IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND MICHAEL S. DAY, JR. As Personal Representative and Administrator of the Estate of Michael S. Day, Sr. and on behalf Of all others similarly situated P. O. Box 421 Glen Fork, WV 25845 AND CHRISTI ANN JORDAN JARRETT As Personal Representative and Administrator of the Estate of Junior McCoy Barr and on behalf of all Others similarly situated 16403 Holly Crest Lane, Apt. 211 Huntersville, NC 28078 Plaintiffs, v. JOHNS HOPKINS HEALTH SYSTEM CORPORATION d/b/a The Johns Hopkins Hospital 600 N. Wolfe St. Baltimore, MD 21205 Serve: Joanne Pollak, Esq. 600 N. Wolfe St Administration 414 Baltimore, MD 21205 AND THE JOHNS HOPKINS HOSPITAL, INC. d/b/a The Johns Hopkins Hospital 600 N. Wolfe St. Baltimore, MD 21205 Serve: The Johns Hopkins Hospital CLASS ACTION COMPLAINT JURY TRIAL DEMANDED Legal Department Admin 400 600 N. Wolfe St. Baltimore, MD 21287 AND JOHNS HOPKINS IMAGING, LLC 601 N. Caroline St. JHOC 4210 Baltimore, MD 21287 Serve: Joanne E. Pollak, Esq. General Counsel BRB Suite 102 733 North Broadway Baltimore, MD 21205 AND THE JOHNS HOPKINS UNIVERSITY d/b/a Johns Hopkins Hospital Charles 34th St., Baltimore, MD 21218 Serve: Arthur P. Pineau Interim General Counsel 113 Garland Hall 3400 N. Charles St. Baltimore, MD 21218 AND PAUL WHEELER, MD Johns Hopkins Hospital Department of Radiology 600 North Wolf St. Central Viewing acility/Room 127 Baltimore, MD 21287 Defendants. CLASS ACTION COMPLAINT COME NOW Plaintiffs, on behalf of the Estates they each represent and on behalf of all others similarly situated, make this Complaint for their cause of action and state the following in support thereof: PARTIES 1. Plaintiff Michael S. Day, Jr. is a resident of the State of West Virginia, the surviving son of Michael S. Day, Sr., and the administrator of the Estate of Michael S. Day, Sr. 2. Plaintiff Christi Ann Jordan Jarrett is a resident of the State of North Carolina, the surviving daughter of Junior McCoy Barr, and the administrator of the Estate of Junior McCoy Barr. 3. Defendant Johns Hopkins Health System Corporation is a domestic corporation doing business in the State of Maryland. 4. Defendant The Johns Hopkins Hospital, Inc. is a domestic corporation doing business in the State of Maryland. 5. Defendant Johns Hopkins Imaging, LLC is a domestic limited liability company doing business in the State of Maryland. 6. Defendant The Johns Hopkins University is a domestic corporation doing business in the State of Maryland. 7. Defendant Paul Wheeler, MD is radiologist licensed to practice in the State of Maryland and an actual and apparent agent of each of the aforementioned Defendants. 8. 9. 10. ll. 12. 13. 14. JURISDICTION This claim exceeds the required jurisdictional amount of $30,000.00. This Court has personal jurisdiction over each named Defendant pursuant to Md. Code, Courts and Judicial Proceedings 6-102 and 6-103. Venue lies in the Circuit Court for Baltimore City by virtue of the fact that the acts and omissions complained of occurred in Baltimore City and Defendants maintain their headquarters and principal places of business in Baltimore City. SUMMARY OF THE CASE Each of the preceding paragraphs is incorporated by reference herein. Defendants Johns Hopkins Health System Corporation, The Johns Hopkins Hospital, Inc., Johns Hopkins Imaging, LLC, The Johns Hopkins University (collectively referred to hereafter as "Johns Hopkins"), and Dr. Wheeler and the Johns Hopkins ?Black Lung Program? have engaged in a pattern and practice with the intent to defraud at least hundreds of toxically injured coal miners of federally earned bene?ts. Pneumoconiosis is a general term given to any lung disease caused by dusts that are breathed in and then deposited deep in the lungs causing damage. Pneumoconiosis is usually considered an occupational lung disease, and includes asbestosis, silicosis and coal workers' pneumoconiosis (CWP), also known as ?Black Lung Disease.? In response to this occupational, and known-to-be-fatal disease, the federal government established a compensation program under the Federal Coal Mine 4 15. 16. 17. 18. 19. Health and Safety Act of 1969, i. e. 30 USC 901, et seq. (hereinafter ?Black Lung Bene?ts Act" or The BLBA established, in part, a bene?ts program for workers at coal mines who contracted Coal Workers? Pneumoconiosis with stringent requirements for determinations as to the diagnosis of CWP. These coal miners often were seeking total disability, or may have been seeking bene?ts owed for loss of life entirely. These requirements dictate that when a chest x-ray was evaluated for the presence of CWP, the radiologist would engage in review and classi?cation of the ?ndings pursuant to the International Labour Organization (hereinafter classi?cation system. See 20 CFR Defendants established the "Johns Hopkins Black Lung Program? (hereinafter the ?Black Lung Program?) to take part in the determination of the presence or absence of CWP in bene?t-seeking coal miners. Defendants purposely and intentionally refused to abide by the stringent requirements of the Coal Act, including a disregard for 20 CFR 718.102(d) and the ILO classi?cation system. As a result of this refusal, the Black Lung Program failed to identify black lung disease in hundreds of coal workers, many of which were denied bene?ts as a direct and proximate result of this refusal. 