Parker

EKLINS – A familiar face returns to the Randolph County Prosecutor’s Office to lead it for at least the next year.

The Randolph County Commission on Dec. 23 appointed Michael W. Parker, an associate at the Elkins office of McNeer, Highland, McMunn & Varner, to fill the unexpired term of former prosecutor Richard Busch.

Parker, 32, who worked as an assistant prosecutor from 2005 until 2008 before taking a job at McNeer, Highland, McMunn and Varner, was sworn into office Jan. 3.

Parker, a native of White Sulphur Springs, joined fellow Randolph County attorneys Frank P. Bush, Dwight R. Hall, Christina Harper, Philip S. Isner and Earl W. Maxwell as well as Kurt W. Hall, an assistant Harrison County prosecutor, to be Busch’s replacement. The Commission interviewed all the candidates over a two-day period before finally choosing Parker.

Busch, who was first elected prosecutor in 2008, abruptly resigned on Dec. 5 as the Commission was preparing to accept a report from Charleston attorney Jim Lees they hired to conduct an inquiry into personnel problems at the prosecutor’s office. Because of Busch’s resignation, the Commission agreed not to accept Lees’ report or make it public.

During the last year, Busch was accused of multiple acts of misconduct, including making material misrepresentations in the case of Autumn Faulkner, a former Elkins Middle School teacher accused of having sex with one of her former students. An indictment brought against Faulkner in February was dismissed in June when Busch failed to provide a videotaped interview between police, and the alleged victim to Faulkner’s attorney.

Initially, Busch blamed the investigating officer, West Virginia State Trooper First Class A.S. Loudin for losing the tape. However, he later took responsibility for losing it.

Because he not only lost the tape, but also initially blamed Loudin for the loss, Randolph Circuit Judge Jaymie Godwin Wilfong found Busch in contempt. In lieu of sanctioning him, Wilfong referred the matter to the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct.

At his contempt hearing, it was revealed Wilfong filed a prior complaint against Busch with ODC. The first came after she dismissed the first indictment against Faulkner in January after it was learned the indictment returned in October 2010 was tainted due to an unsolicited comment made by one of the jurors.

Following dismissal of the second indictment, Wilfong in September appointed Parker’s now former law partner, Steve Jory, as a special prosecutor in Faulkner’s case. He has yet to make a decision on whether to re-indict Faulkner or dismiss the case.

According to the Randolph County Clerk’s Office, Parker’s salary will be $92,200. If he wishes to remain as prosecutor, he will have to run for a full term in this year’s election.

Dec. 15
Judy Welch vs. Gary Ransbottom and Glady Fork Cabins Co.
PA – Erika Kolenich; J – Wilfong
* The plaintiff, who was formerly engaged in a romantic relationship with Ransbottom, claims the defendant has failed to return personal property to her and has failed to fully compensate her for work, contributions and assistance to his business that she provided before their relationship ended. She is seeking an undetermined amount of relief.
Case number: 11-C-202

Dec. 16
FIA Card Services NA vs. Adam J. D’Angelo
PA – Edna Coulter; J – Wilfong
* The plaintiff claims the defendant owes at least $38,874.93 plus interest for a past-due credit account.
Case number: 11-C-204

Dec. 22
Stevens Engineers and Constructors Inc., formerly Stevens Painton Corp., vs. Tennessee Valley Infrastructure Group Inc.; AES Laurel Mountain LLC; AES Wind LLC; AES PJM Wind LLC; AES Corp.; Thomas L. Ferguson; Linda Kay Ferguson; E&K Properties LP; Pamela S. Gobert; Wilson H. Van Meter; C. Sterling Van Meter; David P. Van Meter IV; Charles A. Van Meter; Tall Trees and Land LLC; Harry Smith, trustee; Polino Enterprises Inc.; Davis Trust; Coastal Forest Resources Co., d/b/a Coastal Timberlands Co.; Carol Molnar; Daniel Molnar; Matthew Molnar; Geneva Molnar; Myles Family Foundation; June Myles; John M. Mosesso, trustee of the John A. Mosesso Testamentary Trust; Victor Mosesso; Gene Allen Andrews, secured party; Inga Andrews, secured party; Metlife Insurance Co. of Connecticut; Metropolitan Life Insurance Co.; and Douglas C. McElwee, trustee
PA – Robert Bays; J – Wilfong
* The plaintiff is seeking at least $2,146,722.19 plus interest from Tennessee Valley after it breached a contract from July 22, 2010, by failing to pay for construction services related to building a wind-powered, electric generation facility in Randolph County. The plaintiff named additional defendants who have property- or lien-related interests in the project.
Case number: 11-C-210

Jan. 3
Franklin McCauley vs. Bethany Shipley
PA – Lori Gray; J – Good
* The plaintiff claims the defendant was negligent and caused an accident on Aug. 31, 2010, when she was operating a 2005 Ford Escape on Ward Road in Elkins and struck the plaintiff, who was on foot. The plaintiff claims the defendant was preoccupied and distracted by using her cellphone to read and/or send text messages while driving. The plaintiff suffered serious injuries and is seeking an undetermined amount of relief.
Case number: 12-C-3

Jan. 25
Rismawaty “Dewi” Helmick vs. Jack Jr., administrator and sheriff of Randolph County; Charles M. Helmick, son; Pamela A. Navari, daughter; Timothy L. Helmick, son; and Western Surety Co.
PA – George Triplett; J – Wilfong
* The plaintiff is the widow of Charles Cecil Helmick Jr., who died Oct. 26, 2006. She claims defendant Pamela Navari, as administratrix of the estate, allowed more than $197,000 in cash advances to be taken from the estate for her personal benefit and also mishandled other estate affairs, including a real estate sale. The plaintiff is seeking an undetermined amount of relief.
Case number: 12-C-24

Feb. 1
Woodford Oil Co. vs. Davis & Burton Contractors Inc. and Stephen C. Davis
PA – Rebecca Judy; J – Wilfong
* The plaintiff was awarded a total judgment of $112,757.89 plus any post-judgment interest and costs for overdue payments. The judgment was issued July 18, 2008, in Boyd Circuit Court in Kentucky, and the foreign judgment notice was filed in Randolph County Circuit Court.
Case number: 12-C-29

Feb. 3
Wilma D. Miller, individually and as administratrix of Melanie Nicole Miller’s estate, vs. County Commission of Randolph County d/b/a Office of Emergency Management of Randolph County, Elkins-Randolph County Emergency Squad Inc., Randolph County EMS Volunteers Elkins Unit Inc. d/b/a EMS Volunteers and city of Elkins
PA – C. Richard Wilson; J – Wilfong
* The plaintiff claims the defendants were negligent and caused her daughter’s wrongful death because they failed to respond in a timely manner to her home after she called 911 for her daughter on Feb. 6, 2010. She claims the first EMS unit called to respond failed to do so because it was heading to a gas station, and the second unit called to respond wasn’t able to find her home because of the city’s inadequate 911 addressing and mapping system. This delay of several minutes led the plaintiff to take her daughter to the hospital herself, where her daughter died of cardiac arrest. The plaintiff is seeking an undetermined amount of relief.
Case number: 12-C-31

ELKINS -– A Randolph County woman is alleging a series of snafus committed by EMS personnel contributed to the death of her daughter.

