MARTINSBURG – A Jefferson County woman faces a $250,000 default judgment in a lawsuit that alleged she help steal 43 cars belonging to an organization that helps Purple Heart recipients from an auto auction, but she apparently isn’t facing criminal charges.

A lawsuit brought in 2011 by the Military Order of the Purple Heart Service Foundation said 43 automobiles that it was putting up for auction at the Winchester Auto Dealers Exchange were stolen by Pamela Hernandez, an employee at Wade.

The lawsuit, filed in Berkeley Circuit Court against WADE, was settled in July, though Wade had filed its own complaint against Hernandez and was awarded a default judgment.

On March 27, an order to enforce the default judgment against Hernandez was entered by Berkeley Circuit Judge Christopher Wilkes.

Wilkes called for Hernandez to pay $250,000, plus pre-judgment interest of $47.94 since July 9, though it is unclear if Hernandez will be able to satisfy the judgment.

The Winchester Auto Dealers Exchange agreed in July to pay the Purple Heart Service Foundation $75,000 to settle the lawsuit, which began after WADE says it discovered one of its employees was working the computer system and stealing cars.

The alleged theft occurred in 2009.

The Purple Heart Service Foundation accepts cars from the donating public, then sells them to help financially support its mission. It had given WADE 43 cars worth as much as $170,000 to sell.

Hernandez, of Ranson, allegedly altered computer entries to make it appear the vehicles had been sold by entering bills of sale in order to print gate passes for the cars, but after they were stolen she voided the sales.

She never filed a response to WADE’s third-party complaint, leading to the default judgment being granted on April 26.

WADE says it discovered the scheme on Jan. 22, 2010. It submitted a claim to its insurer and was paid $50,000.

Neither Berkeley County Prosecuting Attorney Pamela Games-Neely nor the U.S. Attorney’s Office for the Northern District of West Virginia, which has an office in Martinsburg, have pursued criminal charges against Hernandez.

Games-Neely did not return a message seeking comment, while Chris Zumpetta-Parr, public affairs specialist for the U.S. Attorney’s Office, verified there are no federal criminal charges filed against Hernandez.

The Purple Heart Service Foundation’s complaint was filed Aug. 2, 2011, by Gregory T. St. Ours of Harrisonburg, Va.

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

CHARLESTON – A federal appeals court has found no conflict of interest in a bankruptcy trustee’s appointment of a law firm that represented another party in a separate debt collection action against one of the bankrupt partnership at issue’s general partners.

The U.S. Court of Appeals for the Fourth Circuit heard the appeal from the U.S. District Court for the Northern District of West Virginia at Martinsburg. The three-judge panel of Diana Gribbon Motz, Allyson K. Duncan and Robert E. Payne issued the unpublished per curiam opinion on April 11. The vote was unanimous.

The appeal arose from the bankruptcy proceeding of Bon-Air Partnership and the sole issue on appeal was whether a conflict of interest arose when the trustee appointed a law firm that represented another party in a separate debt collection action against one of Bon-Air’s general partners, Alex Rahmi.

Bon-Air filed for Chapter 7 Bankruptcy on Nov. 11, 2009, and Rahmi signed the petition as a general partner. Bon-Air’s primary asset was approximately 130 acres of land in Charles Town and the property was valued in the petition at $750,000.

The entire debt of the bankruptcy estate was $793,162.42 and the debt was held almost entirely by two creditors who had loans secured by the subject property. Jefferson Security Bank, one of the creditors, moved to lift the automatic bankruptcy stay so that it could enforce its deed of trust and initiate foreclosure proceedings to sell the property.

The trustee, Robert Trumble, believed he could secure a higher value through a private sale and he filed a Motion to Sell in response. He attached an offer to purchase the property, dated March 10, 2010, for $1.2 million.

Rahmi objected to the Motion to Sell, asking to court to delay the sale in order for the trustee to continue to market the property and raise the selling price. Trumble then filed a notice to allow an upset bid auction to be held immediately on its Motion to Sell.

A day prior to the hearing, the court continued the hearing, stating it would grant the trustee “up to six months” to market the property before allowing Jefferson Security Bank to seek a foreclosure sale.

“The next day,” the opinion says, “Rahmi sought to dismiss the bankruptcy proceedings. Both Trustee and the creditors objected, and the court denied the motion, reasoning that Rahmi had already repeatedly attempted to delay the sale of the subject property in a deliberate effort to avoid satisfaction of Bon-Air’s creditors – by filing successive bankruptcy petitions and using other delay tactics in those cases – and because Rahmi proffered no alternatives to Trustee’s concrete offers to purchase.”

