Judge won't break legal malpractice case up

WHEELING -– A Texas law firm and other lawyers defending a legal malpractice suit reached agreement with 15 former clients to break the case into 15 individual cases, but a federal disagreed.

On Jan. 24, U.S. District Judge Frederick Stamp denied a motion to sever claims of former CSX Transportation workers against the Beaumont, Texas-based Provost Umphrey law firm, three of its lawyers, David Bernsen of Beaumont and Ed Cook of Atlanta.

"This court has learned nothing that would change its mind as to the issue of severance," Stamp wrote. "This court still believes that consolidation of the discovery and pleadings will benefit the parties and serve the interests of judicial economy."

Plaintiffs, all from North Carolina, claim mass settlement of injury suits against CSX in Marshall County, W.Va., reduced the value of their claims. They had previously opposed severance and persuaded Stamp to deny it.

They changed their minds this Jan. 18, proposing an order along with defendants.

At a hearing six days later, Stamp disregarded the proposal.

Defense counsel sought to salvage it with an oral motion, to no avail.

After the hearing, Stamp wrote that he denied a previous motion without prejudice.

"The defendants have not filed a new motion to sever," he wrote.

He denied severance without prejudice again, inviting defendants to file another motion after discovery.

Thirteen men and two widows sued Provost Umphrey and the rest in June 2009.

For Provost Umphrey, its lawyers, and Bernsen, Michael Garrison of Morgantown moved to sever the claims in November 2009.

The former West Virginia University president wrote that joining multiple unrelated plaintiffs into single action violated a court rule.

"Although they assert similar legal theories based upon alleged mishandling of their claims, they do not arise from the same transaction or occurrence," he wrote.

For Cook, Margaret Droppleman of Charleston joined the motion.

The lawyer for the workers, Donald Tennant Jr. of Wheeling, answered that severance would cause each plaintiff to call the same witnesses 15 times.

"They all worked for CSX, primarily in North Carolina rail yards," he wrote. "All claim that walking on large ballast caused their injury.

"All allege that defendants committed legal malpractice in pursuing their claims against CSX in West Virginia state court."

Stamp denied severance in December 2009. He has set jury trial for May 2012.