April 11
Thomas Bloom v Monongalia County Board of Education, Barbara Parsons, Michael Kelly, Ron Lytle, Nancy Walker, Clarence Harvey Jr. and Frank Devano
PA- William E. Ford III; J- Clawges
* Bloom is presently employed as a high school guidance counselor at Morgantown High School. As a county commissioner, he is required to attend weekly meetings but has allegedly been told he can’t leave school to attend them. Bloom alleges that other school staff members are permitted to leave school to attend their outside activities. Bloom is seeking: An injunction against the Board of Education from interfering with his right to attend commission meetings and other commission business and to grant him an unpaid leave of absence for time taken to attend to commission business; compensatory and punitive damages for infringement of Bloom’s Constitutional rights; attorney fees; costs; and expenses.
Case number: 13-C-281

Bastress

MORGANTOWN – A Morgantown High School guidance counselor is suing the Monongalia County Board of Education after he claims it has violated his First Amendment rights.

Barbara L. Parsons, Michael L. Kelly, Ron Lytle, Nancy Walker, Clarence Harvey Jr. and Frank M. Devono were also named as defendants in the suit.

Thomas C. Bloom has been employed by the Board of Education as a guidance counselor since Aug. 22, 1977, and through the end of the school year 2012, he was assigned to University High School, according to a complaint filed April 11 in Monongalia Circuit Court.

Bloom claims on Dec. 2, 2011, he announced his pre-candidacy for County Commissioner of Monongalia County for the Democratic primary election to be held on May 8.

On Jan. 9, 2012, Bloom formally announced his candidacy for the open County Commission seat and between Jan. 11 and May 2012, the UHS principal and Devono combined to reprimand and/or cite Bloom for a total of nine times for alleged violation of School Board policies and rules, according to the suit.

Bloom claims he filed a grievance and denied the alleged violations asserted against him and on May 8, he won the primary election for the Democratic Party nomination.

On June 12, Devono presented evidence of the alleged infraction on one of the pending reprimand/disciplinary actions and Bloom denied the charge and presented evidence on his behalf, according to the suit, and Bloom advised the school board of Devono’s actions since Dec. 2, 2011, which he claimed constituted a pattern and practice of actions designed to thwart and interfere with his candidacy and were egregious violations of his rights.

Bloom claims on June 13, the defendants’ counsel contacted his counsel to negotiate a confidential settlement of the charges pending against him after the end of the 2011-2012 school year, Bloom requested and was granted a transfer to Morgantown High School, where he continues to be employed.

On Nov. 6, Bloom won the general election for County Commissioner and on Dec. 9, Bloom was advised informally by MHS’s principal that Devono would not grant a request for flex time or be allowed to take unpaid leaves of absence in half-day increments, but that he could take unpaid leaves of absence in full-day increments, according to the suit.

Bloom claims on Jan. 3, the Monongalia County Commission requested Devono to cooperate in granting flex time and further advised that the County Commission was temporarily moving the meeting to 3 p.m. to accommodate Bloom until the matter was resolved.

The defendants’ acts, conduct and behavior were performed knowingly, intentionally, in bad faith and/or with reckless or callous indifference to the protected rights of others, according to the suit.

Bloom claims the defendants have violated his First Amendment Rights of Freedom of Speech and Freedom of Association.

The defendants also violated Bloom’s 14th Amendment rights by not allowing Bloom to be granted flex time or being allowed to take unpaid leave of absence to attend meetings of the Monongalia County Commission or to attend to other County Commission business during school hours while flexibility of schedule is inherent in the job duties as a school guidance counselor, according to the suit.

Bloom is seeking for the Court to issue a preliminary and permanent injunction restraining and enjoining the defendants from interfering with the right of Bloom to attend meetings and other business with the County Commission; order the defendants to grant him an unpaid leave of absence for the time spent away from MHS during school hours; enter judgment in favor of Bloom against the defendants; and compensatory and punitive damages. He is being represented by William E. Ford III of Ford Law Office and Robert M. Bastress Jr.

Monongalia Circuit Court case number: 13-C-281

MORGANTOWN – A man is suing West Virginia University Hospitals Inc. after he claims he was discriminated against because of his race.

Richmond Nyamekye was hired on March 26, 2012, by the defendant as a Department Supprt Specialist assigned to work at the WVU School of Dentistry’s Dean’s Office with an hourly rate of $23.14 plus benefits, according to a complaint filed April 15 in Monongalia Circuit Court.

Nyamekye claims within one day of being employed by the defendant, he was asked by his supervisor, William G. Dumire to meet with him and two other information technicians, at which time Dumire stated to the co-workers that Nyamekye was different from them, “obviously referring to the plaintiff’s skin color.”

