Oct. 2

State ex. rel Darrell v. McGraw, Jr. vs. Intersections Insurance Services, Inc., Center Partners, Inc., Sitel Corps, Sykes Enterprises, Inc. and Aegon Direct Marketing Services, Inc.; Aegon USA; Aegon Financial Services Group, Inc.; Transamerica Advisors Life Insurance Company; Transamerica Capital, Inc.; Transamerica; Stonebridge Life Insurance Company and Stonebridge Casualty Insurance Company
PA – Fran Hughes, Charli Fulton, Troy Giatras and W. Jesse Forbes; J – Nibert
*The plaintiff, the state attorney general, is suing the defendants for allegedly committing various violations of the state Consumer Credit and Protection Act committed between Jan. 1, 2001, to the present, including failing to register as a telemarketing business, clearly disclosing the product or service sold and refusing to award coverage to customers enrolled in payment protection plans. Along with court costs, interest and attorneys fee, he seeks civil penalties between $3,000 and $5,000 for each violation of the WVCCPA.
Case numbers: 12-C-122-126

Oct. 9

Sgt. Robert E. Fruth II vs. Michael Roach, Sheriff and the Mason County Commission
PA – Michael Eachus; J – Evans
*The petitioner, a suspended Mason County Sheriff’s deputy, seeks either a writ of mandamus compelling Roach to follow the alleged decision of the county Deputy Sheriff’s Civil Service Commission to reinstate him with back pay or a writ of prohibition to deny Roach from offering any new evidence of his prior misconduct at a scheduled Oct. 16 hearing for re-consideration.
Case number: 12-C-128

Oct. 10

In re: Sierra Satterfield, a minor, by and through her next friend and natural mother, Kelly Ramey
PA- Pro se; J – Nibert
* The petitioner is seeking approval of a settlement for $20,155 from State Farm, the insurance carrier of Russell and Donna Watterson following a collision Rochelle Davis had with Ramey and Satterfield allegedly caused by Morgan Watterson on July 21 along W.Va. 2.
Case number: 12-C-130

Matthew J. Hickel vs. McGinnis, Inc.
PA – Matthew L. Clark; J – Nibert
* The plaintiff, a Hartford resident, is suing the defendant, a South Point, Ohio, business, for injuries he says he sustained on Feb. 4 while working as a deckhand on the M/V Ed McLaughlin in attempting to remove a barge cover. He seeks unspecified damages, attorneys fees and court costs.
Case number: 12-C-131

HUNTINGTON – A Mason County man is appealing a federal court decision that said a power company and his employer had no duty to warn him about a health risk associated with pigeon feces.

U.S. District Judge Robert Chambers granted the defendants’ motions for summary judgment on Nov. 30 in Roger Hoschar’s lawsuit against Appalachian Power Company and Industrial Contractors.

In 2009, Hoschar had a four-centimeter mass from his lung removed. Though it wasn’t cancerous, a biopsy revealed it was benign histoplasmosis – a disease caused by inhaling the spores of a certain fungus that can be carried on birds and live in their droppings.

Hoschar, a boilermaker employed by Industrial Contractors, worked at the Philip Sporn power facility, which was owned and operated by APC, from March 2006 to April 2007. During that time, he had to clear bird droppings from the Unit 5 precipitator to prepare the area for welding.

“Here, the relevant question is: Did APC have actual or constructive knowledge that the bird manure on the Unit 5 precipitator presented a risk of histoplasmosis?” Chambers wrote.

“Plaintiff relies exclusively on a publication of the National Institute for Occupational Health and Safety to argue that APC had knowledge of a danger of histoplasmosis, which gave rise to a duty owed to Plaintiff.”

The NIOSH material was published in 1997 and revised in 2004. It was called “Histoplasmosis: Protecting Workers at Risk” and was available on the website of the Occupational Safety and Health Administration.

“Plaintiff argues that the contents of this publication, which discusses the disease, its cause and protective measures for those at risk, gave rise to a duty by APC towards its contractors,” Chambers wrote.

“The Court concludes that Plaintiff has not satisfied his burden of demonstrating that APC breached a duty owed to Plaintiff.”

Chambers said the Hoschar offered no evidence that APC or its employees has actual knowledge of the NIOSH publication or that accumulations of bird manure could lead to histoplasmosis.

APC had implemented several measures to keep the birds away from the facility, including a chemical that irritated birds’ feet when they landed on the beams, an animated owl decoy and playing recordings of bird distress calls.