On July 6, 2010, the bankruptcy court approved the trustee’s employment of his law firm – McNeer, Highland, McMunn and Varner – as special counsel. The law firm had also been representing Wells Fargo Bank in an unrelated action to collect an outstanding debt of $208,000 from Rahmi.

Rahmi did not object to the law firm’s appointment at that time.

The property sold for $3 million at auction on September 2, 2010, and the bankruptcy court approved while neither the debtor nor Rahmi objected. After debts, commissions and expenses were paid, more than $1.8 million was deposited into an interest-bearing account on behalf of the estate and for future distribution to Bon-Air partners, including Rahmi.

On April 1, 2011, Rahmi filed a Motion to Remove Trustee for Conflict of Interest based on the law firm’s involvement in both actions concerning him. The bankruptcy court denied the motion and Rahmi initially appealed to the district court, but then voluntarily dismissed the appeal.

Rahmi then filed a Motion to Amend Judgment and to Invalidate Foreclosure Sale, arguing that the Trustee was not disinterested and had violated his fiduciary duty by selling the property at an inadequate price. Rahmi asserted the property was worth $16.2 million based on real property assessments of surrounding properties that he presented for the first time.

The bankruptcy court denied the motion and Rahmi appealed to the district court. The district court affirmed the order of the bankruptcy court, rejecting Rahmi’s conflict of interest arguments and issuing both an order denying interlocutory appeal and the opinion on the same day.

Rahmi appealed to the Fourth Circuit.

At oral argument before the Fourth Circuit, Rahmi’s counsel clarified that he did not seek to have the sale set aside by the court and only contested the bankruptcy court’s finding that no conflict of interest existed. He asked the court to overturn that finding and remand for “whatever consequences might flow from that,” according to the opinion.

“Although Rahmi confusingly presents several different arguments regarding the impact of the law firm’s alleged conflict of interest,” the court wrote, “we need not parse them because they all necessarily fail at the first step: there was no actual conflict of interest.

“At the most basic level, the separate debt collection proceeding was against Rahmi as an individual, while the bankruptcy proceedings dealt with the property of the partnership – an unrelated matter.

“As the district court observed, under West Virginia law, ‘property acquired by a partnership is property of the partnership and not of the partners individually.’

“Thus, the fact that the law firm represented Wells Fargo in an action against Rahmi personally is not an interest ‘materially adverse’ to the partnership’s bankruptcy estate, and Rahmi’s arguments to the contrary are far too attenuated to gain traction.

“Rahmi’s speculative chain of inferences could just as easily lead us to conclude that Wells Fargo (and its counsel) would have had an interest in obtaining the highest possible sale price for the subject property, to ensure that Rahmi possessed sufficient funds to fully satisfy his personal debt to Wells Fargo. Accordingly, we find no grounds for a conflict of interest here.

“Furthermore, assuming for the sake of argument that a conflict did exist, Rahmi was aware of such conflict from the outset but failed to raise the issue until after the (apparently disfavorable) sale was affirmed.

“Rahmi has been unable to articulate any way in which Trustee’s disqualification at this stage of the proceedings would impact the bankruptcy court’s disposition of the estate.”

Greenberg

MARTINSBURG – The three strippers who filed a class action lawsuit against their former employer have agreed to participate in arbitration.

On April 17, the trio and Paradise City II agreed to stay the lawsuit while they attempted mediation, which is to commence within 30 days. In a March motion to dismiss, the club had brought up a mandatory arbitration clause in their employment contracts.

The lawsuit, filed March 1 in Berkeley County Circuit Court, alleges Paradise City II violated the Fair Labor Standards Act and the West Virginia Wage Payment and Collections Act by taking a percentage of the dancers’ tips.

The motion to dismiss says both state and federal law mandates the dispute be sent to arbitration. It cites paragraph 20 of a Dancer Performance Lease the club says the dancers signed.

Paradise City in Bunker Hill.

“Any controversy, dispute or claim arising out of this lease or otherwise out of Entertainer performing at the premises of the club shall be exclusively decided by binding arbitration under the Federal Arbitration Act,” the lease says.

The lease also puts in question if the dancers are allowed to file a class action.

“Entertainer agrees that all claims between her and the club will be litigated individually and that she will not consolidate or seek class treatment for any claim,” it says.

The three plaintiffs in the March 1 case against Paradise City II are Man Le Garrett, Krystal McLaughlin and Jane Roe. Roe is a pseudonym being used to avoid violence from third parties.

