A lawyer has been suspended by the West Virginia Supreme Court for one year for withholding evidence from a retired miner seeking black lung benefits.
In an opinion released Nov. 17, Supreme Court justices unanimously concluded that Douglas A. Smoot, a lawyer at the Jackson Kelly firm in Charleston, violated the rules of professional conduct for lawyers by removing the “narrative summary” portion of a doctor’s report before turning it over to Elmer Daugherty, a retired miner who spent 42 years underground and who was representing himself at the time.
“(I)nsofar as we have found that the withheld portion of the report had evidentiary value, we have little difficulty concluding that Mr. Smoot’s conduct was deceitful, dishonest, a misrepresentation, and prejudicial to the administration of justice, and thus amounted to a violation,” Chief Justice Robin Davis wrote for a unanimous court.
Smoot, who represented Westmoreland Coal Co. in resisting Daugherty’s disability claim, contended that he was not required to disclose the narrative summary. He said he removed and withheld it — without informing either Daugherty or the administrative law judge overseeing the case — because it was “equivocal” and “self-contradictory.” Smoot also said the portion he did turn over contained clear evidence that Daugherty did have complicated pneumoconiosis, the medical term for serious black lung cases.
Davis’ opinion noted that the page that referred to “large opacities” on scans of Daugherty’s lungs and a hard-to-read handwritten note including the word “pneumoconiosis” that was buried in the middle of a report that was more than 25 pages long.
“(L)ooking at the raw data gleaned from the examinations, and findings such as ‘Large Opacities Size A,’ would not immediately inform either the ALJ or Mr. Daugherty, an unrepresented claimaint with no expertise in the area of black lung evaluations, of the conclusion that was plainly stated in the withheld narrative portion of (Westmoreland’s doctor’s) report,” Davis wrote. “(T)he withheld narrative portion of the report would have quickly placed the reader, including the ALJ, on notice of Dr. Zaldivar’s conclusion that Mr. Daugherty suff ered from complicated pneumoconiosis.” The court also ordered Smoot to complete nine hours of legal education and pay for the cost of the proceedings against him.
Steven Crislip and Al Emch, two Jackson Kelly lawyers who represented Smoot during his disciplinary hearing and in front of the Supreme Court, did not return phone calls.
Westmoreland eventually conceded its liability for Daugherty’s disability, but only after he had hired a lawyer.
After the (West Virginia) Bar’s Office of Disciplinary Counsel filed formal charges against Smoot, a three-member panel held a two-day hearing on the allegations against Smoot.
At that hearing, Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), said that he believed that when defending black lung claims, Jackson Kelly sent information such as X-rays and CT scans to multiple experts, then picked only the opinions that helped their defense.
“Back in the early 1990s, I began to suspect that Jackson Kelly, as part of its strategy in black lung cases, would obtain a mess of medical evidence and then cull through it,” he said. “They would take the ones that were favorable to them, then submit them to their pulmonary experts.” During that hearing, the head of the State Bar’s Office of Disciplinary Counsel said her office has open files on William Mattingly, Kathy Snyder and Dorothea Clark, all of whom are members of Jackson Kelly’s black lung section.
In a footnote, Davis wrote that although the court had been presented with facts regarding conduct of other lawyers, the justices confined their analysis to Smoot’s case.
Davis rejected Smoot’s claim that disassembling reports was common practice within black lung cases. She quoted an order from the administrative law judge who oversaw the case, who wrote that Smoot’s separating the narrative report was “unconscionable … this was a deliberate attempt to mislead (Daugherty), I expected more from this law firm.” The quoted order continued: “I find their defense of this practice (withholding Dr. Zaldivar’s narrative, which was surely detrimental to Westmoreland’s case) to be ludicrous.” In May 2009, two lawsuits were filed in Raleigh County, W.Va., alleging that Jackson Kelly repeatedly tried to cheat miners in black lung cases. Those cases are still pending.
Reprinted from the Nov.
17 edition of the Charleston