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West Virginia's Legal Journal

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  • 01/25/13--03:00: CIVIL FILINGS: Boone County
  • Dec. 6
    Earl F. and Dianna E. Waddell vs. Performance Coal Co.; Alpha Natural Resources, Inc.; Alpha Appalachia Services, Inc.; Alpha Appalachia Holdings, Inc.; Alpha Natural Resources Services, LLC; Consolidation Coal Co.; Mountain Energy, LLC; Mountain Edge Mining, Inc.; Lightening Contract Services, Inc.; and Westmoreland Coal Co.
    PA- Allan N. Kariin; J- William S. Thompson
    * Veteran disabled coal miner, age 66, directs his personal injury suit against companies that employed him underground. Waddells say Earl worked “in positions that regularly exposed him to substantial amounts of respirable dust, including coal dust and crystalline silica, which are known to cause respiratory disease including simple coal workers’ pneumoconiosis… bronchitis, emphysema, simple silicosis, complicated silicosis, and other respiratory diseases.” He complains he was “exposed to dangerous levels of respirable dust” in excess of levels permitted under applicable law and industry standards. Suit seeks compensatory damages for loss of consortium and services, punitive damages, litigation costs, pre- and post-judgment interest and such other relief from discovery at trial.
    Case number: 12-C-240

    Dec. 7
    Justin A. Smith vs. David Stanley Consultants, LLC; Elk Run Coal Co., Inc.; Alpha Natural Resources Services, LLC; and Alpha Natural Resources, Inc.
    PA- John J. Polak, Paul Frampton Jr., Matthew M. Hatfield, Harry M. Hatfield; J- William S. Thompson
    * Defendants willfully, maliciously and unlawfully terminated Smith following two months employment at Black King Mine because he suffered “a compensable injury” and attempted to receive workers’ compensation benefits, the complaint alleges. The plaintiff seeks lost wages and benefits, back and front pay, personal and punitive damages, pre-judgment interest, court expenses and such other relief deemed just and equitable.
    Case number: 12-C-242

    Dec. 11
    Josh D. Chafin vs. Brody Mining, LLC
    PA- Mark A. Atkinson, Paul L. Frampton; J- William S. Thompson
    * The complaint says Chafin was injured last April working at a Brody mine in Boone County, then filed a workers’ compensation claim ruled compensable. On or about Aug. 2, he was terminated by “unlawful retaliatory discharge,” he claims. Chafin seeks jury judgment for lost wages and benefits, back and front pay, personal and punitive damages, pre-judgment interest, court costs and such further relief deemed just and equitable.
    Case number: 12-C-244

    Dec. 14

    Green Tree Servicing, LLC vs. Dean and Penny Olson
    PA- Jason S. Long, Michael Proctor; J- William S. Thompson
    * Sylvester couple is accused of defaulting their July 1999 installment contract in principal amount of $41,242 for a manufactured home. Green Tree asks court to grant right of immediate possession of the unit as contracted collateral.
    Case number: 12-C-247

    Vanderbilt Mortgage and Finance, Inc. vs. Patricia G. Meeks
    PA- Marc B. Lazenby; J- William S. Thompson
    * Vanderbilt cites a December 2008 Deed of Trust on file conveying property at Nellis by Defendant to Casie McGee to secure Plaintiff’ss loan of $50,753. Meeks, also known as Patricia Dotson, subsequently defaulted on loan payments to Vanderbilt, the complaint says, and a foreclosure sale’s high bid of $31,500 conveyed Ridgeview Road property to Plaintiff. Defendant allegedly refuses to vacate and Vanderbilt seeks Court order requiring her to leave, plus obtain such further appropriate relief.
    Case number: 12-C-248


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    MADISON – A Boone County couple are alleging they were harmed by people paid to help them.

    The Boone County Ambulance Authority is named as a co-defendant in a personal injury suit filed by Oleta Ruth and Darrell Spurlock. In their complaint filed Nov. 26 in Boone Circuit Court, the Spurlocks, residents of Danville, allege they were sent to the hospital last year after an ambulance collided with their van.

    According to the suit, about 4:30 p.m. on April 18, Darrell, 79, was driving their Dodge van on U.S. 119 near the four-way intersection at Danville Mountain. Oleta, 76, was a passenger in the front seat.

    Around the same time, the suit maintains, an ambulance driven by Richard Smith, who is named as co-defendant, came through the intersection, and struck the Spurlock’s van. Though no specifics are provided where the ambulance struck the van, the suit claims it the impact was with “such great force and violence” that it “did cause serious and permanent bodily injuries to [Oleta] Spurlock.”

    The extent of Oleta’s injuries are not specified in the suit. However, Spurlock maintains she has to “spend great sums of money for her medical care and attention” and has sustained both “great physical pain and mental suffering” and “a loss of enjoyment of life.”

    In addition to his, the suit says Darrell has had to cope with Oleta’s injuries. This includes furnishing her with in-home nursing services.

    The Spurlocks seek unspecified damages, courts costs, attorneys and interest. They are represented by Madison attorney Harry M. Hatfield.

    The case is assigned to Judge William S. Thompson.


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    MADISON – A Vietnamese woman is seeking injunctive relief enjoining the sale of Danville Nail & Spa.

    Plaintiff Arlene Pham is a native of Vietnam and family in California. Complaint represents that she married Ut Ngoc, also Vietnamese, in May in Westminster, Calif., and her family members “advanced certain funds… for purposes of starting a nail salon.”

    The couple met in Hawaii in November 2011.

    Attorney Peter A. Hendricks, of Madison, filed the woman’s complaint Jan. 17 in Boone Circuit Court, giving her address as South Charleston, with Ngoc listed on Mall Road in Danville, where the contested business is located.

