CHARLESTON – In a ruling that doesn’t come as a surprise for those who watched oral arguments, the state Supreme Court has affirmed court-imposed sanctions against American Electric Power.

Marshall County Circuit Court Judge David Hummel sanctioned AEP in a case involving a fatal accident, dismissing the company’s cross-claims against three other companies. During January’s arguments, justices Menis Ketchum and Robin Davis were less than receptive to AEP’s appeal.

The sanctions were entered after the law firm Jackson Kelly discovered some electronically stored information potentially relevant to the case existed but had not been disclosed to the plaintiffs. It had been in the possession of AEP’s former counsel, Swartz Campbell.

“While the Petitioners attempt to downplay the gravity of their violation of the scheduling order, this Court has repeatedly stated that it does not condone such conduct when done so willfully,” says the opinion, released April 1.

“The magnitude of the violation of the scheduling order in this case stems from the massive volume of documents that went completely unchecked by the Petitioners and their former counsel during the discovery process.

“The existence of these documents in the computer capture was known to both the Petitioners and the Petitioners’ former counsel, yet there was a complete failure to examine those documents for discovery purposes causing the circuit court to conclude such failure to be willful and an attempt to subvert the discovery process.”

Ketchum and Davis on Jan. 23 made things tough for Michael Leahey of Jackson Kelly as he tried to explain why an evidentiary hearing was needed to address Marshall County Circuit Court Judge David Hummel’s ruling of sanctions.

The sanctions dismissed AEP’s cross-claims against Pullman Power, Structural Group and Ershigs, Inc., over a chimney stack fire that killed Gerald Talbert and injured David Earley and Timothy Wells.

AEP and Ohio Power Company blamed those companies in their cross-claims for their performance of the work in constructing the chimney stack.

The examination of Leahey during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas Mannion, who represented Pullman and Structural, not say anything that would lose him the case.

And when Tiffany Durst, who was arguing for Ershigs, Inc., reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”

Durst responded, “I don’t want to even begin to answer that question.”

At the conclusion of Durst’s and Mannion’s time, Leahey arose to reply. He said the decision to go before the justices again was “against my better judgment.”

The scheduling order at issue set a Jan. 14, 2011 deadline for discovery. A trial was scheduled for three months later.

Prior to trial, the existence of 750,000 to 1,500,000 documents came to light. In April 2011, the defendants in AEP’s cross-claims moved for sanctions.

AEP and Ohio Power wanted an evidentiary hearing to discuss whether the discovery violation was made in bad faith.

Davis and Ketchum said no case law existed that said an evidentiary hearing was required. The decision reflected that.

“When the circuit court stated on the record its decision to dismiss the cross-claims and to convert the prior oral arguments and proffers made at the pretrial hearing into the evidentiary hearing, there was no objection raised at that time or thereafter by the Petitioners,” it says.

“Even though the circuit court notes objections and exceptions in its order imposing sanctions, there was no specific objection or concern raised by the Petitioners either in the order or during the discussion regarding the sanctions after the circuit court ruled regarding the evidentiary hearing.

“Moreover, the final order in this matter was not entered for months after the circuit court stated its intentions regarding the evidentiary hearing on the record, yet there is nothing in the appendix record that was filed by the Petitioners indicating any opposition to how the circuit court was handling the evidentiary hearing.”

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

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