Starcher
Benjamin
CHARLESTON – After three Justices of the West Virginia Supreme Court of Appeals blasted Kanawha Circuit Judge James Stucky for appointing Charleston attorney Franklin Fragale Jr. to manage evidence in a lawsuit, two Justices rose to Stucky's defense.
Justices Larry Starcher and Brent Benjamin wrote that the Court should have honored Stucky's appointment of Fragale as discovery commissioner in a suit that physician R. E. Hamrick filed against Charleston Area Medical Center.
The majority held Nov. 30 that Stucky should have appointed someone else because Fragale and Hamrick quarreled in public and because Fragale once made inappropriate comments about Hamrick's attorney, Karen Miller.
Starcher wrote in dissent Dec. 13 that Stucky "is quite competent to manage procedural conflicts in his court and to referee contentious lawyers."
Benjamin wrote in partial dissent Dec. 14 that, "The trial court knows the finer aspects of the parties and the case herein far better than this court ever could."
Instead of canceling the appointment, Benjamin wrote, the Court should have directed Stucky to hold a hearing on Hamrick's charges against Fragale.
Benjamin wrote that if Hamrick's allegations are correct, Fragale had a duty to disclose his potential bias.
"If not," he wrote, "then a proper question needs to be raised regarding the good faith basis for the allegations being raised."
He wrote that the Justices owed Fragale more consideration than they showed.
He wrote, "We owe him at least the voice which an evidentiary hearing provides."
Charleston Area Medical Center revoked Hamrick's medical privileges in 2004.
The Supreme Court of Appeals reinstated his privileges and initiated a suit in Kanawha Circuit Court to resolve the dispute.