    The Phams returned to West Virginia in late May, says the complaint, beginning interior construction for a nail salon.

    The plaintiff’s family advanced money, the complaint continues, reliant upon the “parties’ marriage as well as their representations… and endeavors to establish and maintain a partnership in a nail salon operation at Danville.”

    Licenses and leases were placed in Ngoc’s name, according to the complaint, after remodeling and product costs amounted to more than $30,000. With “all of the monies… loans from various family members of Plaintiff in reliance upon the marital ceremony with the understanding that the parties were married and further induced by the representations and acknowledgment… they were to engage in a partnership in a nail salon business.”

    The complaint says the nail salon flourished before “Defendant began to remove funds from the business to pursue a gambling habit.”

    A situation developed wherein the defendant removed Pham from the business “under a pretense of a domestic violence petition, then declared that they were not married because no marriage license (was) executed… The parties were never married and there was no business partnership,” the complaint relates.

    Pham contends she was forced to work away from the Danville salon and then was fired from a Charleston position when Defendant led friends to believe she would “steal (from) employees and patrons” where she was employed.

    She complains that being removed from the Danville business and losing her Charleston job financially devastated her, forcing her to leave West Virginia and join her family in California.

    Included in Plaintiff’s prayer is that the court declare “a partnership in fact or by equity exists,” then dissolve it by selling all assets and good will, with proceeds divided. She seeks general, compensatory and punitive damages with interest and litigation expenses.

    Judge William S. Thompson scheduled a hearing for Feb. 5 on the woman’s motion for injunctive relief.

    Boone Circuit Court case number: 13-C-12


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  • 02/08/13--02:30: CIVIL FILINGS: Boone County
  • Jan. 22
    Harvey Trucking, Inc. vs. CSX Transportation, Inc., and John Doe, an unidentified driver
    PA- Daniel R. Schuda; J- William S. Thompson
    *The plaintiff seeks a jury award to compensate it for damages to its loaded coal truck from a September 2011 collision that Harvey Trucking claims was caused by a CSX truck. The complaint says its driver notified other potential users of a narrow, steep coal mine haul road near Ashford by CB radio not to come uphill until he completed his downhill trip. That was done, Harvey Trucking says, as a standing communication procedure. CSX failed to furnish Doe with a CB radio, according to the suit, which caused the trucks to collide in a steep curve, resulting in truck damages, lost profits and injuries. Plaintiff also wants court costs and any other appropriate relief.
    Case number: 13-C-13

    Jan. 23
    Dwayne Johnston vs. Parsley Enterprises, Inc., and Newhall Contracting, Inc.
    PA- Kendal E. Partlow; J- William S. Thompson
    *The Logan County resident says his one-month employment was ended in February 2011 by unlawful retaliatory discharge because he filed for and received Workers’ Compensation benefits following a work-related injury in Boone County. Johnston complains his injury on Feb. 7, 2011, prevented him from working, and when he contacted his employer approximately 10 days later to go back to the job, he was terminated. He says state common law and the Human Rights Act were violated, prompting him to seek jury judgment for lost wages and benefits; back and front pay; general and punitive damages; pre-judgment interest; court expense; and such further relief just and equitable.
    Case number: 13-C-14

    Jan. 28
    Vanderbilt Mortgage & Finance, Inc. vs. Claude Hunter
    PA- Jason S. Long, Denise M. Spatafore; J- William S. Thompson
    *The Tennessee-based financial firm complains Hunter defaulted on his $23,930 retail installment contract on a 1998 manufactured home and wants assistance to repossess the unit as security interest collateral.
    Case number: 13-C-16


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  • 02/26/13--10:59: CIVIL FILINGS: Boone County
  • Feb. 7
    Grove Jerace vs. Brody Mining, LLC and Newhall Contracting, Inc.
    PA- Pamela A. Lambert; J- William S. Thompson
    * Logan County resident’s personal injury suit alleges he was working keeping the continuous miner cable out of the way of other underground equipment when in February 2011, the roof bolter struck him, resulting in severe and permanent injuries. Jerace was employed by Newhall at Brady’s mine near Wharton in Boone County. He accuses the defendants of failing to follow proper state and federal safety regulations and demands judgment, jointly and severally, for a jury award in excess of the court’s minimum jurisdiction. Jerace also seeks pre- and post-judgment interest, court costs and all other relief deemed proper and just.
    Case number: 13-C-25

    Feb. 8
    Corey Lovejoy and Connie Lovejoy vs. Caterpillar, Inc. and Cecil I. Walker Machinery Co.
    PA- Edward G. Atkins; J- William S. Thompson
    * Product liability suit alleges an October incident at Black Castle Mining Co. location in Boone County in which Lovejoy was using a lifting aid known as a “sling” on a bulldozer blade component. The complaint says Caterpillar manufactured the sling, which was distributed by Walker and used with a crane that separated, allowing the dozer to fall and cause injury to Lovejoy’s right foot. Defendants are accused of furnishing and marketing a defective and dangerous sling. Lovejoy seeks jury judgment for an amount sufficient to compensate for his injuries, pre-judgment interest, and all court costs. His wife Connie also demands the same awards.
    Case number: 13-C-26

    Kimberly Stewart vs. Lowe’s Home Centers, Inc. and Lowe’s HIW, Inc.
    PA- Matthew M. Hatfield; J- William S. Thompson
    * Stewart brings personal injury suit because, as a customer at Lowe’s South Charleston store in late March 2011, she was struck by a piece of fencing and/or lumber being loaded by a John Doe, she says. The Alum Creek resident claims she suffered serious and permanent bodily injuries because of “carelessness, recklessness and negligence.” She seeks judgment, jointly and severally, for an amount in excess of court jurisdictional limits for compensatory, special and general damages, together with litigation expenses, pre- and post-judgment interest and just and proper further relief. Total amount awarded, under no circumstances, is not to reach or exceed the federal jurisdictional $75,000, the complaint requests.
    Case number: 13-C-27

