Morgantown High School

CLARKSBURG – A federal magistrate judge recommends denial of a Monongalia County commissioner’s request for a preliminary injunction against his employer, the county Board of Education.

On Oct. 2, U.S. Magistrate Judge John S. Kaull, of the Northern District of West Virginia, issued his report and recommendation in Thomas C. Bloom’s lawsuit against the board. At issue is Bloom’s availability for the commission’s weekly meetings, which take place on Wednesdays while Bloom is working as a guidance counselor at Morgantown High School.

“Bloom has not clearly shown that an injunction is in the public interest,” Kaull wrote.

“To the contrary, if the undersigned were to recommend an injunction under the facts and law applicable to this case, not only would it be a violation of the law as applied, it would invite anyone who claims to have an interest in speaking on a matter of public concern to demand their employer let them leave work to do so.

“As argued, this would mean that the McDonald’s employee or the local policeman or the local hospital emergency room doctor or nurse could unilaterally leave his or her job during work hours, without repercussion from the employer, to attend a rally in protest of a local exotic book store or club.”

Bloom argues the Board of Education has violated his First Amendment rights by not allowing him to take half-days off to attend commission meetings. The suit was filed April 11 in Monongalia Circuit Court and was removed to federal court two weeks later.

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, the superintendent, 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.

One of Bloom’s campaign platforms was to move commission meetings to evenings so more of the public could attend.

Bloom is seeking an injunction that prevents the Board of Education from interfering with his right to attend county commission meetings and conduct other commission business. He is represented by William E. Ford III of Ford Law Office and Robert M. Bastress Jr.

Kaull ruled that Bloom has failed to establish that Bloom’s claims center on matters of public concern or public importance.

“Bloom provides no causal connection between speech, the content of any speech, the context of any speech or the form of any speech and the Board’s refusal to give him time off to attend commission meetings,” Kaull wrote.

“There is no evidence that the Board retaliated against Bloom due to speech he engaged in or may engage in through his role with the Commission.

“(T)he dispute between Bloom and his employer… is not about Bloom holding a seat on the Commission. Instead, it is about the Board’s concern with Bloom’s ability to adequately fulfill his duties as guidance counselor at MHS and tend to the 400 students charged to him.”

The case is assigned to Judge Irene M. Keeley.

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.

Goddard

CLARKSBURG – A lawsuit against West Virginia University Hospitals has been remanded back to Monongalia Circuit Court because the amount in controversy wasn’t enough.

A memorandum opinion and order granting the plaintiff’s motion to remand the case back to Monongalia Circuit Court was filed on Oct. 3.

“The plaintiff has alleged that the defendant overcharged him $503.40, after subtracting the finding fee and the $1 for the compact disc cost. Because of the amount charged by WVUH, the plaintiff claims that WVUH has violated West Virginia code,” the memorandum opinion filed by U.S. District Judge Frederick P. Stamp Jr. states.

Because the case can be remanded based on the amount in controversy element, Stamp declined to discuss the Class Action Fairness Act of 2005 exceptions that the plaintiff had set forth in his motion to remand and the defendant addressed in its briefing.

Stamp ordered the case to be remanded to Monongalia Circuit Court, dismissed from federal court and stricken from the active docket of the federal court.

Christopher Thomack was a patient of the defendant in 2012 and on July 31, 2012, through his attorney, Thomack requested additional records that were not previously produced by the defendant, the suit says.

The defendant responded via a letter stating that payment of $514.40 would be required before it would provide copies of Thomack’s medical records, according to a complaint filed earlier this year in Monongalia Circuit Court.

Thomack claimed the defendant demanded 40 cents per page to produce his medical records, plus a $10 search fee and because his medical records contained 1,261 pages, the defendant charged the $514.40 fee for him to obtain his medical records.

The defendant did not produce any paper documents and instead produced one CD/DVD containing Thomack’s medical records, according to the suit.

Thomack claimed the defendant violated West Virginia code by demanding 40 cents per image of medical records plus the $10 search fee.

“The requested records were maintained electronically by the defendant. The documents were produced on a single CD/DVD, which costs less than one dollar each,” according to the suit.

Thomack claimed to the degree the defendant claimed that it took time or effort to search for the appropriate medical records to download for each patient, that cost is covered by the search fee, which, pursuant to statute, may not exceed $10.

Upon information and belief, the 40 cents per image charged by the defendant was not related to the “expenses incurred” by the defendant in producing each patient’s medical records on a CD/DVD, according to the suit.

Thomack claimed other similarly situated individuals who requested copies of their medical records from the defendant during the five years preceding this lawsuit, were also charged 40 cents per page, plus a $10 search fee, to obtain copies of their medical records from the defendant, which did not represent “the reasonable expenses incurred” in complying with West Virginia code.

The defendant violated West Virginia code by refusing to produce the medical records unless payments exceeding the amount permitted under West Virginia code were made to the defendant, according to the suit.

Thomack was seeking compensatory damages with pre- and post-judgment interest. He was being represented by David E. Goddard and Edmund L. Wagoner of Goddard & Wagoner.

U.S. District Court for the Northern District of West Virginia at Clarksburg case number: 1:13-cv-00031

Morgantown High School

CLARKSBURG – A Monongalia County commissioner has filed his objections to a federal magistrate judge’s recommendation that he not be granted the preliminary injunction he seeks against his employer, the county Board of Education.

