Dec. 29
James Upton vs. American Electric Power
PA – pro se; J – Nibert
* The plaintiff, a Leon resident, is suing the defendant, a Columbus, Ohio-based business, for billing electrical service to a garage at this residence at the rate for a small business. He seeks unspecified damages.
Case number: 10-C-160

Vanderbilt Mortgage and Finance Inc vs. Tammy Eades
PA – Jason Long; J – Nibert
* The plaintiff, a Marysville, Ohio-based business, is asking the court to grant it possession of a manufactured home it helped Eades finance in 2009, but has since defaulted on making the $439.94 monthly payments.
Case number: 10-C-163

Westmoreland

Vaidya

POINT PLEASANT – A Mason County physician is asking the settlement he reached last year with a Point Pleasant urologist be set aside in light a Jackson County man’s lawsuit alleging he was instructed to provide false information in the case.

Dr. Danny R. Westmoreland on Jan. 7 filed a motion to vacate the settlement reached a year earlier in his medical malpractice suit against Dr. Shrikant K. Vaidya. As grounds for his motion, Westmoreland cited claims made in the wrongful termination suit Tommy Fouty filed against Vaidya alleging he was fired in retaliation for expressing objections to signing a false affidavit that would absolve Vaidya of the fraud claims Westmoreland raised in his suit.

In November, Fouty, of Millwood, alleged in his suit, Vaidya, in a letter dated Dec. 7, 2009, informed him his services as a lab tech would no longer be needed after Dec. 31. Though he verbally told Fouty his termination was due to both he and clinic not being able to get their medical malpractice insurance renewed, Vaidya never stated that in the letter.

However, Fouty claims his termination stemmed from an incident a month earlier when he refused to sign an affidavit he believed contained “false or misleading information” regarding Vaidya’s removal of a stent from Westmoreland’s uterer that resulted in the medical malpractice suit. According to his suit, Fouty rejected signing an affidavit that claimed Westmoreland brought with him an IV kit with Valium the day of the stent removal in 2003.

Later, he alleges Vaidya’s office manger brought him a revised affidavit to sign claiming he had no knowledge if the IV kit Westmoreland brought with him contained Valium. Despite his objections, Fouty says he signed it out of fear of retaliation when the office manager told him he had no choice but to sign it.

Westmoreland’s suit, which was filed in 2005, was dismissed a year later on the grounds he failed to file a certificate of merit as required by the 2003 amendment to the Medical and Professional Liability Act. However, the state Supreme Court in 2008 remanded the case back to Mason Circuit Court with instructions Westmoreland be given time to file one since he previously demonstrated he made a good faith effort.

The Court did not comment on claims Westmoreland made against Vaidya for fraud, slander and battery. In addition to medical malpractice, Westmoreland claimed Vaidya had his assistant restrain him during the stent removal, and asserted prior to it he performed intravenous sedation on himself.

According to the state Board of Medicine, the suit was settled Jan. 6, 2010, with Vaidya’s insurance carrier paying Westmoreland $125,000.

However, Westmoreland now wants the settlement held for naught in light of Vaidya “obstruc[ing] witness [Fouty] form [sic] revealing the truth hat was absolutely essential in my case.” In the motion he filed pro se, Westmoreland says he is “making the court aware that Mr. Fouty was indeed the assistant that did restrain me against my will, which resulted in permanent body damage from the resultant assault and battery.”

In addition to vacation of the settlement, Westmoreland asked that sanctions be placed on all parties involved in “witness intimidation and filing of false affidavits.” Also, he noted he would be asking the state Board of Medicine to revisit the complaint he filed against Vaidya “since Fouty has admitted by his filing that justice was denied by the W[est] V[irginia] court system.”

As of presstime, Vaidya had not filed an answer to either Fouty’s suit or Westmoreland’s motion.

Mason Circuit Court case number 05-C-97 (Westmoreland) and 10-C-140 (Fouty)

Jan. 10
The City of Point Pleasant vs. The Franklin Revocable Trust, and Carol J. Franklin, individually and as trustee of the Franklin Revocable Trust
PA – Ronald F. Stein Jr.; J – Nibert
* The plaintiff is asking the court to void conveyance of a deed to a building on 422 Main Street in Point Pleasant owned by the defendant, and granted on March 14, 2007.
Case number: 11-C-2

Jan. 18
People’s Bank vs. Johnna Preston
PA – Michael L. Barr; J – Nibert
* The plaintiff is suing the defendant, a Columbus, Ohio resident for defaulting on two loans give to the defendant on Sept. 7, 2004, and Aug. 16, 2005, for $60,000, and $18,000, respectively. They seek judgment in the total amount of the balances outstanding, $35,534.76, plus interest.
Case number: 11-C-5

POINT PLEASANT – A Mason County man alleges a state employee is responsible for the death of his son following a 2009 automobile accident.

