Toothman

POINT PLEASANT – An Ohio woman is accusing a Mason County hospital, and one of its physicians of malpractice for failing to timely treat an injury she sustained from a dog bite.

Drema Ashley filed suit against Pleasant Valley Hospital and Dr. James Toothman in Mason Circuit Court on Aug. 18. In her complaint, Ashley alleges Toothman’s improper treatment of a dog-bite wound two years ago led to amputation of one of her fingers.

According to court records, Ashley, 66, a Chesapeake, Ohio, resident, alleges she went to PVH’s emergency room on Aug. 27 2007, seeking treatment for a dog bite to her left hand. The suit does not specify the breed of the dog, or the conditions that led to it biting Ashley.

Nevertheless, the suit maintains that Toothman attended to Ashley. Though she alleges his failure to “properly treat” the wound led to the “eventual amputation of [her] middle finger, the suit does not specify what actions Toothman, or PVH, failed to take or not take.

Regardless, Ashley alleges their actions led to her suffering “permanent injury including permanent disfigurement.” This has caused her to suffer “emotional distress, annoyance, and inconvenience and the loss of ability to enjoy life” including “the loss of earnings and earning capacity.”

Ashley is seeking unspecified damages, court costs and attorney fees. She is represented by J. Michael Ranson, Cynthia M. Ranson and George B. Morrone III with the Ranson Law Offices in Charleston.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court, case number 09-C-90

Sept. 3
State of West Virginia ex. rel. Darrell V. McGraw Jr., Attorney General, vs. Bank of America, N.A.
P.A. – Fran Hughes; J- Nibert
* The plaintiff is suing the defendant for attempting to fix the prices of municipal derivatives in violation of state anti-trust laws. It is seeking unspecified damages, court costs and attorney fees.
Case number: 09-C-113

Sept. 28
Danny B. Gilman vs. Jim Rubenstein and the West Virginia Department of Corrections
P.A. – Bradley H. Lane; J – Nibert
* The plaintiff is suing the defendant for injuries he sustained on Aug. 30, 2007, after slipping on a wet floor when transporting an inmate in a wheelchair at the Lakin Correctional Center. He is seeking unspecified damages.
Case number: 09-C-122

POINT PLEASANT – The city of Point Pleasant has agreed to pay $250,000 to three former employees who alleged they were fired for political reasons.

After a day of trial, the case of Harriett Nibert, et. al. vs. the city of Point Pleasant, et. al. was pre-empted on Aug. 13 when the sides announced they agreed to a settlement. The terms of the settlement were not made public until Wood Circuit Judge Jeffrey B. Reed signed the dismissal order on Sept. 24.

Reed was appointed to hear the case after both Mason Circuit judges David W. Nibert and Thomas C. Evans III recused themselves shortly after the case was filed in March 2008. Nibert is Harriett’s husband, the lead plaintiff in the case.

The two other plaintiffs, Heather Moore and Brook Kapp, were added to the suit six months later.

In response to a Freedom of Information Act request regarding the settlement, The West Virginia Record received releases all three women signed in September. The total all three received was $162,979.48.

According to the releases, the city and Marilyn McDaniel – the former mayor who was named as a co-defendant in the suit – through Traveler’s Insurance paid each $26,535.83 for emotional distress. Nibert, Moore and Kapp also received $30,015, $45,022.50 and $8,337.50, respectfully, for wage loss.

The remaining $87,020.52 went to the women’s attorneys, Walt Auvil, and WVU Law Professor Robert M. Bastress.

According to R.F. Stein Jr., the city’s attorney, the only direct expense the city incurred from the suit was a $15,000 deductible paid to Traveler’s.

In the suit, all three alleged they were terminated “because they were associated with the previous Democratic administration.” Both Kapp and Moore were hired in the Spring of 2005 as water office manager, and finance/human resources director, respectfully, during the Jim Wilson administration while Nibert was first hired in Feb. 2002 as executive secretary to then-Mayor John Roach.

Both Roach and Wilson are Democrats.

In the May 2007 municipal election, McDaniel lead the Republican ticket in a near-sweep of city hall. The only Democrat to keep a seat on the 10-member city council was Dr. William Park who ran unopposed.

The women’s suit alleges they received respective termination letters on either June 28 or 29 saying their positions were being eliminated. The letters informed them the action was done with the consent of the new city council, and was to take effect July 1.

However, the new council was not officially sworn-in until June 30, and conducted its first meeting on July 9. In addition to being politically motivated, the suit claimed the terminations were improper since the council failed to meet, and conduct business in accordance with the state Open Meetings Act.

Two weeks before the suit was filed, McDaniel resigned as mayor citing personal reasons.

Mason Circuit Court, case number 08-C-489

Nov. 20
Lori McCoy, as administratrix of the estate of Andrya Lynn Jordan, deceased vs. Steelcase Inc. and John A. Wade Inc. and John A Wade, individually
PA – Dwight J. Staples; J – Evans
* The plaintiff is suing the defendants, a Grand Rapids, Mich. business, and Point Pleasant physician, respectfully, for wrongful death after her daughter, then 17-years-old, was killed on Nov. 26, 2006, when a large filing cabinet manufactured by Steelcase tipped over, and pinned her against a Jeep in a garage/storage facility owned by Wade, and used in conjunction with his medical practice. She is seeking unspecified damages, costs and fees.
Case number: 09-C-139

Jordan

Wade

POINT PLEASANT – A Mason County doctor — who also is the president of the state agency that licenses and disciplines them — is named in a wrongful death suit that includes allegations he committed fraud in filing false information, and claims to other agencies to prove the teenager who died working for him was legally employed.