Dumire repeatedly harassed Nyamekye about various matters, including tardiness of five minutes late, leaving his work station to go get an ID badge out of his car, reporting to the Human Resources Department and eating at his work area, none of which were material to his job or work performance, according to the suit.

Nyamekye claims he was required to attend a mandatory trip to Washington, D.C., as part of his graduate program at WVU and was excused from work from April 2, 2012, through April 4, 2012.

Upon returning to work on April 5, 2012, Dumire approached Nyamekye and asked to acknowledge that he had read an email Dumire had sent to his personal email account on April 2, 2012, and discussed with him certain computer skills related to his prior experience in the area, according to the suit.

Nyamekye claims Dumire threatened immediate termination if he did not pass a required certification test, despite the fact that Nyamekye had six months from the date of employment to pass the test.

Dumire also offered to order Nyamekye the needed study materials for the test, but never did so, according to the suit.

Nyamekye claims on April 5, 2012, Dumire requested that Nyamekye resign and told him that he had until April 23, 2012, to do so.

During the course of his employment, Nyamekye was restricted access to areas of the department necessary to access certain equipment or computers needed to do his job and on April 16, 2012, after only working 11 days, Nyamekye’s employment was terminated, according to the suit.

Nyamekye claims during the course of his employment he was alienated, degraded and discriminated against because of his race.

As a result of the defendant’s actions, Nyamekye suffered physical and emotional pain and suffering; economic and financial loss; fear; emotional distress; mental anguish; annoyance and inconvenience; anxiety; stress; chagrin; and other injuries, according to the suit.

Nyamekye is seeking compensatory and punitive damages. He is being represented by Crystal Hawkins Castleberry of Castleberry Law Offices.

Monongalia Circuit Court case number: 13-C-288

Robinette

CLARKSBURG – A Marion County woman has settled her lawsuit against Best Buy that alleged she injured her foot while working a pallet jack.

Jennifer N. Parrish agreed to settle her claims for an undisclosed amount, according to a dismissal order entered April 23 in U.S. District Court for the Northern District of West Virginia.

Six weeks earlier, she reached settlements with Best Buy’s co-defendants. They were Mountaineer Property Co., E-P Equipment USA Corp. and EP Equipment Co.

Parrish was an employee of Best Buy and was trained by Best Buy to inventory merchandise in the store, according to a complaint filed Nov. 8, 2011, in Monongalia Circuit Court.

Parrish claims her job duties did not include the loading and unloading of merchandise delivery trucks and she was not trained to load or unload trailers using a Model EP 55-II pallet jack.

On Sept. 23, 2010, Parrish was injured when she was ordered to use the pallet jack when she was not trained on it, nor was she familiar with the use of the pallet jack, according to the suit.

Parrish claims her supervisor failed to acknowledge the seriousness of her injury and ignored her request to not work on her injured foot.

Parrish’s supervisor admonished her for not getting the job done and instructed her to continue working on her injured foot, in violation of OSHA workplace standards and practices, according to the suit.

Parrish claims the defendants had actual knowledge of the existence of the specific unsafe working conditions and of the high degree of risk and the strong probability of serious injury or death presented by the unsafe working condition.

A month after the complaint was filed in Monongalia Circuit Court, Best Buy removed the case to federal court on the grounds that the defendants were out-of-state corporations and the amount in controversy exceeded a $75,000 threshold.

Best Buy later filed a third-party complaint against Mountaineer Property, which had built the loading dock area of the Best Buy store.

Representing Parrish was Jeffery L. Robinette of Robinette Legal Group in Morgantown, while Best Buy was represented by Andrew D. Byrd of Mannion & Gray in Charleston.

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

Morgantown High School

CLARKSBURG – The Monongalia County Board of Education has removed a lawsuit filed against it by a county commissioner who also works in the school system to federal court.

The board removed Tom Bloom’s lawsuit, originally filed April 11 in Monongalia Circuit Court, to U.S. District Court for the Northern District of West Virginia on April 25. The lawsuit says the board violated Bloom’s First Amendment rights by not allowing him to take half-days off to attend commission meetings.

Since Bloom is arguing the board violated the First and 14th amendments of the U.S. Constitution, the case should be heard in federal court, the board is arguing.

Barbara L. Parsons, Michael L. Kelly, Ron Lytle, Nancy Walker, Clarence Harvey Jr. and Frank M. Devono were also named as defendants in the suit.

Bloom has been employed by the Board of Education as a guidance counselor since Aug. 22, 1977, and through the end of the school year 2012, he was assigned to University High School, according to a complaint filed April 11 in Monongalia Circuit Court.

Bloom claims on Dec. 2, 2011, he announced his pre-candidacy for County Commissioner of Monongalia County for the Democratic primary election to be held on May 8.