Samuel R. Legg filed suit in Mason Circuit Court on Feb. 2 against the state Department of Transportation, and the state of West Virginia. In his complaint, Legg, 57, of Leon, alleges a collision between Lisa H. Pete, a DOT employee, and his son, Chad, left Chad with serious injuries that resulted in his death almost a year later.

Pete, 47, of Charleston, is listed as a co-defendant in the suit.

According to the suit, Chad, was heading westbound on Sixth Street in Point Pleasant on Feb. 3, 2009, in his 2004 Jeep Grand Cherokee. While stopped at the traffic light at the intersection of Viand Street, Legg alleges Chad’s vehicle was rear ended by a 1997 Jeep Cherokee Utility Wagon driven by Pete.

At the time of the accident, Pete was performing her duties as a DOT employee, and driving one of its vehicles. The collision, Legg alleges, left Chad with permanent damages to his “bones, ligaments, tendons, muscles, nerves and other tissues.”

According to an obituary in The Point Pleasant Register, Chad later died on April 12. He was 22.

In his suit, Legg alleges as a result of the accident, Chad incurred “physical pain, discomfort, mental anguish and nervous and emotional damage and disorder.” Also, Legg says the family incurred funeral expenses following Chad’s death.

Legg seeks unspecified damages, interest, court costs and attorney fees. He is represented by Point Pleasant attorney James M. Casey.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court case number 11-C-15

Jan. 31
Roger and Judy Hoschar vs. Appalachian Power and Industrial Contractors, Inc.
PA – Alex McLaughlin; J – Nibert
* The plaintiffs, residents of Leon, are suing the defendants for an infection Roger contracted while working for Industrial Contractors at AEP’s Philip Sporn plant from breathing dust particles from bird manure which led to the partial removal of his lung. Judy makes a claim for loss of consortium. They seek unspecified damages, and interest.
Case number: 11-C-10

Feb. 2
Samuel R. Legg, administrator and personal representative of the estate of Chadrick Legg vs. Lisa H. Pete, individually, and as an employee of the West Virginia Department of Transportation, Division of Highways, the West Virginia Department of Transportation and the state of West Virginia
PA – James M. Casey; J – Nibert
* The plaintiff, a Leon resident, is suing the defendants for the wrongful death of his son following a collision Chad had with Pete at the intersection of Sixth and Viand streets in Point Pleasant on Feb. 2, 2009. He seeks unspecified damages, interest, court costs and attorney fees.
Case number: 11-C-15

POINT PLEASANT – A Mason County man’s workplace injury lawsuit gives new meaning to the expression “for the birds.”

Roger Hoschar filed suit against Appalachian Power Company and Industrial Contractors in Mason Circuit Court. In his complaint filed Jan. 31, Hoschar, 52, of Leon, alleges he developed an infection from breathing dust particles from bird manure while working at one of AEP’s power plants in Mason County.

According to his suit, Hoschar worked for Evansville, Ind.-based Industrial Contractors as a boilermaker. For a 14-month period during 2006 to 2007, he worked on one of the precipitators at AEP’s Philip Sporn Plant near New Haven.

The ledges and surfaces on the precipitator contained “large accumulations of bird manure.” In some places, Hoschar alleges it was deep as 18 inches.

Prior to the conclusion of his shift, Hoschar removed the manure that accumulated on his clothes with either a brush or an air hose. Though the manure was removed, he alleges aerosolized dust particles from it accumulated onto his clothes, and into his lungs during those 14 months.

In April 2009, Hoschar alleges he was diagnosed with histoplasmosis, an infection caused by a fungus found in bird and bat feces. Because the infection was detected two years after his assignment at AEP ended, Hoschar maintains a portion of his lung had to be removed.

