PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2387

MARY L. FOX, on behalf of Gary N. Fox, deceased,

Petitioner,

v.

ELK RUN COAL COMPANY, INCORPORATED; DIRECTOR, OFFICE OF 

WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF 

LABOR,

Respondents.

No. 12-2402

ELK RUN COAL COMPANY, INCORPORATED,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED 

STATES DEPARTMENT OF LABOR; MARY L. FOX, on behalf of Gary 

N. Fox, deceased,

Respondents.

On Petitions for Review of Orders of the Benefits Review Board. 

(11-0793-BLA; 09-0438-BLA) 

Argued: October 29, 2013 Decided: January 3, 2014
2

Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit 

Judges.

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Chief Judge Traxler and Judge Floyd joined.

ARGUED: Allan Norman Karlin, Morgantown, West Virginia, for 

Petitioner/Cross-Respondent. Alvin Lee Emch, JACKSON KELLY, 

PLLC, Charleston, West Virginia, for Respondent/Cross-Petitioner 

Elk Run Coal Company, Incorporated. ON BRIEF: John Cline, Piney 

View, West Virginia; Sarah W. Montoro, ALLAN N. KARLIN & 

ASSOCIATES, Morgantown, West Virginia, for Petitioner/CrossRespondent. Kathy Lynn Snyder, JACKSON KELLY, PLLC, Morgantown, 

West Virginia, for Respondent/Cross-Petitioner Elk Run Coal 

Company, Incorporated.
3

WILKINSON, Circuit Judge:

Appellant Mary Fox contends that Elk Run Coal Company 

committed fraud on the court and thereby deprived her husband, 

coal miner Gary Fox, of nearly a decade of benefits under the 

Black Lung Benefits Act (“BLBA”). The Benefits Review Board 

(“BRB”) found that Elk Run’s conduct was not sufficiently 

egregious to meet the high bar for a claim of fraud on the court 

because it did not amount to an intentional design aimed at 

undermining the integrity of the adjudicative process under the 

BLBA. We now affirm and find that Elk Run’s conduct, while 

hardly admirable, did not, under clear Supreme Court and circuit 

precedent, demonstrate the commission of a fraud upon the court. 

See, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 

U.S. 238 (1944); Great Coastal Express, Inc. v. Int’l Bhd. of 

Teamsters, 675 F.2d 1349 (4th Cir. 1982).

I.

A.

Pneumoconiosis, commonly known as “black lung,” is a 

progressive and irreversible pulmonary condition that can 

afflict those regularly exposed to coal dust. Mullins Coal Co. 

v. Dir., OWCP, 484 U.S. 135, 138 (1987). In recognition of the 

effects of this disease, Congress adopted the BLBA to require 

private coal companies to compensate miners and their families. 
4

Id. at 138-39. The BLBA permits coal workers or their surviving 

dependents to apply for benefits by filing a claim with the 

District Director of the U.S. Department of Labor’s Office of 

Workers’ Compensation Programs (“Director”). 20 C.F.R. 

§§ 725.301-725.423. In order to award benefits, the Director 

must find that the coal worker has pneumoconiosis arising out of

his or her coal mine employment, is totally disabled, and the 

pneumoconiosis substantially contributed to the worker’s 

disability. Id. § 725.202(d).

Once the Director makes an initial finding on whether the 

claimant is entitled to benefits, either party may request an 

evidentiary hearing before an ALJ. Id. §§ 725.401-725.480. 

Such a request initiates an adversarial process under the 

Administrative Procedure Act (“APA”). Id. § 725.452(a); Elm 

Grove Coal Co. v. Dir., OWCP, 480 F.3d 278, 283 (4th Cir. 2007) 

(finding that the BLBA incorporates the APA’s administrative 

adjudication procedures); see also U.S. Dep’t of Labor v. 

Triplett, 494 U.S. 715, 733 (1990) (Marshall, J., concurring) 

(noting that “the black lung process is highly adversarial”). 

To encourage coal workers to pursue their claims with the aid of 

counsel, the BLBA includes a provision for reasonable attorney’s 

fees if the claimant is successful. 30 U.S.C. § 932(a) 

(incorporating 33 U.S.C. § 928(a)). This adversarial posture 

between the parties remains in the event that either party 
5

appeals the ALJ’s ruling to the BRB, 20 C.F.R. § 725.481, as 

well as in any subsequent appeals to the circuit covering the 

state in which the claimant allegedly contracted pneumoconiosis, 

33 U.S.C. § 921(c).

B.

