WEST VIRGINIA RECORD

CHARLESTON – Justices of the West Virginia Supreme Court of Appeals ripped Kanawha County Circuit Judge James Stucky for putting a doctor's lawsuit in the hands of an attorney who had quarreled with the doctor.

The Justices granted a writ of prohibition Nov. 30, erasing Stucky's appointment of Charleston attorney Franklin Fragale Jr., as a discovery commissioner.

"It certainly should have been possible for the circuit court to have found one discovery commissioner who did not have a prior conflict or a quarrel with the parties involved in this litigation," Justice Spike Maynard wrote.

Physician R. E. Hamrick Jr., fighting for his job at Charleston Area Medical Center, had asked Stucky to recuse Fragale.

Stucky refused to recuse, but the Justices ruled that Stucky made a mistake.

Maynard wrote, "It seems to us that it would have been an easy solution to have simply substituted another lawyer…"

Hamrick lost his medical privileges at the medical center in 2004.

Six days later the Supreme Court of Appeals reinstated Hamrick's privileges and ordered Kanawha County circuit court to develop the facts of the case.

This July, Stucky appointed Fragale to make recommendations on discovery.

Hamrick's attorney, Karen Miller of Charleston, filed a motion the next day to recuse Fragale. Miller asked for a hearing.

Stucky, by letter, asked the specific grounds for recusal.

Miller amended the motion to claim that Fragale once confronted Hamrick at the Nautilus health club and said he would sue him.

Miller also claimed that in a different case in 2000, Fragale made derogatory and discriminatory comments about her.

Fragale opposed recusal, denying that the conversation at the Nautilus constituted a confrontation that he meant to embarrass Hamrick.

Fragale wrote that in 31 years of practicing law he never used the words that Miller claimed he used.

In August, Stucky upheld his appointment of Fragale and ruled that a hearing was not necessary.

Hamrick withdrew all outstanding discovery requests but Fragale held a hearing on them anyway.

Fragale then issued 27 pages of recommendations to Stucky, concluding that none of Hamrick's requests were relevant.

In September, Hamrick petitioned the Supreme Court of Appeals to remove Fragale.

The medical center opposed removal, arguing that Hamrick based his motion on unverified triple hearsay of ancient allegations.

Medical center vice president Elizabeth Spangler argued that Hamrick's petition was an unfair and unwarranted attack on Fragale's reputation.

Chief Justice Robin Davis and Justice Joseph Albright joined Maynard's decision in favor of Hamrick.

Maynard wrote that the U. S. Supreme Court requires recusal when a reasonable and objective person knowing all the facts would harbor doubts concerning a judge's impartiality."

He wrote, "Having reviewed the allegations against Mr. Fragale, we believe that at a minimum they demonstrate specific conflicts between the parties which have resulted in turmoil and considerable discord."

He wrote, "We believe that a hearing should have been held in this matter to thoroughly investigate the allegations against Mr. Fragale."

He wrote, "There is no question that the underlying allegations asserted outrageous conduct and we are at a loss to understand why the circuit court did not explore them further."

He wrote that Stucky could have chosen from 1,700 Kanawha County attorneys.

The majority instructed Stucky to immediately appoint a new commissioner.

Justice Larry Starcher dissented and reserved the right to file an opinion.

Justice Brent Benjamin dissented in part and reserved the right to file an opinion.