On Oct. 16, Tom Bloom filed objections to U.S. Magistrate Judge John S. Kaull’s report that said Bloom should not receive an injunction that would allow him to miss time from his job as guidance counselor at Morgantown High School to attend county commission meetings on Wednesdays.

Bloom is having trouble attending commission meetings because they are held while he is at work. He is in his first year as a commissioner.

“The findings of fact by the Magistrate fail to recognize that high school guidance counselors often have to meet with parents, students, law enforcement personnel, mental health professionals and others outside of the regular school day hours,” Bloom’s attorney wrote.

“The Magistrate Judge’s Report further disregards Plaintiff’s testimony that he works an average of seven to 10 hours per week over and above the regular school week of 37 ½ hours.”

In a lawsuit filed earlier this year, Bloom is arguing the Board of Education has violated his First Amendment rights by not allowing him to take half-days off to attend commission meetings, which take place on Wednesday afternoons.

Bloom’s current proposal is working through his lunch period on Wednesdays and leaving work at 12:55 p.m. He would only be missing 1.5 hours each week, and he said that time would be qualified as unpaid leave.

“Bloom has not clearly shown that an injunction is in the public interest,” Kaull wrote.

“To the contrary, if the undersigned were to recommend an injunction under the facts and law applicable to this case, not only would it be a violation of the law as applied, it would invite anyone who claims to have an interest in speaking on a matter of public concern to demand their employer let them leave work to do so.

“As argued, this would mean that the McDonald’s employee or the local policeman or the local hospital emergency room doctor or nurse could unilaterally leave his or her job during work hours, without repercussion from the employer, to attend a rally in protest of a local exotic book store or club.”

Meanwhile, a petition to allow Bloom to take the unpaid leave and attend meetings while keeping his job has reached 661 signatures, as of Oct. 22. It was to be presented to the Board of Education that day at its meeting.

Bloom is represented by William E. Ford III of Ford Law Office and Robert M. Bastress, Jr. The board is represented by 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.

Meadows

CLARKSBURG – Two Preston County residents are suing their previous insurance company after they were sued.

Robert Desantis and Dixie Desantis filed a lawsuit on Oct. 4 in the Circuit Court of Monongalia County against Safeco Insurance Co. of America, citing breach of contract and unfair claims settlement practice. The case has since been removed to federal court.

The plaintiffs state they had an insurance policy with the defendant from June 6, 2011, through June 6, 2012. The policy included defending claims that were brought against the plaintiffs for an occurrence to which the policy covered and providing liability coverage for contracts, according to the complaint.

The plaintiffs state that on Jan. 14, they were sued over an occurrence in which the insurance policy applied and in February, the plaintiffs’ real estate agent, who listed the plaintiffs’ property incorrectly, filed a cross-claim against the plaintiffs.

The plaintiffs contend Safeco has breached its insurance contract with them by refusing to provide a defense and refusing to pay for expenses arising out of the claim.

The plaintiffs are seeking an undisclosed amount in damages, including punitive damages. They are being represented in the case by attorney Todd Meadows of Gianola Barnum Wigal & London.

The defendant removed the case to U.S. District Court for the Northern District of West Virginia on Nov. 4.

It says complete diversity of citizenship exists between the plaintiffs and Safeco and that the potential judgment in the suit exceeds $75,000, a threshold for federal jurisdiction.

Circuit Court of Monongalia County Civil Action No. 13-c-776
U.S. District Court for the Northern District of West Virginia Case No. 1:13-cv-245

Morgantown High School

CLARKSBURG – A judge has ruled a Monongalia high school guidance counselor’s dispute with the county Board of Education over letting him attend county commission meetings is a contractual, and not constitutional, one.

U.S. District Judge Irene B. Keeley on Nov. 8 denied Tom Bloom’s motion for a preliminary injunction against the Board and members Barbara Parsons, Michael L. Kelly, Ron Lytle, Nancy Walker, Clarence Harvey, Jr. and Ronald M. Denovo. In it, Bloom, a guidance counselor at Morgantown High School, alleged a Board policy that prohibits full-time employees to take time off with pay to attend outside activities is a violation of his constitutional rights.

Initially filed in Monongalia Circuit Court in April, Bloom’s injunction sought to enjoin the Board from enforcing the policy so he could weekly commission meetings. In November’s general election, Bloom won an open seat to the commission, but since he took office in January, the Board, citing the policy, has refused to allow him to take flex-time to attend the meetings which are held on Wednesday afternoon.

In her 17-page opinion, Keeley said Bloom failed to demonstrate how the Board’s policy restricted any of his constitutional rights, including those under the First Amendment.

“The First Amendment claims in this case involve a private dispute between employers and employee,” Keeley said. “The gist of the claims deal with Bloom’s employment contract with the Board, not his protect rights to free speech and association.

“Bloom presents no evidence that the Board retaliated against him due to the speech he would be engaging in through his work with the County Commission.

“Bloom argues that the Board’s refusal to allow him to attend County Commission meetings during the school day impinges upon his rights to free speech and association. However, this is a situation the Board, not Bloom, has created. His decision to hold two jobs with conflicting hours has put him in the bind he confronts today.

“When Bloom entered into his employment contract with the Board, he agreed to be at work during school hours. He cannot now unilaterally change the terms of that contract in order to accommodate his new position.”