The Randolph County Commission, the city of Elkins and two ambulance squads are named as co-defendants in a six-count wrongful death suit filed by Wilma D. Miller. In her complaint filed Feb. 3 in Randolph Circuit Court, Miller, 65, of Elkins, alleges the failure of ambulances to timely respond to multiple calls she made seeking medical assistance for her daughter, Melanie Nicole, ultimately led to Melanie’s death.

According to the suit, Melanie on Feb. 6, 2010, suddenly “became very ill” at the home Wilma shares with her husband, Robert, on Westview Drive. About 9:52 a.m., Wilma called 911, which is operated locally by the Commission via its Office of Emergency Management.

Two minutes later, an operator at the 911 center dispatched a crew from the Randolph County Emergency Services to the Miller’s address. A minute later, an unidentified person from RCES called the 911 center back suggesting they dispatch a crew from the Elkins unit of the Randolph County EMS Volunteers as the RCES crew was “‘at the [gas] pumps ready to go to Morgantown.’”

According to the suit, the RCES crew “had no patient in the ambulance … was not en route to an emergency call,” but instead “was fueling up to make an inter-facility transport.” Also, the RCES crew “failed to request any more information to determine which call might be of a higher priority.”

At 9:56 a.m. the 911 center sent a dispatch to RCEMSV. Nobody from RCEMSV immediately responded.

Two minutes later, Wilma called the 911 center again saying Melanie was fading into unconsciousness, and she “‘was going to die.’” Instead of remaining on the line to comfort Wilma, and obtain additional information, the suit alleges the operator hung-up on her.

At 10 a.m., the 911 center sent a second dispatch to RCEMSV. Ninety seconds later, Unit 787 responded saying they were en route to the Miller’s address, and anticipated arrival in 40 seconds.

Shortly after the second dispatch, Robert called the 911 center “in a state of panic, to report … Melanie was ‘dying.’” Though he reported Melanie had “‘all kinds of [health] problems,’” the suit alleges the operator failed to inquire as to what they were or provide Mr. Miller with any pre-arrival instructions.

According to the suit, Melanie was first diagnosed with a mixed connective tissue disease in 1993 when she was a student at Davis and Elkins College. In January 2010, she was also diagnosed with hypertension.

At 10:02 a.m. the 911 center sent out a broadcast that Unit 787 was handling the call. Two minutes later, they put out a second broadcast that “‘Melanie had fallen.’”

At 10:09 a.m. Unit 787 contacted the 911 center saying “they were lost and unable to locate the Miller family residence.” According to the suit, the 911 center gave directions to Unit 787 for the next 90 seconds as the crew “either did not have available or did not utilize a G[lobal] P[ositioning] S[ystem], navigational aids or standard maps.”

Shortly after 10:16 a.m., RCEMSV Unit 787 reported to the 911 center they arrived at the Miller’s home, “but that the family had left for the hospital.” A minute later the crew “left the Miller home with an empty ambulance.”

According to the suit, at that very moment Melanie was being wheeled in the emergency room at Davis Memorial Hospital in Elkins. The ER staff attempted to stabilize her for the next three hours until a continual drop in her blood pressure sent her into cardiac arrest at 1:45 p.m., and resuscitation efforts were halted six minutes later.

She was 37.

According to her death certificate, Melanie’s primary cause of death was a mydocardial infarction with gastroenteritis listed as a contributing factor. Dr. Eric Anger determined she died of natural causes.

In the suit, Wilma, who two months after Melanie’s death qualified to be the administratrix of her estate, alleges the Commission, the city, RCES and RCEMSV all bear responsibility for Melanie’s death. If Melanie had been transported to DMH in “timely” fashion, she maintains Melanie “would have had a greater than twenty-five percent chance of surviving the cardiac arrest that ended her life.”

According to the suit, city officials as late as 2008-09 were aware of deficiencies with their 911 mapping system which would “prevent or thwart emergency responders to locate and find homes and businesses quickly.” On an unspecified date, the city council voted against accepting the recommended improvements to addressing and numbering system which existed.”

In the suit, Miller makes claims wrongful death, and negligence against the Commission, the city and RCES/RCEMSV. As a result of their negligence, Miller maintains she’s incurred “medical, funeral and burial expenses” for Melanie as well as sorrow and mental anguish.

Miller seeks unspecified damages, interest court costs and attorneys fees. She is represented by Moundsville attorney C. Richard Wilson.

The case is assigned to Judge Jaymie Godwin Wilfong.

Randolph Circuit Court case number 12-C-31

Feb. 15
Robert Drain vs. Davis Memorial Hospital
PA – Paul Harris; J – Wilfong
* The plaintiff claims the defendant was negligent and failed to properly care for him, monitor and treat his medical condition on Feb. 16 and 17 when he was admitted to the Intensive Care Unit after a fall at home. He claims he was given Phenergan, which should be used with caution for patients like himself who are at risk for seizures, and he later fell from his hospital bed and remained unresponsive and nonverbal for several hours. He claims his changes in condition were not reported to the attending physician, and he later had to be transported to Ruby Memorial Hospital in Morgantown because of an intracranial hemorrhage. He is seeking an undetermined amount of relief.
Case number: 12-C-36

Feb. 16
Citizens Bank of West Virginia, as successor in interest to The Citizens National Bank of Elkins, vs. Gold Resources LLC, United Coals Inc., Gold Diggers Inc., Jeffrey A. Goldizen and Debra D. Goldizen
PA – Gordon Copland; J – Wilfong
* The plaintiff claims the defendants owe at least $212,454.10 plus interest after failing to meet the terms of a loan agreement from Dec. 13, 2007.
Case number: 12-C-37

Feb. 17
Woodford Oil Co. vs. Jay Michael LLC and Marsha West
PA – Rebecca Judy; J – Wilfong
* The plaintiff claims the defendants owe at least $35,964.31 plus interest, as well as liquidated damages, on a past-due account.
Case number: 12-C-42

Feb. 28
Movin’ and Smoothin’ Inc. vs. Novus Operating LLC, Zachary Pitzer and Tenaska Resources LLC
PA – Hunter Mullens; J – Wilfong
* The plaintiff claims the defendants breached a contract from Oct. 1, 2011, for work related to construction of a gas well on the defendants’ property in Randolph County. The plaintiff claims the defendants delayed work by failing to make all necessary arrangements for the work site, including right-of-way agreements for road construction and state permits. The plaintiff also claims the defendants have failed to pay for all the work that was completed, and now owe at least $154,775.31 for unpaid invoices. The plaintiff is seeking that amount plus other damages.
Case number: 12-C-48

Feb. 29
Teresa Gotinsky Brusak and James Anthony Brusak vs. James Bazzle and Highland Farms
PA – Angela Blythe; J – Wilfong
* The plaintiffs claim the defendants were negligent and made false statements to the plaintiffs in order to convince them to purchase a horse named Eagle. The plaintiffs claim the defendants said the horse was trained for riding, exceedingly gentle and even safe for small children to ride, even though the defendants “actually had done very little or nothing to train, ‘break,’ or otherwise make Eagle safe for riding.” A week after purchasing the horse and letting it get used to its new surroundings, Teresa Brusak attempted to ride Eagle but was violently thrown off. She suffered five fractured pelvic bones, bruised ribs, back injuries and other medical problems as a result. The plaintiffs are seeking at least $300,000 for compensatory damages and other relief.
Case number: 12-C-49