Hoschar’s attorneys quickly appealed Chambers’ decision to the U.S. Court of Appeals for the Fourth Circuit. The notice of appeal was filed Dec. 3.

Hoschar’s wife Judy is also a plaintiff in the suit. She is making a claim for loss of consortium.

They are represented by Alexander McLaughlin and John Skaggs of The Calwell Practice in Charleston.

Oct. 18
Thomas Do-It Center vs. Bob Patterson d/b/a STC Contracting
PA – Stephen C. Littlepage; J – Evans
*The plaintiff is suing the defendant for goods and services provided between Aug. 11, 2011 and Feb. 12 that allegedly remain unpaid. Thomas Do-It Center seeks judgment in the amount of $17,053.56 plus interest, court costs and attorneys fees.
Case number: 12-C-132

Nov. 16
BB&T vs. Nora Henry
PA – Norman T. Daniels; J – Nibert
*The plaintiff is suing the defendant, a New Haven resident, for allegedly defaulting on a loan given to her on May 16 in the amount of $24,148.80 to purchase a 2012 Nissan Ultima. Along with an order granting it immediate possession of the vehicle, BB&T seeks court costs, attorneys fees and interest.
Case number: 12-C-135

Dec. 5

Vanderbilt Mortgage and Finance, Inc. vs. Derrick D. and Misty D. Mcie
PA – Marc Lazenby; J – Nibert
*The plaintiff is suing the defendants, residents of Letart, for allegedly defaulting on a $31,669.88 loan given them on Jan. 4, 2008. After purchasing it for $27,000 at a trustee sale on Nov. 1, it seeks immediate possession of the property.
Case number: 12-C-143

Dec. 10

Kathy Selby, Thomas Deryl Northup, Summer Mitchell and Mary Harper vs. E.I. DuPont de Nemours
PA – Kathy Brown; J – Nibert
*The plaintiffs, residents of Mason County, are suing the defendant, a Wilmington, Del.-based company, for health problems they say they incurred from drinking water that contained C-8 from the Washington Works plant beyond acceptable levels. They seek unspecified damages, court costs attorneys fees and interest.
Case numbers: 12-C-145, 146, 147, 148

Dec. 12

PAR Properties, LLC vs. J.P. King Auction Company, First American Title Insurance and Golden and Amos, LLC
PA–Robert F. Stein, Jr.; J–Nibert
*The plaintiff, a West Columbia real estate holding company, is suing the defendants for alleged breach of contract in failing to surrender to them half of the $50,000 in earnest money, First American, a Santa Ana, Calif.-based business, and Golden and Amos, a Parkersburg law firm, placed into escrow from a perspective buyer who successfully bid on property PAR sold at public auction on May 14, 2011, via J.P. King, a Gadsden, Ala.-based business, but who later defaulted. It seeks judgment against the defendants for an amount sufficient to reimburse and compensate them for the lost earnest money, plus interest, court costs and attorneys fee.
Case number: 12-C-150

Dec. 13

In re: The matter of Austin Day, a minor
J–Nibert
*Ulysses Collins petitions the court to approve settlement of a claim made by Robert Day for medical costs incurred by his son, Austin, who was struck by vehicle driven by Collins on Feb. 9. From the proposed $100,000 settlement, $33,527.01 would go to Day’s attorney, John P. O’Neil, for his legal fees and expenses, and $6,356.11 to the Ohio Department of Jobs and Family Services to settle a subrogation lien. From the net proceeds, $57,000 would be deposited into a structured settlement with Pacific Life and Annuity, and the remainder would be kept by O’Neil to use for Austin’s benefit until he turns 18-years-old.
Case number: 12-C-151

Dec. 18

Shelly K. Adkins, individually, and as the executrix of the estate of Glen Allen Adkins vs. Minnesota Life Insurance Company, The Ohio Valley Bank Company and Freida Greathouse
PA–Scott Segal; J–Nibert
*The plaintiff is suing the defendants for breach of contract for allegedly denying and rescinding insurance polices Glen purchased on Dec. 18, 2009, and March 11, 2011. She seeks unspecified damages, attorneys fees, court costs and interest.
Case number: 12-C-155