On Jan. 9, 2012, Bloom formally announced his candidacy for the open County Commission seat and between Jan. 11 and May 2012, the UHS principal and Devono combined to reprimand and/or cite Bloom for a total of nine times for alleged violation of School Board policies and rules, according to the suit.

Bloom claims he filed a grievance and denied the alleged violations asserted against him and on May 8, he won the primary election for the Democratic Party nomination.

On June 12, Devono presented evidence of the alleged infraction on one of the pending reprimand/disciplinary actions and Bloom denied the charge and presented evidence on his behalf, according to the suit, and Bloom advised the school board of Devono’s actions since Dec. 2, 2011, which he claimed constituted a pattern and practice of actions designed to thwart and interfere with his candidacy and were egregious violations of his rights.

Bloom claims on June 13, the defendants’ counsel contacted his counsel to negotiate a confidential settlement of the charges pending against him after the end of the 2011-2012 school year, Bloom requested and was granted a transfer to Morgantown High School, where he continues to be employed.

On Nov. 6, Bloom won the general election for County Commissioner and on Dec. 9, Bloom was advised informally by MHS’s principal that Devono would not grant a request for flex time or be allowed to take unpaid leaves of absence in half-day increments, but that he could take unpaid leaves of absence in full-day increments, according to the suit.

Bloom claims on Jan. 3, the Monongalia County Commission requested Devono to cooperate in granting flex time and further advised that the County Commission was temporarily moving the meeting to 3 p.m. to accommodate Bloom until the matter was resolved.

The defendants’ acts, conduct and behavior were performed knowingly, intentionally, in bad faith and/or with reckless or callous indifference to the protected rights of others, according to the suit.

Bloom claims the defendants have violated his First Amendment Rights of Freedom of Speech and Freedom of Association.

The defendants also violated Bloom’s 14th Amendment rights by not allowing Bloom to be granted flex time or being allowed to take unpaid leave of absence to attend meetings of the Monongalia County Commission or to attend to other County Commission business during school hours while flexibility of schedule is inherent in the job duties as a school guidance counselor, according to the suit.

Bloom is seeking for the Court to issue a preliminary and permanent injunction restraining and enjoining the defendants from interfering with the right of Bloom to attend meetings and other business with the County Commission; order the defendants to grant him an unpaid leave of absence for the time spent away from MHS during school hours; enter judgment in favor of Bloom against the defendants; and compensatory and punitive damages. He is being represented by William E. Ford III of Ford Law Office and Robert M. Bastress Jr.

Representing the defendants are Kenneth L. Hopper and Keith C. Gamble of Pullin, Fowler, Flanagan, Brown & Poe.

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

MORGANTOWN – A woman is suing In Touch and Concerned Inc. after she claims it is responsible for her mother’s death due to one of its employees’ negligent conduct.

On Dec. 14, 2011, ITAC provided transportation services to elderly and handicapped clients in Monongalia County, including transporting clients requiring the use of wheelchairs and on that date, Herb Summers, an employee of ITAC, used a van to transport Nona Ann Bombardiere in her wheelchair, according to a complaint filed April 24 in Monongalia Circuit Court.

Michele R. Tenant claims Summers unloaded Bombardiere from the ITAC van in a negligent and careless manner by pushing her face first, rather than backward, without adequately securing her in her wheelchair.

As a consequence, after the front wheels of the wheelchair connected with the ground, Bombardiere fell out of the wheelchair and suffered serious and permanent injuries, including a broken hip, according to the suit.

Tenant claims Summers was in a hurry at the time of the incident due to negligent scheduling of ITAC and ITAC’s negligence contributed to the incident.

As a result of ITAC’s negigence, Bombardiere suffered severe and permanent physical injuries; great physical pain and emotional suffering; mental anguish; and loss of her capacity to enjoy life, according to the suit.

Tenant claims Bombardiere never recovered from her injuries and died on Sept. 13.

The injuries Bombardiere sustained from ITAC’s negligence hastened her demise, both physically and emotionally, and are believed to have been a direct and proximate cause of her death, according to the suit.

Tenant is seeking compensatory damages with pre- and post-judgment interest. She is being represented by Paul R. Cranston of Cranston & Edwards PLLC.