Lori McCoy, as administratrix of the estate of Andrya Lynn Jordan, filed suit against Dr. John A. Wade on Nov. 20 in Mason Circuit Court. In addition to Wade, McCoy, 43, names his practice, John A. Wade, M.D., Inc., and Steelcase Inc., a Grand Rapids, Mich. Office furniture company, as co-defendants.

In addition to claims against Steelcase and Wade for product liability and/or wrongful death, McCoy alleges Wade fraudulently induced her to sign documents proving Andrya was one of his employees in an attempt to collect on a claim he filed with Brickstreet, the private insurance company that handles most workers compensation cases.

Crushed by cabinet

According to McCoy’s complaint, Andrya worked for Wade from July to Nov. 26, 2006, filing medical records, and other related documents. She worked “in a two-car garage/storage facility which was remote from his medical offices.”

Wade, 62, who lives on Snowcrest Lane in Point Pleasant, has offices at both Pleasant Valley Hospital in Point Pleasant, and Jackson General Hospital in Ripley. Records show, Andrya started working for Wade at 16, and was paid to only do filing at the storage building located on Lincoln Avenue.

On Nov. 26, 2006, Andrya, who was then 17 and a junior at Point Pleasant High School, was working alone at the building. The suit alleges while Andrya was loading a cabinet with files, it tipped over, and pinned her against a Jeep that was also inside the building.

Though records are unclear as to what time the incident occurred, emergency crews arrived at 6:51 p.m., and found her unresponsive. She was later pronounced dead at the scene.

According to her obituary, Andrya had a daughter, Liberty Lynn “Libby” Wroten she shared with her boyfriend, Mark Wroten. McCoy is divorced from Andrya’s father, Andrew J. Jordan, and lives in Point Pleasant with her husband, William.

Safety lacking

For reasons not immediately clear, the suit was originally filed in McDowell Circuit Court where its was dismissed by Judge Booker T. Stephens on April 23 for lack of jurisdiction. A writ of prohibition McCoy filed with the state Supreme Court was denied on Sept. 9.

In her suit, McCoy alleges both Steelcase, and Wade are to blame for Andrya’s death.

Specifically, she accuses Steelcase of manufacturing a defective filing cabinet. Among the design defects was an “interlock system” that didn’t work.

Also, McCoy maintains Steelcase failed to provide any user of the filing cabinet, including Andrya, labels and instructions on installing the cabinet, and loading the drawers. Those labels and instructions should have notified users “to load from the bottom drawer up, and to open one drawer at a time” to prevent tipovers.

Additionally, McCoy accuses Wade of failing to provide Andrya “a safe and non-hazardous work environment.” Among other things, that included the necessary equipment to help a 5’2″ girl load the top drawer of 5’5″ 500 pound cabinet, adequate supervision and securing the cabinet to prevent a tipover.

Immunity via fraud

As if the circumstances surrounding Andrya’s death weren’t enough, McCoy alleges Wade took advantage of the grief she was suffering from it to file a false workers compensation claim.

According to her suit, Wade sent a member of his staff, Terri Johnson, to McCoy’s house on Dec. 1, 2006 when she was “highly medicated” to sign a document. When McCoy asked what it was, Johnson told here it was something “she needed for the office.”

Later, McCoy discovered the document Johnson had her sign was a workers compensation claim form for Brickstreet. Included in this claim was a fraudulent W-2 form “which incorrectly listed the amount of FICA-Social Security withholdings and FICA-Medicare withholdings that had been paid during the time Andrya Lynn Jordon was working in 2006.”

In her suit, McCoy avers that though Andrya worked for Wade, no time during her employment did he take out “federal withholdings from her pay such as social security, medicare federal income withholding taxes, state income withholding takes and the like prior to her death.” Also, McCoy alleges Wade failed to not only report Andrya as a employee on his third quarter 2006 report to the state Department of Employment Security, and also pay workers compensation premiums for her.

The fraudulent acts committed by Wade, McCoy alleges were done in an attempt “to establish Andrya Lynn Jordan was an employee of John A. Wade, M.D. Inc.” and for Wade “as an individual to take advantage of the immunity statute codified in West Virginia Code 23-4-2.”

As a result of Andrya’s death, McCoy maintains that not only has she incurred funeral expenses, but she and Libby have suffered “sorrow, mental anguish, solace” and the loss of Andrya’s “society, companionship, comfort, guidance, kindly offices and advice.” McCoy makes a claim for loss of parental consortium on Libby’s behalf.

In her suit, McCoy seeks unspecified damages, interest, costs and fees. She is represented by Dwight J. Staples, and Gail Henderson-Staples of the Huntington law firm of Henderson, Henderson and Staples.

The case is assigned to Judge Thomas C. Evans III.

According to the state Board of Medicine, Wade graduated medical school from West Virginia University in 1973, and completed his residency at WVU-Charleston two years later. His specialties are in otolaryngology — eye, ear, nose and throat disorders — and allergies.

