IN THE CIRCUIT COURT OF RALEIGH COUNTY, WEST VIRGINIA NORMAN DALE ELLER, Plainti?; v. CIVIL ACTION Nag" 33> JACKSON KELLY PLLC, RUNDLE RUNDLE, LC, S.F. RAYMOND SMITH, AND JONI COOPER RUNDLE, Defendants. ?55 COMPLAINT ES C1 US) Cl INTRODUCTION E: a Si. i: r: 1. Plamtl?? brings this case against defendant Jackson Kelly PLLC (?Ja KeHy? ?3 CT fraudulent misrepresentation in its representation of coal companies in the black ung claims of Norman Dale Eller Plaintiff requests damages for fraudulent misrepresentatlon and addition, declaratory and injunctive relief against Jackson Kelly 2. Plaintiff states that this case involves misconduct by attorneys at Jackson Kelly who represent coal companies in black lung claims. Plaintiff does not contend nor have reason to heheve that the conduct upon which this Complaint is based is indicative of the ?rm as a whole or of those outside its federal black lung attorneys 3. Plaintiff Eller also brings claims against S.F. Raymond Smith, Joni Cooper Rundle and Rundle Rundle, LC, for tailing to represent him in his federal black lung claim consmtent With the applicable standard of care. 4. Tim case IS ?led two years of the date when the plaintiff knew or should have known of the claims alleged herein. PARTIES 5. Plaintiff Norman Dale Eller is a retired coal miner who worked in the coal mines of West Virginia for over thirty-nine (39) years. 6. Plaintiff also brings this case on behalf of others similarly situated, seeking declaratory and injunctive relief requiring Jackson Kelly to disclose those cases in which it has engaged in the fraudulent misrepresentations described in this Complaint, to declare that Jackson Kelly?s practices, as set forth in the Complaint and as proven at trial, are contrary to law, and to order Jackson Kelly to cease and desist ?'om those practices in the ?Jture. 7. Defendant Jackson Kelly is a West Virginia Professional Limited Liability Company with its principal o?ices in Charleston, West Virginia. For many years, its attorneys have been representing coal companies in federal black lung claims. The attorneys who have been involved in this practice in West Virginia have primarily worked out of Jackson Kelly?s Charleston of?ce and Morgantown of?ce. 8. Defendant S.F. Raymond Smith is an attorney licensed to practice law in West Virginia and is currently practicing in Pineville, West Virginia. At all times relevant herein, defendant Smith was an employee of defendant Rundle Rundle. At all times relevant herein, Smith held himselfout as an attorney competent to represent miners and their families in federal black lung claims. 9. Defendant Joni Cooper Rundle is an attorney licensed to practice law in West Virginia and is currently practicing in Pineville, West Virginia. At all times relevant herein, Ms. Rundle?s ?rm held itself out as competent to represent miners and their families in federal black lung claims. IO. Defendant Rundle Rundle was, at all times relevant herein, a West Virginia law ?rm with o?ices in Pineville, West Virginia. At all times relevant herein, the ?rm held itselfout as a ?rm competent to represent miners and their families in federal black lung claims. BLACK LUNG BENEFITS . The Black Lung Bene?ts Act is designed ?to ensure that in the ?iture 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. 901. 12. The Act recognized that coal miners were exposed to coal dust that caused an occupational disease known as Coal Workers Pneumoconiosis or, more commonly, black lung. 13. CWP is a disease of the lungs caused by exposure to coal dust. Those af?icted with CWP suffer from a progressive lung disease that can and does permanently disable coal miners. Although it was once thought that the disease would be prevented by the control of coal dust in the mines, there is reason to believe that the incidence of the disease has increased in recent years. 14. Under the Act, a coal miner such as plaintiff Eller can qualify for bene?ts if he has pneumoconiosis arising out of coal mine employment and a pulmonary disability substantially caused by pneumoconiosis that would prevent him ?'om performing his usual coal mine work or comparable work. There is an irrebuttable presumption of disability due to pneumoconiosis if the miner can establish that he was employed for ten (10) or more years in the nation?s coal mines, that he is suffering from a chronic disease of the lung, and that there is evidence that he has one or more large opacities in his lungs that are classi?ed as category A, or in the International Classi?cation of Radiographs of the Pneumocom'oses by the International Labor Organization. These large opacities are known as complicated coal workers pneumoconiosis (?complicated 15. Thus, in many cases, the di?'erence between winning and losing a case may turn on the decision of an administrative law judge as to whether the coal miner has or does not have complicated CWP. THE CONDUCT OF JACKSON KELLY 16. In developing evidence in the black lung cases, Jackson Kelly attorneys have knowingly submitted evidence that misrepresents the facts, including, in some cases, the opinions of their experts, to the ALJs who hear black lung claims. 