WEST VIRGINIA RECORD

CHARLESTON – The nursing home company at the center of a high-profile case – and now a high-profile national news story – says the discovery of an undisclosed jet sale between the husband of West Virginia Supreme Court Justice Robin Jean Davis and the plaintiffs attorney in the case is “extremely troubling.”

“The lack of transparency in West Virginia, at least in this instance, is extremely troubling," said a statement released by HCR ManorCare, which paid out a $38 million settlement in the nursing home abuse case after losing its case earlier this year. "We are disturbed and alarmed and reviewing all available legal options as events continue to unfold."

HCR Manorcare officials said they didn’t know about the airplane deal between Davis’ husband Scott Segal, a prominent Charleston attorney, and Michael Fuller – whose Mississippi-based law firm represented the plaintiffs in a $91 million verdict that was reduced to $38 million by a state Supreme Court opinion authored by Davis earlier this year – until the ABC News report earlier this week.

Company officials said they now are reviewing their legal options.

“Ever since the Douglas decision was announced, we have shared Justice (Allen) Loughry's opinion, expressed in his strongly-worded dissent, that the majority was attempting to ‘hide its shockingly result oriented analysis’ and his observation that, 'without question, the biases and whims of the majority are on full display in its boldly tortured analysis,’” the company said in its statement.

“The ABC News story may have revealed some of the motivations to hide and torture that analysis, and it may have exposed a relationship that speaks to the majority's ‘whims’ and ‘biases.’ In the many states in which we do business, there is an expectation of transparency and fairness for the judges and justices in high courts. The lack of transparency in West Virginia, at least in this instance, is extremely troubling. We are disturbed and alarmed and reviewing all available legal options as events there continue to unfold.”

The ABC report that aired Tuesday on ABC World News Tonight and Nightline was titled “Lear Jet Justice in West Virginia? A ‘Circus Masquerading as a Court.’” It revealed Segal sold a Learjet to Fuller for more than $1 and that Fuller helped raise thousands of dollars for Davis’ 2012 re-election campaign. The jet sale took place after the original jury verdict, but before the case was heard by the state Supreme Court.

The report, by the network’s chief investigative correspondent, Brian Ross, reveals that Fuller of McHugh Fuller Law Group PLLC purchased a Lear Jet from Segal and contributed and campaigned for contributions to Davis’s re-election in 2012 – as he was handling the nursing home abuse case headed for the state’s high court.

Earlier this year, Davis authored the majority opinion upholding a jury verdict for Fuller’s client, but cut the punitive damages award from $80 million to about $32 million. The original jury verdict was worth more than $90 million.

Fuller’s firm received a payout worth more than $17 million, according to the ABC News report.

One legal expert interviewed by the network argues that Davis should have disclosed the jet sale.

“This does not look good for the rule of law,” said James Sample, an ethics professor at Hofstra University Law School. “A million-dollar sale of an airplane while litigation involving the lawyer who purchases the airplane is pending before the court? Absolutely no question. It’s proper to disclose, and it is improper to not disclose.”

“This is a circus masquerading as a court,” Sample told ABC News.

Davis did not disclose the deal – reported by the network to be worth $1.35 million – saying she was under no obligation because it involved her husband.

“With regards to my husband’s plane, let me ... be abundantly clear, the plane is owned by my husband, it was sold through a broker, an airplane broker, and I understand that ABC has spoken to my husband, and to the broker,” she told ABC News. “Other than that, I have nothing else to say to them. Have a great day.”

Segal similarly told the network the jet was his law firm’s asset to sell and that Davis “doesn’t have anything to do with” his firm.

In a three-page statement, released minutes before the report was set to air, Davis denied the sale price was a secret. She said she did not know the price Segal’s firm received until Tuesday, when she asked him to look it up.

“The firm received $1,001,688.07,” Davis said. “That amount, as with the Blue Book value on any automobile, was well within the market range of planes or that type, model and age.”

As to whether she should have recused herself from Manor Care Inc. v. Douglas because the plane was purchased by an attorney in the case, Davis said no.

“In fact, it never occurred to me for a moment to consider that this would be a reason for recusal because it was a distant transaction,” she explained. “I was not involved in the details of the transaction and only learned about them much after the fact.