Dec. 18
Michael L. Roach, Sheriff of Mason County vs. Sergeant Robert E. Fruth II and the Mason County Civil Service Commission for Deputy Sheriffs
PA-Mark S. Weiler; J-Nibert
*The petitioner, the acting sheriff, is appealing the commission’s Sept. 20 and Nov. 29 orders reinstating Fruth to his job following his suspension on Feb. 11, 2011, after he was charged with violation of protective order and reckless driving. In its order, the commission declined to consider newly obtained evidence alleging misconduct by Fruth that Roach intended to use as grounds to fire him.
Case 12-AA-157

Dec. 19
Sergeant Robert E. Fruth II vs. Sheriff Michael Roach
PA–Michael N. Eachus; J–Nibert
*The petitioner, a Mason County deputy sheriff, is appealing the decision of the Mason County Civil Service Commission for Deputy Sheriffs’ Sept. 20 order reinstating him as a deputy sheriff and awarding him back pay retroactive to June 5, the day criminal charges of violation of a protective order and reckless driving were dismissed following a plea agreement. Fruth argues his back pay should be retroactive to Feb. 24, 2011, the day he was suspended by then-Sheriff David Anthony II. He also seeks court costs and attorneys fees.
Case 12-AA-158

Jan. 3

Danny Gay and Jeanie S. Ward vs. Mason County Emergency Ambulance Authority and John Doe
PA– Brian R. Blickenstaff; J– Nibert
* The plaintiffs, residents of Point Pleasant, are suing the defendants for allegedly failing to transport Gay to the hospital on Jan. 23, 2011, after he began experiencing breathing problems. After being revived upon arrival by hospital staff, Gay was placed on a ventilator for the next 10 days, and treated for pneumonia, he says. They seek unspecified damages, attorneys fees and court costs.
Case number: 13-C-3

Rhonda L. Miles vs. Pleasant Valley Hospital
PA– pro se; J– Nibert
* The plaintiff, a Hurricane resident, is suing the defendant for unspecified claims of age discrimination, and wrongful termination She seeks unspecified damages.
Case number: 13-C-5

McGraw

HUNTINGTON – In what was one of his final lawsuits, former state Attorney General Darrell McGraw hired a Philadelphia firm to sue pharmaceutical companies Pfizer and Ranbaxy.

The 97-page complaint alleges the two conspired to delay the introduction of a generic version of Pfizer’s Lipitor that was produced by Ranbaxy. It was filed Jan. 2 in Mason County Circuit Court and removed to federal court by the defendants on Feb. 13.

Lipitor’s original patent expired on March 24, 2010, but the complaint alleges the defendants created a scheme that prevented a generic, cheaper version of the cholesterol-lowering drug to be introduced on the market for 20 months.

“Defendants’ scheme was successful – generic Lipitor did not become available for sale until Nov. 30, 2011,” the complaint says.

“As a result of Defendants’ illegal acts, the State paid for Lipitor prescriptions when it otherwise would have paid for lower cost generic equivalent. In addition, natural persons who are citizens and residents of the State of West Virginia paid more for their prescription drugs than they otherwise would have.”

McGraw served as attorney general for 20 years before losing his bid for a sixth term in November to Republican Patrick Morrisey, who took over in January weeks after the suit was filed.

During his time in office, McGraw was frequently criticized for awarding no-bid contracts to private firms that would represent the State on a contingency fee. He hired Charleston attorney Troy Giatras, a frequent choice as special assistant attorney general, as well as the Philadelphia firm Levin Fishbein Sedran & Berman.

The firm never donated to McGraw. Richie Heath, of the AG’s office, said it is “currently in the process of reviewing the case.”

The complaint alleges Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Warner-Lambert, a wholly owned subsidiary of Pfizer and a defendant in the case, obtained the original patent in 1987.

Recently, a class action lawsuit against the company was filed in New York federal court. That follows similar allegations in a California federal court filed in November.

In removing the case, attorneys for the defendants noticed a multidistrict litigation proceeding organized in April in a New Jersey federal court over the issue. The MDL consists of 25 class action lawsuits.

The defendants say McGraw’s case is a “tag-along” case and should be incorporated into the MDL.

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

CHARLESTON – A former Mason County Sheriff’s deputy will no longer be allowed to carry a badge and gun, and will have to make his case for wrongful termination before a judge in that county.

Last year, Eric J. Lynch received decisions in separate civil actions he filed in Kanawha Circuit Court. One was an appeal of the state Law Enforcement Professional Standards Subcommittee’s revocation of his law enforcement certification, and the other a claim against both the Mason County Sheriff’s Department and the County Commission for both wrongful termination, and racial discrimination.

