July 17
Bart Beckley, Individually and as the Administrator of the Estate of Charles Galen Beckley vs. Charles L. Schultz and Charles T. Schultz
PA- James A. Varner; Michael D. Crim; J- Hummel
* On March 13, 2012, Charles Beckley was a pedestrian walking northbound on Frontage Road, in the company of a friend. Charles L. Schultz hit Beckley, hurling him through the air resulting in catastrophic injuries, proximately causing his death. It is believed that Schultz was using a cellular phone and was distracted at the time he struck the decedent. The estate demands compensation for this gross negligence.
Case number: 12-C-140

Margaret Daugherty vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* Plaintiff signed a contract with defendant to construct a new roof, on July 26, 2010. Plaintiff left an exposed area on the porch during an attempted repair. Defendant did not return for several weeks; plaintiff had to cover the exposed area with her own shower curtain. Damages are demanded for this negligence and breach of contract.
Case number: 12-C-142

James and Donna Maxwell vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* On July 5, 2010, Plaintiffs signed a contract to construct new roofs on their house, garage, and carport. Upon completion of the job, Plaintiffs’ ceiling leaked in the bedroom, “sagging almost to the point of falling in.” Damages for this negligent breach of contract are sought in a trial by jury.
Case number: 12-C-143

Robert E. and Jean Roberts vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* On July 6, 2010, Plaintiffs signed a contract with defendant to construct a new roof for plaintiff’s house and siding for the sum of $16,697.51. Mr. Buchanan assured that 40 year shingles would be installed; yet, defendants installed 30 year shingles. Numerous items have remained unrepaired. A request for damages of $65,000 is demanded in a trial by jury.
Case number: 12-C-145

Michael Berlin vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* On July 15, 2010, Plaintiff signed a contract to construct a new roof, gutters, soffit, fascia, and siding for Plaintiff’s house in the sum of $16,000. One of the crew members struck Plaintiff’s sewer line while working on the back deck roof. The crew foreman told the crew member to keep his mouth shut. Plaintiff had to pay Panhandle Cleaning and Restoration approximately $12,000 out of pocket expenses. The amount of damages for this negligence and breach of contract will be determined at trial.
Case number: 12-C-146

William and Melinda Smith vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* Plaintiff signed a contract to construct a new roof on their house for the sum of $7,281.39. Water damage exists on and behind the bedroom wall. Individuals who sleep in this room experience breathing problems and headaches. There are concerns that there may be mold behind the wall. Total damages for repair and replacement costs are demanded in the amount of $50,000.
Case number: 12-C-147

July 27
John M. and Tonda Angiulli vs. Ray Anthony, LLC , a/k/a Ray Anthony International, LLC, and John Scarfo
PA- Joseph H. Fox; J- Karl
* Angiull was operating a truck owned by Nichols Construction on Aug. 11, 2010. Scarfo was the operator of a tractor owned by Ray Anthony; traveling southbound in the opposite direction, on Route 250. Scarfo operated his vehicle in such a fashion as to over- correct or over- steer the vehicle. The trailer attached to Plaintiff’s vehicle struck, with great force, against a guardrail before dragging Plaintiff’s vehicle and causing injury to the Plaintiff. Damages are claimed in a trial jury.
Case number: 12-C-156

Paul and Amy Kaschke vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* Defendant’s representative inspected Plaintiff’s roof and informed them of hail damage. About June 2010, a contract to replace the entire roof and chimney was signed. During construction, Plaintiffs notified Defendant of their concerns that the roof had “many waves.” A new contractor was hired who determined the poor workmanship would not last another year. A total request of $50,000 is sought for repairs and damages.
Case number: 12-C-157

Mary Ellen Fluharty vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* A contract was signed for the construction of a new roof, on July 21, 2010, for the sum of $7,500. Completed construction on the roof resulted in numerous problems with additional damages. In Nov. 2010, Plaintiff contacted the Attorney General who contacted defendants. The work agreed upon was not completed and damages and costs are sought.
Case number: 12-C-158

Sondra Cuchta vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* A contract was signed to construct a new roof on Plaintiff’s house for the sum of $9,653.60. During construction, open holes were left in the roof. A complaint was made to the State Attorney’s Office. A final opportunity to resolve its investigation of Defendant’s violation was given. Damages on all counts are sought in a trial by jury.
Case number: 12-C-159

Carmina Oakland vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* On Sept. 4, 2010, a contract was entered for the construction of a new roof in the amount of $4808.25. Plaintiff wrote a letter to Defendant explaining that her roof had seventeen leaks and that the box gutters were replaced with paper. As a result of this negligence, Oakland has been damaged, including the cost to repair the roof and internal damage to her home. Plaintiff demands a trial by jury.
Case number: 12-C-160

July 30
Noah K. and Cheryl Whitt vs. Dewey Dulany and John Doe
PA- Jacob M. Robinson; J- Hummel
* On July 29, 2010, in the parking lot near Dorsey Street, Dulany collided with Whitt who was a walking pedestrian. At this time, Plaintiff was insured by Peak Property and Casualty Insurance. He is entitled to the full benefits of all uninsured coverage from Peak. Whitt has incurred medical expenses to effect a cure for his injuries, in amount yet to be determined. Demand is made for a trial by jury to compensate Plaintiff for his damages.
Case number: 12-C-161

Judd W. Caldwell vs. Frederick Games, II as next friend and guardian of Kolby Games, a minor
PA- David A. Jividen; J- Karl
* On Aug. 19, 2011, Caldwell was traveling north on Big Grave Creek Road. Games was traveling in the opposite direction when he crossed the center line and collided with Caldwell. Games was cited for this violation. Caldwell’s injuries may be permanent and he believes he will incur additional medical expenses for which he seeks adequate compensation.
Case number: 12-C-162

July 31
John Thomas Wilson vs. J.F. Allen Company and John Doe Company
PA- Ronald W. Zavolta; J- Hummel
* J.F. Allen was hired through the State of West Virginia to perform construction related services on W.Va. 2. Said work included the removal of dirt. Defendant negligently failed to exercise a duty of reasonable care owed Plaintiff. Defendant moved rock, soil, and dirt to an unfit location on Wilson’s property. Failure to adequately secure and maintain said construction area have deprived Plaintiffs loss of use and diminution in value of their property. Compensatory damages are demanded.
Case number: 12-C-163

Aug. 3
Mallory Ball; Charles Buzzard vs. Bradley Littleton; Tri-State Ambulance, Inc.
PA- Brent E. Wear; Herman D. Lantz; J- Karl
* Ball was driving a vehicle owned by Buzzard and entered the intersection of Tomlinson and Second Street, on July 14, 2011. Defendant Littleton was operating an Ambulance and negligently drove into the driver’s side of Buzzard’s vehicle causing a collision to occur. Ball was caused to be injured in and about her head, neck, and body; and inasmuch as all or part of her injuries are believed permanent and lasting in nature. Plaintiff’s medical care and attention to date are $10,825.60. Compensatory damages are demanded.
Case number: 12-C-164

Mary Cogar vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* About May 2010, Plaintiff signed a contract for the construction of a new roof on her front and back porch, for the sum of $1,456.14. During the first rainstorm, following Defendants completed construction, the roof leaked. Plaintiff used three (3) large buckets to catch the water that poured into her home. As a direct result of Defendant’s conduct, Plaintiff has been damaged and demands compensation.
Case number: 12-C-165

Mary Brooks vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Karl
* Plaintiff signed a contract to construct a new roof on her residence, on Aug. 4, 2010. After Defendant completed construction of the roof, Plaintiff noticed that a portion of the roof was not finished. An agent of Cutter’s Roofing and Siding inspected the roof and informed Plaintiff that her roof was installed incorrectly. Judgment for $25,000 is demanded for this breach of contract.
Case number: 12-C-166

Aug. 9
Sharlene F. Lucey vs. Thomas P. Takitch, Sr.
PA- Pro Se; J- Karl
* Lucey says Takitch came on Oct. 15, 2009, to pick up six of the 12 dairy Holsteins and returned the following week to pick up the remaining six. There was an understanding that he would pay for all 12 head at the end of October 2009. On Nov. 19, 2009, Takitch filed a Chapter 12. Lucey did not receive payment for her cattle and to her understanding, Defendant is no longer in possession of the cattle. Numerous calls to Defendant have gone unanswered. Lucey seeks justice.
Case number: 12-C-168