20. As such, Plaintiffs and members of the Class they seek to represent have been denied bene?ts to which they were legally entitled as coal miner citizens in the United States of America. FACTS COMMON TO ALL CLAIMS The Federal Black Lung Benefits Program and The "B-Reader" Program 21. Each of the preceding paragraphs is incorporated by reference herein. 22. CWP is a known occupational disease which af?icts coal miners due to chronic inhalation of coal dust. 23. In the 1960's, it became apparent that coal miners were at risk of CWP due to their chronic exposure to coal dust, and ultimately the federal government took action in 1969. 24. In 1973, the Black Lung Bene?ts Act was passed stating: Congress ?nds and declares that there are a signi?cant number of coal miners living today who are totally disabled due to pneumoconiosis arising out of employment in one or more of the Nation's coal mines; that there are a number of survivors of coal miners whose deaths were due to this disease; and that few States provide bene?ts for death or disability due to this disease to coal miners or their surviving dependents. It is, therefore, the purpose of this subchapter to provide bene?ts, in cooperation with the States, to coal miners who are totally disabled due to pneumoconiosis and to the surviving dependents of miners whose death was due to such disease; and to ensure that in the future adequate bene?ts are provided to coal miners and their dependents in the event of their death or total disability due to pneumoconiosis. 30 U.S.C.A. 901. 25. Ultimately, coal mine operators are liable for the payment of bene?ts to qualifying miners or their survivors and for payment of an excise tax to the ?Black Lung Disability Trust Fund? for operation of the black lung bene?ts program. See 30 6 26. 27. 28. 29. 30. 31. 32. U.S.C. 932(b) and 26 US. Code 9501. As such, coal mine operators act as the disability insurer for the coal miner employees. As operators have an incentive to prevent claimants from gaining disability bene?ts under the BLBA, the determination of allowable bene?ts is adversarial in nature, however, as operators wish to prevent non-meritorious claimants from gaining disability bene?ts under the BLBA. By 1978, it became clear that there could be wide disagreement between medical professionals as to the absence of presence of evidence of CWP on chest x-ray. At that time, speci?cally in 1978, the Department of Health and Human Services (hereina?er and the Department of Labor (hereinafter promulgated federal regulations with the intent of creating a uniform system of classi?cation of x?ray ?ndings as it pertains to bene?ts under the Black Lung Bene?ts Program. See 45 C.F.R. 37.01, et seq. The federal regulations demand that the ILO International Classi?cation System be used to determine whether an x-ray presents evidence of pneumoconiosis. See 20 Critically, the classi?cation system is a legal basis for establishing the presence of clinical or medical CWP, which is a necessary element of entitlement to bene?ts. This legal diagnosis of ?clinical pneumoconiosis? may differ from the standards used by physicians in the ?eld of practice. The National Institute of Safety and Health (hereinafter is responsible for the creation of the "B-reader" certi?cation program. 33. 34. 35. 36. 37. 38. The B?reader program certi?es radiologists who take advanced training in the reviewing of radiology for the presence of absence of pneumoconiosis pursuant to the ILO system with the intent to train radiologists in the application of the ILO classi?cation system. This review of chest x-rays pursuant to the ILO classi?cation system is known as "B-reading" and the radiologists who have obtained certi?cation to review these x- rays as "B?readers." B-readers also agree to a Code of Ethics promulgated by NIOSH's reader program. The Code of Ethics states, inter alia: a. The Reader?s primary commitment is to serve the welfare and best interests of patients, workers, and society by striving to classify chest radiographs as accurately as possible. b. Readers shall respect the law; the rights of patients, other health professionals, and clients; and shall safeguard medical information and other con?dences within the constraints of the law. Finders of fact, such as District Directors and reasonably believe that readers are reviewing radiology in conformance with NIOSH, the ILO, and the Code of Ethics. BLBA regulations actually de?ne a "B-reader" as a "physician [that] has demonstrated ongoing pro?ciency in evaluating chest radiographs for radiographic quality and in the use of the ILO classi?cation for interpreting chest radiographs for pneumoconiosis and other 20 C.F.R. Radiologists who take partwand pro?t through payments for performing these reviews?are required to note ?ndings under the ILO classi?cation system. When 39. 