Judge James C. Stucky on May 4 upheld LEPSS’ decision. In his ruling, Stucky said Lynch’s decision to plead guilty to charges he fraudulent used a county-issued gas card worked against him.

“[Lynch]’s plea of guilty concerned a pattern of conduct involving public funds over a 13-month period,” Stucky said in his ruling.

“As a result, it is reasonable to conclude [his] offense involved a pattern of dishonest conduct unbecoming a law enforcement officer.”

According to court records, then-Sheriff David Anthony II on March 10, 2010, placed Lynch on suspension pending the outcome of an investigation over misuse of his department-issued gas card. The investigation, conducted by then Chief Deputy Jeff Fields at the request of County Administrator John Gerlach, discovered Lynch made unauthorized purchases of fuel totaling $4,572.37 between January 2009 and February 2010.

Two days after he received notice of his suspension, Lynch resigned. In his resignation letter, Lynch stated it was “effective immediately due to urgent family matters surrounding the death of my father on 02-10-10.”

Despite his resignation and making full restitution to the county six months later for the disputed purchases, Lynch was indicted by the grand jury on one count of fraudulent scheme, a felony, and one count of fraudulent use of a credit card, a misdemeanor. In December 2010, in exchange for pleading guilty to the fraudulent use of a credit card, then-Mason County Prosecutor Damon Morgan agreed to dismiss the fraudulent scheme charge.

Records show Judge David W. Nibert fined Lynch $2,500.

Citing his guilty plea to “acts of dishonesty,” LEPPS the following July voted to revoke Lynch’s certification.

Records show Lynch did not appeal Stucky’s ruling to the state Supreme Court.

In his wrongful termination suit filed pro se on March 12, Lynch said his father’s death was not the real reason for his resignation. Instead, he alleged he “was forced to resign my position based upon Racial Prejudice.”

No other details, expect the dates of his employment, were provided in his suit. Along with MCSD and the Commission, Lynch named Anthony and Fields as co-defendants.

Six days before filing his suit, Anthony resigned as sheriff as part of plea agreement with the Mason County Prosecutor’s Office. In January 2012, the grand jury returned a 42-count indictment against Anthony that included 38 fraud-related charges for using his state-issued purchase card for a personal trip to Orlando, Fla., in 2011.

In exchange for pleading no contest to two misdemeanor embezzlement charges, guilty to two misdemeanor firearms-related charges, resigning as sheriff, withdrawing his candidacy for re-election and publically apologizing for allegations he made that other county officials misused their purchase cards, Morgan agreed to drop the remaining charges. Nibert later sentenced him to two years in jail.

In response to Lynch’s suit, MCSD and the commission asked that it be dismissed on the grounds he not only failed to make a valid claims of either discrimination or wrongful termination against them, but also it was filed with the wrong court. Judge Charles E. King, Jr. on Dec. 12 granted their motion to dismiss on the grounds Kanawha County was the wrong venue.

Since King’s order was without prejudice, Lynch can re-file his suit in Mason Circuit Court. As of presstime, Lynch had yet to do that.

According to court records, Lynch in 2002 also accused officials in Chesapeake of using race as a factor to fire him. Though he was first suspended, then fired for “various acts of misconduct,” Lynch maintained “White police officers… committed acts of misconduct similar in severity to those allegedly committed by [him], but received no reprimand or disciplinary action.”

Along with the town, Lynch named Mayor Damron Bradshaw and former police chiefs Paris Workman and Eugene Ranson as co-defendants. The case was dismissed on Aug. 16, 2004, after the sides announced they reached a settlement.

In response to a Freedom of Information Act request submitted by the West Virginia Record, Bradshaw disclosed the town, through its insurance carrier, paid Lynch $10,000.

Kanawha Circuit Court, case numbers 02-C-1535, 12-AA-4 and 12-C-463

HUNTINGTON – A federal judge has agreed to remand a lawsuit filed by former state Attorney General Darrell McGraw against a group of credit card issuers to a state court.

Judge Robert Chambers, in his memorandum opinion and order filed in the U.S. District Court for the Southern District of West Virginia’s Huntington Division on Feb. 10, granted the attorney general’s motion to remand but denied his request for costs and fees.

In August 2011, McGraw sued eight credit card issuers in Mason County Circuit Court over their practices in selling and administering payment protection plans and other ancillary services attached to state consumers’ credit card accounts.

