WEST VIRGINIA RECORD

A federal judge has dismissed a case filed against Jackson Kelly PLLC by a claimant who alleged the firm routinely engaged in discovery abuses in order to prevail in black lung cases.

U.S. District Judge David A. Faber's Aug. 30 order ended a protracted battle between Elmer Daugherty, now deceased, and Westmoreland Coal Co., over allegations that Jackson Kelly disobeyed an administrative law judge's orders and "disassembled" Daugherty's medical report involving his black lung claim.

But Faber's ruling also created a new battle for the oldest and largest law firm in West Virginia.

"[I]n granting this motion, the court does not condone the conduct of Jackson Kelly lawyers before the administrative law judge," wrote Faber, Chief Judge in the U.S. District Court for the Southern District of West Virginia at Charleston.

"The court grants this motion only because it does not believe that sanctions lie within its jurisdiction in the posture this case is now in. Instead, the court, in its dismissal order, will refer this matter to the Office of Disciplinary Counsel of the West Virginia State Bar for such further action as that agency deems appropriate."

Jackson Kelly chief executive officer Al Emch rebuffed allegations of wrongdoing.

"None of those allegations or contentions were proved or found to be
true by the court," Emch responded in a written statement. "He (Faber) just recited them."

A phone message was left with the office of Lawrence J. Lewis, Chief Lawyer of the Disciplinary Counsel, but a call had not been returned by press time.

Emch continued, "There is another side of the story. Federal black lung practice is a highly specialized, esoteric area of administrative law. There are few people who practice it, especially on the defense side, or who understand it well. There are different rules and procedures. It's Department of Labor regulations, not Federal or West Virginia Rules of Civil Procedure.

"Jackson Kelly takes any allegations like this very seriously. We took a look at these allegations when they were first raised. We believe our attorneys acted properly and in accordance with the rules and their ethical obligations."

Background

Elmer Daugherty, now deceased, claims Jackson Kelly ignored two ALJ discovery orders for copies of all medical evidence to Daugherty's counsel. After a third order was issued in December 2004, Jackson Kelly responded to a direct question from the administrative law judge (ALJ) and stated that Westmoreland continued to refuse to turn over medical records, according to Faber's account.

Daugherty also claims that Jackson Kelly acted improperly when it disassembled a medical report and submitted only portions of it to the Department of Labor and to Daugherty.

Daugherty filed a claim for federal black lung benefits with the Department of Labor's Office of Worker's Compensation programs on May 30, 2000. His case was approved for payment, but Westmoreland later requested in 2001 a formal hearing before an ALJ. A hearing was held in Beckley in October 2004.

On Nov. 1, 2004, Daugherty alleged that Westmoreland violated discovery requests and asked that a hearing be held.

Westmoreland responded that, because it had agreed to pay benefits, the regulations required that the claim be remanded to the District Director for payment, and that consequently, the administrative law judge no longer had jurisdiction to hold a hearing.

Administrative Law Judge Michael P. Lesniak scheduled a hearing in Pittsburgh on Dec. 16, 2004.

Westmoreland filed a motion to cancel the hearing and remand the claim to the District Director, arguing the ALJ did not have jurisdiction and that no discovery violations had occurred.

The ALJ denied the motion and held the hearing. An order was issued remanding the case to the District Director for payment of benefits on March 21, 2005.

Lesniak denied claimant's request to certify the facts relating to the discovery dispute for considerations of sanctions related to the alleged discovery violations.

On April 20, 2005, Daugherty filed a motion for reconsideration of the ALJ's order of remand to the District Director.

The ALJ granted Daugherty's motion for reconsideration but denied his request to certify the case for consideration of sanctions.

"Additionally, the ALJ suggested that Westmoreland's lawyers...might 'attempt to reconcile the matter' with...Daugherty and his counsel on an informal basis," Faber's order states.

On Aug. 18, 2005, Daugherty again requested the ALJ certify the record to the district court for appropriate sanctions. The ALJ took Daugherty's letter as a second request for reconsideration, at which point the federal court took up the matter.

Faber clamps down

Faber wrote that the matter before him only involved Jackson Kelly's failure to comply with an Administrative Law Judge's discovery order.

"This is an unusual case and Westmoreland's motion to dismiss presents several unusual grounds," Faber wrote.

"First, Westmoreland contends that the certification order is moot because Daugherty has died;

"Second, it asserts that the certification order is moot because jurisdiction abated with the termination of the underlying proceedings;

"Third, it argues that this court lacks jurisdiction because the ALJ did not have jurisdiction over the underlying action when he issued the certificationn order; and

"Fourth, Westmoreland asserts that the certification order fails to state a claim upon which relief can be granted."

In his order, Faber stated the matter before the court is a criminal contempt action "lacking all of the procedural protections that are incident to a criminal case."

"Even though some of the ostensibly criminal behavior in this case transpired in the presence of the ALJ, the bulk of the attorneys' alleged misconduct occurred during discovery and not in the presence of any judicial officer," he wrote.

Faber wrote that the proper remedy for the administrative law judge's allegations is referral to the West Virginia State Bar.

"The court's dismissal of this case is not meant to imply that the allegations contained in this case are anything other than deeply disturbing," Faber wrote.

"As claimant summarizes them, Jackson Kelly acted improperly when it repeatedly ignored the ALJ's discovery orders and also when it disassembled a medical report and only submitted portions of that report to the Department of Labor and the claimant," Faber wrote.