Repeated messages left with Bloom’s co-counsel, Robert M. Bastress, Jr., a West Virginia University College of Law professor, asking if he intends to appeal Keeley’s decision were not returned by presstime.

According to its payroll department, Bloom, after 36 years as a guidance counselor, resigned his employment with the Board on Oct.31. His salary was $65,031.75.

He had proposed working through his lunch period on Wednesdays and leaving work at 12:55 p.m. He would have missed 1.5 hours each week, and he said that time would be qualified as unpaid leave.

His salary as a county commissioner is $36,900.

U.S. District Court for the Northern District of West Virginia, case number 13-cv-128

Mount Storm Power Station

CLARKSBURG – A man and his wife are suing after he allegedly lost three fingers while in the scope of his employment.

Marcos Martinez and Jeaneth Martinez filed a lawsuit Oct. 23 in the Circuit Court of Monongalia County against Dominion Resources Inc., Dominion Generation Corporation and Southern Field Maintenance and Fabrication LLC, citing negligence.

The case has since been removed to federal court.

According to the complaint, on May 17, Marcos Martinez was working for Southern Field Maintenance at the Mount Storm Power Station and was in the process of uploading large, heavy boxes containing tools and equipment.

The complaint alleges that while assisting with the upload operation, his fingers were caught in a tugger cable, resulting in the amputation of three fingers. The complaint alleges that the defendants were negligent in failing to provide a reasonably safe workplace, among other claims.

Martinez is seeking an undisclosed amount in damages. He and his wife are being represented in the case by attorney William L. Frame of Wilson, Frame & Metheney PLLC.

On Nov. 25, the defendants removed the case to U.S. District Court for the Northern District of West Virginia.

The removal notice says the plaintiffs live in Texas and the defendants are incorporated under the laws of Virginia and Alabama.

It also says the amount in question exceeds a $75,000 threshold for federal jurisdiction.

Circuit Court of Monongalia County Civil Action No. 13-C-822
U.S. District Court for the Northern District of West Virginia case number 1:13-cv-00254

Clarksburg Federal Building

CLARKSBURG – A lawsuit against Hollywood Theaters Inc. in which a man claimed he suffered an electrical shock at the theater’s concession counter has been settled.

On Nov. 15, U.S. District Judge Irene M. Keeley filed an order directing counsel to submit a dismissal order.

“Having been advised that the parties have fully resolved this dispute, the court directs counsel for the plaintiff to forward an appropriate dismissal order…” the order states.

A final dismissal order was filed on Dec. 4 in the U.S. District Court for the Northern District of West Virginia at Clarksburg and the case was dismissed with prejudice.

On Jan. 14, 2011, Matthew D. Barcus went to the defendant’s theater to watch a movie, according to a complaint filed Jan. 14 in Monongalia Circuit Court and then removed to federal court.

Barcus claimed he purchased a ticket into the theater and was purchasing a beverage at the concession counter when he touched a drinking-straw dispenser and suffered a powerful electric jolt or shock that threw him violently to and against the floor.

The defendant was negligent in failing to maintain the concession counter area in a reasonably safe condition for its patrons, according to the suit.

Barcus claimed the defendant failed to clear or mop water, snow and ice from the floor in and around the concession area and failed to warn him of the high risk of receiving an electrical shock when the defendant knew or should have known the area had become unsafe for patrons.

Hollywood Theaters failed to inspect, repair and keep its electrical appliances and wires in and around the concession area in a reasonably safe condition, according to the suit.

Barcus was seeking compensatory damages in the amount of $400,000 with pre-judgment interest. He was represented by William R. Metzner.

The defendant was represented by Heather M. Noel of MacCorkle Lavender PLLC.

U.S. District Court for the Northern District of West Virginia at Clarksburg case number: 1:13-cv-00026

MORGANTOWN – A man apparently responsible for a deadly Monongalia County shooting spree was involved in a civil lawsuit that went to trial earlier this year.

And one of the victims of Monday’s murders also was involved in a separate civil case that still is pending.

Hunt

Jody Hunt was sought for three shootings that left at least four people dead Monday in Morgantown. Authorities found Hunt’s body later Monday after he apparently died of a self-inflicted gunshot wound.

Hunt, 39, seems to be the person responsible for the shootings that occurred in the Westover and Cheat Lake areas of Morgantown. The victims were identified as Michael David Frum, 28, of Maidsville, Sharon Kay Berkshire, 39, of Westover and Doug Brady. The name of the fourth victim reportedly was Jody Taylor.

Hunt’s killing spree apparently was triggered by jealousy that his girlfriend was seeing another man, according to a social media post he made Monday before the crimes occurred.

Hunt owned J&J Towing and Repair, and Brady owned Doug’s Towing.

Last year, Hunt and Ruth Ann Hunt filed a civil lawsuit in Monongalia Circuit Court against Anthony Michael Ballas over a traffic accident in Morgantown. Ruth Ann Hunt’s relationship to Jody Hunt is not clear from the court filings.

The plaintiffs claimed bodily injuries, medical expenses, pain and suffering, mental anguish, emotional distress, limitations in ability to function, lost wages and income, lost earning capacity, loss of capacity to enjoy life and other damages.

They also sought punitive damages for Ballas’ reckless conduct.

In June, a six-member jury ruled in favor of Ballas, saying the evidence did not show he was guilty of negligence. The Hunts were awarded nothing.