17. The pattern and practice of Jackson Kelly?s conduct in these cases demonstrates that the conduct is neither accidental nor negligent and that Jackson Kelly attorneys have knowingly misrepresented evidence to the ALJs who decide their cases as well as to the claimants. 18. aekson Kelly attorneys have also knowingly misrepresented the evidence to their own experts who then rely on those misrepresentations when they opine in reports and/or testimony presented by Jackson Kelly to the ALJ that the claimant does not have CWP or complicated CWP. 19. Although it misled some of its experts, on information and belief, other experts supported and participated in Jackson Kelly?s presentation of evidence that misrepresented the facts. 20. Jackson Kelly has been able to engage in this conduct because, in most cases, its attorneys are not required to disclose all of the evidence they have developed in the defense of the case. As a result, neither the claimant nor the public ever learn about Jackson Kelly?s conduct. 21. As diSCussed below, this conduct breaches Jackson Kelly?s legal and ethical duties to both the claimant and to the ALJ. 22. Plaintiff is aware of this misconduct because, in cases, ALIS have required Jackson Kelly attorneys to turn over documents that disclosed the Jackson Kelly misconduct described in this Complaint. 23. Examples of Jackson Kelly?s misconduct include, but are not limited to: a. Submitting x?ray andfor CT scan reports that misrepresent the opinions of its own experts. For example, Jackson Kelly has relied upon the opinions of Dr. Harold Spitz, a radiologist who offers his opinion as to the presence or absence of CWP on x?rays and CT scans. In one black lung case (Carrot! v. Wesonoreland Coal Company (Case No. Jackson Kelly: i. Sent Dr. Spitz an x-ray dated December 30, 1999, as part of a series of ?ve (5) x?rays taken over a period of three years. Dr. Spitz read the x?ray dated December 30, 1999, and the series of x?rays as consistent with complicated CWP. This was a particularly persuasive conclusion because, as Jackson Kelly knows, reviewmg a series of x?rays permits the reader to better evaluate the presence of disease. Jackson Kelbi, however, did not disclose this conclusion by Dr. Spitz. Sent Dr. Spitz the same x?ray dated December 30, 1999, nearly two and a half years later. This time the x?ray was sent alone and Dr. Spitz read it without the series that had previously been available to him. This time, his reading of the x?ray was simple CWP m'th coalescence instead of complicated CWP. Jackson Kelly submitted this second reading of the x-ray to the and also to another expert 5 iv. vi. who reviewed the medical evidence in order to render a medical opinion in the case, but Jackson Kelly withheld Dr. Spitz?s prior opinion that this x-ray and the series of x-rays were consistent with complicated CWP. Thus, anyone reviewing the Jackson Kelly submissions would conclude that Dr. Spitz did not believe the claimant had complicated CWP. Only Jackson Kelly knew, and did not disclose, the fact that Dr. Spitz also had read the same x-ray and the series of?ve x?rays as consistent with complicated CWT. Sending Dr. Spitz the single x-ray ?lm again after he already had read the ?lm in conjunction with four other x?rays as being consistent with complicated CWP and then submitting his second reading because it was favorable to Jackson Kelly?s client without disclosing his prior readings is a signi?cant misrepresentation of Dr. Spitz?s opinion. This is particularly true because, as Jackson Kelly attorneys know and understand, a review of a series of x?rays permits the reader to better evaluate the presence of disease. Moreover, Jackson Kelly also failed to disclose an earlier x?ray interpretation by Dr. Spitz which also con?rmed complicated CWP. This conduct not only misleads the ALJ but also in?uences the opinions of some of