Aaron Birtcher, individually and on behalf of all others similarly situated vs. Consolidation Coal Company
PA- Sandra K. Law; J- Hummel
* The Plaintiff was employed at the Marshall County facility, until Feb. 17, 2012. Class members were discharged at various times from 2007 to 2012; benefits and wages were not paid in a timely manner. The Court is asked to appoint Plaintiff as a representative of the class and award each member allowable damages.
Case number: 12-C-169

Lisa Reilly- Koontz and Whitney Koontz vs. Michael Alan Grow and Allen E. Clyburn
PA- David A. Jividen; J- Karl
* Plaintiff Whitney Koontz was a front seat passenger in Lisa Koontz’s vehicle, on Aug. 21, 2010. They were traveling eastbound on Route 86 near Glen Dale Heights and Michael Grow was traveling in the opposite lane of traffic. Grow struck the guardrail and then the struck the vehicle Koontz was operating. Grow was cited for traveling left of center by law enforcement. Both Plaintiffs have suffered physical pain. Punitive damages are also sought for extreme intentional and outrageous conduct.
Case number: 12-C-170

Aug. 13
Scott Mandirola, Director, Division of Water and Waste Management, WVDEP vs. J & D Gasoline Alley and John and Diane Young
PA- Jonathon Frame; J- Karl
* To date, Defendants have failed to remit payment of fees owed WVDEP, as directed by both the Notices of Violation and a Sept. 7, 2010 Order. Defendant has incurred additional annual registration fees associated with the UST system at issue. The registration fees owed currently total $3,600.
Case number: 12-C-172

Aug. 17
Kenneth and Sharon Tucker vs. D.D. Exterior Enterprise, LLC, d/b/a Equity One Exteriors
PA- Paul J. Harris; J- Hummel
* Defendant’s representative inspected Plaintiff’s roof and informed them there was hail damage. The roof of a second house, owned by Plaintiffs, was also inspected. Hail damage was found on that roof , also. A contract was signed to replace both roofs. The roofs leaked during a rainstorm. Tar was applied over the open areas in an attempt to fix the leaks. Compensation is requested for the breached duties owed.
Case number: 12-C-177

Aug. 17
Lula Elwanda Gilmore vs. Range Resources-Appalachia, LLC, formerly known as Great Lakes Energy Partners, LLC, et al
PA- Daniel J. Guida; Eric Gordon; Jonathan E. Turak; J- Karl
* Plaintiff is the owner of 87.862 acres of land in Marshall County, along with the gas rights. Recent technological developments of drilling methods, the oil and gas companies are now able to cost effectively extract and transport oil and gas rights from property owners. Compensatory damages are sought for economic loss, slander of title, along with lost opportunities for use of her land.
Case number: 12-C-178

Robert E. and Rosemary Y. Conner vs. Range Resources -Appalachia, LLC, formerly known as Great Lakes Energy Partners, LLC, et al
PA- Daniel J. Guida; Jonathan E. Turak; J- Hummel
* As a result of recent technological developments in horizontal drilling, the oil and gas companies are now able to effectively develop deep shale formations like the Marcellus and Utica formations. This advancement in technology engulfs a much greater surface area, is more disruptive to the surface of the land than that of shallow well drilling. Plaintiffs were misled about the extremely low offer price per acre required under state law. The Court is requested to make a declaration regarding Defendants’ respective duties and judgment is demanded for compensatory damages to all economic loss.
Case number: 12-C-179

Sammy W. and Martha A. Anderson; John A. and Patricia A. Bungard, Sr.; Brandy Jo and Douglas J. Hudson; Kevin R. Evans; Gregory A. Knight; Vernon and Judith E. Knox; Hubert and Andrea Kuhn; Dorothy L. Pettitt; Charles A. and Jacqueline Susan Pettit; James Russell Wise, Jr.; Sharon M. Wise and Viola Jane Wise vs. Range Resources -Appalachia, LLC, formerly known as Great Lakes Energy Partners, LLC, et al
PA- Daniel J. Guida; Jonathan E. Turak; J- Karl
* The subject leases expired under their own terms and are no longer in full force and effect. The possession of Plaintiffs’ lease rights by Defendants Range, Chesapeake and/or Statoil, constitute an unlawful holding over, as the subject leases have expired. The acts engaged herein represent an ongoing slander of title to Plaintiffs’ properties. Punitive damages should be assessed, in a trial by jury, to punish Defendants and deter similar bad faith conduct in the future.
Case number: 12-C-180

Aug. 21
James L. and Connie Gorder vs. Precision Pipeline Equipment, Inc., and Eliott Pasquarette
PA- David L. Delk, Jr.; J- Hummel
* About June 18, 2012, at or near the intersection of Burch Ridge Road and W.Va. 2, Pasquarette negligently caused his vehicle to collide with a motor vehicle operated by Plaintiff.
Case number: 12-C-181

Aug. 22
Cherie and Charles Buzzard vs. DolgenCorp, LLC, d/b/a Dollar General Stores; and HMDG, LLC, et al
PA- C. Richard Wilson; J- Karl
* Cherie Buzzard slipped and fell as a result of a liquid that had accumulated on the floor near the check out area. Defendants failed to take steps to eliminate the hazard. As a result, plaintiff has incurred medical expenses and may incur additional future expenses. A judgment is sought in an amount to be determined by jury.
Case number: 12-C-182

Aug. 23
Melissa D. Wallace vs. Darrell H. Taylor
PA-Eric M. Gordon; J- Karl
* About Aug. 31, 2010, the plaintiff was heading south on Wheeling Ave./ WV Route 2, in Glen Dale. She stopped in the passing lane waiting for traffic to clear in order to make a left turn onto Lindy Lane. Defendant was traveling south behind plaintiff when he struck her from behind. Wallace sustained bodily injuries and medical bills for which Judgment is demanded.
Case number: 12-C-184

Aug. 27
Credit Union of Ohio, Inc. vs. Deborah Dean
PA- Ryan S. Marsteller; J- Karl
* On Jun. 1, 2008, the Defendant executed loan documents related to a line of credit. Dean has failed and refused to pay amounts loaned and the Plaintiff is owed the sum of $8,452.61. This amount along with pre- and post- judgment interest is demanded.
Case number: 12-C-186

Aug. 28
Credit Union of Ohio, Inc. vs. Deborah Dean
PA- Joseph R. Canestraro; J- Karl
* About Sept. 20, 1984, Wheeler was bequeathed real estate situate in Washington District. In April 2003, Defendant erected a fence on Plaintiff’s property and prior to this erected a building onto 8 feet of Plaintiff’s property. Plaintiff demands that a final property line be determined. Compensatory damages are requested.
Case number: 12-C-188

Aug. 31
David Radar vs. Consol Energy, Inc., a Corporation, and John Doe, (1-10), individually and in his capacity as an employee, servant or agent of Consol Energy, Inc.
PA- Herman D. Lantz; J- Hummel
* Radar owns certain property located in Glen Easton. Said property was used by the Plaintiff as a family camp. Plaintiff discovered, in Jan. 2011, Defendants had boarded up and taken dominion of the property. Plaintiff contacted Consol who offered to purchase said property for $27,000. Radar seeks a judgment for compensatory and punitive damages.
Case number: 12-C-193

Sept. 4
Roger H. Hall, Jr. vs. Gastar Exploration USA, Inc.
PA- Joseph R. Canestraro; J- Karl
* Gastar placed 3 horizontal wells, labeled as Hall wells #1, #2, and #3, on Plaintiff’s property, and commenced drilling operations in July 2011. Defendant owed a duty not to use the surface of Plaintiff’s land for drilling operations without Hall’s permission. Defendant has failed to adequately reclaim the disturbed well area and has failed to compensate Plaintiff for same. The Court is asked to adequately compensate Hall for his damages.
Case number: 12-C-194

Sept. 7
Judith M. Booth and Eric Booth vs. Amy E. Hill
PA- Clayton J. Fitzsimmons; J- Karl
* Judith Booth was traveling south on WV Route 2, on Mar. 10, 2012, when she came to a stop in the traffic lane. Defendant drove into the rear end of Plaintiff’s vehicle; causing a collision to occur. The collision caused Plaintiff’s vehicle to strike the vehicle that was in front of her. As a result, Booth sustained personal injuries and damages. Lost wages and medical expense are requested in a trial by jury.
Case number: 12-C-198

Sept. 14
West Virginia University Hospitals, Inc. vs. Joshua A. Sprague
PA- Edward L. Harman, Jr.; J- Hummel
* Sprague owes WV University the sum of $13,618. for services rendered. Judgment is demanded together with 7% interest.
Case number: 12-C-203

Hartley

MOUNDSVILLE – A class action settlement could provide approximately $6.6 million in free medical examinations for some workers at coal and water treatment plants.