McGraw

The named defendants include: JPMorgan Chase & Co. and Chase Bank USA N.A., a nationally-chartered banking association; Discover Bank, a state-chartered bank; GE Money Bank, a federally-chartered savings association; World Financial Network Bank, previously a nationally-chartered bank but now a state-chartered bank; First Premier Bank, a state-chartered bank; Bank of America Corp. and FIA Card Services N.A., a nationally-chartered banking association; Citigroup Inc. and Citibank N.A., a nationally-chartered banking association; and HSBC Bank Nev., a nationally-chartered banking association.

All eight defendants removed the actions to the federal court. McGraw moved to remand.

The defendants argued that removal to the federal court is justified for three reasons.

First, they argued that the attorney general’s complaint challenges the “rate of interest” charged to credit card accounts, and is therefore completely preempted by the National Bank Act. Second, the complaint is actually a disguised class or mass action under the Class Action Fairness Act, and may be removed on that basis. Third, some of the defendants argued that the complaint presents a substantial federal question, and is therefore removable under the rule of Grable & Sons Metal Prods. Inc. v. Darue Eng. & Mfg.

Chambers, in his 32-page opinion, explained that the attorney general’s complaint — “viewed as a whole” — does not state the kind of “substantial” federal question that makes removal under Grable “appropriate.”

“(Debt Cancellation Contracts) and (Debt Suspension Agreements) are federally-regulated products, and preemption may require the application of federal law in this action. However, state consumer protection actions are not ‘creatures of federal law,’ and the state has a significant interest, recognized in (West Virginia ex rel. McGraw v.) CVS Pharmacy Inc., in retaining jurisdiction over this type of action,” the judge wrote.

“Therefore, the complaint does not fit into the ‘special and small’ category of cases exemplified by Grable, and there is no federal jurisdiction.”

All eight cases will be remanded to Mason Circuit Court. McGraw hired the Philadelphia firm Golomb & Honik for the cases.

As to the attorney general’s request for cost and fees, Chambers wrote that although the defendants’ arguments for removal jurisdiction “ultimately fail,” they are “not objectively unreasonable.” Therefore, the judge said he would not award fees and costs.

McGraw settled a similar case with Capital One in January 2012 for $13.5 million. He did not use the Golomb firm for that case.

Republican Patrick Morrisey defeated McGraw in the November election and is now attorney general.

Jan. 7
Wyoma Pentecostal Church vs. Linda McCarty, Landon Stepp and Brenda Nibert
PA– R. Michael Shaw; J– Evans
* The plaintiff is seeking an order compelling the defendants, owners of the neighboring Bragg family cemetery, to remove the headstone belonging to Junior Lee Nibert that now lies on church property.
Case number: 13-C-7

Jan. 11
Russell Watterson vs. American Electric Power, Appalachian Power Company and Asplundh
PA– Steven S. Wolfe; J– Evans
* The plaintiff, an Apple Grove resident, is suing the defendants for destruction of property after he says they removed 11 pine trees on his property located 160 feet past a 150-foot right-of-way. He seeks unspecified damages.
Case number: 13-C-12

Jan. 16
Patrick Leggett vs. CADCO Heating and Cooling, Inc., Ohio Valley Bank and Mario P. Liberatore
PA– Scott Kaminski; J– Nibert
* The plaintiff is suing the defendants for breach of contract and fraudulent representation after CADCO – an Ashland, Ky.-based business – on July 31, 2011, allegedly agreed to install a heating and geothermal unit at Leggett’s residence on Burdette Addition Dr. in Point Pleasant, but failed to complete the work by the following October. On May 2, Ohio Valley Bank – a Gallipolis, Ohio-based business – and Liberatore, one of its vice presidents, released funds held in escrow to CADCO after it claimed work was progressing, the suit says. He seeks unspecified damages, court costs, attorneys fees and interest.
Case number: 13-C-14

POINT PLEASANT – A Mason County man says the power company cut too wide a swath in clearing trees along his property.

American Electric Power and Appalachian Power Company are named as co-defendants in a destruction of property lawsuit filed by Russell Watterson. In his complaint filed Jan. 11 in Mason Circuit Court, Watterson, 53 and of Apple Grove, alleges the Columbus, Ohio-based utility and its West Virginia subsidiary did more than create an eyesore when they cut down some pine trees well beyond the approved radius.

According to the suit, Watterson entered into an agreement with AEP on Jan. 11, 2011, for it to clear 50 trees along its transmission lines adjacent to Watterson’s property. Steve Allison, an AEP representative, walked the property with Watterson and placed flag markers at the 150-foot limit to the right-of-way easement.