Since first being appointed to the Board in April 2001 by then-Gov. Bob Wise, Wade has become its president. The Board, an arm of the state Department of Health and Human Services, oversees the licensure and disciplining of medical doctors, podiatrists and physicians assistants.

Mason Circuit Court, case number 09-C-139

Nov. 25
In re: Frank Beckner, administrator of the estate of Ryan Beckner
PA – Pro se; J – Nibert
* The petitioner is asking the court to approve a wrongful death claim from State Farm Mutual Insurance Company in which his son, Ryan, died on Jan. 10 while riding as a passenger in a vehicle driven by Larry Novell who wrecked his vehicle into a utility pole on Sandhill Rd. He is asking the proposed $100,000 settlement be split evenly between Ryan’s two surviving children Ryan, 8, and Autumn, 6.
Case number: 09-C-140

Jan. 29
Brittany A. Hammond vs. SuperService Inc., Edwin R. Johnston Jr. and State Farm Mutual Automobile Insurance Company
PA – Stephen C. Littlepage; J – Nibert
* The plaintiff, a Point Pleasant resident, is suing the defendants for injuries she sustained on Jan. 30, 2008, when a truck driven by Johnston, a Richmond, Va. resident, and owned by SuperService, a Knoxville, Tenn.-based company, collided with Hammond while she was at the stop sign on the intersection of the U.S. 35 off-ramp, and W. Va. 2 near Henderson. Hammond makes a claim against State Farm for underinsured motorist coverage. She seeks unspecified damages.
Case number 10-C-11

Feb. 2
Lisa Gail Harper vs. Mason County Exxon d/b/a Pt. Pleasant Food Mart and City Ice and Fuel Company of Point Pleasant
PA – Charles M. Hatcher Jr.; J – Nibert
* The plaintiff is suing the defendants for injuries she sustained on July 10, 2008, when a door at the defendant’s Camp Conley location prematurely closed on her leg. She is seeking unspecified damages.
Case number 10-C-12

Feb. 3
Joshua L. Roush vs. Amherst Madison Inc. f/k/a Madison Coal and Supply Company Inc., and M/V Indiana
PA – Bradley H. Lane; J – Nibert
* The plaintiff, a West Columbia resident, is suing the defendants for injuries he sustained on Aug. 12, 2008, when bitten on the elbow by a brown recluse spider while a deckhand on the Indiana. He seeks unspecified damages.
Case number 10-C-14

This funeral home in Mason is the defendant in a consumer protection lawsuit filed last month the state Attorney General’s Office. (Photo by Lawrence Smith)

POINT PLEASANT – A Mason County funeral home is accused of repeated violations of state law dealing with pre-need funeral agreements.

The state Attorney General’s Office on Jan. 26 filed suit in Mason Circuit Court against Mr. Blue Inc., and its president, Jerry W. Tucker. Mr. Blue operates under the name of Foglesong-Tucker Funeral Home in Mason.

According to its complaint the AG’s office alleges Foglesong-Tucker on and off for the last four years has not only at times sold funeral services without a license, but also failed to account for funds used to purchase those services.

In its suit, the AG alleges Foglesong-Tucker obtained the necessary license to sell pre-need funeral agreements in 2002. Pre-need funeral agreements allow a person to purchase funeral services for oneself or someone else in a lump-sum or installment payments in advance of death.

As a condition of selling pre-need funeral agreements, the license holder must submit a report within 10 days of sale plus a $20 fee to the AG’s Pre-Need Funeral Services Division, deposit all funds into a trust account or insurance policy and submit a biennial report on the status of all contracts and the money available in each. Also, license holders must renew their certificates every year by June 30 with an accompanying $200 fee.

In May 2006, the Division requested all license holders to submit their renewal 14 days ahead of the deadline. According to the suit, Foglesong-Tucker did not submit their renewal and fee until July 19.

During the next two days, the Division conducted an audit in which it found Foglesong-Tucker to have not only sold 22 contracts to customers without submitting a copy to the Division, but also failed to account withdrawing funds belonging to 72 customers.

In April 2007, Foglesong-Tucker signed an agreement with the Division it would henceforth comply with all pre-need funeral regulations.

However, in 2008 and 2009, Foglesong-Tucker, again, failed to submit its renewal within 14 days ahead of the June 30 deadline. Though they renewed their license in 2008 on July 10, records show Foglesong-Tucker has yet to renew its license for 2009.

Following another audit conducted on Sept. 3, the Division found numerous problems in the way Foglesong-Tucker handled pre-need funeral agreements.

This time, records show, they sold nine pre-need contracts without submitting the corresponding report. Of those nine, two were sold during the time Foglesong-Tucker’s license had lapsed.

Also, the Division alleges Foglesong-Tucker could not account for funds belonging to 18 customers. Of the 18, one customer’s account was withdrawn during the unlicensed period.

During the next two months, the Division contacted Foglesong-Tucker repeatedly through the telephone, and the mail asking they correct the problems. On Nov. 30, the Division alleges it received information pertaining to the two contracts sold during the unlicensed period.