Marshall County Circuit Court Judge David Hummel gave preliminary approval to the settlement in December, and plaintiffs attorneys recently released information related to it. A website – FlocSettlement.com – has also been established.

The lawsuit concerned a certain type of water treatment chemical called polyacrylamide, often referred to as “flocculent” or “floc.” The defendants were manufacturers and distributors of the chemical and included Chemtall, CIBA Specialty Chemicals, Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco, Stockhausen and Zinkan Enterprises.

The lawsuit said workers at plants that used the chemical have a higher risk for sensory or autonomic nervous system deficits.

The complaint says the class members are at an increased risk for cancer of the testicles, adrenal gland, mammary gland, uterus, thyroid, pancreas, brain, spinal cord and lungs.

“The acrylamide monomer is toxic and is an irritant,” says the complaint, filed in 2003.

“Cases of acrylamide poisoning show signs and symptoms of local effects due to irritation of the skin and mucous membranes and systemic effects due to the involvement of the central, peripheral and autonomic nervous systems.

“The neurotoxicity of acrylamide has been recognized since the early 1950s during toxicologic studies prompted by the advent of large-scale production of acrylamide for the polymer industry.

“Within five months of commencing manufacture of acrylamide, several factory workers developed a peripheral neuropathy strikingly similar to neurologic signs previously noted in animals chronically intoxicated with acrylamide.”

Class members must file a claim form to get a medical examination. A deadline to do so has not been determined yet, but attorneys involved say it could be as early as March 1, 2014.

Class members cannot exclude themselves from the settlement, which means they can’t sue as individuals for free examinations. However, should a class member develop an injury, he or she will still be able to file a lawsuit.

Class members may object to the settlement by April 1. A fairness hearing is scheduled for May 1.

The defendants have not admitted liability. The settlement notice will be published in newspapers and a 30 second radio spot is being aired.

Representing the plaintiffs is R. Dean Hartley of Hartley & O’Brien.

Money left from the claims period will be donated in equal shares to the Blanchette Rockefeller Neurosciences Institute in Morgantown and the Center for Rural Health at the Joan C. Edwards School of Medicine at Marshall University.

The defendants agreed to pay $13,950,000 total in the settlement. G.E. Betz will be responsible for paying attorneys fees and costs to the plaintiffs lawyers.

According to the settlement agreement, plaintiffs attorneys plan to petition the court for a fees award of one-third of the total settlement ($4.65 million), along with litigation costs that cannot exceed $2 million.

The defendants agreed not to dispute the fees award. The defendants are also paying $750,000 in notice and administrative costs.

Frank

MOUNDSVILLE – The founder of the Center for Class Action Fairness says a recent settlement in Marshall County that provides medical monitoring and millions of dollars in fees for attorneys appears unfair.

Ted Frank, who founded the CCAF in 2009 and is an adjunct fellow at the Manhattan Institute, says his project doesn’t solicit clients but would consider helping any class member who wishes to object to the settlement before an April 1 deadline.

The settlement, reached in Marshall County Circuit Court, provides up to $6.6 million in medical tests for individuals who worked at coal and water treatment plants who were possibly exposed to a chemical called polyacrylamide, often referred to as “flocculent” or “floc.”

The lawsuit said workers at plants that used the chemical have a higher risk for sensory or autonomic nervous system deficits but doesn’t allege any injuries have yet occurred.

Plaintiffs attorneys plan to request one-third of the $13.95 million and almost $2 million in costs.

Money left in the $6.6 million medical monitoring fund after a court-approved deadline will be given to the Blanchette Rockefeller Neurosciences Institute in Morgantown and the Center for Rural Health at the Joan C. Edwards School of Medicine at Marshall University.

“A settlement fee request where the attorneys propose to get $6.62 million and the class members get $6.58 million is unfair on its face – especially when it appears structured so that much of that $6.58 million will actually end up in the hands of third parties long after the attorneys have collected their checks,” Frank said.

“One hopes that a class member objects to this disproportionate distribution, and that, whether or not such a class member comes forward, West Virginia courts provide protection for innocent class members being taken advantage of by their attorneys.”

The defendants were manufacturers and distributors of the chemical and included Chemtall, CIBA Specialty Chemicals, Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco, Stockhausen and Zinkan Enterprises.

Class members must file a claim form to get a medical examination. A deadline to do so has not been determined yet, but attorneys involved say it could be as early as March 1, 2014.

Class members cannot exclude themselves from the settlement, which means they can’t sue as individuals for free examinations. However, should a class member develop an injury, he or she will still be able to file a lawsuit.

Class members may object to the settlement by April 1. A fairness hearing is scheduled for May 1.

The defendants have not admitted liability. The settlement notice will be published in newspapers and a 30-second radio spot is being aired.

Representing the plaintiffs is R. Dean Hartley of Hartley & O’Brien. He did not return a phone message seeking comment.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Leahey

CHARLESTON – The state Supreme Court didn’t treat kindly the appeal of American Electric Power as it argued against sanctions imposed against it in a case involving a fatal accident.

Justices Menis Ketchum and Robin Davis on Jan. 23 made things tough for Michael Leahey of Jackson Kelly as he tried to explain why an evidentiary hearing was needed to address Marshall County Circuit Court Judge David Hummel’s ruling of sanctions.

The sanctions dismissed AEP’s cross-claims against Pullman Power, Structural Group and Ershigs, Inc., over a chimney stack fire that killed Gerald Talbert and injured David Earley and Timothy Wells.

AEP and Ohio Power Company blamed those companies in their cross-claims for their performance of the work in constructing the chimney stack.

The examination of Leahey during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas Mannion, who represented Pullman and Structural, not say anything that would lose him the case.

And when Tiffany Durst, who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”

Durst responded, “I don’t want to even begin to answer that question.”

At the conclusion of Durst’s and Mannion’s time, Leahey arose to reply. He said the decision to go before the justices again was “against my better judgment.”

All discovery in the case was due Jan. 14, 2011, and a trial date was set for three months later.

Prior to trial, Earley, Wells and the Estate of Talbert settled their claims. However, a month before trial, Jackson Kelly disclosed that some electronically stored information potentially relevant to the case existed.

It had been in the possession of Edward Smallwood, an attorney with Swartz Campbell, Leahey said. Jackson Kelly had taken over the case from Swartz Campbell.

The amount of documents was massive – from 750,000 to 1,500,000.

In April 2011, Pullman Power, Structural Group and Ershigs moved for sanctions. Their motion was granted in the form of the cross-claims being dismissed.

AEP and Ohio Power wanted an evidentiary hearing to discuss whether the discovery violation was made in bad faith.

Davis and Ketchum said no case law existed that said an evidentiary hearing was required. They also expressed frustration with attorneys who do not adhere to case management deadlines.

Three other cases were heard Jan. 23. They were:

-Wheeling Hospital’s appeal of an Ohio County Circuit ruling regarding the tax rate the hospital must pay;

-The appeal of the reversal of a Board of Review of Workforce West Virginia decision that said a woman was disqualified from receiving unemployment benefits after a change in her hours conflicted with daycare hours; and

-The criminal appeal of Gary Baker, who was convicted of robbing a Subway employee in Fairlea.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

MOUNDSVILLE – A man is suing the Health Plan of the Upper Ohio Valley, Inc., claiming it owes him more than $450,000.