The case alleges Paradise City II and manager Warren Dellinger required the three to pay, from their tips, $35 for each private dance and $30 for a 30-minute dance in the champagne room. Other dancers paid even higher amounts, the suit says, including $50 for a 30-minute dance in the champagne room.

Garrett and McLaughlin were employed for four months and Roe for 11 months. The women say they will fairly and adequately represent the class.

They are represented by Martinsburg attorney Garry Geffert and Maryland attorney Gregg C. Greenberg of the Zipin Law Firm. They also filed five complaints from March 7, 2011, to Jan. 2, 2012, in Martinsburg federal court.

Four have been settled, and the class action filed by Arielle Jordan, aka Queen, and Patrice Ruffin, aka Karma, against Legz Club remains pending, though a settlement has been proposed and accepted.

On March 28, U.S. District Judge Gina Groh ruled that the conditions of the proposed settlement are fair, though a final hearing on its fairness will be held July 29.

The gross settlement amount is $345,000. Greenberg and Geffert will petition the court for fees, litigation costs and a named plaintiff incentive award to be paid out of that amount.

Greenberg and Geffert will be petitioning for 40 percent of the award – $138,000.

In settlement negotiations, the two were originally seeking $642,000 for the class.

Any funds remaining from the $345,000 will be given to Public Justice, a public interest law firm.

Like Paradise City II, Taboo Gentlemen’s Club cited a mandatory arbitration clause in its employment contract with dancers.

The clause was the subject of a Sept. 26 motion to dismiss filed by the club. The judge in the case was never given a chance to respond to it, as the case was settled three weeks later.

Representing Paradise City II is Floyd M. Sayre III of Bowles Rice’s Martinsburg office.

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

Warner

MARTINSBURG – A month after a scheduling order was entered setting up a trial date, a Bunker Hill man has settled his claim that a car accident caused his heart attack.

On April 22, the parties in Scott Cullen’s lawsuit against Charles Davison, of Martinsburg, informed Berkeley County Circuit Court Judge Christopher Wilkes that they have reached an agreement.

On March 19, Wilkes had set an Oct. 29 trial date.

Cullen filed his lawsuit on Jan. 30, 2012, claiming Davidson rear-ended him in January 2010.

“As a direct and proximate result of the negligence and recklessness of Defendant… the plaintiff… suffered a heart attack,” the complaint says.

Cullen said he has incurred medical, hospital and related expenses of more than $127,000. He was also seeking punitive damages.

Cullen was represented by Lawrence Schultz of the Martinsburg personal injury firm Burke, Schultz, Harman and Jenkinson.

According to court records, Davidson was on his way home from grocery-shopping at Wal-Mart, was not on his cell phone at the time of the crash and incurred $5,314.95 in damages to his car.

Davidson was represented by Brian J. Warner of Shuman, McCuskey & Slicer’s Morgantown office.

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

Part of the former Mountain State University campus located inside the Martinsburg Mall

MARTINSBURG – A delay is in the works for a lawsuit that provides some insight as to how now-closed Mountain State University lost accreditation for its nursing program.

Attorneys in Helen M. Johnstone’s wrongful termination lawsuit against Mountain State and its former president Charles H. Polk have asked to extend Berkeley County Circuit Court Judge John Yoder’s deadline because Johnstone no longer lives in the area.

Johnstone, a former administrator in the university’s Martinsburg campus, says she lives in Omaha, Neb., and can’t be available for a deposition until after the May 10 discovery deadline.

Johnstone is now the director of nursing at Kaplan University. The two sides also said in an April 3 filing that additional discovery is needed, and a July 16 trial date should be pushed back.

Johnstone

Several former nursing program students have already sued MSU, which lost is accreditation for its nursing program in 2010. The details Johnstone alleges in her complaint show how it happened.

Johnstone’s complaint, filed Jan. 25, 2012, says she was hired at the Martinsburg campus in July 2007 as the director of nursing. She was charged with establishing two new nursing programs and the task of growing enrollment, which she did by 40 percent over the next eight months, she says.

In September 2007, she says she requested four additional full-time nursing faculty members be hired, but was denied by Polk. Three months later, a full-timer was hired in Keyser and another in Martinsburg.

However, the person in Keyser had “personal issues” and couldn’t fulfill the duties of the job, and the person hired in Martinsburg was “merely a replacement for a full-time faculty member assigned to different duties,” Johnstone alleges.

