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Appeals court sides with Jackson Kelly in black lung case

By Ken Ward

Charleston Gazette

CHARLESTON, W.Va. — Calling the behavior “hardly admirable,” a federal appeals court said Friday that the actions of coal industry lawyers who withheld key medical evidence in a black lung benefits case did not rise to the level of “fraud on the court.”

The 4th U.S. Circuit Court of Appeals questioned the actions of the Jackson Kelly lawyers but, at the same time, declined to wade too deeply into a dispute that has focused attention on the law firm’s work opposing benefit claims for miners.

A three-judge panel ruled against the widow of a black lung victim, a deceased West Virginia miner named Gary Fox. Fox’s widow, Mary, has been pursuing the case. Her husband was denied black lung benefits after Jackson Kelley lawyers, representing Elk Run Coal Co., withheld reports from two pathologists whose findings might have been helpful in proving he had black lung.

The case was featured in an October series by the Center for Public Integrity, a nonprofit journalism organization, which criticized coal industry lawyers and doctors it alleged abused the system to block disabled miners from receiving federal black lung benefits.

In a 20-page decision, the 4th Circuit ruled that concealing the pathology reports did not constitute “fraud on the court.”

The U.S. Supreme Court has defined fraud on the court as a “deliberately planned and carefully executed scheme” that severely undermines the “integrity of the judicial process.” Even perjury and fabricated evidence alone aren’t enough to meet the extraordinary standard, the courts have said.

Judge J. Harvie Wilkinson wrote that the 4th Circuit saw “no reason to address” the case’s broader implications when a “plain, narrow disposition is available.

“We bestow no blessing and place no imprimatur on the company’s conduct, other than to hold that it did not, under a clear chain of precedent, amount to a fraud upon the court,” Wilkinson wrote in a 20-page decision. “We now affirm and find that Elk Run’s conduct, while hardly admirable, did not, under clear Supreme Court and circuit precedent, demonstrate the commission of a fraud upon the court.”

Wilkinson wrote that the Fox case illustrates the way litigation is supposed to work.

“The adversary process exists because it permits each side to present its own case as well as to test its opponent’s in order to expose vulnerabilities of every sort and variety,” he wrote. “It is, to some extent, a self-policing mechanism.”

Mary Hendrix, a spokeswoman for Jackson Kelly issued a statement saying the firm is pleased with the 4th Circuit’s decision in that regard…

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