland.

Seems like the system was gamed by Congress against the miners... As late as 2009 the late Senator Byrd was crowing of his role in formulating the legislation. (pdf)
posted by three blind mice at 7:34 AM on November 11, 2013


My grandfather suffered from black lung before he died from complications of a car accident. It's one of the last strong memories I have of him, sitting in a chair and suddenly being overcome by horrible hacking coughs. He would get up and head to the bathroom, and from outside, down the hallway, you would hear him coughing and coughing, like someone coughing up phlegm, but louder and more violent. I never looked, but I was told that he would end up coughing up black and gray mucus. He had been retired from coal mining for decades.

Coal companies stand in the top 5 evil companies in the US, in my opinion.
posted by Atreides at 7:49 AM on November 11, 2013 [1 favorite]




Now all one needs is copies of what was actually filed VS other filed paperwork. Paperwork with a notary stamp would be best.

Because what a web site says is not 'the public record' and more 'hearsay'.


Usually, hearsay is admissible in administrative proceedings. More importantly, you can just send in the report and they can investigate.
posted by Ironmouth at 8:13 AM on November 11, 2013


Meanwhile one of the doctors who's medical opinion is used in these judgements has been finally stopped from making what are essentially a false diagnosis.
posted by njohnson23 at 8:44 AM on November 11, 2013 [2 favorites]


Virginia had the rare (as in the only one I've found) case where civil recovery happened for perjury - the Goltz case.

Sorry - misread my own notes. Not Virginia. Maine.

http://statutes.laws.com/maine/title14/title14ch205sec0/title14sec870
posted by rough ashlar at 8:56 AM on November 11, 2013


Meanwhile these same black lung folks will rally in support of coal mining companies to prevent liberal types from blocking mountain top mining or global warming nonsense. One day miners will figure out who writes their paycheck is a deal with the devil. If black lung doesn't get them, poisoned well water, unsafe mine collapse, etc the whole industry is a disaster for WV one of the poorest in the union.

Coal obviously needs to be mined but it should be done in a way that is safer for people and the environment - which means it will cost more, which means clean energy is more competitive, which means we don't need mine coal at all. WV has amazing wind resources, and should be the countries east-coast wind farm (if there are any hills left).
posted by stbalbach at 9:04 AM on November 11, 2013 [3 favorites]


Meanwhile these same black lung folks will rally in support of coal mining companies to prevent liberal types from blocking mountain top mining or global warming nonsense.

They shouldn't worry about "them thar liberals". What they should worry about is the automated mining that will work to replace the human labour.

Shows how automation will put a whole lot of people out of work and has some nice pictures of the automated trucks and mining eq.
posted by rough ashlar at 9:24 AM on November 11, 2013 [2 favorites]


There's a lot of people getting rich in the mining industry, and they aren't the miners.

Miners get screwed, again, and again, and again.

This is one industry that I can't wait to be automated. Even then, the machine operators will get screwed...
posted by BlueHorse at 11:49 AM on November 11, 2013 [2 favorites]


I want to write letters to all of the Jackson Kelly attorneys and tell them I'm ashamed of their behavior and that they can and should try to do better.

Why not just look at the case files and the lawyer conduct statutes in their state and send in bar grievances for each and every violation of conduct you find?


Hi rough ashlar, IANAL - I assume you are? I'm not sure if you are being sarcastic at me or if this is a legitimate suggestion. But assuming the latter, how can a private citizen access the case files and lawyer conduct statutes? Are there basic principles that a non-lawyer can learn in their free time that would allow them to make an accurate assessment of bar grievances? What wording / format is necessary for the grievance to be taken seriously, where is it sent, and what if any obligation does the sender have once the letter is in the mail? And what results might that action have?

And (this is a genuine question) while I can see how this might be more effective than writing "I'm very disappointed in you" mail to people who don't give a damn what I think, is it the most effective action that I could take - and why?

I'm not at all against doing something like this if it makes sense and if it's something I have the skills and resources to accomplish.
posted by bunderful at 11:56 AM on November 11, 2013


Meanwhile these same black lung folks will rally in support of coal mining companies to prevent liberal types from blocking mountain top mining or global warming nonsense. One day miners will figure out who writes their paycheck is a deal with the devil. If black lung doesn't get them, poisoned well water, unsafe mine collapse, etc the whole industry is a disaster for WV one of the poorest in the union.

Husbunny is from southern KY and there are two classes of blue-collar jobs in that part of the world, coal mining and much lower-paying jobs like factory work and truck driving. Often it is a conscious decision for someone to sacrifice their health for the money of mining. I think this is why they get so reactionary about regulations. "I know what the risks are, I accept them, now open the mine so I can work and get paid before I die."

