By Lawrence J. Smith

PARKERSBURG – A Wood County woman got a blue light special she didn’t bargain for following allegations she stole from the local outlet of a national retailer earlier this year.

Kmart Corporation is named as a co-defendant in a five-count lawsuit filed by Vienna resident Candy Summers. In her complaint filed in Wood Circuit Court on Aug. 18, Summers, 37, alleges that Kmart management not only held her against her will while conducting an investigation into allegations she stole from the company, but also filed criminal charges against her despite the lack on any evidence.

According to court records, Summers worked at the Kmart store in South Parkersburg on Division Street. The suit does not specify what she did for Kmart or how long she worked there except that she was working there as soon as Dec. 26.

Nevertheless, on Jan. 3, Summers alleges she was “unlawfully detained” by Roger McClosky, the store’s loss prevention specialist, and two other loss prevention officers for two hours while they interrogated her about stolen property. Records are unclear as to what Summers was accused of stealing.

During the interrogation, Summers alleges that McClosky claimed to have videotape showing her stealing the property. However, when she asked to see it, McClosky refused to show it to her.

At a time not specified in court records, Summers was able to call her husband to inform him she was being detained and interrogated by McClosky. After his arrival, Summers claims that not only was her husband allowed into the room where she was being interrogated, but McClosky also threatened to restrain her if she attempted to leave the room.

Shortly thereafter, two Parkersburg police officers arrived at the store. After viewing the tape, one of the officers, Cody Miller, told Summers that “the tape showed nothing and that [she] was free to leave.”

Regardless, Summers was suspended from her job immediately after she was released from McClosky’s custody.

Four days later, Summers received a telephone call from Debra Havens, the store’s assistant manager, informing Summers she was terminated for ” ‘misappropriation of company property.’” The next day when she went to pick up her final paycheck, Summers was told by Donna Lee, the human resources manager, that she was barred from again entering the store.

Unbeknownst to Summers was the fact that also on Jan. 7, Kmart filed criminal charges against her in Wood Magistrate Court regarding the alleged theft. The lack of evidence worked in her favor as records show a jury acquitted her of the charges.

In her suit, Summers names McCloskey, Joe Sherrard, the store manager, and Sears Holdings Corp., Kmart’s parent company, as co-defendants. Located in the Chicago suburb of Hoffman Estates, Ill., Sears Holdings was formed in 2005 following the merger of Kmart and Sears, and oversees the operation of the 3,900 retail outlets under each store’s name.

In addition to ones for malicious prosecution and false imprisonment, Summers makes claims against the defendants for negligence, outrage and defamation. Summers alleges she regularly answered questions family and friends about the charges after they were published in The Parkersburg News and Sentinel.

The “humiliation, embarrassment, annoyance [and] inconvenience” she suffered from the ordeal, Summers alleges, has caused difficulty between she and her husband resulting in her taking medication for anxiety attacks. She is seeking unspecified damages, court costs and attorney fees.

Summers is represented by Parkersburg attorneys C. Edward McDonough and Joe Munoz.

The case is assigned to Judge J. D. Beane.

Wood Circuit Court, Case No. 09-C-406

Sept. 30
Arlene C. Woodfin vs. Eaglecare Inc d/b/a Eagle Pointe and Sheila Clark
P.A. – Katharine L. Davitan; J – Reed
* The plaintiff is suing the defendants for wrongful termination after she was fired on May 22 for reporting a co-worker showing pornographic pictures on his cell phone. She is seeking unspecified damages, including lost wages and reinstatement, court costs and attorney fees.
Case number: 09-C-489

Roberta Ann Taylor, Darla Gail Goudey and James Alfred Whipkey vs. Mary Immogene Weaver, individually and as executrix of the estate of Robert Eugene Whipkey
P.A. – Robert S. Fluharty Jr.; J – Waters
* The plaintiffs are suing the defendant for improperly converting proceeds from Robert’s estate following his death on March 8. They are seeking an accounting of all funds, their return and Weaver’s removal as executrix.
Case number: 09-C-490

Oct. 1
Charles F. Prunty Jr. vs. Patrick N. Radcliff
PA – pro se; J- Waters
* The plaintiff is suing the defendant for loss of a cassette tape he wanted to use for a habeas corpus petition he filed in 2004 following his conviction in 2002 on multiple charges of sexual assault. Along with an order granting his immediate release from his sentence, he is seeking judgment against the defendant for $1.1 million.
Case number: 09-C-496

Angelina and Jeffrey Sprouse, the minor children by Sally Sprouse, their parent and natural mother, vs. Ryan Badgett, the Wood County Board of Education a/k/a Wood County Schools, Verizon Inc. and Edward and Samantha Cool
P.A. – Daniel B. Fowler; J – Beane
* The plaintiff is suing the defendants for injuries Angelina and Jeffrey sustained on Oct. 1, 2007, when a school bus driven by Badgett struck an overhead cable owned by Verizon, and led into the Cool’s home on Liberty Street in Parkersburg, that shattered a window causing them to be showered with glass. She is seeking unspecified damages.
Case number: 09-C-497

Jalisa Arbogast vs. Ryan Badgett, the Wood County Board of Education a/k/a Wood County Schools, Verizon Inc. and Edward and Samantha Cool
P.A. – Daniel B. Fowler; J – Beane
* The plaintiff is suing the defendants for injuries she sustained on Oct. 1, 2007, when a school bus driven by Badgett struck an overhead cable owned by Verizon, and led into the Cool’s home on Liberty Street in Parkersburg, that shattered a window causing her to be showered with glass. She is seeking unspecified damages.
Case number: 09-C-498

PARKERSBURG – A former nurse at a Wood County hospital alleges she was wrongfully terminated following unsubstantiated allegations she took medical leave to moonlight for another hospital.

Jeanne E. Slawter filed suit against Signature Hospital LLC in Wood Circuit Court on Aug. 19. Based in Houston, Texas, Signature is the parent company of St. Joseph’s Hospital System, which operates St. Joseph’s Hospital in Parkersburg.

In her complaint, Slawter, 61, alleges staff at St. Joseph’s concocted allegations she worked at a Kentucky hospital as a pretext to fire her as a means of not allowing her to return to work following surgery last year.

According to court records, Slawter, an Ohio resident, began working for St. Joseph’s on July 6, 2004. Almost four years later, she requested a medical leave of absence for a hip replacement.

Her request was granted on June 25, 2008, records show.

Though records do not specify when, Slawter requested additional time off under the Family and Medical Leave Act. This request, however, was denied despite the fact she “worked the required number of hours in the previous twelve months.”

On Jan. 13, Slawter presented a medical release signed by Dr. Joel Sorger to Michelle Gillespie, St. Joseph’s assistant human resources director, clearing Slawter’s immediate return to work. The release was conditional on Slawter working no longer that eight hours a day, and serving as the triage nurse.

However, records show June Kuhn, manager of St. Joseph’s emergency department, declined to accept Slawter’s restriction on working exclusively as the triage nurse. Nine days later, Sorger, modified his release of Slawter, dropping the triage nurse-only restriction, but still limiting her to an eight-hour shift for the next three months.