Gary Fox worked in West Virginia as a coal miner for over 

30 years before his death from coal worker’s pneumoconiosis in 

2009.1

 X-rays taken of his chest in 1997 revealed an 

unidentified mass in his right lung. In 1998, a pathologist in 

West Virginia named Dr. Gerald Koh concluded from surgical 

samples that, among other things, the mass was an “inflammatory 

pseudotumor,” but did not diagnose pneumoconiosis. Nonetheless, 

Fox filed a claim in 1999 for benefits under the BLBA which the 

Director granted in early 2000. Because Fox was employed by Elk 

Run at the time of his claim, Elk Run exercised its right under 

the BLBA to request a hearing before an ALJ.

Prior to the hearing, Elk Run obtained the pathology slides 

from Fox’s 1998 surgical procedure and provided them to two 

additional pathologists: Dr. Richard Naeye and Dr. P. Raphael 

Caffrey. Both pathologists wrote reports summarizing their 

conclusions. Elk Run also requested opinions from several 

 1 Gary Fox’s surviving spouse and successor-in-interest, 

Mary Fox, took over his claim after his death and all references 

to the appellant as “Fox” after his passing are to her.
6

radiologists and submitted them, along with Dr. Koh’s report but 

not Dr. Naeye’s or Dr. Caffrey’s, to four pulmonary specialists. 

The four pulmonologists concluded that, based on the evidence 

available to them, Fox likely did not have coal worker’s 

pneumoconiosis at that time.

The evidentiary hearing occurred on September 19, 2000, at 

which Fox appeared pro se and Elk Run was represented by 

counsel. The ALJ informed Fox that he had a right to 

representation and, when Fox responded that he had not been able 

to find an attorney, the ALJ confirmed his competency and 

willingness to proceed without counsel. (Fox had, however,

procured an attorney to represent him in his concurrent West 

Virginia worker’s compensation claim related to pneumoconiosis). 

During the hearing, the ALJ admitted into the record the reports 

of Dr. Koh, the radiologists, and the pulmonologists, along with 

additional exhibits offered by Elk Run. Fox offered only his 

own testimony. Elk Run did not submit the reports of Dr. Naeye 

or Dr. Caffrey, nor did it disclose their existence to Fox or 

the ALJ. The ALJ denied Fox’s claim on January 5, 2001, finding 

that Fox failed to show he had pneumoconiosis or that he was 

totally disabled due to pneumoconiosis. Fox did not appeal.

Fox retained counsel and filed a new claim on November 8, 

2006. The Director again found him eligible for benefits and

Elk Run once more requested an evidentiary hearing. But this 
7

time Fox, through his attorney, conducted vigorous discovery and 

requested that Elk Run hand over the 1998 pathology slides and 

disclose additional documents and reports pertaining to Fox’s 

medical condition. After some foot dragging, Elk Run admitted 

liability for Fox’s 2006 claim and disclosed the slides and 

several documents to Fox, including the pathology reports of Dr. 

Naeye and Dr. Caffrey. Recognizing that the BLBA bars any 

entitlement to benefits before the ALJ’s 2001 judgment became 

final, 20 C.F.R. § 725.309(c)(6), Fox moved to set aside that

judgment, contending that Elk Run had committed fraud on the 

court because it had not disclosed the Naeye and Caffrey reports 

to its expert pulmonologists.

On July 20, 2011, the ALJ found that the Naeye and Caffrey 

reports diagnosed “complicated pneumoconiosis,” J.A. 416, and 

thus “clearly contradicted Dr. Koh’s finding of an inflammatory 

pseudotumor,” J.A. 427. The ALJ then determined that Elk Run’s 

failure to disclose the Naeye and Caffrey reports to its other 

expert witnesses tainted their conclusions and that, while 

“perhaps initially not concocted as such,” J.A. 427, Elk Run’s 

“actions, taken as a whole, constitute a scheme to defraud,” 

J.A. 429. Dismissing Elk Run’s arguments that its attorneys 

were not defrauding the court but rather zealously representing 

their client, the ALJ ruled that Elk Run had committed fraud on 
8

the court, set aside the 2001 judgment, and awarded Fox benefits 

dating back to January 1997.

