Appeals court hears Johns Hopkins black lung lawsuit

September 26, 2018

RICHMOND, Va. (AP) — A federal appeals court heard arguments Wednesday in a lawsuit filed by the families of coal miners who were denied benefits for black lung disease after a Johns Hopkins doctor insisted their X-rays did not show the disease.

A federal judge in Maryland dismissed the lawsuit in 2017, finding that Dr. Paul Wheeler had immunity as an expert witness for coal companies under Maryland and federal law.

During arguments before a three-judge panel of the 4th U.S. Circuit Court of Appeals Wednesday, the families’ lawyer, Jonathan Nace, said Wheeler and the Johns Hopkins black lung unit “believed they were above the law” when Wheeler disregarded federal regulations on how to interpret X-rays to diagnose black lung disease.

“Now they are asking the court to confirm that for them,” Nace said.

Nace said Wheeler failed to follow the regulations outlined in the Black Lung Benefits Act for years, causing two West Virginia coal miners — Michael Day and Junior McCoy Barr — to lose significant amounts of money in compensation.

Both men later died of black lung disease.

James Mathias, arguing on behalf of Johns Hopkins and Wheeler, said the case “begins and ends” with witness immunity, which shields witnesses from later civil liability.

Judge J. Harvie Wilkinson III said exposing expert witnesses to liability could have a chilling effect.

“You need the privilege ... to get people to testify,” Wilkinson said.

The three-judge panel did not indicate when it would issue its ruling.

The proposed class-action lawsuit filed by the families of Day and Barr cited a 2013 investigation by the Center for Public Integrity and ABC News reporting that Wheeler did not apply the required guidelines for evaluating X-rays of patients to determine if they had black lung disease.

The series, which won a Pulitzer Prize for investigative reporting, found that in at least 280 cases in which Wheeler convinced an administrative law judge to deny benefits, autopsies later showed the miners had the disease and were entitled to benefits.

After the report was published, Johns Hopkins suspended and later discontinued its black lung program headed by Wheeler, who retired.

A spokeswoman declined to comment on the lawsuit, but released a statement saying Johns Hopkins “took swift action when we learned of potential issues with the program.”

“We extend our deepest sympathies to those who have lost loved ones to this horrible disease, and we commend all efforts to ensure the Black Lung Benefits claims process is fair and just for all parties involved,” the statement said.