West Virginia Record -

Making the crime fit the punishment

Fri, 06 Nov 2009 15:14:00 CST

Joseph Stalin's infamous KGB chief, Lavrenti Beria, had a unique approach to justice. Instead of investigating a crime to find the culprit, he would arrest the "culprit" first and create a crime to pin on him.

"Show me the man," he boasted, "and I will find the crime." Sad to say, things aren't much different in the "People's Republic of West Virginia."

In a Beria-like manner, Darrell McGraw uses his power as the state's attorney general to target successful businesses and create "offenses" to cudgel them into submission through lawsuits brought by him and his attorney friends who reap political and monetary benefits at the expense of our citizens and the state's economy.

McGraw's latest victims are drugstore chains such as Rite-Aid. The alleged offense is overcharging for generic drugs.

McGraw's cudgel is a class action suit against the "culprits," filed in plaintiff-friendly Boone County. But the intended victims got the case removed to federal court and McGraw wants it back in Boone.

"As originally filed, the state sought to recover for alleged overpayments by any and all in West Virginia who paid for generic prescription drugs," Rite Aid's attorney noted in his response to McGraw's motion to remand. "After Rite Aid removed the case to this court on federal question grounds, the state shifted gears and purportedly excised from its claim any purchases made through Medicare or Medicaid."

In other words, McGraw made a mistake when he manufactured this particular lawsuit. Now he wants to redefine it and have the case returned to a venue where state-friendly justice is more likely to prevail.

Meanwhile, World Freedom Day looms. Nov. 9 is the 20th anniversary of the fall of the Berlin Wall. In the past two decades, statues of Stalin have been toppled all across the globe and the celebration of World Freedom Day has grown as new nations throw off the shackles of their slave masters.

Maybe, one year soon, we can celebrate it in West Virginia, too.

Man sues Ohio County Board of Education, co-worker for harassment

Fri, 06 Nov 2009 14:10:00 CST

WHEELING -- An employee is suing the Ohio County Board of Education and a co-worker who harassed him.

Christopher Means began working in the maintenance department for Ohio County schools in 1997 and worked alongside Gerald Ames, according to a complaint filed Oct. 13 in Ohio Circuit Court.

Means claims that during his first week at work, Ames groped him from behind while walking up a flight of stairs and despite requests to stop, Ames continued.

Means tried to handle the situation on his own, but the harassment continued and progressively worsened over time, according to the suit.

Ames developed a special relationship with the administrative officials in Ohio County schools and because of this, Means claims he feared losing his job if he complained about the harassment.

According to the suit, Ames flaunted this special relationship on numerous occasions.

Means claims Ames regularly shows graphic pornographic images from his cell phone to co-workers and that he was not the only victim of Ames' harassment.

After several more incidents in January and February 2009, Means filed a formal complaint on Feb. 17, which resulted in an investigation.

According to the suit, following the investigation Ames told several co-workers confidential details about the investigation, and the co-workers then approached Means about the investigation. Means claims this made him uncomfortable.

Means is suing for compensatory and punitive damages for severe emotional and mental distress, humiliation, anxiety, embarrassment, depression, aggravation, annoyance and inconvenience. Harry F. Bell Jr. and Roger L. Lambert from the Bell Law Firm are representing him.

The case has been assigned to Circuit Judge Martin J. Gaughan.

Ohio Circuit Court case number: 09-C-343

Former employee sues Columbia, NiSource for breach

Fri, 06 Nov 2009 14:00:00 CST

WHEELING -- A former employee is suing Columbia Gas Transmission and NiSource Corporate Services Company for breach of contract.

Thomas Twain Faulkner worked for Columbia Gas Transmission for over 20 years, according to a complaint filed Oct. 9 in Ohio Circuit Court.

Faulkner claims he was a good and valuable employee and was told by an authorized representative that there would not be a position for him in the reorganization of the company.

A severance package was offered to Faulkner with a draft job description he claims was not comparable to the job he was performing.

Faulkner claims others in the company were offered comparable packages and he signed and set the completed agreement to the company.

According to the suit, the company's human resources consultant, Mel Kosonavich, denied Faulkner's request for severance pay.