Aug. 1
Andrew Kesling, a minor, by and through David Kesling, vs. American Sportworks LLC, Elza Cycle and ATV LLC and Tractor Supply Co.
PA – Tim Carrico; J – Wilfong
* The plaintiffs claim Andrew Kesling was seriously injured April 10, 2012, while driving a go-cart that was purchased at Tractor Supply in Elkins. They claim Kesling was operating the go-cart “in the fashion and manner for which it was intended,” and he was wearing a helmet and using the safety restraint system in the go-cart, when the steering mechanism failed and caused an accident. The suit claims the go-cart, which was manufactured by American Sportworks, had been serviced twice by Elza Cycle for a defect in the steering mechanism. The plaintiffs claim the defendants were negligent, and they are seeking an undetermined amount of relief.
Case number: 12-C-127

Aug. 7
Citizens National Bank of West Virginia Inc. vs. MJM Pipeline LLC
PA – Robert Chenoweth; J – Wilfong
* The plaintiff claims the defendant owes at least $54,251.63 after breaching the terms of a commercial credit agreement from Dec. 5, 2009. The bank is seeking an undetermined amount of relief.
Case number: 12-C-136

Aug. 21
Roger Boatwright and Susie Boatwright, individually and as guardians of Tanner Boatwright; Tanner Boatwright; and Christopher Boatwright vs. Robert L. Reckart Jr., Gina Reckart and Robert L. Reckart Sr.
PA – Debra Tedeschi Varner; J – Wilfong
* The plaintiffs claim the defendants’ reckless actions on Nov. 25, 2011, “constitute negligence of the grossest sort,” after 16-year-old Tanner Boatwright was struck by a bullet from Robert Reckart Jr.’s rifle at a remote hunting camp in Tucker County. Tanner Boatwright, who had been a star athlete at Elkins High School, “narrowly escaped death from ‘bleeding out’ as a result of the massive wound,” and his leg had to be amputated above the knee. The suit claims Robert Reckart Jr., a felon, was not permitted to possess a firearm, and he had been drinking whiskey prior to the shooting. The suit also claims his wife, Gina Reckart, and father, Robert Reckart Sr., each knew of Robert Reckart Jr.’s prior felony conviction, his “use of illegal drugs, as well as his general reckless disregard of the law and irresponsible lifestyle.” The Boatwrights are seeking an undetermined amount of compensation.
Case number: 12-C-139

Reckart

ELKINS – The injury their son received last year from a hunting-related accident was totally preventable, says a Randolph County couple in a recently filed lawsuit.

Robert L. Reckart, Jr., 49, and his wife, Gina, 47, are named as co-defendants in a civil suit filed Aug. 21 by Roger, 45, and Susie Boatwright, 43. In their complaint filed in Randolph Circuit Court, the Boatwrights allege the trauma their son, Tanner, 16, sustained after Robert accidentally shot him last November during a hunting trip never should’ve happened as Reckart was prohibited from being in possession of a firearm.

According to the suit, Robert and his son Dylan invited Tanner and Roger to join them on a deer hunt to a camp the Reckarts own in neighboring Tucker County. The exact location of the camp is not specified.

Roger and Tanner agreed, and arrived with Dylan and Robert at the camp on Nov. 25. Later that evening, Robert encouraged the others, “to go with him on a four-wheeler ride after dark in and about the premises.”

Initially, Roger attempted to discourage everyone from going four-wheeling. However, he decided to go along “so as to keep an eye on [Tanner].”

According to the suit, Roger and Tanner left the camp in one four-wheeler with Robert, Dylan and an unnamed minor in another. At an unspecified time and place, both the Boatwrights and Reckarts stopped their four-wheelers and began to disembark on foot for unspecified reasons, the suit says.

Upon disembarking from his four-wheeler, Robert brought with him a rifle of an unspecified caliber, it says. Shortly thereafter, he accidently discharged the rifle, it says.

According to the suit, the bullet fired from the rifle hit Tanner in his right leg and severed his femoral artery. Because the camp was in a “remote and secluded” part of Tucker County, Tanner was transported by Roger in his SUV all the way back to Elkins to Davis Memorial Hospital.

After arriving at DMH, the staff was able to stabilize Tanner, and prevented him from “bleeding out.” Later, he was airlifted to the University of Pittsburgh Medical Center for surgery.

According to the suit, after arriving at UPMC, Susie, who accompanied Tanner, was informed the damage caused by the bullet was severe to the point that his leg would need to be amputated below the knee in order to save his life. Prior to Roger later arriving by car, Susie gave the doctors authorization to go ahead with the amputation.

At the time of the shooting, Tanner was in his sophomore year at Elkins High School and recently completed the 2011 season on the Tigers’ football team. Though fitted with a prosthetic leg, the injury has prevented him from returning for this season.

Also at the time of the shooting, Robert was a convicted felon, and, by law, was prohibited from either owning or being in possession of a firearm, the suit claims. According to court records, Reckart was convicted in 1986 of distributing cocaine, and served a five-year suspended sentence.

On May 1, Reckart was indicted by a federal grand jury on one count of felon in possession of a firearm. Records show on June 28, Reckart accepted a plea offer from U.S. Attorney William J. Ihlenfeld II. He would recommend Reckart get a reduced sentence in exchange for his “acceptance of responsibility,” full cooperation in meeting the Office’s demand for information and forfeiture of the rifle which was identified in the agreement as a Harrington and Richardson Handi Rifle .223 REM.

Currently, Reckart is scheduled to be sentenced Nov. 27 before Judge John Preston Bailey. He faces a maximum penalty of up to 10 years in prison, followed by three years of supervised release and a $250,000 fine.

According to court records, Reckart’s father, Robert Sr., 71, purchased the rifle for Dylan five years ago at a sporting goods store in Elkins. Because Dylan was 8-years-old at the time and could not legally hunt with it until he turns 15 in two years, the Boatwrights allege Robert Sr., who is named as a co-defendant in the suit, made a straw purchase for Robert Jr.

In the suit, the Boatwrights, including Tanner, make claims against the Reckarts for negligence, negligent entrustment of a firearm, negligent infliction of emotional distress, premises liability and loss of child consortium. The Boatwrights’ older son, Christopher, 19, is also a co-plaintiff in the suit, and makes an additional claim of loss of child consortium for being “deprived of the ability to engage in athletic events together” with Tanner.

Christopher also played football at EHS, and led the team in tackles his senior year during the 2010-11 season. Last year, he played at the collegiate level for Fairmont State University before leaving to become a police officer in Elkins.

The Boatwrights seek unspecified damages. They are represented by James A. Varner, Sr. and Debra Tedeschi Varner with McNeer, Highland, McMunn and Varner.

The case is assigned to Judge Jaymie Godwin Wilfong.

Randolph Circuit Court, case number 12-C-139

CHARLESTON – The state’s high court has affirmed the dismissal of a state prisoner’s complaint alleging that officials at Huttonsville Correctional Center did not provide adequate treatment regarding his belief that he has “a vibration in my body that feels like a pager vibrating.”

The Jan. 25 memorandum opinion was concurred in by all five justices of the court.

Petitioner Sanders Brown Jr. had abdominal surgery in 2005 or 2006 while he was in the custody of Mt. Olive Correctional Complex. He alleged that “something was left/dropped in the interior of his body,” but an ultrasound conducted on Dec. 20, 2006, detected nothing, according to the opinion.

He also had a barium enema on Jan. 19, 2007, and EKGs on Aug. 7, 2008, June 10, 2009, and Aug. 17, 2010, but he asserts that all these tests are insufficient to determine whether a foreign object is present in his body.