Though the release allowed Slawter to return to work immediately, she would have to wait until she completed emergency room testing. In her suit, Slawter maintains starting on Jan. 22, she did “online Careline competency testing in preparation for [her] anticipated return to her part-time emergency department position in February, 2009.”

On Feb. 20, Slawter maintains she received a call requesting she come to the hospital to attend emergency room testing. However, upon her arrival, Slawter alleges she was confronted by Gillespie and Kuhn who informed her she was being fired “because she had worked for King’s Daughters Medical Center in Ashland, Kentucky, while on medical leave.”

In the course of the confrontation, Slawter told Gillespie and Kuhn that she had been to King’s Daughters while on medical leave. However, it was to only to attend an orientation, and she clearly informed them that, while she was recovering from surgery, she could not accept any offer for employment.

Records show when Slawter offered to go home and return with documentation showing she had done nothing more than attend an orientation, Gillespie replied ” ‘We already have the documentation that you were working there.’” Also, when Slawter offered to provide names and telephone numbers at King’s Daughters who could verify she had performed no work there, Gillespie would have none of it saying ” ‘We have all the proof we need.’”

In her suit, Slawter alleges her termination for supposedly working for King’s Daughters while on medical leave was merely a smokescreen. In light of evidence she has to the contrary, Slawter maintains Gillespie, who is named as a co-defendant in the lawsuit, and St. Joseph’s, were motivated to get rid of her based on their “perception [she] was handicapped” or had a handicap that “significantly limit[ed] one or more of her major life activities.”

In addition to court costs and attorney fees, Slawter seeks unspecified damages to include lost wages, and reinstatement. She is represented by Walt Auvil with the Parkersburg law firm of Rusen and Auvil.

The case is assigned to Judge Robert A. Waters.

Wood Circuit Court, case number 09-C-413

Oct. 7
C.H.I. Overhead Doors Inc. vs. James S. Mercer a/k/a Jimmy Mercer d/b/a Doors Unlimited
P.A. – Robert S. Fluharty Jr.; J – Reed
* The plaintiff is suing the defendant for failing to render payment for goods and services sold between Sept. 8, 208, and May 19. They are seeking judgment for $88,008.51 plus court costs and interest.
Case number: 09-C-506

Edward Thomas Wasmer III vs. Edward Thomas Wasmer Jr., Britton T. Wasmer, Elentia B. Lubugin, Daniel E. Lubugin and Wesbanco Bank Inc.
P.A. – Robert S. Fluharty Jr.; J – Beane
* The plaintiff is suing the defendant, Wasmer Jr., his biological father, for fraudulently converting assets belonging to Wasmer Sr., Wasmer III’s grandfather and adoptive father, after Wasmer Jr. was appointed administrator of Wasmer Sr.’s estate on Feb. 13, 2002. Wasmer Jr.’s fraudulent acts included conveying a deed dated March 2, 2007, signed by Wasmer Sr. to Britton Wasmer and Elentia Lubugin, Wasmer III’s son and ex-wife, and secured with a deed of trust from Wesbanco. Along with unspecified damages, court costs and interest, he is seeking a court order removing Wasmer Jr. as the estate’s administrator, and voiding the deed.
Case number: 09-C-508

Oct. 8
BB & T vs. Richard Wilson
P.A. – David G. Palmer; J – not yet assigned
* The plaintiff, is suing the defendant for defaulting on a $542,000 promissory note dated June 5, 2006. They are seeking judgment for $169,081.15 – the outstanding principal – plus court costs, attorney fees and interest.
Case number: 09-C-509

Oct. 13
Sharon and David Stephens vs. Sears Holdings Corp. d/b/a Kmart
P.A. – Debra A. Nelson; J – Beane
* The plaintiffs are suing the defendants for injuries Sharon received on Nov. 26 after she slipped on the floor at the defendant’s location in Vienna. David makes a claim for loss of consortium. They are seeking unspecified damages, court costs, attorney fees and interest.
Case number: 09-C-512

Family Carpet Inc. vs. Ted Brooks and Brooks Flooring Inc
P.A. – Ginny Conley; J – Reed
* The plaintiff is suing the defendants for costs it incurred to reinstall a floor in Morgantown in June 2008 that the defendant originally installed. They are seeking judgment for $35,670.28, the cost of the reflooring plus the original $9,000 for the initial installation, court costs, attorney fees and interest.
Case number: 09-C-516

Oct. 15
Aubrey and Connie Sands vs. Michael Browser d/b/a Airtight Construction
P. A. – John Ellem; J – not yet assigned
* The plaintiffs are suing the defendants for failing to properly install a roof at the plaintiff’s home in Williamstown on Dec. 9, 2005. They are seeking judgment for $21,634.06l, the cost to initially install the roof and the $13,000 to repair it, attorney fees and interest.
Case number: 09-C-525

Oct. 19
Wilda and Kenneth Bungard vs. St. Joseph’s Healthcare System and John Does 1-4
P.A. – Ethan Vessals; J – not yet assigned
* The plaintiffs, residents of Davisville, are suing the defendants, for a fall Wilda sustained on Oct. 24, 2007 following knee surgery which resulted in her contracting staph infection, and having to undergo a total knee replacement. Kenneth makes a claim for loss of consortium. They are seeking unspecified damages, court costs, attorney fees and interest.
Case number: 09-C-530

PARKERSBURG – A Wood County woman alleges her trip to the hospital two years ago resulted in two surgeries to her knee, the second after contracting an infection following the first.

St. Joseph’s Healthcare System is named in a personal injury suit by Davisville resident Madge Davis. Based in Houston, Texas, SJHS is the parent company of St. Joseph’s Hospital in Parkersburg.

In her suit filed in Wood Circuit Court on Oct. 19, Davis, 73, alleges a successful knee surgery was ruined when she fell on the floor and contracted a staph infection that resulted in another, unnecessary, surgery.

According to court records, Davis underwent replacement surgery for her right knee on Oct. 22, 2007. By all accounts, the surgery was successful.

Two days later, she attempted to use the bathroom in her hospital room. At the time, she was supervised by an unknown nurse, and an unknown physical therapist.

Upon entering the four-foot wide doorway to the bathroom with her walker, Bungard “fell and struck her head and ribs on the toilet and trash can in the bathroom.” In the course of her fall, Bungard alleges she landed “directly on her right knee, which opened her surgical wound,” causing her to bleed on the floor.

Though the fall did not damage the structure of the knee replacement, the opening of the wound resulted in her developing a bacterial infection. According to her suit, Bungard developed methicillin resistant staphylococcus aura, or MRSA, an infection highly resistant to many common antibiotics.

Because of the MRSA infection, Bungard’s knee did not properly heal following surgery. Though records do not state when, Bungard “was forced to undergo two irrigation and debridgement operations, including a complete removal of the polyethylene spacer from the knee prosthetics,” and a subsequent “second complete right knee replacement.”

In her suit, Bungard alleges the fall could have been prevented had her records accurately reflected she was in an at-risk category.
On the morning of her accident at 2:07 a.m., Bungard maintains she was deemed to be in a high risk category for falls. However, at 9:36 a.m., an unknown nurse downgraded her fall category.