Monongalia Circuit Court case number: 13-C-320

April 24

Michelle Tennant, representative of the estate of Nona Bombardiere v. In Touch and Concerned
PA- Paul R. Cranston; J- N/A
* Nona Bombardiere was a client of In Touch and Concerned. Bombardiere was blind with only one leg and was transported in her wheelchair by In Touch and Concerned’s transport van to and from her home and various medical appointments, the suit says. Herb Summers, the driver of the van, was bringing Bombardiere to her home and while unloading her pushed her chair down the van’s ramp face first rather instead of backwards and didn’t secure her in the wheelchair, the suit says. As a result she suffered a broken hip, the suit says. Tennant is seeking compensatory damages for medical and nursing care, general damages for pain and suffering, funeral expenses, costs and attorneys fees.
Case number: 13-C-320

April 30

Karen Smyth v. Walgreens
PA- Lance Rollo; J- N/A
* Smyth seeks damages against Walgreens for injuries allegedly suffered as a result of a fall at the entrance to their store. Several tiles at the store entrance were damaged and broken causing her to trip and fall, she claims. She suffered a sprain and broken bone in her foot causing loss of mobility in her foot, she claims. Smyth also is required to undergo therapy, she says. She seeks judgment for lost wages, permanent injury, costs, attorney fees and pre- and post-judgment interest.
Case number: 13-C-333

Morrisey

MORGANTOWN – An advisor from state Attorney General Patrick Morrisey’s office will help West Virginia University as it rebids the media rights for athletic events.

WVU issued its revised request for proposals on May 14, one month after Morrisey issued a report that said there were procedural problems when WVU granted its media rights to West Virginia Media and IMG College.

West Virginia Radio Corp. owner John Raese had raised concerns about the process. His company has long held the TV and radio rights.

The new process will include an adviser from Morrisey’s office, a new evaluation committee and a new procurement liaison and has a deadline of June 18.

“As you know, the Attorney General’s Office reviewed the initial RFP and found significant errors in the process and recommended the university rebid the project,” Morrisey said.

“This office is happy to provide assistance to the university as it moves forward with the revised request to ensure the process is as seamless as possible.”

Morrisey’s report was 24 pages long and listed five findings:

-The multimedia rights contract is revenue-generating and not required to be placed through a competitive RFP process under either the West Virginia Code or the West Virginia University Procurement Rules;

-Based upon the proposals and identified criteria, the record supports the university’s decision to invite IMG College to engage in negotiations for a contract;

-The procurement process utilized in the evaluation and selection of proposals was flawed, incomplete, and/or not in accordance with the RFP or the university’s procurement rules;

-(Board of Governors) chair Andrew Payne should have recused himself from any and all participation in this matter and improperly continued to receive information about the process; and

-BOG member David Alvarez did not adhere to the BOG operating procedure relating to conflicts of interest or recusal.

Raese’s complaints centered on Payne, who serves on West Virginia Media’s board of directors and held a major stake in it until last year, according to a February report in the Charleston Gazette.

“Payne should have disclosed his financial interest in WV Media and recused himself from voting, discussing and participating in the RFP process,” the report says.

Alvarez should have done the same because of his financial interest in WV Media Holdings, the report says.

Other errors listed in the report include:

-All Evaluation Committee Members were not afforded a timely opportunity to vote, leading to two of six members not voting;

-There was not strict adherence to confidentiality provisions of the RFP and university rules;

-Payne made public statements during the pendency of the process implying knowledge of the financial terms of the proposals despite lacking actual knowledge;

-The Procurement Office and a consultant did not properly document conversations with proposers or potential proposers; and

-The evaluation of the proposals did not conform to RFP criteria.

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

CLARKSBURG – Two professors are suing the West Virginia University Board of Governors for causing harm to their reputations.

WVU employees Nigel Clark, Marjorie A. McDiarmid, E. Jane Martin, James P. Clements and Michele G. Wheatly were also named as defendants in the suit.

Drs. Cyril M. Logar and R. Stephen Sears were employed by WVU. Logar was hired in 1976, was granted tenure in 1982 and became Associate Dean of the College of Business and Economics in 2004.

Sears accepted the position as the Puskar Dean of the College of Business and Economics and as a tenured professor and faculty member in 2005, according to a complaint filed May 14 in the U.S. District Court for the Northern District of West Virginia.

On Oct. 11, 2007, a regional media outlet contacted WVU for the purpose of inquiring whether Student A had satisfied the requirements to earn an eMBA degree at WVU and four days later, then-University President Michael Garrison’s Chief of Staff Craig Walker called a meeting to review the inquiry about Student A and whether she had satisfied the requirements to earn an eMBA. Logar and Sears were required to attend the meeting.

Student A is how the lawsuit refers to then-Gov. Joe Manchin’s daughter, Heather Bresch.

The plaintiffs claim Alex Macia, the university’s general counsel, advised the attendees at the meeting that potential adverse legal consequences could follow if the university did not award a degree to Student A and acting on this advice, on Oct. 23, 2007, Sears sent a response letter advising the inquiring media outlet that Student A had satisfied the requirements to earn her eMBA degree at WVU.