He filed a pro see complaint in circuit court on Feb. 25, 2011, seeking to have the respondent officials arrange for diagnosis and treatment of the alleged condition. He sought outside consultation and unspecified compensatory and punitive damages.

A supplemental pleading filed by Brown states that it’s possible that “something was implanted intentionally in the Petitioner’s body,” and that “there are needle marks on both sides of the Petitioner’s neck, and the Petitioner himself does not know of these needle marks’ origin.

“Nanodevices can be implanted by needle injection. Technology has come far,” the pleading asserts.

The circuit court granted the prison official’s motion to dismiss in an order dated Oct. 19, 2011. While recognizing that the medical staff may not have run “every conceivable test” to determine the cause of his alleged vibrations, the court found “it is within the sound discretion of the medical staff at a correctional facility to determine what tests are reasonable in light of the circumstances of each inmate complaint.”

On appeal to the state Supreme Court, Brown asserted that contrary to the circuit court’s finding, the officials never ran any kind of test to determine whether there was an object inside his body that could be causing a vibration. Brown asserted that the tests that were run did not address his complaints.

“The abdominal ultrasound was conducted after petitioner’s abdominal surgery. The fact that the abdominal ultrasound was negative would rule out the possibility that something was negligently left or dropped in the interior of petitioner’s body during surgery,” the court wrote.

“As for petitioner’s other theory that an electronic device was intentionally implanted in his body, after careful consideration, this court finds that this is a frivolous claim. Therefore, this court concludes that the circuit court did not err in granting the respondent officials’ motion to dismiss petitioner’s Section 1983 action.

“For the foregoing reasons, we find no error in the decision of the Circuit Court of Randolph County and affirm its October 19, 2011 order dismissing petitioner’s action.”

A letter sent to the state Division of Corrections on Aug. 31, 2011, from Brown requested an investigation.

“Myself and other inmates all over the United States are complaining about a technology that can induce audio and visual perception that isn’t apparent to others,” he wrote.

“It seems to oppres and harass with ill-treatment and to annoy persistently through communication and visuals only the targeted inmates can hear and see.”

Brown was convicted of First Degree Murder in 2001 and has a parole hearing in 2015, according to his page on the state Division of Corrections’ website.

CHARLESTON – The state Supreme Court ruled that an ex-wife who was owed back child support on her now adult children does not a have claim on a wrongful death award received as a result of her former husband’s death.

The court delivered the per curiam opinion on April 12. The case was on appeal from the Circuit Court of Randolph County.

The petitioner, Connie Ellis, was represented by Frank P. Bush, Jr. from Elkins and the respondent, Linda Swisher as Administratix of the Estate of Thomas R. Swisher, was represented by David H. Wilmoth, also of Elkins.

Thomas R. Swisher died as a result of a motor vehicle accident in 2010 and the driver who struck Swisher’s motorcycle head-on had an insurance policy that paid $250,000. Swisher had underinsured coverage of $50,000 with his own insurer.

The combined amount was collected by Linda Swisher as the administratrix of Swisher’s estate. Linda Swisher was the wife of Thomas R. Swisher at the time of his death.

When Linda Swisher sought the circuit court’s approval of the wrongful death settlement proceeds and the distribution of the funds, Connie Ellis filed a motion to intervene in the proceeding.

Ellis and Thomas R. Swisher were married and 1979 and divorced in 1982. Their union produced two children.

Ellis was allowed intervenor status and she introduced evidence that Thomas R. Swisher had been paying her $125 a month since 2003 on child support arrearage. The arrearage total at the time of the intervention was approximately $57,000.

The circuit court denied Ellis’ claim, citing Ellis’ testimony that she gave the arrearage payments to her children. It also ruled that due to this, she could not establish that she was financially dependent on Thomas R. Swisher.

Ellis appealed the circuit court ruling to the state’s high court.

Ellis argued on appeal that as a former spouse receiving payments against a child support arrearage, she was “per se financially dependent on the decedent for purposes of recovery under our Wrongful Death Act.” The act allows for a proportion of wrongful death damages to be distributed to persons other than the relatives specifically listed in the statute who were financially dependent on the decedent when they died.

“Seeking to circumscribe the trial court’s ruling concerning her lack of financial dependency on the decedent,” the court wrote, “Ms. Ellis maintains that this Court has liberally construed the language of West Virginia Code § 55-7-6(b) to permit recovery of wrongful death benefits based on either the regular receipt of financial assistance or some type of services from the decedent”

The court acknowledged that there had been some rulings in the past that were somewhat analogous to the situation before them including in the Bond case. In the Bond case, the court had relied on the 1965 version of the applicable code which did not include a requirement that “the surviving dependent be legally dependent on the deceased for support.”

“In the intervening years since Bond was decided, subsection 6(b) has been amended multiple times. Under the current statutory enactment, a showing of financial dependency is required for those persons who do not come within the statutory list of beneficiaries designated based on familial relationship.

“Based on the petitioner’s unwavering testimony that she did not keep any of the child support arrearage payments for herself, the trial court had little difficulty concluding that Ms. Ellis was not financially dependent on Mr. Swisher at the time of his death.

“Given this Court’s longstanding recognition that a wrongful death action is for the benefit of the decedent’s beneficiaries rather than his creditors, we would be abandoning over a century of unwavering precedent if we determined that wrongful death damages could be obtained, under the facts of this case, to satisfy an outstanding child support arrearage.

“In this case, the record is clear that the petitioner sought to demonstrate entitlement to the settlement moneys at issue based merely on her receipt of the monthly arrearage payments and nothing more.

“Based on the forgoing, we do not find that the circuit court erred in its decision to deny the petitioner a share of the wrongful death settlement moneys at issue in this case. Accordingly, the decision of the Circuit Court of Randolph County is affirmed. “

ELKINS – A Randolph County businessman is accusing officials in one town of improperly shutting down his bar.

The town of Mill Creek is named as co-defendant in a two-count civil rights suit filed by John Haney in U.S. District Court. In his complaint filed April 30, Haney, owner of Haney’s Eight Star Restaurant LLC, alleges town officials, without notice, voted to revoke his business license.

Mill Creek is north of Huttonsville on U.S 250/219/W.Va. 92/55 and boasts a population of 724, according to the 2010 Census.

According to the suit, the town council on an unspecified date approved Haney’s business license application. Also, on unspecified dates, Haney says he received the necessary permits to serve alcohol.

However, on May 14, the council voted to revoke his business license. As a result, the state Alcohol Beverage and Control Administration revoked his liquor license, which resulted in the restaurant’s ultimate closure.

In his suit, Haney avers he was never given any advance notice of the May 14 meeting or that “the business license was under review, or could be revoked.” Also, he goes a step further and alleges notice of the May 14 meeting was “intentionally withheld” as he would later learn a representative of the ABCA was in attendance.

Prior to the revocation, Haney says he appeared before the council to answer concerns they had about the bar. According to the suit, he “appeared and successfully defended the allegations against him.”

In his suit, Haney alleges the council acted without due process in revoking his license. Allen Armstrong, Gary Coffman, Diane Currence, Eddie Currence and John Doe are named as co-defendants.

Haney seeks unspecified damages, court costs and attorney’s fees. He is represented by Elkins attorneys John J. Wallace IV and Joseph A. Wallace.

The case is assigned to Judge John Preston Bailey.