On appeal, the BRB accepted the ALJ’s factual findings, but 

held that Elk Run’s “conduct did not rise to the level of fraud 

on the court” because Elk Run “did not engage in a deliberate 

scheme to directly subvert the judicial process.” J.A. 444. 

Because Elk Run had admitted liability for Fox’s 2006 claim, the 

BRB held that Fox was entitled to benefits beginning in June 

2006. One member of the BRB panel dissented, writing that Elk 

Run’s conduct constituted fraud on the court because it had 

failed to disclose all the relevant medical evidence to its own 

experts.

II.

Fox asks this court to set aside the ALJ’s 2001 judgment, 

which would have the effect of moving the onset of her 

entitlement to benefits under the BLBA from June 2006 to January 

1997. She claims that the judgment was fraudulently procured

because, although Elk Run knew that the Naeye and Caffrey 

reports diagnosed her husband with pneumoconiosis, it 

intentionally failed to disclose those reports to its own 

experts and later relied on the conclusions of those experts to 

controvert Fox’s 1999 claim that he had pneumoconiosis. While 

Elk Run’s conduct over the course of this litigation warrants 
9

nothing approaching judicial approbation, we are unable to say 

that it rose to the level of fraud on the court.

The standard of review in cases under the Black Lung 

Benefits Act is well settled. We sustain an ALJ’s factual 

findings if there is “substantial evidence” on the record to 

support them. Harman Min. Co. v. Dir., OWCP, 678 F.3d 305, 310 

(4th Cir. 2012). Fox maintains that, whereas the BRB should 

have affirmed the ALJ’s ruling on substantial evidence grounds, 

it instead improperly held that the ALJ erred “as a matter of 

law.” J.A. 444. However, the operative facts here are simply 

not disputed and only the application of the fraud on the court 

doctrine is at issue. That issue is one of law, which we review 

de novo. See Westmoreland Coal Co. v. Cox, 602 F.3d 276, 282 

(4th Cir. 2010).

A.

Fraud on the court is not your “garden-variety fraud.” 

George P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48 

(1st Cir. 1995). Ordinarily, when a party believes that its 

opponent has obtained a court ruling by “fraud” or 

“misrepresentation,” it may move for relief under Federal Rule 

of Civil Procedure 60(b)(3). Litigants have one year following 

the final judgment in which to make a Rule 60(b)(3) motion. 

Fed. R. Civ. P. 60(c)(1). As we recognized in Great Coastal 

Express, Inc. v. International Brotherhood of Teamsters, this 
10

one year limit balances the competing interests of relieving an 

aggrieved party from the hardships of an unjustly procured 

decision against the deep “[r]espect for the finality of 

judgments . . . engrained in our legal system.” 675 F.2d 1349, 

1354-55 (4th Cir. 1982). Therefore, after a year, the public’s 

powerful interest in leaving final judgments undisturbed 

generally triumphs and “ordinary” fraud will not suffice to set 

aside a ruling. Id. at 1355.

But, as often happens with a rule, there is an exception. 

The savings clause in Rule 60(d)(3) permits a court to exercise 

its inherent equitable powers to obviate a final judgment after 

one year for “fraud on the court.” The Supreme Court addressed 

this doctrine in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 

when it set aside a fraudulently obtained ruling by finding that 

it was the product of one party’s “deliberately planned and 

carefully executed scheme” that severely undermined the 

“integrity of the judicial process.” 322 U.S. 238, 245-46 

(1944). The Court held that ordinary cases of fraud would not 

suffice to violate the “deep rooted policy in favor” of finality 

but that, on the facts before it, the aggrieved party could not 

“have been expected to do more than it did to uncover the 

fraud.” Id. at 244, 246. Moreover, the harm of the fraud in 

Hazel-Atlas was so broad that it “involve[d] far more than an 

injury to a single litigant,” but was rather a “wrong against 
11

the institutions set up to protect and safeguard the public, 

institutions in which fraud cannot complacently be tolerated 

consistently with the good order of society.” Id. at 246. 