Her fall occurred at 3:57 p.m. as a result of her feet getting tangled when she attempted to sit on the toilet. Thirty minutes later, Bungard “was again categorized as a ‘high fall risk to be cared for under the ‘Fall Risk Care Plan’.”

What placed Bungard in the high-risk category for fall was the fact she’d undergone a surgical operation in her lower extremity, he was older and under the influence of pain medications.

As a result of hospital staff not following its own procedures in caring for her, Bungard alleges she “sustained an unnecessary injury, resulting in an infection, which required her to undergo additional medical treatments, incur additional medical expenses, experience substantial pain and suffering, and to experience mental anguish.” In addition to an unknown corporation – listed as XYZ – St. Joseph’s may have contracted to employ them, four unknown people – listed as John Does 1-4, who treated Bungard are named as co-defendants in the suit.

Wilda’s husband, Kenneth, 73, is listed as a co-plaintiff, and makes a claim for loss of consortium.

The Bungard’s seek unspecified damages, court costs, attorney fees and interest. They are represented by Ethan Vessels with the Marietta, Ohio, law firm of Fields, Dehmlow and Vessels.

The case has not yet been assigned to a judge.

Wood Circuit Court, case number 09-C-530

Oct. 23
State of West Virginia, General Services Division vs. Shelly Sands Inc.
P.A. – Barbara Allen; J – Reed
* The plaintiff is suing the defendant for damages caused to property they own on 5th and Avery Streets when in Oct. 2007, rainwater entered the building after renovations the defendant made to the sidewalk left the substrata exposed. They are seeking damages of $141,000 plus court costs and interest.
Case number: 09-C-539

Oct. 27
Huntington National Bank vs. Reclamax LLC and GWP Industries Inc
P.A. – Donald J. Epperly; J – Beane
* The plaintiff is suing the defendants for defaulting on a $500,000 loan made to them on Jan. 14. They are seeking judgment in the amount of the unpaid portion – $484,244.87 – plus interest and court costs.
Case number: 09-C-541

Angela D. Litton vs. Alcan Rolled Products-Ravenswood Aluminum LLC, Everett King and David Kennedy
P.A. – Walt Auvil; J – Reed
* The plaintiff, a Cottageville resident, is suing the defendants for wrongful termination following elimination of her job in May after she took time off from work to recuperate from the latest in a series of eye surgeries for diabetes. She is seeking unspecified damages, court costs and attorney fees.
Case number: 09-C-542

Oct. 28
Regina L. Montgomery vs. Open Window Enterprises Inc. d/b/a Subway
P.A. – David Goldenberg; J – Waters
* The plaintiff is suing the defendants for injuries she sustained on April 27, 2008, after falling on a wet floor at the defendant’s location on Emerson Ave. in Parkersburg. She is seeking unspecified damages, court costs and interest.
Case number: 09-C-543

Nov. 3
Web Management Inc. d/b/a The Marlinton Motor Inn vs. Sparkle Pool Co. Inc., Garber Concrete Work, Moore’s Ready Mix, M & M Concrete Pumping, Horizon Spa and Pool Parts Inc., Emsco Distributors, Family Fun Corp. and Scottsdale Insurance Company
P.A. – William B. Summers; J – Waters
* The plaintiff is suing the defendants for failing to properly install a pool at the defendant’s location in Marlinton. They are seeking damages of $500,000 plus interest and attorney fees.
Case number: 09-C-557

Nov. 10
David F. and Shirley H. Finch vs. Brian and Angela Richardson and InspecTech
P.A. – George Cosenza; J – Beane
* The plaintiffs are suing the defendants for selling them a home on Aug. 19 with structural defects. They are seeking unspecified damages, court costs and attorney fees.
Case number: 09-C-561

PARKERSBURG – A Wood County man whose conviction for providing alcohol to minors was overturned by the state Supreme Court earlier this year is suing the law firm that represented him for legal malpractice.

The law firm of George L. Cosenza PLLC is named in a two-count legal malpractice lawsuit filed by Jeff Corra. In his complaint filed in Wood Circuit Court on Aug. 31, Corra, 53, a Vienna resident, alleges that the Cosenza law firm, which is exclusively owned by George L. Cosenza, sat idly by while the prosecution grossly mischaracterized his involvement in an impromptu party that later resulted in the deaths of two men.

According to court records, Corra was indicted by the Wood County grand jury in September 2006 on nine counts of providing alcoholic liquors to a minor. The indictments came a month after Courtney McDonough and Morgan Brown were injured, and Joshua Tucker and Matthew Humphreys were killed in a single-vehicle accident on Aug. 6, after leaving Corra’s home on Rector Road in which he allegedly served alcohol.

In January 2007, Corra would be indicted on a related charge of involuntary manslaughter.

Prior to, and during his trial, Corra maintained his innocence saying that while the four did come by his home the evening of the accident to visit his daughter, Ashley, McDonough, the driver, snuck and consumed a Coors Light beer from his refrigerator while he was outside clearing, and burning brush. Also Corra alleged unbeknownst to him at the time, McDonough left his home, used a fake ID provided by Tucker to purchase Budweiser beer and Jagermeister from a nearby convenience store, and later returned to Corra’s home where she drank another six to seven beers.

In his suit, Corra alleges Cosenza failed to provide him “with effective and meaningful representation.” This included failure to challenge the transfer of the charges from magistrate to circuit court, move for judgment of acquittal until after Corra was convicted and, during he course of trial, challenge the insufficiency of the evidence.

During his trial, Wood County Prosecutor Ginny Conley, who personally handled the case, did not hide the fact that it was beer, not liquor, Corra allegedly served. He maintains that Cosenza not only didn’t object to the fact furnishing beer to a minor is a separate statute, but also Conley couldn’t provide any evidence Corra was responsible for providing any alcohol, including beer, to the four underage adults.

Though he does not provide specifics, Corra alleges during his trial, Cosenza failed to assert “at least one instance of prosecutorial misconduct, which the trial court found had been waived.” Furthermore, Corra alleges Cosenza “allowed his professional friendships and relationships with representatives of the prosecuting attorney’s office to affect adversely this judgment and compromise his representation.”

Records show Corra was convicted by a jury on four counts of “knowingly furnishing alcohol to underage persons.” In August 2007, he was sentenced on each count to 10 days in jail, and a $100 fine with the sentences to run consecutively.

Due process lacking

A month later, Corra fired Cosenza as his attorney, and hired Charleston attorney Jim Cagle to help him pursue an appeal. Citing the failure of the prosecution to meet its burden due to variance of the statutes, and the insufficiency of evidence he knowingly furnished any alcohol to the four, the Supreme Court on Feb. 27, unanimously reversed Corra’s conviction.

In offering the Court’s opinion, Justice Menis E. Ketchum said Corra’s conviction was a result both Conley’s and Cosenza’s ambivalence for due process.