In his suit, Hoschar alleges both AEP and Industrial Contrators were aware of potential harm that may come to him by working in and around bird manure on a daily basis, but did nothing to either warn him about it or provide him the necessary instructions and equipment to minimize contracting the histoplasmosis. As a result, Hoschar alleges he’s incurred medical expenses and pain and suffering, and suffered a loss of earning capacity, household services and the capacity to enjoy life.

Hoschar’s wife, Judy, 57, is named as a co-plaintiff in the suit, and makes a claim for loss of consortium.

The Hoschars seek unspecified damages, and interest. They are represented by Alex McLaughlin with the Calwell Practice in Charleston.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court case number 11-C-10

Feb. 8
David Lucas vs. Continuum Care Ventures, Inc., David Carr, in his capacity as president of Continuum Care Ventures and Richard Hirt
PA – Matthew L. Clark; J – Nibert
* The plaintiff, a resident of Point Pleasant, is suing the defendants for injuries he sustained in Feb. 2009, while working for Continuum Care, a Gallipolis, Ohio business, when he was struck in the head with a sledgehammer Hirt was using. Carr denied Lucas the opportunity to file a workers’ compensation claim pledging instead to pay all his medical expenses, but never did. He seeks unspecified damages.
Case number: 11-C-18

Feb. 22
Pleasant Valley Hospital vs. David Anthony II, Sheriff of Mason County, administrator of the estate of Judith Kay Getty Polley, deceased, Nedra D. Pickens, David M. Hindy Jr., West Virginia State Tax Department, Internal Auditing Division, West Virginia State Tax Department, Compliance Division and Omnicare, Inc.
PA – C. Dallas Kayser; J – Nibert
* The petitioner is asking the court to force the sale of property owned by Polley’s estate in order to satisfy $52,461.15 in nursing home expenses she incurred prior to her death, and in priority of all other claims submitted by the respondents against the estate.
Case number: 11-C-19

March 11
Triad Insulation dba Triad Environmental Consulting vs. M&G Polymers USA LLC, Empire Metal Recycling Inc. and International Alignment
PA – Michael A. Olivio; J – Nibert
* The plaintiff is suing the defendants for breach of contract for failing to pay the plaintiff for asbestos testing and abatement conducted between April 15 and Aug. 18, 2010. They seek judgment in the amount of $85,060.11, and court costs, attorney fees and interest.
Case number: 11-C-23

March 22
Sharon Riffle vs. Prestera Center for Mental Health Services Inc.
PA – Stephen P. New; J – Nibert
* The plaintiff is suing the defendant for wrongful termination after she was fired on March 25, 2009, for filing a worker’s compensation claim from an on-the-job injury on Nov. 18, 2008. She seeks unspecified damages, including back pay and benefits, attorney fees and court costs.
Case number: 11-C-27

March 24
Timothy Stone vs. Erma L. Rottgen
PA – James M. Casey; J – Evans
* The plaintiff is suing the defendant, a New Haven resident, for injuries he sustained on May 21, 2009, when removing a hot water heater from her home. He seeks unspecified damages, attorney fees and court costs.
Case number: 11-C-28

POINT PLEASANT – A Mason County Sheriff’s deputy charged with violating a restraining order filed against him by his estranged wife is asking a judge to dismiss it on the grounds it was improperly filed.

Robert E. Fruth II on March 28 filed a petition for extraordinary relief in Mason Circuit Court from a decision rendered against him in family court. In his petition, Fruth asked that a writ of prohibition be issued against Mason Family Law Judge Rebecca Cornett from enforcing her decision earlier in the month approving a domestic violence protective order sought by Fruth’s wife, Melissa.

Fruth alleges the order is invalid since the magistrate who first issued it failed to properly verify information Melissa provided to her. Fruth’s petition comes in the midst of him not only facing two pending counts in magistrate court for subsequently violating the protective order, but also five years after a conviction on a previous related charge.

‘A legal nullity’

According to court records, Melissa filed for divorce from Robert on Feb. 3. Eight days later, she filed a petition in Mason Magistrate Court for a domestic violence protective order.

The order was granted by Magistrate Gail Roush. However, Robert alleges Roush failed to verify from Melissa whether she attempted to notify him of the petition.

Records show Robert filed a motion to dismiss the petition. A hearing on it was held on March 9 before Cornett.

During the hearing, Roush testified while she swore Melissa under oath that the information provided was accurate, she “conceded that she could not be ‘one hundred percent sure’ whether the petition was signed earlier or in her presence, basing her belief on the fact that it is was the way she always does it.” Also, Roush testified that when she was in her presence seeking the petition, Melissa was aware Robert was “being treated at a medical facility at the time.”