Thus, not only must fraud on the court involve an intentional 

plot to deceive the judiciary, but it must also touch on the 

public interest in a way that fraud between individual parties 

generally does not.

We have likewise underscored the constricted scope of the 

fraud on the court doctrine. In Great Coastal, we held that 

fraud on the court is a “nebulous concept” that “should be 

construed very narrowly” lest it entirely swallow up Rule 

60(b)(3). 675 F.2d at 1356. We stressed that this doctrine 

should be invoked only when parties attempt “the more egregious 

forms of subversion of the legal process . . . , those that we 

cannot necessarily expect to be exposed by the normal adversary 

process.” Id. at 1357. Even the “perjury and fabricated 

evidence” present in Great Coastal, which were “reprehensible” 

and unquestionable “evils,” were not adequate to permit relief 

as fraud on the court because “the legal system encourages and 

expects litigants to root them out as early as possible.” Id. 

Instead, the doctrine is limited to situations such as “bribery 

of a judge or juror, or improper influence exerted on the court 

by an attorney, in which the integrity of the court and its 
12

ability to function impartially is directly impinged.” Id. at 

1356.

In succeeding cases we have emphasized this circumscribed

understanding of fraud on the court. In Cleveland Demolition 

Co. v. Azcon Scrap Corp., we held that fraud on the court 

involves “corruption of the judicial process itself” and thus 

the doctrine cannot support allegations involving a “routine 

evidentiary conflict.” 827 F.2d 984, 986 (4th Cir. 1987) 

(internal quotation marks omitted). To hold otherwise, we 

found, would “seriously undermine[] the principle of finality” 

by permitting “parties to circumvent the Rule 60(b)(3) one-year 

time limitation.” Id. at 987. Later, in In re Genesys Data 

Technologies, Inc., we recognized that “[c]ourts and authorities 

agree that fraud on the court must be narrowly construed” or it 

would “subvert the balance of equities” contained within Rule 

60(b)(3). 204 F.3d 124, 130 (4th Cir. 2000) (internal quotation 

marks omitted). “Because the power to vacate a judgment for

fraud upon the court is so free from procedural limitations, it 

is limited to fraud that seriously affects the integrity of the 

normal process of adjudication.” Id. (internal quotation marks 

omitted). We therefore held that “[f]raud between parties” 

would not be fraud on the court, “even if it involves [p]erjury 

by a party or witness.” Id. (internal quotation marks omitted).
13

B.

Proving fraud on the court thus presents, under Supreme 

Court and circuit precedent, a very high bar for any litigant. 

Fox has not met that high standard in this case. Elk Run’s 

alleged fraud does not directly impact the integrity and 

workings of the black lung benefits process in the way that 

Hazel-Atlas and Great Coastal require. Fox does not allege that 

Elk Run bribed or otherwise improperly influenced any officials 

involved in the benefits process, nor does she claim that Elk 

Run encouraged or conspired with its witnesses to suborn 

perjury. Rather, she argues that Elk Run’s nondisclosure of 

certain pathology reports to its own experts “instills 

uncertainty and cynicism” into the black lung benefits system. 

But that is not harmful enough to be a “wrong against the 

institutions set up to protect and safeguard the public.” 

Hazel-Atlas, 322 U.S. at 246. Indeed, if alleged “uncertainty 

and cynicism” were the standard for fraud on the court, we find 

it difficult to imagine how any claim of fraud in an 

adjudicatory proceeding would not fall under its extensive 

canopy. Every litigant could be expected to inflate its 

personal loss into an alleged systemic harm. Elk Run’s 

nondisclosure simply does not “amount[] to anything more than 

fraud involving injury to a single litigant.” Gleason v. 

Jandrucko, 860 F.2d 556, 560 (2d Cir. 1988).
14

Conduct that is not exemplary need not undermine the 

“integrity of the court and its ability to function impartially”

within the meaning of “fraud on the court.” Great Coastal, 675 

F.2d at 1356. The adversary process exists because it permits 

each side to present its own case as well as to test its 

opponent’s in order to expose vulnerabilities of every sort and 

variety. It is, to some extent, a self-policing mechanism. The

relevant provision of the APA contains no requirement that a 

party present the most probative evidence in its possession;

instead, it is permitted to offer any evidence it would like so 

long as that evidence is relevant. 5 U.S.C. § 556(d) (“Any 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.”). Therefore, while 

the ALJ found the Naeye and Caffrey opinions were “more 

probative” than Dr. Koh’s, J.A. 428, Elk Run was under no 

obligation to advance those reports as evidence because someone 

else may believe them superior.