40. evaluating the presence or absence of CWP pursuant to the NIOSH de?nition of CWP, radiologists are not permitted to offer opinions that are in non?conformance to the ILO system. NIOSH demands that B-readers who are reviewing radiographic ?ndings that "might be" secondary to pneumoconiosis must still be classi?ed as evidence of pneumoconiosis. See The Application of the ILO Radiographic Classi?cation System (1980) ("if the ?ndings might be secondary to pneumoconiosis, but other etiologies are also to be considered, the classi?cation for pneumoconisosis (Sections 1A through 3D) should be see also Guidelines for the Use of the ILO International Classi?cation of Radiographs of Pneumoconioses (2000) ("No radiographic features are pathognomonic of dust exposure. Some radiographic features that are unrelated to inhaled dust may mimic those caused by dust. Readers may differ about the interpretation of such therefore, the study protocol will usually require that all appearances described in these Guidelines and seen on the standard radiographs are to be classi?ed") (emphasis added). In assessing the radiological ?lms under the legal de?nition of CWP as de?ned by the ILO classi?cation system and applied by NIOSH, the role of the radiologist is solely to note speci?c radiographic ?ndings that the ILO system de?nes as possible pneumoconiosis; the radiologist may not disregard those ?ndings merely because he believes there are plausible explanations other than CWP or pneumoconiosis because all ?ndings that "might be" CWP are to be classi?ed as CWP. 41. Fact??nders tasked with weighing discrepancies in opinions?including Administrative Law Judge's and district bene?ts directors?presume that all experts are using the requisite ILO system. 42. However, regulations demand that "where two or more X?ray reports are in con?ict, in evaluating such X?ray reports consideration must be given to the radiological quali?cations of the physicians interpreting such X-rays." 20 CPR. (citing 20 C.F.R. 43. Therefore, a certi?ed B-reader who is presumably following NIOSH Guidelines in applying the ILO classi?cation system is to be given more weight than a non-B- reader as a matter of law. 44. Since 2013, it has been estimated at times that there are as few as 230 certi?ed B- readers in the United States of America. 45. Dr. Wheeler and several radiologists in the Johns Hopkins Black Lung Program? including John Scatarige, MD?are certi?ed B-readers, having demonstrated an understanding an ability to classify radiology under the ILO classi?cation system, and passed recerti?cation exams every four years in order to maintain their status as certi?ed B-readers. Determination of Bene?ts 46. Each of the preceding paragraphs is incorporated by reference herein. 47. Determination of bene?ts is based upon the submission of a claimant to numerous potential diagnostic exams, subject to review by quali?ed physicians, and ultimate 10 48. 49. 50. 51. 52. 53. determination by an administrative law judge in the event a dispute as to the presence of CWP or disability due to CWP arises. Most commonly, a suffering coal miner will ?le his/her initial claim pro se. This initial claim is ?led with the local "District Director's Of?ce." The Department of Labor then funds certain medical exams, most typically a clinical exam by an internist or pulmonologist, pulmonary function test, arterial blood gas study, and a chest x?ray interpreted according to the ILO Guidelines as discussed and interpreted by NIOSH in the Study Syllabus for Classi?cation of Radiographs of Pneumoconiosis. The coal mining company also has the right to obtain no more than two examinations of the miner by its own consulting physicians and to obtain interpretations of chest x-rays that can be used to defeat a miner?s claim for bene?ts if the interpretations are negative for pneumoconiosis. If either party disputes the District Director's ?ndings, then either party can appeal those ?nds to an Administrative Law Judge (hereinafter After a submission of a ?ndings of fact and conclusions of law by an ALJ, either party may then appeal to the Bene?t Review Board. Thereafter, results can be appealed directly to the appropriate federal Circuit Court of Appeals and to the Supreme Court of the United States. This system of review is reliant on the application of the federal law and regulations by those physicians who offer opinions. 11 54. If physicians unilaterally determine to ignore or "modify" the law and regulations, then the system does not function justly. Defendants' Interpretation of Chest X-Rays 55. 56. 57. 58. 