SupCo calendar for 11/6 issue

By The West Virginia Record | Nov 2, 2006

Motion Docket
Tuesday, Nov. 14

1. Andrew Moten v. E. Douglas Stump, Comm'r, Dept. of Motor Vehicles - 061642 - Petitioner seeks an appeal from the Raleigh County Circuit Court which denied a Motion for Reconsideration and in the alternative, the Motion for Relief from Judgement entered on February 10, 2006.

2. WV Dept. of Health & Human Resources/Office of Health Facility Licensure & Certification v. WV HRC & Iran Gangopdhyay - 060965 - Department of Health and Human Resources appeals from a decision of the Human Rights Commission, which adopted the administrative law judge's final decision ruling that DHHR had engaged in discriminatory practices against complainant as a result of race and/or national origin.

3. State of WV v. Matthew Lucas Davis - 061544 - Petitioner appeals his sentence for DUI, third or subsequent offense, and driving while license suspended for DUI, third or subsequent offense. The court imposed two consecutive sentences of 1 to 3 years.

4. State of WV v. Jeremiah David Mongold - 061491 - Jeremiah David Mongold appeals his conviction for "Death of a Child by Custodian as a Result of Child Abuse" for which he was sentenced to 40 years in prison.

5. Todd Lyle Stoops v. Elizabeth P. Reynolds, etc.; Keith Huffman, etc.; and WV Public Employees Insurance Board - 061718 - Petitioner appeals from the circuit court's order denying his petition for a writ of mandamus finding that petitioner had failed to show a clear right to the relief that he sought.

6. State of WV v. Salvatore Richard Turrisi - 061733 - Defendant appeals from his breaking and entering conviction following a jury trial. He raises various evidentiary errors.

7. Ercelle E. Price v. Glen A. Wright, M.D.; and W. Va. University, University of West Virginia Board of Trustees - 061717 - Withdrawn.

8. Sandy George v. Fleetwood Retail Corp. of West Virginia, etc. v. C & R. Transport - 061987 - Plaintiff Sandy George appeals from the court's order dismissing her case and referring the parties to binding arbitration because of an "Agreement to Binding Arbitration" which she signed when purchasing a manufactured home.

9. SER Donald P. Gallagher v. Thomas L. McBride, Warden - 061899 - Petitioner appeals from the circuit court's order denying his petition for a writ of habeas corpus.

10. State of WV v. Michael Cummings - 061895 - Petitioner appeals his conviction for attempting to operate a clandestine drug laboratory and conspiring to commit the offense of attempting to operate a clandestine drug laboratory.

11. Sandra Sue Fullen, et al. v. Philips Electronics North America Corp. & Helen Andrysiak, et al. v. Philips Electronics North America Corp. - 060555 - Petitioners seek review of certified questions related to workers' compensation immunity and claims for workers injury and fraud, medical monitoring, fear of future disease and punitive damages.
QUESTION ONE: Does the West Virginia Workers' Compensation law, which provides that an employer "is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring" (W.Va. Code section 23-2-6), bar an employee's common law claims against his or her employer seeking (a) medical monitoring damages for negligently exposing the employee to a toxic substance in the workplace, (b) "fear-of-future-disease" damages for negligent infliction of emotional distress in connection with such exposure, (c) compensatory damages for physical and emotional injuries for fraudulently misleading employees into believing the workplace was safe, and (d) punitive damages claimed to be available in connection with the above-described common law claims: ANSWER: No. This court has concluded the W. Va. Code section 23-2-6 does not bar such common law claims by the employee.
QUESTION TWO: May an employee assert the common law tort claims described in question 1 against his or her employer arising form occupational exposures at his or her place of work, while asserting statutory deliberate intent claims against the same employer for existing physical injury caused by exposures at the same workplace: ANSWER: Yes. This Court has concluded that such claims may be asserted in the same lawsuit.

12. Philip J. Graziani, Jr. v. Virgil P. Broughton and the West Virginia Human Rights Comm. - 062083 - Philip J. Graziani, Jr. appeals the Human Rights Commission's final order which adopted the final decision of its administrative law judge and dismissed his retaliation complaint.

13. Donna Joan Blankenship, et al. v. Ethicon, Inc., et al. - 062117 - Plaintiffs appeal from the circuit court's order granting defendant hospital's motion to dismiss holding that all of plaintiffs' claims are barred by the West Virginia Medical Professional Liability Act and that West Virginia common law does not permit product liability claims to be made against healthcare providers as the distributor or seller of products. The circuit court's order was entered following this Court's remand for reconsideration of the circuit court's initial ruling in light of Boggs-Camden Clarke Mem. Hosp. Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004).

Argument Docket
Tuesday, Nov. 14

1. State of W. Va. v. Tony Franklin Daugherty, Sr. - 33075 - Petitioner appeals the December 27, 2005 order of the circuit court denying a Motion for a New Trial. On September 30, 2004, petitioner was convicted, following a jury trial, on four counts of sexual abuse by a parent, guardian or custodian.

2. State of W. Va. v. Eddie Mullens - 33073 - Defendant appeals from the circuit court's order denying his motion to suppress audio/video evidence. Defendant entered a conditional guilty plea which allows him to appeal the circuit court's decision in this regard.

3. Lawyer Disciplinary Board v. Leonard S. Coleman - 32861 - The Court will hear argument in this lawyer disciplinary matter.

4. SER R. E. Hamrick, Jr., M.D. v. Hon. James C. Stucky, et al. - 33195

5. State of W. Va. v. Roger Eric Jones - 33072 - Petitioner was convicted for First Degree Murder and sentenced to life in prison with no possibility of parole. The defendant appeals on jurisdiction/venue and evidentiary grounds and seeks reversal of his conviction and remand for a new trial.

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