ELM GROVE COAL COMPANY, Pеtitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor; Velma Blake, Widow of Ivan Randall Blake, Respondents.
No. 05-1108.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 3, 2006. Decided: March 7, 2007.
480 F.3d 278
V. CONCLUSION
For the foregoing reasons we will affirm the orders entered on June 3, 2005, and July 21, 2005, and the judgment entered on August 1, 2005. The parties will bear their own costs on this appeal.
Before NIEMEYER, MOTZ,1 and KING, Circuit Judges.
Petition for review granted in part; Decision and Order vacated and remanded by published opinion. Judge KING wrotе the opinion, in which Judge NIEMEYER joined.
OPINION
KING, Circuit Judge:
Elm Grove Coal Company petitions for review of the December 2004 Decision and Order of the Benefits Review Board (the “BRB“) affirming the award of benefits made by an Administrative Law Judge (“ALJ“) to retired coal miner Ivan R. Blake under the Black Lung Benefits Act,
I.
A.
1.
Enacted on December 30, 1969, the Black Lung Act is intended to provide benefits to coal miners who have been totally disabled by pneumoconiosis, as well as to the surviving dependents of miners whose deaths were due to such disease. See
The Black Lung Act incorporates various other statutory provisions—including provisions pertaining to administrative rule-making and adjudication of claims—by both internal cross-reference and reference to other statutes. For instance, its Part C incorporates, “to the extent appropriate,” the provisions of Part B.
Significantly, Part B of the Black Lung Act mandates that, “[i]n determining the validity of claims under this part, all relevant evidence shall be considered.”
No claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram. In determining the validity of claims under this part, all relevant evidence shall be considered, including, where relevant, medical tests such as blood gas studies, X-ray examination, electrocardiogram, pulmonary function studies, or physical performance tests, and any medical history, evidence submitted by the claimant‘s physician, or his wife‘s affidavits, and in the case of a deceased miner, other appropriate affidavits of persons with knowledge of the miner‘s physical condition, and other supportive materials.
Id. (emphasis added).
Finally, Part C of the Black Lung Act incorporates certain provisions of the Longshore and Harbor Workers’ Compensation Act, including
2.
On December 20, 2000, after several years of consideration, the Secretary issued sweeping revisions to the rules governing the adjudication of miners’ claims under Part C of the Black Lung Act, effective January 19, 2001.5 See Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed.Reg. 79,920 (Dec. 20, 2000) (to be codified at
[c]urrently, in establishing their eligibility to benefits, claimants must confront the vastly superior economic resources of their adversaries: coal mine operators and their insurance carriers. Often, these parties generate medical evidence in such volume that it overwhelms the evidence supporting entitlement that claimants can procure. The proposed changes limiting evidentiary develop-
ment attempt to make more equitable the adjudication of black lung claims and reduce the costs associated with these cases.
Id.; see also Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed.Reg. at 79,989-95 (describing development of Evidence-Limiting Rules and reasons for them).
The Evidence-Limiting Rules, as promulgated, are found in the Code of Federal Regulations, in various subparts of
nary or related disease, or medical treatment for a respiratory or pulmonary or related disease, [to] be received into evidence“).
To rebut evidence submitted in support of an opposing party‘s affirmative case, the claimant and the responsible operator each may submit, inter alia, “no more than one physician‘s interpretation of each chest X-ray, pulmonary function test, arterial blood gas study, autopsy or biopsy” submitted by the opposing party.
The limitations on the introduction of medical evidence imposed by the Evidence-Limiting Rules also apply to the testimony of physicians, either in person or by deposition. See
Significantly, the Evidence-Limiting Rules also spell out that medical evidence in excess of the limitations contained therein may be admitted into the hearing record in a Black Lung Act proceedings for “good cause.” See
3.