In May 2008, Johnstone was nominated as the new dean of nursing but refused to move to Beckley, opting instead to be appointed interim dean of academic affairs for branch campuses, she says. Another full-time member of the nursing faculty was designated as the assistant director of nursing, she says.

The same month, the position of a faculty member who died was replaced, as was the Keyser position, the suit says. However, Johnstone alleges the “net gain was zero” new employees because other employees had shifted job titles.

In October 2008, MSU hired a new dean of nursing and health sciences, Dr. Haley, the suit says. His or her first name is not given in the complaint.

Under Dr. Haley, staffing remained “grossly inadequate,” Johnstone alleges, and the issue threatened accreditation of the nursing program by the National League for Nursing Accrediting Commission.

In March 2009, Johnstone said she found out she had breast cancer, and she received a new job title as dean of new program development, which gave her no academic responsibilities. In late 2009, she says she found out her name had been included as a full-time member of the nursing faculty on a self-study prepared for an NLNAC accreditation visit.

During the visit, MSU was found to be in non-compliance, and the West Virginia Board of Examiners for Registered Professional Nurses subpoenaed Johnstone, the lawsuit says.

During an October 2010 hearing, Johnstone testified that the facility did not have adequate faculty and that her requests made in the past had been denied, she says.

In November 2010, during a meeting with the Martinsburg leadership team, Polk said someone had provided inappropriate testimony, the lawsuit says. After a two-week vacation, Johnstone was fired on Dec. 12, 2010.

Her lawsuit seeks general damages, lost future wages and punitive damages. She is represented by Martinsburg attorney Harry P. Waddell.

After Johnstone’s testimony, the WVBOERPN voted unanimously to require that MSU’s nursing program cease and desist all admissions to all nursing programs/pathways or any other program representing progression toward a nursing degree.

In July, the Higher Learning Commission said it was withdrawing Mountain State’s accreditation. They listed “systemic breakdowns in leadership, program oversight, integrity issues and failing to provide accreditation information to students” as the reasons for the withdrawal.

On Aug. 1, the University of Charleston announced it is taking over Mountain State University’s campuses in Beckley and Martinsburg.

Fourteen lawsuits were filed in Jefferson Circuit Court on Aug. 6, by students who claim the university engaged in widespread criminal enterprise and racketeering activity.

The university only has a 2.5 percent graduation rate for students seeking bachelor’s degrees, which is the lowest graduation rate of any private school in the Chronicle of High Education’s analysis.

In 2009, Polk’s salary was $1,843,746, which was 3.5 percent of the university’s annual budget and was the highest percentage of a college budget received by any president of a private university that year, according to the Chronicle of Higher Education.

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

Berkeley County office building

MARTINSBURG – West Virginia Supreme Court Chief Justice Brent Benjamin has appointed a judge to hear a Berkeley County lawsuit that claims a councilman was attempting to steer business to preferred companies.

On March 7, Benjamin appointed retired Judge Andrew N. Frye, Jr. to hear Jay Russell’s lawsuit against the Berkeley County Council and Councilman Doug Copenhaver. Each judge in the Twenty-Third Circuit disqualified himself from the case, which alleges Russell, a county employee, was fired for not buying electrical supplies from Tri-State Electrical.

Frye, who was a judge in the Twenty-First Circuit, previously filled in at the Twenty-Third Circuit after Judge Gina Groh was appointed to a federal judgeship in 2012.

Judge John Yoder was assigned the case first, but disqualified himself because Copenhaver had supported his campaigns.

“(E)very circuit judge (with the exception of Judge Lorensen) has had a substantial amount of contact with Jay Russell, as he is the person the judges relied upon to maintain their offices, courtrooms and facilities,” Yoder wrote in February to Benjamin.

Judge Michael Lorensen had a direct conflict of interest with hearing the case because he represented Copenhaver and the Berkeley County Council when the case was first filed and he was still an attorney at Bowles Rice.

Benjamin

The lawsuit was filed on May 4 by Russell, a Winchester, Va., man who was the Berkeley County Facilities Director from September 2006 to November 2011. Copenhaver won election to the Council in 2010 and took office in January 2011.

“Once Doug Copenhaver was elected to the Berkeley County Council, he began to steer county contracts to selected businesses favored by Copenhaver,” the complaint says.

Russell says he purchased electrical supplies and equipment from Fastenal because it offered the lowest prices, but Copenhaver often urged him to purchase the same from Tri-State Electric.