Faulkner is suing for an order declaring NiSource and Columbia Gas to have breached the agreement, and for damages resulting from the breach, including those for delay in treatment of his medical conditions. Timothy F. Cogan and Patrick S. Cassidy of Cogan & Voegelin are representing him.

The case has been assigned to Circuit Judge Arthur M. Recht.

Ohio Circuit Court case number: 09-C-340

West Liberty student sues over campus assault

Fri, 06 Nov 2009 14:00:00 CST

WHEELING -- A West Liberty State University student is suing another student after being assaulted on campus.

Mary C. Meeker and her roommate, Aleigha Hissam, were walking across campus at the university when Hissam stopped to speak with some friends, according to a complaint filed Oct. 9 in Ohio Circuit Court.

Meeker claims she went to a nearby bench to wait for Hissam when she was approached and confronted by Breana L. Mason.

Mason physically assaulted, harassed and abused Meeker, according to the suit.

Meeker claims she suffered personal and physical injuries; mental anguish, emotional distress and emotional injuries; annoyance, embarrassment and humiliation; medical bills and related expenses; and diminution of her ability to enjoy a normal life.

Meeker is suing for compensatory and punitive damages. She is being represented by Christopher M. Turak of Gold, Khourey & Turak, LC.

Morgantown attorney surrenders law license amidst 41 ethics complaints

Fri, 06 Nov 2009 08:31:00 CST

CHARLESTON - Following numerous allegations he'd abandoned his clients, a Monongalia County attorney has decided to abandon his license to practice law.

The state Supreme Court on Sept. 24 ordered the disbarment of C. Patrick Carrick. The Court's order came at the request of the Office of Disciplinary Counsel, the investigative arm of the state Bar, following a petition Carrick, 58, of Morgantown, filed a month earlier asking for voluntary annulment of the license he was first granted on Feb. 14, 1978.

In West Virginia, a disbarment is an automatic five-year prohibition from practicing law.

Carrick's annulment came in the midst of over 40 of his former clients lodging complaints against him with ODC. Most of the complaints stemmed from Carrick failing to diligently handle worker's compensation claims, the focus of his practice, including pocketing money awarded to clients.

Prior to his annulment, the Court earlier this year placed Carrick on an indefinite suspension following complaints from clients who claimed he not only failed to return phone calls, but also found the doors to his office locked.

Communication breakdown

According to ODC's petition for suspension filed on Dec. 3, Carrick's troubles began last September when seven clients lodged complaints. By the time the petition was filed, the number grew to nine, and Carrick failed to respond to ODC's inquiry into all but one.

The nine clients who filed complaints accused Carrick of, among other things, "a lack of diligence, lack of communication, unreasonable fees, failure to keep client's property separate from [his] property, failure to notify client of funds received...and failure to supervise nonlawyer assistants." In its petition, ODC noted that several other clients who had yet to file a formal complaint stated that after failing to reach Carrick by phone they went to his office "found it locked with a note on the door with the number for the West Virginia State Bar."

Records show ODC received word from Brickstreet Insurance, the private carrier that handles most worker's compensation claims, they received multiple inquiries from Carrick's clients about non-payment of their claims.

In the course of its inquiry, ODC found that despite being seen going into and out of the office, Carrick's secretary never bothered to answer the phone or the door. Also, people at the business next to his on University Avenue said they had not seen Carrick "for several months."

Because his "recent pattern of misconduct" put his "clients' interests ... at substantial risk," ODC petitioned the Court for Carrick's immediate, and indefinite suspension. In conjunction with the suspension, the Court authorized Chief Monongalia Circuit Judge Russell M. Clawges Jr. to appoint an attorney to conduct an inventory of all of Carrick's files, and to take whatever action necessary to protect the interests of those clients.

16 complaints

No sooner did the Court suspend Carrick than the Lawyer Disciplinary Board, the Bar's prosecutorial arm, file a statement of charges against him on Feb. 5. A statement of charges acts as an indictment for disciplinary purposes.

The 16-count statement accused Carrick of committing various violations of the Rules of Professional Conduct including communication, safekeeping of property, misconduct, diligence and failure to respond to a request for information. The statement stemmed from complaints filed by Thomas W. Turpin, Robert J. Mann, Floyd E. Teter, James S. Scritchfield, Kenneth C. Tritchler, Alice B. Hartsell, Sharon L. Swiger, Frank A. Ciliberto, Rickey A. Blaney, Blair E. Smith Jr., Roger L. Johnson, Matthew L. Lemley, Jefferson L. Patrick, Ashlea R. Duda, Larry D. Hall, Roger A. VanSickle Sr.