“We begin by noting that, from our review of the record,” Ketchum said, “it is apparent that neither the prosecutor nor defense counsel read the statutes relating to the crime of furnishing ‘alcoholic liquors’ before the jury reached its verdict. The prosecutor mistakenly informed a busy trial judge that beer was the same as alcoholic liquor for the purpose of proving the indictment.”

“Likewise,” he continued, “it is not disputed that when the circuit court asked at the charge conference whether he should instruct the jury on the definition of alcoholic liquor, defense counsel stated that an instruction was not necessary because beer was an alcoholic liquor.”

On a motion filed by Jason Wharton, who succeeded Conley as prosecutor in last year’s general election, asked that the involuntary manslaughter charge, which was never set for trial, be dismissed. In his motion filed in September, which Judge Robert A. Waters subsequently granted, Wharton cited the Court’s February decision.

Because Cosenza failed to mount a zealous defense in his case, Corra alleges he’s needlessly spent money not only to defend himself, but also hire another attorney to correct mistakes both Conley, and Cosenza made. In his suit, Corra seeks unspecified damages, court costs, attorney fees and interest.

He is represented by Charleston attorney Jeffrey V. Mehalic.

Answer and counterclaim

Records show Cosenza since has filed an answer to Corra’s suit.

In his answer filed Oct. 2, Cosenza denied nearly all of Corra’s allegations. He maintains he “used proper trial discretion in the exercise of his professional obligations” and the Supreme Court’s reversal was based on errors committed by Conley, not him.

In addition to his answer, Cosenza filed counterclaim against Corra. In it, he alleges Corra owes him $12,139.40 beyond the initial retainer he paid on Sept. 1, 2006.

Cosenza is represented by Stephen R. Crislip and Ben M. McFarland with the Charleston office of Jackson Kelly. The case is assigned to Judge J.D. Beane.

Wood Circuit Court, case number 09-C-426

PARKERSBURG – A related suit Jeff Corra filed against his homeowner’s insurer resulting from the circumstances that happened on Aug. 6, 2006 has been dismissed.

In addition to the legal malpractice suit filed against George Cosenza, Corra filed a breach of contract suit against American Modern Home Insurance Company in Wood Circuit Court. However, the suit on Oct. 2 was moved to U.S. District Court in Parkersburg following a motion filed by AMHIC’s attorneys Al Emch, and Gary W. Hart.

Records show Emch and Hart, with the Charleston office of Jackson Kelly, made the motion on the grounds of diversity of jurisdiction between the parties, and the potential sum in controversy was greater than $75,000.

In his complaint, Corra alleges no sooner was he was indicted in Sept. 2006, than did the administrators of Joshua Tucker’s and Matthew Humphrey’s estates, and Morgan Brown’s parents serve notice on Corra they intended to file a claim with AMHIC. On Dec. 4, 2006, AMHIC filed suit in U.S. District Court seeking a declaration it had no duty to defend or indemnify Corra against the claims.

Tucker and Humphreys were killed, and Brown was injured following a single-vehicle accident caused by Courtney McDonough, the driver of the vehicle, who consumed alcohol while visiting with Corra’s daughter, Ashley.

Also, AMHIC filed a motion for summary judgment that under the terms and conditions of his policy, Tucker’s and Brown’s deaths, and Brown’s injuries were not caused by an “occurrence.” On Dec. 15, 2008, two months before it overturned his conviction on charges of furnishing alcoholic liquors to minors, the state Supreme Court, in response to a certified question submitted by the U.S. District Judge Joseph R. Goodwin, ruled the deaths and injuries did not constitute an occurrence.

In his suit against AMHIC, Corra maintains they eventually provided him with a defense to at least one of the wrongful death suits in September 2008. Though it is unclear which one, records show the Tucker and Humphreys wrongful death, and the Brown personal injury suits were eventually consolidated in July, and are pending before Wood Circuit Judge Jeffrey B. Reed.

Nevertheless, Corra maintains AMHIC was negligent in attempting to relieve itself from any claims stemming from accident. Similar to the allegations he made in his legal malpractice suit, Corra alleges AMHIC’s inactions caused him to needlessly spend money defending himself.

In their motion for dismissal filed on Oct. 9, Emch and Hart argue AMHIC’s motion for declaratory judgment was in no way an attempt to deny Corra coverage under his policy. Instead, AMHIC exercised its option to have a court decide what rights and duties AMHIC had in the pending claims against Corra.

“It is not a sign of bad faith for an insurer to pursue this course of action, but an indication that it is taking the appropriate course by seeking a decision from a court, thus assuring full protection of the rights of all interested parties,” Emch and Hart wrote.

Also, since AMHIC provided Corra coverage once the suits were filed, they argue he’s failed to state a claim on how he’s been damaged.

On Nov. 13, Goodwin, who coincidently was assigned the case, agreed with Emch’s and Hart’s arguments, and dismissed the case.

U.S. District Court for the Southern District of West Virginia, case number 09-cv-1074

Nov. 12
David Covert vs. Schwan’s Food Service Inc.
PA – Scott Kaminski; J – Waters
* The plaintiff is suing the defendant for retaliatory discharge after he was fired on Nov. 24, 2008, for filing a workers compensation claim form an on-the-job injury sustained four days earlier. He is seeking unspecified damages, including lost wages, court costs, attorney fees and interest.
Case number: 09-C-565

Nov. 13
Bradley Law Office PLLC vs. Alva J. Watson
PA – James A. Bradley; J – Reed
* The plaintiff is suing the defendant for unpaid legal services rendered in three civil suits – 06-C-472, -594, and -621 – in Wood Circuit Court. They are seeking judgment in the amount of $7,404.84 plus interest and court costs.
Case number: 09-C-568

Bradley Law Office PLLC vs. Clarence E. Toler
PA – James A. Bradley; J – Waters
* The plaintiff is suing the defendant for unpaid legal services rendered in a divorce – 06-C-70 – in Wirt Family Court. They are seeking judgment in the amount of $2,394.59.
Case number: 09-C-569

Nov. 16
Sandra P. Rollyson vs. Kalapala Seshagiru Rao, M.D. and Punnamma Memorial Rehabilitation Clinic
PA – Keith White; J – Beane
* The plaintiff is suing the defendants for release of her medical records regarding treatment the defendants provided her following injuries she sustained on Oct. 17, 2004, at Blennerhassett Junior High School. In addition to an order releasing the records, she is seeking court costs.
Case number: 09-C-570

Beneficial of West Virginia Inc vs. Kelley and Jeffrey Ray
PA – Jennifer M. Palonis; J – Reed
* The plaintiff is suing the defendant for defaulting on a $33,982.88 loan given to defendants on March 21, 2005. They are seeking judgment in the amount of the outstanding balance – $40,787.31 – plus 13.5 percent interest from Nov. 12.
Case number: 09-C-572

Craig Anthony Nelson vs. T.A. Davis and the City of Parkersburg
PA – Joseph W. McFarland; J – Waters
* The plaintiff, a Parkersburg resident, is suing the defendants for physical and emotional injuries he sustained on Nov. 16, 2008, after he received bruises to his head, and broken ribs in the course of being arrested by Davis for public intoxication, and later watched as Davis, without provocation, shot and killed his dog. He is seeking unspecified damages.
Case number: 09-C-576

