CHARLESTON - In addition to at least three other former clients, Jessica L. Toler led a Wyoming County man to believe that he not only won a multi-million dollar malpractice settlement, but also many federal agencies and officials, including former President George W. Bush, had taken an interest in his case.
Linda G. Laxton, Samuel Canada and Rodger D. Hancock II were not the only victims of Toler's pattern of deception. According an ethics complaint filed by Steven J. Sizemore with the state Bar on Dec. 16, Toler for five years told him what can best, and politely, described as a tall-tale about his medical malpractice "case."
According to his complaint Sizemore, 47, a resident of McGraws, came to Toler in March 2003 about filing a medical malpractice case related to complications from a 1998 surgery. Though she cautioned him any claim might be barred due to a statute of limitations issue, Toler agreed to take the case and would try to settle it for $150,000.
About a year later, Sizemore said Toler called him with some good news. After filing his lawsuit in Wyoming Circuit Court, not only did it clear the statute of limitations hurdle, but also after filing an unsuccessful appeal of a motion granting default judgment to the state Supreme Court, the defendants were willing to discuss a settlement.
Among the "defendants" listed in Sizemore's complaint was Ethicon, a Somerville, N.J.-based company, and subsidiary of Johnson and Johnson, which manufactures medical devices, including surgical sutures. In addition to providing him with an alleged copy of the motion for default judgment, Sizemore says Toler informed him she turned down offers from Ethicon to settle for $72,000 and $120,000.
Shortly thereafter, Sizemore contacted Wyoming Circuit Judge John S. Hrko's office about the status of his case. According to the complaint, Hrko's secretary informed Sizemore "that no case had been filed on his behalf."
Upon confronting her about what Hrko's secretary told him, Sizemore said Toler there was a misunderstanding and she " 'would call the Courthouse and get it straightened out.'" In addition to informing him a short time later that everything was straightened out, Toler told Sizemore Hrko awarded him $600,000.
However, the case was being transferred to Raleigh Circuit Court. Regardless, Toler said she would be upping any settlement offer to $1.5 million.
In the complaint, Sizemore says on Nov. 5, 2005, Toler said she turned down a settlement offer for $950,000 from Raleigh General Hospital, another alleged defendant in the bogus lawsuit.
Thereafter, Toler continued to spin a yarn about successfully keeping Sizemore's case alive. After being transferred first to U.S. District Court in Beckley, Toler informed him that the case was appealed to the 4th Circuit Court of Appeals in Richmond, Va. only to be remanded to U.S. District Judge Joseph R. Goodwin in Charleston.
Upon contacting Goodwin's office, Sizemore said he was informed by the secretary no case with his name was on file. Again, after confronting her with what he was told, Toler said she would straighten things out like she did with Judge Hrko.
Apparently, Toler led Sizemore to believe that two civil suits relating to his malpractice claim were pending as she informed him that she was holding in trust a check for $1.5 million from RGH while Judge John Copenhaver merged it with one against Ethicon. Upon merger of the cases, Ethicon was also going to settle with Sizemore for $1.5 million.
Sizemore's complaint is unclear as to when, but Toler later informed him that that the alleged settlement from RGH had to be returned due to staleness. However, that was good thing because, at that point, interest had been accumulating daily at 10 percent raising his total take to $16 million.
Again, after a period of some time, Toler contacted Sizemore to say that she received "two packages by courier which included two checks totaling $12 million." Until the case was brought to finality, she would be depositing the checks into her escrow account.
Though despite "winning" an appeal to the U.S. Supreme Court, Toler told Sizemore "the Securities and Exchange Commission, the Senate Judiciary Committee, the Justice Department and the President of the United States were investigating his case and that the final settlement would be delayed."
Still holding onto the belief that he won a sizeable judgment, Sizemore contacted an attorney about buying some property she had for sale. When she asked how he intended to pay for it, Sizemore said he'd be using a portion of his settlement proceeds.
After conducting a records check, the attorney, who is not named in the complaint, suggested Sizemore double-check what Toler had been telling him. Upon noticing that no case numbers were contained in any of the correspondence she sent him, Sizemore wrote Toler asking for his file back.
On July 9, Sizemore received his file with a letter from Toler. In the letter, Toler said he "'had no case and that she had no money for [him] and no money was expected.'"
Also, Toler said she had not been able to "'get around'" the statute of limitations.
Declining an explanation
After receiving Sizemore's complaint, ODC forwarded Toler a copy on Dec. 18 and Feb. 3 asking her to respond. Toler offered no reply.
Five days after ODC submitted its second request to Toler, she petitioned the state Supreme Court to voluntarily annul her license in the midst of the statement of charges the Lawyer Disciplinary Board filed against her in Laxton's, Canada's and Hancock's cases. Because the Court granted Toler's petition on March 26, ODC dismissed Sizemore's complaint on April 2.
However, he was informed that his complaint would be placed in a reinstatement file in the event Toler applies again for a license in 2014.
The West Virginia Record attempted to get a comment from Toler about not only the lies she told to Sizemore, but also Laxton, Canada and Hancock about their respective cases. When reached via telephone at her home in Jefferson Hills, Toler said she had no comment.
Also, The Record sought a comment from Wyoming County Prosecutor W. Rick Staton, for whom Toler worked as associate from 2002 to 2004 in his Pineville law firm of Moler and Staton. Prior to his election as prosecutor last year, Staton, 50, along with opening his practice with Moler in 1984, came on board as an assistant prosecutor in 1997, all the while serving in the House of Delegates, including a stint as chairman of the judiciary committee, and later majority leader, until his defeat in the 2006 primary election.
Since she took those cases with her in Pennsylvania, Staton said anything she did, or failed to do, was her decision.
"I didn't keep up with her after she left," Staton said. "The things that happened occurred after she left our firm."