59. Each of the preceding paragraphs is incorporated by reference herein. Defendants Johns Hopkins, through its Black Lung Program, and Defendant Dr. Paul Wheeler consciously chose to disregard the law, the ILO classi?cation system, and the ?ndings therefrom in a systematic effort to limit the awards of bene?ts lawfully earned by coal miners suffering from pneumoconiosis. On October 29, 2013, the Center for Public Integrity began to publish a three-part expose on the manipulation of the federal black lung program in West Virginia. Part two, published on October 30, 2013, exposed the manner in which Defendants admittedly refused to abide by the ILO classi?cation system, and substituted their own opinions in an effort to minimize the number of coal miners who would qualify for federal bene?ts. In the report on Dr. Wheeler and Johns Hopkins, Dr. Wheeler admits that he does not use the ILO classi?cation system in performing B-reads because in his View the system has "some quality issues." See (last visited October 18, 2016) The CPI report, after interviewing Dr. Wheeler, further explains: If spots appear on the X-ray, a reader is supposed to mark their size and shape, and then explain which diseases seem more or less likely. 12 60. 61. 62. 63. 64. When he reads X?rays for coal companies, however, Wheeler doesn?t do this. If he sees spots on the ?lm but thinks another disease is more likely than black lung, he marks the ?lm as negative. He typically describes the abnormalities in the comments section, explaining why they don?t meet his criteria for ?nding black lung. In case after case reviewed by the Center, his comments were almost identical. Id. Defendant Dr. Wheeler also admits that he has intentionally disregarded the ILO classi?cation system, due to his beliefs as to what the law should be. ?If you think it's appropriate for somebody with sarcoid to be paid for [black lung] because he has masses and nodules do you think that's appropriate? I don't think so.? Id. As Dr. Wheeler most stated in an interview with CPI: don?t care about the 1d. These radiological abnormalities, which Dr. Wheeler refuses to acknowledge as evidence of Black Lung Disease, support the diagnosis of CWP on a chest x-ray as a matter of law, however. Instead of identifying ?ndings consistent with the ILO classi?cation system, or that ?might be? CWP according to the ILO system, Defendants intentionally and knowingly deviated from the ILO system and suggest other diagnoses for the bene?t seeker. Most commonly, Dr. Wheeler and Johns Hopkins would ?nd that the chest x-rays were consistent with tuberculosis or histoplasmosis, neither of which permitted recovery of any bene?ts under the program. In short, Dr. Wheeler and Johns Hopkins Black Lung Unit required higher standards than those imposed by the ILO, particularly that "the white spots that 13 65. 66. 67. 68. 69. 70. Show up on ?lm must have a particular shape, appear in a speci?c area of the lung and follow a speci?c pattern." 1d. By intentionally deviating from the ILO system, and substituting non-conforming standards for x-ray ?ndings, Johns Hopkins and Dr. Wheeler were successful in denying lawfully earned federal bene?ts to injured coal miners. According to the CPI report, in at least 280 cases in which Dr. Wheeler successfully convinced an Administrative Law Judge to deny bene?ts, subsequent autopsies proved Defendants' ultimate conclusions and opinions wrong and that the miner had black lung and was deserving of bene?ts under the program. Unfortunately, these biopsies or autopsies did not result in full bene?ts awards under the BLBA. Other miners suffered loss in bene?ts due to delays in obtaining those bene?ts which should have been earned but for the readings and unlawful interpretations of Defendants. By deviating from the federal law and regulations Defendants certi?ed and agreed to abide by, a systematic declination of earned federal bene?ts was created for coal miners suffering from CWP or other forms of pneumoconiosis which entitled him/her to federal bene?ts under the BLBA. In exchange for these opinions, Defendants both were paid by employer coal companies, and thereby retained ?nancial bene?ts for deviating from the ILO classi?cation system and the legal criteria for establishing CWP under the BLBA. 14 Michael Steven Dav 71. 72. 73. 74. 75. 76. 77. Each of the preceding paragraphs is incorporated by reference herein. Michael Steve Day, Sr. was a coal miner in West Virginia for 33 years primarily with Peabody Energy Corporation (?Peabody?), one of the nation?s largest coal companies. Mr. Day ceased work in 2004 on the advice of his treating pulmonologist and ?led a claim for federal black lung bene?ts because his chest x-ray showed coal workers? pneumoconiosis and his pulmonary test results revealed moderate impairment that was deteriorating. The initial evaluation by a physician approved by the Department of Labor con?rmed that Mr. Day had complicated pneumoconiosis and was ?100% disabled for mine work due to coal workers? pneumoconiosis.? On appeal, Peabody relied on two negative x-ray readings by Dr. Wheeler, and one negative x-ray reading by another member of the Johns Hopkins Black Lung Unit (Dr. Scott). Dr. Wheeler?s negative reading of a digital x-ray, and the negative reading of a CT scan by a third member of the Johns Hopkins Black Lung Unit (Dr. Scatarige was suf?cient to convince the ALJ that Mr. Day was not entitled to bene?ts because he did not have complicated pneumoconiosis. Consequently, the ALJ denied his claim by justi?ably relying upon the ?ndings and reports of Defendants, and applying the law and regulations to those ?ndings. 