Almost all of the complaints allege Carrick failed to timely handle their worker's compensation claim. The one that doesn't was filed by Mann, an Ohio attorney, who alleged Carrick failed to provide Nationwide Insurance $7,500 due it from a subrogation claim Carrick handled.

Of the 15 clients who filed worker's compensation-related complaints, records show five -- Tritchler, Hartsell, Ciliberto, Blaney and Hall - all allege Carrick pocketed money belonging to them. In its statement, the Board tallied the cumulative total "wrongfully misappropriated" at $39,493.46.

One client, Ciliberto, alleged that initially Carrick was timely forwarding his money. However, once payments became sparse, Ciliberto said he had to make a round-trip from Oxford, Pa., to Morgantown to ensure he received his money.

One client who did not accuse Carrick of improperly converting funds, VanSickle, alleged, he, too, nonetheless, had to make needless trips to Carrick's office. Records show VanSickle made three round-trips between Beckley and Morgantown to meet with Carrick to discuss his claim, all to no avail.

25 others

According to Carrick's disciplinary file, the 16 clients whose complaints combined for the statement of charges weren't the one ones with an issue with him. Between Jan. 21, the day before his suspension, and May 27, 25 other clients lodged ethics complaints.

Two complaints filed by Donna Henline of Weston and Mindy L. Ice of Fairview were dismissed as a result of the suspension.

Of the remaining 23, all but three dealt with problems in handling worker's compensation claims. Of the other three, two were black lung, and one was a personal injury case.

One client, Sharon J. Allen of Masontown, alleged she considered discharging Carrick due to his lack of diligence in her case, but was discouraged not to by other "notable attorneys" who said Carrick was just fine. Another, Willie J. Williams of Connellsville, Pa. alleged he was so desperate to receive money due him that he had to "beg his [Carrick's] secretary" for assistance.

Due to Carrick's annulment, the 23 complaints were dismissed, and placed in a reinstatement file in the event he decides to seek readmission in 2014.

West Virginia Supreme Court of Appeals, case number 34613

Carrick had few disciplinary problems prior to '08

Fri, 06 Nov 2009 08:28:00 CST

CHARLESTON - Prior to his suspension and subsequent annulment, records show only a handful of complaints were lodged with C. Patrick Carrick in his 31-year legal career in which only one led to disciplinary action.

By all accounts, up until 2008 Carrick seemed to be having an exemplary career as an attorney. From time he was licensed in 1978 until 1987, no ethics complaints were filed against him.

Between 1987 and September 2008, things changed slightly for Carrick as seven clients complained about the quality of his representation. Of those, one case in 1997 led to Carrick being admonished for not timely turning a client's file over to another attorney.

In a complaint filed on March 28, 1997, Jerry L. Cochran of Morgantown alleged between Sept. 23, 1996, and Feb. 17, 1997, Charleston attorney Jeffery T. Jones made several requests that Carrick turn his file over to Jones. The complaint does not specify why Cochran changed attorneys or the nature of his lawsuit except it dealt with property damage.

In a letter dated Jan. 27, 1997, Carrick, who at the time was a partner in the Fairmont law firm of Manchin, Aloi and Carrick, acknowledged receipt of Jones' Jan. 22 letter, and apologized for not responding sooner. The previous requests, he said, "were inadvertently misplaced and did not make their way to my desk."

"I assure you that I will have the materials submitted to you by week's end," he said in concluding his letter.

When he didn't receive the file, Jones sent another letter dated Feb. 17, 1997, again asking for it. When they yielded no reply, Cochran filed his complaint

In his closing letter dated Sept. 4, 1998, David J. Romano, chairman of the Lawyer Disciplinary Board's investigative panel, noted that Carrick eventually turned Cochran's file over to Jones on June 6, 1997. Because of the eight-month delay, Carrick was admonished for violating Rule 1.16 of the Rules of Professional Conduct, declining or terminating representation.

Also, Carrick was admonished for violating Rule 8.1, failing to respond to the Bar's inquiry. In his closing, Romano said Carrick responded only after being served with a subpoena.