On May 30, 2008, Garrison submitted a formal letter to McDiarmid requesting an investigation of the “potential academic misconduct committed by Stephen Sears… or any others who might have been involved,” according to the suit.

The plaintiffs claim in December 2008, McDiarmid sent letters to Logar and Sears, informing them that they were being charged with academic misconduct. The letters also said the Hearing Panel contemplated by the procedures set forth in the Academic Integrity Policy was not even set to convene until April 27, 2009, more than 100 days beyond the 210-day limit set forth in the policy for completion of the investigation, the plaintiffs say.

Even on its delayed schedule, the Hearing Panel never convened, the university never presented a case of academic misconduct to a Hearing Panel and no finding of misconduct was made, according to the suit.

The plaintiffs claim during the course of the investigation, the university leaked several stories to the media publicizing unfavorable views of Sears and Logar from within the university and these leaks–not to mention the years-long duration of the university’s investigation–caused serious harm to the plaintiffs’ reputations.

Despite the fact that the university never convened a Hearing Panel pursuant to the policy, the university maintained until recently that the Academic Integrity Proceedings against Sears and Logar were ongoing, according to the suit.

The plaintiffs claim more than three years after the 210-day deadline imposed by the policy for completing the investigation had passed, the university charged Clark with reviewing the Academic Integrity Process regarding Student A in November 2011 and another 265 days passed from Clark’s appointment to the time he completed his review.

After conducting his review, Clark found in August that there were unreasonable delays in the investigation of Sears and Logar raising due process implications and impugning the concept of fairness and the conclusion was reached more than 1,500 days after Garrison’s first allegation of misconduct, according to the suit.

The plaintiffs claim Clark further stated that no further academic misconduct action would be taken with respect to the Student A matter and the defendants then terminated the Academic Integrity proceedings against Sears and Logar, agreeing to take no further steps.

Because there was no finding of academic misconduct, by the terms of the policy, the defendants are now obligated to consult with Sears and Logar in order to restore their reputations, and Sears and Logar have requested in writing that the defendants take steps in order to restore their reputations as required by the policy, according to the suit.

The plaintiffs claim despite the fact that the investigation resulted in no finding of misconduct, the defendants have refused to restore the harm done to Sears and Logar’s reputations as a result of the university’s conduct.

By their blatant refusal to comply with the policy to repair Sears and Logar’s reputations, the defendants have arbitrarily and capriciously violated the plaintiffs’ substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution, according to the suit.

The plaintiffs are seeking for the court to enter judgment in their favor and against the defendants; enter an appropriate declaratory or equitable relief required to prevent the continued violation of the plaintiffs’ constitutional rights; and compensatory damages. They are being represented by Robert J. Ridge of Thorp Reed & Armstrong LLP; John H. Tinney Jr. of the Tinney Law Firm PLLC; and Thomas A. Clare of Kirkland & Ellis LLP.

The case has been assigned to District Court Judge Irene Keeley.

U.S. District Court for the Northern District of West Virginia case number: 1:13-cv-00145

July 10

Margaret Clark vs. WVU Hospitals
PA- Elizabeth Kavitz; J-Clawges
*Clark was employed as a registration specialist with WVUH for approximately three years when she developed a medical condition requiring hospitalization and ultimately surgery, the suit says. She was fired from her position. Since the firing, she was cleared to return to work and actually applied for her old position when it was reposted by WVUH. Clark is seeking compensatory and punitive damages.
Case number: 13-C-512

Bastress

MORGANTOWN – A Pt. Marion, Pa., woman is suing West Virginia University Hospitals Inc. for allegedly discriminating against her because of her disability and wrongfully terminating her employment.

Margaret M. Clark was employed by the defendant as a registration specialist from Aug. 24, 2009, until March 9, 2012, according to a complaint filed July 10 in Monongalia Circuit Court.

Clark claims during that time she was a good employee and had good performance evaluations.

In January or February 2012, Clark developed a severe medical condition for which she was hospitalized and because of her medical condition, she had to miss work, according to the suit.

Clark claims the defendant knew she was suffering from a debilitating medical condition and had the appropriate paperwork from her doctors and on March 9, 2012, she was fired because of her disability.

On March 30, 2012, Clark had surgery for the medical condition that had caused her to miss work and since the firing, Clark has been cleared by her doctor to return to work, according to the suit.

Clark claims she made an attempt to resolve the matter informally, but the defendant has not reinstated her and although she has actively looked for work, it has been difficult to find a job when she has had to report to potential employers that she was terminated from her previous job.

The defendant’s actions violated the West Virginia Human Rights Act and caused Clark to suffer damages, according to the suit.