U.S. District Court for the Northern District of West Virginia, case number 13-cv-30

CHARLESTON – The state Supreme Court has found that a Randolph County couple’s personal injury and property damage case arising from the alleged negligent clean-up of a sewage back-up was properly dismissed by the circuit court.

The court issued the per curiam opinion affirming the Circuit Court of Randolph County’s order granting summary judgment in favor of the defendant, Perfection Plus Turbo-Dry, LLC, on April 26.

According to the record, the Pingley family alleged that they were awakened at approximately 2 a.m. on April 14, 2007, to find their home flooded with a “substantial amount of sewage.” They were forced to move out of the home for three-and-a-half months while related clean-up and repairs were done.

The Huttonsville Public Service District allegedly spent more than $60,000 repairing the home and sewer line during the repair period.

On June 9, 2008, the Pingleys filed an action against HPSD, charging that they had not been compensated for the damage caused by the sewage back-up.

During the resulting litigation, the Pingleys filed their Third Amended Complaint, bringing Perfection Plus into the case as a defendant. Perfection Plus had been hired to “perform Emergency and/or Restoration Services and any/all necessary Supplemental services… for damages to structure and/or contents sustained as a direct result of sewage backup occurring on 4/15/07.”

The Pingleys claimed that after Perfection Plus completed its work on June 11, 2007, they smelled a “stench” and observed a run-off of water under the house which they contended was the result of work done by Perfection Plus.

They claimed that as a result of Perfection Plus’ negligence, the house was contaminated with mold, which caused Brandy Pingley severe health problems. The allegations against Perfection Plus arouse during the discovery process.

“It is undisputed,” the opinion states, “that prior to July 28, 2010, the date on which the Third Amended Complaint was filed, Perfection Plus had no knowledge of the ongoing proceedings against HPSD, and no knowledge that the petitioners were dissatisfied with Perfection Plus’ services.”

The circuit court granted summary judgment to Perfection Plus on the grounds that the contract included a “Mold/Mildew/Bacteria Waiver” was neither unconscionable nor against public policy and that the Pingleys’ claims were barred by the statute of limitations. The Pingleys appealed.

The Pingleys’ claims against HPSD were settled and so only the claims against Perfection Plus were on appeal.

The court began its discussion with the Mold/Mildew/Bacteria Waiver that was in the contract. It reads:

“An accumulation of moisture in a structure may give rise to the presence of mold, mildew and bacteria. Mold, mildew and bacteria may pose significant health risks to certain individuals. While Perfection Plus Turbo-Dry, LLC will make every effort to identify existing mold, mildew and bacteria and dry the structure, it offers no assurance that your structure is free of mold, mildew or bacteria and may not be held liable for hazards to health or structure damages caused by mold, mildew or bacteria.

“If the structure has ever sustained water damage and you are concerned about the presence of fungal growth, please contact a Certified Hygienist. Perfection Plus Turbo-Dry, LLC and its employees may discuss the dangers of mold grown, but they are merely opinions and should be substantiated by a Certified Hygienist. Perfection Plus Turbo-Dry, LLC’s opinions should not dissuade you from seeking the professional advice of a Certified Hygienist prior to making a decision to forego Mold/Mildew and Bacterial treatments or remediation efforts. We encourage you to seek professional advice and/or testing on the subject.”

The opinion says a determination of unconsionability requires an analysis that asks if the contract was procedurally and/or substantively unconscionable.

“A determination of unconscionability requires a two-part analysis: whether the contract is procedurally unconscionable, and whether it is substantively unconscionable,” the opinion states.

“The Pingleys admit that Perfection Plus’ disclaimer of liability for damages caused by mold was discussed with them at the time they signed the contract. They allege, however, that the contract was one of adhesion because its terms were not negotiable, and that the waiver of liability is unenforceable for that reason.

“In the instant case, there was no great disparity in the relative positions of the parties: the Pingleys needed clean-up services, and although they claim that Perfection Plus was the only business of its type in Randolph County, the evidence of record does not reflect that Perfection Plus held ‘either a monopolistic or oligopolistic position in [this] particular line of commerce.’

“The contract was not a lengthy or complex document; it was one page long. The disclaimer was highlighted, both with a bold-face heading and with underlining of the key points, and it is undisputed that it was discussed with the Pingleys at the time the contract was signed. Although the Pingleys are not sophisticated businesspeople, nothing in the record indicates that they are illiterate or particularly unsophisticated with respect to normal business decisions affecting the household.

“Finally, although the contract may be viewed as a contract of adhesion – it was a pre-printed form contract and its terms were not negotiable – that “is the beginning point for analysis, not the end of it… Taking all of these facts into account, we conclude that although the contract between the Pingleys and Perfection Plus was a contract of adhesion, it was not procedurally unconscionable under our precedents.

“Here, where Perfection Plus specifically advised the homeowners that it was not making any guarantee with respect to the presence or growth of mold, specifically advised the homeowners of steps to be taken if they had any concerns about mold, and specifically advised the homeowners to take those steps, nothing gives rise to an inference that the Pingleys were unwary and taken advantage of.

“The bottom line is that Perfection Plus’ mold disclaimer was neither unfair nor unreasonable. We therefore conclude it was not substantively unconscionable under our precedents.”

Having ruled on the unconscionability issue, the court then looked at whether the disclaimer violated public policy as the Pingleys argued.

“Specifically, the Pingleys argue that allowing a commercial entity to draft an anticipatory release would be akin to allowing an attorney to draft a contract of representation that disclaims liability for his or her malpractice. This analogy does not hold,” the opinion says.

“In the instant case, Perfection Plus did not have a fiduciary relationship with the Pingleys; rather, the parties entered into a standard, arms-length commercial transaction.

“We are aware of no public policy that requires a private business entity to assume liability for work or services that it does not perform, where, as here, it has given the customer notice that it does not perform the services, has provided information to the customer as to what entities do perform them, and has advised the customer to consult such entities.

“In the absence of a statutory standard of care and because Perfection Plus is not engaged in a public service, we conclude that the waiver of liability for mold-related damage in the company’s contract did not violate public policy under our precedents… The judgment of the Circuit Court of Randolph County is affirmed.”

Jan. 2

Dennis Parker Haddix vs. Davis Health System Inc.
PA – Scott Curnutte; J – Wilfong
* The plaintiff claims the defendant terminated his employment without cause and breached a written employee agreement by failing and refusing to pay compensation and other benefits for 12 months following the termination, causing irreparable economic loss, mental distress and other damages. He is seeking an undetermined amount of relief.
Case number: 13-C-1

Jan. 16

Robin W. Hammer vs. Sharon M. Helms and Thomas M. Hammer
PA – Pro se; J – Wilfong
* The plaintiff claims the defendants breached their fiduciary duty to manage the estate of Ethel M. Hammer by refusing to rent and maintain properties in accordance with the decedent’s will and conspiring to force a foreclosure sale of property that was part of the estate. The plaintiff is seeking at least $28,600 for the estate, as well as as undetermined amount of relief for other damages.
Case number: 13-C-8

Jan. 17

Gregory Paugh vs. Erin Randall
PA – Scott Curnutte; J – Wilfong
* The plaintiff claims he was seriously injured Jan. 17, 2011, when the defendant’s negligence caused a vehicle accident in Randolph County. The plaintiff claims Randall rear-ended the car in front of her, causing that car to rear-end the vehicle in which Paugh was a passenger. He is seeking an undetermined amount of relief.
Case number: 13-C-9