15 78. 79. 80. 81. 82. Dr. Wheeler and the other two members of his Black Lung Unit opined that Mr. Day may have radiographic evidence of tuberculosis, histoplasmosis, or some other condition, but not black lung, and they intentionally failed to classify radiographic abnormalities that were either ?consistent with? or ?might be? pneumoconiosis as required by the NIOSH Syllabus for Classi?cation of Radiographs of Pneumoconiosis. The Administrative Law Judge justi?ably assumed that the radiologists form the Johns Hopkins? Black Lung Unit were applying the ILO Guidelines correctly and that he could rely on their reports as the basis for issuing a denial of bene?ts to Mr. Day. In the CPI investigation, an independent B-reader stated other physicians are reaching different conclusions about this case, that Mr. Day?s ?ndings are not dust exposure related; it gives me serious pause and concern about bias and the lack of scienti?c independence or credibility of these observers.? When Mr. Day died in 2014, his autopsy revealed ?complicated coal workers? pneumoconiosis/massive pulmonary ?brosis, and extensive coal mine dust lung disease,? which became the basis for an eventual award of federal black lung bene?ts to Mr. Day posthumously in a subsequent claim. As a result of Defendants' willful refusal to interpret chest x-rays in compliance with the ILO classi?cation system, Mr. Day was denied and never recovered certain bene?ts earned under the BLBA. 16 Junior McCoy Barr Each of the preceding paragraphs is incorporated by reference herein. . Mr. Barr was a coal miner in West Virginia for 33 years, primarily with Eastern Associated Coal Company. In 1989, Mr. Barr ?led a claim for federal black lung bene?ts in his pro se capacity. Dr. Donald Rasmussen performed the examination authorized by DOL and found that Mr. Barr's chest x-ray revealed evidence of small opacities in all six lung zones with a profusion of 1/2, which is consistent with CWP. Dr. Rasmussen also found that Mr. Barr?s pulmonary studies indicated ?at least moderate loss of lung function? and Mr. Barr ?did not retain the pulmonary capacity to perform very heavy manual labor? that was part of his usual coal mine work. Based on these results, Dr. Rasmussen determined that Mr. Barr?s clinical pneumoconiosis was ?a material contributing cause of his impaired lung function.? Dr. Rasmussen?s ?ndings were suf?cient to qualify for federal black lung bene?ts; however, Mr. Barr's x-rays were then interpreted as completely negative for pneumoconiosis by Dr. Wheeler and Dr. Scatarige from the Johns Hopkins Black Lung Unit. Both Dr. Wheeler and Dr. Scatirage disregarded the ILO classi?cation system and erroneously classi?ed the x-ray as completely negative for CWP. Dr. Wheeler said is very unlikely because 1) nodular in?ltrates are asymmetrical, (2) involve periphery lungs and pleura, (3) are probably mixed with 17 92. 93. 94. 95. 96. 97. 98. calci?ed granulomata, and he is quite young? which are not appropriate reasons for excluding pneumoconiosis under the ILO classi?cation system. Similarly, Dr. Scatarige said there were ?no small, central, round opacities of CWP/silicosis, which is a more stringent set of criteria than the ILO system requires. The District Director's Of?ce justi?ably relied upon the reports of Drs. Wheeler and Scatarige to support a denial of bene?ts to Mr. Barr. In a subsequent claim, Mr. Barr persisted and ?nally was awarded bene?ts posthumously in 2016. However, the award did not include past bene?ts already lost. Mr. Day?s claims for federal black lung bene?ts contained a total of 24 x-ray readings, and except for the readings by Dr. Wheeler and Dr. Scatarige, they were all positive for CWP. Subsequently, Mr. Barr?s autopsy slides were interpreted by four pathologists who all found he had at least simple CWP and possibly complicated CWP. Thus, as a result of the delay in receiving bene?ts as a proximate result of Defendants' willful refusal to interpret chest x-rays in compliance with the ILO classi?cation system, Mr. Barr was denied and never recovered bene?ts earned under the BLBA. Mr. Barr passed away on October 23, 2011. 