*1 332 Thus, the court the col- because district abused Kelly began plea
yet when rested counts, rejecting Kelly’s guilty its discretion and had the distribution loquy on pleas Kelly prejudiced by because was and ignored request not counsel’s the court the rejection, the would remand case “conversation,” Kelly could their continue Kelly permit plead with instructions the pleas govern- before entered have guilty jury and to vacate the verdicts. Granted, very little re- ment rested. government’s the case mained colloquy, judge’s began his the
Kelly Kelly “discuss fur- should this
remark suggested that the lockup” in the
ther pleas problem was not
timing the after Kelly colloquy could continue Thus, the motion call. because judge’s rejecting Kelly’s pleas judge’s reasons COMPANY, COAL ZEIGLER on mischaracterizations of were based Petitioner, record, they I do not believe were v. v. sufficiently sound. See United States DIRECTOR, OFFICE OF WORKERS’ (7th Cir.1998). 447, Kraus, 137 F.3d 453 PROGRAMS, COMPENSATION argues any con- government
The Phyllis Villain, Respondents. rejecting the guilty pleas error ceivable No. 01-3961. Kelly’s deemed harmless because must be only tangible pleading guilty benefit of Appeals, United States Court of an prospect be the offense-level Seventh Circuit. responsibility, acceptance reduction 17, Argued Sept. 2002. at The prospect such a was slim best. 6, Decided Dec. government argues that a also reversal “pointless” Kelly already re- would be arguments a fair trial. Those miss
ceived First, possibility mark. a re- acceptance based on
duced sentence constitutes sufficient
responsibility preju- Kelly. States Shep-
dice to See United (D.C.Cir.1997).
herd, 558, 563 sufficient, prejudice if such is not
And even clearly prejudi-
an additional conviction is States, 470
cial. Ball v. United U.S. (1985);
865, 105 S.Ct.
Shepherd, F.3d 560; Delegal,
F.3d at United States v. govern-
F.2d argument Kelly
ment’s circular-— unfair; trial complaining
is not that his complaining incurred
he is that he an addi-
tional conviction he was per- because plead guilty.
mitted to *2 Labor, (argued), Dept,
Helen H. Cox Solicitor, DC, Washngton, Office of the for Respondent Office of the Workers’ Com- Programs. pensation Vincennes, IN, (argued), D. Black Joe Respondent Phyliss for Villain. Jr., Shepherd,
Thomas O. Benefits Re- DC, Bd., Washington, view Donald S. Shire, Labor, DC, Washington, Dept, Party-in-Interest. FLAUM, Judge,
Before Chief RIPPLE, EASTERBROOK Circuit Judges.
EASTERBROOK, Judge. Circuit Eugene Villain died 1997 of colon His other afflic- age cancer tions coal workers’ pneumoconio- included Labor con- sis—-or so the life, during Eugene’s cluded had pay him ordered Coal Co. dis- ability Lung benefits under the Black Ben- Eugene’s efits Act. After his widow Phyllis applied for survivor’s benefits. To them, pneumo- had to obtain she show caused death. See 30 coniosis 718.205(c). 901(a); § U.S.C. 20 C.F.R. had proposed She to establish that adjudica- pneumoconiosis by relying on the claim, disability and causation tion of his breathing problems less- proving ability to the effects ened resist cancer, him to succumb leading An law quickly. more administrative judge Phyllis’s favor on both ruled Review Board af- points, the Benefits firmed, now asks us to set aside the administrative decision. Spese,
Peabody Coal Co. Cir.1997) (en (7th banc), holds F.3d 1001 govern ad preclusion that normal rules of proceedings ministrative deciding E. Laura M. cases. (argued), Mark Solomons When Klaus, agency Washington, by pneumoconiosis, the Greenberg Traurig, disabled DC, necessarily concluded that he had dis- for Petitioner. exception preclu to the rule of issue topsy this is one element of the
ease—and too, operator Both a mine and survivor it makes sense to treat sion. claim widow’s autopsy are allowed to introduce evidence Although the widow was it as established. claim, Zeigler in an effort to show that the determination the miner’s party *3 during the miner’s life was incorrect. Treating Zeigler by as bound made was. itself (A operator seeks to refute an earlier straightforward applica a mine the outcome is while a widow preclu finding pneumoconiosis, nonmutual issue tion of offensive Shore, rejection of the min try v. will to show that Hosiery Parklane Co. sion. See 322, 645, Again negative.) L.Ed.2d 552 er’s claim was a false 99 S.Ct. 58 439 U.S. (1979). autopsy But no was this makes sense. Eugene. on left behind performed He in