Wednesday, Sept. 18
Marshall University, Huntington
Joan C. Edwards Performing Arts Center

1. Clinton San Francisco and Jessie San Francisco v. Wendy's International, Inc. - 33284 - This is an appeal by the plaintiffs below, who filed a lawsuit for injuries allegedly caused by eating an uncooked hamburger prepared by the defendant. The Circuit Court of Kanawha County granted summary judgment in favor of the defendant, after concluding that testimony about causation offered by two plaintiff's experts would not be admissible, and therefore the case could not proceed to a jury trial. On appeal, plaintiffs contend that the circuit court was unduly restrictive in exercising its gatekeeper function under Rule 702 of the Rules of Evidence. In response, the defendant argues that the trial court properly concluded that one expert was not qualified to testify about the cause of food borne illness, and that another expert's theory was not based upon reliable science. (Clinton and Jessie San Francisco are represented by Guy R. Bucci and D. Blake Carter, Jr., Bucci, Bailey & Javins, Charleston WV and Pamela Lambert, Gilbert WV. Wendy's International is represented by Teresa A. Kleeh and Scott E. Johnson, Steptoe & Johnson PLLC, Charleston WV.)

2. Colgan Air, Inc. v. WV HRC & Rao Zahid Khan - 33355 - This is an appeal by Colgan Air from a decision by the West Virginia Human Rights Commission ("HRC"). The HRC concluded that the company had violated the Human Rights Act by creating or not preventing a hostile work environment for one of its employees, Mr. Khan, who was a co-pilot in a Huntington-based flight crew, and was of Pakistani descent and Muslim religion. Mr. Khan was terminated in October 2001 after failing a required proficiency check. He filed a complaint with the HRC, and the case was heard by an Administrative Law Judge ("ALJ"). The ALJ ultimately concluded that the company had not discriminated against Mr. Khan, because company management was not aware of the initial harassment, and once management became aware, it took action. Further, the ALJ concluded that the company did not subject Mr. Khan to disparate treatment by not offering him retraining after the failed proficiency check; in view of the financial position of the regional airlines following the events of September 11, 2001, the company acted fairly and consistently. On review, the HRC reversed the conclusions of the ALJ, after determining that Mr. Khan did report the harassment to an employee with supervisory responsibilities, and therefore liability could be imputed to the company. Further, the HRC concluded that the company provided other employees with retraining, so it should have treated Mr. Khan the same way. On appeal, Colgan Air argues that the HRC should not have re-examined the conclusions of the ALJ, and further argues that the HRC wrongly concluded that liability should be imputed to the company. Khan responds that the HRC properly viewed the evidence as a whole, and that the company does not dispute that a hostile work environment existed. (Colgan Air is represented by Brian J. Moore, Jackson Kelly, PLLC, Charleston WV and Mark A. Dombroff and Shaleeza Altaf, McLean VA, admitted pro hac vice. The West Virginia Human Rights Commission is represented by Richard M. Riffe, Assistant Attorney General, Civil Rights Division, Office of the Attorney General, Charleston WV. Rao Zahid Khan is represented by Dwight J. Staples, Henderson, Hendersnn & Staples, L.C., Huntington WV. An amicus curiae brief was filed by The Regional Airline Association, represented by Scott Caudill, Caudill Law, Charleston WV.)

3. State of W. Va. v. Thomas MacPhee - 33297 - Thomas MacPhee appeals his McDowell County jury conviction for the first degree murder of Lori Keaton. MacPhee argues that the evidence presented at trial was insufficient to convict him. He asserts that his exculpatory statement was not rebutted by the State. MacPhee alleged that while he was outside on the front porch, another individual, Danny England, killed Lori Keaton during an argument. MacPhee asserts that Danny England threatened him into assisting with disposal of the body and the victim's car. Although the body was never found, the State did locate a site with personal effects from the victim, and also located her car. MacPhee admits he disposed of the car, and does not appeal his grand larceny conviction. MacPhee argues that he was an outsider from New Jersey who was convicted by a McDowell County jury based upon insufficient evidence and improper argument by the prosecutor. In response, the State disputes that MacPhee's statement is exculpatory, and also points out that MacPhee denied involvement and only gave the statement implicating Danny England when he was confronted with physical evidence. The State asserts that there was ample circumstantial evidence to sustain the conviction. (Thomas MacPhee is represented by E. Taylor George and Robert C. Catlett, Assistant Public Defenders, Kanawha County Public Defender Office, Charleston WV. The State of West Virginia is represented by Sidney H. Bell, Prosecuting Attorney of McDowell County. )