According to its suit, the Division alleges the contracts were signed by Beatrice Russell and June Skeens on Nov. 25 and 27, respectfully. However, the Division alleges the contracts “bore consumer signatures with remarkably similar handwriting, and related to transactions which the audit revealed had taken place long before November 2009 dates shown on the contracts.”

In the information submitted to the Division, Foglesong-Tucker said $4,903.46, and $8,947.50 was deposited in City National Bank under Russell and Skeen’s names, respectfully. However, a representative of City said he found no records of any deposits made by Foglesong-Tucker on either Russell or Skeen’s behalf, and, when contacted, the women told the Division they never signed the documents submitted by Foglesong-Tucker.

In its suit, the AG’ office accuses Foglesong-Tucker of nine violations of deceptive or unfair trade practices. Among them are misappropriation of Russell’s and Skeen’s pre-need funds, failure to renew their certificate and failure to maintain accurate records.

The AG’s office is asking for not only a court order temporarily restraining Foglesong-Tucker from selling any pre-need agreements, but also a order barring them from selling any ever again. The AG’s office also seeks the court’s intervention in requiring Foglesong-Tucker to turn over all requested documents regarding pre-need funeral contracts.

Along with $5,000 in fines for each violation of state law, the AG’s office seeks court costs, attorney’s fees and interest. It is represented by Christopher Hedges, an assistant attorney general in the consumer protection division.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court, case number 10-C-9

April 2
Stephen J. Ohlinger Jr. vs. the Town of Mason and Jerry Tucker, individually, and as the Mayor of Mason
PA – Brent K. Kesner; J – Nibert
* The plaintiff is suing the defendants for wrongful termination and malicious prosecution after he was fired as the chief water operator in August 2009, and later prosecuted in December 2009 for disruption of computer services after Tucker falsely accused him of refusing to disclose water system passwords to town employees. He seeks unspecified damages, attorney fees and court costs.
Case number: 10-C-26

Margaret Renee Oldaker and Troy Oldaker vs. Pleasant Valley Hospital and Mark Warren Nolan, M.D.
PA – Frank Armada; J – Nibert
* The plaintiff is suing the defendants for failing to properly perform a hysterectomy on her in February 2004. After an ultrasound revealed in 2008 her ovaries were still intact, she underwent a second hysterectomy. Troy Oldaker makes a claim for loss of consortium. They seek unspecified damages, interest and costs.
Case number: 10-C-27

April 8
Stephen Ohlinger Sr. vs. the Town of Mason
PA – Dan Greear; J – Nibert
* The plaintiff is suing the defendant for wrongful termination after he was fired as the town’s chief operator of the sewer plant in December 2009 during an unpublicized and closed-door council meeting. He seeks unspecified damages, court costs and attorney fees.
Case number: 10-C-31

POINT PLEASANT – A father and son have filed suits against a Bend-area municipality for wrongful termination.

Stephen Ohlinger Sr. and Stephen J. Ohlinger Jr. filed separate lawsuits against the town of Mason in Mason Circuit Court alleging they were improperly fired last year from their respective jobs with the town’s water office. Ohlinger Jr. also names Mayor Jerry Tucker as a co-defendant in his suit, and also makes a claim of malicious prosecution after Tucker falsely accused him of refusing to disclose passwords related to the water office following his termination.

Ohlinger Jr., 28, was first to file his suit on March 29. In it, he states he was employed at the town’s water office from 2002 until 2009.

The town council on Jan. 3, 2005, promoted Ohlinger Jr. to chief water operator. He alleges the implied contract between he and the town required that he not be fired without cause, and the town’s discipline policy stated that any termination be preceded by an oral or written reprimand.

On Aug. 21, Ohlinger Jr. alleges he was terminated without cause. He states that contrary to the discipline policy in the town’s employee handbook he was never reprimanded or disciplined for any reason.

Two weeks later, Ohlinger Jr. was arrested and charged for disruption of computer services. Records show Tucker swore out a warrant on Ohlinger Jr. after he allegedly failed to provided passwords to the town’s water system program to Mason Police Chief J.R. Gilley and other town employees.

Following his arraignment in Mason Magistrate Court, Ohlinger Jr. was released on $1,000 personal recognizance bond.

In his defense, Ohlinger Jr. avers he never “willfully and intentionally” refused to disclose the passwords from town employees. Instead, as a result of a nervous breakdown and the subsequent death of a family member following his termination, Ohlinger Jr. said he couldn’t remember them.

Ohlinger Jr. says he was not the only employee who knew the passwords, which were eventually found in a desk drawer. Also, in his suit, Ohlinger Jr. states that during the trial, Tucker “testified that the computer at issue was a standalone computer and was not used for any of the Town of Mason’s billing, payroll, or budgeting functions.”

A jury on Dec. 16 found Ohlinger Jr. not guilty on the disruption charge.

Six days before his son’s acquittal, records show Ohlinger Sr., 48, was fired as chief operator of the town’s sewer treatment plant. According to his suit filed on April 8, it was a job he had held since 1982.

In his suit, Ohlinger Sr. alleges the town violated state law when the council meet to discuss his termination. His termination was improper, Ohlinger Sr. alleges, since the council failed to provide the public notice of the meeting, and conducted it behind closed doors.