Jan. 23
Nichalous H. Anello vs. Galen Glen Wright
PA – John Wallace; J – Wilfong
* Anello claims the defendant was intoxicated and grossly negligent when he caused a vehicle accident on May 11, 2012, in Randolph County. The plaintiff suffered injuries, medical expenses, lost wages and other damages, and he is seeking an amount of relief to be determined.
Case number: 13-C-12

Jan. 28

Woodford Oil Co. vs. Now Delivery LLC
PA – Rebecca Judy; J – Wilfong
* The plaintiff claims the defendant has failed to make full payment upon a credit agreement and now owes at least $20,806.65, plus interest.
Case number: 13-C-14

Jan. 31

Leon A. Rush vs. James P. Harman, individually and d/b/a Champion Auto LLC
PA – Frank Bush; J – Wilfong
* The plaintiff claims the defendant breached a contract for a custom, high-end paint job on a 1967 Chevrolet Camaro, which was returned more than six months late with blotchy, bubbly portions of paint as well as rust. After the plaintiff took the car back to be touched up and properly painted, the defendant again failed to meet the terms of the agreement, the suit says. Rush claims the defendant handed him a can of broken bolts resulting from the botched attempts to reassemble the car. The plaintiff is seeking judgment for the cost of repairing, replacing and completing the work, as well as other compensation.
Case number: 13-C-15

Feb. 1

Albert Fred Beery, individually and as spouse and health care surrogate for Nancy P. Beery, vs. Elkins Regional Convalescent Center Inc.
PA – John Cooper; J – Wilfong
* The plaintiff claims Nancy Beery was left unattended while in the defendant’s care, directly leading her to fall in the bathroom, striking her head and breaking her hip, despite the fact that the defendant’s staff knew she was at a high risk for falls. She required extensive surgery and medical care, including care from Davis Memorial Hospital that cost at least $48,000. The plaintiff is seeking an amount of relief to be determined.
Case number: 13-C-17

Feb. 4

Donna Cumberledge vs. Dean O. Jack
PA – W. Tyler Nestor; J – Wilfong
* Cumberledge claims the defendant’s negligence caused a vehicle accident on Feb. 8, 2011, when he ran a red light and collided with the plaintiff’s vehicle at a high rate of speed. The plaintiff allegedly suffered serious injuries and pain, incurred medical and other expenses and endured emotional distress as a result, and she is now seeking an amount of relief to be determined.
Case number: 13-C-19

CHARLESTON – A woman who alleged she was fired as a result of her whistleblowing activities got no relief from the state’s high court when it found that her lawsuit fell outside the statute of limitations for a whistleblower action.

The court affirmed the Circuit Court of Randolph County’s dismissal of the action with its unanimous May 24 memorandum decision.

Plaintiff Julie Broschart was terminated from her position as a child services worker with the West Virginia Department of Health & Human Resource on Aug. 25, 2010. She was alleged to have allowed a minor under her care use her cell phone to contact an adult in another state with photographs and conversation of a sexual nature, the opinion states.

In March 2011 Broschart filed a complaint alleging damages for the tort of “outrage, constructive discharge, violations of the employee handbook or manual, and a whistleblower claim.” She alleged that she was terminated as punishment for having previously informed her superiors of violations of internal procedure by other employees.

According to the opinion, each of the causes of action in the complaint were based on her alleged reports of wrongdoing within the organization.

On May 31, 2011, DHHS filed a motion to dismiss the case as being barred by West Virginia Code § 6C-1-4(a), which requires that a whistleblower action be brought within 180 days of the underlying claim and that the latest that Broschart could have brought the claim was March 24, 2011, four days prior to the date she actually filed.

The circuit court granted the motion to dismiss based on its finding that all of the actions alleged in the complaint were claimed to be the result of whistleblowing activities and therefore barred by the 180-day statute of limitations.

The court wrote, “On appeal, petitioner argues that a whistleblower law is not an exclusive remedy, but is intended to give an additional remedy under law for whistleblowers.

“Petitioner further argues that the circuit court erred in its application of the discovery rule because a question of fact exists as to when petitioner’s constructive discharge occurred, as well as applying the 180 day statute of limitation to the tort of outrage, constructive discharge, and violations of employee manuals claims.

“Respondent argues that petitioner reads the circuit court’s holding too broadly, and that West Virginia Code § 6C-1-1, et seq., provides an exclusive remedy only when employees are wrongfully discharged for engaging in whistleblowing activities, not for all wrongful discharges.

“Respondent argues that the 180 day statute of limitation applies due to the underlying factual basis and that petitioner is being disingenuous in arguing that her constructive discharge could have occurred any time after her last day of employment.

“The Court has carefully considered the merits of each of petitioner’s arguments as set forth in his petition for appeal. This Court has previously held that we consider a circuit court’s order granting a motion to dismiss under a de novo standard of review.

“Petitioner has not shown that the factual findings here were anything other than a whistleblower action, therefore the 180-day statute of limitations applies. Finding no error in the circuit court order dismissing petitioner’s claims, we affirm.”

Feb. 7
Brenda Lynn Sauzer vs. Virginia A. Scott
PA – Forrest Bowen; J – Wilfong
* Sauzer claims the defendant’s negligence caused a vehicle accident on Feb. 9, 2011, when she failed to yield the right of way and caused a collision. The plaintiff suffered serious injuries and pain, incurred medical and other expenses and endured emotional distress as a result, and she is now seeking an amount of relief to be determined.
Case number: 13-C-20

Feb. 8
Daniel C. Crowley vs. Timothy A. Salisbury
PA – Gregory Tingler; J – Wilfong
* Crowley claims the defendant’s negligence caused a vehicle accident on Feb. 19, 2011, when he ran a red light and struck another car. The plaintiff was a passenger in the back seat of the defendant’s vehicle at the time. Crowley suffered serious injuries, medical expenses, lost wages and other damages, and he is seeking an undetermined amount of relief.
Case number: 13-C-21

Feb. 11
Thomas Elliott and Mary Elliott vs. Charles Ramsey and Richard Mauser
PA – David DeMoss; J – Wilfong
* The plaintiffs claim they suffered medical expenses, pain, suffering and other damages when they were involved in a multiple-vehicle accident on Feb. 14, 2011, caused by the defendants’ negligence. They stopped their vehicle to allow another vehicle to make a right turn, and they were struck from behind when Ramsey and then Mauser each failed to stop and maintain control of their vehicles. The plaintiffs are seeking an amount of relief to be determined.
Case number: 13-C-22

Feb. 13
William Martin Arbogast and Bryan Arbogast, as power of attorney for William Martin Arbogast, vs. Diane M. Elters, Vera Lipscomb and Mulberry Management Services
PA – George Triplett; J – Wilfong
* The plaintiffs claim William Arbogast, who was handicapped and received personal care from the defendants, was severely injured April 13, 2012, when he was a passenger in defendant Mulberry Management Service’s vehicle, which was operated by Elters. The plaintiffs claims Elters was negligent and swerved to miss a deer, causing the pickup truck she was operating to overturn and trap her and William Arbogast. The plaintiffs have incurred more than $50,000 in medical expenses as a result of the incident, and they are seeking an undetermined amount of relief.
Case number: 13-C-23

Feb. 15
Adam L. McCoy vs. Law Offices of David A. Sims PLLC and David A. Sims
PA – Drew Capuder; J – Wilfong
* The plaintiff claims the defendants have failed and refused to pay him $28,363.43 in compensation after he completed his employment with the firm, and he is seeking that amount plus other relief.
Case number: 13-C-24

