West Virginia Record

Friday, July 19, 2019

N.C. plaintiffs file legal malpractice suit in W.Va.

By Justin Anderson and Chris Dickerson | Jun 18, 2009



WHEELING – Fifteen North Carolina residents are suing a number of Texas and Georgia attorneys in federal court, claiming the lawyers mishandled a consolidated lawsuit against CSX Transportation.

The lawsuit was filed June 3 in U.S. District Court in Wheeling. Named as defendants are law firms Provost and Umphrey and Law Offices of David E. Bernsen and individual lawyers Rodney B. Barnwell, Matthew C. Matheny, Matthew Willis, David E. Bernsen, Edward Shuff Cook, Donald F. Ruzicka and 10 unnamed lawyers.

Cook is the nephew of Warren McGraw, former state Supreme Court justice and current circuit judge in Wyoming County. Before starting the Atlanta firm of Cook Hall & Lampros, Cook was the managing partner of Texas-based Provost & Umphrey's Atlanta office.

The plaintiffs, both individuals and representatives of estates, all had previously filed lawsuits in different states alleging that while they worked for CSX, having to maneuver on large and irregular ballast caused them to develop arthritis and other injuries.

The defendants consolidated the cases and filed a lawsuit in Marshall County in 2004, the complaint says.

But the lawyers failed to properly handle the litigation in a number of ways, according to the plaintiffs.

Among the plaintiffs' allegations are that the lawyers failed to timely engage expert and medical witnesses; failed to investigate the plaintiffs medical claims; failed to investigate the admissibility of certain evidence.

The plaintiffs also alleged they were kept in the dark about developments in the case and that the lawyers failed to properly prepare for and represent three of the plaintiffs at a trial that was scheduled for June 4, 2007.

Foremost in the list of allegations is that the lawyers settled on behalves of all but one of the plaintiffs – Carroll W. Garner – for amounts that were less than what the plaintiffs believe they would have received from a jury.

One of the plaintiffs, Lloyd D. Wheeler, alleges that his case was settled without his authority.

In Garner's case, the complaint says his representation failed to tell him that he needed to be at the trial and didn't engage a medical witness to support Garner's claims. Under these circumstances, Garner's case was dismissed by the court, the complaint says.

The other plaintiffs are: Ernest R. Bryant; the estate of Mitchell L. Cockman by personal representative Elaine Cockman; David H. Davenport Jr.; Hiram T. Davidson, Sr.; Jerry W. Hinson; Bobby C. Lambert; John S. McIver; Russell D. Pait; the estate of Jerry M. Snead by personal representative Linda C. Snead; A.B. Strickland; Matthew Stroman, Jr.; Gregory Warnock; and James R. Williams.

The plaintiffs are seeking compensatory damages for emotional distress and monetary loss and reimbursement of legal costs.

Donald J. Tennant Jr. and Jay T. McCamic are representing the plaintiffs. The case is before U.S. District Court Judge Frederick P. Stamp Jr.

U.S. District Court case number: 5:09-CV-61

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