In August, the Hunts filed a motion to set aside the verdict and for a new trial. In October, Monongalia Circuit Judge Susan B. Tucker denied that motion.

The Hunts’ motion was based, in part, on the usage of surveillance footage in the trial. Tucker ruled that the footage was relevant and admissible.

The Hunts were represented by Paul R. Cranston of Cranston & Edwards in Morgantown. Ballas was represented by Tiffany R. Durst of Pullin Fowler Flanagan Brown & Poe in Morgantown.

Hunt also had a criminal past, according to court documents. He was arrested three times between 1994 and 2001.

In 1994, Hunt was arrested for simple trespassing in Pennsylvania. He was sentenced to probation. In 1999, he was found guilty of kidnapping and abduction in Virginia. He was also charged with use of firearm in commission of a felony.

In 2001, Hunt was charged and found guilty of wanton endangerment with a firearm. He served five years for that crime.

Brady, one of the victims of Monday’s murders, filed a lawsuit in 2012 against the City of Westover, claiming it was harassed and assaulted by Mayor Cranston David Johnson.

Doug’s Towing claims the city of Westover and Johnson have passed three city ordinances it feels are directed to harass the towing company.

It said a competitor was operating out of an auto body shop with no signage and no fencing, which is required by the new ordinances, according to the 2012 suit.

Doug’s Towing claims the Monongalia County Commission had established a towing rotation list pursuant to West Virginia code, but the city of Westover maliciously and/or negligently failed or refused to use the county’s towing rotation list in that Johnson directed the Chief of Police no to use Doug’s Towing even if it was the next towing company on the list. Skipping over Doug’s Towing on the rotation list was a violation of West Virginia code, according to the suit.

That case still is pending before Monongalia Circuit Judge Russell M. Clawges Jr., with the most recent court filings happening earlier today, Dec. 2.

Monongalia Circuit Court case number: 13-C-177 (Hunt), Monongalia Circuit Court case number: 12-C-527 (Doug’s Towing)

CLARKSBURG – An Illinois man is suing over claims he was injured on the slippery floor of a West Virginia Target store, and the case has been removed to district court.

Jerald and Meryl Goldfarb filed a lawsuit Oct. 22 in Monongalia Circuit Court against Target Corporation and John Doe Corporation, citing negligence.

According to the complaint, Jerald Goldfarb was shopping at the Target store at University Town Centre in Granville on Nov. 26, 2013, when he walked to checkout, slipped on a slippery area of floor and fell. Goldfarb says eventually a store employee escorted him to an area to wait for a manager to talk with, and as they walked, the employee acknowledged that the floors were waxed and polished daily and were, indeed, slippery.

The complaint states Goldfarb sustained fractured kneecaps. Target is accused of negligence in allowing its employees and an unknown outside contractor to maintain the floor in a hazardous condition. Meryl Goldfarb is suing for loss of consortium.

The Goldfarbs seek compensatory damages, interest and costs of court.

They are represented by attorney Jacques R. Williams of Hamstead, Williams & Shook in Morgantown.

The defendants removed the case to the Clarksburg Division of the Northern District of West Virginia on Nov. 18, due to the parties being from different states and the amount in controversy exceeding $75,000.

In its Nov. 20 answer, Target denies negligence contributing to the plaintiff’s alleged injury.

Clarksburg Division of the Northern District of West Virginia case number: 1:14-CV-00198

CHARLESTON – Two West Virginia trucking companies are suing over claims a new ordinance prohibiting heavy trucks in Morgantown is unlawful.

Nuzum Trucking Company and Preston Contractors Inc. filed a lawsuit Oct. 17 in Kanawha Circuit Court against the city of Morgantown, West Virginia, and the West Virginia Department of Transportation, Division of Highways, citing an allegedly unlawful ordinance.

According to the complaint, on Sept. 2, the Morgantown City Council passed a heavy truck ordinance prohibiting trucks from operating in Morgantown’s B4 business district, which prevents the plaintiffs from using state highways and truck routes that go through the district, and thus, prevents the plaintiffs from operating their businesses economically.

The plaintiffs say they particularly use W.Va. 7 to efficiently transport products around the Morgantown business district.

The complaint states the ordinance is unlawful, as exclusive control of state roads belongs to the commissioner of highways, and though allegedly instated to address safety concerns, the ordinance fails to prevent the most cited traffic violators from transversing the business district.

According to the lawsuit, the ordinance was first introduced in 2005 and then reintroduced in 2013 by a group called “Safe Streets of Morgantown,” but on both occasions the state highway department gave evidence that the ordinance was not within the municipality’s power. The plaintiffs say the ordinance was passed anyway and constitutes municipal intrusion into intrastate and interstate commerce.

The plaintiffs are suing pursuant to state preemption and federal preemption, and the defendants are accused of violating state and federal equal protection, U.S.C. 1983, and the constitution’s contract clause.

The plaintiffs seek an injunction preventing the enforcement of the heavy truck ordinance and attorney fees.

They represented by attorneys Paul R. Cranston and James B. Shockley of Cranston & Edwards in Morgantown. The case has been assigned to Circuit Judge Paul Zakaib Jr.

Kanawha Circuit Court case number: 14-C-1877

MORGANTOWN – A Monongalia County woman is suing over claims she was fraudulently induced into surrendering her stock ownership of a company.