On Sept. 30, 2001, Emil R. Nardone II and the defendant entered into a provider agreement in which Nardone agreed to provide chiropractic and related healthcare services to members of the defendant’s health maintenance organization, according to a complaint filed Jan. 29 in Marshall Circuit Court.

Nardone claims in early 2011, the defendant began withholding payment for chiropractic services.

During this same time period, Nardone hired an independent consultant and medical auditor, Dr. Tom Necela, to audit his chiropractic business and medical practice, according to the suit.

Nardone claims in May 2011, Necela reported that his practices were all up to or above professional standards for the chiropractic industry.

In February 2012, in an effort to resolve ongoing disputes with the defendant, Nardone asked the defendant to visit his office to have a meeting to discuss the ongoing billing disputes and remedy whatever disagreements there were, according to the suit.

Nardone claims his request was denied and the defendant requested that he come to its office in St. Clairsville, Ohio, to which he agreed.

On Feb. 24, Nardone went to the defendant’s office for the meeting and, because he had doubts about the defendant’s good faith commitment, he asked his counsel to join him, according to the suit. He says upon arriving at the office, he was taken to a conference room where the defendant’s medical director, head nurse, fraud investigator, general counsel and various claims reviewers were convened.

Nardone claims when it became clear that the meeting was not to discuss a resolution of the billing disputes, but instead to interrogate him in the hopes of finding him in breach of the provider agreement or in violation of law, his counsel advised him to cease cooperating in the interrogation and they were then asked to leave the meeting.

Following the meeting, the defendant continued its pattern of ignoring, denying or frustrating Nardone’s attempts to pre-authorize and seek reimbursement for treatment provided to the defendant’s members, according to the suit.

Nardone claims on Oct. 16, the defendant issued a notice of denial of medical coverage to one of its members who had been referred to him.

On Nov. 25, the provider agreement was terminated, according to the suit, and in December, the defendant began actively advising its members not to pay Nardone for any amounts billed for services previously provided pursuant to the provider agreement.

Nardone claims the defendant was actively informing its members that he was under investigation by its fraud unit and instructing the members not to pay him for services he provided.

The defendant unfairly accused him of balance billing and demanded that he cease and desist from any such activities, according to the suit.

Nardone claims that, according to an audit performed by his third-party billing company on Oct. 4, 2012, the defendant owed $453,879.30 in combined outstanding payment obligations for services rendered.

As a result of the termination of the provider agreement, Nardone has lost between 25 and 30 percent of his client base, according to the suit.

Nardone is seeking compensatory damages and declaratory judgment pursuant to West Virginia code finding that the defendant cannot deny him reimbursement, engage in discriminatory reimbursement policies, employ or contract with non-licensed chiropractors and prevent him from attempting to collect from the defendant’s members for all non-covered benefit charges or co-payments or reasonable deductibles. He is being represented by Teresa C. Toriseva and Glenn F. Elliott Jr.

Jan. 8
Government Employees Insurance Company vs. Kelley Poplawski
PA- Rebecca W. Wright; J- Hummel
* It is alleged that Defendant Poplawski took a motor vehicle owned by plaintiff’s insured, Monica Carroll, without permission. As a direct result of Poplawski’s negligence, Carroll’s vehicle was damaged in the amount of $8,140.85, taking into account towing, storage, car rental or salvage fees, the suit says. Plaintiff compensated its insured for the loss, thereby becoming subrogated to her rights and claims in this action.
Case number: 13-C-2

Jan. 9
Dustin J. Harshey vs. McElroy Coal Company, Michael Conjeski, et al
PA- Timothy C. Bailey; J- Karl
* On Jan. 20, 2012, Plaintiff was repairing a cable. The operator of a Joy ram car was allegedly not able to see Plaintiff and ran him over, pinning him under the machine. Serious, permanent and disabling injuries resulted in several surgeries as a result of this incident. An investigation by mining authorities revealed the Joy ram car had defective, hazardous and unsafe lighting system, the suit says. This is said to present a life-threatening environment for miners working within the vicinity of this piece of equipment. Harshey demands a compensatory and punitive judgment.
Case number: 13-C-3

Jan. 10
William Gibson and Lori Ann Klein vs. Dominion Transmission, Inc., et al
PA- Anthony I. Werner; J- Hummel
*Plaintiffs are joint owners of property in the Sand Hill District. Defendants are trespassing through means of an incorrect property boundary survey, they claim. Substantial damage includes the disruption and removal of dirt and trees, along with unlawful occupation of the property, they claim. Plaintiffs seek to recover their damages.
Case number: 13-C-4

Gregory A. and Marsha M. Norman vs. Erie Insurance Property & Casualty Company
PA- Scott S. Blass; J- Karl
* On Jun. 29, a severe windstorm caused damage to the roof of the Normans’ home in McMechen. Erie and its representatives have refused to pay its obligated benefits under Plaintiffs’ policy of insurance, they claim. Plaintiffs demand judgment to effectuate a prompt, fair and equitable settlement.
Case number: 13-C-5

Jan. 11
Jodie Woodburn vs. Frank C. Clark, Ronald M. Kittle and Long Ball, LLC d/b/a Home Plate Lounge
PA- Timothy C. Bailey; J¬- Hummel
* On Apr. 26, 2011, Defendants Clark, Kittle and/or Long Ball failed to exercise reasonable care in the possession and management of an apartment on 4th Street in Moundsville, the suit claims. The rear stairs and deck area are blamed for Woodburn’s fall and subsequent injuries. Judgment by jury trial is demanded.
Case number: 13-C-8

Jan. 15
David R. and Sharon S. Hall vs. Chesapeake Appalachia, LLC, and Statoil USA Onshore Properties, Inc.
PA- Eric M. Gordon; J- Karl
* Plaintiffs are the owners of a 116-acre parcel in Cameron District, with all of the coal, oil, gas and other minerals reserved by the sellers. Defendants have not reclaimed Plaintiffs’ property. A slip has allegedly developed leading from pad site onto Plaintiffs’ property. Trees have been damaged, inhibiting the use of the property while diminishing the property value, they claim.
Case number: 13-C-9

Jan. 17
Mound View Health Care, Inc. vs. George McCarrihan
PA- Kevin M. Pearl; J- Hummel
* McCarrihan was a resident of Plaintiff’s facility from May 18 through Oct. 9. During his stay, charges totaling $22,860 were incurred, the suit says. Defendant has allegedly failed to make any payments constituting a breach of contract for which judgment is demanded.
Case number: 13-C-10

Jan. 18
Brittanny Hanket, f/k/a. Brittanny LeMasters vs. Justin Williams and Rolland Williams
PA- Robert P. Fitzsimmons; J- Karl
* Justin Williams was using an ATV on Mar. 17, 2011, with permission from his father at the time of a collision. He was allegedly reckless by not being in reasonable control. As a result, Hanket says she suffered serious and permanent injuries with a left wrist fracture. She says she has incurred medical expenses and will require future medical attention for her injuries. Compensatory and punitive damages are sought.
Case number: 13-C-11

Jan. 25
Gito, Inc. d/b/a Nello Construction Company, for the use and benefit of Cost Company vs. Board of Education of the County of Marshall
PA- Lawrence P. Lutz, Michael J. Pawk, Ross A. Giorianni; J- Karl
*On May 5, 2010, Marshall and Nello entered a contract whereby Nello was to serve as the contractor for general construction associated with the new Cameron High School. This claim is being brought solely for the use and benefit of its masonry subcontractor, Cost. Marshall has refused to pay Cost in response to their request for damages in excess of $1 million for alleged project delays and inefficiencies. Judgment, in excess of jurisdictional limits, is demanded in a jury trial.
Case number: 13-C-13

Jan. 29
William Brooks, individually and on behalf of all others similarly situated vs. G4S Secure Solutions (USA) Inc.
PA- Yolonda G. Lambert; J- Hummel
* Defendant was discharged on Nov. 28, 2012, with other proposed class members from 2007 through 2012. Class members were allegedly not paid their wages and benefits in a timely manner. The members will not seek individual damages exceeding $75,000.
Case number: 13-C-16