    Feb. 12
    Donna J. Moore vs. Boone County Board of Education and Vanessa D. Kinchen
    PA- Marvin W. Masters, April D. Ferrebee; J- William S. Thompson
    * Moore demands a jury trial to determine personal injury awards resulting from an alleged head-on collision with a school bus driven by Kinchen in March 2011 on Middle White Oak Road at Peytona. She charges defendants with “negligence, carelessness, recklessness and lack of due care” in causing the accident, leaving her with temporary and permanent injuries. Moore expects judgment for award in excess of jurisdictional amount, together with pre- and post-judgment interest, court costs and any other relief deemed just and fair.
    Case number: 13-C-28

    Feb. 14
    Carlos Privett and Melinda Privett vs. Mine Safety Appliances Co., Persinger Supply Co., Raleigh Mine and Industrial Supply Co. and Eastern States Mine Supply Co.
    PA- G. Todd Houck; J- William S. Thompson
    * Hidden defects and inadequate warnings with use of respirators for protection against harmful dust are blamed for Privett developing the occupational disease known as “black lung.” He worked approximately 42 years for numerous coal-producing companies that used respirators manufactured by MSA and marketed and distributed by co-defendants named in his product liability suit. The Beckley couple seek jury awards, jointly and severally, for compensatory damages, punitive damages only against MSA, court expenses, pre- and post-judgment interest and all further relief to which they’re entitled. The complaint says Melinda Privett is entitled to recover damages for loss of affection, care, society, companionship and consortium.
    Case number: 13-C-30


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    MADISON – Bryan Angel contends he was wrongfully discharged from his coal mining job because of his disability status.

    Charleston attorneys David Grubb and Kristina Thomas Whiteaker filed Angel’s suit Feb. 1 in Boone County Circuit Court seeking jury trial. The defendant is Frasure Creek Mining, LLC, d/b/a Trinity Coal Corp.

    Angel represents that an X-ray and pulmonary function test on Sept. 13, showed a lymph node abnormality “compatible with borderline occupational pneumoconiosis,” although further testing would be necessary to rule out sarcoidosis or nonspecific interstitial disease.

    Angel began employment with Frasure Creek about Sept. 14 and worked three days, according to complaint.

    On Sept. 17, the complaint says, Angel’s superintendent told him he needed to have a CT scan follow up on “something” found in his pre-employment lab work. Also, he would need a release from his doctor to return to work. A scan was done that same day and a work release given, Angel relates.

    A pulmonary specialist examined him Sept. 20, the complaint continues, and advised that a medastinoscopy would be beneficial to obtain a tissue sample. A follow-up appointment was scheduled and the doctor provided a return to work slip. Angels says he returned to his surface maintenance crew work Sept. 21-23.

    He received a phone call while driving to work the next day, Angel says, from a company human resources representative, Ty Coleman, informing him the work release turned in was “not good enough” and he needed a different kind of document.

    According to the complaint, Coleman was quoted as saying “that’s not a risk we’re taking” in reference to Angel’s medical test results.

    Following additional procedures, Plaintiff’s doctor diagnosed him with mild sarcoidosis, prescribed oral steroids and “provided a letter indicating that Plaintiff was medically cleared for work as a coal miner, without limitations,” Angel says.

    After he worked about an hour-and-a-half on Oct. 5, the complaint continues, Coleman told him to leave the premises because he “never worked here.”

    After explaining he had received two paychecks, Angel was still ordered to leave, it is alleged.

    Angel contends that at no time did he have any symptoms related to his lung condition and his pre-employment pulmonary function test was normal.

    He accuses Frasure Creek Mining of disability discrimination under the West Virginia Human Rights Act, among other things, and seeks jury awards of compensatory and punitive damages, litigation costs, pre- and post-judgment interest, plus further appropriate relief.

    He also asks for a permanent injunction ordering Defendant “to establish an ongoing training program for their employees on the subject of unlawful employment discrimination.”

    The case has been assigned to Judge William S. Thompson.

    Boone Circuit Court case number: 13-C-23


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  • 03/12/13--07:43: CIVIL FILINGS: Boone County
  • Feb. 14
    Milton and Darlene Kincaid vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
    PA- G. Todd Houck; J- William S. Thompson
    * A coal miner for 35 years, Kincaid says the defendants manufactured, sold and distributed defective respirators that exposed him to harmful dust leading to advanced lung disease. His product liability suit includes wife Darlene’s claim of loss of consortium. The suit says MSA respirators that were used leaked substantial amounts of harmful dust “undetectable by the human senses” and caused his black lung disease. Kincaid wants a jury to award compensatory damages, jointly and severally, punitive damages only from MSA, court costs, pre- and post-judgment interest and further relief to which Plaintiffs are entitled.
    Case number: 13-C-31

    Daniel and Donna Toler vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
    PA- G. Todd Houck; J- William S. Thompson
    *Oceana resident Toler worked some 26 years in coal mines, saying he developed black lung disease caused by hidden defects with inadequate warnings in MSA respirators provided.
    Case number: 13-C-32

    Sammy and Wanda Mendez vs. Mine Safety Appliances Co.; Persinger Supply Co.; Raleigh Mine and Industrial Supply, Inc.; and Eastern States Mine Supply Co.
    PA- G. Todd Houck; J- William S. Thompson
    * Mendez alleges he developed black lung disease because of the defendants’ actions.
    Case number: 13-C-33

