Jessica Lilly Published

Do attorneys have to present damaging evidence in court?

Black lung is a deadly disease caused by exposure to dust underground.

A widow is battling for black lung benefits of her dead husband.  Mary Fox filed an appeal on behalf of her late husband Gary Fox last year. Testimony before a federal appeals court began today in Virginia.

The hearing comes the same day stories from a yearlong investigation by the Center for Public Integrity revealed lawyers with the Jackson Kelly law firm submitted only favorable evidence in court.

Update: Thursday,  November 14, 2013 at 12:22 p.m.

A judge sided with Fox in 2009 after evidence surfaced that attorney’s with Elk Run Coal Company, then owned by Massey Energy, withheld evidence that possibly proves Fox did indeed have black lung. According to the brief filed in federal court, the same decision reopened prior claims. 

Listen to oral arguments in the case Mary Fox v. Elk Run Coal Company, Inc., in the US Court of Appeals for the Fourth District.

On Tuesday, Fox’s lawyers, John Cline and Al Karlin, were expected to introduce ethical considerations. The question is: should lawyers be allowed to obtain medical reports from large numbers of experts, submit only the favorable ones and withhold the rest? A decision isn’t expected for a couple of months.

Jackson and Kelly attorneys were expected to argue they have no legal obligation to provide Fox the reports when he didn’t ask for them. According to CPI report, at the time, Fox could not find an attorney willing to take his case so he represented himself. 

Jackson and Kelly did not return a request for comment.

The CPI found that in Fox’s case, the firm withheld two pathology reports by its own chosen experts who found his lung tissue consistent with the most severe form of black lung. Jackson Kelly did not disclose the reports, instead building its case around the report of a local hospital’s pathologist that hadn’t identified black lung.

The CPI is reporting that Jackson Kelly lawyers have for decades used “a cutthroat approach to fighting miners’ claims.”

The center says it found this evidence after sifting through hundreds of thousands of pages dating back 40 years.

The West Virginia Office of Disciplinary Counsel opened investigations into three Jackson Kelly lawyers who were involved in Fox’s case. To date, they have not been charged with any wrongdoing.

Oral arguments begin Tuesday morning in Richmond Virginia, but no decision is expected for months.

Alpha Natural Resources spokesperson Steven Higginbottom sent this statement in an email:

"Alpha Natural Resources and its affiliates adhere to the federal Black Lung Benefits Act guidelines when considering claims, as well as to the Federal Rules of Civil Procedure.  In the Fox case, the FBL Benefits Review Board exonerated Jackson Kelly of any fraudulent conduct.  That decision is presently on appeal to the United States Court of Appeals for the Fourth Circuit and Alpha will not comment further on the matter while it is in litigation."