“I’ll see,” Samantha said, as Mattie went to find her shoes.
It was the Ryzers, Buddy and Mavis, from deep in the woods, Samantha surmised after a quick introduction and once-over. Their paperwork filled two canvas shopping bags, with matching stains. Mavis said, “We got to have a lawyer.”
Buddy said, “Nobody’ll take my case.”
“What is it?” Samantha asked.
“Black lung,” he replied.
In the conference room, Samantha ignored the shopping bags as she took down the basics. Buddy was forty-one, and for the past twenty years had worked as a surface miner (not a strip miner) for Lonerock Coal, the third-largest producer in the U.S. He was currently earning $22 an hour operating a track shovel at the Murray Gap Mine in Mingo County, West Virginia. His breathing was labored as he spoke, and at times Mavis took over. Three children, all teenagers “still in school.” A house and a mortgage. He was suffering from black lung caused by the coal dust he inhaled during his twelve-hour shifts.
Mattie finally found her shoes and entered the room. She introduced herself to the Ryzers, took a hard look at the shopping bags, sat down next to Samantha, and began taking her own notes. At one point she said, “We’re seeing more and more surface miners with black lung, not sure why but one theory is that you guys are working longer shifts, thus you inhale more of the dust.”
“He’s had it for a long time,” Mavis said. “Just gets worse every month.”
“But I gotta keep working,” Buddy said. About twelve years earlier, somewhere around 1996, they weren’t sure, he began noticing a shortness of breath and a nagging cough. He’d never smoked and had always been healthy and active. He was playing T-ball with the kids one Sunday when his breathing became so labored he thought he was having a heart attack. That was the first time he mentioned anything to Mavis. The coughing continued and during one fit of wheezing he noticed black mucus on the tissues he was using. He was reluctant to seek benefits for his condition because he feared retaliation from Lonerock, so he kept working and said nothing. Finally, in 1999, he filed a claim under the federal black lung law. He was examined by a doctor certified by the Department of Labor. His condition was the most severe form of black lung disease, more formally known as “complicated coal workers’ pneumoconiosis.” The government ordered Lonerock to begin paying him monthly benefits of $939. He continued working and his condition continued to deteriorate.
As always, Lonerock Coal appealed the order and refused to begin payments.
Mattie, who’d dealt with black lung for fifty years, scribbled away and shook her head. She could write this story in her sleep.
Samantha said, “They appealed?” The case seemed clear-cut.
“They always appeal,” Mattie said. “And about that time you folks met the nice boys at Casper Slate, right?”
Both heads dropped at the very sound of the name. Mattie looked at Samantha and said, “Casper Slate is a gang of thugs who wear expensive suits and hide behind the facade of a law firm, headquarters in Lexington and offices throughout Appalachia. Wherever you find a coal company, you’ll find Casper Slate doing its dirty work. They defend companies who dump chemicals in rivers, pollute the oceans, hide toxic waste, violate clean air standards, discriminate against employees, rig government bids, you name the sleazy or illegal behavior and Casper Slate is there to defend it. Their specialty, though, is mining law. The firm was built here in the coalfields a hundred years ago, and almost every major operator has it on retainer. Their methods are ruthless and unethical. Their nickname is Castrate, and it’s fitting.”
Buddy couldn’t help but mumble, “Sons of bitches.” He didn’t have a lawyer; thus, he and Mavis were forced to battle it out with a horde from Casper Slate, lawyers who had mastered the procedures and knew precisely how to manipulate the federal black lung system. Buddy was examined by their doctors—the same doctors whose research was being funded by the coal industry—and their report found no evidence of black lung. His medical condition was blamed on some benign spot on his left lung. Two years after he applied for benefits, his award was reversed by an administrative law judge who relied on the reams of medical evidence submitted by Lonerock’s doctors.
Mattie said, “Their lawyers exploit the weaknesses in the system, and their doctors search for ways to blame the condition on anything but black lung. It’s no surprise that only about 5 percent of the miners who have black lung get any benefits. So many legitimate claims are denied, and many miners are too discouraged to pursue their claims.”
It was after 6:00 p.m. and the meeting could last for hours. Mattie took charge by saying, “Look folks, we’ll read through your materials here and review your case. Give us a couple of days and we’ll call you. Please don’t call us. We will not forget about you, but it’ll just take some time to plow through all this. Deal?”