18 CLASS ACTION ALLEGATIONS 99. Plaintiffs brings this action as a class action pursuant to the Maryland Rules of Civil Procedure 1), and 2-231(d) on behalf of the class: THE CLASS All persons nationwide who made a claim under the Black Lung Bene?ts Act, 30 USC 901, et seq., and whose radiography were reviewed by Defendants, and were denied or lost bene?ts under the Black Lung Bene?ts Act. Excluded from the Class are Defendants, the of?cers, members, and directors of Defendants, members of their immediate families and their legal representatives, heirs, successors, or assigns, and any entity in which Defendants have or had a controlling interest. 100. The proposed Class is believed to be so numerous that joinder of all members is impracticable. The exact number of members of the Class is unknown to Plaintiffs at this time and can only be ascertained through appropriate discovery. The proposed Class is believed to be ascertainable in that the names and addresses of all members of the Class can be identi?ed in business records maintained by Defendant. 101. Plaintiffs? claims are typical of the claims of the members of the Class because Plaintiffs? and all Class members? claims originate from the same conduct, practice and procedure on the part of Defendants and Plaintiffs possesses the same interests and has suffered the same injuries as each member of the Class. 19 102. Plaintiffs will fairly and adequately protect the interests of the members of the Class and have retained counsel experienced and competent in class action litigation. Plaintiffs have no interests that are contrary to or in con?ict with the members of the Class that Plaintiffs seeks to represent. 103. A class action is superior to all other available methods for the fair and ef?cient adjudication of this controversy, since joinder of all members is impracticable. Furthermore, as the damages suffered by individual members of the Class may be relatively small, the expense and burden of individual litigation may make it impracticable for the members of the Class to individually redress the wrongs done to them. There should be no dif?culty in the management of this action as a class action. 104. Issues of law and fact common to the members of the Class predominate over any questions that may affect only individual members, in that Defendants have acted on grounds generally applicable to the entire Class. Among the issues of law and fact common to the Class are: c. Whether Defendants committed fraud in submitting their ?ndings under the Johns Hopkins Black Lung Program; d. Whether the Defendants interfered with the occupational economic interests of Plaintiffs and members of the Class; e. Whether Defendants violated the Racketeer In?uenced and Corrupt Organizations Act; 20 f. Whether Defendants negligently misrepresented facts to Plaintiffs and ?nders of fact; g. Whether Defendants were unjustly enriched; h. Whether Defendants engaged in a scheme to deprive Plaintiffs and members of the Class of earned federal bene?ts; i. Whether Defendants failed to apply the ILO classi?cation system in performing readings of studies under the j. Whether the Plaintiffs and the Class are entitled to damages, statutory penalties, punitive damages, and/or injunctive relief. 105. Upon information and belief, absent a class action, Defendants? violations of the law will be allowed to proceed without a full, fair, judicially supervised remedy. 106. Plaintiffs reserves the right to revise Class definitions and questions based upon facts learned in discovery. FRAUD Count I 107. Each of the preceding paragraphs is incorporated by reference herein. 108. Defendants made false representations to the Plaintiffs, members of the Class, and to the federal government and administrative law judges tasked with determining whether Plaintiffs and members of the Class were entitled to bene?ts under the BLBA. 109. These false representations included: 21 110. 111. 112. 113. That Defendants were "B-reading" chest x-rays consistent with the ILO and the relevant federal rules and regulations; . That Plaintiffs and members of the Class did not have ?ndings consistent with Black Lung Disease that entitled Plaintiffs and members of the Class to bene?ts under the That Plaintiffs and members of the Class did not have CWP, pneumoconiosis or "Black Lung Disease;" . That Plaintiffs? and members of the Class' x-ray ?ndings were not proximately caused by employment in coal mines as determined by federal rules and regulations; Otherwise made false representations to Plaintiffs, members of the Class, and the relevant government bodies and individuals responsible for determining whether bene?ts were earned under the BLBA. As stated above, these false statements were known to be false at the time by Defendants, and were known to be made with reckless indifference for the truth. Defendants made these false statements for the purpose of defrauding Plaintiffs and members of the Class as well as unjustly enriching Defendants. Plaintiffs and members of the Class relied upon these representations as they were required to have their chest x?rays and/or CT-scans read by Defendants when requested by the relevant coal mine