Ida D. Chico filed a lawsuit Dec. 2 in Monongalia Circuit Court against Chico Holding Company, Samuel A. Chico III, Don G. Killmeyer and Roger Mocross, citing breach of contract.

According to the complaint, Ida Chico and her late husband entered into an agreement with defendant CHC and Samuel Chico on July 1, 2011, wherein they would be paid $1.5 million pursuant to a schedule outlined in the agreement, as consideration for the purchase and sale of the plaintiff and her husband’s remaining shares of stock in the company.

The complaint outlined that all shares were surrendered immediately with CHC’s initial $625,000 payment due at the time of the agreement, followed by payments of $125,000 for seven consecutive years.

Ida Chico says the agreement also stated that if any of the convenience stores owned by the company were sold to a third party, the entire amount would then become due and payable.

The lawsuit states Samuel Chico, CHC’s secretary, Killmeyer and employee Mocross conspired to decide in what manner the agreement would or would not be honored. According to the lawsuit, the defendants failed to make any payments after the second annual payment and a substantial portion of the convenience stores were sold to a third party but the defendants gave misleading information regarding the sales and refused to pay the full amount owed to Ida Chico.

The plaintiff says she was wrongfully induced to surrender her shares when the defendants never intended to pay the full amount.

Ida Chico also says Mocross was fired by her and her late husband due to his bullying management style but Samuel Chico rehired him when he gained control of the company.

The defendants are accused of breach of contract, promissory estoppel, breach of the obligation of good faith and fair dealing, unjust enrichment, failure of consideration, fraud in the inducement to contract, civil conspiracy, tortious interference with contract and breach of fiduciary duty.

Ida Chico seeks more than $625,000 in actual, incidental and punitive damages, including interest, legal fees and costs. She also seeks reinstatement of her stock ownership and injunctive relief to halt the sale of company property until the ownership issue is determined.

Ida Chico is represented by attorney Robert P. Fitzsimmons of Fitzsimmons Law Firm in Wheeling.

Monongalia Circuit Court case number: 14-C-873

MORGANTOWN – A Monongalia County neurosurgeon is suing over claims he was fired for opposing the promotion of a coworker who allegedly made repeated racially insensitive comments and jokes.

Julien

Dr. Terrence Julien filed a lawsuit Nov. 24 in Monongalia Circuit Court against the West Virginia University Board of Governors, West Virginia University Hospitals Inc., and Dr. Charles Rosen, citing racial discrimination.

According to the complaint, in 2007, Julien, an African-American, was hired as a neurosurgeon in the West Virginia University Department of Neurosurgery on the campus of West Virginia University Hospitals Inc., which is governed by the West Virginia University Board of Governors, where he had a coworker, defendant Rosen, who repeatedly made racially insensitive and discriminatory comments and jokes.

The complaint states Rosen was appointed to interim chair of the neurosurgery department, during which time he continued to use racially insensitive language, such as, “all you black guys look alike.”

Julien says that while Rosen was being considered for the position of permanent chair, Julien was outspoken about his opposition to the move and soon experienced adverse employment actions by Rosen, such as being excluded from employment activities and the reassignment of duties.

The lawsuit states Rosen was made permanent chair Sept. 18, 2012, and he continued the discriminatory treatment, finally forcing Julien to submit his three-month notice of resignation in November 2012. The defendants are accused of hostile work environment based on race and unlawful retaliation.

Julien seeks compensatory and punitive damages, including back pay and front pay, interest and costs of litigation.

He is represented by attorney Sean W. Cook of Meyer Ford & Glasser in Charleston.

Monongalia Circuit Court case number: 14-C-860

MORGANTOWN – A Monongalia County man is suing over claims he and black coworkers were phased out of his job due to their race.

Charlie Thomas Heard filed a lawsuit Dec. 1 in Monongalia Circuit Court against Omnicare Inc., Act Fast Delivery Inc., and Act Fast Delivery of West Virginia, citing racial discrimination.

According to the complaint, on March 2013, Heard began working for Act Fast Delivery, delivering medical and pharmaceutical supplies from Omnicare Inc.’s Morgantown shipping facility to medical facilities and nursing homes along U.S. 8 in Maryland and West Virginia.

Heard says he was working with another driver, O’Dell Tucker, when they noticed packages on the shipping manifests for their route had not been given to them at the Morgantown facility, which was a normal occurrence, and required them to inform the staff at the medical facilities in question of the mistake, which sometimes resulted in staff becoming angry with them.

The lawsuit states that in April 2013, the defendants informed Heard that he could not longer work his usual route because they allegedly “do not like blacks” delivering on that route.

Heard says the company did not appear to investigate the missing packages and he heard from other employees that “blacks” were not going to be assigned to higher paying routes shortly before he was moved to lesser paying routes, which often end up costing the driver approximately the same amount he is paid.

According to the lawsuit, around this time, an Omnicare employee, in a meeting with Act Fast management, accused Heard and other African-American employees of stealing narcotics, even saying they had a higher propensity to steal narcotics due to their race.

Shortly thereafter, the lawsuit states, the lead driver responsible for scheduling was told to either fail to call Heard for deliveries or only call him for unprofitable routes, which the driver refused to do and resigned her position.

Heard says he drove his last route for the defendants in fall 2013 due to being unable to support himself under the unlawful working conditions. The defendants are accused of wrongful termination/racial discrimination and intentional infliction of emotional distress.

Heard seeks damages, punitive damages and attorney fees.