    Dreama Adkins vs. T & C Excavating, Inc. and President Jason Moore
    PA- Harry M. Hatfield; J- William S. Thompson
    * Adkins claims she stopped her car, preparing to make a left turn from W.Va. Route 85 onto Benjamin Price Bridge in Madison when she was struck from behind by Moore’s pickup truck. Her personal injury suit says she suffered serious and permanent injuries from the alleged collision in October 2011 that totaled her vehicle. The complaint seeks jury judgment against Moore and his company for an amount in excess of jurisdictional limits, with compensatory, special and general damages, her court expenses, pre- and post-judgment interest, plus other proper relief.
    Case number: 13-C-34

    Feb. 15
    Larry and Tomma Johnson vs. Mountain Edge Mining, Inc.
    PA- William M. Tiano; J- William S. Thompson
    * Bloomingrose couple wants a jury to determine adequate compensation awards for May 2011 injuries Larry Johnson allegedly suffered in Mountain Edge’s Dorothy No. 3 Mine, when the drive shaft broke on a mantrip he was riding and the machine’s brakes failed to work. The personal injury suit says Johnson “traveled approximately 200 feet backwards and hit the rib of the mine to get stopped.” Wife Tomma has been deprived of consortium, the complaint contends. Couple asks for pre- and post-judgment interest and litigation expenses along with other general relief deemed applicable.
    Case number: 13-C-36


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  • 09/19/13--10:59: CIVIL FILINGS: Boone County
  • Dec. 8
    In The Interest Of Jordan Scott Messer, An Incapacitated Adult; State of West Virginia; WV Department of Health & Human Resources, Petitioner
    PA- Jennifer L. Anderson, Boone County Asst. Prosecuting Attorney; J- William S. Thompson
    * Messer was previously found as a mentally handicapped “protected person.” Robert L. Messer, his guardian-conservator, died. Court granted Petition to appoint a guardian ad litem for J.S. Messer, appoint DHHR as guardian and Boone Sheriff’s Department as his conservator.
    Case number: 11-C-230

    Dec. 14
    Staci Queen, individually and as Parent, Guardian, and Next Friend of the infant, Maggie Queen vs. Walter G. Martin Jr. and Enterprise Rent-A-Car Co. of Kentucky, LLC
    PA- Greg K. Smith; J- Thompson
    * Staci Queen complains vehicle she was driving, with infant daughter a properly restrained passenger, was unlawfully rear-ended July 2010 on U.S. 119 near Danville by a pick-up truck owned by Enterprise and operated by Martin. She seeks jury awards of compensatory damages for both Plaintiffs, litigation costs, pre- and post-judgment interests, and all other proper relief.
    Case number: 11 -C-231

    Dec. 16
    Scott S. Halstead, Leota Cook, his wife vs. Massey Energy Co.; AT Massey Coal Co.; Massey Coal Sales Co.; Massey Coal Services, Inc.; Don Blankenship; and Performance Coal Co.
    PA- Anthony J. Sparacino; J- Thompson
    * Personal injury suit details that Halstead was working in Boone County as an employee of Performance Coal Co. when April 2010 underground explosion occurred at Upper Big Branch Mine. Complaint says “negligent, intentional and reckless conduct…” caused the explosion resulting in 29 fatalities, with safety statutes and regulations violated. Halstead was completing his shift when the explosion happened and contends he suffered permanent physical and emotional injuries, including brain injuries. He calls for jury judgment for an amount that will adequately and fairly compensate him and his wife, plus pre- and post-judgment interests, litigation expenses, and such other relief Court deems appropriate, including punitive damages.
    Case number: 11-C-232

    Tenisia Jarrell vs. James E. Pyne and Elk Run Coal Co., Inc. d/b/a Black Castle Mining Co.
    PA- Anthony J. Sparacino; J- Thompson
    * Involved in a head-on vehicle accident January 2010 on W.Va. Route 305 near Lester in Raleigh County, Jarrell’s personal injury suit claims Pyne was intoxicated when driving the truck that struck her car. Pyne, resident of Uneeda, reportedly was employed by Defendant coal company and operating a vehicle owned and insured by his employer. Jarrell, claiming severe and potentially permanent injuries to body and mind, seeks jury determination of compensatory and punitive damages, awards for pre- and post-judgment interests, costs of litigation and such other relief deemed appropriate.
    Case number: 11-C-233

    John Morrison vs. James E. Pyne and Elk Run Coal Co., Inc. d/b/a Black Castle Mining Co.
    PA- Anthony J. Sparacino; J- Thompson
    * Morrison was a passenger in Tenisia Jarrell’s car during above-described collision involving Defendants. He wants same jury awards detailed in Case number: 11-C-233.
    Case number: 11-C-234


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  • 07/18/06--03:02: Massey wants Hoke off case
  • MasseyLogo.gif

    MADISON – A.T. Massey Coal Company has filed a motion to have Boone Circuit Court Judge Jay Hoke disqualified from a case that already has resulted in federal lawsuit.

    Because Hoke’s impartialality might be questioned, Massey says the judge shouldn’t be presiding over the case brought against the energy company by Hugh Caperton, Harman Development Corp., Harman Mining Corp. and Sovereign Coal Sales Inc.

    In 1998, those parties filed the suit against Massey Coal, Elk Run Coal Co., Independence Coal Co., Marfork Coal Co., Performance Coal Co. and Massey Coal Sales Co. alleging Massey was liable for damages arising out of a series of transactions that also were the subject of a separate lawsuit in Virginia. A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

    Last month, Massey filed a federal lawsuit against Boone Circuit Court reporter Jennifer Meadows, claiming she “intentionally misrepresented her ability to produce a transcript” for the 2002 trial. Massey also claims Meadows’ actions have caused the company “substantial financial damages.”