company. Further, Plaintiffs and members of the Class indirectly relied upon these representations because Defendants made these false statements to administrative 22 law judges and the appropriate fact ?nders who relied upon Defendants false representations in determining whether bene?ts should be awarded under the BLBA. 114. Plaintiffs, members of the Class, and the administrative law judges and the appropriate fact ?nders had the right to rely upon these false representations as Defendants represented themselves as the foremost authority on performing B- reading under the BLBA, and whose credentials alone warranted serious consideration, despite the intentional disregard of the law. 1 15. As a proximate and direct result of this fraud, Plaintiffs and members of the Class suffered compensable loss in the form of a complete or partial denial of bene?ts which can be quanti?ed based upon the length of time in which bene?ts were not awarded. 1 l6. Plaintiffs rely upon the doctrines of actual and apparent agency and res z'psa loquitur where appropriate. 1 17. WHEREFORE, Plaintiffs seek all damages allowable by law, including all economic damages lost for Plaintiffs and members of the Class in an amount that exceeds $75,000 in the aggregate. TORTIOUS INTERFERENCE WITH OCCUPATIONAL ECONOMIC INTERESTS Count II 118. Each of the preceding paragraphs is incorporated by reference herein. 23 119. Defendants maliciously and wrongfully interfered in Plaintiffs and members of the Class' economic relationship that was presents as part or Plaintiffs' and the Class members' occupation. 120. Defendants maliciously, wrongfully, and unlawfully interfered in these economic relationships by fraudulently and wrongfully claiming: a. That Defendants were "B-reading" chest x-rays consistent with the ILO and the relevant federal rules and regulations; b. That Plaintiffs and members of the Class did not have ?ndings consistent with Black Lung Disease that entitled Plaintiffs and members of the Class to bene?ts under the c. That Plaintiffs and members of the Class did not have CWP, pneumoconiosis or "Black Lung Disease? or any other compensable injury under the program; d. That Plaintiffs' and members of the Class' x-ray ?ndings were not proximately caused by employment in coal mines as determined by federal rules and regulations; e. Otherwise made false representations to Plaintiffs, members of the Class, and the relevant government bodies and individuals responsible for determining whether bene?ts were earned under the BLBA that wrongfully interfered with Plaintiffs and the Class Members' occupational economic relationship. 24 121. Plaintiffs rely upon the doctrines of actual and apparent agency, and res ipsa loquitur where appropriate. 122. WHEREF ORE, Plaintiffs seek all damages allowable by law, including all economic damages lost for Plaintiffs and members of the Class in an amount that exceeds $75,000 in the aggregate. VIOLATION OF THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT 18 U.S.C. 1961 Count 123. Each of the preceding paragraphs is incorporated by reference herein. 124. Defendants are in violation of the Racketeer In?uenced and Corrupt Organizations Act (hereinafter by engaging in mail fraud, obstructing justice, and finally violating federal rules and regulations related to the BLBA. 125. Defendants engaged in a scheme to defraud by means of false or fraudulent representation, used interstate and intrastate mails to execute scheme and in connection with the scheme, to cause actual injury to Plaintiffs and members of the Class. 126. Defendants received copies of X-Rays from coal mining companies and/or their representative law firms Via interstate and intrastate mails. 127. Defendants then further used interstate and intrastate mails to return their opinions of the chest x-rays they received to coal mining companies and the companies' representative law firms, and also to administrative law judges. for the purpose of perpetuating a fraud and scheme to cause economic injury to Plaintiffs and the Class. 25 128. Defendants were paid, often significant sums in excess of standard x-ray review fees, to review these x-rays and provide these reports. 129. Defendants also obstructed justice in violation of federal law by endeavoring corruptly to in?uence an of?cer of the court or the due administration of justice. 130. Defendants obstructed justice by corruptly making efforts to in?uence District Directors, and Administrative Law Judges to deny benefits to coal miners who had legally suf?cient signs and of Black Lung Disease that would have entitled those miners to federal bene?ts. 131. Defendants are also in violation of RICO by refusing to apply the ILO classi?cation system as the rules and regulations require, and as required by the B- reader code of ethics when assessing Black Lung Bene?ts under the BLBA. 132. As a result of these acts in violation of 18 U.S.C. 1961 and 1962. Plaintiffs were wrongfully denied federal bene?ts which were legally earned. 