Thus it falls to each party to shape and refine its case, 

subject of course to the risk that its adversary will discredit 

it. One elementary component of the adversary system is crossexamination, which the Supreme Court has recognized is the 

“greatest legal engine ever invented for the discovery of 

truth.” California v. Green, 399 U.S. 149, 158 (1970) (internal 
15

quotation marks omitted). Cross-examination helps to safeguard 

against the ALJ’s concern that, if parties were free to withhold 

probative medical evidence from their experts, “an expert 

medical opinion could never be accepted as a reliable 

diagnosis.” J.A. 430. A party relying on weak evidence to 

sustain its case runs the risk that its experts will crumble 

upon cross-examination or otherwise be impeached by the opposing 

party. The presence of that deterrent means, however, that

routine evidentiary disputes as this cannot clear the high bar 

for an action for fraud on the court. Cleveland Demolition, 827 

F.2d at 986.

In fact, this case illustrates the principle. The ALJ 

recognized that Elk Run’s case in the 1999 claim was vulnerable

when it found that Elk Run “built its case around Dr. Koh’s 

pathology report.” J.A. 428. Fox had the right to crossexamine Dr. Koh regarding his qualifications and conclusions. 

5 U.S.C. § 556(d) (“A party is entitled to . . . conduct such 

cross-examination as may be required for a full and true 

disclosure of the facts.”). He had the right to cross-examine 

Elk Run’s other experts to test their understanding of and 

reliance on Dr. Koh’s report. He had the right to question the 

apparent lack of additional pathology reports. He had the right 

to present a contradictory medical opinion from a pathologist of 

his own choosing. That he did none of those things is not so 
16

much an indictment of the adversary system as it is a statement

that he did not fully avail himself of it.

Fox admits that an attorney experienced in black lung 

claims would have recognized that “something was fundamentally 

wrong” with how Elk Run presented its case as to Fox’s 1999 

claim. Appellant’s Resp. 16. Indeed, once Fox retained an 

attorney for his 2006 claim, he pursued discovery and was 

successful in obtaining the pathology reports and 1998 pathology 

slides. Elk Run’s alleged misconduct could have been “exposed 

by the normal adversary process.” Great Coastal, 675 F.2d at 

1357. Our legal system therefore expected Fox to uncover Elk 

Run’s conduct during the adjudication of Fox’s 1999 claim or, if 

it amounted to Rule 60(b)(3) fraud, at most one year after the

2001 judgment became final. George P. Reintjes, 71 F.3d at 49 

(holding that even perjury is “a common hazard of the adversary 

process with which litigants are equipped to deal through 

discovery and cross-examination and, where warranted,” a Rule 

60(b)(3) motion).

Fox contends that the black lung benefits process is 

somehow different from an ordinary adversarial procedure and, in 

effect, urges us to alter that process by finding that Elk Run 

had a duty to share with its experts all of the medical 

information it had obtained. To that end, the ALJ found that 

Elk Run had a duty to “provide accurate evidence to its expert 
17

witnesses.” J.A. 430. But that duty--and the judicial 

supervision that would inescapably go with it--would carry ALJs 

far afield from their role as neutral arbiters. See Underwood 

v. Elkay Min., Inc., 105 F.3d 946, 949 (4th Cir. 1997) (finding 

that the ALJ in a BLBA proceeding is the “trier of fact” charged 

with “evaluat[ing]” and “weigh[ing] the evidence”) superseded on 

other grounds as recognized in Elm Grove, 480 F.3d at 291. Any 

duty imposed upon a party to furnish its expert witnesses 

certain documents would improperly impinge on that party’s right 

to develop its own evidence, handle its own experts, and present 

its own case. See, e.g., Hickman v. Taylor, 329 U.S. 495, 511 

(1947) (holding in the context of the work product privilege 

that the adversary system requires a party’s attorney be 

permitted to “assemble information, sift what he considers to be 

the relevant from the irrelevant facts, prepare his legal 

theories and plan his strategy without undue and needless 

interference”). Fox’s proposed duty would launch an infinite 

number of new challenges by parties alleging their opponents’ 

breach of the duty, thereby thrusting judges deep into the heart 

of the adversary process and the attorney-client relationship.