By its June 2002 decision in National Mining Ass‘n v. Department of Labor, the District of Columbia Circuit (the first and only other circuit to consider the validity of the Evidence-Limiting Rules), uphеld the Evidence-Limiting Rules against a challenge brought by mine operators, insurance companies, and the National Mining Association (collectively, “National Mining“). See 292 F.3d 849, 873-74 (D.C.Cir.2002).8 National Mining contended that the Evidence-Limiting Rules ran afoul of the APA‘s authorization for “each party to submit whatever evidence that party thinks is needed to prove its case or defense.” Id. at 873 (internal quotation marks omitted). The D.C. Circuit disagreed, however, concluding that National Mining‘s theory that the APA “permits introduction of unlimited amounts of evi-
dence is flatly contradicted by the statute itself, which,” under the Irrelevant Evidence Exclusion, “empowers agencies to ‘exclu[de] irrelevant, immaterial, or unduly repetitious evidence’ as ‘a matter of policy.’ ” Id. at 873-74 (quoting
In upholding the Evidence-Limiting Rules, the D.C. Circuit rejected National Mining‘s assertion that the rules established “inflexible limits.” National Mining, 292 F.3d at 874. The court recognized and emphasized that, “[o]n the contrary, the rules give ALJs discretion to hear additional evidence for ‘good cause.’ ” Id. (citing
B.
Ivan Blake filed the application for benefits at issue in this proceeding on April 4, 2001 (following the January 19, 2001 effective date of the Evidence-Limiting Rules).9 On March 6, 2002, the District Director awarded benefits to Blake. At Elm Grove‘s request, the matter was subsequently forwarded to an ALJ (the “first ALJ“) for a formal hearing.
By Order of November 26, 2002, the first ALJ addressed several pre-hearing issues raised by the parties. See J.A. 657-60.10 First, he denied a motion by Elm Grove to compel Blake to produce draft reports and communications sent by his counsel to their physician-experts. In so ruling, the first ALJ concluded that the communications sought by Elm Grove were “protected by the work product doctrine, and thus, not discoverable.” Id. at 659. Next, he ruled, noting Elm Grove‘s objection to the validity of the Evidence-Limiting Rules, that he was constrained under the D.C. Circuit‘s National Mining decision to apply those Rules. Finally, the
first ALJ denied a motion by Blake to exclude evidence submitted by Elm Grove in excess of that permitted under the Evidence-Limiting Rules, but informed the parties that he would entertain a renewal of the motion at the hearing on Blake‘s claim.
On June 4, 2003, the hearing on Blake‘s claim was held in Wheeling, West Virginia, before a different ALJ (the “second ALJ“) than the one who had handled the pre-hearing motions (the “ALJ hearing“). See J.A. 720-802. At the outset of the ALJ hearing, the second ALJ observed that “this case is under the new regulations [including the Evidence-Limiting Rules] as it was filed after January 19, 2001,” and that, “therefore, the evidentiary limitations which are in effect in those new regulations apply, except for showing of good cause.” Id. at 724. Consistent with his reading of
During the ALJ hearing, Elm Grove noted its intention to contest the validity of the Evidence-Limiting Rules, and reiterated its position that it was entitled to documents provided to Blake‘s experts by his counsel. The second ALJ responded that he was inclined “to abide by the prior ruling in the case,” excluding discovery of the attorney-expert communications under the work product doctrine. J.A. 751. Elm
On October 16, 2003, the second ALJ issued his Decision and Order awarding benefits to Blake (the “ALJ Decision“). See J.A. 803-20. In relevant part, the second ALJ concluded that his previous rulings on evidentiary issues “shall stand.” Id. at 805 n. 4. Elm Grove appealed the ALJ Decision to the BRB, which affirmed the award of benefits to Blake by its Decision and Order of December 28, 2004 (the “BRB Decision“). See J.A. 821-38.11 In relevant part, the BRB Decision rejected Elm Grove‘s challenge to the validity of
the Evidence-Limiting Rules, including its contentions that the Rules were in conflict with the All Relevant Evidence Provision and our decision in Underwood. The BRB concluded that the Secretary had properly promulgated the Evidence-Limiting Rules pursuant to the Black Lung Act‘s authorization to regulate “the nature and extent of proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits,”
The BRB Decision affirmed the exclusion of evidence submitted by Elm Grove in excess of that permitted under the Evidence-Limiting Rules without a showing of “good cause.” J.A. 825. With respect to Elm Grove‘s X-ray interpretation rebuttal evidence, the BRB Decision upheld the second ALJ‘s ruling limiting Elm Grove to one interpretation to rebut the two interpretations submitted by Blake. Id. Finally, the BRB Decision rejected Elm Grove‘s assertion that it was entitled to copies of draft reports and communications from Blake‘s lawyers to their experts; in so doing, the BRB determined that the ALJs did not abuse their discretion in applying the work product doctrine. Id. at 826-27.