Parents of boys killed in wreck can't sue state, Justices rule

Fri, 06 Nov 2009 08:25:00 CST

Workman

CHARLESTON -� Parents of two young men who drowned when their vehicle dropped off the edge of a single lane bridge can't sue the state Division of Highways, the West Virginia Supreme Court of Appeals has decided.

The Justices on Nov. 2 affirmed Wyoming Circuit Judge John Hrko, who ruled that the division's insurance policy excluded the claims of the parents.

Justice Margaret Workman wrote that "the state would expose itself to enormous liability by covering losses resulting from negligence in its design, construction and maintenance of this system."

She wrote that "requiring the state to provide insurance that covers these functions would likely be unsustainable."

The accident happened on an autumn evening in 2007, on Devil's Fork Road, as Matthew Wrenn and Justin Janes headed home from a hunting trip.

Wrenn's parents, Howard Wrenn and Sandra Belcher, and Janes's mother, Angelia Harper, sued the Division of Highways last year.

The parents pointed out that a motorist had died in a similar accident at the same bridge a few months earlier.

After that crash, the parents asserted, local citizens contacted the division to request elimination of the hazards.

The parents alleged that washouts and a buildup of debris formed a deep impoundment of water about 15 feet below the bridge.

They claimed the bridge lacked shoulders, rails, fog lines, edge lines, or other markings to warn drivers of danger.

The Division of Highways moved to dismiss, and Hrko granted the motion.

He ruled that an endorsement in the division's insurance policy excluded coverage.

On appeal, the parents argued that the endorsement violated public policy.

At oral argument on Sept. 9, Mark Kelly of Charleston argued for the parents that the Legislature commanded "reasonably broad insurance" for the state.

For the Division of Highways, John MacCorkle of Charleston said insurance covers every employee working on the road every day. "Thousands of people," he said.

Ketchum said, "The state can insure what it wants to."

Workman asked if the policy excluded egregious failure. MacCorkle said yes.

Workman wrote in her opinion that the Legislature gave significant discretion to the Board of Risk and Insurance Management in supervising state insurance.

"It is the Legislature's and BRIM's function to decide whether to provide coverage for situations such as the one alleged herein," she wrote.

"This court's function is to give full effect to the plain meaning of a clear and unambiguous policy exclusion," she wrote.

She rejected the argument that the Legislature required broader coverage.

She disregarded several circuit court decisions extending coverage to incidents at which no highway employee was present.

Those decisions hold no value as precedent and aren't persuasive, she wrote.

"Despite the DOH's apparent failure to protect the public by more diligent maintenance, it is within the legislative prerogative to determine which activities must be insured," she wrote.

Chief Justice Brent Benjamin and Justices Menis Ketchum and Thomas McHugh joined Workman's opinion.

Justice Robin Davis dissented.

THIS JUST IN: Kanawha County

Fri, 06 Nov 2009 07:30:00 CST

Oct. 26
Travis V. Flint and Julia D. Flint vs. The West Virginia State Police
PA- David Karickhoff, Bernard R. Mauser; J- Charles E. King
* Mr. Flint was a cadet in the 58th Cadet Class at the police academy and on Oct. 26, 2007, he injured his left leg while participating in physical training. He was taken to the academy nurse, who allegedly told him to keep his leg straight, but there were no other restrictions. Mr. Flint claims the pain in his leg progressed and became unbearable. A doctor at Thomas Memorial Hospital examined him and advised him he had a torn hip muscle. He and Mrs. Flint are suing for compensatory damages.
Case number: 09-C-1997

Angela M. Graley and Jeremy E. Graley vs. Wal-mart Stores Inc.
PA- D. Adrian Hoosier II; J- Irene C. Berger
* In July 2009, Mrs. Graley was at Wal-mart in South Charleston when she slipped in what appeared to be a liquid from fragrances left on the floor and fell. Mrs. Graley claims had a duty to warm her of the condition but failed to do so. She and Mr. Graley are suing for compensatory damages.
Case number: 09-C-2002