It's a really horrible, fatalistic world view. Yet, you'll see trucks with "Coal keeps the lights on" bumper-stickers. My MIL's beau, who has been diagnosed with black lung has one on his truck. He worked for a long time with MSHA and he tells stories about wanting shut down mines for safety reasons and having miners damn near kill him for trying.

These folks typically see themselves as martyrs for their families. Working hard and making money so that the people they love can have a better life. They are militant about protecting that earning potential.

My MIL has very vivid memories of her family finally getting electricity in their house. This is in the 20th century! So we're not talking luxuries. We're talking about a home large enough to accomodate the number of folks in the family. Food on the table and heat. Not Cadillacs and bling. Not by a long shot.

As you can imagine, while my in-laws loved Husbunny, they knew for sure that they wanted him to get an education and to get far away from the mines and the poverty that they endured in their lives.

My MIL wishes we lived in Lexington, but Atlanta is still an easy drive all things considered.

All that said yes, mining is a deal with the devil, but that deal is at least a choice. And it's one more choice than most of these folks had just two generations ago.
posted by Ruthless Bunny at 1:00 PM on November 11, 2013 [7 favorites]


But assuming the latter, how can a private citizen access the case files and lawyer conduct statutes?

Lawyer conduct statutes will be part of the State code. You can find these on-line. http://www.wvodc.org/ropc.htm would be an example. Law is supposed to be written to be understandable to a 8th grade reading level...if I am correctly remembering drafting info.

The case files will be filed with the Clerk of the Courts. Most of the time that means schlepping down to the Clerk and asking for Case X. This is what journalists do. The unknown to the bulk of humanity is the case numbers and what is in the case files. Nothing stopping anyone from paying whatever fees may exist for the cases and then publishing this info on the Internet with links via MyTwitFacePage or other social media. Remember - cases are in the "public record".....make 'em public if you can! PACER (www.pacer.gov) may have useable records and there is the www.recapthelaw.org effort that may have the records you can use.

What wording / format is necessary for the grievance to be taken seriously

Follow the format of the State form. One bar grievance per form, do not combine issues. They can be "serious" enough that Law firms will curse your name, deploy extra lawyers in a case and have a senior partner be forced out - Oh I mean decide to be a solo practitioner.

, where is it sent, and what if any obligation does the sender have once the letter is in the mail?

Depends on the state.

And what results might that action have?

What you will be told is "there was no wrongdoing" in most cases. I know of one lawyer who attempted to murder his wife and was charged with felony deg2 and was tossed off an estate by a judge. The public record says "good standing" and "no disciplinary action", but he did get a private admonishment from the State Bar. Another had took money and was late 3 times with private admonishments - and the public only knows about the 3 because they were cited in the 4th complaint.

is it the most effective action that I could take - and why?

Far more effective than posting on a Blue web page.

Here is an example of a complaint getting traction:
http://marcstevens.net/articles/kathleen-barry-complaint-update.html
And this comment may be of interest:
Randy Kelton of the Rule of Law Radio show explains this succinctly. He further goes on to say that complaints are pretty much thrown in the trash. What stings the attorney is not the complaint itself or any of its content, but rather, the fact that the attorney has to report the complaint to his insurance carrier. Yes, you heard that right, the attorney is supposed to turn himself in. This is accomplished by a little clause in most malpractice insurance policies that says any unreported bar grievances shall be grounds for denial of payment in any malpractice suit and or immediate termination of coverage!

if it's something I have the skills and resources to accomplish.

The skill would be being able to read enough to understand how to fill out a form. The resources would be the time to read the laws/forms and the time/effort to go get the case files you can. Getting the case files can be crowdsourced if one wants to organize such. Tools like maltego casefile may be an option for such.
posted by rough ashlar at 1:09 PM on November 11, 2013 [2 favorites]


The legal profession in the US is self-regulated, so attorneys in W. Virginia will be regulated by the state bar association. You should be able to find both the Rules for Professional Conduct and a complaint form there, but it looks like they only accept complaints from clients, not third parties: "Anyone who feels his or her lawyer has engaged in professional misconduct may file a complaint . . ."
posted by fogovonslack at 2:12 PM on November 11, 2013


"Anyone who feels his or her lawyer has engaged in professional misconduct may file a complaint . . ."

That wording does not exclude 3rd parties. If only clients can complain, how can a Judge use the bar to call out bad conduct?
posted by rough ashlar at 2:39 PM on November 11, 2013


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