On Sept. 9, 2011, Copenhaver arranged a meeting with employees of the facilities department without telling Russell, the lawsuit claims. Russell said an employee notified him of the meeting and he was in attendance for it.

At the meeting, Copenhaver reiterated his demand for the county to conduct business with Tri-State Electrical, the suit says.

“In good faith, Plaintiff opposed Copenhaver on the grounds that purchasing from Tri-State Electric was a substantial waste of County taxpayer money as Fastenal could and would supply the necessary items at a significantly more competitive price,” the suit says.

In response, Copenhaver met with Deputy County Administrator Alan J. Davis and County Administrator Deborah Hammond. In his answer to the complaint, Copenhaver said the meeting was to “advise them that the meeting had taken place and to let them know generally what had been discussed.”

A month later, Davis told Russell that he was being placed on administrative leave for an alleged violation of Berkeley County’s fuel card policy, the suit says.

Eleven days later, Davis sent a letter to Russell that said he was also being charged with theft, misappropriation and unauthorized possession or removal of Berkeley County property or the property of co-workers, the suit says.

The letter also said the matter was being referred to Berkeley County Prosecuting Attorney Pamela Games-Neely. Russell’s attorney, Harry Waddell, says Russell has never been charged.

Copenhaver

Russell was fired Nov. 10, 2011, by a 3-2 vote by the council. Copenhaver, Elaine Mauck and Tony Petrucci voted in the majority, with Bill Stubblefield and Jim Whitacre voting to keep him.

The issues stemmed from an account separate from the county’s general fund that Russell had created for funds gained from selling scrap. Waddell said his client had permission from former County Commissioner Ronald Collins to do so.

“The alleged reasons given to justify Plaintiff’s termination were a pretext for the unlawful retaliation against Plaintiff for opposing waste and wrongdoing in the contracting of County purchases of goods and equipment,” the complaint says.

Copenhaver filed a motion to dismiss on June 8 that said because the alleged events took place before he filed for bankruptcy on Dec. 7, 2011, the charges against him should be dismissed.

Copenhaver’s petition for bankruptcy listed 50-99 creditors owed between $1,000,001 and $10 million.

On Oct. 15, Copenhaver’s motion to dismiss the bankruptcy case was granted. It said Copenhaver was current on all obligations with the exception of loans given by Bank of Charles Town.

Copenhaver negotiated a forbearance agreement with BCT that restructures his obligations in OCT that allows him to continue operating his properties and assets. Copenhaver owns Custom Contracting, Snowy River Log Homes and Goodland, LLC.

On April 17, Copenhaver voluntarily dismissed his motion to dismiss Russell’s lawsuit.

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

Ferretti

MARTINSBURG – A Berkeley County man is suing the Kentucky Fried Chicken located in Inwood because he says it caused his fall and subsequent broken ankle.

Kenneth and Karen Rinehart filed a personal injury lawsuit April 9 in Berkeley Circuit Court against Inwood Food Service and Allen Properties, doing business as Kentucky Fried Chicken.

In it, the Rineharts allege Kenneth was parked at KFC on April 11, 2011, awaiting his food order. When he walked to the entrance to pick his food up, he says he slipped on a muddy substance.

The awkward fall caused his right leg to go under him, resulting in a broken ankle, he says.

An employee of KFC was using a hose to spray down the sidewalk in front of the entrance, the suit says, but no sign was posted “to alert customers as to the presence of water and other substances on the sidewalk,” the lawsuit says.

The water from the hose combined with a muddy substance to make the walkway extremely slippery, the Rineharts allege.

KFC employees responded to the fall by placing “a cardboard barrier under his body to protect his clothing and body from the muddy substance,” the lawsuit says.

The broken ankle required surgery and caused permanent pain, limitation of movement, future medical expense and loss of enjoyment of life, the suit alleges. Karen Rinehart is making a claim for loss of consortium.

The Rineharts are represented by Joseph R. Ferretti of Hammer, Ferretti and Schiavoni in Martinsburg.

The case has been assigned to Judge Christopher Wilkes.

Berkeley Circuit Court case number 13-C-284.