He is represented by attorneys Mark Edward Gaydos, Sam H. Harold III and Buddy Turner in Clarksburg and McNeer, Highland, McMunn and Varner in Clarksburg.

Monongalia Circuit Court case number: 14-C-871

CHARLESTON – A Kanawha County judge says Morgantown’s ban on heavy trucks is unenforceable.

Tabit

Kanawha Circuit Judge Joanna Tabit overturned the ban on Tuesday after two businesses filed a lawsuit against the city and the state Division of Highways. Morgantown City Council approved the ordinance this summer to ban trucks more than 26,000 pounds gross weight with three or more axles from going through the downtown business district. It was to begin Dec. 1.

Nuzum Trucking Co. of Shinnston and Preston Contractors Inc. of Kingwood were the companies that filed the complaint Oct. 17. The case was heard in Kanawha County because a branch of state government was named.

According to the complaint, on Sept. 2, the Morgantown City Council passed a heavy truck ordinance prohibiting trucks from operating in Morgantown’s B4 business district, which prevents the plaintiffs from using state highways and truck routes that go through the district, and thus, prevents the plaintiffs from operating their businesses economically.

The plaintiffs said they particularly use W.Va. 7 to efficiently transport products around the Morgantown business district.

The complaint called the ordinance unlawful, as exclusive control of state roads belongs to the commissioner of highways, and though allegedly instated to address safety concerns, the ordinance fails to prevent the most cited traffic violators from transversing the business district.

According to the lawsuit, the ordinance was first introduced in 2005 and then reintroduced in 2013 by a group called “Safe Streets of Morgantown,” but on both occasions the state highway department gave evidence that the ordinance was not within the municipality’s power. The plaintiffs say the ordinance was passed anyway and constitutes municipal intrusion into intrastate and interstate commerce.

The plaintiffs were suing pursuant to state preemption and federal preemption, and the defendants are accused of violating state and federal equal protection, U.S.C. 1983, and the constitution’s contract clause.

They were represented by attorneys Paul R. Cranston and James B. Shockley of Cranston & Edwards in Morgantown.

Kanawha Circuit Court case number: 14-C-1877

MORGANTOWN – A man is suing a Burger King location after he claims he was discriminated against based on his race.

KB Fast Foods hired Michael Palmer III as a general laborer at its Burger King location at Cheat Lake, according to a complaint filed Jan. 22 in Monongalia Circuit Court.

He claims he was forced to wear a name tag that read “Little Oreo” in place of his name, which was a derogatory name for his mixed race parentage.

Management and co-workers created a hostile work environment at the workplace and the defendant was aware of the hostile work environment, according to the suit.

Palmer claims his employment was constructively terminated due to the extremely humiliating and hostile and outrageous facts and circumstances surrounding his employment.

The defendants discriminated against Palmer and intentionally inflected emotional distress on him, according to the suit.

Palmer claims the defendant also violated West Virginia Code and caused him damages.

Palmer is seeking compensatory and punitive damages. He is being represented by Erika Klie Kolenich and Karl Kolenich of Klie Law Offices PLLC.

Monongalia Circuit Court case number: 15-C-46

MORGANTOWN – Dinsmore & Shohl welcomes Stephen R. Fanok to the firm’s Morgantown office.

Fanok

Fanok will practice out of the Litigation Department with the Commercial Litigation Practice Group.

He comes to Dinsmore after serving for more than 25 years as the fulltime Morgantown City Attorney.  During that time, he addressed municipal legal matters on a daily basis and also litigated numerous municipal cases in circuit court and before the West Virginia Supreme Court.

He has extensive experience dealing with zoning and land-use, building permit regulation and municipal licensing and taxation issues that developers face when dealing with local governmental ordinances.  In addition to offering guidance to municipalities and other local government entities, he will assist developers and businesses in understanding and complying with local governmental ordinances and regulations. He is a former officer of the West Virginia Municipal Attorneys’ Association.

Fanok is originally from Morgantown and has resided there for the last 28 years with his wife, Kay. Prior to practicing law, he was an underground miner and later held management positions with two of West Virginia’s largest coal operators, where he specialized in personnel and labor management relations.

He earned his J.D. from the West Virginia University College of Law and received his M.S. in Industrial Relations and his B.S. in Business Administration from West Virginia University.

Dinsmore & Shohl is comprised of more than 575 attorneys with locations in 18 cities throughout Colorado, Illinois, Kentucky, Ohio, Pennsylvania, Washington, D.C. and West Virginia.  For more information, visit www.dinsmore.com.

CHARLESTON – A trial court’s decision to exclude additional opinions was wrong, according to the state Supreme Court.

Davis

Monongalia Circuit Judge Susan B. Tucker and Patricia M. Powell, individually and as executrix of the estate of Robert L. Powell were the respondents.

The record in this case demonstrates that the circuit court committed error as a matter of law in precluding experts from presenting their additional opinions at trial, according to an opinion filed Feb. 12 by the Supreme Court.

Justice Robin Jean Davis delivered the opinion of the court. Justices Margaret Workman and Allen Loughry concurred, with Workman authoring a concurring opinion.

Dr. Todd Tallman, invoked the court’s original jurisdiction seeking a writ of prohibition to prevent enforcement of an order of the Monongalia Circuit Court that precludes his experts from rendering opinions that were set out in a supplemental discovery disclosure.

