Two plaintiffs in CSX cases against law firm die

WHEELING – Two of 13 former CSX workers alleging legal malpractice against the Provost Umphrey firm of Beaumont, Texas, died three days apart.

On June 15, lawyer Donald Tennant of Wheeling notified U.S. District Judge Frederick Stamp that David Davenport died on May 19, and Ernest Bryant died on May 22.

Davenport, Bryant, 11 other men and two widows claim Provost Umphrey settled injury suits against CSX for less than reasonable value.

Provost Umphrey sued CSX in Marshall Circuit Court on behalf of the workers, all from North Carolina.

They claimed their work injured their spines, hips, legs, knees and ankles.

After receiving settlements, they retained Tennant to sue Provost Umphrey and firm members Rodney Barnwell, Matthew Matheny and Matthew Willis.

They also sued Texas lawyer David Bernsen and Edward Cook of Atlanta.

Tennant alleged the lawyers failed to engage experts, interview doctors, discover facts, investigate injuries and evaluate individual damages.

He alleged they didn't communicate important developments to the workers.

He claimed a judge dismissed Carroll Garner's suit because his lawyers presented no medical witness at trial in 2007.

He claimed they settled Lloyd Wheeler's claim without his authority.

Provost Umphrey retained former West Virginia University President Michael Garrison, who moved to sever Tennant's suit into 15 suits.

Cook retained Margaret Droppleman of Charleston and Elizabeth O'Neill of Atlanta, who joined the motion.

Stamp denied it without prejudice, inviting Provost Umphrey and Cook to seek separate trials depending on discovery.

Last year, when defendants set depositions for plaintiffs in Wheeling, Tennant asked Magistrate Judge James Seibert to order depositions in North Carolina.

At a hearing, Tennant said, "These particular plaintiffs had their cases transferred essentially from Gwinnett County, Georgia, to Marshall County, West Virginia without their consent."

He said, "The general rule as to where the plaintiffs must present themselves should be softened and be less firm in this situation where the plaintiffs did not select West Virginia for their venue."

He said, "They were essentially hamstrung to bring this legal malpractice case in the jurisdiction where most of the acts occurred."

For Provost Umphrey, Garrison said, "Quite simply, if the plaintiffs wanted to have their depositions taken in North Carolina, they should have filed this case there."

For Cook, O'Neill said, "These plaintiffs were informed that the cases were going to be dismissed in Georgia and they were going to be refiled."

She said, "If the plaintiffs had an issue with that, that was their time to speak up."

Seibert granted Tennant's motion for North Carolina depositions, finding he showed undue financial burden on his clients.

He wrote, "Defendants' suggestion that plaintiffs had some hand in or could have objected to the circuit court of Marshall County, West Virginia for the underlying action is, at best, incredulous."

He ordered Tennant to pay Garrison and Droppleman for their extra miles.

This January, Stamp adopted a schedule leading to a first trial next May.

The schedule set a May 15 deadline for depositions, but he later extended it to Sept. 1 on a joint motion.