“It involved a person I don’t know socially and with whom my husband has had no other business dealings. When the case at issue was before the court, there was no pending financial transaction between my husband, any of his companies, or any litigant or lawyer in the case. The plane had been sold in an arms-length transaction on the open market years before.

“There was absolutely no reason for my recusal.”

Campaign contributions and lawyer’s hiring

The ABC News report also highlighted Fuller’s $1,000 contribution to Davis’ 2012 re-election campaign.

In addition to his check, Fuller admitted to advocating for the chief justice, helping to raise more than $35,000 for Davis. Many of the donors were from Florida and Mississippi, where Fuller’s legal practice is based.

Davis quickly shot down allegations of improper campaign contributions, noting that the state’s Code of Judicial Ethics prohibits judicial candidates from soliciting contributions or even from knowing the identities of people who contribute to their campaigns.

“I have never once looked at a list of my campaign contributors,” she said. “I can’t tell you who did or did not contribute to my campaigns. It is of little interest to me.”

According to the network’s report, Fuller also hired Paul Farrell, who worked at the law firm founded by Justice Menis Ketchum and currently employing Ketchum’s son.

The move forced Ketchum to recuse himself from the nursing home case.

“The new details being reported by ABC News, which were previously never disclosed, unfortunately raise ethical concerns and reflect negatively upon West Virginia’s legal system,” said Roman Stauffer of West Virginia Citizens Against Lawsuit Abuse. “It’s time for us to get serious about ensuring that every West Virginian has access to a fair and impartial court system.

“For many years millionaire personal injury attorneys have wielded tremendous access and influence over our state’s legal system, our legislative bodies and executive branch. They have used our legal system and their influence and power to enrich themselves as many hard-working West Virginian’s struggle to feed their families and wish they could see more jobs come to our state.”

Justice accuses crew of being ‘underhanded’

Davis said the ABC News report is unfair.

First, she noted, it did not report that the case was a 4-1 decision. She also took issue with the so-called “experts” – Sample and Steven Gillers, an ethics professor at New York University Law School.

The justice said they “clearly” have no knowledge of West Virginia or its system of recusal.

“My fellow justices and I consistently follow the recusal process followed by every federal court in the country and the United States Supreme Court,” she said. “If my husband has a financial interest in a case that comes before the Supreme Court, I have always recused myself and I shall always do so.”

Davis said if “this unfair route” is followed, women can’t serve as judges if their husbands have successful law practices.

“My husband has dealt with every major defense firm in the state and hundreds of defense attorneys,” she said. “It would be virtually impossible for me to serve on any case at any time if I had to recuse myself from any case involving any person with whom my husband has ever had a business transaction.

“Not only was the story not fair, but the way ABC News presented themselves was beneath contempt.”

Davis said that when the network originally contacted the high court, it was told they were doing a story about nursing home cases.

A producer then called to say Ross wanted to talk to Davis about one case in particular and would be coming to Charleston for an interview.

“For 18 years I have had a policy of not discussing cases,” Davis said. “The court speaks through its opinions. That’s what I instructed my public information officer to tell Brian Ross when he arrived.”

At first, she said, the crew staked out the parking lot in hopes of ambushing her. But later came upstairs to the door outside the justices’ chamber and demanded to see her. Davis arrived at work early that day.

“I admit that the West Virginia girl in me refused to be bullied,” Davis said. “They had not made an appointment and they were rude and condescending to my security staff.

“I told the court’s public information officer again to tell Brian Ross that I was not going to discuss any case and that the court speaks through its opinions. When she did that, he said, ‘Yes, I’m sure. But that’s not what I’m here to talk about.’”

That’s when she and the court staff discovered the real reason for the crew’s visit, Davis said.

“If he had just told us what he wanted in advance, we could have sat down and had a civil discussion,” she said. “They even tried to ambush my husband in a similar manner by hiding in cars.

“Both Scott and I did eventually answer ABC News’ questions when the questioners were less aggressive and underhanded.”

Davis said she staunchly believes in freedom of the press.

“I am an absolute defender of all press freedoms, and I believe fully I have done my best to be as accessible as I can be in my public position," she said.