Jackson Kelly?s experts who review the medical evidence in order to provide what is supposed to be a well?informed, rather than a misinformed, medical opinion. Those expert medical opinions, which Jackson Kelly knows 6 are based on a misrepresentation of the scope of the available evidence, are presented to the ALJ as evidence in the case. For example, in Harris v. Westmoreland Coal Company (Case No. 98-BLA-0188), Jackson Kelly submitted x-ray readings by Dr. Jerome Wiot, whom the ALJ described as the ?preeminent radiologist in the country? in regard to interpreting x-rays for pneumoconiosis. Dr. Wiot had read x?rays in the case and said they revealed simple CWP with coalescence but testi?ed that it was a ?close call" between coalescence and complicated CWP. When asked by Jackson Kelly?s attorney if there were any other studies that could determine whether the pulmonary changes ?are or are not? complicated CWP, Dr. Wiot saidscan of the upper lung ?elds in this individual would either prove that these are or are not large opacities.? However, Jackson Kelly did not disclose Dr. Wiot?s subsequent interpretation of a CT scan. Nor did it disclose the fact that, based on the CT scan which is more reliable than the x-ray Dr. Wiot opined that the CT scan was compatible with ?complicated coal worker?s pneumoconiosis.? As in Carroll, the ALJ and the pulmono logy experts hired by Jackson Kelly to review the medical record and to provide an informed medical opinion considered Dr. Wiot's x-ray readings, which did not support a ?nding of complicated CWP, but did not know that Dr. Wiot had changed his opinion after reading the CT scan. Jackson Kelly?s attitude toward this kind of misrepresentation of the evidence to some of its own experts is evident in the attempt of one of its attorneys to explain its behavior to an ALJ during a hearing in the case of Daugherty v. 7 Westmoreland Coat Co. (Case No. 2001-BLA-594). In that case, Jackson Kelly provided its expert Dr. David Rosenberg with Dr. Wiot?s opinion regarding a September 10, 2000 x?ray, but did not provide Dr. Rosenberg with Dr. Wiot?s more recent reading of a CT scan. Although Dr. Wiot?s later opinion found rather than CWP, he also stated that there were ??broidic [sic] masses within the upper lung ?elds, which are symmetricai and would be consistent with larger apacities as seen in Coal Worker ?5 Pneumoconiosis. (Emphasis added). When asked by the ALJ why Jackson Kelly had sent one of Dr. Wiot?s opinions to its expert but did not disclose Dr. Wiot?s other opinion, the Jackson Kelly attorney replied he did not want to con?ise either the record or his expert. A [Jackson Kelly attorney] So the decision was made, rather than complicate the record or con?ise the record with Dr. Wiot? 5 report - - Q. So you made the decision that you didn?t want to confuse Dr. Rosenberg, and that? 5 why you didn't turn over that CT can to him. A. [Jackson Kelly attorney] Sure. Transcript of December 16, 2004 hearing in Daugherty, pp. 36-37. This cherry-picking of the evidence provided to the ALJ and to the expert inevitably misrepresents the evidence to the and taints the Opinion of the Jackson Kelly experts. Jackson Kelly, to this day, claims the right to provide the and the claimant with incomplete medical reports that mislead the reader because the missing pages reveal conclusions that are ?vorable to the claimant. For 8 example, in Caldera? v. Haber Mining Inc, Jackson Kelly submitted the ?report of Dr. George L. Zaldivar dated March 2, 1994,? but that ?report? only included his History Physical and test results. Jackson Kelly withheld Dr. Zaldivar?s narrative report concluding that Mr. Caldwell had complicated CWP. More recently, Jackson Kelly engaged in similar misconduct in the case of Daugherty v. Westmoreland Coal Company (Case No. 2001-BLA-594). Jackson Kelly has also engaged in a practice of skewing the evidence by, for example, presenting reports that it knows are not an accurate representation of the evidence that they have obtained from their experts. For example, in Fox v. Eik Run Coa! Co. (Case Nos. 2007-BLA-S984 and 2000-BLA-0598), Jackson Kelly?s own experts reviewed pathology slides and concluded that the slides contained evidence of complicated pneumoconiosis or that the mass had ?at least a partial silicotic origin? Jackson Kelly, however, did not seek additional reports from other pathologists to see if the ?rst two experts they had hired were wrong. Instead, realizing that the pathology slides demonstrated evidence of