    Massey claims Meadows violated its constitutional right for failing to transcribe a complete transcript and that she “negligently prepared the transcript by failing to utilize proper transcribing methods.” Massey also says Meadows fraudulently said she was too busy to produce the transcript when, in fact, she could not produce one.

    In the Boone County motion, filed July 10, Massey says Meadows and Hoke have a long professional relationship which dates back to his days as Logan County prosecutor.

    “Meadows was his secretary when he was the prosecutor,” the motion states. “After he was elected as a circuit court judge, Judge Hoke appointed Ms. Meadows as his court reporter. Further … Meadows remains Judge Hoke’s court reporter to this day.”

    After repeated requests for a transcript of the 2002 trial were not productive, Massey filed motions in Boone Circuit Court in June

    Massey says it has been denied its due process right to appeal the 2002 verdict because of Meadows’ actions. That, Massey says, is a violation of the 14th Amendment of the United States Constitution and Article 3 of West Virginia’s Constitution.

    Currently, Hoke must rule by Sept. 1 whether the “piecemeal” transcript it finally obtained earlier this year is good enough for Massey’s appeal.

    In the July 10 motion, Massey hints that legal action against Hoke might be coming.

    “Although Massey believes that Judge Hoke may have known about Ms. Meadows’ practice and incompetence, Massey does not currently have any evidence to support a claim against Judge Hoke,” the motion states. “However, Massey will seek discovery … to determine Judge Hoke’s knowledge of his court reporter’s reckless court reporting practices, and his knowledge and involvement in her intentional misrepresentations regarding preparing the trial transcript.”

    Massey says Hoke should be disqualified based on canons in the West Virginia Code of Judicial Conduct.

    “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; … (d) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is the party to the proceeding, or an officer, director or trustee, of a party; (ii) is acting as a lawyer in the proceeding; (iii) is; known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge’s knowledge likely to be a material witness in the proceeding.”

    Massey says Hoke should be disqualified because he has “a substantial” interest in the outcome of the hearing on the motions pending that result from Meadows’ insufficient transcripts.

    “Massey has decided to proceed cautiously by not naming Judge Hoke as a defendant and, instead, fully evaluating his participation through discovery,” Massey states. “Judge Hoke could possibly be liable … if discovery reveals that Judge Hoke wantonly and recklessly supervised Jennifer Meadows as part of his administrative duties.”

    Massey also says Hoke could become a party if he knew “Meadows was incompetent an derelict in her duties, and wantonly and recklessly failed to take the appropriate administrative action against” her.

    Massey goes on to say that it strongly suspects Hoke knew Meadows had a poor job performance over the years that she worked for him as a court reporter, and it believes Hoke took no action against her at all.

    “In addition, Judge Hoke will become a party if he had knowledge that Ms. Meadows was falsely reporting her progress concerning the transcript, and he wantonly or recklessly failed to take any administrative steps to rectify the issue.”

    Massey also says Hoke should be disqualified because he has personal knowledge of the legal claims against Meadows. It also says he should be removed because of his personal interest in the case based on his professional relationship with Meadows.

    “Judge Hoke seems to have loyalty to his former secretary and Court Reporter, which is evidenced by his decision to retain her as the official court reporter after her wrongdoing in this case,” Massey writes. “Although not at all inappropriate, a reasonable person would conclude that Judge Hoke likes Ms. Meadows and considers her a friend. …

    “No judge could be expected to be impartial when his decisions will impact upon his loyal employee and friend, Jennifer Meadows.”

    Massey is represented by attorneys D.C. Offutt Jr., Stephen S. Burchett and Perry W. Oxley of the Huntington law firm of Offutt, Fisher and Nord.

    Boone Circuit Court case number: 98-C-192


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    MADISON – Charleston attorney Rudolph L. DiTrapano has sued The West Virginia Record in Boone Circuit Court, claiming the newspaper invaded his privacy and intentionally inflicted emotional distress on him.

    DiTrapano accused The Record of falsely implying a connection between him and alleged criminal conduct of his son, Dante DiTrapano.

    In the complaint Rudolph DiTrapano wrote that Dante DiTrapano was arrested March 16 in Florida and charged with possession of illegal contraband.

    Rudolph DiTrapano alleged that The Record used that “tragic circumstance” to perpetrate a malicious campaign to injure him by falsely suggesting to readers that “this family tragedy instead should be viewed as an indictment of the plaintiff for complicity in criminal conduct. …”

    He wrote that he suffered anguish, shock, horror, shame, humiliation, embarrassment, anger, chagrin, annoyance and emotional distress.

    He filed the suit Aug. 25, but not in his own name. The complaint named RLD Enterprises as plaintiff. He filed the suit “pro se,” as his own attorney.

    He filed an amended complaint Aug. 31, naming himself as plaintiff.

    He again listed himself as attorney pro se, but attorneys Timothy Barber and Andrew MacQueen of Charleston also signed the complaint.

    DiTrapano named Chris Dickerson, who is described as “the agent and servant of The Record,” as first listed defendant.

    He named Stanton Anderson next, identifying him as President of The Record, senior counsel to the president of the United States Chamber of Commerce and Dickerson’s supervisor.

    He wrote that Chamber of Commerce managers “created the West Virginia Record to portray and defame lawyers who represent consumers and plaintiffs in general, and Plaintiff in particular, in a negative, false light.”

