Heartland of Martinsburg

MARTINSBURG – Attorneys representing a nursing and rehabilitation center in Martinsburg say they can’t represent it in a trial in January because they will be busy with another lawsuit against the parent company.

Attorney John A. Hess, of Anspach Law in Huntington, says he will be busy with a trial in Kanawha Circuit Court when a trial in Berkeley Circuit Court against Heartland of Martinsburg is scheduled to begin.

The Kanawha trial is against HCR Manor Care and another of its West Virginia Heartland facilities. Hess said the Kanawha trial will begin Jan. 13 and will last for more than one week because of complex medical malpractice issues.

The Berkeley lawsuit on behalf of the estate of Harry Lee Noll had a scheduled trial date of Jan. 14.

Hess

The complaint alleged Noll was a patient at Heartland of Martinsburg from March 19, 2010, until July 26, 2010. While there, the staff at Heartland allegedly violated his rights to be free from mental abuse and neglect, to receive care that promoted his quality of life and to be treated with consideration and respect.

Noll developed pressure sores in his time at Heartland, the complaint says.

“As a direct and proximate result of these breaches, all resulting from defects and/or conditions that were known to the Manor Care defendants, Harry Noll suffered bodily injury and resulting pain and suffering, gross indignities, degradation, humiliation, disability and physical impairment, mental anguish, inconvenience, extreme emotional distress, loss of capacity for enjoyment of life, discomfort, medical, hospital and nursing expenses and aggravation of previously existing conditions,” the complaint says.

Heartland filed an answer on June 22 denying the complaint’s allegations.

Representing the plaintiff is Peter D. Giglione and Ryan J. Duffy of Wilkes & McHugh in Pittsburgh.

The stakes in lawsuits against HCR Manor Care are much higher in the wake of a Kanawha County jury verdict of more than $90 million against Heartland of Charleston.

The verdict included $80 million in punitive damages and has been appealed to the state Supreme Court of Appeals.

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

On May 14, 2011, Kimberly Rhodes was a patron at the defendant’s restaurant when she was injured in the restroom, according to a complaint filed May 14 in Kanawha Circuit Court.

Rhodes claims she went to use the restroom and was sitting on the toilet when it collapsed, which caused her to suffer serious and permanent injuries to her left hip and left lower extremity.

The toilet collapsed by virtue of the defendant failing to maintain its facility and Rhodes landed on her left hip, according to the suit.

Rhodes claims as a result of the defendant’s negligence, her injuries necessitated medical treatment; she sustained pain and discomfort; and her capacity to enjoy a natural and fruitful life has been permanently altered and impaired.

As a result of the defendant’s negligence, Rhodes also incurred hospital, physician and other medical and drug expenses in excess of $2,000, according to the suit.

Rhodes is seeking compensatory damages with pre- and post-judgment interest. She is representing herself.

The case has been assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court case number: 13-C-952

Bradley W. Harris purchased a residence from AB in September 2006, according to a complaint filed April 29 in Putnam Circuit Court.

Harris claims when he put the residence on the market in 2012, Advantage Home & Environment Inspections found numerous problems with the residence.

The Advantage home inspection report indicated there were several structural deficiencies, which allowed for water intrusion and which resulted in damage to the residence, according to the suit.

Harris claims improper installation of the dishwasher caused a leak, which resulted in additional structural damage.

Advantage also noted improper piping, an incorrectly sized circuit breaker for the furnace and the absence of a GFCI breaker in the garage, according to the suit.

Harris claims when he purchased the residence he was not made aware of any of the conditions Advantage discovered.

Jarrett General Contracting Company Inc. was retained to perform repairs on the residence and Harris paid Jarrett $35,414.80 for the repairs necessitated by the improper design and construction of the residence, according to the suit.

Harris claims AB negligently designed and constructed the residence, which caused him to suffer damages.

AB breached its contract with Harris because of the poorly designed and constructed residence, which caused the residence to sustain extensive damage and required repairs and corrections, which caused Harris damages, according to the suit.

Harris is seeking compensatory damages. He is being represented by Robert H. Sweeney Jr. and Allison M. Subacz of Jenkins Fenstermaker PLLC.

Putnam Circuit Court case number: 13-C-125

Anyone who’s played baseball or softball for any length of time knows how fun it is to slide. Whether you do it feet or head first, once you get the hang of it, it’s a thrilling experience – especially when you beat the tag and are safe.

Sliding is so much fun, some players almost get addicted to it, and the coach has to remind them:

• “You can’t get on first by sliding.”

• “You don’t need to slide into every base when you’ve hit a home run.”

• “Our team’s not at bat. You’re the baseman. The runner slides, not the baseman.”

Sliding is kind of like dancing. It comes naturally to some people, others have to work at it, and some never quite master it.

It can be harmful, too, if not done properly, but baseball and softball are full of hazards: bats swinging, balls flying, excited youths running at breakneck speed.

There’s always the possibility of getting beaned by a pitch when you’re batting, being struck by a line drive when you’re playing infield, colliding with a teammate in pursuit of a pop fly, etc.