In their suits, the Ohlingers allege as a result of being terminated they’ve suffered “mental anguish, embarrassment, annoyance, inconvenience, humiliation” plus lost wages and earning capacity. In defending himself against the disruption charge, Ohlinger Jr. alleges he’s also suffered “anxiety, depression, stress, medical expenses and damage to his professional reputation.”

They both seek unspecified damages, court costs and attorney fees. Ohlinger Jr. is represented by Brent Kesner, and Ohlinger Sr. is represented by Dan Greear with the Charleston law firm of Kesner, Kesner and Bramble.

Both cases are assigned to Judge David W. Nibert.

Mason Circuit Court case numbers 10-C-26 (Ohlinger Jr.) and 10-C-31 (Ohlinger Sr.); Mason Magistrate Court case number 09-M-1416 (Ohlinger Jr. criminal)

POINT PLEASANT — For failing to perform a hysterectomy on her the first time, a Mason County woman is suing both the doctor who performed it, and the hospital where it was performed for medical malpractice

Margaret Renee Oldaker on April 2 filed suit against Pleasant Valley Hospital and Dr. Mark W. Nolan in Mason Circuit Court. In her complaint, Oldaker, 37, of Mason, alleges she had to wait four years for a hysterectomy first performed on her in 2004 was properly done.

In her suit, Oldaker alleges she sought treatment from Nolan in March 2001 “in regard to her then complaints of menstrual problems and accompanying abdominal pain.” Almost three years later on Feb. 4, 2004, Nolan admitted Oldaker to PVH to undergo a total abdominal hysterectomy.

Despite the surgery, Oldaker maintains her abdominal pain and menstrual problems persisted. In an attempt to alleviate the problems, Nolan performed on Oldaker first a laparoscopy on Nov. 5, 2006, and next an open laparotomy on Dec. 6, 2006.

In the course of conducting an ultrasound on Feb. 7, 2008, Oldaker’s family physician “revealed that her abdomen still contained both of her ovaries and her cervix.” On Oct. 1, 2008, she had surgery yet again to remove both ovaries, her fallopian tube and cervix.

Nolan, Oldaker alleges, “fraudulently attempted to cover up his negligent conduct by disputing the ultrasounds findings.” He said that the “shadows shown in the film were not those of her ovaries but rather depicted her intestines.”

As a result of Nolan’s and PVH’s negligence, Oldaker alleges she’s suffered “mental and emotional anxiety, including humiliation, embarrassment and discomfort.” Specifically, she alleges the surgeries have resulted in permanent damage to her bowels and bladder that require her to self-catherize, and take medication for them to function properly.

Oldaker’s husband, Troy, alleges he suffered a loss of consortium, and is named as co-plaintiff in the suit.

Along with recovery of $100,000 in medical expenses, and $10,000 in lost wages Margaret incurred, the Oldakers seek unspecified damages, court costs and interest. They are represented by Teays Valley attorney Frank Armada.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court case number 10-C-27

McGraw

POINT PLEASANT — For its repeated mishandling of pre-need funeral contracts, a Mason County funeral home has forever lost the ability to sell them, and is out almost $200,000.

The state Attorney General’s Office on May 4 reached a settlement in a civil suit it filed against Foglesong-Tucker Funeral Home in Mason for violations of state law regarding the sale of pre-need funeral agreements. Foglesong-Tucker agreed to never sale pre-need funerals in West Virginia, and pay the AG’s Office a civil penalty of $175,000.

According to the settlement, the bulk of the penalty, $140,000, was to be paid by June 4 with the remainder paid in monthly installments of $1,000 on the 15th of each month to the AG’s Consumer Protection Division. Also, Foglesong-Tucker was given until May 14 to provide the Division a list of pre-need agreements it signed since beginning its operation as a funeral home, and had five days to comply with any request by the Division to transfer any pre-need contract to a financial institution or to another funeral home.

Furthermore, Foglesong-Tucker, and its officers Jerry Tucker and Ray Allen Tucker Jr., were ordered to provide the Division a full list of their assets. The order stipulated that they were to notify the Division if their income ever increased, and turn over title and possession of any asset over $500 within 10 days of acquiring it.

A list of assets provided by Foglesong-Tucker attached to the order showed its fair market value estimated at $250,000, $75,000 less than the fine it was ordered to pay.

The settlement came three months after the AG first filed suit in Mason Circuit Court. Records show four days after it was filed, Judge David W. Nibert granted a preliminary injunction prohibiting Foglesong-Tucker from “selling, advertising, marketing or soliciting” pre-need funeral agreements until the case was resolved.

Pre-need funeral agreements allow a person to purchase funeral services for oneself or someone else in a lump-sum or installment payments in advance of death. Records show Foglesong-Tucker obtained the necessary license to sell them in 2002.

In its suit, the AG alleged Foglesong-Tucker on and off for the last four years had not only at times sold funeral services without a license, but also failed to account for funds used to purchase those services. An audit the Division conducted on Sept. 3 found Foglesong-Tucker sold nine pre-need contracts without submitting the corresponding report including two when its license had lapsed.

Also, the Division found Foglesong-Tucker could not account for funds belonging to 18 customers. The Division’s investigation found that two of those customers paid a total of $13,850.86 to Foglesong-Tucker for a pre-need funeral, but could not show were deposits were made under the customers’ names at the bank.