complicated CWP, it proceeded to defend the case by relying on the original hospital report and x?ray readings that its attorneys knew were not reliable but contained opinions more favorable to Jackson Kelly?s client. In depositions of its experts submitted to the ALJ in the Fox case, Jackson Kelly directly solicited testimony to the effect that the pathology evidence ruled out CWP, even though it knew that the testimony was neither accurate nor true. For example, a deposition of Jackson Kelly?s reviewing 9 pulmonologist who had not been given the ?ndings of Jackson Kelly?s two expert pathologists included the fbllowing testimony: Q. [Jackson Kelly attorney] Do you think that [the DOL examiner who diagnosed complicated would have been aided by having all of the biopsy medical evidence at his hand when he reviewed this case? A. [Jackson Kelly expert] I think that he would have, and I would certainly hope so, because all of the evidence, as I?ve outlined, certainly indicates that this is not complicated disease. I believe the examiner] would have reviewed that data and come to the same conclusions that this is not complicated pneumoconiosis. Thus, Jackson Kelly used this pulmonologist to discredit the DOL examiner for not reviewing ?all? of the pathology evidence when the pulmonologist, himself; had not reviewed the most probative pathology evidence, 126., the expert opinions of two reviewing pathologists, because Jackson Kelly knowingly did not provide this information to its own experts. Tint deposition testimony, in Fox, also included the following evidence: Q. [Jackson Kelly attorney] Does knowledge of the pathology results also call into doubt any classi?cation of this as a complicated pneumoconiosis or massive lesions consistent with exposure to coal mine dust? A. [Jackson Kelly expert] Yes. The large opacities would be a series of small nodules merged together which would be quite typical on an X-ray - - on a pathology slide, so it didn?t have the whirled or the small nodular appearance of pneumoconiosis, otherwise they would have reported that. So it?s neither on, in my opinion, on the X-ray due to the fact there were no background nodules, nor on the pathology slides, the fact that they didn?t have the coalescent nodules, in no way is this pneumoconiosis. Emphasis added. Again, the expert was relying on a pathology report that Jackson Kelly knew was not reliable. In ruling against Mr. Fox, the ALJ discussed and relied 10 upon the importance of the pathology evidence that failed to diagnose black lung. Although Jackson Kelly attorneys asked their expert pulmonologists and the ALJ to rely on the hospital pathology report, those Jackson Kelly attorneys knew, at all times relevant herein, that the pathology report was not accurate, that the lung tissue upon which that report was based demonstrated that Mr. Fox had complicated CWP and that, as a result, Mr. Fox was suffering from a progressive pulmonary disease that was caused by his coal mining employment and that quali?ed him for black lung bene?ts. 24. Jackson Kelly has been able to engage in this conduct because the disclosure of the medical evidence it deveIOps is often not requested by claimants or required by ALJs, so the claimants and the ALJs usually do not realize that the evidence proffered in a case may misrepresent the facts as known to Jackson Kelly. 25. In some of those cases, where an ALJ does direct Jackson Kelly to disclose such evidence, Jackson Kelly, on behalfof its clients, has agreed to accept liability for the claim rather than to reveal the additional undisclosed evidence. Examples of cases in which Jackson Kelly?s client accepted liability without or prior to complying with an order to compel discovery include Fox v. 1k Run Coal C0. (Case No. 2007-BLA-0598), Caia?well v. HobetMiningInc. (Case No. DeShazo v. Consoiidation Coal Co. (Case No. 03-BLA-5626), Han-is v. Westmoreland Coal Co. (Case No. and Carrol! v. Wesnnoreland Coal Co. (Case No. (where the motion to compel discovery was pending). 26. Plaintiff is well aware of the fact that attorneys are normally not required to disclose consulting experts whose opinions are contrary to the experts they chose to rely upon in their case. However, the conduct of Jackson Kelly in its black lung representation involves knowing misrepresentation of the facts, not a choice between the subjective opinions of competing experts. ll 27. Plaintiff also recognizes that the negligent misrepresentation of evidence to a judicial or quasi-judicial of?cial is not actionable by an opposing party. However, the conduct outlined above and discussed in ?irther detail below goes beyond the acceptable scope of attorney behavior and includes the knowing and intentional manipulation of evidence and the ?'audulent misrepresentation of facts and opinions to Jackson Kelly?s own experts, to the claimants Jackson Kelly opposes, and to the ALJs who decide the black lung cases. 