Feb. 21
Kathryn E. Teter and Kathryn E. Teter, executrix of the estate of Thomas T. Teter vs. Rosemary Mullennex and Frankie Davis
PA – Duke McDaniel; J – Wilfong
* The plaintiffs claim Mullennex cashed five CDs belonging to Thomas Teter’s estate on Feb. 5, 2013, for a total of $85,917.80 without authorization; attempted to cash out accounts at Pendleton County Bank; wrote checks from the estate for her personal use; and removed numerous personal property items from the estate, including guns and tools, without permission. The plaintiffs claim Mullennex removed the items with help from her brother, Davis. The plaintiffs are seeking an undetermined amount of relief.
Case number: 13-C-31

March 3
West Virginia University Medical Corp. d/b/a University Health Associates vs. William Shannon Lloyd
PA – Ward Stone; J – Wilfong
* The plaintiff claims the defendant owes at least $51,397.00 plus interest for medical services provided to him in 2011.
Case number: 13-C-39

March 20
Billie Jo Hebb and Elwood Lynn Hebb vs. Shalae Brooke Studer
PA – James Fox; J – Wilfong
* The plaintiffs claim Billi Jo Hebb suffered permanent injuries as a result of a vehicle accident on April 4, 2011, when the defendant was negligent and failed to yield the right of way. The plaintiffs are seeking an amount of relief to be determined.
Case number: 13-C-45

March 26
Westfield Insurance Co. vs. Norman Ray Kesner Jr.
PA – Tyler Lansden; J – Wilfong
* The plaintiff is seeking at least $20,000 from the defendant after he negligently operated a motor vehicle on April 5, 2009, in Randolph County and caused bodily injury to the plaintiff’s insured, Rocky Charles Hebb.
Case number: 13-C-50

April 15
Davis Health System Inc. vs. Douglas Tice, MD
PA – Julia Abbitt; J – Wilfong
* The plaintiff claims the defendant owes at least $50,000 in past-due loans in accordance with loan agreements from 2012.
Case number: 13-C-60

May 3
Woodford Oil Co. vs. Jass Enterprises LLC
PA – Rebecca Judy; J – Wilfong
* The plaintiff claims the defendant owes at least $159,448.85 plus interest in accordance with a past-due credit agreement.
Case number: 13-C-65

CHARLESTON – A state correctional facility medical assistant lost in her appeal to the state Supreme Court when the court found her claim of retaliatory discharge was not supported by any substantial West Virginia public policy.

The memorandum opinion was filed on June 24 with justices Robin Jean Davis, Margaret L. Workman, Menis E. Ketchum, and Allen H. Loughry II concurring. Chief Justice Brent D. Benjamin was the lone dissenter.

Angela Bailey was employed by Wexford Health Sources, Inc. and working at the Huttonsville Correctional Facility of the West Virginia Division of Corrections as a medical assistant in 2009. Wexford was under contract with the state DOC to provide health care service to prisons throughout the state.

In her job as a medical assistant, Bailey drew blood from inmates, gave injections and took vital signs and measurements, among other medical services performed.

After drawing blood from an inmate on Aug. 5, 2009, Bailey accidentally splashed some of the inmate’s blood on her clothing and keys. She was alarmed because she believed that the spilled blood was contaminated with Hepatitis C, the opinion says.

Correctional Officer Wamsley was present in the lab when the spill occurred and he called Inmate Honaker, who was working as a janitor, into the lab to help with the clean-up of the spilled blood.

At some point, Bailey gave her keys to Honaker to clean them in the sink. Officer Wamsley was present in the entirety of the incident.

On Aug. 7, 2009, Wexford terminated Bailey’s employment for giving her keys to an inmate in violation of the key control policies of the DOC and Wexford.

Prior to the blood spill and her firing, Bailey had complained to her supervisor, Tristan Tenney, about the lack of medical supplies in the medical facility of the prison. She had gone as far as threatening to contact the U.S. Occupational Health and Safety Administration regarding her assertion that there were inadequate medical supplies.

In May 2010, Bailey filed a complaint with the Circuit Court of Kanawha County that was transferred to the Circuit Court of Randolph County in September 2011. Among her allegations was a claim for retaliatory discharge related to her having raised the issue of not having “enough medical supplies to properly carry out care and treatment of inmates.” She specifically cited the supplies lacking were “Band-Aids and gauze.”

In response to Wexford’s motion for summary judgment, Bailey argued that there was a public policy for an employer to maintain a safe working environment and cited the Occupational Safety and Health Act as public policy.

The circuit court granted Wexford’s summary judgment motion, finding that Bailey’s reliance on OSHA law was misplaced because it had no relationship to the allegation in the complaint about alleged insufficient medical supplies for the care and treatment of inmates. The court also found that Wexford has “an overriding business justification” for Bailey’s discharge due to her violation of company policy regarding the handling of keys.

Bailey appealed to the state High Court, asserting that the circuit court erred by finding that there was no substantial state public policy on which she could base her claim of retaliatory discharge. She argued that West Virginia public policy established inmates’ right to adequate medical care under West Virginia Code § 25-1-1.

West Virginia Code § 25-1-1 states in pertinent part:

The primary purpose of the Division of Corrections is to enhance public safety by providing for the incarceration and care of convicted offenders who have been sentenced by courts of proper jurisdiction to serve terms of incarceration. It is the intent of the Legislature:

3) to establish a just, humane and efficient corrections program; and

(b) This section shall be construed in favor of public safety.

“We begin by recognizing that in the State of West Virginia, employers and employees alike are generally governed by the at-will employment doctrine. Pursuant to this principle, when a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract,” the opinion says.

“An exception to the at-will employment doctrine recognizes that, in spite of the right of employers to terminate their employees, one of the fundamental rights of an employee is the right not to be the victim of a ‘retaliatory discharge,’ that is, a discharge from employment where the employer’s motivation for the discharge is in contravention of a substantial public policy.

“In order to sustain a cause of action for retaliatory discharge, the public policy relied upon must not just exist; it must be substantial. Moreover, [t]he term ‘substantial public policy’ implies that the policy principle will be clearly recognized simply because it is substantial. An employer should not be exposed to liability where a public policy standard is too general to provide any specific guidance or is so vague that it is subject to different interpretations. (Feliciano v. 7-Eleven, Inc.)

“Turning now to the issue presently before the Court, we must decide whether an inmate’s right to adequate medical supplies, such as bandages, is a substantial public policy exception to support a cause of action for retaliatory discharge. This Court finds no substantial public policy in West Virginia law lending support to petitioner’s claim. While West Virginia Code § 25-1-1a does refer to a ‘just, humane and efficient corrections program,’ these words are too general to provide any specific guidance.

“Furthermore, this statute explicitly provides that the primary purpose of the DOC is to ‘enhance public safety’ by incarcerating convicted offenders. Similarly, Policy Directive 410.02 does not provide a substantial public policy related to petitioner’s complaint about adequate medical supplies. The provision does refer to ‘appropriate services and supplies… to promote the maintenance of acceptable levels of offender hygiene.’ Likewise, this phrase is too general to provide any specific guidance.

“For the foregoing reasons, we affirm the circuit court’s order granting summary judgment in favor of respondents. Petitioner has failed to cite a substantial public policy of West Virginia which provides her with a cause of action under the complaint. Therefore, as an at-will employee, she could be discharged with or without cause.”

