CHARLESTON – The West Virginia Supreme Court of Appeals, in a ruling last week, shot down a plaintiff’s efforts to have a lawsuit filed over her son’s death at a Tough Mudder event in Berkeley County remain in a Marshall County court.

The state’s high court, in an opinion issued Sept. 24, granted a petition for writ of prohibition filed by Airsquid Ventures Inc., doing business as Amphibious Medics; Tough Mudder LLC; Peacemaker National Training Center LLC; General Mills Inc. and General Mills Sales Inc.

The Tough Mudder defendants sought a writ of prohibition with the Supreme Court to prevent enforcement of a Jan. 9 order by Marshall Circuit Court Judge David W. Hummel Jr., in which Hummel ruled that Marshall County was a proper venue for the underlying wrongful death action.

The defendants argued that the circuit court misconstrued the language in the agreement the decedent, Avishek Sengupta, signed before participating in a Tough Mudder Mid-Atlantic event held April 20, 2013 in Gerrardstown, W.Va.

Avishek drowned while attempting to complete an event obstacle known as “walk the plank.”

Following his death, Mita Sengupta, his mother and personal representative, filed a civil action in Marshall County. She argues in her April 2014 complaint that her son’s wrongful death was the result of “gross negligence” and the negligent failure to either follow basic safety precautions or effectuate a “minimally competent” rescue.

Sengupta alleges that Tough Mudder had primary responsibility for participant safety; Airsquid was responsible for providing safety personnel and services; Peacemaker participated in advertising, construction and permitting of the event; and the two General Mills entities promoted and sponsored the event.

But the Tough Mudder defendants maintained that venue can be found to exist only in Berkeley County, the site of the event.

Justice Allen Loughry, who authored the majority opinion, said the court found that the defendants “have demonstrated the requisite grounds” for issuance of a writ of prohibition.

The majority sided with the Tough Mudder defendants, saying the circuit court erred by altering “the” to “any” in the agreement Avishek signed and thereby “improperly rewrote the provision at issue.”

“Patently eliding the critical article of speech (‘the’) that precedes the term ‘appropriate,’ the trial court interpreted the Agreement as providing that venue is proper in any West Virginia court that has subject matter jurisdiction,” Loughry wrote in the 14-page opinion.

“Rather than squarely address the issue of differing interpretations, the circuit court simply omitted reference to a key term of the phrase at issue -- ‘the appropriate state or federal trial court.’ Wholly ignoring the limiting effect of the term ‘the,’ the lower court declared the agreed-upon forum to be ‘any’ state or federal court that a plaintiff selects.

“Not only did the circuit court alter the terms of the Agreement with its revisionary analysis, but it clearly overlooked the significance of the related term ‘appropriate.’”

Sengupta, Avishek’s mother, had argued in selecting Marshall County as the venue for the lawsuit that General Mills sold products in grocery stores located in the county, with a specific tie-in to the event. She also had argued that the defendants’ “deliberately and regularly engage” in commerce in the county.

The court majority shot down both arguments, pointing out that “not only do none of the defendants resident in Marshall County, but none of them conducts a substantial portion of its business in Marshall County.”

“The fact that General Mills sells products in Marshall County is wholly insignificant to the venue-determinative facts of this case,” Loughry wrote. “Because it also sells products in Berkeley County, there is nothing statistically significant about the sales by General Mills of products in Marshall County that could tip the proverbial scales of justice in favor of venue existing in Marshall County.”

Rather than dismiss the case outright, the Supreme Court granted the alternative relief sought by the Tough Mudder defendants and directed the Marshall Circuit Court to transfer the underlying case to the Berkeley Circuit Court.

Justice Brent Benjamin filed a concurring opinion; Justice Robin Davis filed a dissent.

Davis, in her seven-page opinion, argues that the majority “myopically focuses” on the first subsection of the venue statute and that the writ of prohibition should have been denied.

“While the majority inexplicably inserts an invisible ‘most’ to qualify the term ‘appropriate’ in its determination that Berkeley County is the one and only suitable forum to entertain the instant suit, the language agreed to, and adopted by, the parties simply requires that the selected forum be ‘appropriate,’” she wrote.

The justice added, “To the extent that the defendants desired suits against them to be brought in the county in which their event was held as they vehemently advocated in this proceeding, it is apparent from the record in this case that they are entities of sufficient sophistication and experience in drafting waiver and indemnity agreements with the requisite degree of specificity to accomplish that aim.”

Davis’ dissent is notable, considering her connection to Sengupta’s attorney, Robert P. Fitzsimmons of Wheeling law firm Fitzsimmons Law Firm PLLC.

Fitzsimmons and his co-workers, according to campaign finance research conducted by West Virginia Citizens Against Lawsuit Abuse earlier this year, have been major supporters of Davis’ political campaigns.

According to WV CALA’s research, Fitzsimmons and other attorneys at his firm have contributed more than $10,000 to Davis’ reelection campaigns. Davis most recently won reelection in 2012.

Fitzsimmons also serves as a member of the state Judicial Investigation Commission.

In July, a JIC ruling regarding an ethics complaint filed against Davis was made public.

Former gubernatorial candidate Bill Maloney filed the complaint, regarding the relationship between Davis, her husband Scott Segal and Mississippi attorney Michael Fuller, who purchased a LearJet from Segal’s law firm.

The JIC unanimously dismissed Maloney’s complaint against Davis.

In February, attorneys for skilled nursing chain Manor Care asked for Davis to be disqualified from hearing a petition for writ of prohibition in an ongoing case against a former Manor Care-affiliated nursing home filed on behalf of the estate of Sharon Hanna, following a news report linking the justice to the plaintiff’s counsel.

In December, ABC News reported that plaintiff’s counsel in another nursing home matter, Fuller, of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Segal, for more than $1 million in 2011.

The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

Last year, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas, who alleged severe neglect led to the death of his 87-year-old mother, Dorothy. The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.

Davis has refused to recuse herself from the Hanna case.

Maloney said in April that statements made by Davis and Segal indicated to him that Davis was aware of Fuller’s million dollar-plus transfer of funds to her husband before the oral arguments in the Douglas case began.

“Rather than disclose it to her colleagues on the court, the defense counsel or the public, she instead personally presided over oral arguments and authored the majority’s decision,” Maloney said in filing his complaint with the JIC.

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Fitzsimmons Law Firm, PLLC West Virginia Supreme Court of Appeals




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