CHARLESTON – A federal judge has awarded a Logan County man more than $86,000 after sanctioning a Charleston attorney who failed to disclose her officer client had been named a defendant in two other police brutality lawsuits.
In his August 21 opinion and order, U.S. District Chief Judge Thomas E. Johnston granted Frank Morgan’s renewed motion for sanctions against Wendy Greve of Pullin Fowler Flanagan Brown & Poe. Greve was representing Logan County Sheriff’s Deputy J.D. Tincher, who Morgan had claimed was among the officers who had beaten him following his arrest in 2018.
Johnston granted Morgan’s motion for Rule 11 and Rule 37 sanctions and awarded $85,050 in attorney fees and $1,276.48 in expenses for a total of $86,326.48.
Greve
| File photo
“This is exactly the outcome we were wanting,” Abraham Saad, one of the attorneys representing Morgan, told The West Virginia Record. “We will continue to fight to ensure our client gets what he deserves.”
Morgan's other attorney said they’re all pleased with Johnston’s order.
“For both us and for Mr. Morgan,” Kerry Nessel told The Record. “That was based on party and attorney misconduct for failing to disclose things. It changes things significantly for the case, and it affected a lot of things in the first trial, including time spent by my office and by Abe Saad’s office.
“This ruling does not play into negotiations and possible settlements. This is separate and distinct, of course. Now, we’re just looking at the facts of the case as we negotiation and possibly try to settle.”
The case stems from a 2018 incident in which Morgan claims Tincher beat him with a metal pole and rolling chair in a backroom of Logan City Hall after Morgan was arrested. Morgan suffered a broken elbow and seven staples in the back of his head as well as cuts and bruises. He also claims Tincher and other officers failed to provide him adequate and timely medical care.
After a four-day trial in 2020, a federal jury returned a verdict in favor of Tincher and Officer Kevin Conley, finding they were not liable for any of Morgan’s remaining claims in the case.
According to court filings, Morgan served discovery requests on Tincher that included asking him to disclose any allegation that had been made against him while an employee of the department as well as any litigation other than domestic matters in which he was a named party.
In his response, Tincher said Tony Meade had claimed Tincher and other deputies used “excessive force against him,” but Tincher did not says Meade had filed a civil lawsuit in 2019 against Tincher and others.
“Plaintiff’s counsel alleges that he learned, 20 days before trial, of Mr. Meade’s lawsuit against Tincher ‘by happenstance,” the order states. “This is despite the fact that Tincher was represented by the same counsel, Ms. Wendy Greve, in both the Morgan and Meade lawsuits.”
During the trial, Morgan’s attorney asked Tincher about the Meade lawsuit and asked if he had been interviewed by the police chief about it.
“I don’t believe so, sir,” Tincher responded. “I’m not a troublemaker.”
Morgan’s attorney then asked Tincher if Meade had a lawsuit pending against him, and Tincher responded that he did not and “continued to answer that he was not a defendant in a lawsuit.”
Later in the trial on July 29, 2020, according to Johnston’s order, Morgan’s attorneys learned of another undisclosed pending civil lawsuit against Tincher by someone named Fortune that later was dismissed. Tincher was represented in that case by Greve as well.
“In fact, plaintiff (Morgan) argued that Ms. Greve was well aware of the Fortune lawsuit because she filed a motion to dismiss that case on July 17, 2020,” the order states.
“During trial, plaintiff’s counsel alerted this court about the Fortune lawsuit,” the order states. “When questioned by this court about her failure to disclose the Fortune lawsuit, Ms. Greve responded, ‘(Tincher) has been sued after (the Morgan) lawsuit. I don’t understand – for an incident that occurred after the lawsuit. I don’t understand.’”
Johnston says he told Greve she had a duty to supplement and put her on notice that if he were to find she violated her discovery duty, “it would not bode well for her.” Johnston continued with the trial, deciding to wait to rule on the discovery violation matter.
Morgan’s attorneys then filed a Motion for Rule 11 Sanctions for Greve’s failure to disclose the Fortune lawsuit, also asking Johnston to allow the Fortune lawsuit to be addressed at trial.
“Greve argued that her failure to disclose the Fortune lawsuit was ‘simple oversight and harmless,’” the order states. Johnston did deny Morgan’s motion.
On September 10, 2020, Morgan asked the court to vacate the July 31, 2020, verdict against him because the failure to disclose the Fortune lawsuit during discovery kept him from introducing it at trial. But Johnston denied that motion.
However, the U.S. Court of Appeals for the Fourth Circuit reversed that decision, and Morgan filed his renewed motion for Rule 11 and Rule 37 sanctions.
The Fourth Circuit ruling also reversed and vacated the verdict in favor of Tincher and Conley. So, the case now is scheduled for another trial in October.
In his Wednesday order, Johnston said the awarding of attorney fees is proper because a discovery violation had occurred. He says the failure to supplement discovery is grounds for a sanction as long as it was not “substantially justified or … harmless.” He also says there is not evidence to suggest it was.
“Since the Fortune lawsuit is a publicly available document, Tincher’s counsel (Greve) ‘did not believe there was a duty to supplement,’” Johnston wrote. “This is a red herring.
“Parties still have a duty to produce documents requested during discovery, even if the requested documents are publicly available. … This is because even when the same documents requested may be publicly available or otherwise accessible by the requesting party, there are certain benefits that come from requiring documents to be produced through a formal discovery process.”
Johnston says Tincher also makes procedural arguments that “have no merit.”
“Tincher argues that plaintiff’s motion should be denied because plaintiff did not attempt to meet and confer before filing his motion,” Johnston wrote, noting federal, state and local rules of civil procedure. “However, the purposes of that rule make it irrelevant here. First, plaintiff’s motion is a renewed motion for sanctions. The original motion was filed on July 30, 2020. Therefore, Tincher has been on notice for years of this discovery dispute. …
“Plaintiff already was prejudiced by Tincher’s actions at that point. Meeting and conferring, or attempting to, at that moment would not have done anything to rectify the harm Tincher caused. Indeed, any effort to meet and confer would have been futile. …
“What is ultimately at issue here is Tincher’s failure to supplement.”
Greve did not return messages seeking comment.
According to her firm’s website, Greve represents elected officials, municipalities, the state, law enforcement, counties, individuals, corporations and insurance companies in all areas of litigation and in her consulting practice. She has an active practice in defending claims against state and municipal entities including civil rights and constitutional claims as well as sexual harassment and retaliation claims under the West Virginia Human Rights Act.
Greve obtained her law degree from West Virginia University College of Law, and she also provides consulting, training, and investigations in all areas of government as well as having provided skills training at the West Virginia State Police as well as training for city and county law enforcement officers and elected officials. Her training has been accredited by the West Virginia Bureau of Criminal Justice Services.
Morgan is being represented by Kerry Nessel of Nessel Law in Huntington and by Saad of Glazer Saad Anderson in Huntington. Tincher now is represented by Tyler Rittenhouse and William R. Slicer of Shuman McCuskey Slicer in Charleston. Greve is being represented by Jeffrey M. Wakefield of Flaherty Sensabaugh Bonasso in Charleston.
U.S. District Court for the Southern District of West Virginia case number 2:18-cv-1450