Nov. 17
Rick Modesitt and Associates vs. Dean Fuller d/b/a Lighthouse Advertising
PA – Richard Hayhurst; J – Beane
* The plaintiff is suing the defendant for failing to render payment on an open account. They are seeking judgment in the amount of $30,700.53, court costs and 7 percent interest starting Nov. 17.
Case number: 09-C-579

Nov. 30
Timothy Paul Lyons vs. the Wood County Commission
PA – pro se; J – Beane
* The plaintiff, a Columbus, Ohio resident, is suing the defendant for injuries he sustained on Dec. 4, 2008, after being battered for unspecified reasons by an unidentified corrections officer. He is seeking unspecified damages.
Case number: 09-C-599

Dec. 8
Emily Michelle and Brian Allman vs. Darden Restaurants Inc., GMRI d/b/a Olive Garden Italian Restaurant #1254, and Jane Doe, an employee of Olive Garden
PA – Richard D. Dunbar; J – Beane
* The plaintiffs, residents of Mineral Wells, are suing the defendants, two Orlando, Fla. Businesses, its West Virginia franchisee and one of the franchisee’s employees for injuries Emily received on Dec. 10, 2007 when the unknown employee dropped a tray of drinks on her. Brian makes a claim for loss of consortium. They are seeking unspecified damages, court costs and fees.
Case number: 09-C-610

Dec. 9
Independence Communications Inc. vs. Dippio LLC
PA – John R. Keating; J – Reed
* The plaintiff, a Pittsburg, Pa. business, is suing the defendant, a Parkersburg business, for failing to make monthly payments on video and drive-thru servicing equipment on the defendant’s locations on Murdoch Ave. and Blizzard Dr. on March 6, 2005, and Oct. 6, 2006, respectfully. They are seeking judgment in the amount of $20,655.58 plus court costs and interest beginning Sept. 10, 2008.
Case number: 09-C-613

Dec. 11
Deric and Erin Butterfield vs. Erie Insurance Exchange, Erie Family Life Insurance Company, Kevin Marti, Alawat Insurance Agency LLC and Robin Alawat-Strauss
PA – Brenten M. Morehead; J – Reed
* The plaintiffs, residents of Parkersburg, are suing the defendants, an Erie, Pa. insurance company, its vice-president, and local agent, for denying a death-benefit claim for their son, Landon, on Feb. 12, 2008 on the basis they answered question on the initial application submitted on Aug. 22, 2007 in bad faith. They are seeking damages of $1 million.
Case number: 09-C-619

Dec. 15
Clarence D. Piggott vs. Parmar Oil Company Inc.
PA – Dean A. Furner; J – not yet assigned
* The plaintiff is suing the defendant for injuries he sustained after falling at the defendant’s location at the intersection of W. Va. 95 and Rayon Dr. He is seeking unspecified damages.
Case number: 09-C-624

PARKERSBURG – A Wood County man is suing the city of Parkersburg and one of its police officers for physical and mental injuries he suffered following an arrest last year.

The city, and Parkersburg Police Officer T.A. Davis are named in a three-count personal injury suit filed by Craig Anthony Nelson in Wood Circuit Court. In his complaint filed on Nov. 16, Nelson, 44, alleges he was not only physically injured by Davis following an arrest for public intoxication, but also emotionally when Davis, without provocation, later shot and killed his dog.

In his suit, Nelson says Davis came to his home on Cale St. in Parkersburg Nov. 16, 2008 in response to a “neighborhood dispute.” Afterwards, Davis arrested him on a charge of public intoxication.

Immediately following his arrest, Nelson alleges Davis, “without provocation or just reason,” shot and killed his dog. The suit does not give further specifics about the dog except it was in Nelson’s front yard.

Nevertheless, Nelson alleges Davis taunted him “about killing the dog, both at the scene, en route to the police station, at the police station, and at the hospital where [he] was later taken for treatment.” In order to quell his outrage over the killing of his dog, Nelson alleges Davis used excessive force to subdue him which resulted in, among other things, a head injury, and broken ribs.

According to the criminal complaints filed against him in Wood Magistrate Court, Nelson was not only charged with public intoxication, but also one charge each of possession of a controlled substance and failure to render information, and two charges of assaulting a police officer. Also, Patrolman First Class W.G.. Collins and Sgt. Giffen assisted in Nelson’s arrest.

Records show after all three spoke with Nelson in his front yard, and observed him as being “unsteady on his feet with the odor of an alcoholic beverage,” he was arrested by Collins for public intoxication. Upon conducting a search of Nelson, Collins found two white pills that Nelson admitted, and the pharmacy at St. Joseph’s Hospital later confirmed, was Percocet.

A Schedule II narcotic containing oxycodone, and acetaminophen, Percocet is used to treat moderate to severe short-term pain.

In the course of processing him at the department headquarters, Collins alleged Nelson refused to provide him any information, and to be fingerprinted. Later, as he was being led away for further processing, Collins alleges Nelson took a swing at him.

Prior to that, Davis alleges while at Camden-Clark Memorial Hospital for evaluation, Nelson “became verbally aggressive toward [me] jumping from his seat and pushing toward [me] in an aggressive manner.” In order to subdue Nelson, who by this time had jumped from his chair, Davis said he had to wrestle him to the ground, and with Collins’ assistance, place him back in the chair.

Records show all charges where dismissed with prejudice on March 13 by Magistrate Emily Bradley at the request of the Wood County Prosecutor’s Office.

In his suit, Nelson alleges as a result of the injuries he sustained from the arrest, and watching helplessly as his dog was shot and killed, he’s suffered psychological and emotional distress, and pain and suffering. This has led him to incur, among other things, medical bills and expenses, lost income, and “diminution of the value and quality of his life.”

Nelson seeks unspecified damages. He is represented by Parkersburg attorney Joseph W. McFarland Jr.

The case is assigned to Judge Robert A. Waters.

Wood Circuit Court, case number 09-C-576

The top picture, which was previously posted on the social networking group MySpace and reportedly circulated around the Parkersburg-area, shows former Wood County Prosecutor Ginny Conley, right, with nine underage boys from Parkersburg High School, including Conley’s son, Nathan, center, with alcohol while on a trip to Mexico in 2007. A judge recently ruled that attorneys for Rozann Wilcox may ask Conley about the pictures during upcoming depositions in Wilcox’s pending wrongful termination suit against Conley, but placed limits on the disclosure of information obtained. The bottom picture, shows Conley, center, with three underage boys from Parkersburg High School at a Mexican bar in 2007. It was during this time Conley was prosecuting Parkersburg resident Jeff Corra on charges he provided alcohol to minors. Last year, the state Supreme Court overturned Corra’s conviction on the charges citing flaws in both the prosecution’s, and defense’s handling of the case.

PARKERSBURG – Filings in a wrongful termination suit against a former Wood County prosecutor allege that while pursuing criminal charges against a Parkersburg man for furnishing alcohol to minors, she, too, either furnished alcohol to minors or instructed minors, including her son, on how to avoid being arrested for underage consumption.