Despite the ambiguity of Roush’s actions, Robert avers that prior to the conclusion of the hearing, Cornett had a member of her staff, who is a notary public, swear Melissa to the accuracy of her petition and notarized it. Though she subsequently denied his motion to dismiss, Cornett agreed to stay her order pending Robert seeking a writ of prohibition.

In his petition, Robert maintains Roush violated not only state code, but also the rules of the state Supreme Court that make clear magistrates are only to issue a protective order “upon the filing of a verified petition.” He asserts Roush’s failure to verify, and Cornett’s failure to dismiss Melissa’s petition makes it “nothing more than a legal nullity.

The case is assigned to Judge David W. Nibert

Previous charges

Twelve days after the disputed protective order was filed, Fruth, a sergeant with the Mason County Sheriff’s Office, was arrested and charged with two counts of violating it. According to the criminal complaint filed by West Virginia State Trooper K.M. Gilley, Fruth was in possession of ammunition, and made contact with Melissa through mutual friends via e-mail and telephone about dropping it.

Records show he was released on $5,000 bond, and placed on home confinement. Following the arrest, Mason County Sheriff David Anthony announced Fruth was suspended without pay pending the outcome of the case.

In 2006, Fruth was charged with not only violating a protective order, but also telephone harassment. Records show he was arrested June 17, 2006, the day after Melissa spotted him around their house after she filed a previous protective order, and a month after an investigation found he made repeated telephone calls to David Tussey accusing Tussey of breaking up his marriage.

The two charges were dropped when Fruth agreed to plead no contest to a charge of disorderly conduct. Jackson County Magistrate Tom Reynolds, who was appointed to the case after Roush and Magistrate Cheryl Ross recused themselves, on Dec. 19, 2006, gave Fruth a suspended sentence of 24 hours in jail, and ordered him to pay $160.50 in court costs.

Records show Fruth completed payment six months later.

As of presstime, neither a trial date on the pending criminal charges against Fruth nor a hearing date on his writ of prohibition has been scheduled.

Mason Circuit Court,case number 11-C-31 (writ of prohibition) and Mason Magistrate Court case numbers 11-M-229, 231 and 06-M-631, 870 and 1213(Fruth criminal)

March 28
Robert E. Fruth II vs. the Honorable Rebecca Cornett, judge of the Family Court of Mason County and Melissa Fruth
PA – Michael Eachus; J – Nibert
* The petitioner, a resident of Point Pleasant, is seeking a writ of prohibition against Cornett from enforcing a domestic violence protective order issued against him on Feb. 11 due to the petition Melissa Fruth filed seeking it was not properly verified.
Case number: 11-C-31

April 11
Town of Mason vs. Green Tree Servicing LLC
PA – Joe Supple; J – Nibert
* The plaintiff is seeking a court order condeming property on Second Street owned by Carl Johnson with a deed of trust held by the defendant in order to demolish a dilapidated two-story structure on the property. In addition to the court order, they seek judgment against the defendant for the costs of demolition, $3,000, plus court costs.
Case number: 11-C-34

April 18
State Farm Mutual Automobile Insurance Company, as subrogee of Kendall Brumfield vs. Ashley Burdette and Timothy Nolan
PA – Andrew N. Frye III; J – Nibert
* The plaintiff is the suing the defendants to recover a claim it paid to its policyholder for injuries he sustained on June 18, 2009, after he, while driving a motorcycle, was involved in a collision with a car driven by Burdette, a Point Pleasant resident, and owned by Nolan, a resident of Columbus, Ohio. They seek judgment in the amount of $36,744.48 plus interest, court costs and attorney fees.
Case number: 11-C-31

April 21
Warren Kimble vs. Mason County Public Service District, and Randy Grinstead
PA – Jon D. Hoover; J – Evans
* The plaintiff, a resident of Milton, is suing the defendants for wrongful discharge after Grinstead, the PSD’s general manager, fired him on June 17, 2009, for not only his age and health, but also because his brother, Curtis Cole Kimble, is under indictment on charges of sexual abuse. He seeks unspecified damages, court costs and attorney fees.
Case number: 11-C-40

The Mason County Public Service District office in Point Pleasant. (Photo by Lawrence Smith)

POINT PLEASANT – A former employee of the Mason County Public Service District alleges he was abruptly and improperly fired due to health, and family reasons.

