Federal judge shields most of medmal suit

By Steve Korris | Feb 19, 2010

MARTINSBURG – U.S. District Judge John Preston Bailey hides an entire medical malpractice suit from public view, except the part where Magistrate Judge James Seibert and Washington lawyers kick each other around.

Bailey has sealed every record in the case except a few orders, including one Seibert signed last November denying a motion to recuse himself.

Seibert, responsible for discovery in the case, vehemently rejected conflict of interest charges from plaintiff lawyers Barry Nace and Jonathan Nace of Washington.

Nace and Nace moved for reconsideration, asking Bailey to strike portions of Seibert's order that they found "scandalous, scurrilous and demeaning."

Bailey sided with Seibert, about as vehemently.

"This court finds absolutely nothing in the record which would indicate that Magistrate Judge Seibert's impartiality might reasonably be questioned," Bailey wrote. "This court could go on and parse all of the allegations and misstatements made by plaintiffs' counsel in the motion, but it would do no good."

What the suit involves, only the parties know.

In October, Bailey restricted access to "court users and counsel of record."

He cited the E Government Act of 2002, but specified no provision in its 72 pages.

He enforced the rule retroactively, sealing almost everything back to the complaint the Naces filed in 2008 against City Hospital, Inc., and the United States.

The Naces and Michael Burke of Martinsburg represent Hugh and Cheryl Bohrer.

According to Seibert's order denying recusal, the Bohrers allege that negligence caused permanent injuries to a minor child at birth.

According to the docket, which remains public, City Hospital filed a cross claim against the United States.

Another docket entry identified West Virginia University Hospitals as corporate parent of City Hospital.

Last October, the Bohrers moved to recuse Seibert.

Bailey sealed the motion, but according to Seibert's order it alleged conflicts from his connections to assistant U. S. attorney Helen Altmeyer of Wheeling and her family.

First, the Naces and Burke alleged that an attorney client relationship existed between Seibert and Altmeyer's husband, Henry Altmeyer.

They argued that Seibert served as president of Oglebay Institute and the law firm that employed Henry Altmeyer represented the Wheeling park commission.

Next, they questioned Seibert's impartiality because of his involvement in a political campaign of her brother in law, former legislator Jim Altmeyer, in 1984.

Next, they claimed that a relationship between Seibert's spouse and Helen Altmeyer created an appearance of impropriety.

Last, they alleged that Henry Altmeyer had worked for Seibert's sister, Sue Seibert Farnsworth, of Spilman Thomas and Battle.

Seibert held a hearing and denied the motion, calling all the allegations frivolous.

He wrote that Oglebay Institute and the Wheeling park commission are unaffiliated entities with separate governing bodies.

He declared a 25-year-old association with Jim Altmeyer absurd as a basis for recusal.

He described his wife and Helen Altmeyer as acquaintances who don't socialize together and have never been guests in each other's homes.

He wrote that plaintiff entirely failed to support a contention that Henry Altmeyer worked for his sister.

Finally, he brushed off a claim that he showed bias at a hearing in September by referring to a plaintiff lawyer's age.

"The court must confess that whenever counsel cannot agree on a day, time, and place for a deposition, it always 'Googles' counsel it does not know to determine if counsel is young, inexperienced and doesn't know any better or is old, experienced and simply playing games," he wrote. "It's clear from plaintiff's counsel website that plaintiff's counsel is old and experienced.

"It is equally clear from the record in this case that plaintiff's counsel is playing games."

In January, Bailey dismissed the claim of the Bohrers against the United States for lack of jurisdiction.

The U.S. remains on the hook, however, for Bailey construed City Hospital's cross claim as a third party complaint against the United States.

Christine Vaglienti of Morgantown represents City Hospital, along Matthew Moriarty of Cleveland and Atlanta lawyers John Hall and Shaun Daugherty.

Bailey has set trial for Aug. 17, according to the docket.

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