Buddy and Mavis smiled and offered polite thanks. She said, “We’ve tried lawyers everywhere, but nobody’ll help us.”
Buddy said, “We’re just glad you let us in the door.”
Mattie followed them to the front, with Buddy gasping for air and tottering like a ninety-year-old. When they were gone, she returned to the conference room and sat across from Samantha. After a few seconds she said, “What do you think?”
“A lot. He’s forty-one and looks sixty. It’s hard to believe he’s still working.”
“They’ll fire him soon, claim he’s a danger, which is probably true. Lonerock Coal busted its unions twenty years ago, so there’s no protection. He’ll be out of work and out of luck. And he’ll die a horrible death. I watched my father shrink and shrivel and gasp until the end.”
“And that’s why you do this.”
“Yes. Donovan went to law school for one reason—to fight coal companies on a bigger stage. I went to law school for one reason—to help miners and their families. We’re not winning our little wars, Samantha, the enemy is too big and powerful. The best we can hope for is to chip away, one case at a time, trying to make a difference in the lives of our clients.”
“Will you take this case?”
Mattie took a sip through a straw, shrugged, and said, “How do you say no?”
“Exactly.”
“It’s not that easy, Samantha. We can’t say yes to every black lung case. There are too many. Private lawyers won’t touch them because they don’t get paid until the very end, assuming they win. And the end is never in sight. It’s not unusual for a black lung case to drag on for ten, fifteen, even twenty years. You can’t blame a lawyer in private practice for saying no, so we get a lot of referrals. Half of my work is black lung, and if I didn’t say no occasionally, I couldn’t represent my other clients.” Another sip as Mattie eyed her closely. “Do you have any interest?”
“I don’t know. I’d like to help, but I don’t know where to start.”
“Same as your other cases, right?”
They smiled and enjoyed the moment. Mattie said, “Here’s a problem. These cases take time, years and years because the coal companies fight hard and have all the resources. Time is on their side. The miner will die eventually, and prematurely, because there’s no cure for it. Once coal dust gets in your body, there’s no way to remove or destroy it. Once black lung sets in, it gets worse and worse. The coal companies pay the actuaries and they play the odds, so the cases drag on. They make it so difficult and cumbersome it discourages not only the miner who’s sick but his friends as well. That’s one reason they fight so hard. Another reason is to frighten away the attorneys. You’ll be gone in a few months, back to New York, and when you leave you’ll leave behind some files, work that will be dumped on our desks. Think about that, Samantha. You have compassion and you show great promise for this work, but you’re only passing through. You’re a city girl, and proud of it. Nothing wrong with that. But think about your office and the day you leave it, and how much work will be left undone.”
“Good point.”
“I’m going home. I’m
tired and I think Chester said we’re having leftovers. See you in the morning.”
“Good night, Mattie.”
Long after she left, Samantha sat in the dimly lit conference room and thought about the Ryzers. Occasionally, she looked at the shopping bags filled with the sad history of their fight to collect what was due. And there she sat, a perfectly capable and licensed attorney with the brains and resources to render real assistance, to come to the aid of someone in need of representation.
What was there to fear? Why was she feeling timid?
The Brady Grill closed at eight. She was hungry and went out for a walk. She passed Donovan’s office and noticed every light was on. She wondered how the Tate trial was going but knew he was too busy to chat with her. At the café she bought a sandwich, took it back to the conference room, and carefully unloaded the Ryzers’ shopping bags.
She hadn’t pulled an all-nighter in several weeks.
19
Samantha skipped the office on Wednesday morning and left town as the school buses were making their rounds, which was not a good idea. Traffic on the twisting highway crept along, stopping and waiting while oblivious and sleep-deprived ten-year-olds, sagging under bulky backpacks, took their sweet time boarding. Across the mountain and into Kentucky, the buses disappeared and the coal trucks clogged the roads. After an hour and a half, she approached the small town of Madison, West Virginia, and stopped, as directed, at a country store under a faded Conoco sign. Buddy Ryzer was at a table in the rear, sipping coffee and reading a newspaper. He was thrilled to see Samantha and introduced her to one of his buddies as “my new lawyer.” She accepted this without comment and produced a file with authorizations allowing her to obtain all of his medical records.