Being cautious and wearing the right equipment can help minimize the risks, but they’re still there. Anyone who expects to play ball without ever getting hurt is living in a dreamworld.

You can even get hurt at practice, like Courtney Roberts did three years ago when she was 14. She broke her ankle while participating in a sliding drill.

Did she suck it up, convalesce, and come back stronger?

Not exactly. Several months later, her parents filed suit in circuit court against the Martinsburg-Berkeley County Softball League. They now allege that the three-year-old ankle injury will prevent their daughter from earning millions of dollars as a registered nurse.

Defense attorneys have asked for a summary judgment in favor of the league.

There wouldn’t have been a suit in the first place if the Robertses had just let it slide.

Ronnie Joe Lusk, an employee of X Trucking, was also named as a defendant in the suit.

On May 13, 2011, Kathy Mitchell was a passenger in a vehicle when Lusk, who was operating a 2007 International Rhodes Truck and acting within the scope of his employment at X Trucking, collided with Mitchell’s vehicle, according to a complaint filed May 13 in Kanawha Circuit Court.

Mitchell claims Lusk operated his vehicle in a negligent manner, failed to maintain control and negligently collided with the vehicle Mitchell was in, and caused her permanent personal injuries and damages.

X Trucking is liable for the negligent acts of its employees and agents, according to the suit.

Mitchell claims as a result of the defendants’ negligence, she incurred damages; medical expenses; lost income; pain and suffering; emotional distress; inconvenience; and the loss of ability to enjoy life.

Mitchell is seeking compensatory damages with pre- and post-judgment interest. She is being represented by R. Michael Martin of Michael Martin & Associates.

The case has been assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court case number: 13-C-947

Sheridan

WINFIELD – A couple are suing GE Capital Bank for violating the West Virginia Consumer Credit and Protection Act  and causing them damages.

Ricky Henderson and Tracy Henderson became in arrears upon an alleged indebtedness to the defendant and GE began to engage in collection of the indebtedness, according to a complaint filed May 7 in Putnam Circuit Court.

The Hendersons claims they retained counsel to represented their interest in connection with consumer indebtedness and they informed the defendant of their representation.

GE violated the West Virginia Consumer Credit and Protection Act by continuing to attempt to collect debt from the Hendersons after they were represented by counsel, according to the suit.

The Hendersons claim GE violated West Virginia code by causing their phone to ring repeatedly or continuously or at unusual times or at times known to be inconvenient, with the intent to annoy, abuse or oppress them.

The defendant invaded the Hendersons’ privacy  and damaged their right of privacy, according to the suit.

The Hendersons are seeking compensatory and punitive damages. They are being represented by Benjamin Sheridan of Klein & Sheridan LC.

Putnam Circuit Court case number: 13-C-142

Huffman

By TIMOTHY HUFFMAN

Containing Workers’ Compensation claim costs have always been a matter of concern for the chemical industry in West Virginia.

The current medical claims management rule, which has been instrumental in containing medical costs, has come under increasing pressure with complaints of unfairness to claimants who are unable to hire attorneys for representation because of limitations in the Workers’ Compensation statute.

In an effort to correct this asserted inequity, legislation was passed in the recently completed 2013 Regular Session of the West Virginia Legislature, changing the West Virginia Workers’ Compensation statute regarding the payment of attorney’s fees to a claimant’s attorney when medical treatment is involved. Legislative action was completed on House Bill 3069 on April 13, and it was signed by the Governor on May 1. The new law goes into effect on July 12.

Under H.B. 3069, when a claimant successfully prevails on an issue involving the denial of medical benefits, the claimant’s attorney may be entitled to reasonable costs and a reasonable hourly based fee for representation of the claimant. By the terms of the new law, the reasonable attorney’s fee cannot exceed $125 per hour and the total amount of attorney’s fees cannot exceed $500 for each litigated medical issue. There is also a cap of $2500 in each claim for the fees that can be paid for all medical issues over the life of the claim.

At the conclusion of litigation and if the claimant has successfully prevailed on the medical treatment issue, the claimant’s attorney has 30 days to file an appropriate fee petition with the employer or insurance carrier, subject to the hourly rate and total claim cost limitations.

Under the law prior to the passage of H.B. 3069, the attorney’s fee paid to lawyers who represented claimants in Workers’ Compensation matters was limited to 20 percent of an award of benefits granted, up to a maximum of 208 weeks of such benefits. Any contracts for fees over that 20 percent limitation were unenforceable and were considered to be contrary to the public policy of West Virginia.

There was no provision in the old law that allowed attorney fees to be paid where only medical treatment was involved in the Workers’ Compensation claim.

With the continued increase in litigated claims where only medical treatment issues are involved, the old law was not adequate to allow the claimant’s attorney to be compensated for their efforts.

At the urging of the claimant’s bar and with the blessing of the West Virginia Supreme Court of Appeals, through its access to justice initiative, H.B. 3069 was written, introduced and ultimately passed by the West Virginia Legislature. Considering that a number of surrounding states already have similar provisions for the payment of such fees, West Virginia’s adoption of its own provisions, is not surprising.