“The respondent … contends that the circuit courts order is correct and that Dr. Tallman has failed to satisfy the standard for issuance of the writ,” the opinion states. “Upon our review of the parties briefs and oral arguments, the appendix records designated for our consideration, and the pertinent authorities, we find that Dr. Tallman has demonstrated sufficient grounds to warrant issuance of the requested writ of prohibition. Therefore the writ is granted.”

On July 27, 2012, Patricia Powell filed the instant medical malpractice action against Tallman, alleging he was medically negligent in causing her husband’s death by failing to diagnose Robert Powell’s appendicitis, which resulted in complications that caused his death on Oct. 28, 2010.

Patricia Powell served her supplemental disclosure of her expert, known as Dr. Milewski, on June 3 and Tallman deposed him on June 19.

“Subsequent to obtaining a transcript of Dr. Milewski’s deposition, Dr. Tallman had his two experts review the transcript,” the opinion states. “Dr. Tallman’s experts revised their opinions after reading Dr. Milewski’s deposition and reviewing additional discovery information.”

On July 29, Tallman served Patricia Powell with a supplemental expert witness disclosure that contained revised opinions by his expert witnesses.

Patricia Powell filed a motion to exclude from trial the opinions contained in Tallman’s supplemental expert witness disclosure.

“The basis for the motion was that [t]he disclosure was made to [Ms. Powell's] counsel a significant time after the deadline for making any such disclosures,” the opinion states. “The trial court granted the motion. Dr. Tallman thereafter instituted this proceeding.”

This case presents a single issue for resolution, according to the opinion.

“That issue is whether the trial court’s decision to exclude the additional opinions by Dr. Tallman’s experts was clearly erroneous as a matter of law,” the opinion states. “We believe that it was.”

“Therefore, the writ prayed for herein is issued, and we prohibit enforcement of the circuit court’s September 19, 2014, order granting Ms. Powell’s motion in limine to exclude the additional opinions of Dr. Tallman’s experts,” the opinion states.

In her concurring opinion, Workman states that while she agrees with the majority’s issuance of the writ of prohibition in the matter, she separately wants to ensure that the majority’s new syllabus point regarding supplementation of discovery and its application in the instant case is not misunderstood or abused.

“I wholeheartedly agree that seasonable supplementation of discovery is required by our Rules and fundamental fairness,” she states. “However, adherence to these requirements does not necessitate that an expert disclosure constitute a veritable ‘script’ from which the expert may not stray in testifying and elucidating his opinions. This is particularly the case with responsive criticisms or opinions, as this case poignantly illustrates.”

Workman calls expert testimony a dynamic creature, stating that while the state’s discovery rules are designed to avoid unfair surprise and allow each party to adequately prepare and prosecute or defend their case, the “vagaries and expediencies of trial necessarily preclude dogged adherence to written disclosures.”

“…I write separately to caution practitioners against using the majority’s new syllabus points as a sword, rather than a shield,” Workman states. “The seasonable supplementation rule is not one of gamesmanship. Application of the rule must be driven by fairness, with an over-arching concern with ensuring that the parties must each be permitted to place their full case before the jury and not be hamstrung by an unyielding requirement of absolute prescience by attorneys and experts.”

Experts must be permitted to be responsive to opinions, factual bases, hypotheticals, explanations, and the myriad of other methods which experts utilize to communicate to the jury, according to the concurring opinion.

“In my view, any genuinely ‘new’ and/or prejudicial information should be fairly apparent; splitting hairs over the nuances of the previously disclosed opinions and ‘new’ information does little to further the purpose of our disclosure and supplementation rules,” Workman’s opinion states. “More importantly, such new information should ordinarily be addressed by providing an opportunity to cure the prejudice rather than exclusion.”

Tallman is represented by Stephen R. Brooks and Travis A. Prince of Flaherty Sensabaugh Bonasso.

The respondents are represented by Frances C. Whiteman and Kristine A. Burdette of Whiteman Burdette.

W.Va. Supreme Court of Appeals case number: 14-0848

MORGANTOWN – A record label has been dismissed as a defendant in a lawsuit that alleged a man was attacked while attending a Wiz Khalifa concert at a Morgantown restaurant.

Wiz Khalifa

Rostrum Records was dismissed without prejudice, voluntarily by the plaintiff, Ryan Smith. Other defendants in the suit still include Taylor Gang ENT LLC; Cameron Jibril Thomaz, also known as Wiz Khalifa; Kevin Woods, also known as Chevy Woods; Gilbert Milam Jr., also known as Berner; 4.0 Entertainment LLC; Drew Ellison, who is doing business as How Fly Hip Hop; Tunez & Cue LLC; Leyonne Pryce; Courtney Williams; Daryl Tyler Jr.; and 40 unknown individuals.

On July 28, Ellison filed answers and affirmative defenses.

In his answers, Ellison denied that he contracted with Tyler and the unknown individuals to serve as performers at the event.

Ellison claims Smith failed to state a claim upon which relief may be granted and that any injuries and damages allegedly sustained by Smith were caused, in whole or in part, by Smith’s contributory or comparative negligence, fault, responsibility or causation and want of due care.

“If plaintiff was injured or damaged … such alleged injuries or damages were caused solely by acts, wrongs or omissions of plaintiff, or other parties, persons or entities, by pre-existing conditions, by intervening causes or by other forces and/or things over which Ellison had no control and for which Ellison is not responsible or liable,” the answers and affirmative defenses states.