MCPSD, and Randy Grinstead are named as co-defendants in six-count wrongful termination suit filed by Warren Kimble. In his suit filed April 21 in Mason Circuit Court, Kimble, 56, of Milton alleges Grinstead,55, used not only his lingering health problems from a prior on-the-job injury, but also his brother’s current legal troubles as reasons to get rid of him.

According to his suit, Kimble started work at MCPSD in 1995. Though he does not provide specifics, he worked as a laborer.

Seven years later, Kimble maintains he had a heart attack while on the clock that put him on medical leave for five months. Without providing specifics, Kimble alleges upon returning to work, Grinstead required him “to perform physical tasks in direct violation of [his] medical release and directives.”

Prior to his heart attack, Kimble alleges Grinstead would complain about his “‘home life’” interfering with his work. Those complaints came to a head in May 2009 when Kimble’s brother, Curtis Cole Kimble, was arrested on 31 counts of sexually abusing two girls while working as a teacher at Hannan High School.

According to Warren Kimble’s lawsuit, one of those girls is his wife’s niece.

Curtis, 59, also of Milton, was later indicted during the January 2010 term of the Mason grand jury on 10 counts of sexual abuse in the first degree, and three counts of sexual abuse by a custodian stemming from incidents that occurred between 1980 and 1990. Currently, he is free on $84,000 bond, and is slated for trial on May 31.

Shortly after Curtis’ arrest, Warren says Grinstead fired him. When he was terminated on June 17, 2009, Kimble alleges Grinstead was unequivocal in stating the reasons were due to “placing fellow employee’s health at risk, his age and his health.”

However, he maintains another, unstated reason was due to “the negative publicity surrounding Curtis Kimble’s arrest.”

In addition to wrongful termination, Kimble makes claims against MCPSD and Grinstead for creating a hostile work environment, intentional infliction of emotional distress and violations of the state Human Rights Act. As a result of their actions, Kimble alleges he’s suffered not only “emotional and mental distress, humiliation, anxiety, embarrassment, depression, aggravation, annoyance and inconvenience,” but also has suffered “lost wages and benefits [and] out-of-pocket expenses” as he was been unable to find a job since he was fired.

Kimble seeks unspecified damages, court costs and attorney fees. He is represented by Barboursville attorney Jon D. Hoover.

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

Mason Circuit Court case number 11-C-40

April 26
Patricia Fuller vs. Pleasant Valley Apartments, Pleasant Valley Apartments Limited and Anita Blackburn
PA – R. Michael Shaw; J – Nibert
* The plaintiff is suing the defendants for injuries she sustained on June 9, 2009, after Blackburn’s dog bit her while visiting Blackburn at her apartment. She seeks unspecified damages, attorney fees and interest.
Case number: 11-C-43

May 6
Cabell-Huntington Hospital vs. Alan Scarberry
PA – Melissa Eakle Leasure; J – Nibert
* The plaintiff, a Cabell County hospital, is suing the defendant, a Henderson resident, for unpaid medical services rendered. They seek judgment in the amount of $148,108.06 plus court costs and interest.
Case number: 11-C-50

POINT PLEASANT – A Mason County man is accusing his physician of failing to take the necessary steps to detect his diabetes.

James Morrow on May 10 filed a medical malpractice suit against Dr. Harold E. Ayers in Mason Circuit Court. In his complaint, Morrow, 76, alleges Ayers did not detect both a pituitary tumor, and diabetes.

According to his suit, Morrow was Ayers’ patient in May 2004. The suit does not specify if Morrow was a first-time or regular patient.

However, three years later, Morrow maintains he was informed of a pituitary tumor. The suit does not specify if Ayers or another physician detected it.

Nevertheless, he alleges Ayers should have detected it in 2004, and then referred him to an endocrinologist. The detection and referral, Morrow alleges, could have enabled him to fend off diabetes.

As a result, Morrow alleges he has incurred “great pain, suffering, mental anguish and permanent injury to his body.” In his suit, Morrow names Pleasant Valley Hospital as a co-defendant.

Morrow seeks unspecified damages, and interest. He is represented by R. R. Fredeking II, Paul Biser and William D. Thompson with the Fredeking and Fredeking Law Offices in Huntington.

The case is assigned to Judge David W. Nibert.

Mason Circuit Court case number 11-C-51