Emil R. Nardone II vs. The Health Plan of the Upper Ohio Valley, Inc.
PA- Teresa C. Toriseva; J- Karl
* The case alleges rampant corruption among HMO’s that forces patients into the traditional drug-therapy model of medicine. In early 2011, Defendant allegedly began withholding payment for chiropractic services. Defendant informed Plaintiff it is considered an “outlier of services” compared to other “peer” chiropractic providers, the suit says, and as such, Defendant was justified in withholding reimbursement for a variety of services provided by Plaintiff.
Case number: 13-C-17

Jan. 30
American Shale Development, Inc.; Prima Oil Company, Inc. and Republic Energy Ventures, LLC vs. Donald C. Lough; Hilda Taylor, et al
PA- Matthew F. Graves; J- Hummel
* This is a civil action to quiet title in the subject oil and gas property and require the partial allotment-in-kind and residue sale of the oil and gas underlying a certain tract of land, containing 119 acres located in Cameron District.
Case number: 13-C-20

Vincent J. King vs. Arthur D. Ruben, AXA Advisors, LLC, Bonita Love, et. al.
PA- Steven T. Taylor; Vincent J. King; J- Karl
* Plaintiff was admitted the State Bar in 1986. King says he participated in a term life insurance plan sponsored by the Bar. Premiums for coverage have been current and fully paid for 28 years, he says. About May 25, Defendant Ruben allegedly explained that a discrepancy existed between the cited rates and the previously contracted ones. He claimed the cited rates were correct and those in Plaintiff’s policy were insufficient, the suit says. King demands the court find the rates, as set forth in the amendatory endorsement, contrary to the rates supplied by Defendants.
Case number: 13-C-21

Jan. 31
Hulda M. Cramer, Executrix of the Estate of Richard T. Cramer, deceased vs. Air & Liquid Corporation, et. al.
PA- R. Dean Hartley; Julie R. Magers; J- Hummel
* Richard Cramer was allegedly exposed to asbestos-containing products while employed at Mobay Chemical Company. He was diagnosed with malignant mesothelioma about Feb. 7, 2011, and died on July 26, 2011. Plaintiff brings this wrongful death action, for the benefit of her deceased husband’s beneficiaries, to recover the damages incurred between the time of injury and death. Plaintiff demands judgment for compensatory and punitive damages in a jury trial.
Case number: 13-C-22

Feb. 1
James A. and Holly Hutchinson vs. The West Virginia Department of Transportation, Division of Highways
PA- Shane M. Mallett; J- Karl
* On Jan. 2, 2011, James Hutchinson was walking on Route 250 at the Jefferson Ave. Extension when he slipped and fell on broken concrete, the suit says. The unnamed bridge crossing at Little Grave Creek was allegedly unsafe with defective conditions. The aforesaid conditions caused Hutchinson serious and/or permanent injuries when he slipped and fell, the suit says. He claims compensatory and general damages for these injuries, along with loss of wages.
Case number: 13-C-23

Feb. 4
Bayer Heritage Federal Credit Union, a corporation vs. Dustin S. and Melissa S. Johnson
PA- Logan Hassig; J- Karl
* About April 25, 2007, Defendants allegedly borrowed the sum of $20,000 from Bayer Credit Union. The Johnsons have failed to remain current in payments and currently owe $10,236.01, plus interest from Jan. 31, the suit says. A demand is made for this amount, plus prejudgment interest of 8.25 percent.
Case number: 13-C-25

Chesapeake Appalachia, L.L.C. vs. Kanawha Stone Company, Inc., Kelly Survey, Vanderra Resources and John Does 1-5
PA- Jeffrey V. Mehalic; J- Hummel
* In 2009, Chesapeake decided to drill natural gas wells on the property known as the Ray Baker Site and hired Kanawha Stone, as its earthwork contractor, to construct the drilling pad at the site, the suit says. Immediately, problems developed when the fill slope failed, the suit says. The landslide was severe, which required the involvement of the U.S. EPA, resulting in violations being issued to Chesapeake, the suit says, and Chesapeake was required to submit stabilization plans to WVDEP and retain various contractors. Because of the extensive damage caused by the landslides, Chesapeake says it has been unable to complete its wells and operations.
Case number: 13-C-26

Feb. 11
Paull Associates Realty, LLC vs. Lexington Insurance Company
PA- Holly S. Planinsic; J- Hummel
* Paull purchased an insurance policy that provided professional liability coverage. On Jan. 26, 2012, Defendants were notified of a claim involving two of Paull’s real estate agents. Eric Seuss, a claims examiner, allegedly represented that a preliminary coverage evaluation was being performed. Lexington denied coverage and a defense for the potential claim by letter dated Feb. 15, 2012. Plaintiff requests the court determine Defendant owes a duty to Defendant and indemnify with respect to the underlying claim and that Defendant has breached its duties to Plaintiff.
Case number: 13-C-28

Feb. 11
Melissa Gilbert vs. KATKO, a foreign corporation
PA¬¬- Cameron S. McKinney; J- Karl
* Plaintiff claims she was subjected to a hostile work environment, retaliated against and discharged because she is female. Gilbert states there were no restroom facilities at the work sites and she had no choice but to relieve herself in the open, with little opportunity for privacy. On Aug. 19, 2011, Matt Beatty positioned himself atop a bulldozer to view Plaintiff while she urinated, yelling lewd and offensive words at Gilbert and approaching her with clenched fists, the suit says. Courtney Gummer contacted Plaintiff and told her she was “fired for an argument with Matt,” the suit says, and Beattywas not fired.
Case number: 13-C-29

Feb. 15
Tari Wilson vs. Diana Wilfong and Vaun E. Miller
PA- Daniel M. Balgo; J- Hummel
* On Aug. 3, 2011, Plaintiff was the driver of a vehicle on Route 2 in front of John Marshall High School. Wilfong operated a vehicle that was struck from behind, then struck another vehicle driven by Miller, which in turn struck the vehicle Wilson was operating, the suit says. Wilson says she was injured and continues to experience significant pain.
Case number: 13-C-34

Feb. 20
Everett H. and Brenda F. Simmons vs. Gregory West, Sr. and Nikki West, parents, guardians, and next friends of Gregory West, a minor
PA- Michelle Lee Dougherty; J- Karl
* On April 11, 2011, Hartford issued a settlement check payable to the law offices of Neiswonger & White, forwarding along a Release and Settlement of Claim, the suit claims. To date, Defendants have failed to return or execute said Release, the suit claims. Plaintiffs demand judgment to enforce the settlement allegedly entered between Plaintiffs and Defendants.
Case number: 13-C-35

CHARLESTON – In a ruling that doesn’t come as a surprise for those who watched oral arguments, the state Supreme Court has affirmed court-imposed sanctions against American Electric Power.

Marshall County Circuit Court Judge David Hummel sanctioned AEP in a case involving a fatal accident, dismissing the company’s cross-claims against three other companies. During January’s arguments, justices Menis Ketchum and Robin Davis were less than receptive to AEP’s appeal.

The sanctions were entered after the law firm Jackson Kelly discovered some electronically stored information potentially relevant to the case existed but had not been disclosed to the plaintiffs. It had been in the possession of AEP’s former counsel, Swartz Campbell.

“While the Petitioners attempt to downplay the gravity of their violation of the scheduling order, this Court has repeatedly stated that it does not condone such conduct when done so willfully,” says the opinion, released April 1.

“The magnitude of the violation of the scheduling order in this case stems from the massive volume of documents that went completely unchecked by the Petitioners and their former counsel during the discovery process.

“The existence of these documents in the computer capture was known to both the Petitioners and the Petitioners’ former counsel, yet there was a complete failure to examine those documents for discovery purposes causing the circuit court to conclude such failure to be willful and an attempt to subvert the discovery process.”

Leahey

Ketchum and Davis on Jan. 23 made things tough for Michael Leahey of Jackson Kelly as he tried to explain why an evidentiary hearing was needed to address Marshall County Circuit Court Judge David Hummel’s ruling of sanctions.