Elm Grove has timely filed its petition for review in this Court, and we possess jurisdiction pursuant to
II.
Elm Grove presents three primary contentions in this appeal.12 First and
Although the Evidence-Limiting Rules issue presents a close question, we nevertheless must reject Elm Grove‘s contention that the Rules are invalid. Accordingly, we examine two other contentions made by Elm Grove in its petition: (1) that the second ALJ improperly excluded certain rebuttal evidence from the ALJ hearing (“the Rebuttal Evidence issue“); and (2) that the ALJs and the BRB erred in failing to compel discovery of certain draft reports and attorney-expert communications between Blake‘s lawyers and their experts (the “Work Product issue“). As to the Rebuttal Evidence issue, we review de novo any legal issue on the proper standard to be applied for the “admission of еvidence in hearings before the ALJ under the Black Lung Benefits Act,” and we review for abuse of discretion any “question about the proper application of that standard.” Underwood, 105 F.3d at 948-49. On the Work Product issue, we review de novo the legal conclusions made by the ALJs and the BRB, and we assess for abuse of discretion their application of that standard. See Consol. Coal. Co. v. Williams, 453 F.3d 609, 614 (4th Cir.2006); Underwood, 105 F.3d at 948-49.
III.
Elm Grove‘s contention on the Evidence-Limiting Rules issue warrants our analysis of two separate but related assertions.13 First, Elm Grove maintains that our 1997 decision in Underwood v. Elkay Mining, Inc., 105 F.3d 946 (4th Cir.1997) is “still the law in the Fourth Circuit” and that the Evidence-Limiting Rules impermissibly conflict with that decision‘s interpretation of the All Relevant Evidence Provision. Petr.‘s Br. 21-22. Second, Elm Grove contends that the Evidence-Limiting Rules “fail both prongs of the Chevron test,” asserting that the Rules are inconsistent with the plain language of the Provision and are not premised on any reasonable construction of the Act. Id. at
The Respondent Director, on the other hand, contends that the Evidence-Limiting Rules are entitled to Chevron deference, that they are based on a permissible and reasonable construction of the Black Lung Act, and that they were adopted pursuant to the Secretary‘s “express statutory authority to adopt rules regulating the extent of the proofs and evidence.” Fed. Resp‘t‘s Br. 5.15 The Director further asserts that Underwood is not controlling precedent in this proceeding, maintaining that it addressed a different issue than that presented here, and that it was rendered well before the Secretary‘s promulgation of the Evidence-Limiting Rules. Accordingly, the Director urges us to uphold the validity of the Evidence-Limiting Rules, аs did the D.C. Circuit in 2002 with its National Mining decision.
A.
