Gray Mountain (20 page)

When the bells stopped, she put on jeans and left her apartment. Annette’s car was still parked in front of the house, an indication that she and the kids were skipping church on this beautiful Sunday. From a rack near Donovan’s office on Main Street, Samantha bought a copy of the
Roanoke Times
and read it in an empty café while she ate a waffle with bacon. After breakfast, she walked the streets of Brady for a while; it didn’t take long to see all of it. She passed a dozen churches, which all seemed to be packed, judging by the crowded parking lots, and tried to remember the last time she had seen the inside of one. Her father was a lapsed Catholic, her mother an indifferent Protestant, and Samantha had not been raised in any faith.

She found the schools, all as old as the courthouse, all with rusting air conditioners sagging from the windows. She said hello to a porch full of ancient people rocking their time away at the nursing home, evidently too old even for church. She walked past the tiny hospital and vowed to never get sick in Brady. She walked along Main Street and wondered how in the world the small merchants stayed in business. When the tour was over she got in her car and left.

On the map, Highway 119 wiggled through the coal country of far eastern Kentucky and into West Virginia. The day before, she had seen Appalachia from the air; now she would try it from the road. With Charleston a vague destination, she took off with nothing but a road map and a bottle of water. Soon she was in Kentucky, though the state line made little difference. Appalachia was Appalachia, regardless of boundaries someone had set an eternity ago. A land of breathtaking beauty, of steep hills and rolling mountains covered in dense hardwood forests, of rushing streams and rapids cutting through deep valleys, of depressing poverty, of tidy little towns with redbrick buildings and whitewashed houses, of church after church. Most of them seemed to be of the Baptist variety, though the brands were hopelessly confusing. Southern Baptist; General Baptist; Primitive Baptist; Missionary Baptist.
Regardless, they were all bustling with activity. She stopped in Pikeville, Kentucky, population seven thousand, found the center of town, and treated herself to coffee amongst the locals in a stuffy café. She got some looks but everyone was friendly. She listened hard to the chatter, at times uncertain if it was the same language, and even chuckled at the banter. Near the West Virginia line, she couldn’t resist stopping at a country store that advertised “World Famous Beef Jerky, Homemade.” She bought a package, took one bite, tossed the rest in a trash can, and sipped water for fifteen miles to get rid of the taste.

She was determined not to think about coal; she was tired of the subject. But it was everywhere: in the haul trucks that owned the roads, in the fading billboards urging union strength, in the occasional glimpse of a strip mine and a mountaintop being removed, in the battle of bumper stickers, with “Like Electricity? Love Coal” on one side and “Save the Mountains” on the other, and in the tiny museums honoring the heritage of mining. She stopped at a historical marker and read the account of the Bark Valley Disaster, a deep mine explosion that killed thirty men in 1961. Friends of Coal had an aggressive campaign under way, and she drove past many of their billboards declaring “Coal Equals Jobs.” Coal was the fabric of life in these parts, but the strip-mining had divided the people. According to her Internet research, its opponents argued that it destroyed jobs, and they had the numbers to support them. Eighty thousand miners now, almost all non-union and half working in surface mines. Decades earlier, long before they began blasting tops off mountains, there were almost a million miners.

She eventually made it to Charleston, the capital. She still wasn’t comfortable in traffic and found more than she expected. She had no idea where she was going and was suddenly afraid of getting lost. It was almost 2:00 p.m., past lunch and time to turn around. The first leg of her trip ended when she randomly pulled in to a strip mall surrounded by fast-food restaurants. She was craving a burger and fries.

A
ll the lights were on in Donovan’s office long after sunset. She walked by it once around 8:00, started to knock, but decided not to disturb him. At 9:00 she was at her desk, primarily because she wanted to avoid her apartment, and not really working. She called his cell and he answered it. “Are you busy?” she asked.

“Of course I’m busy. I start a trial tomorrow. What are you doing?”

“I’m at the office, puttering, bored.”

“Come on over. I want you to meet someone.”

They were in his war room, upstairs, the tables covered with open books and files and legal pads. Donovan introduced her to one Lenny Charlton, a jury consultant from Knoxville. He described the man as an overpaid but frequently effective analyst, and he described Samantha simply as a lawyer/friend who was on his side. Samantha wondered if Donovan insulted all the experts he hired.

He asked Lenny, “Ever hear of Marshall Kofer out of D.C.? Once a high-flying aviation trial lawyer?”

“Of course,” Lenny said.

“Her dad. But there’s nothing in the DNA. She avoids courtrooms.”

“Smart lady.”

They were ending a long session in which they had gone through the list of sixty prospective jurors. Lenny explained, for her benefit, that his firm was paid trifling wages to conduct background searches of every person on the list, and that the chore was difficult given the tight and incestuous nature of coalfield communities. “Excuses, excuses,” Donovan mumbled, almost under his breath. Lenny explained further that picking juries in coal country was dicey because everyone had a friend or a relative who worked either for a company that mined coal or for one that provided services to the industry.

Samantha listened with fascination as they discussed the last few names on the list. One woman’s brother worked at a strip mine. One woman’s father had been a deep miner. One man lost his adult son in a construction accident, but it wasn’t related to coal. And so
on. There seemed to be something wrong with this spying game, of allowing litigants to peek into the private lives of unsuspecting people. She would ask Donovan about it later if she had the chance. He looked tired and seemed a bit edgy.

