CHARLESTON - Circuit Judge Jay Hoke helped Hugh Caperton win a $50 million jury verdict against Massey Coal in Boone County, an attorney told the West Virginia Supreme Court.
"He interjected himself into this case and became an advocate," Huntington attorney D.C. Offutt told the Justices Oct. 10 during oral arguments. "I don't think it was impartial. I think it was in many ways helpful to the plaintiff."
Massey Coal seeks to overturn the verdict.
Caperton, of Daniels, convinced jurors in 2002 that Massey Coal put him out of business to increase profits. Businesses he owned had previously won a $6 million verdict against Massey subsidiaries in Virginia.
Massey's appeal of the West Virginia verdict argued that Hoke shouldn't have held trial because the Virginia trial decided the same set of facts.
"They are one and the same claim," Offutt told the Justices. He said both suits sought damages for destruction of Caperton businesses. Then he complained about decisions Hoke reached after he decided to conduct a trial.
He said Hoke improperly allowed Caperton to sue as an individual while suing through his businesses.
He said that at trial, Hoke allowed Caperton to raise for the first time claims of emotional distress, damage to reputation and loss of wages.
"These claims were not properly pled or disclosed," Offutt said.
He said Hoke limited cross examination of a witness to the time of direct examination. He said he had never seen that.
He said that as a defense attorney questioned a witness Hoke said, "Two minutes." He said the attorney thought a court reporter needed two minutes.
He said that when the attorney continued asking questions, Hoke ordered sanctions for failure to observe the two minute limit.
He said Hoke allowed evidence that Massey gained $100 million by putting Caperton out of business. He called the amount ridiculous.
"The plaintiffs took a company that was doomed to failure and turned it into these verdicts," Offutt said.
He said Hoke told jurors the inevitability of failure was not a defense. He said jurors disregarded any other possible cause of the failure.
For Caperton's businesses, Charleston attorney Robert Berthold said the Virginia trial involved different parties, issues, evidence and remedies.
He said the Virginia trial lasted four days and the West Virginia trial lasted seven weeks.
He said Offutt painted a picture of Hoke letting things get out of control in a kangaroo court.
He said Hoke "did great hard work."
Up to this point Justices had heard both sides without interrupting, but Chief Justice Robin Davis broke in and asked Berthold to address Hoke's examination of witnesses.
"There were pages and pages and pages of cross examination by Judge Hoke," Davis said.
Berthold said, "With all due respect, that is not my recollection. The questions he asked were very limited."
Justice Joseph Albright said, "The question is whether the judge engaged in rehabilitation of the witness."
Berthold said, "We felt Judge Hoke's questions were perfectly appropriate.
"Judge Hoke issued very extensive rulings. He analyzed the evidence and set forth what the evidence was."
For Caperton individually, Pittsburgh attorney Bruce Stanley said Massey documents showed the value of the scheme.
He said according to Offutt, Hoke told jurors inevitability of failure was no defense. He said, "That is not my recollection of the trial at all."
He said Hoke asked questions to clarify an expert's opinions. He said it was not rehabilitation.
In rebuttal, Offutt challenged Hoke's impartiality.
"I have tried cases with Judge Hoke and he is a very interesting fellow," Offutt said.
In this case, Offutt said, Hoke became an advocate.
Four of five Justices heard the argument. Justice Larry Starcher missed the session, but Davis said he would participate in decisions.