133. Plaintiffs, therefore, bring this action pursuant to 18 U.S.C. 1964 for themselves and for the Class. 134. Plaintiffs rely upon the doctrines of actual and apparent agency, and res ipsa loquitur where appropriate. 135. WHEREFORE, Plaintiffs seek all damages allowable by law, including all economic damages lost for Plaintiffs and members of the Class, treble damages, attorneys? fees, and costs in an amount that exceeds $75,000 in the aggregate. 26 NEGLIGENT MISREPRESENTATION Count IV 136. Each of the preceding paragraphs is incorporated by reference herein. 137. Defendants at all times had actual knowledge that Plaintiffs and the ?nders of fact within the BLBA system would rely upon the opinions and statements that Defendants were offering. Therefore, Plaintiffs were foreseeable parties to Defendants, and Defendants owed a duty of care to Plaintiffs and Defendants. 138. Defendants negligently asserted false statements to Plaintiffs and to the ?nders of fact. 139. At all times, Defendants intended that their statements be acted upon both by Plaintiffs and by the finders of fact. 140. Defendants intended for Plaintiffs to believe that they did not have compensable Black Lung Disease and to stop seeking earned bene?ts. 141. Defendants also intended for the ?nders of fact to determine that Plaintiffs did not have Black Lung Disease and that bene?ts were not earned. 142. Defendants knew at all times that Plaintiffs and members of the Class would rely upon the statements, and that erroneous statements would cause loss to Plaintiffs and members of the Class. 143. Plaintiffs. members of the Class, and the ?nders of fact all justi?ably relied upon the statements of Defendants, believing the law was being followed and that Defendants were in conformance with the ILO classi?cation system. 27 144. Plaintiffs and members of the Class suffered compensable loss in the form of a complete or partial denial of benefits which can be quantified based upon the length of time in which bene?ts were not awarded. 145. Plaintiffs rely upon the doctrines of actual and apparent agency, and res ipsa loquitur where appropriate. 146. WHEREFORE, Plaintiffs seek all damages allowable by law, including all economic damages lost for Plaintiffs and members of the Class in an amount that exceeds $75,000 in the aggregate. UNJUST ENRICHMENT Count 147. Each of the preceding paragraphs is incorporated by reference herein. 148. Defendants were conferred with bene?ts in the form of money paid by Plaintiffs and the Class Members' employers to review their chest x?rays. 149. Defendants had an appreciation and a knowledge of the money they were being paid to perform these exams. 150. Further, Defendants had an appreciation and a knowledge that they were being asked to review Plaintiffs' and the Class Members? chest x-rays for the purpose of disputing that bene?ts were owed to Plaintiffs. 151. Defendants have accepted and retained these bene?ts under such circumstances as would make it inequitable for Defendants to do so. 152. Plaintiffs rely upon the doctrines of actual and apparent agency, and res ipsa loquitur where appropriate. 28 153. WHEREFORE, Plaintiffs individually and on behalf of the Class ask this Court to exercise its powers in equity and to order restitution of all funds received by Defendants for reading and interpreting chest x-rays as part of the BLBA. and to return those funds to Plaintiffs and members of the Class who have been defrauded and denied bene?ts in an amount in excess of $75,000 in the aggregate. PRAYER FOR RELIEF 154. WHEREFORE, Plaintiffs as individual Personal Representatives and Administrators of their respective Estates seek the following relief on behalf of themselves and the Class they seek to represent: a. An order certifying the class Plaintiffs seek to represent pursuant to Md. R. Civ. P. 2-231 and appointing Plaintiffs as class representative and their attorneys as Class Counsel; b. Judgment in favor of Plaintiffs and the Class on all issues raised herein; c. Damages as allowable by law in excess of $75,000 including all compensatory damages, punitive damages, attorneys? fees, treble damages, interest and costs; d. Compelling Defendants to establish a program or fund to reimburse Plaintiffs and members of the Class all Black Lung Bene?ts lost due to denials or delays caused by Defendants? actions; e. All other relief that this Court deems fair and just. 29 Date: October 28, 2016 Respectfully submitted, NIDEL PLLC . ace, Esq. stopher T. Nidel, Esq. To be Admitted Pro Hac Vice 1615 New Hampshire Ave, NW Washington, DC 20009 (P) 202-558-2030 (F) 301-963-8135 jon@nidellaw.com DEMAND FOR JURY TRIAL Plaintiffs respectfully request trial by jury on all issues raised herein. Jg?than B. Nace, Esq. RULE 1-313 CERTIFICATE This is to certify that I am an attorney licensed to practice in the State of Maryland with an of?ce in the District of Columbia. lon?han B. Nace. Esq. 3O