Timothy Huffman is an attorney in the Charleston office of Jackson Kelly. He is the leader of its Administrative Practice Group.

May 13
Gary E. Gates v. Debra Sweeney
PA- Joseph R. Ferretti; J- Wilkes
* Gates, of Jefferson County, alleges Sweeney, of Frederick County, Va., caused a traffic accident on Route 11 in Bunker Hill on Oct. 8, 2011. Gates says he was turning left when Sweeney attempted to pass him on the left in a no-passing zone.
Case number: 13-c-371

May 16
Jurius R. Brown, a minor, by David B. Brown, his next friend, and David B. Brown, individually v. Sharon J. Simpson
PA- Terrance L. Britt; J- Wilkes
* Jurius Brown says he was the passenger in a vehicle traveling on GM Access Road on Nov. 12 when Simpson performed an illegal U-turn in her vehicle and struck the car in which Brown was riding head-on. Brown claims the accident caused injuries to his body, body chemistry and psyche.
Case number: 13-c-377

May 17
Patricia and Hope Jaeger v. Berkeley County Health Department
PA- pro se; J- Silver
* The plaintiffs claim they obtained a temporary food permit in 2012 for their food stand Toothpickin’ but have been told by the Health Department that it will not issue a second temporary permit to the same address.
Case number: 13-c-381

SWVA Inc., Jonathan Newman and John O’Connor were also named as defendants in the suit.

Brenda Ellen Egan was employed by the defendants for approximately two months until her employment was wrongfully terminated on Oct. 16, 2011, according to a complaint filed May 9 in Cabell Circuit Court.

Egan claims during her employment, she consistently performed her duties in a satisfactory manner and met the reasonable expectations of the defendants.

On Oct. 16, 2011, the defendants willfully, maliciously and unlawful terminated Egan’s employment, according to the suit.

Egan claims as a result of the defendants’ actions, she suffered lost wages and benefits; indignity; embarrassment; humiliation; and annoyance and inconvenience.

The defendants’ actions constituted sexual harassment and/or created a hostile work environment, in violation of the West Virginia Human Rights Act, according to the suit.

Egan claims the defendants terminated her employment based on sex, either in whole or in part.

Egan is seeking compensatory and punitive damages with pre-judgment interest. She is being represented by Mark A. Atkinson of Atkinson & Polak PLLC.

The case has been assigned to Circuit Judge F. Jane Hustead.

Cabell Circuit Court case number: 13-C-315

Lin

CHARLES TOWN – Three months into his new career, West Virginia’s solicitor general is officially licensed to practice law in the state.

Lin, a Yale Law School graduate who also clerked for U.S. Supreme Court Justice Clarence Thomas, was the center of controversy earlier this year when it was revealed he did not have his law license in the state despite being hired by new state Attorney General Patrick Morrisey.

Lin was one of 46 individuals admitted to practice law in the state on May 15. In his three months without it, he could not sign briefs or participate in oral arguments.

“The Office of the Attorney General is pleased that this incredibly talented and experienced attorney is a member of the West Virginia Bar and our team,” said Beth Ryan, a spokesperson for Morrisey’s office.

“In the three short months since his arrival, Elbert has already contributed so much to the office and our state. It’s such a positive development to have someone of Elbert’s caliber engage in public service for West Virginia.”

During his time without a license, Lin’s job title was changed to senior assistant to the attorney general. His salary is $132,000.

Democrats in the House of Delegates objected to Lin’s hiring and lack of a license during their legislative session earlier this year. Del. Doug Reynolds and 10 co-sponsors introduced House Bill 2788 on March 1, which would have required attorneys hired by the State who have a salary exceeding $100,000 to have a license to practice law in the state at the time of the hire.

Morrisey called the bill childish and hyper-partisan.

“When the West Virginia Legislature should be dedicating its time on issues such as education reform and economic development, these delegates have introduced a bill that attempts to stop state offices and agencies, including the Attorney General’s Office, from hiring talented and well-qualified lawyers and professionals who will help our state save millions of dollars,” Morrisey said in March.

Morrisey continued that Lin’s hiring was a major victory for the state – “Part of the reason West Virginia needs to attract such incredible legal talent is that we need to begin reducing the millions of dollars the state currently pays for outside counsel. With top-shelf advocates in-house, we can save millions of dollars on outside counsel fees and end the cronyism that has plagued our state for too long.”

The bill’s co-sponsors were all Democrats. They were Tiffany Lawrence, Stephen Skinner, Josh Stowers, Isaac Sponaugle, Doug Skaff, Barbara Evans Fleischauer, Nancy Peoples Guthrie, Denise Campbell, David Walker and Justin Marcum.

Reynolds defended the legislation in a Charleston Gazette article. He said lawyers shouldn’t be hired by the State until they are ready to work in their full capacity.

“(They) shouldn’t go on the state payroll until they can hit the ground running,” he told the paper. “The people we hire for a job, they need to be able to do the job from day one.

“It affects all state agencies. We didn’t do this just for the Attorney General’s Office.”

Lin has also worked at the U.S. Department of Justice, and his most recent job was at Wiley Rein of Washington, D.C., and Northern Virginia.

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