4. Edward W. Cantley, Sr., et al. v. Lincoln County Commission - 33345 - . Plaintiffs below filed an action against the Lincoln County Commission seeking recovery for damages sustained as a result of two Mud River floods in the course of a week in November 2003. The plaintiffs asserted that the county commission had negligently maintained the river for a number of years, despite having statutory power to act, and despite numerous warnings issued by the U.S. Army Corps of Engineers. The Circuit Court of Lincoln County dismissed the plaintiff's complaint. The circuit court determined that the county commission did not have a duty to engage in flood prevention, and that another entity formed in 1965, known as the "Middle Fork Drainage, Levee and Reclamation District of Lincoln County," has sole power to engage in flood prevention on that part of the Mud River, and that the numerous warnings issued by the Corps of Engineers were directed to the drainage district, not to the county commission. On appeal, the plaintiffs argue that the county commission does have a statutory obligation to alleviate flooding, and that the drainage district is a defunct entity. At the very least, the plaintiff argues, it should be allowed to conduct discovery on the nature of the relationship between the county commission and the drainage district. The county commission responds that the plaintiffs simply sued the wrong entity, and that the drainage district is capable of being sued. (Edward W. Cantley, Sr., et al. are represented by Rudolph L. DiTrapano, Lonnie C. Simmons and Heather M. Langeland, DiTrapano, Barrett & DiPiero, PLLC, Charleston WV and Jason E. Huber, Forman & Huber, Charleston WV. The Lincoln County Commission is represented by R. Carter Elkins and Andrew P. Ballard, Campbell Woods, PLLC, Huntington WV. )

Motion Docket
Wednesday, Sept. 19

1. Bernard Boggs, Administrator v. Camden-Clark Memorial Hospital Corp. - 063408 - Defendant hospital appeals from an adverse jury verdict in this wrongful death action. Judgment was entered against defendant hospital in the amount of $4,834,380.

2. Bernard Boggs, Administrator v. Camden-Clark Memorial Hospital Corp. - 070578 - Defendant hospital appeals from an adverse jury verdict in this wrongful death action. Judgment was entered against defendant hospital in the amount of $4,834,380.

3. State of W. Va. v. Kyle Clark Hawkins - 070457 - Defendant appeals from his conviction for driving while intoxicated causing death following a jury trial.

4. State of W. Va. v. Mark Allen Wilson - 070892 - Defendant appeals his convictions for various sex crimes following a jury trial.

5. Richard C. Rashid, M.D. v. Muhib Tarakji, M.D. - 070444 - This civil action was involuntarily dismissed under Rule 41(b) for failure to pay a twenty dollar fee. Petitioner appeals by arguing that the case was dismissed without prior notice and without an opportunity to be heard as mandated by case law.

6. State of W. Va. v. Barbara A. Matheny - 071083 - Barbara A. Matheny appeals her conviction for Operating or Attempting to Operate a Clandestine Drug Laboratory.

7. Johnny Ray Miller v. Thomas McBride, Warden - 071595 - Johnny Ray Miller appeals the circuit court's order denying him habeas corpus relief. Petitioner seeks to expand In the Matter of: Renewed Investigation of the State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006), to include forensic evidence other than serological evidence – in his case, hair samples.

8. Michael Dennis v. W. Va. Parole Board and Benita F. Murphy, Chairperson - 071598 - Michael Dennis appeals the circuit court's order which dismissed his petition for declaratory judgment and mandamus. Petitioner seeks a declaration that the Parole Board has improperly failed to credit him with time served on a robbery sentence, and seeks a writ of mandamus ordering the Board to so credit him. - Rescheduled to Oct. 23.

9. Betty K. and Johnny L. Neely v. Belk Incorporated, Crown Americn Crossroads, LLC dba Crossroads Mall & Newport Tracing Co. - 071617 - Petitioners appeal the January 2, 2007, Order of the Raleigh County Circuit Court granting a Motion to Set Aside the Verdict and Award a New Trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure. The jury found that none of the defendants were negligent and did not find them liable for the plaintiffs' injuries.

Argument Docket
Wednesday, Sept. 19

1. SER Jeanette Packard v. Hon. Roger L. Perry, Judge, et al. - 33214 - Petitioner seeks to prohibit enforcement of an order relation to an award of medical expenses incurred prior to majority. - Justice Maynard disqualified. Judge Egnor sitting by temporary assignment.

2. In Re: Cesar L. - 33317 - Mother appeals circuit court order denying her motion to reopen abuse and neglect proceeding and denying her request to present her own testimony in support of that motion as to the circumstances of duress alleged to have occurred in the voluntary relinquishment of her parental rights to child.

3. SER City of Charles Town v. County Commission of Jefferson County, et al. - 33454 - Petitioner, City of Charles Town, seek a writ of mandamus directing Jefferson County Commission to annex six individual contiguous parcels of land into the corporate limits of the City.

SER City of Charles Town v. County Commission of Jefferson County, et al. - 33455 - Petitioner, City of Charles Town, seek a writ of mandamus directing Jefferson County Commission to annex seventeen individual parcels of land in two tracts into the corporate limits of the City.