What Fox requests is something akin to a civil Brady rule, 

where parties would be obligated to disclose or at least 

identify any evidence helpful to their opponent regardless of 

whether it is privileged. See Brady v. Maryland, 373 U.S. 83, 
18

86 (1963) (finding that due process requires the government to 

disclose to a criminal defendant information favorable to his 

defense). But courts have only in rare instances found Brady

applicable in civil proceedings, mainly in those unusual cases 

where the potential consequences “equal or exceed those of most 

criminal convictions.” Demjanjuk v. Petrovsky, 10 F.3d 338, 354 

(6th Cir. 1993); see also Brodie v. Dep’t of Health and Human 

Servs., No. 12-1136 (RMC), slip op. at 9-10 (D.D.C. June 27,

2013) (examining cases and declining to apply Brady in an 

administrative hearing). We see no reason to expand Brady to 

this administrative adjudication. In a criminal case, the 

government’s duty to disclose under Brady arises from the 

obligation of the prosecutor not simply to convict, but to see 

that justice is done. United States v. Agurs, 427 U.S. 97, 110-

11 (1976). The civil context is not analogous. There, the 

basic duty of an attorney to his or her client is not offset by 

the countervailing duty a government prosecutor has to exercise 

in the interest of justice his or her awesome and extraordinary 

powers.

Fox points out that her husband proceeded pro se before the 

administrative tribunal in his 1999 claim, but that point, while 

appealing, carries only so far. Fox was instructed of his right 

to an attorney who would receive compensation if his claim was 

successful. He had retained counsel for his state benefits 
19

claim, demonstrating that he knew the advantages of professional

representation. It is true that Fox’s pro se presentation of 

his 1999 claim did not match the counselled presentation of his 

2006 claim. But the narrow confines of fraud on the court 

doctrine have never permitted claimants to relitigate old claims 

they have lost, simply because a better prior case presentation 

might have resulted in an earlier success. Finally, courts are 

not at liberty to exceed the parameters of what Congress has 

provided. Of course, Congress might have provided counsel to 

miners under the BLBA at public expense, but it did not do so. 

Instead, Congress left to the practiced judgment of attorneys 

which claims for benefits they thought were most likely to be 

successful. And in doing so, Congress adopted within the BLBA 

the dynamics of the adversary process. See Triplett, 494 U.S. 

at 733 (Marshall, J., concurring) (“Because an operator faces 

the prospect of paying significant awards, it is often willing 

to pay substantial legal fees to defend against black lung 

claims.”); Treadway v. Califano, 584 F.2d 48, 49 (4th Cir. 1978) 

(holding that in its 1972 amendments to the BLBA, Congress made 

the benefits adjudication process “adversarial” because “the 

burden of the payment might be imposed upon an individual coal 

operator or upon the industry”). Recognizing Fox’s claim would 

alter Congress’s adversary design beyond our authority to do so.
20

Elk Run insists it has done nothing wrong and that it has 

proceeded properly at every turn. It maintains that the medical 

evidence in general and Dr. Naeye’s pathology report in 

particular are more ambiguous than Fox makes them out to be. It 

further notes that no party is bound by every conclusion of the 

experts it may hire. See Horn v. Jewell Ridge Coal Corp., 6 

Black Lung Rep. (Juris) 1-933, 1-937 (Ben. Rev. Bd. 1984). 

Finally, it contends that it did not have any intent to defraud 

the court by declining to disclose the reports of Dr. Naeye and 

Dr. Caffrey because, as non-testifying consulting experts, their 

reports were protected by the work product privilege--a 

protection that would have been lost if the reports had been 

provided to Elk Run’s testifying experts. See Elm Grove, 480 

F.3d at 303 n.25. We see no reason to address these matters 

when a plain, narrow disposition is available. We bestow no 

blessing and place no imprimatur on the company’s conduct, other 

than to hold that it did not, under a clear chain of precedent, 

amount to a fraud upon the court.

III.

For the foregoing reasons, the judgment of the Benefits 

Review Board is affirmed.

AFFIRMED