Mason Circuit Court, case number 10-C-9

April 12
David Reynolds vs. Felman Production
PA – Tammy Bowles Raines; J – Nibert
* The plaintiff is suing the defendant for injuries he sustained on April 29, 2008, when the wheel of a machine he was operating hit a hole in the floor causing his the machine to jar his back. He seeks unspecified damages, court costs, attorney fees and interest.
Case number: 10-C-36

April 14
Fredrick Cooper vs. Felman Production
PA – Dwight J. Staple; J – Nibert
* The plaintiff is suing the defendant for injuries he sustained on June 19, 2008, when a crane he was operating toppled over. The crane had been out of service, and only made operable the month before his injury. He seeks unspecified damages, court costs and attorney fees.
Case number: 10-C-38

POINT PLEASANT — Two employees of a Mason County alloy plant are suing their employer for on-the-job injuries.

David Reynolds and Frederick Cooper filed separate lawsuits in Mason Circuit Court against Felman Productions. In their respective complaints filed on April 12 and 14, Reynolds and Cooper allege the ferroalloy producer failed to take precautions at its Letart plant to prevent the injuries the men received working there in 2008.

In his suit, Reynolds says he began work at Felman on Jan. 20, 2007. He worked as stoker at one of the furnaces used in production of ferrosilicomanganese,

On April 29, 2008, Reynolds was operating a machine on the plant’s second floor to stoke the furnace. In the course of operating the machine, Reynolds says one of the wheels caught the edge of a hole in the floor causing it “to drop down into the floor.”

The jarring he received from the drop, Reynolds alleges, caused him to sustain injuries to his “back, legs other parts of his body.” The injuries to his back resulted in him undergoing “a laminectomy, decompression, and spinal fusion surgical procedures.”

Due to the extreme heat from the furnaces, Reynolds says holes in the floor are a regular occurrence. Felman would cover the holes but only “with a temporary sealing agent that was inadequate to prevent further wear and tear.”

Almost two months after Reynold’s injury, Cooper alleges he sustained his. Like with Reynolds, Cooper’s injury come while operating a machine.

According to his suit, Cooper was working as a brakeman for Felman on June 19, 2008. On that day he was asked to operate a crane.

The crane, Cooper alleges, was taken out of service when the plant was owned by American Alloys which shuttered the plant in 2000. It was placed back into service in May 2008.

The crane was placed back into service despite removal of the boom. In the course of operating the crane, Cooper alleges it toppled over resulting in him “suffer[ing] serious bodily injuries.”

In his suit, Cooper does not specify the extent of his injuries except that suffered “[p]ermanent scaring and disfigurement.” Also, he alleges the injury resulted in him not only incurring “expenses for medications, medical attention, hospital care, surgeries,” but also suffering “[g]reat physical pain and mental anguish…loss of enjoyment of life and lost wages including overtime pay.”

Likewise, Reynolds alleges the injury he incurred caused him to suffer “a loss of wages, loss of earning capacity and loss of ability to perform household services” as well as “humiliation, embarrassment, annoyance and inconvenience.”

Both men seek unspecified damages, court costs, interest and attorney fees. Reynolds is represented by Tammy Bowles Raines with the Warner Law Offices in Charleston, and Cooper is represented by Dwight J. Staples with the Huntington law firm of Henderson, Henderson and Staples.

Both cases are assigned to Judge David W. Nibert.

Mason Circuit Court, case numbers 10-C-36 (Reynolds) and 38 (Cooper)

April 16
Jeremy Barnette vs. Green Global LLC
PA – Michael Walker; J – Nibert
* The plaintiff, a Pomeroy, Ohio resident is suing the defendant, a Penn. business, for injuries he sustained on Feb. 26 when he fell 15 feet off a rock shaker at the defendant’s Letart facility. He is seeking unspecified damages.
Case number: 10-C-39

May 24
Randy Montgomery vs. Appalachian Power Company, American Electric Power Company Inc., Scott Wellman, Bill Cummings and Charles G. Matthews
PA – Mark Atkinson; J – Nibert
* The plaintiff is suing the defendants for wrongful termination after he was terminated on Nov. 1 after 23 years of employment. He is seeking unspecified damages, including lost wages and front and back pay, interest, court costs and attorney fees.
Case number: 10-C-53

May 26
Linda K. Gillispie vs. Indiana Michigan Power Company d/b/a American Electric Power
PA – Thomas H. Peyton; J – Nibert
* The plaintiff, a Milton resident, is suing the defendant for injuries she sustained on Oct. 2 while working as a cook on board the vessel Captain John Reynolds. She seeks unspecified damages, interest and attorney fees.
Case number: 10-C-54

May 28
Megan M. Stewart vs. Bayer Corporation, Bayer Healthcare LLC, Bayer Healthcare AG, Bayer Pharmaceuticals Corporation, Bayer Pharmaceuticals, Inc., Berlex Laboratories, Inc. and Berlex Inc.
PA – Tonya Hunt; J – Nibert
* The plaintiff, a Point Pleasant resident, is suing the defendants for product liability in failing to warn her about the side effects of taking the birth control pill, YAZ, which led first to failure of her gall bladder, and later to attempt suicide. She seeks unspecified damages, court costs and attorneys fees.
Case number: 10-C-55