Lenny left a few minutes before ten. When they were alone, she asked, “Why don’t you have co-counsel for this trial?”

“I often do, but not this case. I prefer to do it myself. Strayhorn and its insurance company will have a dozen dark suits swarming around their table. I like the contrast, just Lisa Tate and me.”

“David and Goliath, huh?”

“Something like that.”

“How late will you work?”

“I don’t know. I won’t sleep much tonight, or this week for that matter. Comes with the territory.”

“Look, I know it’s late and you have better things to worry about, but I have to ask you something. You’ve offered me a part-time job as a research assistant, a paid position, so I would become an employee of your firm, right?”

“Right. Where is this going?”

“Hang on. I’m not sure I want to work for you.”

He shrugged. Whatever. “I’m not begging.”

“Here’s the question: Do you have in your possession documents—the bad documents as you and Vic call them—owned by Krull Mining pertaining to the contamination of the groundwater in Hammer Valley, documents that you’re not supposed to have?”

His dark and tired eyes flashed with anger but he bit his tongue, hesitated, then smiled.

“It’s a direct question, Counselor,” she said.

“I get that. So, if the answer is yes, then I suppose you’ll decline the job and we’ll still be friends, right?”

“You answer my question first.”

“And if the answer is no, then you might consider working for me, right?”

“I’m still waiting, Counselor.”

“I plead the Fifth Amendment.”

“Fair enough. Thank you for the offer but I’ll say no.”

“As you wish. I have lots of work to do.”

Black lung is a legal term for a preventable, occupational lung disease. It is more formally known as coal workers’ pneumoconiosis (CWP), and is caused by prolonged exposure to coal dust. Once coal dust is inhaled into the body it cannot be removed or discharged. It progressively builds up in the lungs and can lead to inflammation, fibrosis, even necrosis. There are two forms of the disease: “simple CWP” and “complicated CWP” (or progressive massive fibrosis).

Black lung is a common affliction among coal miners, both in deep mines and surface mines. It is estimated that 10% of all miners with 25 years experience develop the disease. It is debilitating and usually fatal. Approximately 1500 miners die each year from black lung, and because of the insidious nature of the disease, their deaths are almost always slow and agonizing. There is no cure and no effective medical treatment.

The symptoms are shortness of breath and a constant cough that often yields a black mucus. As these grow worse, the miner faces the dilemma of whether or not to pursue benefits. Diagnosis is fairly straightforward: (1) an exposure history to coal dust; (2) a chest X-ray; and (3) the exclusion of other causes.

In 1969, Congress passed the Federal Coal Mine Health and Safety Act which established a compensation system for victims of black lung. The law also set up standards to reduce coal dust. Two years later, Congress created the Black Lung Disability Trust Fund and funded it with a federal tax on coal production. In this law, the coal industry agreed to a system designed to ease the identification of the disease and to guarantee compensation. If a miner had worked ten years and had medical proof—either an X-ray or autopsy evidence of severe black lung—then in theory he was to be awarded benefits. Also, a miner still working with black lung was to be transferred to a job with less exposure to dust without the loss of pay, benefits, or seniority. As of July 1, 2008, a miner with black lung receives $900 a month from the Trust.

The intent of the new federal law was to sharply reduce exposure to
coal dust. Tough standards were soon in place and miners were offered free chest X-rays every five years. The X-rays showed 4 in 10 miners tested had some level of black lung. But in the years after the law took effect, new cases of black lung plunged by 90 percent. Doctors and experts predicted the disease would be eradicated. However, by 1995 government studies began to indicate an increase in the rate of the disease; then an even bigger increase. Just as troublesome, the disease appeared to progress more rapidly and it was showing up in the lungs of younger miners. Experts share two theories for this: (1) miners are working longer shifts, and thus are exposed to more dust; and (2) coal operators are exposing miners to illegal concentrations of coal dust.

Black lung is now epidemic in the coalfields, and the only possible reason is a prolonged exposure to more dust than the law allows. For decades the coal companies have resisted efforts to strengthen the standards, and they have been successful.

The law does not allow a miner to pay a lawyer; therefore, a typical miner with a claim must try to navigate the federal black lung system by himself. The coal industry is harshly resistant to claims, regardless of the proof offered by the miner. The companies fight the claims with experienced attorneys who skillfully manipulate the system. For a miner who prevails, his process usually takes about five years.

For Thomas Wilcox, the ordeal lasted twelve years. He was born near Brady, Virginia, in 1925, fought in the war, was wounded twice, decorated, and upon his return home he got married and went to work in the mines. He was a proud miner, a staunch union man, a loyal Democrat, and a fine husband and father. In 1974, he was diagnosed with black lung disease and filed a claim. He had been sick for several years and was almost too weak to work. His chest X-ray clearly showed complicated CWP. He had worked underground for 28 years and had never smoked. His claim was initially approved, but the award was appealed by the coal company. In 1976, at the age of 51, Thomas had no choice but to retire. He continued to deteriorate and he was soon on oxygen around the clock. With no income, his family scrambled to support themselves and cover his medical expenses. He and his wife were forced to sell the family home and live with an older daughter. His black lung
claim was thoroughly choked up deep within the federal system by crafty attorneys working for the coal company. At the time, he was due about $300 a month, plus medical care.