Judge remands Jackson Kelly black lung cases to Raleigh Co.

By The West Virginia Record | Feb 17, 2011

BECKLEY – Claims of widows that Jackson Kelly law firm hid evidence in black lung cases don't belong in federal court, U.S. District Judge Thomas Johnston decided.

He remanded three suits to Raleigh Circuit Court on Feb. 14, finding Jackson Kelly failed to identify substantive questions of federal law.

Jackson Kelly removed the suits from Raleigh County court in 2009, arguing the claims related to the federal Black Lung Benefits Act.

Johnston found that even if plaintiffs could have sued under the act, nothing precluded them from proceeding with suits in state court based on the same facts.

"The BLBA does not completely preempt state law tort suits, and plaintiffs in these cases can prove each essential element of their fraud claims without reference to the BLBA's applicability or inapplicability," he wrote.

"The crux of plaintiffs' claims is that Jackson Kelly intentionally withheld certain documents or portions of certain documents," he wrote.

"A substantial and disputed question concerning the BLBA simply does not factor into plaintiffs' causes of action for fraudulent misrepresentation," he wrote.

Mary Fox filed one of the suits, on behalf of late husband Gary Fox, and Norman Eller and Clarence Carroll filed the others.

Carroll proposed to lead a class action on behalf of all miners who have been subjected to Jackson Kelly's misconduct.

Eller and Carroll also sued their former lawyers, Raymond Smith and Joni Rundle, for failing to detect Jackson Kelly's misconduct.

After removal, Johnston stayed the cases pending a decision on motions to remand.

At a hearing on Feb. 3, he learned that Eller and Carroll died.

He didn't hear anything that persuaded him to keep the case.

"No matter how important, or even decisive, federal law may be in the later stages of a case, if no substantial federal issue is raised as a legitimate part of a plaintiff's claim for relief, there exists no federal question jurisdiction," he wrote.

"Jackson Kelly's first argument, that the applicability of the BLBA to plaintiffs' claims is itself a substantial and disputed federal question, is untenable," he wrote.

"Plaintiffs' right to relief does not necessarily depend on the court's resolution of this question," he wrote.

"If Jackson Kelly's conduct fully complied with all applicable BLBA standards, plaintiffs could still establish every element of their fraud claims," he wrote.

"Conversely, if Jackson Kelly failed to comply with BLBA standards, plaintiffs would not automatically establish fraudulent misrepresentation under West Virginia law," he wrote.

"The legal malpractice claims against the Rundle defendants also fail to raise a substantial and disputed federal question," he wrote.

Allan Karlin of Morgantown and John Cline of Piney View represent the widows.

Jeffrey Wakefield and Erica Baumgras of Charleston represent Jackson Kelly.

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