the response offers What only x-ray, ventilatory-capaci the sorts of timing matters. proposition blood-gas readings ty, and —indicators if entitled to benefits he was disabled was high positives rates of false and false with 1989, an by pneumoconiosis ALJ negatives during were available —that favorably Phyllis on his claim. ruled agree with BRB that there is life. We the only if had entitled to benefits point readjudicating question no the pneumoconiosis when he died. given pneumoconiosis whether a miner had enough, any True is there medical highly reli possible unless it is adduce suppose people reason to recover practical as a matter able evidence—which all kinds of pneumoconiosis? from Not the autopsy means results. Otherwise lung progressive; are the milder in possibility that the initial decision was get forms of the condition do not worse it. correct is no reason to disturb See over time unless the miner inhales more Stores, Federated Inc. v. Moi pneumoconiosis dust. Yet unless some- tie, 2424, 69 452 U.S. 101 S.Ct. remission, goes times into there is no rea- (1981). therefore hold L.Ed.2d 103 We hearing the question son to hold a new on may rest grant that a of survivor’s benefits that condition person whether a who had findings during on made the miner’s life. during life also had it at death. (and did not introduce does not offer us the whether question Next comes any agency) before the medical evidence Eugene’s pneumoconiosis caused his de suggesting that black can be cured. mise. No one thinks that coal dust causes if potential thinking paid colon cancer. But benefits must be
Another reason passage significant diag- of time is that the hastened death from another disease Director, error-prone. pulmonary Peabody nosis is Other source. See Coal Co. OWCP, 972 F.2d emphysema diseases such as and asthma 718.205(c)(5), may produce ap hard to tell symptoms apart See also C.F.R. Radiologists by Mining from fre- National Ass’n v. De pneumoconiosis. proved Labor, 849, 871 quently disagree interpretation partment about the (D.C.Cir.2002). films; the murder of an x-ray only for the most serious Even just in- opacities given forms of the disease are the infant hastens death eventually to us all. The difference pneumoconiosis easy dicative of to distin- comes guish opacities other here was four months. oncolo with causes. Death a that he had six months to considerably gist offers better source estimated diag from the time his cancer was analysis tissue live evidence: nosed; two, autopsy. general prac removed in an Benefits Re- he died in acceleration was opined therefore has created an au- titioner that this view Board state, oncologist’s time after all. The es- pected weakened attributable expectation of six months’ life timate pneu- blamed on the physician which A simplified. complete more statement responsive argu- line of One moconiosis. variability, have included the normal ben- might have been survivors’ ment plus as six months or minus three income, such designed replace lost efits are months, that had metasta- for colon cancer between ad- drawing line implies which (Eugene’s state when his sized to liver and advanc- by years a few vancing death detected). cancer was the actual Suppose weeks, months, days. or ing a few to Eu- expectation for a condition similar income as a result of Phyllis lost no more persons with- gene’s was 6±4 months for than she would have Eugene’s actual death any complicating disease. Then out long oncologist lost had he lived as *4 Eugene’s it hard to how would be see provide to Requiring Zeigler predicted. hastened death could be said to have been Phyllis with lifetime benefits because by lung disease. No such evidence black changes in the date of her husband’s small record, is in the however. jarring. Zeig- Yet demise from cancer argument, such an so we ler does not make potential response might have Another legal there is a do not decide whether epidemiologic Sup- come from evidence. days taking years between and difference large-scale study persons that a pose span. a life off miner’s lung with disease showed diagnosed diagnosis after a they long that survive as general that a Zeigler grumbles Instead do. Then al- persons of cancer as other opine should not on matters practitioner may it to think that though be sensible Ridge, beyond expertise. Frederick conjunc- pneumoconiosis hastens death did not Eugene’s physician, had been who disease, tion with some other we would pulmonary cancer or disease treat