In 1997, before he filed his claim against Lonerock Coal, Buddy went through a routine physical exam. An X-ray revealed a small mass on his right lung. His doctor was certain it was benign, and he was right. In a two-hour operation, he removed the mass and sent Buddy and Mavis home with the good news. Since the operation had nothing to do with his subsequent claim for black lung benefits, it was not mentioned again. Mattie felt it was imperative to gather all medical records, thus Samantha’s trip to Madison. Her destination was the hospital in Beckley, West Virginia, a town of twenty thousand.
Buddy followed her to her car, and when they were finally alone she politely informed him that they were still just investigating. No decision had been made about accepting him as a client. They would review the file, and so forth. Buddy said he certainly understood, but he was clearly on board. Telling him no would be painful.
She headed to Beckley, an hour’s drive through the heart of coal country and ground zero for mountaintop removal. There was so much dust in the air she wondered if a motorist passing through might contract black lung. Without too much trouble, she found the hospital in Beckley, and worked her way through its layers until she found the right clerk in Records. She filled out request forms, handed over authorizations signed by Mr. Ryzer, and waited. An hour passed as she e-mailed everyone she could think of. She was in a cramped, windowless room with no ventilation. Another half hour passed. A door opened, and the clerk pushed a cart through it. A small box was on the cart, and this was a relief. Maybe it wouldn’t take forever to review the records.
The clerk said, “Mr. Aaron F. Ryzer, admitted on August 15, 1997.”
“That’s it. Thank you.” The clerk left without another word. Samantha removed the first file and was soon lost in an incredibly mundane hospital stay and surgery. It appeared that the pathologist who wrote the reports was not aware the patient was a miner, nor did he look for signs of black lung. In its early stages, the disease is not readily apparent, and at that point, in August 1997, Buddy was showing symptoms but had not filed his claim. The doctor’s job had been straightforward—remove the mass, make sure it was benign, sew him up, and send him home. There was nothing remarkable about the surgery or Buddy’s stay in the hospital.
Two years later, after Buddy had filed his black lung claim, the attorneys for Casper Slate entered the picture as they were combing through his medical history. She read their initial letters to the pathologist in Beckley. They had stumbled across the 1997 surgery, where they found a collection of slides of the lung tissue. They asked the doctor to send the slides to two of the firm’s favorite experts, a Dr. Foy in Baltimore and a Dr. Aberdeen in Chicago. For some reason, Dr. Foy copied the pathologist in Beckley with a finding that the tissue revealed pneumoconiosis, or complicated black lung disease. Since the pathologist was no longer involved in Buddy’s treatment, he did nothing with this information. And because Buddy did not have a lawyer at the time, no one working on his behalf had ever reviewed the records that Samantha was now holding.
Samantha took a deep breath. She sat down with the report, and slowly walked through it again. At that moment, it looked as though Casper Slate lawyers, in early 2000, learned from at least one of their own experts that Buddy had had black lung disease since 1997, yet they fought his claim and eventually prevailed.
He did not receive benefits, but went back to the mines while Casper Slate lawyers buried their crucial evidence.
She roused the clerk, who reluctantly agreed to make a few copies, at half a dollar a page. After three hours in the bowels of the hospital, Samantha saw sunlight and made her escape. She drove around town for fifteen minutes before spotting the federal building, where, seven years earlier, Buddy Ryzer had presented his case to an administrative law judge. His only advocate had been Mavis. Across the room, they had faced a phalanx of expensive Castrate lawyers who toiled daily in the murky world of the federal black lung system.
As Samantha entered the empty lobby of the building, she was practically strip-searched by a couple of bored guards of some nameless variety. A directory by the elevators led her to a file room on the second floor. A clerk, obviously federally tenured and protected, eventually asked what she wanted. She was looking for a black lung file, she explained as politely as possible. Of course her paperwork was not in order. The clerk frowned and acted as though a crime had been committed. He produced some blank forms and rattled off instructions about how one must properly access such a file; it required two signatures from the claimant. She left with nothing but frustration.