We begin our analysis with Elm Grove‘s contention that the Evidence-Limiting Rules conflict with Underwood. There, we were called upon to consider the interplay between the Act‘s All Relevant Evidence Provision and the APA‘s Irrelevant Evidence Exclusion. Retired coal miner Elmer Underwood contended that an ALJ had committed reversible error in denying him black lung benefits, by admitting cumulative evidence offered against his claim by his former employer, Elkay Mining. Underwood, 105 F.3d at 948. In support of the ALJ‘s ruling, Elkay Mining maintained “that ALJ‘s are required to admit all evidence, subject to objection, giving it weight where appropriate.” Id. at 949. In support of this proposition, Elkay Mining relied on the Provision, as well as the BRB‘s earlier ruling in Cochran v. Consolidation Coal Co., 12 BLR (CCH) 1-136, 1-138 (Ben.Rev.Bd.1989). In Cochran, the BRB concluded that ALJs are “required, subject to the objection by any party, to admit into the record all evidence that has been timely developed and exchanged in accordance with” applicable procedures. Id. at 1-138. Underwood countered that the Irrelevant Evidence Exclusion “nevertheless requires the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” Underwood, 105 F.3d at 949 (internal quotation marks omitted). In resolving this dispute, Judge Niemeyer explained that the parties’ con-
We began our analysis in Underwood “with the statutory command” of the All Relevant Evidence Provision, coupled “with the recognition that black lung benefits proceedings are nonjury trials conducted before ALJs who аre charged with both conducting the hearing and making findings of fact.” 105 F.3d at 949. In so recognizing, we observed that,
[i]n ruling on evidence, an ALJ sees both excludable and nonexcludable evidence, but in making a decision, he considers only admitted evidence. Because the ALJ is presumably competent to disregard that evidence which should be excluded or to discount that evidence which has lesser probative value, it makes little sense, as a practical matter, for a judge in that position to apply strict exclusionary evidentiary rules.
Id. Substantiating the conclusion that strict exclusionary rules would make little sense in Black Lung Act proceedings, we invoked our decision in Multi-Medical Convalescent & Nursing Center of Towson v. NLRB, 550 F.2d 974 (4th Cir.1977), where we had discussed the long-settled principle that an appellate court will rarely reverse a judgment in a nonjury case because of the admission of incompetent evidence. See Underwood, 105 F.3d at 949-50 (citing Multi-Med., 550 F.2d at 977). And we repeated the advice given to administrative agencies in Multi-Medical: ” ‘if in doubt, let it in.’ ” Id. at 950 (quoting Multi-Med., 550 F.2d at 978). Indeed, we observed that the BRB had applied our Multi-Medical decision in Cochran to “reach[ ] what might appear to be an almost absolute rule that the ALJ is required to admit all evidence that is timely developed and exchanged.” Underwood, 105 F.3d at 950. As we observed, although the BRB had recognized in Cochran “the statutory limitations of relevancy,” it had also instructed “that where relevance is ‘questionable,’ the trier of fact would be better advised to admit the evidence.” Id. (citing Cochran, 12 BLR (CCH) at 1-138).
Against this backdrop, we then examined the Irrelevant Evidence Exclusion, observing that the exclusion of “irrelevant,” “immaterial,” and “unduly repetitious” evidence need not conflict with the All Relevant Evidence Provision and the BRB‘s Cochran decision. Underwood, 105 F.3d at 950. Focusing on unduly rеpetitious evidence, we explained that such evidence “has little or no probative value and does not fall within the statutory mandate to consider all ‘relevant’ evidence.” Id. We concluded that the Irrelevant Evidence Exclusion
grants ALJ‘s broad discretion to exclude excessive evidence which lacks significant probative value and, by implication, to limit examinations, evaluations, and consultations by experts when such events will, in the ALJ‘s judgment, merely give rise to evidence so unduly repetitious as to be lacking in probative value.
Id. Underwood specifically warned, however, that we did “not mean to authorize the ALJ to exclude merely repetitious or cumulative evidence so long as such evidence retains nontrivial probative value.” Id. Rather, we carefully explained that, if evidence is to be excluded:
[The ALJ] must conclude that the evidence serves little useful value other than to expand the record, impose additional cost, or repeat that which is already well established in the record. Two independent and qualified expert opinions that agree on a disputed point may be substantively more probative
than one. And while four similar opinions also may be more probative than two, it does not follow that four are twice as probative as two. There is a point of diminishing returns and a point at which additional evidence provides almost no value. Such determinations are matters for consideration by the ALJ based on the extent and nature of the dispute on the issue, the closeness of the question, and the nature of the opinions and qualifications of the experts giving them.
