ELKINS – A popular store and a fitness equipment manufacturer say they should not be co-defendants with a doctor in a lawsuit a Barbour County woman and her husband filed after the woman fell and broke both her arms while running on a treadmill.

Instead, Sears and Icon Health and Fitness contend they deserve to be removed from the lawsuit. They then want the complaint to be removed to U.S. District Court for the Northern District of West Virginia, where they have asked judges to dismiss the case.

Sears and Icon allege Dr. John Logar was fraudulently misjoined to the case filed in Barbour Circuit Court on June 25.

Originally, Karen and Frank Hughes filed the complaint against Sears, Icon, a corporation referred to only as John Doe and Dr. John Logar.

In their complaint, the Hughes say Karen Hughes was using a Pro-Form 44E Crosswalk Treadmill, which was manufactured by Icon and sold through Sears.

As she was walking on the treadmill on June 26, 2007, Karen Hughes suddenly lost her footing and was thrown from the machinery after it began to rapidly accelerate, according to the complaint.

Karen Hughes was experiencing massive pain in both of her arms, so she went to the emergency room at Davis Memorial Hospital, the suit states. After giving Karen Hughes x-rays of her lower arms, Logar misdiagnosed her with potential strains and sprains of her left and right arms, the complaint says.

But, after several weeks of continuing severe pain, Karen Hughes returned to the Davis Memorial emergency room, where she was diagnosed with a fracture of the upper humerus in both her left and right arms, the suit states.

In their complaint, the Hughes claim negligence, strict liability and loss of consortium against Sears and Icon while they claim medical negligence against Logar.

However, because the allegations against the defendants are different, Sears and Icon claim they cannot be joined as defendants with Logar.

"The questions of fact and law for the products liability claims involve whether the product was, in fact, defective and whether that defect injured plaintiff Karen Hughes," Sears's and Icon's motion to dismiss states. "The questions of fact and law for the medical malpractice claims, conversely, involve whether Dr. Logar breached the standard of care applicable to doctors when they treat patients and whether plaintiff Karen Hughes was injured by that negligence."

To support their case, Sears and Icon point to a complaint in Florida that confronted a nearly identical question.

In that case, "Stone v. Zimmer," a plaintiff underwent hip replacement surgery. Shortly after the surgery, the replacement failed and split in two inside the plaintiff's femur, the motion says.

The first doctor to visit the plaintiff failed to diagnose the problem and treated him with trigger point injections, according to the motion.

But after seven months of treatment, the plaintiff continued to experience pain and went to another physician, who properly diagnosed the problem, the motion states.

Afterward, the plaintiff sued the original surgeon and the manufacturer of the implant, along with the doctor who failed to properly diagnose his pain, the motion says.

The manufacturer removed as a defendant in the case, claiming fraudulent misjoinder, and the U.S. District Court for the Southern District of Florida agreed and severed the claims. The court remanded the claims against the two doctors, but kept the claims against the manufacturer, the motion states.

"The court found that the plaintiffs' claims against the doctors sounded in medical malpractice and would require evidence on the medical care rendered and services provided," the suit states. "The claims against the manufacturer, on the other hand, sounded in products liability and would involve evidence of alleged manufacturing and design defects, failure to properly warn, and misrepresentation."

Like the doctors in the hip replacement case, Sears and Icon say Logar was fraudulently misjoined to the case. They contend he should be severed from the case. That leaves Sears and Icon able to claim diversity of citizenship between them and the plaintiff, which is grounds to remove the case to federal court.

In their complaint, the Hughes are seeking actual, consequential, compensatory and punitive damages, plus costs, attorneys' fees, pre- and post-judgment interest and other relief the court deems just.

Sears and Icon point to the Hughes' demand for damages, which will more than likely exceed $75,000, as another reason the case should be moved to federal court.

In their answer to the Hughes' complaint, Sears and Icon deny all allegations against them and are asking the federal court to dismiss the lawsuit.

They say Karen Hughes was responsible for her fall and for any damages of which she complains.

In addition, they say the plaintiffs should not be entitled to punitive damages for a number of reasons. For example, Sears and Icon contend that it is a violation of the Fourteenth Amendment to impose punitive damages against civil defendants if the plaintiffs burden of proof is less than the beyond a reasonable doubt burden of proof required in criminal cases.

In response to Sears's and Icon's request to remove the complaint to federal court, the Hughes filed a motion to remand the complaint back to Barbour Circuit Court. The plaintiffs say Sears and Icon filed to establish diversity of citizenship, which would allow the case to be removed to federal court.

"Plaintiffs' Complaint has asserted the Defendants' collective acts, errors and omissions resulted in intertwined, interrelated injuries with resultant damages to the Plaintiffs that must be resolved through proceedings in a single tribunal, which meets the requirements for permissive joinder," the Hughes response to Sears's and Icon's motions state.

Because the malfunction of the treadmill and the improper treatment of Karen Hughes occurred on the same day, the Hughes say there are questions as to who will be responsible for damages.

"Additionally, questions of law and fact exist as to a potential apportionment of damages between the respective Defendants, which will be nearly impossible if Plaintiffs are forced to litigate two separate civil actions in two separate forums," their response states.

The Hughes say Sears's and Icon's reliance on the Florida lawsuit to support their position is "not controlling and is factually distinguishable."

The Stone lawsuit is different from the Hughes' because claims in the Stone complaint happened about one year apart, while the Hughes' allegations occurred within several hours of each other, the plaintiffs contend.

"A likely critical issue or issues for resolution will be the determination of which entity or person is responsible, and to what degree, for the long term repercussions of the Karen Hughes injuries," the Hughes say in their response. "This determination can only be made if all Defendants are joined in a single action, which formed the basis of decision to assert claims against all three defendants in a single, civil action."

In their response, the Hughes are asking the court to deny the motion to sever that Sears and Icon filed.

Jeffrey A. Kimble and E. Ryan Kennedy of Robinson and McElwee in Clarksburg will be representing Sears and Icon.

James A. Varner Sr., Debra Tedeschi Herron and Jeffrey D. Van Vokenburg of Clarksburg will be representing the Hughes.

Brent P. Copenhaver of Colombo and Stuhr in Morgantown will be representing Logar.

U.S. District Court case number: 2:09-cv-93




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