WEST VIRGINIA RECORD

Rescheduled cases

NOTE: Cases scheduled for the March 25 Motion and Argument dockets were rescheduled for later dates because of the death of former Justice Joseph Albright. The reschedulings are listed below:

Motion Docket

1. Tracy Ann Ross and Darcie Lynn Christopher v. Hazem A. Ashab, M.D. - 082172 - Defendant physician appeals from the circuit court's order granting plaintiffs' motion for a new trial in this medical malpractice action. Defendant asserts that there was no evidentiary error and that the jury verdict should be reinstated. - Continued to April 7.

2. State of WV v. Gary D. Martin - 082320 - Gary D. Martin appeals his convictions and sentences for two counts of first degree murder with a recommendation of mercy and one count of second degree murder. He asserts problems with the chain of custody of evidence, disproportionate sentencing, and insufficiency of the evidence to warrant a finding of premeditation. - Continued to April 8.

3. State of WV v. Michael J. Kanode, Sr. - 082384 - Michael Joe Kanode, Sr. was convicted of malicious assault, burglary, attempted murder in the first degree, violation of a protective order, wanton endangerment, and assault during the commission of a felony (to wit, shooting the victim during the course of burglary). He asserts that his convictions for malicious assault and wanton endangerment violate his right against double jeopardy; that there was insufficient evidence to support the burglary conviction; and that since he should not have been convicted of burglary, he could has a matter of law be convicted of assault during the commission of a burglary. - Continued to April 7.

4. Kyle D. Ramey and Trina Ramey v. Contractor Enterprises, Inc. - 082318 - Plaintiffs appeal from the circuit court's order granting summary judgment in favor of defendant employer in this deliberate intent action. Plaintiffs assert that the circuit court erred in determining that there was no genuine issue of fact on two of the elements required to maintain a deliberate intent action and failed to construe conflicting evidence in the light most favorable to plaintiffs, the non-moving party. Plaintiffs seek a reversal of the circuit court's order. - Continued to April 8.

Argument Docket

1. Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34333 - Plaintiffs appeal from the circuit court's order granting in part and denying in part defendant DuPont's motion for partial summary judgment in this class action seeking medical monitoring, property remediation, and punitive damages. Plaintiffs assert that there were material questions of fact as to whether the contamination and injuries/damages due to the operation of a zinc smelter were contemplated by the original landowners and whether certain releases and easements executed in the 1920's provide immunity for those claims. Plaintiffs seek a reversal of the circuit court's order granting partial summary judgment in favor of defendants on the Property Class members' claims and request a remand for reinstatement and adjudication of those claims upon their merits. - This case will be heard at 2 p.m. Chief Justice Benjamin and Senior Status Justice McHugh disqualified. Judges Swope and Moats sitting by temporary assignment. - Rescheduled to April 7.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34334 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. This is a class-action complaint alleging negligence, recklessness, public and private nuisance, trespass, strict liability, unjust enrichment, medical monitoring and punitive damages based on alleged exposure to arsenic, cadmium and lead. The jury verdicts are reported as the largest toxic tort verdict in the country.- Rescheduled to April 7.

Lenora Perrine, et al. v. E.I. duPont deNemours and Company, et al. - 34335 - This case involves the former E. I. du Pont operations of a zinc smelting facility in Spelter, WV. E. I. du Pont seeks reversal of the circuit court's order ruling that du Pont has no obligation to indemnify T. L. Diamond in connection with Plaintiffs' claims in this case.- Rescheduled to April 7.

2. Catherine I. Smith and John Smith v. Derek Andreini, M.D. and Orthopaedic Surgery, Inc. - 34271 - Continued to April 7.

3. State of West Virginia v. Sheila G. Adkins - 34275 - Sheila G. Adkins appeals her convictions for two counts of Distribution of a Controlled Substance and the circuit court's denial of her motion for new trial. She asserts that pre-trial, in violation of Brady and State v. Youngblood, the State failed to disclose material evidence that would have impeached the State's key witness. - To be presented on briefs only without oral argument. - Rescheduled to April 7.

4. C & O Motors, Inc. v. West Virginia Paving, Inc. - 34330 - Defendant appeals from the circuit court's order awarding summary judgment in favor of plaintiff in this negligence action seeking damages. Defendant asserts that the circuit court's ruling effectively changed this negligence into one of "strict liability." Defendant further asserts that the circuit court erred by not granting defendant's motion to join a necessary party, a subcontractor, who performed the work in question. This case will be heard directly following Perrine v. E. I. Dupont (which is being heard at 2 p.m.) Chief Justice Benjamin disqualified. Judge Moats sitting by temporary assignment. - Rescheduled to April 7.

5. State of West Virginia v. Tanya Harden - 34268 - Tanya D. Harden appeals her conviction for First Degree Murder with a recommendation of mercy. She alleges several trial errors including the admission of irrelevant and gruesome photographs, failure to excuse a prospective juror for cause, failure to rebut her self-defense claim, admission of speculative evidence, improper instruction regarding lost or destroyed evidence, and her lawyer was improperly ordered not to object to the State's closing argument. - Rescheduled to April 8.

6. SER James L. Knotts v. Hon. Richard Facemire, Judge - 34647 - Petitioner seeks a writ of prohibition to prevent the Respondent from conducting a criminal trial set for January 6, 2009. The indictment contains 129 counts of either sexual assault in the first degree, incest, sexual abuse by a custodian, or sexual assault in the third degree. Petitioner argues the thirteen to seventeen years between the alleged crimes and the indictment places the Petitioner deprives him any opportunity to impose the defense of alibi and violates Right to Due Process. - Justice Workman disqualified. Judge Sadler sitting by temporary assignment. - Rescheduled to April 29.

7. SER Alex Farmer v. Thomas McBride, Warden - 34157 - Alex Farmer appeals the circuit court's denial of his omnibus petition for post-conviction habeas corpus. He was previously convicted of First Degree Murder with a recommendation of mercy, two counts of First Degree Sexual Assault, and Burglary. He asserts several constitutional arguments based upon Zain 1 and Zain 3, the admission of certain evidence and statements, the court's denial of his motion for judgment of acquittal and motion to strike a juror for cause, alleged juror misconduct, and alleged sentencing error. - Rescheduled to April 29.

8. Chad R. Clower v. WV Dept. of Motor Vehicles, Joseph Cicchirillo, Comm'r. - 34329 - The DMV appeals the circuit court's order which reversed the DMV's final order revoking Chad R. Clower's driver's license for six months for DUI. The court found that the arresting trooper lacked the requisite reasonable suspicion to initially stop Mr. Clower's vehicle, but the DMV argues that the exclusionary rule should not be applied to administrative driver's license revocation proceedings. - Rescheduled to April 7.