Id. Finally, we admonished ALJs adjudicating Black Lung Act claims to “recognize that they must consider all relevant evidence, erring on the side of inclusion, but [to] exclude evidence that becomes unduly repetitious in the sense that the evidence provides little or no additional probative value.” Id. at 951.16
In its petition for review, Elm Grove contends that Underwood is controlling in this proceeding, and that it is inconsistent with the Evidence-Limiting Rules. To the contrary, although Underwood‘s reasoning is persuasive, it is not directly on point and does not constitute precedent on the Evidence-Limiting Rules issue. Underwood was decided in 1997, well before the Secretary, in 2001, promulgated the Evidence-Limiting Rules. Accordingly, the Underwood panel had no reason to consider whether regulations limiting the amount of evidence admissible in black lung proceedings might conflict with the Black Lung Act. Instead, Underwood only assessed the interplay between the All Relevant Evidence Provision and the Irrelevant Evidence Exclusion—in the absence of the Evidence-Limiting Rules—and decided that the ALJ had not erred in failing to exclude certain evidence.
As Elm Grove emphasizes, Underwood characterized the All Relevant Evidence Provision as a “statutory command” and treated it as requiring the admission of all proffered relevant evidence. Underwood, 105 F.3d at 949. We did so, however, without the benefit of the Secretary‘s Evidence-Limiting Rules. As Chevron and its progeny mandate, we cannot impose our own statutory construction, “as would be necessary in the absence of an administrative interpretation,” in evaluating the views of the administrative agency entrusted with a statutory scheme. Chevron, 467 U.S. at 843. Instead, we must accord the Evidence-Limiting Rules the deference owed to an “executive department‘s construction of a statutory scheme it is entrusted to administer.” Id. at 844.
The Supreme Court‘s recent decision in National Cable & Telecommunications Ass‘n v. Brand X Internet Services, 545 U.S. 967 (2005), explained the proper interplay between a prior judicial decision and an agency construction of the same statutory provision. In Brand X, the Court concluded that a “court‘s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows the unambiguous terms of the statute and thus leaves no room for agency discretion.” Id. at 982. Observing that this “principle follows from Chevron itself,” the Court determined that “[o]nly a judicial precedent holding that the statute unambiguously forecloses the agency‘s interpre-
B.
1.
We turn next to an assessment of Elm Grove‘s contention that the Evidence-Limiting Rules are invalid because they impermissibly conflict with the All Relevant Evidence Provision of the Black Lung Act and, in so doing, apply the framework established by the Supreme Court in Chevron. See Chevron, 467 U.S. at 842-43. In applying Chevron, we first ask “whether Congress has directly spoken to the precise question at issue.” Id. at 842. Our Chevron analysis would end at that point if the intent of Congress is clear, “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If, however, “Congress has not directly addressed the precise question at issue,” we may not substitute our own construction of the statute. Id. at 843. “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. In that regard, the courts have “long recognized that considerable weight should be accorded to an executive department‘s construction of a statutory scheme it is entrusted to administer.” Id. at 844.
2.
Before we can accord Chevron deference to the Evidence-Limiting Rules, however, we must decide whether Congress delegated the necessary rule-making authority to the Secretary of Labor. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congrеss delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority“); see also A.T. Massey Coal Co. v. Barnhart, 472 F.3d 148, 166 (4th Cir.2006) (limiting Chevron deference to circumstances where Congress has given an agency authority to make rules and “the agency‘s interpretation is rendered in the exercise of that authority“). As the Supreme Court has explained, the requisite congressional delegation of authority “may be shown in a variety of ways, as by an agency‘s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.” Mead Corp., 533 U.S. at 227.
In this situation, we can readily ascertain that Congress delegated the necessary rule-making authority to the Secretary of Labor. Section 936 of the Black Lung Act authorizes the Secretary to issue regula-
In addition, the applicable provisions of the APA instruct that “[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.”
By way of § 936, and Congress having incorporated
C.
1.
In applying Chevron, we must first assess Elm Grove‘s contentiоn that the All Relevant Evidence Provision represents the clear and unambiguous intention of Congress to preclude any limitations on admissible evidence in Black Lung Act proceedings. See Chevron, 467 U.S. at 842. Elm Grove would have us rule that the Provision requires the admission of all proffered evidence, without regard to any exclusionary principle other than relevance. As the Director points out, however, the terms of the Provision, and the statutory provisions incorporated therein, conflict with Elm Grove‘s contention.