28. 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 which is unrelated to legitimate litigation tactics and which harmed plaintiff Eller and other black lung claimants opposing it. 29. Jackson Kelly?s misconduct will continue to harm miners who are disabled by black lung if allowed to continue. THE BLACK LUNG CLAIMS OF NORMAN DALE ELLER 30. Plaintiff 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 su??ering ?om a chronic disease of the lung. 30 U.S.C. 921. Thus, the issue in plainti??Eller?s claim was whether he had radiographic evidence of one or more large opacities in his lungs that would be classi?ed as category A, B, or or whether his totally disabling pulmonary impairment was due to simple CWP. 31. Plaintiff Eller retained defendants Smith, Rundle, and Rundle Rundle to represent him in his claim and reasonably relied upon them to provide representation to him in his black lung claim. 32. At all times relevant herein, Jackson Kelly represented Elk Run Coal Company in opposing plainti??Eller?s black lung claim 12 33. Early in the development of its case against plaintiff Eller, one or more of the Jackson Kelly attorneys obtained a copy of a CT scan performed on December 13, 2001, at Beckley-ARH Hospital 34. The Jackson Kelly attorneys knew that a CT scan is a reliable test for diagnosing complicated CWP and that it is more reliable in the diagnosis of complicated CWP than a chest x-ray. 35. On or before June 28, 2002, one or more of the Jackson Kelly attorneys working on plaintiff Eller?s case obtained the December 13, 2001 CT ?lms and asked an expert radiologist, Dr. Jerome Wiot, to review the ?lms. In a letter dated June 23, 2002, Dr. Wiot advised Jackson Kelly that the ?lms were incomplete and that the lung windows, which could demonstrate whether or not Mr. Eller had CWP, were not included. 36. The attorneys from Jackson Kelly knew that the December 13, 2001 CT ?lms in their possession did not include the necessary images because, on June 28, 2002, their expert radiologist, Dr. Wiot, advised them that the CT was ?an incomplete CT in that only a few lung windows are included.? Dr. Wiot also told the Jackson Kelly attorneys that: a. ?The apices of the lungs are not included in the study.? b. ?Based on this single study, coal worker?s pneumoconiosis cannot be excluded.? c. ?In summary, this study is incomplete. Therefore, evaluation for the presence or absence ofpneumoconiosis cannot be made. 37. Dr. Wiot?s statements were not subjective interpretations of the scans; they were objective factual statements to the e?'ect that the December 2001 CT scan in the possession of Jackson Kelly attorneys did not include the images necessary to either diagnose or rule out CWP. The CT lung windows, 128., the portion of the scan that included images of plaintiff Eller?s lungs most 13 likely to demonstrate the existence or non-existence of large opacities, had not been forwarded to Dr. Wiot and, as a result, Dr. Wiot could not rule out CWP. This was critically important because, as Jackson Kelly attorneys knew and understood from the testimony of experts whom they had retained on many occasions, a CT scan is more reliable than a chest x-ray in diagnosing complicated CWP. 38. On information and belief, Jackson Kelly did not request the complete CT scans from Beckley-ARH Hospital. Instead, Jackson Kelly continued to send the incomplete CT ?lms to two other radiologists for interpretation. 39. Although Jackson Kelly attorneys introduced a variety of evidence against plaintiff Eller, they never introduced Dr. Wiot?s statement regarding the CT scan. Nor, on information and belief, did the Jackson Kelly attorneys obtain the missing lung windows or provide their experts with another, complete CT scan that was available and that supported Mr. Eller?s claim 40. Jackson Kelly attorneys, knowing that the CT scan was not competent evidence, proceeded to send the incomplete CT scan to two of their other expert radiologists, Dr. Paul Wheeler and Dr. William Scott, both of whom concluded that the CT scan showed no pneumoconiosis. Although both experts also noted that the CT scans