In the ongoing wrongful termination lawsuit, records show that attorneys for former Wood County Prosecutor Ginny Conley — John F. McCuskey and Kimberly M. Bandy — object to a set of combined discovery requests submitted by attorneys for former Wood County Juvenile Justice Liaison Rozann Wilcox — Dan Cooper and Jami Cropp.

Wilcox sued Conley in 2008 alleging she was fired for allowing a former rival of Conley’s to view an investigation file.

In addition to voicing objections, McCuskey and Bandy on June 1 asked that a protective order be entered on replying to the requests since they were “intended for no purpose other than to annoy, harass, and embarrass” Conley.

Among the requests McCuskey and Bandy found objectionable were questions Cooper and Cropp posed to Conley about whether she’d been in the presence of juveniles while they were consuming alcohol. According to court filings, Cooper and Cropp came into possession of a picture which purportedly shows Conley drinking alcohol with juveniles. Cooper and Cropp ask Conley to “provide the names, addresses and telephone numbers of each of the persons that are pictured in the photographs …”

Cooper and Cropp also ask Conley to “provide their age at the time the photograph was taken” and “state the date on which the photograph is taken.” The picture is not contained in court records.

However, pictures that were previously posted on the social networking group, MySpace, and were reportedly circulated around the Parkersburg-area, have surfaced. They show Conley with teenage boys with alcohol while on a trip to Mexico in 2007. One of the pictures shows Conley at the end of a bar with three boys while another shows Conley at the end of a table with nine boys, including her son, Nathan, who is holding a glass in one hand, and a Corona beer in the other.

Conley is also asked to describe each instance in which she “ever suggested, to Nathan or any of his friends … ways to avoid law enforcement or ways to prevent person(s) (including parents or law enforcement) from sensing that they had been drinking alcohol (including liquor and/or beer).”

After graduating from PHS, Nathan Conley attended Fork Union Military Academy in Fork Union, Va. Currently, he is a freshman at The Citadel in Charleston, S.C.

Three fingers back

At the time the alleged incidents occurred, Conley was prosecuting Jeff Corra on charges he furnished alcohol to minors during a party at his home on Aug. 6, 2006. After two boys, Joshua Tucker and Matthew Humphreys, died following a single-vehicle accident after the party, Corra was not only indicted on furnishing alcohol charges, but also later on two counts of involuntary manslaughter.

Prior to, and during his trial on the furnishing charges, Corra maintained his innocence. Though he was aware the boys — along with Courtney McDonough and Morgan Brown — came to his home that night to visit his daughter, Ashley, he was outside the entire time burning brush.

Corra claimed it was McDonough who furnished the alcohol prior to, and after the youths arrived. He later learned that McDonough snuck a Coors Light beer out of his refrigerator.

A year and a day after the party, Corra was convicted on all four counts of furnishing alcoholic liquors to a minor, and sentenced to pay a $400 fine, and serve 40 days in jail. However, the state Supreme Court in February overturned Corra’s conviction citing flaws in the way Wood County Assistant Prosecutor Sean Francisco presented the case, and for how his attorney, George Cosenza, failed to mount a zealous defense.

In an opinion authored by Menis Ketchum, the Court said, “It is apparent that neither the prosecutor nor defense counsel read the statutes relating to the crime of furnishing ‘alcoholic liquors’ before the jury reached its verdict. The prosecutor mistakenly informed a busy trial judge that beer was the same as alcoholic liquor for the purpose of proving the indictment.”

“Likewise,” Ketchum continued, “it is not disputed that when the circuit court asked at the charge conference whether he should instruct the jury on the definition of alcoholic liquor, defense counsel stated that an instruction was not necessary because beer was an alcoholic liquor.”

Citing the Court’s February ruling, Wood County Prosecutor Jason Wharton, who was elected last November after Conley decided not to run for a fourth term, asked that the involuntary manslaughter charges, which were never set for trial, be dismissed. Records show Judge Robert A. Waters granted Wharton’s motion on Sept. 3.

In August, Corra filed a legal malpractice suit against Cosenza’s law firm.

Motion partly granted, denied

Records show on Dec. 21, Jackson Circuit Court Judge Thomas C. Evans III granted in part, and denied in part McCuskey’s and Bandy’s motion for a protective order. Evans was appointed to the case by the Court on June 22 after Putnam Circuit Judge Ed Eagloski lost his bid for re-election.

The Court first appointed Eagloski after all three of Wood County’s circuit judges recused themselves after the case was filed in February 2008.

In his order, Evans said that Cooper and Cropp may pose the objectionable questions to Conley in upcoming depositions. However, since some of the questions call for disclosure of “protected confidential information,” Evans ruled that information shall be marked confidential, and “safeguarded against accidental or inadvertent dissemination.”

In addition to questions about her being in the presence of minors when alcohol was served, or instructing minors on avoiding arrest for underage consumption, Evans gave the green light to Cooper and Cropp to query Conley regarding allegations she used a county credit card for her personal benefit.

In her suit, Wilcox alleges Conley fired her in retaliation for allowing Parkersburg attorney Jim Leach, who ran against Conley for prosecutor in 2000, to see an investigation file.

Wilcox’s case against Conley is slated for trial on June 8, 2010, and is scheduled to last four days. A hearing is scheduled Feb. 19 on McCuskey’s and Bandy’s pending motion for summary judgment.

Wood Circuit Court, case number 08-C-185

Brown

COLUMBUS, Ohio – The first trial from a group of personal injury lawsuits filed against DuPont involving its Wood County plant is scheduled to begin in September 2015.

Charleston attorney Kathy Brown says U.S. District Judge Edmund Sargus, of the Southern District of Ohio, has also scheduled a second trial to begin in November 2015. Sargus is presiding over a multidistrict litigation proceeding that currently has 46 personal injury lawsuits against DuPont.

The lawsuits allege injuries caused by water from the company’s Washington Works Plant near Parkersburg that is contaminated with a chemical known as C8.

Of the 46 lawsuits, nine were filed in West Virginia.

“With the volume of plaintiffs, a complex case nature and the extensive amount of discovery needed, the time frame we are working in is as close to ‘fast track’ as one can get,’” Brown wrote on her website Aug. 8.

“Judge Sargus also stated in a new court document that all parties involved continue to work together on all relevant issues – including plaintiff fact sheets, a representative pool of plaintiffs and the experts that will be needed to comment on the scope of the C8 contamination.”

Sargus is scheduling monthly status conferences for the MDL.

Also scheduled are two C8 town hall meetings. Brown says the first will be 7 p.m. at the Mason County Main Library in Point Pleasant, and the second will be 7 p.m. at the Mulberry Community Center in Pomeroy, Ohio.

The lawsuits allege the plaintiffs suffered from one or more of six diseases that have been potentially linked to C8 exposure by a study conducted as part of a 2005 settlement.

That settlement was the result of a 2001 class action filed by the Charleston firm Hill, Peterson, Carper, Bee & Deitzler. The study linked C8 exposure with kidney cancer, thyroid disease, testicular cancer, ulcerative colitis, pregnancy-induced hypertension and hypercholesterolemia.