In undertaking the task of statutory construction, we “must not be guided by a single sentence or member of a sentence,” but instead must “look to the provisions of the whole law, and to its object and policy.” U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (internal citations omitted). As we have heretofore concluded, “the traditional rules of statutory construction to be used in ascertaining congressional intent include: the overall statutory scheme, legislative history, the history of evolving con-
2.
First of all, it is essential that the All Relevant Evidence Provision be read and assessed in its entirety. Notably, the “all relevant evidence” language follows the portion of the Provision that provides, in relevant part, that “[n]o claim for benefits under this part shall be denied solely on the basis of the results of a chest roentgenogram.”
Similarly, we are unable to divorce the “all relevant evidence” language from the balance of the All Relevant Evidence Provision. After instructing that “all relevant evidence shall be considered,” the Provision goes on to list various types of relevant medical evidence contemplated by its mandate, including, inter alia, blood gas studies, electrocardiograms, pulmonary function studies, and physical performance tests. Assessing the Provision in context, we are unable to discern any clear intention on the part of Congress to preclude the Secretary from limiting the quantity of relevant evidence аdmissible in Black Lung Act proceedings. It seems clear, however, that Congress intended that the ALJs should not rely on a single type of medical evidence—the chest X-ray—in assessing black lung claims.
It is also clear that the 1972 amendments—in addition to adding the Provision to
D.
1.
Finally, in order to complete our Chevron analysis, we must assess Chevron‘s step two, asking whether the Evidence-Limiting Rules are “based on a permissible construction” of the Black Lung Act and its relevant incorporated statutory provisions. Chevron, 467 U.S. at 843. In this analysis, we look to the legislative history of
As we have explained, the Secretary has construed the Provision in a manner that does not conflict with the Evidence-Limiting Rules. That is to say, the Secretary has concluded that the Provision is not meant to require the admission of every piece of relevant evidence, but rather that the “all relevant evidence” language is part of a larger statutory mandate to consider all types of relevant medical evidence. To determine whether her construction of this portion of the Act is a permissible one, we look to the legislative history of the 1972 amendments to
In its Summary of Major Provisions of those amendments, the Senate Committee on Labor and Public Welfare described the purpose of the amendments to
The art of medical diagnosis of coal miners’ respiratory impairments is not so precise that a miner‘s benefit should stand or fall on the basis of a single test. Every available medical tool should be used to assist a miner in successfully pursuing his claim for benefits. This provision seeks to expand the number of medical tools available for that purpose.
Id. at 2319 (emphasis added).
Our analysis of the All Relevant Evidence Provision and its legislative history is thus consistent with the Secretary‘s construction of it. Congress intended the Provision to require the Secretary to consider medical evidence outside the historical reliance on chest roentgenograms, and the Provision was not intended as a prohibition on regulations that might limit the admissibility of certain other evidence in Black Lung Act proceedings. Accordingly, we agree with the Secretary‘s conclusion that
the historical context of the language demonstrates that it is a statutory exhortation for the agency to explore every avenue which may prove the claimant‘s entitlement. Given the policy behind the provision, its apparent breadth should not act as a guarantor for the admission of any quantity of evidence an operator might obtain which refutes a claimant‘s entitlement.
Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 62 Fed.Reg. at 3358-59.
2.
We next turn to an analysis of whether the Evidence-Limiting Rules were premised on a permissible construction of the Black Lung Act. In this regard, the Secretary has enumerated several reasons for having promulgated the Evidence-Limiting Rules, including the following: (1) to “reduce the costs associated with [black lung claims]“; (2) “to make more equitable the adjudication of black lung claims“; and (3) “to ensure that eligibility determinations are based on the best quality evidence submitted rather than on the quantity of evidence submitted by each side.” Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 62 Fed.Reg. at 3338. And, the Secretary has concluded that the Evidence-Limiting Rules will ensure the “fair, efficient and expeditious adjudication of claims.” Id. As wе have noted, ALJs have always possessed discretion, under the Act, to exclude cumulative evidence from Black Lung Act proceedings, and they are instructed to exclude, as a matter of policy, “irrelevant, immaterial, or unduly repetitious evidence.”
the principle of deference to administrative interpretations has been consistently followed by this Court whenever the decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulation.