The sanctions dismissed AEP’s cross-claims against Pullman Power, Structural Group and Ershigs, Inc., over a chimney stack fire that killed Gerald Talbert and injured David Earley and Timothy Wells.

AEP and Ohio Power Company blamed those companies in their cross-claims for their performance of the work in constructing the chimney stack.

The examination of Leahey during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas Mannion, who represented Pullman and Structural, not say anything that would lose him the case.

And when Tiffany Durst, who was arguing for Ershigs, Inc., reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”

Durst responded, “I don’t want to even begin to answer that question.”

At the conclusion of Durst’s and Mannion’s time, Leahey arose to reply. He said the decision to go before the justices again was “against my better judgment.”

The scheduling order at issue set a Jan. 14, 2011 deadline for discovery. A trial was scheduled for three months later.

Prior to trial, the existence of 750,000 to 1,500,000 documents came to light. In April 2011, the defendants in AEP’s cross-claims moved for sanctions.

AEP and Ohio Power wanted an evidentiary hearing to discuss whether the discovery violation was made in bad faith.

Davis and Ketchum said no case law existed that said an evidentiary hearing was required. The decision reflected that.

“When the circuit court stated on the record its decision to dismiss the cross-claims and to convert the prior oral arguments and proffers made at the pretrial hearing into the evidentiary hearing, there was no objection raised at that time or thereafter by the Petitioners,” it says.

“Even though the circuit court notes objections and exceptions in its order imposing sanctions, there was no specific objection or concern raised by the Petitioners either in the order or during the discussion regarding the sanctions after the circuit court ruled regarding the evidentiary hearing.

“Moreover, the final order in this matter was not entered for months after the circuit court stated its intentions regarding the evidentiary hearing on the record, yet there is nothing in the appendix record that was filed by the Petitioners indicating any opposition to how the circuit court was handling the evidentiary hearing.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Marshall County CIVIL FILINGS:
03/25/2013 By Denise Simpson -Marshall Bureau

March 4
Lloyd P. Adams, II vs. Tina Little and Michael Midcap
PA- Gail W. Kahle; J- Hummel
* Defendant Little was negligent in her operation of a pickup truck which caused a collision on WV Rte. 2 on Aug. 4, 2011, the suit says. As a direct result of this collision, Plaintiff has sustained injuries to his body and incurred medical expenses, the suit says. The court is asked to award him entitled damages.
Case number: 13-C-40

March 6
Jared Novel vs. Rodney D. Jackson
PA- James G. Bordas, III; J- Karl
* On Mar. 27, 2011, Defendant lost control of his vehicle on Burch Ridge and drove into a building, injuring the plaintiff, who was a passenger in his vehicle, the suit says. Jackson was driving while under the influence of alcohol, the suit says. This negligence resulted in Novel suffering injuries to his ribs; including a loss of consciousness. Some of his injuries are believed permanent, the suit says. Compensatory, general, and punitive damages are sought.
Case number: 13-C-41

March 7
Michael L. and Amy Roupe vs. Blazers Auto Body & Towing, LLC
PA- Jeremy M. McGraw; J- Hummel
* On June 1, 2011, Michael Roupe was near the property owned by Defendant in his capacity as a Moundsville City employee. A dog owned by and maintained on Defendant’s property allegedly attacked and bit Plaintiff. Plaintiff says he suffered injuries to his right leg and has incurred medical bills and lost wages. Defendant failed to exercise reasonable control over the dog, the suit says. Judgment against Blazers is demanded, allowing for punitive damages to deter similar conduct in the future.
Case number: 13-C-42

March 8
Timothy J. and Victoria Calissie vs. AB Resources, LLC and Chevron USA, Inc.
PA- James G. Bordas, Jr.; J- Karl
* Plaintiffs are the owners of tracts of land containing 58.923 acres in Union District. A right of way agreement was executed with the actual approved route to be agreed on by the parties, they say. Plaintiff experienced significant loss of land use on their property due to the inconsistent representations of Defendants, they say. A temporary injunction is sought enjoining Defendants from entering Plaintiffs’ property.
Case number: 13-C-43

March 15
David S. Lucas, Jr. vs. Discover Bank
PA- Thomas E. McIntire; J- Karl
* About Nov. 28, Plaintiff retained counsel to represent his interest in connection with the arrears in his consumer debt. He says Defendant continued to place numerous telephone calls to Plaintiff’s residence after receipt of correspondence from Plaintiff’s attorney. Repeated violations of Article 2 of the state Consumer Credit and Protection Act are claimed. Demand is made for these past and future alleged violations.
Case number: 13-C-47

Margaret Abrams vs. Comenity Bank
PA- Thomas E. McIntire; J- Hummel
* Plaintiff sent correspondence to Defendant advising she was represented by counsel with regard to a debt, the suit says. She says Defendant engaged in unreasonable conduct in collection efforts violating state Code. General and punitive damages are sought for these alleged violations.
Case number: 13-C-48

March 19
State Farm Mutual Automobile Insurance Co. as subrogee of George F. Weaver vs. Alissa Renee Gianangeli; Heather Gianangeli
PA- Andrew N. Frye, III; J- Karl
*On Jun. 23, 2011, in Glen Dale, Defendant Alissa Gianangeli allegedly caused property damage to George Weaver while operating a motor vehicle owned by Heather Gianangeli. Plaintiff compensated its insured for his loss, thereby becoming subrogated to his rights and claims of this action, it claims. Judgment is sought for $13,929.31.
Case number: 13-C-53

March 20
Atrondra R. Williams vs. Anthony Michael D’Angelo and Hunter Truck Sales & Service, Inc.
PA- Eric M. Gordon; J- Hummel
* Defendant Hunter entrusted D’Angelo to operate its cargo van on Aug. 12, 2011. He allegedly traveled left of center on WV Route 2, striking Plaintiff head on. As a result, Williams sustained damages, some of which are believed permanent, the suit says. Judgment is demanded to sufficiently compensate her damages.
Case number: 13-C-54

March 21
S. Roger Dobbs vs. Consolidated Coal Co., Hanna Coal Co., et al.
PA- Pro Se; J- Karl
* In the spring of 2011, Plaintiff says his house began to sink with cracks appearing in the basement. Dobbs says he purchased and paid premiums for mine subsidence. He reported his home was beginning to subside, yet, Nationwide denied coverage without an inspection, he says. As a direct result of Consol and Hanna, the surface above the mine has begun to subside, thereby directly causing damage to Plaintiff’s residence, he says. Damages are sought for Defendant’s alleged failure to stabilize the mine.
Case number: 13-C-55

March 25
Bayer Heritage Federal Credit Union vs. James R. and Karen R. Lyons
PA- Logan Hassig; J- Hummel
* The Lyons failed to remain current in their loan payments and a foreclosure action was commenced. The real estate collateral was sold by the Trustee, for $65,227.10, pursuant to a foreclosure sale. There remains an unpaid balance of $30,360.04, the suit says. This amount is demanded from Defendants.
Case number: 13-C-56

Hartley

MOUNDSVILLE – It appears a proposed Marshall County class action settlement that sets up a medical monitoring system for West Virginians who worked at coal and water treatment plants will be approved.

The docket of the case Stern v. Chemtall, et al., shows no one objected to the settlement before an April 1 deadline to do so. The proposed settlement was approved Dec. 3 by Marshall Circuit Judge David W. Hummel, Jr., who will conduct a fairness hearing on May 1 at which he will likely give the settlement final approval.

In a January article in the West Virginia Record, Ted Frank, the founder of the Center for Class Action Fairness, said the proposed settlement appeared unfair because the monitoring program has approximately the same monetary value as the fees requested by plaintiffs attorneys.

Plaintiffs attorneys plan to request one-third of the $13.95 million, plus almost $2 million in costs.

“A settlement fee request where the attorneys propose to get $6.62 million and the class members get $6.58 million is unfair on its face – especially when it appears structured so that much of that $6.58 million will actually end up in the hands of third parties long after the attorneys have collected their checks,” Frank said.

Money left in the medical monitoring fund after a court-approved deadline will be given to the Blanchette Rockefeller Neurosciences Institute in Morgantown and the Center for Rural Health at the Joan C. Edwards School of Medicine at Marshall University.