Clark claims the defendant discriminated against her because of her disability, which has caused her emotional and psychological damages.

The defendant’s conduct was so cruel, reprehensible, fraudulent, willful, wanton, malicious and in blatant and intentional disregard of the rights owed to Clark, according to the suit.

Clark was seeking compensatory and punitive damages. She is being represented by Robert M. Bastress III and Elizabeth G. Kavitz of DiTrapano, Barrett, DiPiero, McGinley & Simmons PLLC.

Monongalia Circuit Court case number: 13-C-512

July 18

West Virginia Human Rights Commission, on behalf of Latoya Jones vs. Wincor Properties/Donald Corwin
PA- Jerry Fowler; J- N/A
*Latoya Jones contacted Wincor Properties to rent a two-bedroom apartment. Jones and a friend met with one of the owners, Roberta Corwin, to see the apartment, and Corwin asked if Jones and the person with her would be roommates, the complaint says. Jones advised the second bedroom was for her children, at which time Corwin allegedly told Jones they would not rent to someone with children. Jones and the Human Rights Commission allege Wincor Properties is guilty of discriminatory housing practices because of family status and seek compensation, punitive damages and assessment of civil penalties against Wincor, costs, and attorney fees.
Case number: 13-C-532

MORGANTOWN – The West Virginia Human Rights Commission has sued Wincor Properties LLC on behalf of a woman who claimed it would not rent to her because she has children.

In July 2010, Latoya D. Jones responded to an advertisement for vacancies in a rental residential unit owned by Wincor in Morgantown and made an appointment to view the available rental unit on July 22, 2010, according to a complaint filed in Monongalia Circuit Court.

The WVHRC claims on July 22, 2010, Jones met with Roberta Corwin at WinCor’s office and asked about the two-bedroom units.

Jones was accompanied by a third-party friend to the meeting, which prompted Corwin to ask if Jones and her friend would be roommates, and which she explained the second bedroom was not for a roommate, but for her two children, Corwin told her she would not rent to people with children, according to the suit.

The WVHRC claims the defendant refused to rent to Jones due to her familial status and, upon information and belief, has never rented units at the multi-unit complex to families with children.

Wincor engaged in an unlawful discriminatory housing practice prohibited by West Virginia code by making statements regarding the rental property which indicate rental preferences and/or an intention to make rental preferences related to familial status, according to the suit.

The WVHRC is seeking judgment against Wincor and compensation for Jones for actual damages; punitive damages and/or assessment of civil penalties; and injunctive relief requiring Wincor to cease and desist its discriminatory conduct. It is being represented by Attorney General Patrick Morrisey, Deputy Attorney General J. Robert Leslie and Assistant Attorney General Jerry F. Fowler II.

CHARLESTON – A self-serving affidavit is not enough evidence to defeat a motion for summary judgment, the state Supreme Court ruled in a case alleging the negligent severance of a water line.

The court filed its memorandum opinion affirming the decision of the Circuit Court of Monongalia County on June 28.

In 2008, Defendants/Respondents Carole Sovastion and Jennifer D. Sovastion contracted to install underground electrical service line to supply power to a trailer located on their property. Jennifer Sovastion’s affidavit stated that she contacted Miss Utility on two occasion to inspect the property before beginning excavation.

After a Miss Utility representative inspected the property and gave the go-ahead, the Sovastions hired Frank Casino, an independent contractor, to do the excavation work. During the excavation, Casino severed a water line and Jennifer Sovastion immediately shut off the water supplying the severed line, according to the opinion.

Plaintiffs/Petitioners Daryoush Hooshyar and Farzaneh Hassani, M.D. filed a complaint alleging that the Sovastions caused damage to their residence and denied them access to fix the severed water line. They alleged the damage was done “intentionally, maliciously, wantonly, unlawfully, and without regard to petitioners’ right.”

The Sovastions counter-claimed that the petitioners had maintained a water line on their property without a valid easement, right-of-way, or other right of title or possession. They alleged the petitioners should be responsible for all costs associated with relocating the water line and for remediation expenses the Sovastions incurred.

The circuit court granted summary judgment to the Sovastions after it included that there was no set of facts that could support a finding that the Sovastions were negligent.

On appeal, the petitioners argued that the circuit court erred in granting the Sovastions summary judgment motion because the Sovastions admitted they were bound by the duty to use reasonable care not to cause damage.

Additionally, the petitioners claimed that Jennifer Sovastion had actual knowledge of the water line and its location. They alleged that she had acknowledged that her grandmother had informed her of the water meter and water line on the property at some time earlier.

The Sovastions argued that they were never made aware of the water line and the line was not located on any map, deed, plat, easement, or recorded right-of-way which would have given them actual or recorded notice. They also argued that they had contacted Miss Utility, which approved the excavation, and they had hired an independent contractor to perform the excavation.