On April 11, 2013, Smith was assaulted and battered at Tunez & Cue restaurant when Tyler and the unknown defendants commenced an unprovoked attack on him, according to a complaint filed May 26 in Monongalia Circuit Court.

Smith claims the defendants caused him to sustain significant injuries that required extensive reconstructive surgeries and dental work and that their acts and omissions were done in a wanton and reckless disregard of his safety and were done with malice, oppression and fraud.

The defendants were negligent and breached an assumed duty to protect and make him safe as a business invitee and their actions caused him to suffer a broken jaw and multiple hospitalizations, according to the suit.

Smith claims he suffered a loss of income, disability, disfigurement and loss of enjoyment of life.

Smith is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Lee W. Davis of the Law Offices of Lee W. Davis.

Ellison is represented by Jacob R. Shaffer of Dinsmore & Shohl.

The case is assigned to Circuit Judge Susan Tucker.

Monongalia Circuit Court case number: 14-C-466

CLARKSBURG – A woman is suing the Morgantown Police Department and two of its officers for injuries she sustained from a wrongful arrest and assault.

On Feb. 13, 2013, Justin M. Judy knocked on the door of Rachel Marie Robinette’s place of business in response to a call from a person who lived in an apartment above the place of business that the officer described as a domestic dispute call, according to a complaint filed Feb. 13 in the U.S. District Court for the Northern District of West Virginia.

Robinette claims Judy asked her for her name and she answered with her first name and inquired why there was an officer at her door asking for her personal information. She claims Judy explained it was part of the domestic dispute call and asked if everyone was ok, which she responded that she was fine.

The plaintiff opened her door wider to let Judy hear the volume of her music and that it was not unusually loud and explained that they might have been talking loudly, but that they were getting along and everything was fine.

Robinette claims she pointed out numerous apartments above and to the side of her place of business that occupied students of West Virginia University and the fact that the tenants in those apartments were sometimes loud.

David Clark, who was a guest of Robinette’s, began talking in the background and Robinette asked him to be quiet because she was talking to a police officer and informed Judy that the voice belonged to her friend, according to the suit.

Robinette claims without warning or reason, and without a warrant or any articulable reason to suppose that any crime had been or was being committed, Judy pushed the door open with such force that he broke the glass out of the door’s window.

At the moment that Judy broke the glass, Tyler F. Holder ran into the building and both Clark and Robinette were placed under arrest.

Robinette claims Judy locked his hands behind her neck, pushing her chin down against her check, and lifted her up until her feet were not touching the ground, which inflicted a great amount of strain on her neck and she began crying.

Judy “manhandled” Robinette for approximately 100 feet to the squad car and caused her glasses to fly off her face and caused her to lose a silver Tiffany bracelet during the encounter, according to the suit.

Robinette claims the defendants acted with malice when they abused her and she suffered serious physical and emotional damages as a result.

Robinette is seeking compensatory damages. She is representing herself.

The case is assigned to District Judge Irene M. Keeley.

U.S. District Court for the Northern District of West Virginia case number: 1:15-cv-00025

CHARLESTON – A professor is suing the West Virginia University Board of Governors after he claims he was not promoted to full professor even though he should have been.

Dr. K. Subramani began his employment with WVU in August 2000 as an assistant professor at the Lane Department of Computer Science and Electrical Engineering and was promoted to associate professor and granted tenure in 2006, according to a complaint filed Feb. 2 in Kanawha Circuit Court.

During the academic year of 2011-2012, Subramani was eligible for promotion and applied for a promotion to full professor, but was denied on May 15, 2012, by Provost Michele Wheatly following a review by Associate Provost C.B. Wilson.

Subramani claims the review performed was flawed, arbitrary and capricious and violated his due process rights.

The Department’s Promotion and Tenure Committee determined that Subramani “has made significant contributions to the teaching mission,” and in fact, their overall recommendation was in favor of promotion for full professor, according to the suit.

“Yet it was at this level that the first misapplication of criteria concerning graduate students and mentoring was introduced,” the complaint states.

Subramani claims in the committee’s recommendation, it stated that when it comes to student advising, the committee had serious concerns regarding very low number of graduate students completing their degrees under his supervision and, as a land grant institution, WVU clearly identifies education, retention and graduation of students as its core mission.

There is no WVU guideline that supports the notion that faculty have an obligation to mentor one small subset of the student population toward completion of their degrees, let alone that it is part of the university’s “core mission,” according to the suit.

Subramani claims in the review by department chairman Brian D. Woerner,  he inappropriately emphasized on the element of graduate student advising and because of this, he was not promoted.

The plaintiff was entitled to have his request for promotion assessed only on the basis of acceptable criteria and not a consideration that is without foundation in his appointment letter and applicable university and college written policies and guidelines, according to the suit.

Subramani claims the College P&T Committee recommended that he be promoted to full professor and that there was no WVU guideline that states that states that graduate student advising should be a primary focus.

WVU Dean Gene Cilento did not follow the recommendation of the College P&T Committee and instead, he concurred with the department chairman, according to the suit.

Subramani is seeking promotion to the rank of full professor and compensatory damages with pre- and post-judgment interest. He is being represented by Jacques Williams of Hamstead, Williams & Shook PLLC.

The case is assigned to Circuit Judge Carrie Webster.

Kanawha Circuit Court case number: 15-C-295