In a footnote to the opinion, the court also agreed with the circuit court’s finding that OSHA was “not designed for the purpose of protecting inmates, and the well-being of inmates is wholly unrelated to workplace safety for employees.”

ELKINS – Melvin Heckel convinced jurors that a negligent doctor blinded him, but now the doctor claims to possess proof that Heckel faked blindness.

Osteopath Kenneth D’Amato has sent Randolph Circuit Judge John Henning videotape of Heckel working seven days at a construction site.

D’Amato’s attorney, D. C. Offutt Jr., wrote to Henning that, “Time after time, Melvin Heckel can be observed doing the exact activities he consistently testified under oath that he could no longer perform.”

Offutt requested relief from a $1,858,300 verdict that jurors awarded in January 2006.

Offutt told Henning that Heckel perpetrated a fraud on the court.

Heckel’s attorney disputes Offutt’s claims.

“I think it’s fortunate that lawyers enjoy immunity so when they make irresponsible statements they don’t have to face the consequences,” said Kent Carper, Heckel’s attorney.

Carper said court records from last year’s trial show that Heckel’s treating physician referred him to the Cleveland Clinic, West Virginia University and Johns Hopkins.

“We did not send him to any of those doctors,” Carper said. “The opinions of these physicians are based upon their examinations and impressions. They’re based on medicine.

“D’Amato fired his previously lawyers because he didn’t like the way the trial went. These new lawyers didn’t try the case.”

Carper said the medical evidence from the trial is clear.

“They (D’Amato’s new attorneys) don’t understand what the term legally blind is,” Carper said. “They need to study up on it, and I’ll give them the chance.

“They claim that we said he (Heckel) was totally blind. If you can see anywhere in the court transcripts that we said he was totally blind, I’d like for you to show it to me.”

Heckel apparently took out an Elkins city permit for a commercial building on Martin Street.

According to Offutt, private investigator Bill Pauer videotaped Heckel at the site for 50 hours on seven days from Dec. 11 to Dec. 19.

“He is seen reading, supervising, measuring, lifting, hammering, shoveling, raking, using a wheelbarrow, operating dangerous power equipment, operating heavy equipment, operating a motor vehicle, and guiding truck drivers as they deliver loads of gravel and pipe,” Offutt wrote. “Melvin Heckel, a man 69 years of age, is in outstanding physical condition.

“For seven consecutive business days, Melvin Heckel was seen arriving at the construction site early in the morning and staying into the evening.”

D’Amato operated on Heckel’s spine in 2002 at Davis Memorial Hospital. After leaving the recovery room Heckel began to complain of sight loss.

He sued the doctor and the hospital. The hospital settled for $350,000.

Last year’s jury verdict against D’Amato was the highest medical malpractice award ever in Randolph County, according to Carper.

D’Amato sought to remove that distinction. He moved for a new trial. Henning denied the motion last May.

D’Amato petitioned the West Virginia Supreme Court of Appeals for a new trial. The case awaits action there.

According to Offutt, Heckel filed a response to the appeal Nov. 22, stating that he was legally blind and he came out of surgery blind.

He wrote, “Mr. Heckel continues to materially misrepresent his condition in formal legal documents …”

Carper said a hearing is scheduled before Henning on D’Amato’s motion on March 19.

Carper said Offutt is attempting a “smear job” on his client.

“I’m deeply disappoined that Mr. Offutt would send this matter to you before Judge Hennings ruled on it,” Carper told The Record. “Mr. Heckel is a very fine person.

“These lawyer-talk words are just that — lawyer talk. I do my litigating in a courtroom.”

SPENCER – The judge in the $405 million Roane County class-action gas royalties suit might trim the punitive damages awarded in the case.

At a March 5 hearing, Roane Circuit Judge Thomas Evans agreed with the gas companies’ claim that the jury wrongly formulated punitive damages at least by about 30 percent. But he balked when the gas companies argued for even more reductions to the damages.

“I’m not sure I’m going to change the rulings I made throughout the case,” Evans said, according to the Charleston Gazette. “I had concluded as a matter of law that the evidence supported a finding of willful, wanton misconduct and criminal indifference to a civil obligation.”

In late January, a Roane County jury imposed about $134.3 million in compensatory damages and $270 million in punitive damages against defendants in the case of Tawney, et al. v. Columbia Natural Resources. CNR is a former NiSource Inc. subsidiary, which was sold in 2003. NiSource, Columbia Energy Group and Chesapeake Appalachia LLC were named as defendants in the lawsuit. Oklahoma City-based Chesapeake Energy bought Columbia Natural Resources of Charleston in November 2005 for $2.2 billion.

The plaintiffs in the case, natural gas royalty owners, filed the lawsuit in early 2003 alleging that CNR underpaid royalties by deducting a portion of post-production costs incurred to gather and transport gas to interstate pipelines and by not paying market value for gas produced under all leases, even those providing for payment based on actual proceeds received for the gas. Plaintiffs sought the alleged royalty underpayment and punitive damages.

The defendants believe CNR operated in good faith and that there is no valid basis for any award of punitive damages, “let alone the unwarranted and unreasonable levels granted in this case.”

During the March 5 hearing, Evans indictated he might reduce the punitive damages because they were based on the wrongful payment of “flat-rate” royalties to the rights owners. Flat-rate royalties are set payments not tied to well production.

If the flat-rate royalties are taken away, the compensatory damages would be reduced to $92 million, according to NiSource attorney Ancil Ramey. That would take the punitive damages down to $188, based on the 2-to-1 ratio used by the jury.

NiSource and Chesapeake officials have said they’ll appeal the verdict if Evans doesn’t make significant changes to it.

“If allowed to stand, the verdict would have far-reaching negative implications for all gas producers in West Virginia and would reinforce the hostile legal environment all businesses face in West Virginia,” Chesapeake Energy said in a statement after the verdict was reached. “A judgment has not yet been entered in the case. Important motions must be filed and considered by the trial court before judgment is entered. When judgment is entered, Chesapeake will analyze the judgment and decide the proper course of action including any appeal.”

Attorneys on both sides of the case did not return calls seeking comment on the March 5 hearing.

ELKINS – The owner of R.E. Runner Funeral Home in Elkins has been ordered to repay nearly $35,000 she took as pre-payment for funerals.

Cheryl Runner Kittle was ordered by Randolph Circuit Judge John L. Henning last week to reimburse her clients, and the judge granted the state Attorney General’s request to have her permanently barred from selling pre-need funeral contracts.

Also, as part of Henning’s judgment against Kittle, the judge agreed to file a penalty to prevent Kittle from filing for bankruptcy protection.

According to media reports, the Attorney General’s office originally thought Kittle has lost almost $20,000 from pre-need contracts, but additional victims came forward and the amount was increased to $34,699.

Attorney Richard Shryock told The Associated Press that the funeral home has more than $700,000 in debts. Shryock was named conservator for the funeral home.

He also said he is in the process of transferring 16 more pre-need contracts to other funeral homes.

The suit against Kittle was filed by the Attorney General’s office in January after an audit was conducted in December. This is the second time the funeral home has been named in a suit.

In 2004 Attorney General Darrell McGraw sued Kittle, claiming the funeral home refused to abide by state rules regulating pre-need accounts. The new lawsuit seeks judgment against Kittle for violating the 2004 order.

The funeral home is being managed by another director and is still conducting funerals.