“This Court agrees with the decision of the circuit court… Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party… Self-serving assertions without factual support in the record will not defeat a motion for summary judgment,” the opinion says.

“The only evidence to suggest respondents were aware of the water line located below grade of their property and that it serviced property owned by petitioners is Petitioner Hooshyar’s self-serving affidavit. Petitioners have failed to provide any supporting evidence to corroborate their self-serving statements. Therefore, after careful consideration, this Court concludes that the circuit court’s order granting respondents’ summary judgment is affirmed.”

Gaujot

MORGANTOWN – A Monongalia County judge has ruled that West Virginia University Medical Corporation is a public body and must respond to a Freedom of Information Act request.

Monongalia Circuit Court Judge Phillip D. Gaujot made his ruling Aug. 6 in Monongalia County General Hospital’s lawsuit against WVU Medical Corporation, doing business as University Health Associates.

A year ago, Mon General Hospital submitted a FOIA request to WVUMC, seeking documents related to WVUMC’s relocation of its urgent care center to Suncrest Towne Centre.

“We are very pleased with Judge Gaujot’s ruling,” said Darryl Duncan, president of Mon General Hospital.

“This is the second time that a Monongalia County Circuit Court has come to the same conclusion and we felt the facts were always there to support this decision.”

WVUMC is a nonprofit that supports the clinical practice of physicians employed by the WVU School of Medicine. It denied Mon General’s FOIA request on Aug. 24.

Six days later, Mon General responded by attaching a 1986 order authored by the-Monongalia Circuit Court Judge Larry Starcher, who later became a Supreme Court justice.

WVUMC was deemed to be a “public body” as a result of an “overriding nexus with WVU,” Starcher’s order said.

Focusing on state law that defines “public body” as any other body which is created by state or local authority or which is primarily funded by the state or local authority, as WVUMC urged Gaujot to do, would be incorrect, the judge ruled.

Public bodies are also defined as every state officer, agency, department, division, bureau, board, commission, county and city governing body, school district, special district, municipal corporation, and any board, department, commission council or agency thereof.

“(A)dopting such an approach would ignore the reality of WVUMC’s intimate nexus with West Virginia University Hospitals, in favor of ‘stilted formalism, in the words of this State’s own Supreme Court,” Gaujot wrote.

“West Virginia’s definition of a ‘public body,’ for the purposes of the FOIA, includes state instrumentalities, specifically agencies, departments, divisions, bureaus, boards and commission.

“This Court is well aware that statutes should be given their plain meaning, and based upon its interpretation of the FOIA definition of ‘public body,’ this Court is of the opinion that the language upon which WVUMC urges it to rely would be triggered should the other definitions of ‘public body’ fail.”

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

Metheney

Aug. 1

Cinthia Powell mother and Guardian of Wesley Powell vs. Jose J. Ventosa MD, WVU Board of Governors, West Virginia University Medical Corporation
PA- Wesley Metheny, C. Richard Wilson; J- NA
*After Powell’s 7-year-old son Wesley began having seizures, he was seen by Dr. Ventosa and diagnosed with Petite Mal Epilepsy for which he was given Lamictal, the suit says. No other treatment was ordered and the seizures continued, the suit says. Wesley’s father then took him to Ohio Valley Medical Center where an MRI showed a large brain tumor, the suit says. He underwent surgery for the tumor removal that left him paralyzed and in a wheelchair, the suit says. Cinthia Powell is seeking judgment for injuries and damages.
Case number: 13-C-556

Metheney

MORGANTOWN – A woman is suing West Virginia University Medical Corporation for failing to diagnose her son’s brain cancer and causing him severe injuries.

Dr. Jose J. Ventosa; University of West Virginia Board of Governors; and West Virginia University Medical Corporation, which is doing business as University Health Associates, were all named as defendants in the suit.

On March 16, 2010, Wesley Shane Powell became Ventosa’s patient and was diagnosed with Petite Mal Epilepsy, according to a complaint filed Aug. 1 in Monongalia Circuit Court.

Cinthia Powell, Wesley Powell’s mother, claims Ventosa ordered an EEG, which was interpreted as abnormal, and prescribed him with Lamictal.

Ventosa saw Wesley Powell on other occasions and on June 4, 2010, made a referral to physicians and healthcare providers at the Wheeling Hospital Pediatric Neurological Outreach Clinic, where he was seen on Aug. 10, 2010, according to the suit.

Cinthia Powell claims the defendants took no action except to continue the use of Lamictal.

Following the defendants’ failure and refusal to order or undertake any diagnostic procedure to definitively diagnose the basis for Wesley Powell’s seizures, his father took him to Ohio Valley Medical Center and requested a brain MRI, which was performed on May 20, 2011, according to the suit.