Chevron, 467 U.S. at 844 (internal citations and quotation marks omitted).
Accordingly, Elm Grove‘s challenge to the Evidence-Limiting Rules must be rejected. The Rules are a reasonable and valid exercise of the Secretary‘s authority to regulate evidentiary development in Black Lung Act proceedings, they are based on a permissible construction of the Act, and they are neither “arbitrary, capricious, [nor] manifestly contrary to the statute.” Chevron, 467 U.S. at 844.18
IV.
A.
Although we reject Elm Grove‘s challenge to the validity of the Evidence-Limiting Rules, we agree with its contention, on the Rebuttal Evidence issue, that the second ALJ misapplied one of those Rules,
The Director defended the second ALJ‘s ruling before the BRB, but he has now reversed course and abandoned the BRB, conceding in this proceeding that the ALJ erred. Fed. Resp‘t‘s Br. 5 (noting that “[w]e agree with Employer, however, that the ALJ‘s misunderstanding of a provision of the regulation resulted in the erroneous exclusion of one of Employer‘s X-ray interpretations“). Respondent Blake, on the other hand, maintains that the ruling of the second ALJ on the Rebuttal Evidence issue was proper, and that it was consistent with the Evidence-Limiting Rules. He contends that
Having fully considered this contention, we conclude that
The BRB has recently interpreted the rebuttal language from
Each party submits “chest X-ray interpretations” in its affirmative case.
20 C.F.R. §§ 725.414(a)(2)(i), (a)(3)(i) . Consequently, “chest X-ray interpretations” are what each party may rebut under20 C.F.R. § 725.414(a)(2)(ii), (a)(3)(ii) . Therefore, in the case at bar, since claimant submitted two interpretations of the March 5, 2002 X-ray in support of his affirmative case, employer was entitled to submit two interpretations in rebuttal under20 C.F.R. § 725.414(a)(3)(ii) .
Id. at 5.
We view the present position of the Director as persuasive and agree with Elm Grove that the second ALJ, at the hearing of June 4, 2003, misapplied
B.
Finally, we examine and dispose of Elm Grove‘s contention on the Work Product issue, that is, that the ALJs and the BRB erred in ruling that draft reports and attorney-expert communications between Blake‘s lawyers and their physician-experts were protected under the work product doctrine and thus not discoverable.20 We apply a de novo review to the legal conclusions made by the ALJs and
the BRB in this regard. See Consol. Coal. Co. v. Williams, 453 F.3d 609, 614 (4th Cir.2006). We assess for abuse of discretion their application of the legal standard. Underwood, 105 F.3d at 948-49.
Respondent Blake submitted medical reports of Drs. Lenkey and Cohen for consideration in connection with this claim. When asked about the content of his report during a pre-hearing deposition, Dr. Lenkey admitted that he had not written “every word” of his report and that Blake‘s attorneys had provided him with certain documents. J.A. 312. Dr. Cohen also testified by deposition that Blake‘s counsel had provided him with relevant documents and summaries. In pursuing its contention here, Elm Grove asserts that materials provided by counsel to a testifying expert witness concerning the relevant facts and an expert‘s opinions and reports are discoverable, and that the ALJs and the BRB erred in denying its motion to compel production of draft reports and attorney-expert communications between Blake‘s counsel and their experts. This is so, Elm Grove contends, because “[w]hen an attorney interjects him or herself into the process by which a testifying expert forms the opinions to be testified to at hearing, that action affects the weight which the expert‘s testimony deserves.” Petr.‘s Br. 26. In contrast, Blake maintains that the draft reports and attorney-expert communications sought by Elm Grove contain his counsel‘s theories and mental impressions and are thus protected by the work product doctrine.