June 3
Eva Robbins vs. Jerry Coe
PA – Pro se; J – Nibert
* The plaintiff, a Point Pleasant resident, is suing the defendant, her neighbor, for $550 to buy a new Yorkie after hers was killed by Coe’s dog on March 22. Robbins is appealing a magistrate’s decision finding she failed to prove the cost of the Yorkie, but ordered Coe to pay the veterinary bill for injuries Robbins’ Poodle sustained from the attack.
Case number: 10-C-63

June 4
Lawrence B. Vaughan vs. Amherst Madison Inc. f/k/a Madison Coal and Supply Co., Inc.
PA – James Casey; J – Nibert
* The plaintiff, a Letart resident, is suing the defendant for injuries he sustained on June 6, 2007, while working as a deckhand on the Amherst Madison. He seeks unspecified damages, interest and attorney fees.
Case number: 10-C-67

POINT PLEASANT — A Mason County woman is suing the maker of a birth control pill alleging the effects of taking it took a toll on her physical and mental health.

Megan M. Stewart filed suit against the Bayer Corporation in Mason Circuit Court. In her 11-count complaint filed on May 28, Stewart, 21, alleges side effects from an oral contraceptive she took during a two-year period not only caused her gall bladder to fail, but also led her to attempt suicide.

According to her suit, Stewart, a Point Pleasant resident, was prescribed YAZ by her gynecologist in September 2007 to “treat symptoms of menstrual cramps.” Approved by the U.S. Food and Drug Administration a year earlier as a combination oral contraceptive, the suit alleges Bayer marketed YAZ to also treat premenstrual dysphonic disorder, premenstrual syndrome and moderate acne.

YAZ, according to its Web site, is Bayer’s brand name for the drug drospirenone and ethinyl estradiol. It is produced in the U.S. by Bayer’s subsidiary Bayer HealthCare Pharmaceuticals Inc. in Wayne, N.J.

In her suit, Stewart says she continued to take YAZ through June 2008 when she began feeling pain in her midsection. She learned her gallbladder was not functioning properly, and it was removed two months later.

After a three to four month period where she stopped taking it, Stewart says she resumed treatment with YAZ in April 2009. However, she again stopped taking it in April 2009 after she “began feeling queasy.”

Once she began suffering from severe menstrual cramps, Stewart again resumed taking YAZ in November. Stewart alleges that “[w]ithin days” of resuming treatment, she “began suffering severe depression and suicidal thoughts” which led her to twice attempt suicide.

In her suit, Stewart accuses Bayer of, among other things, negligence, product liability, negligent misrepresentation, breach of express warranty, fraud and violation of the state Consumer Fraud and Deceptive Trade Practices Act. She alleges Bayer “knew or should have known that YAZ posed a serious risk of bodily harm to consumers” and had a duty to warn consumers of “reasonable, dangerous side effects including … gallbladder disease, depression, and suicidal thoughts.”

In addition to Bayer and Bayer HealthCare Pharmaceuticals, Stewart’s suit names Bayer HealthCare AG, Bayer HealthCare LLC, Bayer HealthCare Corporation, Berlex, Inc and Berlex Laboratories Inc. as co-defendants. According to Bayer’s Web site, Bayer HealthCare AG, based in Bayerwerk, Germany, is Bayer’s subgroup that oversees product development for human and animal health.

Based in Tarrytown, N.Y., Bayer HealthCare LLC is Bayer HealthCare AG’s American subsidiary. It oversees Bayer Pharmaceuticals Corp in West Haven Conn., and Bayer HealthCare Pharmaceuticals.

Bayer HealthCare Pharmaceuticals is the new name given to Berlex after Bayer acquired it in 2006.

Stewart seeks unspecified damages, court costs and attorneys fees. She is represented by Tonya R. Hunt with the Point Pleasant law firm of Handley and Hunt.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court case number 10-C-55

July 9
James R. and Geraldine Tate vs. Marie Petry
PA – Tonya R. Hunt; J – Evans
* The plaintiffs, residents of New Haven, are suing the defendant, a resident of Mason, for fraudulently transferring property owned by Geraldine Tate’s and Marie Petry’s mother to Petry. The property includes a camper, and two life insurance polices totaling $56,633 in which the Tates where the beneficiaries. They seek judgment in the amount of all property taken plus a duplicate title to the camper.
Case number: 10-C-72

Stephen Upton vs. Edmund Kelly
PA – Pro se; J – Nibert
* The plaintiff, a Leon resident, is suing the defendant, the CEO of Liberty Mutual Group, Inc., a Boston, Mass. -based insurance company, for failing to fully pay claims on damage he sustained on his home on Aug. 24, 2009, due to vandalism. He seeks unspecified damages, court costs and attorney fees.
Case number: 10-C-73

July 15
David K. Smith vs. Joe E. Miller, commissioner for the West Virginia Division of Motor Vehicles
PA – Matthew Clark; J – Nibert
* The petitioner is asking the court to compel the respondent to restore his driving privileges following an unlawful checkpoint the State Police conducted on July 9, 2009, in which Smith was arrested and charged with DUI, and Miller issued an order after the state legislature passed a bill vesting all power of license suspension in the newly created Office of Administrative Hearings.
Case number: 10-C-77

July 20
Roger S. Tompkins and Shelley Bonecutter vs. Alipio and Julissa Yabar
PA – R. Michael Shaw; J –Nibert
* The plaintiffs are suing the defendants, residents of Arlington, Va., for breach of contract in failing to clean up water damage two buildings the plaintiffs were leasing from the defendants on 512 and 514 Main Street sustained that the plaintiffs were operating as the Muddy Waters Tavern. They seek unspecified damages, court costs and attorney fees.
Case number: 10-C-70

POINT PLEASANT -– The owners of a Mason County funeral remain under close supervision after being found in contempt for failing to pay restitution to the state Attorney General’s Office to settle a consumer protection suit.

