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Federal Black Lung Litigation Practice Group Update - 3/29/2016

Getting Ready for Trial in an FBL Case Isn’t as Easy as it Used to Be!

The pre-trial procedures for federal black lung trials with Administrative Law Judges changed in June 2015.  Now, Operators/Employers must carefully abide by the mandatory disclosures and deadlines.  First, upon receiving a Scheduling Order from an ALJ, the parties have 21 days to begin discovery and disclose known witnesses, experts, and exhibits.   Then, 50 days prior to trial, the parties must produce a Summary of the Evidence form outlining known chest x-rays, PFSs, ABGs, medical reports, and other evidence in the case. These are not to be sent to the ALJ.  Thirty (30) days prior to trial, the employer must contest its position as the responsible operator and serve this intention and proof upon all relevant parties including the District Director.  Motions for Summary Decision (akin to a Motion for Summary Judgment) must also be filed pursuant to 29 CFR §18.72.

Twenty-one days (21) prior to trial, the parties must produce a Pre–Hearing Statement and stipulate to as many facts as possible and include revised, known exhibits, witnesses and experts. ALJs prefer a Joint Pre–Hearing Statement from the parties which sets forth: (1) reference to a meeting of the parties and who was represented by whom; (2) the issues of law, with appropriate statutes and regulations or case law, to be determined; (3) a precise statement of the relief sought by each party; (4) stipulated facts requiring no proof at trial which are agreed upon by the parties; (5) the facts in dispute between the parties; (6) a list of witnesses each party expects to call at trial; (7) joint exhibits of the parties (typically including the Director’s Exhibits); (8) a list of Claimant’s exhibits; (9) a list of the Operator’s/Employer’s exhibits; and (10) the estimated time for each party to present its case–in-chief.  Joint facts which the parties can typically agree upon include the Claimant’s date of birth, the claim being timely filed, the number of years the Claimant worked with the Employer/Operator (and possibly whether the Claimant worked in above or underground coal mines), the Responsible Operator designation, the miner working after 12/31/1969, the Employer’s/Operator’s insured status, the Claimant’s dependency status (existence of a spouse and/or other dependents), the Employer being an Operator after 6/30/1973; and the Employer/Operator employing the Claimant for a cumulative period of not less than one year.

Twenty (20) days before trial, the parties must exchange all exhibits/documentary evidence and objections to evidence along with their updated Summary of Evidence Forms (ALJs do not want these forms).  If depositions will be offered as evidence, they must include a word index.  The parties must also file a motion seeking an allowance to file any evidence or expert evidence less than 20 days before trial. The parties can often file a joint motion addressing these delinquencies. No expert can testify for either party unless 10 days notice is given to all parties about that expert.  Most ALJs seem reasonable about allowing evidence to be submitted after a trial if all parties agree, but know your ALJ and his/her practice!  These new rules seem to place more burdens on all parties.

Federal Black Lung Litigation Practice Group:Tony DavisJeannie Walston, Phil Piggott, Andy Laird,and Billy DeBuys