    He alleged that the defendants’ publications were “a degenerative exercise of their malice and hatred toward lawyers who represent consumers.”

    He called The Record’s behavior “demented and deplorable” and its publications “sick and depraved.”

    DiTrapano’s complaint seeks compensatory and punitive damages. He ended it with a pledge to donate all monies to West Virginia charities and nonprofit organizations.

    Rudolph DiTrapano is a former chairman of the West Virginia Democratic Party.

    His firm, DiTrapano, Barrett & DiPiero, has served as special counsel to Attorney General Darrell McGraw in three lawsuits. The firm has received almost $1.4 million in settlements of those suits.

    The complaint alleges that, “Plaintiff is not a public figure.” It also alleges that The Record “discussed matters about Plaintiff in which the general public had no legitimate interest.”


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    WELLSBURG – Two Brooke County men have joined in the litigation against Merck and Co., the manufacturer of Vioxx.

    Charles Bolner and Kirk Scott each filed lawsuits Sept. 29 in Brooke Circuit Court against Merck, claiming they were harmed by ingesting Vioxx.

    Merck issued a recall of Vioxx, which has been linked to several health problems in its users, such as heart attacks.

    “The drug contained toxins and when taken by human beings had a deleterious effect on the health of human beings, including damaging their heart,” the complaint says.

    “Defendant Merck set about to and did advertise, market and directly and indirectly caused to be ingested by Charles E. Bolner the drug which said use was dangerous, untested and unapproved.”

    Merck has been fighting claims from all over the country in a Multi-District Litigation lawsuit in federal court in Louisiana.

    Last year, a widow was awarded $253 million in damages from Merck in Texas, though the state’s cap of $26.1 million cut the amount.

    In August, the jury in Louisiana awarded $51 million to a former FBI agent who survived a heart attack.

    Merck has reportedly stated it will seek an appeal, claiming the man was already at risk for a heart attack.

    Bolner and Scott seek compensatory and punitive damages.

    “Defendant Merck withheld information which it had in its possession concerning research, testing, lack of research and testing, studies of humans who had taken the drug and who had been given the drug, which demonstrated that the drug causes damage to human’s heart and kidneys, as well as other information which medically, legally, scientifically and ethically Plaintiff had a right to know before ingesting and which Defendant had a duty under the law of West Virginia to disclose,” the complaint says.

    Bolner says he has suffered medical bills, physical injury, emotional distress, humiliation, loss of enjoyment of life, loss of income, disability, disfigurement and annoyance.

    Mark Colantino of Weirton firm Frankovitch, Anetakis, Colantonio and Simon is representing the plaintiffs.

    Brooke Circuit Court case number 06-C-167


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    MADISON – A Boone County jury awarded a county man nearly $2 million Monday after it ruled a mining company had retaliated against him for filing a workers’ compensation claim and later failed to reinstate him.

    The verdict for George M. Peters was announced in Boone Circuit Court before new Circuit Judge Will Thompson. Peters had sued Rivers Edge Mining Inc., a subsidiary of Peabody Energy.

    According to court documents, Peters broke arm while working in the mine in October 2003. He kept working with a cast on his arm until March 2004, when his physician ordered him to stop working because the break wasn’t healing properly. After taking time off, Peters tried to return May 13, 2004, which is when he says Rivers Edge fired him.

    After a two-week trial, the jury ruled that Peters’ pursuit of workers’ comp benefits was a motivating factor in his discharge and that the defendant unlawfully failed to reinstate him to his former position.

    The verdict form shows that the jury awarded Peters back pay of $171,697, front pay of $513,410 and $200,000 for aggravation, inconvenience, humiliation, embarrassment and loss of dignity.

    The jury also awarded Peters $1 million in punitive damages.

    Peters was represented by Charleston attorney Mark Atkinson of Atkinson & Polak and Madison attorneys Harry and Matt Hatfield.

    “We are pleased with the verdict,” Atkinson said, refusing further comment.

    Boone Circuit Court case number: 06-C-15


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    MADISON – A Boone County man was awarded more than $2 million in punitive and compensatory damages after he filed a wrongful termination suit against Independence Coal Company, a Massey Coal subsidiary.

    Rocky Allen Burns filed the case May 11, 2006, claiming his firing was a retaliatory move after he reported safety problems to the Mine Safety and Health Administration.

    Burns worked as an in-house safety inspector with the Independence Coal mine.

    A jury awarded Burns with $98,862 in back pay; $800,692 in back pay and $100,000 in aggravation, inconvenience, humiliation, embarrassment and loss of dignity. He was also awarded $1 million in punitive damages, making the total awarded damages a little more than $2 million.

    Charleston attorney Mark Atkinson, who represented Burns, said his client received the proper outcome.

    “We are pleased with the verdict,” Atkinson said.

    The case was tried in Boone Circuit Court in front of Judge William S. Thompson.