The case involves the chemical polyacrylamide, often referred to as “flocculent” or “floc.” Workers at coal and water treatment plants who were possibly exposed to it make up the class.

The lawsuit said workers at plants that used the chemical have a higher risk for sensory or autonomic nervous system deficits but doesn’t allege any injuries have yet occurred.

The defendants were manufacturers and distributors of the chemical and included Chemtall, CIBA Specialty Chemicals, Cytec Industries, G.E. Betz, Hychem, Ondeo Nalco, Stockhausen and Zinkan Enterprises.

Class members must file a claim form to get a medical examination. A deadline to do so has not been determined yet, but attorneys involved say it could be as early as March 1, 2014.

Class members cannot exclude themselves from the settlement, which means they can’t sue as individuals for free examinations. However, should a class member develop an injury, he or she will still be able to file a lawsuit.

Representing the plaintiffs is R. Dean Hartley of Hartley & O’Brien. G.E. Betz will be responsible for paying attorneys fees and costs to the plaintiffs lawyers.

The defendants agreed not to dispute the fees award. They are also paying $750,000 in notice and administrative costs.

The complaint, filed in 2003, says the class members are at an increased risk for cancer of the testicles, adrenal gland, mammary gland, uterus, thyroid, pancreas, brain, spinal cord and lungs.

“The acrylamide monomer is toxic and is an irritant,” says the complaint, filed in 2003.

“Cases of acrylamide poisoning show signs and symptoms of local effects due to irritation of the skin and mucous membranes and systemic effects due to the involvement of the central, peripheral and autonomic nervous systems.

“The neurotoxicity of acrylamide has been recognized since the early 1950s during toxicologic studies prompted by the advent of large-scale production of acrylamide for the polymer industry.

“Within five months of commencing manufacture of acrylamide, several factory workers developed a peripheral neuropathy strikingly similar to neurologic signs previously noted in animals chronically intoxicated with acrylamide.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

WHEELING – A Moundsville woman has made a $1.35 million settlement demand to Hunter Truck Sales & Service Inc. and one of its employees who allegedly caused her injuries.

Anthony Michael D’Angelo was also named as a defendant in the suit.

On Aug. 12, 2011, at approximately 5:25 p.m., Atrondra R. Williams was operating her 2001 Infiniti traveling northbound on W.Va. 2 South in Moundsville when D’Angelo, who was operating a 2008 GMC 3500 cargo van owned by Hunter, was traveling southbound on the same road, according to a complaint removed April 18 to the U.S. District Court for the Northern District of West Virginia.

Williams claims D’Angelo negligently and improperly operated the cargo van, allowing it to travel left of the center line and striking Williams’ vehicle head-on.

As a result of the defendants’ negligent, illegal and/or improper actions, Williams sustained damages, including physical injuries; medical expenses; loss of income; pain and suffering; mental anguish; loss of ability to enjoy life; and becoming an increased industrial risk, according to the suit.

Williams is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Eric M. Gordon of Berry, Kessler, Crutchfield, Taylor & Gordon.

The suit was first filed in Marshall Circuit Court on March 20 and was moved to District Court on April 18. In Marshall Circuit Court it was assigned to Circuit Judge David W. Hummel Jr.

Williams sustained medical bills in the amount of $135,444.52 between the date of the accident and Nov. 6, according to a letter sent to Harco National Insurance Company Claim Representative Sandy Stewart on Nov. 13.

Gordon estimated Williams’ follow-up visit medical bills will range from $3,500 to $5,000, according to the court document.

“Additionally, as a result of her injuries, Atrondra had to miss a number of days of work between 08/15/11 and 03/29/12. She received a portion of her pay through her employer who has subrogation rights…Furthermore, in some instances, she was paid at a 50% rate of pay which cost her additional $11,795.86 in pay,” the document states.

In light of these facts, Williams has authorized Gordon to tender a settlement demand of $1.35 million, according to the document.

The case has been assigned to District Judge Frederick P. Stamp Jr.

U.S. District Court for the Northern District of West Virginia case number: 5:13-cv-00054

Chapman

WHEELING – Consol Energy will have to provide information on previous discrimination allegations in a lawsuit brought by a former coal miner alleging the same, a federal magistrate judge have ruled.

U.S. Magistrate Judge James E. Seibert, of the Northern District of West Virginia, ruled April 25 to grant certain discovery requests made by Tony Clay in his lawsuit against Consol Pennsylvania Coal Company, doing business as McElroy Coal, and Consol Energy.

His complaint, filed June 21, alleges Clay, an African-American, was the object of racial slurs while employed by McElroy in Marshall County.

At issue were five separate requests for documents concerning other allegations of discrimination and statistical employee information that includes age and race.

McElroy objected on the grounds the requests were overly broad, unduly burdensome and irrelevant. Seibert was not pleased.

“This court, and practically every other court in the country, has decried the practice of attorneys merely regurgitating the language in Rule 26, and have held that it is completely impermissible under the Federal Rules of Civil Procedure,” Seibert wrote.

“Accordingly, Defendants are admonished for engaging in this practice.”

Seibert wrote that courts have consistently held that discovery is broader in employment discrimination claims.

“Defendants have cited several cases for their proposition that statistical evidence is irrelevant in the individual discrimination case,” Seibert wrote. “The court is not persuaded by these authorities for the proposition asserted that the information is not discoverable.”

Accordingly, Seibert decided to allow discovery related to the ages and races of individuals who made discrimination complaints in West Virginia and Pennsylvania in the five years prior to Clay’s complaint.

In another discovery dispute, McElroy objected to Clay being allowed to inspect the motorbarn, locker rooms and offices of two management level employees without requiring him to execute a release and waiver of liability.

U.S. District Judge Frederick Stamp on May 15 affirmed Seibert’s ruling in favor of Clay, who argued the request was made too late.

“This court cannot find any mention of any requested release in the transcript of the hearing held before the magistrate judge concerning the motion for protective order and motion to enter on defendants’ land,” Stamp wrote.

“Further, as the plaintiff notes, the only mention contained in the briefing of these two motions concerning any such release is found in a footnote, which does not even request that the court require the plaintiff to sign a release.”

Pending is McElroy’s motion to dismiss, filed Aug. 30. It claims Clay did not name the proper party as defendant and he failed to file a charge of discrimination against the named defendant with the Equal Opportunity Employment Commission.

Representing the defendants is David J. DelFiandra of Leech Tishman Fuscaldo & Lampl in Pittsburgh.

Clay’s attorney is Sandra M. Chapman of the Wheeling firm Casey & Chapman.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

The Clarkson S. Fisher Federal Building and U.S. Courthouse in Trenton, N.J.

TRENTON, N.J. – Earlier this year, one of the lawsuits former state Attorney General Darrell McGraw filed after losing his re-election bid was transferred to a multidistrict litigation proceeding in New Jersey.

McGraw hired attorneys from four private law firms to file a lawsuit against pharmaceutical companies Bristol-Myers Squibb and Sanofi over the prescription blood thinner Plavix. The lawsuit was filed Dec. 28, 2012, in Marshall County Circuit Court.

The defendants then removed the case to federal court, and, following the creation of a Plavix MDL, it was transferred in March to U.S. District Court for the District of New Jersey.

Attorney General Patrick Morrisey, who defeated McGraw in November, had asked that the case be remanded to Marshall Circuit Court.

Records show that the lawsuit is one of 60 in the MDL.

The complaint says Sanofi and BMS have a marketing partnership that has resulted in an illegal program to promote the use of Plavix. The two have claimed Plavix is a superior drug to aspirin for certain indicated usages when it is not, the complaint says.

“Upon information and belief, BMS/Sanofi misrepresented the efficacy of Plavix as justification to charge a higher price, thereby increasing company profits,” the complaint says.

McGraw

“BMS/Sanofi charged approximately 100 times more for Plavix than the cost of aspirin. Plavix costs approximately $4.00 per pill whereas aspirin costs approximately $0.04 per pill.”