Cinthia Powell claims the MRI demonstrated a large tumor in the right parietal-temporal region with extension into the right lateral ventricle, which had extensively spread throughout the cerebrospinal fluid spaces of the central nervous system.

As a direct result of the MRI findings, Wesley Powell was emergently hospitalized and required to undergo partial resection and removal of the primary tumor from his brain the following day and the surgery left him paralyzed and wheelchair-bound, according to the suit.

Cinthia Powell claims the brain tumor was reviewed by pathologists and the final diagnosis was Stage IV cancer of the brain, specifically a Mixed Glial and Neuronal Neoplasm with focal necrosis and 1 percent M1B-1 activity.

The defendants negligently failed to obtain a brain MRI or other radiological films at the initial presentation of seizures, according to the suit.

Cinthia Powell claims as a result of the defendants’ negligence, Wesley Powell has sustained severe, permanent and life-threatening damages.

As a direct and proximate result of the negligence, recklessness and deviation of acceptable standards of care, Cinthia Powell and Wesley Powell have sustained doctor, hospital and medical bills; pain, suffering and mental anguish; pecuniary losses; loss of ability to enjoy life; scarring and disfigurement; humiliation and embarrassment; and permanent and irreversible terminal conditions, according to the suit.

Cinthia Powell is seeking compensatory and punitive damages with pre- and post-judgment interest. She is being represented by Wesley Metheney of Wilson Frame & Metheney PLLC and C. Richard Wilson of Wilson Law Offices.

Monongalia Circuit Court case number: 13-C-556

MORGANTOWN – A Monongalia County woman has filed a wrongful death suit against a coal mining company after her husband was killed in a roof collapse.

Gena Elliott filed a suit June 15 in Monongalia Circuit Court on behalf of herself and her children, Nicholas and Sophia Elliott. The suit is against Dana Mining Company.

According to the suit, John Elliott was employed as a mechanic by Dana Mining, and worked in the Prime No. 1 underground mine near Maidsville.

The suit states there was a roof fall Dec. 15, 2006, in the mine, and no supplemental roof support was installed.

On Dec. 17, Kenneth Losh, the foreman, inspected the mine, but failed to inspect the areas the crew would travel through, the suit says.

“Rather than carefully and thoroughly examine the mine for hazards, Losh cut short his examination and returned to the surface to get Gary Mayle, miner operator, and …John Elliott, a mechanic, to start work early to clean the shuttle cars and water down the roadways prior to the midnight shift arrival,” the suit says.

According to the suit, Losh, Mayle and Elliott entered the mine on a two-person rubber tire personnel carrier, with Losh and Mayle in the seats. Elliott was in the middle, facing backwards.

While they were traveling a portion of the roof 28 feet long, 20 feet wife and more than five feet thick fell. Mayle and Losh saw it falling and were able to get off the carrier.

According to the suit, Elliott “attempted to exit the ride, but due to his placement wedged in as the third person on a two-person rubber tired personnel carrier, (he) was unable to effectively maneuver himself away from the ride and was crushed against the back of the personnel carrier by the falling roof.”

Gena Elliott claims in the suit that the actions of the company and its employees caused the pain, suffering and death of John Elliott.

She seeks compensation for the damages and expenses sustained by the fatal injuries of her husband.

Gena Elliott is being represented by attorney Timothy Bailey.

Monongalia Circuit Court case number 07-C-388

MORGANTOWN – A Harrison County couple has filed a medical malpractice suit against West Virginia University Hospitals after the husband developed severe infections after receiving care.

Charles and Sharon Elder filed a suit June 13 in Monongalia Circuit Court against Ruby Memorial Hospitals, West Virginia University Hospitals and Mary Babb Randolph Cancer Center.

Charles Elder was admitted to Ruby Memorial on May 1, 2005, for treatment of leukemia. He stayed in the hospital through June 2005, the suit says.

During his admission, he was placed on a low microbial diet. However, the suit claims employees of the hospital failed to follow the doctor’s orders of a low microbial diet by giving him raw fruits and vegetables.

Due to the food he was given, Elder developed cutaceous infections, which required antibiotic therapy, which ultimately resulted in severe functional and cosmetic facial defects. According to the lawsuit, the defects, loss and pain are permanent in nature.

The Elders claims the employees working with Charles Elder deviated from the regular, acceptable standard of care. Sharon Elder claims she suffered, and continues to suffer, loss of consortium of her husband.

The Elders, through attorney Henry E. Wood, seek compensatory damages, reimbursement of all medical costs and other unspecified damages.

Monongalia Circuit Court case number 07-C-377