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  • 04/18/08--00:05: THIS JUST IN: Boone County
  • March 14
    Joseph Toth vs. Apollo Mining Services Inc., Spartan Mining Co., Massey Coal Services Inc., individually and as parent company of Elk Run Coal Co. Inc. and Massey Energy Co.
    PA-J. Zackary Zatezalo; J-Thompson
    * Toth, who lives in McMechen in Marshall County, was employed by Apollo in June 2006 as an underground coal miner at Ruby Energy. On Oct. 9, 2006, on the midnight shift, Toth was “instructed to install a fire supression system at Number 2C belt head, a task for which he was neither trained nor supervised.” He was instructed “to attach a deluge hose to a 2-inch water pipe” which was part of the main underground water supply line. He was knocked backward and unconscious when a valve blew off the pipe. His head hit the wall behind him. He sustained severe injuries, according to the complaint. Toth says he was “disabled and damaged.” He claims unsafe working conditions existed when he worked with Apollo presenting “a high degree of risk and a strong probability of serious injury or death.” He seeks compensatory and punitive damages as well as post-judgment interest.
    Case number: 08-C-60


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  • 04/25/08--00:05: THIS JUST IN: Boone County
  • April 11
    Terry Collins and Sabrina Collins vs. Coal River Mining
    PA-Brian L. Ooten and Ryan M. Ruth; J-Thompson
    * The plaintiffs list 12 grievances against the coal company for injuries Terry Collins received May 20, 2006, while working in Fork Creek Number 3 underground mine in Lincoln County. He was a roof bolter operator-shuttle car operator when he was “struck on the head and neck by a large rock that fell from the mine roof.” They claim the coal company did not follow safety law and industry standards. They seek compensatory damages.
    Case number: 08-C-75

    Boone County Ambulance Authority vs. John W. Washburn
    PA-Edward G. Atkins; J-Thompson
    * BCAA seeks to condemn a 0.084-acre parcel of private property to erect a communication tower near the Racine post office and the intersection of W.Va. 94 and W.Va. 3. It offered $7,000 and had an agreement with Washburn, but his niece and sister intervened because of “defendant’s legal incapacity.”
    Case number: 08-C-79


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  • 07/18/08--00:00: THIS JUST IN: Boone County
  • April 21
    Green Tree Servicing LLC, successor for BAHS Bank of America, FSB vs. Sybil and David Ball
    PA-Timothy J. Amos; J-Thompson
    * Plaintiff seeks to repossess the defendants’ mobile home for deliquent payments on a promissory note of $30,358.42. Green Tree seeks amount plus reasonable costs associated with repossession, storage and transportation of the home.
    Case number: 08-C-83

    Charles Aleshire on behalf of Jimmy Aleshire, David Aleshire, Elise Muncey and Jerry Dent vs. Eastern American Energy Corp., Rod Winters, “Bo” Ranson and Does 1-10
    PA-Wendle Cook; J-Hoke
    * Aleshires say Eastern American Energy “at times unknown to plaintiffs … did enter plaintiffs’ land without their permission and did unlawfully cut and remove timber, soil and other valuable plants from the approximate 112 acres of real property owned by plaintiffs for the purpose of drilling a gas well and laying pipeline.” Plaintiffs seek damages equaling three times the value of the timber, trees, soil and other valuable plants removed as well as exemplary and punitive damages.
    Case number: 08-C-85

    Michael and Drema Spenser vs. Eastern American Energy Corp.
    PA-Joel Baker; J-Thompson
    * Plaintiffs seek judgment for damages to their property by unlawfully cutting and removing timber and soil and other valuable plants.
    Case number: 08-C-86

    Charles and Bonnie Huffman vs. Eastern American Energy Corp.
    PA-Joel Baker; J-Hoke
    * Plaintiffs seek judgment for damages to their property by unlawfully cutting and removing timber and soil and other valuable plants.
    Case number: 08-C-87


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  • 08/01/08--00:15: THIS JUST IN: Boone County
  • April 23
    Ronald Beverly and Kathy Beverly v. Dakota LLC
    PA-Bradley J. Pyles; J-Thompson
    * Plaintiffs seek $2 million from the coal company. Ronald was installing roof bolts underground on May 22, 2006, in Dakota No. 2 mine near Bob White in Boone County when a large piece of rock fell on him and the roof bolting machine, pinning him against the machine. Beverly had to be dug out at the roof fall site. He claims the company knew of “dangerous and unstables ribs and roof, and of the high risk and strong probability of serious injury or death.” He crushed his lower left leg and fractured his pelvis. He hasn’t worked since the accident and claims permanent injuries.
    Case number: 08-C-90

    Tyrell Richard Miller and Charlyn Miller vs. Harvey Trucking Inc.
    PA-Bradley J. Pyles; J-Thompson
    * Plaintiffs seek $2 million from the trucking company. T.R. Miller was hauling coal on May 1, 2006, from a mine near Ashford when the brakes failed on the tri-axle truck. He was on a steep haul road when the truck went out of control and turned over in a drainage ditch. He was pinned and had to be cut out of the cab. He suffered multiple fracturers of the pelvis and other severe injuries.
    Case number: 08-C-89

    April 30
    David and Teresa Hubbard vs. Daimler Trucks North America LLC dba Freightliner LLC, Cummins of Charleston, Crosspoint LLC, Warranty Business Services Corporation and Wheels of Parkerburg Inc.
    PA-Timothy Conway; J-Thompson
    * The Hubbards purchased a new Coachman motor home in May 2004. Since the purchase, they have dealt with brake malfunctions. The RV was subject to repair three or more times by defendants, but the issues still exist. They see damages, pre- and post-judgment interests, court costs, expenses, attorney fees and other relief.
    Case number: 08-C-94


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  • 08/15/08--00:00: THIS JUST IN: Boone County
  • May 2
    Angela Smith vs. CSX Transportation Inc., Jay Fleenor, Gerry Williams III
    PA-Mark A. Atkinson, Charles R. Webb; J-Thompson
    * Smith, an 11-year employee of CSX, accused management employee Ernest W. Knick of sexual harassment in July 2007 in Clifton Forge, Va. Clay Newsome reportedly told Knick his actions were improper. Complaint says Smith and Newsome reported the behavior to Fleenor in Huntington who then reported it to Williams. Knick then was transferred to Grafton, where Smith worked, creating “an impossible working environment.” On April 13, Smith was “constructively discharged” from her management position and had to return to a lesser paying job in Boone County. She says defendants’ actions or inactions violate the West Virginia Human Rights Act. She seeks lost wages and benefits.
    Case number: 08-C-96

