Judge lifts stay on Jackson Kelly black lung case

By Steve Korris | Jan 14, 2011


BECKLEY – Neither Jackson Kelly law firm nor three individuals suing the firm over its defense of black lung claims asked U. S. District Judge Thomas Johnston to resume proceedings after 18 quiet months, but he did it anyway.

On Jan. 7, he lifted a stay he imposed in 2009, on a joint motion from the firm and plaintiffs Norman Eller, Mary Fox, and Clarence Carroll.

Johnston set a Jan. 28 hearing in Charleston on motions of the plaintiffs to remand the suits to Raleigh County circuit court, where they filed them.

His action surprised the author of the motions, Allan Karlin of Morgantown, who promptly pleaded for postponement.

Karlin moved on Jan. 11 to reschedule the hearing, writing that he and his wife would travel outside the United States from Jan. 21 to Feb. 2.

He wrote that defense counsel did not object. In a footnote, he wrote that Norman Eller recently passed away.

The suits allege that in the course of defending coal companies against black lung claims, Jackson Kelly concealed information from miners to their detriment.

Eller and Fox sued first, and the firm removed the suits to federal court in Beckley.

The firm moved to dismiss both cases, arguing federal black lung law provided administrative remedies for disputes.

Eller and Cox moved to stay the motion pending resolution of motions to remand.

Eight days later, both sides moved to stay proceedings pending resolution of the motions to dismiss and remand.

Two weeks later, Johnston granted the joint motion.

After Carroll sued Jackson Kelly in Raleigh County and the firm removed his case to federal court, Johnston stayed it.

Eller, Fox and Carroll moved for oral argument on the motions to remand, and Jackson Kelly opposed oral argument.

The firm argued Johnston could decide on the basis of papers it filed.

Paper arguments continued bouncing back and forth through the first half of last year, but the docket ran dry after June 2.

The cold case turned hot in November when Jackson Kelly moved to disqualify Karlin and his associate in the cases, John Cline of Piney View.

Jeffrey Wakefield of Charleston claimed Karlin and Cline pursued a black lung claim against Elk Run Coal, a Jackson Kelly client, while suing the firm.

"The potentially chilling effect upon the representation of black lung clients is obvious and clearly interferes with the right of federal black lung clients to be represented by counsel of their choice," Wakefield wrote. "Jackson Kelly attorneys are being asked to respond to discovery attempting to develop evidence to be used in the federal black lung cases and this action."

Karlin and Cline responded that some discovery in the black lung case might turn out prejudicial to Jackson Kelly in the black lung claim and the civil case."

They wrote that they properly communicated with Kathy Snyder of Jackson Kelly in her capacity as advocate for Elk Run Coal.

They wrote that they never asked Snyder what she personally knew about allegations of fraudulent conduct by Jackson Kelly.

They claimed the firm created the problem by continuing to represent Elk Run Coal.

Wakefield answered that "the circumstances clearly permit and encourage exploitation by allowing Karlin and Cline to develop evidence directly from Jackson Kelly attorneys in a separate proceeding in which Jackson Kelly is unrepresented."

"When Karlin and Cline seek Jackson Kelly's specific discovery in the federal black lung proceeding, they are also seeking discovery applicable to this case," Wakefield wrote.

Johnston didn't set a hearing on disqualification, choosing instead to tackle the original question of jurisdiction.

Without comment, he lifted the stay and granted oral argument on the motion to remand.

More News

The Record Network