Chief Justice Robin Jean Davis listens intently during oral arguments at Marshall University.
Justices met at Marshall's Joan C. Edwards Performing Arts Center where it heard cases dealing with personal injury, racial and religious discrimination, evidence in a murder conviction and flood control.
Justice Davis
HUNTINGTON – In observance of Constitution Week, the state Supreme Court made a visit to Marshall University last week to hear oral arguments in four cases. And though they were in Huntington for serious business, the justices, at times, put on a performance apropos for their venue.
On Tuesday, Sept. 18, the Court met at Marshall's Joan C. Edwards Performing Arts Center where it heard cases dealing with personal injury, racial and religious discrimination, evidence in a murder conviction and flood control.
First on the Court's docket was Clinton and Jessie San Francisco v. Wendy's International. Here, the San Franciscos were appealing Kanawha Circuit Judge Paul Zakaib's decision to preclude testimony from expert witnesses they wanted to present at trial concerning how Clinton San Francisco became ill after eating a "raw and uncooked" hamburger.
According to court records, San Francisco, of Logan, bought the hamburger while in Charleston on May 1, 2002. Upon returning home with his family, San Francisco stopped in Huntington complaining of gastrointestinal problems.
Two days later, court records show, he sought treatment at Logan Memorial Hospital. There, he was diagnosed with a case of food poisoning.
After the San Franciscos brought suit, Zakaib granted summary judgment on Wendy's behalf. He ruled that of the two doctors they wanted to call as a expert witness in food-borne illness, one was not qualified to make the diagnosis, and the other's theory was not based on reliable science.
In posing questions to counsel for both sides, at least two justices seemed poised to remand the case back to the circuit court for trial.
"I submit to you that there would not be a plaintiff's expert or a defense witness that would testify in any court in this country," said Chief Justice Robin Jean Davis about the standard was used to preclude the doctors from testifying.
Likewise, Justice Larry V. Starcher said so long as they testify truthfully about their credentials, a jury can make the inference as to whether a doctor is an expert or not.
"We have to use the doctors that are there," Starcher said.
Next, the Court heard Colgan Air's appeal of the West Virginia Human Rights Commission's finding on behalf of Rao Zahid Khan.
Colgan's attorney, Mark A. Dombroff, who was granted temporary admittance to the state Bar Association to argue the case, said the case is about safety, and not discrimination.
"The simple point is the ALJ [administrative law judge] got it right, the Human Rights Commission got it wrong and we look to you to get it right," Dombroff said.
According to court records, Khan, a pilot for Colgan's flight crew in Huntington, filed a complaint with the HRC in October 2001 after he was fired from Colgan for failing to pass a required proficiency check. Khan alleged his firing was in retaliation to complaints he made to Colgan's management about being the subject of unwelcome taunts and jokes.
Khan is of Pakistani heritage, and a Muslim.
In his argument, Dombroff pointed out that the ALJ found that once Colgan management learned of the harassment, it took immediate action to address the problem. When questioned by the justices about the harassment, Dombroff unequivocally called it "reprehensible."
In addition to the harassment, Khan's attorney Dwight Staples argued that Colgan treated Khan unfairly when it failed to retrain him after failing the proficiency check mandated by the Federal Aviation Administration after the terrorist attacks of Sept. 11, 2001.
After laying-off Khan and several other pilots who failed the proficiency check due to financial difficulties with the airline, Staples maintained that once Colgan was back on sound financial footing many of those pilots were rehired, and retrained. The only explanation for Colgan not doing the same for Khan was because of his race and religion, Staples argued.
"This is a human rights case," Staples said.
Justice Brent Benjamin seemed to echo the sentiments of Colgan that Khan's termination was an issue of airline safety. When he asked Staples why Khan was terminated from a previous position with Eagle Air, Staples said it was due to a poor flight performance.
"As a person who flies, I have a problem with that," Benjamin said.
