Berks County Bar Association The Berks Barrister Spring 2021 - 18

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Book Review
Continued from page 17
coal miner, diagnosed the lesion as " inflammatory pseudotumor, "
meaning benign lesion. No other findings were noted from the
biopsy.

In litigating the 1999 claim, the company's attorneys with
Jackson Kelly, a Charleston, West Virginia firm, produced expert
reports finding no pneumoconiosis based on x-rays and the earlier
pathology report, not based upon their own reading of the biopsy
slide, just simply the original, incomplete report.
The company's experts included Dr. Paul Wheeler, the highly
credentialed leader of the Pneumoconiosis Section of Johns
Hopkins Hospital. As part of his research, Hamby had obtained
files in 15 other cases. In reviewing them, he noted " the ubiquity "
of Dr. Wheeler. So he widened his search and learned that Dr.
Wheeler was involved in more than 1,500 cases over the previous
13 years. He discovered that Dr. Wheeler never once found
complicated pneumoconiosis " even though other doctors looking
at the same films had seen this severe disease in 390 of those
same cases. "
	 The Center for Public Integrity partnered with ABC News
for a story about Dr. Wheeler and Johns Hopkins, which aired
on ABC television on October 30, 2013, and on the same day the
Center released an article detailing the record of the doctor and

the hospital as part of a three-part series titled " Breathless and
Burdened. "
	 Johns Hopkins questioned the findings and asked for
documentation. A stack of documents were sent. Not long
thereafter, Johns Hopkins announced it was suspending
the work of Dr. Wheeler's Section pending an internal
review. Almost two years later, the hospital announced the
internal review was concluded, resulting in the Section being
terminated. Dr. Wheeler had retired.

	 Kudos to Chris Hamby, the Center and ABC News.
Nevertheless, it is very distressing to consider how many miners
were wrongfully denied benefits because a well-paid " whore "
was consistently found worthy of belief simply based upon his
resume.
	 In reviewing the records in Gary Fox's case, John Cline
thought about that 1998 pathology report. Surely, he thought,
Jackson Kelly had had other doctors view the biopsy slide
to confirm no presence of black lung. Yet, no such report
had been submitted into evidence in the prior claim; simply
the brief report by the Raleigh County Hospital pathologist
had been. Therefore, John made a discovery request for
all medical records in the possession of Jackson Kelly. The
attorneys objected on the basis that any records not submitted
into evidence constituted attorneys' work-product and was
not discoverable. The ALJ overruled the objection; the firm
asked for reconsideration. He denied the request. Instead of
producing the documents by the deadline, the firm's attorney
handling the case called John with a question: " If the defense
accepted liability and agreed to pay the claim, would John and
Gary still pursue discovery? "

	 John called Gary to discuss the options: accept the win,
end the legal fight, or press on with discovery. The risk was that
there could be " nothing damning in its files. " After listening
quietly and thinking for a moment while lying in what would
eventually become his death bed, Gary said, " Keep fighting. "
He thought, while it may not help him, continuing to press the
attorneys would help others. Gary had soul despite it being full
of coal dust.
You'd better listen to the cries of the dyin' miners,

Better feel the pain of the children and the wives.
We gotta stand and fight together for survival,
Commercial, Industrial, Residential

Legal Descriptions

Subdivision & Land Development

Expert Testimony

Site Analysis & Land Use Planning

Estate Planning

Boundary Disputes & Zoning Testimony

ALTA Surveys

And that's bound to mean a change in all our lives.
In explosions or from black lung they'll be dyin',
And the operator's guilty of this crime.

But the killin's won't be stopped by all your cryin'.
1991-2021

We gotta fight for what we need, let's seize the time. 3
Excerpts from " Voices from the Mountains " by Ruthie Gorton

3

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Berks County Bar Association The Berks Barrister Spring 2021

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Spring 2021