    Rebecca J. Bell vs. Perry and Teddi Williams dba Williams Transport
    PA-unk; J-Thompson
    * Bell, 46, employed by Williams for 15 years until 2007, says she was discharged because of physical disability, a violation of the West Virginia Human Rights Act. She seeks back pay, damages for emotional distress, embarrassment, mental anguish and other relief.
    Case number: 08-C-99

    May 5
    Diversicare Leasing Corp. dba Boone Nursing & Rehabilitation Center vs. Joseph Cooper, executor/administrator of the estate of Howard Cooper
    PA-Timothy J. LaFon; J-Thompson
    * Howard Cooper was a resident with the plaintiff from 2006 until his death in April 2007. Facility says it was not told he had insurance and billed Medicaid for services. Joseph Cooper was his father’s power of attorney. Facility had to reimburse Medicaid for his expenses after AARP issued an insurance check for $45,000 to Joseph Cooper, who has refused to turn over funds to the plaintiff.
    Case number: 08-C-101

    May 8
    Richard Ball vs. Eastern American Energy Corp. and Does 1-10
    PA-Joel Baker; J-Thompson
    * Ball claims EAEC was responsible for workers on his property in 2007 removing timber, soil and valuable plants without permission. He seeks damages for damage to his property and to punish the company. He also wants EAEC to provide free gas Ball claims he is entitled to and halt the flow of natural gas “across and from plaintiff’s property.”
    Case number: 08-C-103

    Robert and Sharon Ball vs. Eastern American Energy Corp. and Does 1-10
    PA-Joel Baker; J-Thompson
    * The Balls claim EAEC was responsible for workers on their property in 2007 removing timber, soil and valuable plants without permission. They seek damages for damage to their property and to punish the company. They also want EAEC to provide free gas the Balls claim they are entitled to and halt the flow of natural gas “across and from plaintiffs’ property.”
    Case number: 08-C-104

    Christie Barker and Jamie Barker vs. Boone Family Court Judge Cynthia J. Jarrell, Ruth Cooper, Sherry Cooper, Harold Cooper Jr., John Cooper
    PA-Keith Randolph; J-Thompson
    * The Barkers want to retain property they say was a gift to them from Harold and Ruth Cooper, Christie’s parents.
    Case number: 08-C-105


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  • 08/29/08--00:00: THIS JUST IN: Boone County
  • May 12
    David Wayne Lesher v. Hamer Log & Lumber Co, Hamer Lumber Sales Inc., Hamer Hardwood Manufacturers Inc.
    PA-J. Kristofer Cormany; J-Thompson
    * Lesher seeks damages for injuries sustained at work at a sawmill near Madison. He says Hamer exposed workers to high risk of injury. He says he was maintaining a conveyor belt system and cleaning wood particles fallen to the ground between the wood chipping machine and the conveyor belt system when “his shirt sleeve was caught by a splice on the belt and his right arm pulled through conveyor belt’s tail terminal pulley causing severe and permanent injuries to his right arm and hand.”
    Case number: 08-C-106

    May 23
    Elk Run Coal Company vs. Eddie Lester
    PA-Brian J. Moore; J-Thompson
    * Elk Run says Lester, an underground mine manager, breached a non-compete contract signed Nov. 9, 2007, that extended through Dec. 31, 2010. Elk Run also seeks a preliminary injunction preventing Lester from working at a competitive mine within a 90-mile radius of Sylvester. Lester terminated his employment with Elk Run on April 2 and went to work for Brody Mining. Elk Run says that violates a one-year covenant not to compete should he quit or be discharged. The coal company says Lester “solicited Elk Run employees in an attempt to obtain their services.” Elk Run wants Lester to repay the differential of his “enhanced salary” from Jan. 1 to when he left the company.
    Case number: 08-C-114


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  • 09/19/08--00:00: THIS JUST IN: Boone County
  • May 21
    Avis Rent-A-Car System vs. Crystal Ferrell
    PA-Andrew N. Frye III; J-Thompson
    * Ferrell is accused of wrecking a rental vehicle in a single-car accident in September 2006 on U.S. 119 in Danville. Avis seeks $13,392 in damages plus pre-judgment interest, court costs and attorney fees.
    Case number: 08-C-115

    May 27
    Gary Dickerson Sr. and Terie Dickerson vs. Brenda Ball and Terry Ball and John Doe
    PA-Benjamin A. Conaway; J-Thompson
    * Plaintiffs claim title to property on which defendants in September 2005 placed a trailer home and a “building garage.” Dickersons say defendants are unlawfully possession their parcel of land, thus preventing them “to rent, use, enjoy or alter said property” and demand removal of all structures and that court order defendants “not to occupy, use or trespass upon plaintiff’s land” and pay damages.
    Case number: 08-C-116

    May 28
    Gary W. Weaver vs. Nine known and possibly other unknown heirs
    PA-Harry G. Shaffer III; J-Thompson
    * Weaver seeks a petition to partition property owned and divided by Priscilla Weaver and heirs on Toneys Branch in the Sherman District of Boone County.
    Case number: 08-C-118

    May 30
    Jerry R. Dolin vs. Mountain Edge Mining Inc. of Beckley and Logan Fork Coal Co.
    PA-Douglas V. Atkins; J-Thompson
    * Dolin seeks damages for head, neck, shoulder and back injuries caused by loose coal that fell on him while working underground in the Logan Fork Mine. He says defendants were negligent, careless and reckless in failing to maintain their mine site in a reasonably safe condition.
    Case number: 08-C-120


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