Brown, working with the Alabama firm Cory Watson Crowder & DeGaris, filed the first C8 personal injury lawsuits in October in Wood Circuit Court.

The Alabama firm had lobbied for the cases to be consolidated in the Ohio court, arguing Charleston’s federal court is too busy. It already has five MDLs assigned to Chief Judge Joseph Goodwin, including a transvaginal mesh MDL that, as of February, was home to more than 11,000 cases.

The order creating the MDL noted that 80,000 people live in the six water districts allegedly contaminated with C8.

In May, the C8 Medical Panel, which was also created as a result of the 2005 settlement engineered by the Hill firm, released its recommended medical monitoring protocols.

The value figure attached to the settlement was $107.6 million, with $72 million funding the C8 Health Project.

Charleston attorney Harry Deitzler – of the firm Hill, Peterson, Carper, Bee & Deitzler – said the medical monitoring protocols are the first phase of recommended medical screening and testing.

The C8 Medical Panel also mentioned plans to create educational materials that will help inform class members about the benefits and harms of screening, Deitzler said.

Affected residents who meet the class definition will be entitled to medical testing at DuPont’s expense.

Class members who suffer from linked diseases are also permitted to move forward with personal injury or related wrongful death claims against DuPont that arise from DuPont’s discharging the known carcinogen into the drinking water.

As part of the 2005 class action settlement, DuPont agreed it would not dispute that C8 can cause diseases the C8 Science Panel linked to C8 exposure.

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

Bryan

CHARLESTON – A Wood County man has settled his excessive force lawsuit against the City of Parkersburg for $135,000.

Jerry Seabolt agreed in August to settle his claims against Parkersburg, members of its police department and Mayor Bob Newell, according to his attorney John Bryan. The lawsuit was filed in U.S. District Court for the Southern District of West Virginia.

The settlement came two weeks after the U.S. Court of Appeals for the Fourth Circuit affirmed a judge’s ruling in favor of a Parkersburg man who claimed a former Wood County sheriff’s deputy brutalized him while in custody.

Seabolt’s lawsuit says Officer Nathan Deuley alleged in a 2011 letter drafted by his attorney that years earlier, Newell told police officers he was tired of small, frivolous complaints against the police department during a meeting.

“He advised the officers to the effect that if they were in a scuffle, with arrestees or pretrial detainees, to ‘beat their ass and put them in the hospital,’” the complaint says of the letter.

“Newell went on to state that he knew how to deal with the insurance companies and for officers of the Parkersburg Police Department not to worry about that issue.”

That policy of excessive force was on display Oct. 15, 2011, the complaint says, when Seabolt was arrested for public intoxication, disorderly conduct and obstruction.

The arresting officers, who are co-defendants in the suit, were Joshua A. Vensel, Beniah Depue and Justin Blake.

Seabolt had been standing in front of a Dollar General store in Parkersburg with friend David Hastings. He had bloodshot eyes and smelled of alcohol, officers said. He became aggressive towards them and had to be handcuffed, they said.

Hastings claimed an officer to Seabolt that if he didn’t shut up, he was going to punch him in the mouth.

“As soon as they cuffed him, the blond-haired officer (Depue) and two other officers grabbed him to transport him to the police cruiser,” the complaint says.

“Then the three officers slammed the Plaintiff’s head into the hood of a police cruiser, while the Plaintiff was handcuffed.”

Depue also told Hastings that Seabolt was about to “get an ass-whooping,” the complaint alleges.

At the Wood County Holding Center, Vensel punched Seabolt in the face, which knocked Seabolt unconscious, the complaint says. A surveillance camera captured the punch, it adds.

Seabolt was transported to Camden Clark Medical Center and treated for his injuries, the complaint says.

Vensel later pleaded guilty to the battery of Seabolt. He agreed to surrender his law enforcement certifaction and will not seek employment as a law enforcement officer anywhere in the country.

Seabolt has memory loss and problems with his jaw, the complaint says.

Seabolt filed his lawsuit on June 6, 2012, and amended his complaint on July 18, 2013.

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

The federal courthouse in Parkersburg

PARKERSBURG – A Mexican restaurant is suing insurance companies over coverage following a fire.

Las Trancas Mexican Restaurant Inc., Martin Arrellano of Vienna and Las Trancas Mexican Restaurant – Buckhannon Inc. filed a lawsuit on Aug. 1 in the Circuit Court of Wood County against Shamrock CNA – Continental Casualty, Valley Forge Insurance Co., Traveler’s Insurance Co. and Doe Insurance Co., citing a breach of contract.

The plaintiffs say they had insurance policies through the defendants when a fire occurred on Aug. 1, 2011, at their restaurant in Buckhannon.

They say Valley Forge Insurance Co. paid partial claims on the loss, but the plaintiffs’ claims have yet to be resolved.

The plaintiffs are seeking an undetermined amount in damages. They are being represented by Marietta, Ohio, attorney John E. Triplett Jr.

The defendants removed the case to U.S. District Court for the Southern District of West Virginia on Aug. 30. They argue the case belongs in federal court because of the diversity of the parties involved and because the amount in controversy exceeds a $75,000 threshold.

Circuit Court of Wood County Case No. 13-C-297.

CHARLESTON — The federal Environmental Protection Agency has announced that E.I. du Pont de Nemours and Company, otherwise known as DuPont, has agreed to settle alleged Clean Air Act violations at the company’s Washington Works Facility.

In a civil complaint — filed along with the proposed settlement — the federal government and the State of West Virginia alleged several violations of “leak detection and repair,” or LDAR, safeguards at the DuPont facility, located in Wood County.

The violations, which are alleged to have begun in 2007, included failure to monitor pumps, valves, and connectors; failure to calibrate monitoring equipment; failure to identify and report equipment containing hazardous air pollutants, or HAPs; failure to close open-ended lines containing HAPs; and failure to conduct required pressure tests.

The proposed settlement was filed Oct. 28 in U.S. District Court for the Southern District of West Virginia in Charleston by the U.S. Department of Justice.

Under the terms of the proposed consent decree, DuPont has agreed to pay a $800,000 civil penalty and implement several safeguards to limit emissions of HAPs, including volatile organic compounds, or VOCs, such as formaldehyde, methanol and acetal.

According to the EPA, VOCs contribute to the formation of ground-level ozone, which is a major component of smog and can cause or aggravate respiratory disease. Ozone also causes damage to forests and crops, fabric and exterior coatings, such as oil and acrylic latex, oil coatings and automotive finishes. Some known or suspected effects of exposure to HAPs include cancer, reproductive health problems, and birth defects.

The enforcement action is part of the agency’s national initiative to reduce emissions of HAPs by enforcing LDAR regulations.

The EPA has determined that leaking equipment such as valves, pumps and connectors are the largest source of emissions of hazardous air emissions from chemical manufacturers and petroleum refineries.

A facility that is subject to LDAR requirements must monitor equipment containing HAPs at regular intervals to identify leaks, and leaking components must then be promptly repaired or replaced, according to the federal agency.

In addition to the $800,000 penalty — which will be divided equally between the federal government and West Virginia — the consent decree includes injunctive relief requiring DuPont to implement several measures to improve Clean Air Act compliance and reduce emissions of HAPs at the West Virginia plant.

