Office Hours: Immersive Experience Professor Timothy MacDonnell shares his insight into W&L Law’s one-of-a-kind Black Lung Clinic.

Tim MacDonnell, clinical professor of law, directs Washington and Lee School of Law’s Black Lung Clinic — the only one of its kind in the country — through which third-year law students provide free legal services to patients and their spouses seeking compensation from coal companies for illnesses caused by exposure to coal dust.

Third-year law students at W&L Law are required to have a live client experience, and second-year law students submit an application and résumé and indicate their top three choices from the options available. Eight students are selected each year for a full-year immersive experience in complex litigation in the Black Lung Clinic.

“It is very time consuming, especially since it involves both legal and medical issues,” MacDonnell says.

Complex Cases

“The program was started in 1996 by law professors Brian Murchison, Uncas McThenia and Mary Natkin at the suggestion of an administrative law judge who wanted to coordinate fair represen-tation for coal miners who had to go to court. The cases were complex, and they were up against very strong coal company attorneys. The students help the miners and their surviving spouses who are attempting to get benefits for coal-related conditions such as black lung disease, also known as coal workers’ pneumoconiosis, and related illnesses such as lung cancer, COPD and emphysema.

“It’s hard for attorneys to dedicate part of their practice to black lung cases. They can go on for years, and the attorney only gets paid when the case is resolved — and, even then, only if the case is won, and the coal company can still challenge the fees.

“Ours is the only program of its kind in the country. It falls under the federal Black Lung Benefits Act, and these cases are brought through the federal courts. There are no state black lung clinics.”

Battle of the Experts

“You have to prove that coal dust was a contributing factor to the condition. You also have to prove that the miner is totally dis-abled. A confounding element is smoking or secondhand smoke. Many of our clients smoke and began at an early age, making it even worse. Experts say both coal dust and cigarettes cause the condition, so it gets down to the ratio between cigarettes versus coal dust.

“You get expert opinions and then go to hearings before an administrative law judge. About 80% of the time the coal companies appeal the decision, or we do. Every black lung case is a battle of the experts. It comes down to who is the more convincing.

“The coal company attorneys are excellent and graduated from good law schools. It makes this a very challenging area for our students. I have worked with some attorneys for many years on the coal company side, and some are friends. We each put forward the case and accept that the outcome will be what it will be.”

Long-Term Litigation

“Our clients have been doing this work for 20 to 30 years, work that you or I would not be able to do for one week. They don’t want to be given anything. They are honest, hardworking and appreciative of what the students do. These cases can go on for years, sometimes to the benefit of the client. We can appeal, and the miner is allowed to continue trying. At the beginning of the year, the students meet them in person at the Exhibition Coal Mine in Beckley, West Virginia. The rest of the contact is mostly by phone because many of them are very ill, and we worry about exposing them to something.

“Because students only work in the clinic for one year, we try to expose them to cases in the beginning development phase as well as in appeal. It is very uncommon to have a student who starts and finishes a case. If we have contact information, we try to follow up and let alumni know the final outcome, especially if we won. I enjoy seeing people at the beginning of their legal careers and assisting them in navigating to be an attorney, watching them develop into zealous and enthusiastic advocates.”