After staking the markers, Watterson says Allison assured him “the marked area would be the only area cut.”

However, a week later, Asplundh Tree Expert Company arrived and cut 160 feet beyond the 150-foot limit, the suit says. This, Watterson says, resulted in the improper removal of 16 white pine trees.

The pine trees, Watterson says, had more than just an aesthetic value. According to the suit, they “acted as a visual and windbreak barrier that were essential to the homeowner’s functional home protection [and] internal structural support for the pond dam located directly beside the area where the trees were taken.”

Asplundh is also named a co-defendant in the suit.

Watterson seeks unspecified damages. He is represented by Charleston attorney Steven S. Wolfe.

The case is assigned to Judge Thomas C. Evans III

Mason Circuit Court, case number 13-C-12

Feb. 20
JoAnn M. Hicks vs. Timothy S. and Natalie S. Staats
PA– R. Michael Shaw; J– Nibert
*The plaintiff, a resident of Apple Grove, is seeking a court order granting her an easement across property the defendants, residents of Letart, own surrounding hers, and have allegedly blocked the only road leading to hers with debris, trash and other items. She also seeks recovery of attorneys fees and court costs.
Case number: 13-C-30

Feb. 27
Kara Fetty and Kathy Hall vs. Valley Health Systems, Inc., Debbie Williamson and Steven L. Shattls
PA – Walt Auvil; J – Nibert
*The plaintiffs, residents of Point Pleasant, are suing the defendants for wrongful termination when they were allegedly fired on Aug. 27 for questioning VHS’ billing practices. VHS acquired Dr. Mark Nolan’s medical practice on Feb. 28, 2011. They seek unspecified damages.
Case number: 13-C-34

Jan. 10
William Ray Carper, Sr. vs. Concord Baptist Church, Jeffrey Carper, David Carper, Brian Carper, Larry Duane Carper, Tammy Henry, Deborah Henry, Park A. Parsons, Michael A. Carper, David R. Carper, Sheila Baird, Edna Fisher and Maggie Lynn Parsons
PA- Tanya Hunt Handley; J– Nibert
* The petitioner is seeking a court order declaring ownership of six of the eight burial plots at Concord Baptist Church in Southside allegedly given to his mother, Maggie Carper, following the death of his father George in 1958 by George’s former employer.
Case number: 13-C-10

Feb. 27
Former Sergeant William H. Gritt vs. Former Sheriff Michael Roach
PA– Karen H. Miller and Michael N. Eachus; J– Nibert
*The plaintiff is appealing the Nov. 29 decision of the Mason County Civil Service Commission firing him.
Case number: 13-AA-35

Morrisey

CHARLESTON – It appears that state Attorney General Patrick Morrisey will continue to pursue two of the final consumer protection lawsuits filed by former AG Darrell McGraw.

In February, two federal courts allowed Morrisey and chief counsel Dan Greear to replace McGraw and his top deputy Fran Hughes as counsel in lawsuits against Nationwide Insurance and Pfizer. McGraw had filed the lawsuits in January, two months after losing to Morrisey in the general election.

In the Nationwide suit, Morrisey is fighting a motion to dismiss. In the Pfizer suit, he is asking for an order remanding the case to Mason County Circuit Court, where it was originally filed.

The Nationwide lawsuit was filed on McGraw’s last business day as attorney general – Jan. 14. Private lawyers were hired by McGraw in both cases and appear to be staying on for Morrisey.

Morrisey’s office had no comment on the recent developments. In the past, he has said that he will use outside counsel when needed but he would like to implement a transparent bidding process.

McGraw was criticized by some during his tenure for awarding no-bid contracts to attorneys who contributed to his campaign funds.

“In order to advance transparency and ensure that the taxpayers don’t overpay for legal services, law firms hired by the state must be subject to competition,” Morrisey said during his 2012 campaign. “The concept of competitive bidding has bipartisan support and should be implemented without delay.”

The Nationwide lawsuit concerns the company’s discounts on automobile, homeowners and agribusiness insurances to members of the West Virginia Farm Bureau. It said the rates as applied to policyholders are discriminatory because the discount offered does not correspond to expected losses and average expenses, and there are no expected average cost differences reflected.

Nationwide has noted that the West Virginia Insurance Commission is charged by statute with reviewing proposed insurance rates and did approve Nationwide’s discounts.

