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Experts’ reports

A discovery ruling in a black lung case may have ramifications for protecting work-product and confidential communications in other kinds of litigation.

Elm Grove Coal Company was trying to overturn black lung benefits awarded to a retired miner named Ivan Blake. The two physician experts who supported Blake’s claim admitted that Blake’s lawyer might have had something to do with the substance of their factual reports.

That being the case, Elm Grove may have a right to get a copy of draft reports and communications between Blake’s lawyers and the experts, according to the 4th Circuit in Elm Grove Coal v. Director, OWCP. The mine actually was trying to get at the “trustworthiness and reliability” of the doctor experts, the panel wrote, so the reports and communications were fair game. But the court said the situation might be different when it comes to consulting experts, as opposed to testifying experts.

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