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.'"
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OUTRAGEOUS!

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.

Shepard Fairey Lied

Who is Shepard Fairey? Fairey is the artist that designed the famous poster to the left. He's also the guy who created the "Andre the Giant" handbill that commands you to "Obey" and is papered all over the city light posts, bridge abutments, etc.

There is an ongoing copyright dispute between the Associated Press, its photographer, and Mr. Fairey concerning the "HOPE" Obama image which Fairey developed from an AP photo. I may or may not get into the issues relating to the intellectual property disputes underlying the copyright lawsuit between Fairey, the photographer and the AP--it is very compelling. I have followed the case. Terry Gross (one of the world's great interviewers) had the AP photographer, Shepard Fairey, as well as a copyright expert on her Fresh Air program, to air out the issues--check the NPR archives to hear it for yourself. I know less about intellectual property law than I do, even about family law (bleaaah!), but I know more than the lay person--so, let's revisit the subject at another time.

What has my attention is that yesterday Shepard Fairey admitted that during the litigation, he lied. See, link: http://www.eandppub.com/2009/10/surprising-developments-in-shepard-fairey-vs-ap-case.html. Not only does he admit that he lied, he admits he destroyed evidence and manufactured other evidence. Wow.

Generally speaking, litigant lying, perjury, spoliation of evidence is pretty heavy-shit. A local physician was up on malpractice charges. The doctor was the scion of one of our Home Town's wealthiest industrialist families--the arrogant bastard destroyed evidence of his medical malpractice and was caught out during the litigation because nursing staff kept copies of the original records. Not only did the jury hit him with a compensatory damages verdict, the punitive damages verdict for many millions of dollars was the largest verdict in local history up to that time. Moral: don't screw with the facts, the facts are the facts.

When I was a baby Bad Lawyer my closest friend was a young accountant. He, his senior partner, and their small business CPA firm were sued by the owner of a regional record retailer that had collapsed after financial irregularities surfaced that were undetected by my friend's accounting firm despite an audit. The record retailer's controller created the appearance of robust financial health by manipulating an aspect of inventory. The auditors should have visually confirmed the existence of these items but instead took the controller's/wrongdoer's verbal representation. Mistake. Malpractice.

No problem, my pal's firm had malpractice insurance, but my pal made a mistake that haunted his conscience. My friend lied during the deposition that the record retailer's attorney took in preparation for trial. My friend testified that he and his auditors had visually verified the existence of accounting items, that the company comptroller only verbally confirmed existed.

The malpractice case had not come to trial, and my pal was afraid. His senior partner, a real shit--was using my friend's mistake against him in their dealings and disaster loomed. What to do?

We looked at the procedural rules, depositions are governed by Rule 30 of Our Home State Rules of Civil Procedure. The rule permits persons to review transcripts of the the things they said under oath and change the testimony: yes to no, no to yes, add testimony, take away testimony, change anything. The caveat to this provision is that the person making the changes to his or her testimony is required set out the reason for any change, and submit to reexamination. Again this rule applies only if the attorney who took the deposition order the transcript of the discovery deposition. The record company's attorney did not order the transcript, but we amended the testimony anyway.

When my friend's case went to trial he and his firm was represented by one of Our Town's legendary civil litigators (not me, I was a spectator.) The defense was based on the idea previously explored, in the Bad Lawyer blog, that negligence requires proof of damages caused by the breach of the duty of care--consequently, the defense conceded the malpractice by my client and his firm (in effect admitting that the accountants did not visually verify inventory items that the company comptroller said existed)--but, denying that their audit mistake caused the collapse of the retailer. The defense, instead let the retailer demonstrate how out of touch he was with his business operation and employees. The jury returned a unanimous verdict for my friend, his partner and their accounting firm. Amazingly, my friend and his senior partner were able to survive this trauma, their accounting firm continued, and today, he is the sole owner, and one of Our Town's most respected accounting and financial authorities. My pal accomplished this, because he is honest and he is decent. I remain very proud of him.

Recently I successfully concluded the defense of a manufacturing company. During the discovery phase I deposed the plaintiff, and I ordered the transcript for my trial preparation and I directed it to be filed with the court. In the mail some weeks after the deposition I received a large stack of transcript "changes." In fact there were 24 separate changes to the testimony--it turns out that the Plaintiff's mother had inserted herself into the plaintiff's claim and lawsuit and she reviewed her son's testimony, sand she submitted the extensive changes over his signature. While none of the deposition changes were important, the fact that the mother involved herself so directly in her 31 year old adult son's injury claim led to a line of inquiry that resulted in developing facts that led directly to the dismissal of the lawsuit with prejudice by the court.. The mother's manipulation of the facts and evidence destroyed her son's claim, a claim valued by his attorney at $200,000 and which my client offered $40,000 to settle--now worth: $0.

Honesty in litigation is the only way the system can possibly work. Shepard Fairey has by his own admission destroyed the principle he purported to represent. By lying. Shame.