“(T)he insurance code does not authorize Attorney General suits, and the Attorney General is not empowered to pursue actions in civil court unless specifically authorized to do so by statute,” the motion to dismiss says.

Nationwide also says the West Virginia Consumer Credit and Protection Act excludes its application to the sale of insurance.

A response filed March 7 by Greear and the Charleston law firm Tiano O’Dell says Nationwide is applying a discount below the seven percent on file with the insurance commissioner. It adds that the motion to dismiss misrepresents the factual and legal basis for the lawsuit.

“Such inaccurate premature misjudgment of claims, at the earliest phase of litigation prior to discovery, is precisely why our law disfavors motions to dismiss.”

In the Pfizer case, the company is alleged to have conspired with Ranbaxy to delay introduction of a generic version of Pfizer’s Lipitor, a cholesterol-lowering drug.

The complaint alleges Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed a multidistrict litigation proceeding organized in April in a New Jersey federal court over the issue. The MDL consists of 25 class action lawsuits.

The defendants say the case is a “tag-along” and should be incorporated into the MDL.

Greear, Charleston attorney Troy Giatras and Fred Longer of the Philadelphia firm Levin, Fishbein, Sedran & Berman signed the March 8 motion to remand.

It says the defendants “improperly” removed the matter from the Mason court for their own convenience.

Morrisey’s attorneys pointed to a recent U.S. Supreme Court case that held a state court can’t be deprived of subject matter jurisdiction over a state law claim alleging legal malpractice in a patent case.

“As recently seen in the Gunn case, it is not enough to support federal question jurisdiction over a state law claim simply by uttering some magic word, ‘patent,’” the motion says.

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

March 4

James Michael Reynolds and Kimberly A. Reynolds vs. Randy Richardson, individually and as legal guardian and conservator for Gregory N. Richardson
PA– Thomas F. Basile; J– Nibert
* The plaintiffs, residents of Gallipolis Ferry, are suing the defendants, residents of Nitro, for injuries James sustained on April 7, 2011, when Gregory allegedly pulled his truck into the Reynolds’ driveway, entered their home where he first attacked James with a club, then shot him in the foot with a .22 pistol before fleeing on foot. After a finding that Gregory was mentally incompetent to stand trial, he was remanded to the custody of the state Department of Health and Human Services where, following a stay at the William R. Sharpe Hospital, he was released to Randy’s custody on Dec. 1. Kimberly makes a claim for loss of consortium. They seek unspecified damages, attorneys fees, court costs and interest.
Case number: 13-C-37

March 12

Coen Real Estate vs. the Town of New Haven
PA– Matthew L. Clark; J– Nibert
*The plaintiff is seeking a court order instituting eminent domain proceedings against property it owns in New Haven that was allegedly damaged by the deterioration and collapse of a storm water/wastewater line.
Case number: 13-C-40

Greear

CHARLESTON – State Attorney General Patrick Morrisey says the defendants in one of his predecessor’s final lawsuits are forum-shopping and the case against them should be heard in state court.

On April 3, Morrisey filed in U.S. District Court a memorandum opposing the transfer of a lawsuit against Pfizer, Inc., and others to a multidistrict litigation proceeding in New Jersey. The case was filed by former state AG Darrell McGraw in his final month on the job, and Morrisey has taken the reins of it.

The complaint, filed originally in Mason County, alleges Pfizer and Ranbaxy conspired to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

“Filing a Notice of Removal and then seeking to utilize Multidistrict Litigation Panel procedures to forum shop (is) an abuse of the MDL process and strips the State of its sovereign rights,” the memorandum says.

“Yet, this is precisely what the defendants have done.”

The complaint alleges Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed a multidistrict litigation proceeding organized in April in a New Jersey federal court over the issue. The MDL consists of at least 29 class action lawsuits.

The defendants say the case is a “tag-along” and should be incorporated into the MDL.

On March 8, Morrisey’s chief counsel Dan Greear, Charleston attorney Troy Giatras and Fred Longer of the Philadelphia firm Levin, Fishbein, Sedran & Berman filed a motion to remand the case back to Mason County.

The private attorneys had been hired by McGraw to pursue the case.

On March 22, the defendants also filed a motion to stay the lawsuit pending a transfer to the MDL. It says West Virginia’s complaint is the 30th antitrust action against Pfizer and Ranbaxy since November 2011.

“The other 29 actions have been transferred and consolidated in the MDL court over the last year,” the defendants wrote.