April 9
Kenneth and Karen Rinehart v. Inwood Food Service and Allen Properties, dba Kentucky Fried Chicken
PA- Joseph R. Ferretti; J-Wilkes
* The Rineharts allege Kenneth was waiting on a food order at the Kentucky Fried Chicken restaurant in Inwood when he walked to the entrance and slipped on a muddy substance that had become slippery when it was sprayed with water. The fall caused Kenneth to break his ankle, requiring surgery, the lawsuit says.
Case number: 13-C-284

April 15
USA Truck v. Rebecca Dawn Harrity
PA- David A. Valent; J- Wilkes
* USA Truck is an Arkansas company that says Harrity caused an automobile crash in Falling Waters on Oct. 18. The plaintiff says it incurred property damage of $11,990.81.
Case number: 13-C-287

April 22
Ruth and Glenn Gosnell v. Thomas E. Knutson, Jr., D.O.
PA- Richard McCune; J- Yoder
* The plaintiffs say Ruth Gosnell was treated at City Hospital by the defendant after she slipped in her bathroom on March 24, 2011. Though Knutson diagnosed and fixed a broken tibial fracture below her right knee, Gosnell says he did not sufficiently examine the rest of her leg and failed to diagnose a femoral condylar fracture. After months of pain, Gosnell says Knutson poorly fixed the fracture in October 2011.
Case number: 13-C-310

Waddell

MARTINSBURG – During his appeal to a federal appeals court, a Martinsburg man has settled his excessive force lawsuit against the city’s police force.

Attorney Harry P. Waddell says his client, William Hale, recently agreed to settle his lawsuit for $35,000. Hale was appealing a summary judgment ruling in favor of Officer Erin P. Gibbons by U.S. District Judge Gina Groh.

Gibbons was the only remaining defendant in a lawsuit originally filed in 2011 against another officer and the City of Martinsburg. Groh ruled in January that Gibbons did not use excessive force while arresting Hale at the Enterprise Rent-A-Car in Martinsburg on May 6, 2011.

After Hale appealed the U.S. Court of Appeals for the Fourth Circuit, mediation was scheduled for Feb. 27, after which the briefing deadlines were extended. On April 22, Hale filed a motion to dismiss his appeal because of the settlement.

According to Groh’s opinion, on May 6, 2011, Hale was involved in a dispute with the manager of an Enterprise Rent-A-Car in Martinsburg and he refused to leave after being asked to.

Gibbons arrived in response to a call placed by Enterprise and found Hale talking on the phone in the Enterprise lobby. Gibbons asked Hale to leave the rental agency and Hale responded that he would leave after he finished his phone call to Enterprise’s customer service department.

The opinion states, “The Plaintiff alleges the Defendant became agitated and told the Plaintiff to leave the rental agency again. The Plaintiff continued his call. At that point, the Defendant allegedly began tasing the Plaintiff on the neck, shoulders, and upper back.

“According to the Plaintiff, even though he advised the Defendant he had a defibrillator, the Defendant continued to administer repeated shocks to the Plaintiff’s neck, shoulders, and back.”

At this point, another police officer, Officer Michael Jones, responded and they were able to subdue Hale, remove him from Enterprise, and place him in the back of a patrol car.

Hale alleged that he began to experience chest pains during the incident, and at some point after his release from the Martinsburg City Police Department later that day, he was carried to a local hospital by his daughter. He was released on May 9, 2011.

“The Plaintiff alleges the Defendant and Officer Jones’ use of force resulted in more than 30 burn wounds on his neck, shoulders, and back,” the opinion states.

The version of events described by the officers was decidedly different from the plaintiff’s.

“According to the Defendant, the Plaintiff was ‘speaking in circles,’ holding the telephone up to his ear without talking into it, then putting it down in his lap. Therefore, the Defendant concluded the Plaintiff might be mentally impaired,” the opinion says.

“When the Plaintiff commented he was calling his daughter or wife to pick him up, the Defendant offered to give the Plaintiff a ride to a nearby 7-Eleven store to wait for his ride. The Defendant testified based on the Plaintiff’s behavior, he feared the Plaintiff might be ‘buying time,’ and ‘on the brink of exploding.’

“Thus, the Defendant alleges he gave the Plaintiff several more orders to leave and placed a call for backup. At this point, the Plaintiff stated ‘the only way I’m leaving is by physical force.’”

Gibbons claimed that after grabbing Hale by his arm, Hale pulled away from him and Gibbons then administered a five-second burst to Hale’s back. After it appeared that the initial burst did not faze Hale, Gibbons tased Hale again several times in an effort to get Hale to lie on the floor and stay there.

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

A Dollar General store in Martinsburg

MARTINSBURG – After a discovery dispute, Dollar General Corp. is now arguing with class action attorneys over $720.

Stephanie N. Paulino filed a class action lawsuit against Dollar General in 2012, alleging the company violated the West Virginia Wage Payment and Collection Act when it failed to pay her final wages within 72 hours of her termination.