were incomplete, neither clearly stated that ?Therefore, evaluation for the presence or absence of pneumoconiosis cannot be made,? as had Dr. Wiot. 41. Jackson Kelly attorneys then submitted the two interpretations of the CT scan by Dr. Wheeler and Dr. Scott to the ALJ even though they knew from Dr. Wiot?s report that the ?lms were not just incomplete, but that the CT scan could not be used to diagnose or rule out CWP. 42. Jackson Kelly did not introduce Dr. Wiot?s conclusions about the CT scan into evidence, and therefore, it did not disclose to the Administrative Law Judge the fact that the 14 CT scan was not just incomplete, it was irrelevant to the determination of whether Mr. Eller had complicated CWP. 43. Instead, Jackson Kelly presented the ALJ with the transcripts of two depositions of expert pulmonologists, Dr. Zaldivar and Dr. Crisalli. During those depositions, Jackson Kelly attorneys elicited opinions based on interpretations of the December 13, 2001 CT scan by Drs. Wheeler and Scott, but not Dr. Wiot. For example, in the deposition of Dr. Zaldivar, one of Jackson Kelly?s attorneys asked: Q. [Jackson Kelly Attorney] In your discussion of the x-ray?s appearance, to what are you A. [Dr. Zaldivar] I ?m referring to my own x-ray interpretation, the written . report ?'om Dr. Crisalli, and the CT scan that you gave me this morning that had been interpreted by Dr. Scott. The CT scan was done in 2001. There is no mention of any nodules that could represent retention of dust. 44. The entirety of Dr. Scott?s report stated: No evidence of silicosistWP Limited images at lung windows. 45. Thus, Dr. Zaldivar relied on Dr. Scott?s report and gave no indication that he realized ?om Dr. Scott?s reference to ?Limited images at lung windows? what Dr. Wiot plainly stated, ?Therefore, evaluation for the presence or absence of pneumoconiosis cannot be made.? 46. Moreover, by providing the report to Dr. Zaldivar the morning of the deposition and by failing to explain that the images were inadequate to diagnose complicated CWP, Jackson Kelly encouraged Dr. Zaldivar to accept that the CT scan had some diagnostic value and supported a ?nding of no CWP when Jackson Kelly knew that it did not. 47. Jackson Kelly conducted the deposition of Dr. Crisalli in a similar manner: 15 Q. [Jackson Kelly Attorney] And among the readings that we?ve discussed today, do you see a correlation or a pattern? A. [Dr. Crisalli] I see a very strong correlation between the reading of Dr. and the CT scan interpretation by Dr. Wheeler. . .and that correlation is that there?s no evidence of CWP. 48. Knowing that this CT scan could not be used to rule out pneumoconiosis, Jackson Kelly nonetheless stated in its closing argument to the ALJ: a. Both readings of a CT scan dated December 13, 2001, are negative for pneurnoconiosis. b. Dr. Zaldivar . . . provided an in-depth and insight?il discussion of the x-ray and CT scan evidence. c. Clearly, Dr. Zaldivar has obtained a complete picture of the miner?s radiographic, CT scan, and clinical status. 49. The ALJ who issued a Decision and Order denying bene?ts to Mr. Eller understood that the CT evidence was not totally reliable, but he did not understand the ?il] extent of Jackson Kelly's misuse of that evidence. 50. 0f greater importance, the ALJ relied upon Dr. Zaldivar?s and Dr. Crisalli?s assessment of the medical evidence. Their assessments of the evidence, as presented in their deposition testimony were, however, tainted by their reliance on the CT scan evidence provided to them by Jackson Kelly. 51. During the course of this case, there was additional CT scan evidence available that supported a diagnosis of CWP or complicated CWP and would have resulted in a decision by the ALJ that awarded black lung bene?ts to Mr. Eller. 16 52. On information and believe, Jackson Kelly was well aware that the additional CT scan evidence existed when it pro??ered the misleading CT scan evidence and tainted expert opinions to the ALJ. 53. During this time, defendants Smith, Rundle, and Rundle Rundle failed to meet the standard of care applicable to attorneys representing claimants in black lung, and the denial ofbene?ts was af?rmed on appeal. 54. In March 2006, Mr. Eller reapplied for bene?ts and obtained legal representation ?'om another attorney. 55. On January 29, 2007, Mr. Eller?s new attorney served Jackson Kelly with interrogatories asking, in pertinent part, if the employer was in possession of any interpretations of chest x-rays or chest CT scans, including re-readings, that were generated on behalfof the employer but had not been exchanged with the claimant. 