In his November 26, 2002 Order denying Elm Grove‘s motion to compel discovery, the first ALJ ruled that draft reports and
[i]n ordering discovery ... the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
After ascertaining that
As explained below, we are unable, in these circumstances, to agree that Blake‘s expert witnesses could be properly and fully cross-examined in the absence of the draft reports and attorney-expert communications sought by Elm Grove. As the Supreme Court has cautioned, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993) (citations omitted). And, as several courts have observed, it is important to the proper cross-examination of an expert witness that the adverse party be aware of the facts underlying the expert‘s opinions, including whether the expert made an independent evaluation of those facts, or whether he instead adopted the opinions of the lawyers that retained him.23 See, e.g., Musselman v. Phillips, 176 F.R.D. 194, 200 (D.Md.1997) (“It cannot seriously be denied that the fact that an attorney has interjected him or hersеlf into the process by which a testifying expert forms the opinions to be testified to at trial affects the weight which the expert‘s testimony deserves.“); Karn v. Rand, 168 F.R.D. 633, 639 (N.D.Ind.1996) (“[T]he impact of expert witnesses on modern-day litigation
cannot be overstated; yet, to some, they are nothing more than willing musical instruments upon which manipulative counsel can play whatever tune desired.... Thus, full, effective cross examination is critical to the integrity of the truth-finding process.” (citations omitted)); Occulto v. Adamar of New Jersey, Inc., 125 F.R.D. 611, 615-16 (D.N.J.1989) (noting that the “weight accorded to an expert‘s opinion must vary in accordance with the expert‘s competence and knowledge; an expert who can be shown to have adopted the attorney‘s opinion as his own stands less tall ... than an expert who has engaged in painstaking inquiry and analysis before arriving at an opinion“).
Although our Court has not definitively addressed this precise issue, other courts, under both pre- and post-amendment
The first ALJ properly observed, in ruling on this issue, that, “as the trier of fact, seeking the truth is a vital function.” J.A. 659. Here, Drs. Lenkey and Cohen both acknowledge that Blake‘s lawyer provided them with factual summaries and documents, and that he may have contributed to the substance of their expert reports. Accordingly, the disclosure to Elm Grove of the pertinent draft reports and attorney-expert communications was potentially important to a full and fair cross-examination and to the truth-seeking process. It is also apparent that the discovery of such materials by Elm Grove will not undermine any settled policies underlying the work product doctrine. Attorney work product, and especially opinion work product, is still protected from discovery, in order that a party may not advance its сase on “wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring). We have recognized that the work product doctrine ensures that lawyers do not lose their “incentive to do thorough research, relying instead on the opposing party‘s effort.” In re Allen, 106 F.3d 582, 607 (4th Cir.1997). Attorney work product also enjoys protected status so as to allow the parties to litigation “privacy in the development of legal theories, opinions and strategies for the client.” National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 983 (4th Cir.1992). As the Musselman decision of the District of Maryland observed, however, “this interest is hardly served when the attorney discloses [his legal theories and opinions] to a retained expert in order to shape opinion testimony to be offered at trial.” Musselman, 176 F.R.D. at 201. Here, Elm Grove sought discovery of draft reports and attorney-expert communications in seeking to determine which portions of the expert reports, if any, had been prepared by counsel, or with the assistance of counsel, and to assess and ascertain which portions thereof resulted from the experts’ independent efforts. Rather than seeking to benefit from its opposing counsel‘s work product, Elm Grove was seeking these materials for an entirely legitimate purpose—
In the context of the foregoing principles, the ALJs and the BRB thus abused their discretion in categorically denying Elm Grove‘s motion to compel on the mistaken belief that the documents were protected work product, and in failing to specifically examine and assess the documents being sought by Elm Grove. As a result, we also vacate the BRB Decision and Order on the Work Product issue and remand for the ALJ to appropriately examine and rule on the documents sought by Elm Grove, in light of the principles discussed herein.
V.
Pursuant to the foregoing, we deny Elm Grove‘s petition for review on the Evidence-Limiting Rules issue. We grant its petition on the Rebuttal Evidence and Work Product issues, vacate the BRB Decision and Order, and remand for such further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED IN PART; DECISION AND ORDER VACATED AND REMANDED.