On April 25, U.S. District Judge Gina Groh, of the Northern District of West Virginia, awarded attorneys fees to Paulino for fees incurred attempting to get Dollar General to disclose certain personnel records.

Paulino sought information on whether each former employee of the company’s West Virginia locations within the past five years was terminated voluntarily or involuntarily. Dollar General argued that information was outside the scope of discovery.

Magistrate Judge James Seibert ruled it was Dollar General’s disingenuous position that Plaintiff voluntarily terminated her position that led the court to grant the request” for the information, as well as related expenses.

“Defendants argue that there is a substantial body of case law supporting their position that discovery should be limited to the certification issue or the merits of Plaintiff’s claim – not to the merits of the putative class’s claim,” Groh wrote.

Hammer

Waddell

“Defendants attempt to place a limit on discovery. The court’s scheduling order clearly did not limit the scope of discovery and substantial case law also supports this court’s decision to allow both merits-based and certification-based discovery.”

Having been awarded expenses, David Hammer – of Hammer, Ferretti and Schiavoni – and Harry P. Waddell submitted affidavits that seek $400 an hour for their work during the discovery issue.

They both wrote that their regular hourly rate for work in class actions is $400.

“Defendant’s appeal was much more complex than a run-of-the-mill discovery dispute (as evidenced by the court’s comprehensive 29-page ruling),” both of the affidavits say.

Hammer filed his first on April 26 seeking $1,080 for 2.7 hours of work. Dollar General objected a week later, arguing he should only be paid $300 per hour – $810 total.

“(I)n light of the fact that Magistrate Judge Seibert has already concluded, without objection, that $300 is ‘more than a reasonable rate,’ there is no justification for increasing that rate for related matters,” Dollar General’s objection says.

The company is represented by Larry J. Rector of Steptoe & Johnson in Bridgeport and Joel S. Allen and Jason R. Elliott of Morgan, Lewis & Bockius in Dallas.

The objection was filed before Waddell’s affidavit, which seeks $400 an hour for 4.5 hours – $1,800 total. If the company files a similar objection, it would decrease the total amount to $1,350.

The original motion to compel was filed on Jan. 2. Groh granted a stay on Seibert’s order on Feb. 21 while she ruled on Dollar General’s objections.

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

MARTINSBURG – A Morgan County man is blaming his employer for a fall off a ladder.

James Michael Burks filed a lawsuit April 30 in Berkeley County Circuit Court against Timber Ridge Heating and Air Conditioning and Michael Ambrose, alleging the company is at fault for an accident that left him in the hospital for 11 days.

The alleged accident occurred on May 12, 2011.

“Timber Ridge and Ambrose failed to provide a reasonably safe workplace for Burks by failing to utilize the proper ladder and/or safety equipment at the workplace to ensure Burks’ safety,” the complaint says.

Burks says he was working with Ambrose at a single-family residence in Inwood when the fall happened. Ambrose was working in the attic, and Burks was climbing and descending the ladder to transfer parts to him, the complaint says.

While descending the ladder to unhook the heat pump and air conditioning unit that was being replaced, Burks says he fell eight feet, sustaining major injuries.

According to the complaint, Burks was hospitalized for 11 days and spent seven days in the Intensive Care Unit.

Burks also alleges the defendants failed to properly train, instruct and/or supervise Burks for use of the ladder. He is being represented by Berkeley Springs attorneys Richard G. Gay and Nathan P. Cochran.

In addition to compensatory damages, Burks seeks punitive damages. The case has been assigned to Judge Gray Silver III.

Berkeley Circuit Court case number 13-c-333.

MARTINSBURG – A Berkeley County bar is suing insurance companies that refuse to defend or indemnify it in a 2011 lawsuit over a fatal car accident.

Sparky’s Lounge, doing business as Iffie’s Sports Bar, filed a lawsuit against several insurance companies on May 2 in Berkeley Circuit Court. The two sides have been arguing over when the bar’s liquor liability policy went into effect.

Iffie’s says the policy began May 6, 2011, but the defendants claim it went into effect 11 days later.

In between the two dates, Harry Lee Franks Jr. was killed in a car driven by David W. McDaniel, who had been drinking at Iffie’s and was found to have a blood-alcohol content of .336.

The defendants are Fargo Insurance Financial Service, Delaware Valley Underwriting Agency, Founders Insurance and H. Lee Earehart.

Iffie’s Sports Bar’s policy lapsed sometimes before January 2011, and it began a conversation with Earehart, its insurance agent, on a new policy, according to a complaint.