56. Jackson Kelly did not respond to the claimant?s interrogatories until May 15, 2007, fourteen (14) days after the ALJ hearing, and then disclosed for the ?rst time Dr. Wiot?s interpretation of the December 2001 CT scan. However, Jackson Kelly still maintained that other medical opinions obtained from experts not expected to ?testify? were privileged information and not subject to discovery. 57. On May 16, 2007, Mr. Eller?s attorney received Jackson Kelly?s response to claimant ?s interrogatories and ?rst learned that Jackson Kelly knew for a fact the December 2001 CT scan that it submitted to its experts to rely upon in the prior claim was not relevant to the diagnosis of CWP and that Jackson Kelly had nonetheless continued to rely on that CT scan as discussed above. 17 58. On March 21, 2007, Mr. Eller?s new attorney submitted treatment records, including interpretations of CT scans, and developed other medical evidence that supported a ?nding of CWP and complicated CWP. On information and belief, Jackson Kelly knew about some this evidence at the time that it was misrepresenting the December 2001 CT scan in Mr Eller?s prior claim 5 9. On December 20, 2007, Mr. Eller was awarded bene?ts by the ALJ in his subsequent claim 60. The evidence discussed elsewhere in this Complaint demonstrates that Jackson Kelly?s conduct is neither negligent nor accidental; it is the result of a practice of manipulation of the evidence that in this and other cases results in misrepresentations to its own experts and to the ALJs who decide these cases. FIRST CAUSE OF ACTION (Fraudulent Misrepresentation Against Jackson Kelly) 61. The conduct of Jackson Kelly as alleged in this Complaint constitutes ?'audulent misrepresentation. 62. The conduct was knowing, intentional, substantial, outrageous and reprehensible, and outside the bounds ofpennissible conduct. 63. Further, the conduct was undertaken with the intension of depriving the plaintiff of bene?ts due to him. 64. As a direct and proximate result of the conduct of Jackson Kelly, the plaintiff lost his initial black lung claim. 65. Plaintiff can prove all elements of his claims by clear and convincing evidence. 13 66. As a direct and proximate result of the conduct of Jackson Kelly, the plaintiff is entitled to damages for his economic loss and to punitive damages in an amount to be determined by a jury. 67. Plainti?E?er is further entitled to recover damages for the emotional distress that was proximately caused by Jackson Kelly?s misconduct. 68. The plainti?" is also entitled to attorney fees and costs as defendants acted in bad faith, vexatiously, wantorily, or for oppressive reasons. SECOND CAUSE OF ACTION (Legal Malpractice Against Smith, Rundle, and Rundle Rundle) 69. Defendant Smith failed to meet the standard of care applicable to attorneys representing claimants in black lung cases when he represented plainti?? Eller in Mr. Eller?s initial black lung claim. 70. Defendants Rundle and Rundle Rundle knew or should have known that defendant Smith?s representation of claimants in black lung claims, such as that of Mr. Eller, failed to meet the applicable standard of care and taken steps to insure proper representation of their client. 71. As a direct and proximate result of the failure of these defendants to meet the standard of care with regard to their representation of plaintiff Eller, plainti??Eller is entitled to his economic damages in tort and/or contract. 72. As a direct and proximate result of the failure of these defendants to meet the standard of care with regard to their representation of plaintiff Eller, plainti?" Eller is also entitled to damages for emotional distress in his claim for legal negligence. PRAYER FOR RELIEF WHEREFORE, plaintiff moves this Court for relief as follows: 19 1. Damages as prayed for in this Complaint; 2. Declaratory relief declaring that the conduct of Jackson Kelly is unlaw?il; 3. Injunctive relief prohibiting Jackson Kelly from engaging in similar conduct in the ?rture; and 4. Such other and further relief as this Court may ?nd just and equitable. DEMAND FOR TRIAL BY JURY Plaintiff demands a jury trial on all issues triable to a jury. PLAINTIFF, BY COUNSEL. a mm c. CLINE, wv BAR 9309 PO BOX 47 PINEY VIEW, wv 25906 304-252-8466 ALLAN N. KARLIN, WV BAR 1953 JANE E. PEAK, WV BAR 7213 SARAH E. WAGNER, WV BAR 10239 ALLAN N. KARLIN ASSOCIATES 174 CHANCERY ROW MORGANT OWN, WV 26505 304-296-8266 20