SER First Charles Town Group, Inc., et al. v. County Comm. of Jefferson Co., et al. - 33456 - Petitioners (real property owners) seeks a writ of mandamus against Jefferson County Commission to require annexation of six parcels of land located in Jefferson County.

SER New Vision Properties, II, Inc., et al. v. County Comm. of Jefferson Co. et al. - 33457 - Petitioner seek a writ of mandamus to direct the respondents (County Commission) to annex 17 parcels of land owned by the petitioners.

4. Charles B. Zirkle v. Elkins Road Public Service District - 33307 - Plaintiff Charles Zirkle appeals the circuit court's order which dismissed with prejudice his claims against Defendants The Upshur County Commission and The Elkins Road Public Service District.

5. Jonathan Brian Walker v. Tara C. Sharma, M.D. - 33308 - Plaintiff appeals from the circuit court's order entered pursuant to Rule 50 of the West Virginia Rules of Civil Procedure granting judgment as a matter of law in favor of the defendant doctor in this medical malpractice action.

6. Esther Gibson v. Little General Store, Inc. - 33313 - Plaintiff appeals from the circuit court's order granting summary judgment in favor of defendant in this personal injury action.

7. Angela Adkins v. Christopher Adkins - 33312 - Petitioner father appeals directly to this Court from the family court's order denying his petition to reduce his monthly child support obligation until he is released from prison and returns to work. - To be presented on briefs only without oral argument.

8. Frieda Carol Kelly v. City of Williamson, et al. - 33311 - Plaintiffs appeal from the circuit court's order granting summary judgment in favor of defendants in this action for battery, false swearing, outrageous conduct and negligent hiring and retention of defendant police officer by defendant city.

9. State of W. Va. v. Daniel B. Bingman - 33299 - Defendant appeals from his misdemeanor conviction for petty larceny. Defendant seeks a reversal of his conviction and a dismissal of the charges.

10. Heather C. Washington v. Charles D. Washington - 32980 - Petitioner husband appeals from the circuit court's order dismissing the petition for appeal as untimely. Petitioner seeks a remand to the circuit court with directions that it make a finding that the appeal was timely filed and to consider the appeal on the merits.

11. SER Aaron Michael Pankey v. Hon. Alfred E. Ferguson, Judge - 33384 - Defendant seeks issuance of a writ of mandamus arguing that the circuit court has acted with unreasonable delay in conducting an omnibus hearing in his underlying habeas corpus petition. - To be presented on briefs only without oral argument.

12. SER Philip Reese Bush v. Hon. Martin J. Gaughan, Judge - 33385 - Dismissed.

Writ Conference
Thursday, Sept. 20

1. State of West Virginia v. James B. Robertson, No. 072683 (Filed 8/28/07) Defendant, found not guilty of First Degree Arson by reason of insanity, appeals circuit court order denying motion brought by DHHR and mental hospital to release him from mental hospital based upon testimony that he is no longer mentally ill.

2. In the Matter of: Alberta Marie Call, No. 072600 (Filed 8/20/07) Sons of intestate decedent appeal circuit court order distributing the proceeds of wrongful death settlement in unequal shares.

3. In the Matter of: Jasmyn M., No. 072624 (Filed 8/22/07) Mother appeals circuit court order terminating her parental rights.

4. In the Matter of: Shaide, Jessica and Samantha W., No. 072713 (Filed 8/30/07) Mother appeals circuit court order terminating her parental rights.

5. In the Matter of: Shaide, Jessica and Samantha W., No. 072714 (Father's Petition) (Filed 8/30/07) Father appeals circuit court order terminating his parental rights.

6. State of West Virginia v. Jeffrey Withrow, No. 072522 (Filed 8/7/07) Petitioner/Defendant appeals his sentence following his conviction on one count of trespass and one count of destruction of property.

7. In the Matter of: Judith N., Christine N., Samantha S., and Gwendolyn S., No. 072564 (Filed 8/14/07) Petitioner/Father appeals the termination of his parental rights.

8. In the Matter of: Judith N., Christine N., Samantha S., and Gwendolyn S., No. 072572 (Filed 8/1607) Petitioner/Father appeals the termination of his parental rights and the court's refusal to extend his improvement period.

9. In the Matter of: Katherine B. & Dakota B., No. 072570 (Filed 8/16/07) Petitioner/Mother appeals the denial of her Motion for an improvement period in regard to Dakota B. and the denial of her Motion for relief from the termination of parental rights with regard to Katie. She also appeals the termination of her parental rights to Dakota.

10. In the Matter of: Ronald B. & Christopher B., No. 072543 (Filed 8/10/07) Petitioner/Father appeals his adjudication and the termination of his parental rights.

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