At nine the following morning, Samantha again met Buddy at the Conoco station in Madison. He was excited to see his lawyer for the third day in a row, and introduced her to Weasel, the guy who owned the store. “All the way from New York,” Buddy said proudly, as if his case was so important heavyweight legal talent had to be imported. When the paperwork was complete and perfect, she said good-bye and drove back to the courthouse in Beckley. The armed warriors who had so bravely guarded the front lobby on Wednesday were evidently off fishing on Thursday. There was no one to fondle and grope her. The metal detector was unplugged. Clever terrorists monitoring Beckley had only to wait until Thursdays to thwart Homeland Security and blow up the building.
The same clerk examined her forms and searched vainly for a reason to reject them, but he found nothing to nitpick. She followed him to a massive room lined with metal file cabinets filled with thousands of old cases. He punched buttons on a screen; machines hummed as shelves moved. He opened the drawer and extracted four large expandable files. “You can use one of those tables,” he said, pointing, as if he owned them. Samantha thanked him, unloaded her briefcase, made her nest, and kicked off her shoes.
Mattie, too, was shoeless late Thursday afternoon when Samantha returned to the office. Everyone else was gone and the front door was locked. They went to the conference room so they could watch the traffic on Main Street as they talked. Throughout her thirty-year career as a lawyer, and especially the last twenty-six years at the clinic, Mattie had repeatedly butted heads with the boys (always men—never women) at Casper Slate. Their brand of aggressive advocacy often went even further, into the realm of unethical conduct, perhaps even criminal behavior. About a decade earlier, she had t
aken the extreme measure of filing an ethics complaint against the firm with the Virginia bar association. Two Castrate lawyers were reprimanded, nothing serious, and when it was all over it had not been worth the trouble. In retaliation, the firm targeted her whenever possible and backstabbed even more fiercely when defending one of her black lung cases. Her clients suffered, and she regretted challenging the firm head-on. She was quite aware of Dr. Foy and Dr. Aberdeen, two renowned and eminently qualified researchers who’d been purchased by the coal companies years ago. The hospitals where they worked received millions in research grants from the coal industry.
As jaded as Mattie was toward the law firm, she was still surprised at Samantha’s discovery. She read the copy of Dr. Foy’s report to the pathologist in Beckley. Oddly enough, neither Foy nor Aberdeen was mentioned in the Ryzer hearing. Foy’s medical report was not submitted; rather, the lawyers at Casper Slate used another slew of doctors, none of whom mentioned the findings of Dr. Foy. Had they been told of these findings? “Highly unlikely,” was Mattie’s prediction. “These lawyers are known for concealing evidence that’s not helpful to the coal company. It’s safe to assume that both doctors saw the lung tissue and arrived at the same conclusion: that Buddy had complicated black lung disease. So the lawyers buried it and found more experts.”
“How can you just bury evidence?” Samantha asked, a question she’d been repeating to herself for many hours.
“It’s easy for these guys. Keep in mind this happens before an administrative law judge, not a real federal judge. It’s a hearing, not a trial. In a real trial there are strict rules regarding discovery and full disclosure; not so in a black lung hearing. The rules are far more relaxed, and these guys have spent decades tweaking and manipulating the rules. In about half the cases, the miner, like Buddy, has no lawyer, so it’s really not a fair fight.”
“I get that, but tell me how the lawyers for Lonerock Coal could know for a fact that Buddy had the disease as early as 1997, then cover it up by finding the other doctors who testified, under oath, that he was not suffering from black lung.”
“Because they’re crooks.”
“And we can’t do anything about it? Sounds like fraud and conspiracy to me. Why can’t they be sued? If they did it to Buddy Ryzer, you can bet they’ve done it to a thousand others.”
“I thought you didn’t like litigation.”
“I’m coming around. This is not right, Mattie.”
Mattie smiled and enjoyed her indignation. We’ve all been there, she thought. “It would be a massive effort to take on a law firm as powerful as Casper Slate.”
“Yes, I know that, and I know nothing about litigation. But fraud is fraud, and in this case it would be easy to prove. Doesn’t proving fraud pave the way to punitive damages?”
“Perhaps, but no law firm around here will sue Casper Slate directly. It would cost a fortune, take years, and if you got a big verdict you couldn’t keep it. Remember, Samantha, they elect their Supreme Court over in West Virginia, and you know who makes the biggest campaign contributions.”
“Sue them in federal court.”