Jackson Kelly lawyer denies misconduct in black lung case

Jun 19, 2009 (The Charleston Gazette - McClatchy-Tribune Information Services via COMTEX) -- WLB | Quote | Chart | News | PowerRating -- CHARLESTON, W.Va. -- A lawyer accused of ethics violations by the State Bar's Office of Disciplinary Counsel denied Thursday that he had done anything wrong by not disclosing an entire medical report to a miner seeking black lung benefits.

maintained at his disciplinary hearing that he had no ethical obligation to disclose the "narrative summary" portion of a 2001 report by Dr. George A. Zaldivar which reportedly diagnosed Elmer Daugherty with complicated black lung disease. Smoot represented Westmoreland Coal Co., which appealed a decision to grant Daugherty benefits.

At the time, Daugherty was representing himself.

Smoot said Zaldivar, who examined Daugherty in February 2001 at Westmoreland's request, was too "subjective" in the narrative summary, so he only submitted the "objective" medical tests for use at a hearing in front of an administrative law judge.

Zaldivar's narrative was "equivocal" and "self-contradictory," Smoot said. The rules that govern federal black lung claims did not prohibit him from submitting only part of the report, he said.

Under questioning from Dave Jividen, a Wheeling lawyer serving as chair of the three-member panel hearing the case, Smoot admitted that a miner seeking benefits would have wanted to see Zaldivar's conclusions.

Ultimately, Jackson Kelly lawyers did disclose Zaldivar's narrative summary to Daugherty in 2004, but only as an attachment to a later report by Zaldivar, in which he changed his diagnosis and concluded that Daugherty's disabilities were not caused by black lung.

By that time, Daugherty had hired Morgantown attorney Robert Cohen, who testified Thursday that judges rely on "reasoned medical opinions" to make their findings. Zaldivar's "highly probative" narrative summary represented the doctor's reasoned medical opinion, Cohen said.

"It's a clear, unequivocal opinion of [black lung disease], and any suggestion otherwise is just wrong," Cohen said.

Anyone not familiar with the medical terminology would have difficulty interpreting the test results that Smoot did disclose to Daugherty, Cohen said. As an expert who handled numerous black lung cases, Cohen said he recognized that the information Smoot did turn over essentially acknowledged that Daugherty had the disease.

Daugherty, who died in 2005 at the age of 80, had an eighth-grade education and spent 42 years as an underground miner, according to Andrea Hinerman, a senior lawyer with the Office of Disciplinary Counsel.

Smoot, who was represented at the hearing by his Jackson Kelly colleagues Steve Crislip and Al Emch, said he was not bound by West Virginia's legal ethics laws because black lung cases are an exclusively federal issue under the U.S. Department of Labor.

In written filings, Hinerman said that by removing a portion of Zaldivar's report, Smoot violated his ethical duties by concealing documents with evidentiary value, particularly from a lay person who was representing himself.

Cohen alleged that when defending black lung claims, Jackson Kelly sent information such as X-rays and CT scans to multiple experts, then cherry 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."

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 Office of Disciplinary Counsel.

"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. Faber found Jackson Kelly's "excuses and arguments flimsy at best."

Jividen asked Smoot if he disagreed with Faber's conclusion that he did have an ethical obligation to disclose Zaldivar's report to Daugherty.

"I think Judge Faber does not understand the runnings of the federal black lung program," Smoot said.

In response to Jividen's questioning, Smoot said it was his standard practice to split reports into smaller sections in 2001. Other black lung lawyers did it, too, he said, but he couldn't think of any specific names when asked to name five, or even one.

Finally, Smoot admitted that William Mattingly, now the head of Jackson Kelly's black lung section, also "disassembled" medical reports, and that they discussed the practice prior to 2004.

Last month, two lawsuits were filed in Raleigh County alleging that Jackson Kelly repeatedly tried to cheat miners in black lung cases.

Smoot's disciplinary hearing continues Friday before the three-member panel. The case will then be submitted to the state Supreme Court, which will render a final decision.

Reach Andrew Clevenger at aclevenger@wvgazette.com or 304-348-1723.

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