Mike Rutherford, Sheriff of Kanawha County, as Administrator, c.t.a of the Estate of Nancy Clendenen, deceased vs. Sunbridge Dunbar Health Care Corp. d/b/a Sunbridge Care & Rehabilitation for Dunbar a/k/a Dunbar Care and Rehabilitation Center; Sunbridge Healthcare Corporation; and Sun Healthcare Group, Inc.
PA- Harry F. Bell Jr., Andrew L. Paternostro, Robert W. Absten; J- Louis Bloom
* Clendenen was a resident at the nursing home from Feb. 4 until Feb. 16, 2008. According to the suit, during her time at the nursing home Clendenen suffered serious injuries from a pattern of poor care, neglect and abuse. Rutherford claims Clendenen suffered from systemic abuse and neglect causing significant injuries and ultimately led to her death on March 24, 2009. Rutherford is suing for compensatory and punitive damages for negligence and wrongful death.
Case number: 09-C-2006

Oct. 27
Matthew Oyler, a minor, by his father and next friend, Samuel Oyler vs. The Hershey Company and Wal-mart Stores, Inc.
PA- J. Michael Ranson, Cynthia M. Ranson; J- Louis Bloom
* Samuel Oyler purchased Mounds dark chocolate snack candy made by the Hershey Company from Wal-mart on Oct. 22, 2008 and when Matthew Oyler ate the candy a rusty needle that was lodged in the candy became lodged in his mouth, causing injuries, including cuts and infections. Samuel Oyler is suing for compensatory and general damages.
Case number: 09-C-2009

Neil and Marcella Roth vs. Chrysler Group, LLC
PA- Hugh Wood; J- James C. Stucky
* On Dec. 18, 2006, the Roths purchased a 2007 Jeep Wrangler from Chrysler Group for $24,118. Shortly after purchasing the vehicle, the Roths experienced various defects including a water leak and other defects identified on repair receipts. The Roths claim these defects are included in the vehicle's warranty. They are suing for compensatory damages.
Case number: 09-C-2011

Penny Wyatt vs. Sodexho Services, Inc, Sodexo, Inc; Sodexo Operations, LLC; Sodexo America, LLC; Sodexo Management, Inc.
PA- J. Kristofer Cormany; J- Paul Zakaib Jr.
* Wyatt was employed by the University of Charleston at its restaurant and on Nov. 1, 2007, Sodexo was hired to perform janitorial, maintenance and food related services. Wyatt claims Sodexo failed to adequately maintain the air conditioning unit and as a result, water accumulated on the floor, where Wyatt slipped and fell. She claims she sustained extreme physical pain and suffering; extreme mental anguish and suffering; permanent physical impairment; loss of wages and benefits; loss of future earning capacity and benefits; loss of capacity to enjoy life; medical expenses; annoyance and inconvenience; and permanent scarring and disfigurement. She is suing for compensatory damages.
Case number: 09-C-2013

Nancy Rosette vs. Arturo Lim, M.D.
PA- Michael J. Del Giudice; J- Tod J. Kaufman
* Rosette was a patient of Lim, who was treating her for gall bladder problems. On Nov. 12, 2007, Lim performed a laparoscopic cholecystectomy on her. Rosette claims during the surgery Lim clipped and divided what he through to be a cystic duct, which it was not. According to the suit, Rosette has undergone numerous surgical procedures to correct this error. She claims to have incurred damages including past and future medical expenses; past and future lost homemaker services; past and future mental and physical pain and suffering; and loss of her capacity to enjoy life. She is suing for compensatory damages.
Case number: 09-C-2014

Oct. 29
Alfred Hill vs. Trent A. Redman, attorney at law, and Redman, Payne & Muldoon, PLLC
PA- Todd W. Reed; J- James C. Stucky
* On Oct. 10, 2006, Hill sought to terminate his marriage and hired Redman for legal representation. Hill claims Redman undertook a duty to perform professional services for him, but did so negligently. Hill is suing for compensatory damages and punitive damages for breach of contract and breach of fiduciary duty.
Case number: 09-C-2032