either (or specifi- know that cancer colon cancer specialists to and referred Black cally) was not one of them. then, ac- Why, agency should the both. victims, maybe disease weakens its Eu- Ridge’s view about the cause of cept particular ways not that matter It Zeigler wonders? relies gene’s But did not offer such Zeigler maladies. McCandless, 255 Peabody on Coal Co. v. Perhaps it does not exist—or evidence. (7th Cir.2001), proposition for the F.3d 465 by it exists but favors miners perhaps diagnoses supported that medical must be that black does hasten death showing history a of treat- by reasoning; medical nothing way, Either there is from cancer. analysis. for scientific ment is no substitute Ridge’s record to counter conclu- Secretary ob- enough, True but as the sion, supplies which therefore substantial 718.205(c)(5), promulgating served the administrative de- support evidence to by proposition persons that weakened cision. may expire quicker from pneumoconiosis with point, diseases is a medical our dispute doubtless would Fed.Reg. empirical support. some See “nothing” in the statement that there is (Dec. 2000). 79,920, 79,950 Whether It Ridge’s to counter assessment. record a that question
this was true of Tuteur, Peter introduced an affidavit from physical of his depends on the state Washington University professor a at health, subject Ridge mental about which Medicine, that opining School professed knowledgeable. to be accelerate his problems did not pulmonary worthless, be death. But this affidavit is way respond would be to show One reason. He did gives cause Dr. Tuteur no death occurred at the ex- that RIPPLE, Eugene, Judge, concurring. did not discuss the Circuit examine variability in the time takes colon normal This requires case we resolve two victims, point kill its did not cancer to issues, panel opinion and the addresses studies, single did not cite a epidemiologic succinctly correctly. both of them sum, in the medical literature —in article join panel’s in the determination that the the decisionmaker. “An help application did not ex- correct of nonmutual collateral estoppel precludes Zeigler Company Coal supplies nothing but a bottom pert who arguing Mr. Villain did not have supplies nothing judi- of value to the line pneumoconiosis. panel opinion also process.” cial Mid-State Fertilizer Co. v. correctly evi- concludes substantial Bank, Exchange National supports finding dence the ALJ’s Ridge Neither nor pneumoconiosis Mr. hastened Villain’s specialist; Tuteur is cancer and between death. two, Ridge advantage had the least view, my say, In ought we need to observing pulmonary problem whether a say, panel’s no more. The on discourse ability sapped Eugene’s to withstand the hypothetical ways in which could effects cancer. prevailed, have either raising certain *5 agencies Some federal refuse to make arguments or bringing forth other medical reports decisions on the basis of such studies, epidemiological evidence or nei- is (or Tuteur) Ridge the one matter necessary helpful. Accordingly, ther nor For supplied. example, the Food and respectfully refrain from joining por- those Drug Administration would dream of opinion tions of the that render that ad- deciding whether some new treatment vice. Tidewater Oil Co. v. United Cf. (an postpones States, death from cancer issue 151, 174, 409 U.S. 93 S.Ct. J., equivalent (White, to whether black hastens L.Ed.2d 375 concurring death) Court, opinion “except without a for the advi- statistically epide- sound sory Congress reflecting one view of miologic study or a well-conducted double- Act”). relative merits of the Expediting experiment. Reports physi- blind cians in the field “I along gave the lines of
drug X it kept patient alive for
four extra months” be dismissed as
worthless the fda anecdotes. While
other agencies, such as the Environmental America, UNITED STATES of Agency, Protection statistically insist on Plaintiff-Appellant, results, valid of Labor in (and Security cases the Social cases) disability Administration in rely on GRASSER, Defendant-Appellee. Denise evidence carry any that does not indicators No. 02-2559. power. Zeigler, statistical But which United States Court of Appeals, took approach by only the same proffering Seventh Circuit. assertion, Dr. Tuteur’s unreasoned is in no position complain. opera- Unless mine Argued 2002. Oct. tors Department’s show that the approach Decided Dec. unsound, medically these matters proceed entitled to itas did here.
AFFIRMED-