Hired to represent the State were:

-Robert P. Fitzsimmons and Clayton J. Fitzsimmons of Fitzsimmons Law Firm in Wheeling;

-Carl N. Frankovitch and Mark A. Colantonio of Frankovitch, Anetakis, Colantonio & Simon in Weirton;

-Teresa C. Toriseva of Toriseva Law in Wheeling; and

-Robert L. Salim of Salim-Beasley in Natchitoches, La.

The complaint says the defendants violated the West Virginia Consumer Credit and Protection Act, made misrepresentations to the Public Employees Insurance Agency and violated the Insurance Fraud Prevention Act.

Another state attorney general has filed a lawsuit that is in the MDL. Mississippi’s Jim Hood also sought outside counsel to represent his State and hired Bailey Perrin Bailey of Houston and W. Howard Gunn & Associates of Aberdeen, Miss.

Earlier in May, pharmaceutical maker Pfizer lost its bid to have the case filed by McGraw against it transferred to an MDL in New Jersey.

U.S. District Judge Robert C. Chambers ruled the case should be heard in a state court – Mason Circuit Court.

The complaint alleges Pfizer and Ranbaxy conspired to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

It says Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked on an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed the MDL organized in April in a New Jersey federal court over the issue that consists of at least 29 class action lawsuits. They said Morrisey’s case is a “tag-along” and should have been incorporated into the MDL.

The defendants had filed a motion to stay the lawsuit pending a transfer to the MDL. The Judicial Panel on MDL had issued a conditional transfer order that Morrisey objected to.

The same circumstances happened in the Plavix case, except Morrisey dropped his objection to the transfer to the MDL court on March 12.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Farrell

WHEELING – The owners of 116 acres in Marshall County have settled their lawsuit against Chesapeake Appalachia and Statoil USA Onshore Properties that alleged damage to their property.

On June 7, U.S. District Judge Frederick Stamp dismissed the lawsuit brought by David and Sharon Hall, noting a resolution of claims made in a complaint filed Jan. 15.

The case was originally filed in Marshall County Circuit Court and was removed to federal court in February.

In it, the Halls claimed their property was harmed after the defendants began conducting surface operations on it with the intention of drilling oil and gas wells.

The complaint says the defendants used almost seven acres of the property for their operations, and a slip has developed that begins at the well pad site.

“(T)he plaintiffs have suffered damages including… a destruction of timber and crops, a diminution in value of their surface lands, and an inability to use the land as it was intended and used previously,” the complaint says.

“To date, the defendants have neither reclaimed Plaintiffs’ property nor have they compensated Plaintiffs for the damages to the same.”

The Halls say the defendants failed to ensure that fill dirt was secure in and on the pad site and negligently failed to properly drain the pad site.

“Defendants’ operations have further resulted in additional acreage being damaged and rendered unusable by the plaintiffs,” the complaint says.

“The use of this amount of the plaintiffs’ property is unreasonable and not needed to obtain the oil and gas within and underlying Plaintiffs’ property.”

The Halls were represented by Eric M. Gordon of Berry, Kessler, Crutchfield, Taylor & Gordon in Moundsville.

Chesapeake Appalachia and Statoil removed the case to federal court, arguing that the amount in controversy was greater than $75,000.

“Plaintiffs’ complaint seeks, among other damages, declaratory and injunctive relief relating to one existing and five proposed Marcellus Shale wells on their property,” the removal notice says.

Representing the defendants were Allison J. Farrell and James C. Wright of Steptoe & Johnson.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

Law

WHEELING – A class action lawsuit filed against Consolidated Coal Company by a former employee will be heard in state court.

On May 24, U.S. District Judge John Preston Bailey remanded Aaron Birtcher’s lawsuit to Marshall County Circuit Court, where it was first filed on Aug. 9. Birtcher alleges his benefits and wages were not paid in a timely manner.

Consolidated Coal removed the case to federal court on March 29. Bailey ruled it was not filed in time.

The company had argued it was not aware Birtcher’s lawyer – Sandra K. Law of Schrader Byrd & Companion – planned to include union employees in the proposed class until a March 15 motion to compel.

Bailey ruled the company should have been aware of it after a Jan. 11 letter and thus missed the 30-day deadline for removal.

“The Jan. 11, 2013, letter specifically stated that ‘[t]he fact that someone is in the [United Mine Workers of America] and subject to their collective bargaining agreement does not change their right to timely receive a final paycheck,” Bailey wrote..

“The defendant argues that, despite a reference to the United Mine Workers of America and a collective bargaining agreement, this language does not provide ‘unequivocally clear and certain’ notice that the class definition includes union employees.

“However, this court notes that in response to the defendant’s argument that the plaintiff is not similarly-situated to hourly union employees, the January 11, 2013, letter stated that ‘[t]he commonality is termination and not being paid on time – which has nothing to do with the collective bargaining agreement or a salary versus hourly consideration.’”

Birtcher’s lawsuit alleges he was not paid his wages and benefits in full within 72 hours of his discharge from employment in violation of the West Virginia Wage Payment and Collection Act.

Consolidated Coal employs both union and non-union employees, and Birtcher did not belong to UMWA.

UMWA workers are subject to a collective bargaining agreement known as the National Bituminous Coal Wage Agreement.

The March motion to compel said Birtcher planned to serve as representative of a class of union and non-union employees.

The mention of union employees made the lawsuit removable to federal court under the Labor Management Relations Act, Consolidated Coal argued.

Consolidated Coal is represented by Steptoe & Johnson attorneys Larry J. Rector and Julie A. Arbore.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

WHEELING – Bayer Material Science has not been specific enough in its responses to several discovery requests made by a former employee who alleges he was fired because he has cancer, a federal magistrate judge says.

Magistrate Judge James Seibert, of the Northern District of West Virginia, on June 19 granted several of the requests made by David A. Smith, a Wetzel County man who worked at Bayer’s facility in Marshall County until 2012. His lawsuit was filed in October in Marshall Circuit Court before Bayer removed it to federal court.

Smith is seeking information about any other legal actions taken by employees, as well as information about those employees, information about his own employment and information regarding the relationship between Bayer Material Science and Bayer Credit Union.

“Any objection to discovery requests must be lodged with some specificity so the requesting party, and the Court if it becomes involved, can ascertain the basis for the objection,” Seibert’s order says.

“Accordingly, generalized, boilerplate objections that regurgitate the language from Rule 26 (of the Federal Rules of Civil Procedure) – irrelevant, overly broad and unduly burdensome – are highly disfavored and will usually result in a waiver of the objection.”

Seibert made a similar ruling in April in a discrimination case against Consol Energy. In that order, he wrote that the defendants were “admonished for engaging in this practice.” U.S. District Judge Frederick Stamp affirmed the decision.

In the ruling in the Bayer case, Seibert was not pleased that Bayer responded to a discovery request with the argument it sought information “which is irrelevant and which is not reasonably calculated to lead to the discovery of admissible evidence.”

Seibert said it was an example of the most flagrant disregard of the specificity requirement.

“The Court finds it important to recommend to Defendant that rather than chastising Plaintiff in its response to the motion to compel, Defendant might better spend its time in making sure it is in compliance with the Rules,” Seibert wrote.

Smith’s complaint says he was absent from work for almost 11 months as a result of throat cancer and is considered disabled by the West Virginia Human Rights Act.

When he returned to work in July 2011, he was in a weakened condition mentally and physically and required “reasonable accommodations” for his disability, he said.

He called off work twice in the next month under Bayer’s short notice rules, leading to an Aug. 4, 2011, meeting. He said he was told his attendance must improve at the meeting.

In January 2012, he was fired for asking the wrong supervisor if he could have New Year’s Eve off and because he did not go to the dispensary to confirm he wasn’t injury after a fall on Bayer’s premises.

Smith is represented by H. Joseph Craycraft and Bradley K. Shafer of Swartz Campbell in Wheeling.

Seibert made several discovery rulings and the attorneys will get: Smith’s personnel file and information about the decision to fire Smith; information in the individual defendants’ personnel files; information about any other discrimination actions filed by an employee at that facility within the past five years; the names and last known addresses of employees who were disciplined or terminated for similar reasons at that facility within the past five years.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.