Justices Davis, Ketchum give attorney tough time during arguments

By John O'Brien | Jan 24, 2013

CHARLESTON – The state Supreme Court didn’t treat kindly the appeal of American Electric Power as it argued against sanctions imposed against it in a case involving a fatal accident.

Justices Menis Ketchum and Robin Davis on Jan. 23 made things tough for Michael Leahey of Jackson Kelly as he tried to explain why an evidentiary hearing was needed to address Marshall County Circuit Court Judge David Hummel’s ruling of sanctions.

The sanctions dismissed AEP’s cross-claims against Pullman Power, Structural Group and Ershigs, Inc., over a chimney stack fire that killed Gerald Talbert and injured David Earley and Timothy Wells.

AEP and Ohio Power Company blamed those companies in their cross-claims for their performance of the work in constructing the chimney stack.

The examination of Leahey during oral arguments was so one-sided that Ketchum even suggested to attorney Thomas Mannion, who represented Pullman and Structural, not say anything that would lose him the case.

And when Tiffany Durst, who was arguing for Ershigs, reminded the justices that the party harmed by the sanctions was AEP and not the law firms that handled the case, Ketchum responded, “You don’t think AEP has a nice malpractice suit against their lawyers?”

Durst responded, “I don’t want to even begin to answer that question.”

At the conclusion of Durst’s and Mannion’s time, Leahey arose to reply. He said the decision to go before the justices again was “against my better judgment.”

All discovery in the case was due Jan. 14, 2011, and a trial date was set for three months later.

Prior to trial, Earley, Wells and the Estate of Talbert settled their claims. However, a month before trial, Jackson Kelly disclosed that some electronically stored information potentially relevant to the case existed.

It had been in the possession of Edward Smallwood, an attorney with Swartz Campbell, Leahey said. Jackson Kelly had taken over the case from Swartz Campbell.

The amount of documents was massive – from 750,000 to 1,500,000.

In April 2011, Pullman Power, Structural Group and Ershigs moved for sanctions. Their motion was granted in the form of the cross-claims being dismissed.

AEP and Ohio Power wanted an evidentiary hearing to discuss whether the discovery violation was made in bad faith.

Davis and Ketchum said no case law existed that said an evidentiary hearing was required. They also expressed frustration with attorneys who do not adhere to case management deadlines.

Three other cases were heard Jan. 23. They were:

-Wheeling Hospital’s appeal of an Ohio County Circuit ruling regarding the tax rate the hospital must pay;

-The appeal of the reversal of a Board of Review of Workforce West Virginia decision that said a woman was disqualified from receiving unemployment benefits after a change in her hours conflicted with daycare hours; and

-The criminal appeal of Gary Baker, who was convicted of robbing a Subway employee in Fairlea.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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