After hearing arguments in the Colgan case, the justices took up Thomas MacPhee's appeal of his first-degree murder conviction of Lori Keaton.
The conviction, his attorney argued, is based on largely circumstantial evidence, including the fact that Keaton's body has never been found.
In arguing for his client, former Kanawha County Assistant Public Defender, E. Taylor George, who's now in private practice, said MacPhee doesn't deny having knowledge of Keaton's death, and playing a role in her disappearance.
However, George said that throughout the case, MacPhee maintains that it was Danny England who killed Keaton, and likewise threatened to kill him if he didn't assist in disposing of Keaton's body.
"There's no evidence that he perpetrated anything until after the death," George said.
In rebuttal, McDowell County Prosecutor Sidney H. Bell maintains that after first denying any involvement in the murder, MacPhee implicated England after he was confronted with physical evidence. The evidence, which Bell said was found by the West Virginia State Police crime scene unit, included blood evidence containing Keaton's DNA found on fragments of blue jean material.
In reply to the evidence found, George said, "that same type of evidence can be found in every one of your homes, your honors."
Finally, the Court heard the case of Edward W. Cantley Sr., et. al. v. Lincoln County Commission.
Here, Cantley, and other residents near the middle fork of the Mud River, were appealing Lincoln Circuit Judge Jay M. Hoke's dismissal of their lawsuit seeking damages from the Commission for not properly maintaining the river to reduce the possibility of flooding.
In their original suit, the residents allege that two floods in the course of one week in November 2003 damaged their homes.
Though the Middle Fork Drainage, Levee and Reclamation District had responsibility for mitigating flood hazards on that part of the Mud River, the residents maintain it is a defunct government entity, and has done little if anything since its creation in 1965.
Because of this, the residents maintain that responsibility for flood mitigation along the Mud River falls on the county commission.
The residents' attorney, Heather M. Lageland, asked that, at minimum, her clients be permitted to engage in pre-trial discovery to determine the relationship between the District and the Commission. However, R. Carter Elkins, the Commission's attorney, said such is unnecessary as any information on the District is a matter of public record.
"If you go into the Lincoln County courthouse you will find the records of the Middle Fork District," Elkins said.
Venue not lost on the Court
As the Court's visit to Huntington was held in a theater, the justices did not disappoint the audience in creating some dramatic moments in the course of listening to dry legal theories.
In the Cantley case, Justice Elliot V. "Spike" Maynard explained to Langeland that she has more than just laws possibly working against her clients.
Using the analogy of a nozzle on a water hose, Maynard explained to Langeland the futility of attempting to mitigate flooding by dredging a river, saying that the law of physics now makes it such that the water will run faster down the river.
"So, you'd just like your day in court even if you are going to lose?" Maynard asked Langeland.
After the audience finished laughing, Langeland replied, "Yes."
Also, the crowd got a chuckle out of Elkins' attempt to dodge a question posed to him by Starcher.
When Starcher asked him about the current membership of the District, Elkins replied "That's not my burden."
However, Justice Joseph P. Albright quickly followed-up saying, "It may be your burden if it pleases us."
In the course of questioning Scott E. Johnson, the attorney representing Wendy's in the San Francisco case, about applicable case law concerning expert witnesses, Davis said, "I don't know about that. I'll have to look it up."
Upon conclusion of the case, Davis' statement became apparent.
"I will let the audience know I enjoyed grilling Mr. Johnson as he was my former law clerk," Davis said.
Perhaps the most dramatic moment came during the final moments in the Colgan case.
As Dombroff was preparing to sit down after making his reply to Staples' rebuttal, Starcher inquired as to who was Dombroff's co-counsel.
"I have with me Shaleeza Altaf, you honor," Dombroff replied.
"Is she Pakistani?" Starcher asked.
"Yes, she is, your honor," Dombroff said.
After Starcher dropped a writing instrument on the table, leaned back in his chair and remarked, "I suspected that," shrieks and gasps were heard from the crowd.
