January 3, 2014 4th Circuit published opinion

Fox v Elk Run Coal Company, Incorporated

Fox sought to set aside a final order in a 2001 black lung proceeding arguing Elk’s failure to provide expert reports to its testifying witness constituted fraud on the court. The administrative law judge agreed and set aside the order. The benefits board reversed in a split decision. The panel affirmed holding that withholding information from a medical expert is not fraud on the court as it does not involve bribery of the judge or other threats to the integrity of the institution and is instead garden variety fraud between two parties who can use the adversarial process to discover the problem on their own. The panel refused to create a civil Brady rule or a right to counsel as Congress has refused to take those steps in the black lung context.

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