“The (Judicial Panel on MDL) issued a (conditional transfer order) transferring this action to the MDL court to which the plaintiffs objected, automatically staying the CTO pending the resolution of Plaintiff’s subsequent motion to vacate the CTO.

“(G)ood cause exists for the court to stay this action pending resolution of the motion to vacate, which will likely occur by June.”

Morrisey’s April 3 brief says the defendants failed to satisfy the elements required for their requested stay.

“Removal is clearly improper, identical jurisdictional issues have not been raised in other cases transferred to the MDL proceeding, granting the motion would be judicially inefficient, and the plaintiff would absolutely be prejudiced unless the motion to stay is denied,” the brief says.

“Defendants’ attempt to forum-shop should not be rewarded with a stay.”

The brief goes on to say that removal to federal court under the Class Action Fairness Act is “flat out wrong” because the lawsuit is a parens patriae enforcement action possessing quasi-sovereign interest.

In McGraw’s case against CVS, the U.S. Court of Appeals in 2011 for the Fourth Circuit ruled for McGraw in a similar removal dispute.

Morrisey added, citing the second edition of the textbook “Modern Complex Litigation,” that MDL courts have a tendency to be the “legal equivalent of a black hole from which cases do not emerge.”

“Defendants apparently want the plaintiff to sit around and wait to see if the MDL Panel will transfer and consolidate this matter,” the brief says.

“Now is not the time for Plaintiff’s case to be lost in the shuffle of competing private out-of-state class actions.”

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

HUNTINGTON – A lawsuit against Erie Insurance Company in which the plaintiff is seeking $1.5 million in future lost wages has been removed from Mason Circuit Court to federal court.

Steven Ray Higgins, an Ohio resident, was also named as a defendant in the suit.

On May 3, 2011, at approximately 4:20 p.m., on W.Va. 62 in Mason County, Higgins wantonly, dangerously, negligently, carelessly, in violation of West Virginia law and in gross disregard of the lives and safety of others, operated a 1997 Nissan pickup and rear-ended a 2000 Ford Explorer operated by LaDonna Stewart, forcing her vehicle into the path of oncoming traffic, according to a complaint removed April 11 to the U.S. District Court for the Southern District of West Virginia at Huntington.

Philip Stewart claims Higgins’ actions caused LaDonna Stewart’s death.

The defendants’ actions in causing LaDonna Stewart’s wrongful death caused Philip Stewart and her surviving family members sorrow, mental anguish and solace; reasonably expected loss of income in an amount no less than $1.5 million; reasonably expected services, protection, care and assistance provided by LaDonna Stewart in an amount no less than $500,000; and reasonable funeral expenses in an amount no less than $12,575.63, according to the suit.

Philip Stewart claims he and his wife maintained an insurance policy with Erie which included uninsured motorist coverage in an amount no less than $50,000, which Erie has denied existence of the coverage.

In denying the existence of the uninsured motorist coverage, Erie has breached its insurance contract, according to the suit.

Philip Stewart is seeking compensatory and punitive damages and damages against Erie in an amount equal to the uninsured motorist benefits due under the policy. He is being represented by Harvey D. Peyton and Thomas H. Peyton of the Peyton Law Firm.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 3:13-cv-07762

POINT PLEASANT – A real estate company is asking a judge to order a Bend-area municipality to condemn property it owns.

The town of New Haven is named as a respondent in writ of mandamus filed by Coen Real Estate. In its petition filed March 12 in Mason Circuit Court, Coen seeks court-ordered eminent domain proceedings on property damaged by a collapsed storm water/wastewater line.

According to its petition, on an unspecified date a storm water/wastewater line collapsed, causing extensive damage to three parcels of property Coen owns in the S.A. Lewis Addition. Coen claims the town knew the collapse was imminent due to its deterioration.

Along with failing to take measures to keep the line from collapsing, Coen says the town failed to timely notify it when it did, thus resulting in unnecessary “economic loss, inconvenience, annoyance, aggravation, emotional distress and cleanup costs.”

According to the petition, Coen on at least one unspecified date attempted to get the town council to institute eminent domain proceedings. After the council failed to do so after a reasonable time, Coen decided to petition the court for a writ of mandamus seeking an inverse condemnation of the properties, it says.

Coen is represented by Matthew W. Clark with the Point Pleasant law firm of Kayser Layne and Clark. The case is assigned to Judge David W. Nibert.

Mason Circuit Court, case number 13-C-40