Thursday, September 16, 2010

Coal Mine Lawyer Pulls Fast One Versus Un-represented Claimaint in Black Lung Case

Reporter Andrew Clevenger at the Charleston Gazette  reports on the disciplinary proceeding against Douglas Smoot (pic), a Big Law partner at Jackson Kelly LLP, who represented a Coal Mine operator fighting a Black Lung claim.  Smoot (who according to his law firm bio, is selected by "peers as one of the Best Lawyers in America")--altered a medical report which supporting a Black Lung claim against his client, Westmoreland Coal.  The claim involved an unrepresented miner with the mining-related respiratory disease.  The spoliation of evidence came to light after the frustrated miner finally hired an attorney.  Originally, Smoot tried to get away with giving the altered medical report to the miner.  Here's an excerpt from the Gazette story :

"An attorney for the State Bar asked [West Virginia] Supreme Court [. . . ] to suspend the law license of a black lung lawyer who removed part of a doctor's report before disclosing it to a retired miner seeking benefits in 2001. 'This conduct is deceitful. It's dishonest. It is misrepresentation,' Jessica Donahue, a lawyer with the bar's Office of Disciplinary Counsel, told the justices.

But Al Emch, a Jackson Kelly [Law Firm]  attorney who spoke on behalf of his colleague Douglas A. Smoot, insisted that the [law] governing black lung cases did not require Smoot to submit the entire report.

In 2009, the Office of Disciplinary Counsel filed formal charges against Smoot, alleging that he violated the state's rules for lawyers by removing part of a doctor's 2001 report before turning it over to a retired miner with an eighth-grade education who was representing himself in the black lung claim.  After a two-day hearing in June 2009, a three-member [disciplinary] panel recommended the dismissal of all charges against Smoot, concluding that his handling of the case was in compliance with applicable black lung law. The Office of Disciplinary Counsel immediately appealed that decision to the Supreme Court.

On Wednesday, Emch maintained that the part of the report that Smoot did disclose contained evidence that was highly beneficial to the retired miner, who was representing himself when Smoot's client, Westmoreland Coal Co., decided to fight his claim in 2001.

'I see nothing in [the applicable] regulation that says a partial medical report can be submitted,' said Chief Justice Robin Davis.  [Attorney] Emch countered that there was nothing in the regulation that specified what a complete report is. He said that the removal of part of the doctor's report was not misleading.
'It was altered, Mr. Emch. The report was altered,' [Chief Justice] Davis shot back.

Justice Menis Ketchum wondered why, if the information they submitted indicated that Daugherty had black lung, the coal company continued to fight the case. In the years of litigation that followed, 14 doctors examined more than 30 X-rays, Daugherty underwent 11 exams by nine different pulmonologists, and six expert witnesses were deposed, he said. 'You could have just paid him and saved a lot of money,'  Ketchum said.  Ketchum also wondered why Smoot hadn't submitted the entire report to Daugherty and the administrative law judge presiding over the case.  'Why not give the whole report to the judge and let him decide what was most probative?' Ketchum asked. [ . . .]
Justice Brent Benjamin asked how much could be removed from a doctor's report before it could no longer be called a report, as it was in the cover letter that accompanied the submission of the partial report to Daugherty and the administrative law judge. 

Donahue argued that it was deceitful, and therefore an ethical violation, not to indicate that portions of the report had been removed. 'They took the report and tore it apart and only submitted the part they liked,'  she said. 'It is somewhat plausible to say that the [full] report would never have come to light if [Daugherty] hadn't gotten counsel.'

The litigation continued for three years after Smoot withheld part of the doctor's report.

Davis noted that when faced with a judge's order to disclose all of its information, Westmoreland decided to stop fighting Daugherty's claim.

Daugherty's lawyer, Robert Cohen, eventually pursued sanctions against Jackson Kelly from U.S. District Judge David Faber. Although Faber declined to impose sanctions, saying that a court was the wrong venue, he did forward the issue to the ODC.  'The court in no way approves the conduct of Jackson Kelly lawyers before the administrative law judge, assuming the alleged misconduct to have occurred,'  Faber wrote in his Aug. 30, 2006 order. He found Jackson Kelly's 'excuses and arguments flimsy at best.'"

You used to see this sort of thing all the time, but huge verdicts by angry jurors, sanctions and disciplinary actions have sent a strong message.  It's hoped that the West Virginia Supreme Court sends a strong message.  As with the dirty DA case, you can bet that Smoot and his colleagues routinely pulled this sort of stunt.  It's particularly offensive when the man on the otherside is unrepresented. 

There is an important lesson, this came to light when the miner, hired a lawyer.

1 comment:

  1. The packet from the doc contained 1) aterial gas studyr results, 2)pulmonology results, 3) exercise report 4) X-rays and 5) narrative summary of findings by the doc.

    The SCoWV found that the "medical report" included all the stuff in the packet, including the narrative summary,and that removing the summary and providing only the test results was "altering the report."

    Now, 20 CFR 725.414a1 defines "medical report" for the purposes of FBL. It says:

    For purposes of this section, a medical report shall consist of a physician's written assessment of the miner's respiratory or pulmonary condition... A physician's written assessment of a single objective test, such as a chest X-ray or a pulmonary function test, shall not be considered a medical report for purposes of this section.

    Read the last sentence carefully. If you are a lawyer, (or not) that should give you pause regarding the conclusion that the man "didn't disclose the full report."