WEST VIRGINIA RECORD

BECKLEY – Black lung lawyers of the Jackson Kelly firm fraudulently deprive coal miners of rightful benefits, a retired miner claims in a civil suit.

"Jackson Kelly attorneys have knowingly submitted evidence that misrepresents the facts," attorney John Cline of Piney View wrote for Norman Eller in a May 19 complaint. "Jackson Kelly's misconduct in these cases goes well beyond an attorney's duty of zealous advocacy and rises to the level of intentional conduct."

Attorneys knowingly have misrepresented evidence to administrative law judges, claimants and their own experts, he wrote.

Eller seeks a declaration that Jackson's conduct is unlawful. He seeks an injunction against future conduct and other relief.

He claims damages on behalf of others similarly situated, indicating he might seek certification of a class action.

He also seeks malpractice damages from lawyers Raymond Smith and Joni Cooper Rundle, who represented him in a claim against Elk Run Coal Company.

Cline filed Eller's suit in Raleigh Circuit Court, but on June 19 Jackson Kelly removed it to federal court in Beckley.

Neither side wants it to stay there.

Eller has asked District Judge Thomas Johnston to remand it to Raleigh County, and Jackson Kelly has pleaded that the U.S. Department of Labor should resolve it.

Eller worked in West Virginia mines for 39 years, according to the complaint.

Elk Run Coal resisted his claim while Smith and Rundle represented him, according to the complaint, but in 2007 an administrative law judge awarded benefits.

"Eller could, at all times relevant herein, establish without contradiction that he had been employed in the nation's coal mines for more than the requisite ten years and that he was suffering from a chronic disease of the lung," Cline wrote.

After Jackson Kelly counsel Jeffrey Wakefield of Charleston removed the case to federal court, Wakefield moved to dismiss it.

"The tenet that a court must accept the allegations in a complaint as true is inapplicable to threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," he wrote.

He argued that no trial court, federal or state, had jurisdiction over black lung issues.

Issues aren't ripe anyway, he wrote, because litigation of Eller's claim continues before the black lung benefits review board.

For Eller, Jane Peak of Morgantown answered in a July 20 remand motion that West Virginia has a particular interest in laws regarding conduct of attorneys.

"Federal law does not preempt West Virginia from prescribing rules that govern West Virginia attorneys when they represent clients in federal forums," she wrote.

"Federal law also does not preempt West Virginia from disciplining those attorneys when their behavior in federal forums fails to conform to those rules," she wrote.

Rundle and Smith separately denied the allegations in the complaint. For Smith, Julie Meeks of Charleston filed a cross claim against Jackson Kelly.

"The damages are not the result of any actions or inactions taken by this defendant," Meeks wrote.

If judgment is levied against Smith, she wrote, he would be entitled to comparative contribution and indemnification from Jackson Kelly.

U.S. Magistrate Judge Clarke VanDervort set a scheduling conference Aug. 18.