ELKINS – Melvin Heckel convinced jurors that a negligent doctor blinded him, but now the doctor claims to possess proof that Heckel faked blindness.
Osteopath Kenneth D'Amato has sent Randolph Circuit Judge John Henning videotape of Heckel working seven days at a construction site.
D'Amato's attorney, D. C. Offutt Jr., wrote to Henning that, "Time after time, Melvin Heckel can be observed doing the exact activities he consistently testified under oath that he could no longer perform."
Offutt requested relief from a $1,858,300 verdict that jurors awarded in January 2006.
Offutt told Henning that Heckel perpetrated a fraud on the court.
Heckel's attorney disputes Offutt's claims.
"I think it's fortunate that lawyers enjoy immunity so when they make irresponsible statements they don't have to face the consequences," said Kent Carper, Heckel's attorney.
Carper said court records from last year's trial show that Heckel's treating physician referred him to the Cleveland Clinic, West Virginia University and Johns Hopkins.
"We did not send him to any of those doctors," Carper said. "The opinions of these physicians are based upon their examinations and impressions. They're based on medicine.
"D'Amato fired his previously lawyers because he didn't like the way the trial went. These new lawyers didn't try the case."
Carper said the medical evidence from the trial is clear.
"They (D'Amato's new attorneys) don't understand what the term legally blind is," Carper said. "They need to study up on it, and I'll give them the chance.
"They claim that we said he (Heckel) was totally blind. If you can see anywhere in the court transcripts that we said he was totally blind, I'd like for you to show it to me."
Heckel apparently took out an Elkins city permit for a commercial building on Martin Street.
According to Offutt, private investigator Bill Pauer videotaped Heckel at the site for 50 hours on seven days from Dec. 11 to Dec. 19.
"He is seen reading, supervising, measuring, lifting, hammering, shoveling, raking, using a wheelbarrow, operating dangerous power equipment, operating heavy equipment, operating a motor vehicle, and guiding truck drivers as they deliver loads of gravel and pipe," Offutt wrote. "Melvin Heckel, a man 69 years of age, is in outstanding physical condition.
"For seven consecutive business days, Melvin Heckel was seen arriving at the construction site early in the morning and staying into the evening."
D'Amato operated on Heckel's spine in 2002 at Davis Memorial Hospital. After leaving the recovery room Heckel began to complain of sight loss.
He sued the doctor and the hospital. The hospital settled for $350,000.
Last year's jury verdict against D'Amato was the highest medical malpractice award ever in Randolph County, according to Carper.
D'Amato sought to remove that distinction. He moved for a new trial. Henning denied the motion last May.
D'Amato petitioned the West Virginia Supreme Court of Appeals for a new trial. The case awaits action there.
According to Offutt, Heckel filed a response to the appeal Nov. 22, stating that he was legally blind and he came out of surgery blind.
He wrote, "Mr. Heckel continues to materially misrepresent his condition in formal legal documents ..."
Carper said a hearing is scheduled before Henning on D'Amato's motion on March 19.
Carper said Offutt is attempting a "smear job" on his client.
"I'm deeply disappoined that Mr. Offutt would send this matter to you before Judge Hennings ruled on it," Carper told The Record. "Mr. Heckel is a very fine person.
"These lawyer-talk words are just that -- lawyer talk. I do my litigating in a courtroom."