Among other measures, DuPont will commission an independent third-party LDAR applicability audit of the facility; prepare a detailed LDAR manual covering all regulated process units at the facility; implement a LDAR training program; institute a two-year enhanced LDAR program; and conduct quarterly quality assurance and quality control reviews and annual audits of the enhanced LDAR program to review compliance with the consent decree.

The proposed consent decree, filed in the U.S. District Court for the Southern District of West Virginia, is subject to a 30-day public comment period and final court approval.

DuPont’s Washington Works Plant

PARKERSBURG – Four personal injury lawsuits have been filed in Parkersburg federal court against DuPont over a chemical known as “C8” that was released by its Washington Works Plant in Wood County.

On Oct. 22, lawsuits were filed by David Freeman, Brian Lowers, Clair Mont McCoy and David Wilcoxen. The plaintiffs are represented by Aaron L. Harrah and Harry G. Deitzler of Hill Peterson Carper Bee & Deitzler in Charleston.

The firm engineered a 2005 settlement that established both a medical panel and science panel to probe the effects of C8.

The Science Panel determined that C8 exposure could lead to kidney cancer, thyroid disease, testicular cancer, ulcerative colitis, pregnancy-induced hypertension and hypercholesterolemia.

The four new lawsuits allege the plaintiffs suffer from at least one of those diseases.

“Defendant failed to exercise ordinary care in the operation and/or management of the Plant and/or the conduction of operations and activities at the Plant in such a manner as to negligently cause, permit and/or allow the Releases, thereby contaminating the drinking water and blood/body of Plaintiff, and also by knowingly making false representations to and/or knowingly concealing material information from Plaintiff, other exposed individuals, and the general public regarding the Releases, the contaminated drinking water, and Plaintiff’s harmful exposure to C8,” the complaints say.

A multidistrict litigation proceeding has been created to process the personal injury claims. Judge Edmund Sargus of U.S. District Court for the Southern District of Ohio in Columbus is overseeing the MDL.

A search of court records shows 46 lawsuits in the MDL. The four filed Oct. 22 will make it an even 50 when they are transferred.

Charleston attorney Kathy Brown, who has filed lawsuits on behalf of some claimants, said the first trial is scheduled to begin in September 15. She added that Sargus is scheduling monthly status conferences for the MDL.

Brown, working with the Alabama firm Cory Watson Crowder & DeGaris, filed the first C8 personal injury lawsuits in October 2012 in Wood Circuit Court.

The Alabama firm had lobbied for the cases to be consolidated in the Ohio court, arguing Charleston’s federal court is too busy. It already has five MDLs assigned to Chief Judge Joseph Goodwin, including a transvaginal mesh MDL that, as of February, was home to more than 11,000 cases, the firm wrote.

The order creating the MDL noted that 80,000 people live in the six water districts allegedly contaminated with C8.

In May, the C8 Medical Panel, which was also created as a result of the 2005 settlement engineered by the Hill firm, released its recommended medical monitoring protocols.

The value figure attached to the settlement was $107.6 million, with $72 million funding the C8 Health Project.

Deitzler said the medical monitoring protocols are the first phase of recommended medical screening and testing.

The C8 Medical Panel also mentioned plans to create educational materials that will help inform class members about the benefits and harms of screening, Deitzler said.

Affected residents who meet the class definition will be entitled to medical testing at DuPont’s expense.

Class members who suffer from linked diseases are also permitted to move forward with personal injury or related wrongful death claims against DuPont that arise from DuPont’s discharging C8 into the drinking water.

As part of the 2005 class action settlement, DuPont agreed it would not dispute that C8 can cause diseases the C8 Science Panel linked to C8 exposure.

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

Stroebel

PARKERSBURG – A lawsuit filed against the City of Parkersburg by a man who claimed the mayor and the chief of police defamed him has been dismissed from federal court.

Parkersburg Mayor Robert Newell and Chief of Police Joseph Martin were also named as defendants in the suit. The case was heard in U.S. District Court for the Southern District of West Virginia.

On Nov. 5, an order granting the defendants’ motion for summary judgment was granted.

“Mr. Backus now claims that he has alleged two constitutional violations… illegal retaliation for Mr. Backus’ exercise of his First Amendment right to free speech and a substantive due process violation of the Fourteenth Amendment,” U.S. District Judge Joseph Goodwin’s memorandum opinion and order states.

Backus’ complaint did not allege any of the elements of a retaliation claim and it has no factual basis to support them, according to the opinion.

“All the complaint contains is a conclusory statement that the defendants ‘violated U.S. Privacy Law [and Mr. Backus's First, Fourth and Fourteenth] Amendment Rights when they conducted ‘illegal’ background checks’ on him,” the opinion says.

“Such conclusory statements are insufficient to state a claim upon which relief can be granted.”

The defendants violated privacy laws and Backus’ First, Fourth and 14th Amendment rights when they conducted background checks on him, according to a complaint initially filed June 4, 2012, in Wood Circuit Court and removed to the U.S. District Court for the Southern District of West Virginia at Parkersburg on July 2, 2012.

Backus claimed his First Amendment rights were also violated when Newell defamed and libeled him to the Parkersburg News and WTAP-TV 3.

Backus was seeking compensatory and punitive damages in the amount of $12 million. He was represented by Paul M. Stroebel of Stroebel & Johnson PLLC.

The defendants were represented by Johnnie E. Brown and James A. Muldoon of Pullin, Fowler, Flanagan, Brown & Poe PLLC.

U.S. District Court for the Southern District of West Virginia at Parkersburg case number: 6:12-cv-02518

Scott

PARKERBURG – A Wood County couple have filed a lawsuit against Merck & Co. over its NuvaRing product that has become the subject of thousands of claims nationwide.

Heidi and Adam Jones filed their lawsuit Nov. 13 in U.S. District Court for the Southern District of West Virginia in Parkersburg. It could soon be transferred to a multidistrict litigation proceeding in a Missouri federal court that handles NuvaRing claims.

The product, a contraceptive, has been alleged to create blood clots, among other health problems, in users.

Heidi Jones says, after complaining of a severe headache in December 2011, she was diagnosed with a blood clot in her left transverse sinus.

“Despite the fact that Defendants knew or should have known that NuvaRing caused unreasonable and dangerous side effects, which many users would be unable to remedy by any means, Defendants continue to market NuvaRing to consumers when safer alternative methods of treatment are available,” the complaint says.

The complaint charges Merck and its co-defendants with negligence, defective manufacturing, defective design, failure to warn, failure to adequately test, breach of express warranty, negligent misrepresentation, fraudulent misrepresentation, violation of the state Consumer Credit and Protection Act, fraud by concealment and loss of consortium.

The Joneses also seek punitive damages. They are represented by Todd Wiseman of Wiseman Law Firm in Vienna and Carmen S. Scott of Motley Rice in Mt. Pleasant, S.C.

Organon Pharmaceuticals and the Schering-Plough Corp. are also named as defendants. Merck purchased those companies in 2009.

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