Following a hearing July 1, Judge David W. Nibert found Jerry W. Tucker and Ray Allen Tucker Sr., owners of Foglesong-Tucker Funeral Home in Mason, in contempt for missing the deadline in making the first payment to the Attorney General’s Consumer Protection Division. On May 4, the Tuckers agreed to pay the Division $175,000 to settle a pre-need suit it brought against them and the funeral home in January, with $140,000 due by June 3, and the remainder paid in monthly installments of $1,000 on the 15th of each month.

The settlement also called for Foglesong-Tucker to provide the Division by May 14 a list of all pre-need agreements it signed since beginning its operation as a funeral home, and the Tuckers not only providing the Division a full list of their assets, but also turning over title to the Division within 10 days any asset over $500. When the Tuckers missed the June 3 deadline, Assistant Attorney General Christopher Hedges petitioned the court the next day to find them in contempt.

In his petition, Hedges noted the Tuckers had the ability to make the payment as Jerry Tucker won $100,000 betting at the Kentucky Derby on May 4. Also, he said that while the Tuckers did submit a list of all pre-need contracts it ever signed, the list was incomplete.

Should they be found in contempt, Hedges asked that the Tuckers be placed in jail until they make the $140,000 payment, provide a complete list of all pre-need contracts and “[p]rovide assurance acceptable to this Court that they will not further violate the terms of the Court’s Order dated May 4, 2010.”

In his order, Nibert noted the Tuckers made partial payments totaling $73,500 toward the $140,000. The partial payments, he noted, was an apparent good faith effort the Tuckers made to satisfy the agreement while in the process of selling the funeral home.

Since a sale of the funeral home is imminent, Nibert ordered that the Tuckers take $101,500 from the proceeds and turn it over the Mason Circuit Clerk’s Office. The Clerk would then hold the funds in escrow to pay the balance of the settlement.

Nibert gave the Tuckers until Aug. 6 to complete the sale or face an additional $10,000 penalty. In the meantime, Nibert ordered the Tuckers to pay an additional $25,773.87 penalty plus 10 percent interest and provide the Division “a complete accounting of all preneed payment transactions” by the end of the business day on July 12.

If the list did not meet Hedges’ satisfaction, then Nibert said he would order Jerry Tucker arrested and taken to jail.

However, in a letter dated the next day, Hedges said, at least for moment, it was not necessary to incarcerate Tucker as he provided the Division lists of customers making deposits on pre-need contracts including the names of eight customers whose funds were misappropriated. After a thorough review of the lists, which he said “are not perfect,” Hedges informed Nibert the Division “may need another hearing in the near future to cover any remaining details on contempt and determine the status of the funeral home’s sale.”

As of press time, no new filings were made.

Mason Circuit Court case number 10-C-9

Muddy Waters on Main Street

POINT PLEASANT – Though a Mason County bar probably never intended to earn its namesake, the operators are suing the building’s owners for doing just that.

Alipio and JulissaYabar are named in a three-count breach of contract suit filed by Roger Tompkins and Shelly Bonecutter in Mason Circuit Court.

In their complaint filed on July 20, Tompkins and Bonecutter, who operate the Muddy Waters Tavern in Point Pleasant, allege they have lost customers due to a foul odor that comes from standing water in the building.

According to the suit, Tompkins and Bonecutter signed a lease with the Yabars, residents of Arlington, Va., to operate the Muddy Waters Tavern out of 512 and 514 Main Street. The lease gave Tompkins and Bonecutter use of the building for $850 a month rent for a year with the right to renew for an additional year.

Another term of the lease was that if the building became “inoperable or unusable,” the Yabars were to “promptly repair such damages and the costs of repair shall be [their] responsibility,” the suit says.

The building, Tompkins and Bonecutter allege, sustained “severe water leakage” between March 18 and 30. On two of those days – March 25 and 29 – feces and the odor of feces was also present that caused customers to leave.

On a day not stated, Tompkins and Bonecutter paid to have the water and odor removed. They claim that despite giving the Yabars notice of the property damage caused by the water leak and the repairs they paid to have done, the Yabars have “failed to promptly repair the premises pursuant to said contract.”

As a result of the Yabars failing to honor the terms of the contract calling for them to repair damages to the building, Tompkins and Bonecutter maintain they have “suffered a loss of revenue” and the business has “suffered loss of its reputation.”

Tompkins and Bonecutter seek unspecified damages, attorney fees and court costs.

They are represented by R. Michael Shaw with the Point Pleasant law firm of Shaw and Tatterson.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court, case number 10-C-79