Loretta Cline, executrix of the Estate of Henry Cline vs. Kiren Jean Kresa-Reahl, M.D.
PA- Richard D. Lindsay, Matthew C. Lindsay; J- Jennifer Bailey
* On Feb. 22, 2009, Mr. Cline was admitted to Charleston Area Medical Center with complaints of a headache, followed by sudden onset right-sided weakness and paralysis and an inability to speak under Kresa-Reahl's care. Mr. Cline died on Feb. 23. Mrs. Hill claims Kresa-Reahl failed to advise them of the option of thrombolytic treatment of his stroke. According to the suit, Kresa-Reahl negligently failed to properly care for Mr. Cline. Mrs. Cline is suing for compensatory damages and punitive damages for medical malpractice.
Case number: 09-C-2034

Betty Bell, executrix of the Estate of Robert Lee Bell Sr. vs. Madison Insurance Agency, Inc., F. Marlene Walker, Shawn Walker and Encompass Insurance Company
PA- James R. Akers II; J- Charles E. King
* In February 2006 Mr. Bell purchased an automobile policy from Madison Insurance Agency and Encompass Insurance Company, and paid his premiums and maintained his insurance in good standing. Mr. Bell died as a result of a collision on Jan. 1, 2008, which was deemed the other driver's fault. On Oct. 31, 2008, Mrs. Bell received a phone call from Marlene Walker, an employee of Madison Insurance Agency regarding insurance policy forms related to new coverage. Shawn Walker appeared at her home with insurance forms on Nov. 5. According to the suit, Mrs. Bell inquired about the forms and claims she realized that something was not right. Mrs. Bell is suing for compensatory and punitive damages.
Case number: 09-C-2035

Kristopher A. Wiesner and Carolyn Hart, co-administrators of the Estate of Carrie Lea Wiesner, deceased, and Kristopher A. Wiesner, individually vs. Kevin L. Eggleston, M.D., Robert J. Crisalli, M.D., Hossam Tarakji, M.D. and Tamejiro Takubo, M.D.
PA- Sprague W. Hazard; J- James C. Stucky
* On Oct. 8, 2007, Carrie Lea Wiesner was a patient at Thomas Memorial Hospital and on Oct. 9, 2007, she was a patient at Charleston Area Medical Center. During this time she was under Crisalli, Tarakji, Eggleston and Takubo's care. Kristopher Wiesner and Hart claim the defendants failed to perform procedures in a proper, careful and customary manner; and failed to timely and adequately diagnose, treat and otherwise care for and/or misdiagnosed Carrie Lea Wiesner's condition, resulting in her death. They are suing for compensatory and punitive damages for wrongful death.
Case number: 09-C-2038

THIS JUST IN: Cabell County

Fri, 06 Nov 2009 07:25:00 CST

Oct. 29
Teressa Hager and David Hager vs. Mitchell E. Nutt, M.D.
PA- Paul T. Farrell Jr., Lawrence J. Tweel, J. Robert Rogers; J- David M. Pancake
* On Aug. 6, 2007, Nutt operated on Mrs. Hager, in which he performed an anterior colporrhaphy with excision of para-vaginal scarring and a portion of a prior implanted PelviSoft graft and placement of an Avaulta Anterior graft. Mrs. Hager claims as a result of the surgery, she has experienced significant mental and physical pain and suffering, has sustained permanent injury, permanent and substantial physical deformity and loss of a bodily organ system. The Hagers are suing for punitive and compensatory damages for negligence and loss of consortium.
Case number: 09-C-871

Oct. 30
Manpower Inc. vs. Tower Logistics LLC
PA- John R. Keating; J- F. Jane Hustead
* From Oct. 29, 2008 until March 18, 2009, Manpower provided professional services for Tower Logistics, who agreed to pay for these services. According to the suit, Tower Logistics failed or refused to pay Manpower the $28,810.74 owed to them. Manpower is suing for Logistics to pay the principal sum of $28,810.74 with interest at a rate of 8.5 percent per annum from April 18, 2009 until present.
Case number: 09-C-873

THIS JUST IN: Putnam County

Fri, 06 Nov 2009 07:20:00 CST

Oct. 29
Carmen L. Davis (now Johnson) vs. State of West Virginia, West Virginia Department of Health and Human Resources, and Bureau for Child Support Enforcement
PA-David L. Hill; J-Stowers
* The plaintiff claims the defendants allowed her child support and child support arrearage collection case expire based on its statute of limitations before she could file her claim. She seeks joint and several judgment of $15,143.82 to include $4,836 collected and held for her plus interest, costs and attorney fees.
Case number: 09-C-486