WHEELING – Bayer and a member of its human resources department say a former employee is the only one at fault for his lack of medical coverage, but the employee is attempting to pin blame on the company in a lawsuit.

Phillip Kevin Haynes filed a lawsuit in Marshall Circuit Court, claiming he was forced to accept a buyout ending his employment with Bayer on Oct. 31, 2007.

"The buyout was predicated upon false health information withheld by Defendant from plaintiff and further wrongfully based upon Plaintiff's age as shall be more specifically set forth herein and as further discovery shall indicate," Haynes' complaint says. "At the time of his separation from Defendant's employ, Plaintiff was 50 years old."

Haynes claims he began working as an electrician for Bayer in 1979, and as part of his employment, Haynes was required to undergo a physical examination by a Bayer-retained doctor. So, on Oct. 23, 2007, Haynes had his yearly physical exam, which included an EKG.

"Said nurse informed Plaintiff that his EKG was not normal but downplayed the importance of said finding," the suit states. "The Plaintiff was never afforded the opportunity to go over the test results with the doctor."

Haynes claims he was not aware of the severity of his heart condition when he accepted a buyout offered by Bayer that caused a decrease in his health benefits.

However, Bayer and human resources employee Roseanna J. Keller contend Haynes' allegations against them are ludicrous because the EKG in question was not performed until four months after Haynes accepted the buyout.

After accepting the buyout, Haynes moved to North Carolina where he began to experience atrial fibrillation problems, according to the complaint. Because of his severe health condition, Haynes was only able to secure a job, which he held for four months, where he was not required to undergo physical examinations. In addition, he has since incurred uncovered medical expenses, the suit states.

"Had he been informed of his condition by Defendant, he'd have declined the buyout and maintained his employment along with his income and health benefits," the complaint says.

Keller says she remained unaware of any test results until Haynes filed his lawsuit.

"Keller further avers that since the EKG which purportedly revealed an abnormality was not conducted until more than 4 months after his election to accept the Voluntary Separation Program benefits offered by Bayer MaterialScience LLC, no act or omission by Keller, which act or omission is specifically denied, could have played any role in Plaintiff's decision to accept the Voluntary Separation Program offer," Keller's response states.

Because of the buyout, Haynes says he incurred medical expenses and increased health insurance premiums; lost income; and suffered emotional distress.

But Bayer says when Haynes accepted the buyout offer, he could have chosen to receive more thorough medical coverage.

"At the time Plaintiff accepted the payments to be made pursuant to the Voluntary Severance Plan, he could have elected an option which would have provided him with continuing medical insurance coverage," the suit states. "Plaintiff's claims are barred by his voluntary election to decline and waive such coverage."

In his suit, Haynes alleges fraudulent concealment and age discrimination.

Haynes is seeking a judgment including his past and future medical expenses and his lost income, plus pre – and post-judgment interest, attorney's fees, unspecified punitive damages and other relief to which he may be entitled.

Bayer and Keller removed Haynes' case to federal court because they say federal court has original jurisdiction since Haynes' accuses them of violating federal law. In addition, the defendants and plaintiff are residents of separate states and Haynes is seeking more than $75,000 – all of which meet the criteria for removal to federal court.

They are asking the federal court to dismiss Haynes' complaint.
Haynes will be represented by Scott H. Kaminski and Daniel M. Balgo of Balgo and Kaminski in Charleston.

Bayer and Keller will be represented by Joseph M. Price and M. David Griffith Jr. of Robinson and McElwee in Charleston.

U.S. District Court case number: 5:09-cv-128

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