In January, Iffie’s signed a new policy that excluded liquor liability, even though it had requested it, it says. Iffie’s also claims it was a “surplus lines” policy, a type that Earehart was not licensed to solicit or obtain.

“Further, despite improperly obtaining the policy, which did not provide coverage for the plaintiff’s business operations, Earehart failed to disclose to the plaintiff that it was not insured and that the policy issued to D. Ronnie DeHaven did not provide any coverage to it for any risks, including liquor liability,” the complaint says.

On May 6, 2011, Iffie’s applied for hospitality/liquor liability coverage, the complaint says. The bar says it was issued a policy that same day with a May 6, 2011, effective date.

Founders has refused to indemnify or defend Iffie’s, the bar says, arguing the effective date was May 17, 2011.

According to his obituary, Franks was 46 at the time of his death. He is survived by his parents, three sisters and two daughters.

Two auto insurers have settled with his estate. Nationwide agreed to pay $50,000, and National Casualty Company recently agreed to a confidential settlement.

Franks’ estate’s attorneys – Mark Jenkinson and Ronald M. Harman of Burke, Schultz, Harman & Jenkinson in Martinsburg – are working on a 33 percent contingency fee, court records show.

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

April 24

Potomac Edison v. Patrick Finger and Curtis Shaffer
PA- Christopher Moore; J- Wilkes
* The plaintiff claims the defendants damaged their facilities on Dec. 18, 2011, while cutting down a tree in Gerrardstown. The plaintiff seeks $9,469.14, the amount of damage allegedly caused, plus interest.
Case number: 13-c-311

April 26

John L. Darr and Carol A. Darr v. Bank of America, N.A.
PA- Sarah L. Hinkle; J-Wilkes
* The plaintiffs claim Bank of America violated the West Virginia Consumer Credit and Protection Act by continuing to attempt a debt after they had emerged from bankruptcy. The debt was in the form of a mortgage on a Harpers Ferry home, and the plaintiffs claim they haven’t lived there for nearly three years.
Case number: 13-c-320

April 30

James Michael Burks v. Timber Ridge Heating and Air Conditioning and Michael Ambrose
PA- Richard G. Gay; J- Silver
* Burks was working with Timber Ridge and Ambrose on May 12, 2011, in a single-family residence, the suit says. Burks was climbing and descending a ladder with parts to assist Ambrose in the replacement of a heat pump/air conditioning unit, the suit says. Burks says he sustained injuries when he fell off the ladder and spent 11 days in the hospital, including seven in the Intensive Care Unit. He seeks compensatory and punitive damages.
Case number: 13-c-333

Patterson’s Drug Store in downtown Martinsburg.

MARTINSBURG – George Karos, the owner of a pharmacy that has long stood in the middle of the town he is also mayor of, proudly declares that several million prescriptions have been filled in his store.

His downtown store is part-pharmacy, part-restaurant and part-museum. Photo collages of customers and friends are placed on the wall, an old-style telephone booth sits in the corner and old pharmacy jars and books are on display for anyone interested.

But one of those millions of prescriptions that Patterson’s Drug Store has filled landed Karos in a legal battle with a customer who blames it for bladder cancer allegedly caused by the diabetes drug Actos.

In addition to suing Takeda Pharmaceuticals, the maker of Actos that now has several thousand lawsuits on its hands, Richard F. Myers of Inwood named Patterson’s as a defendant in a lawsuit filed in August.

Actos cases are just starting to go to trial, and a plaintiff in Los Angeles recently won a $6.5 million judgment against Takeda. However, the judge in the case threw out the verdict, claiming the testimony of the plaintiff’s expert witness was unreliable.

The difference in Myers’ case is that he is suing the pharmacy in which he bought the drug.

“There is nothing improper in naming Patterson’s as a defendant in this case, particularly in light of Patterson’s duty to provide medication guides to patient,” wrote Myers’ attorney, Taylor B. Downs of Manchin Injury Law Group in Fairmont.

“Taken in the light most favorable to Plaintiff, the plaintiff has sufficiently alleged that Defendant Patterson’s Drug Store had a duty (to) warn Plaintiff about the risks of Actos and failed to warn Plaintiff about the risks of Actos.”

Karos

Patterson’s attorney, Thomas M. Hancock of Bowles Rice in Charleston, had filed a motion to dismiss the lawsuit after it was removed to U.S. District Court for the Northern District of West Virginia.

Patterson’s claimed the only reason it was included as a defendant was to defeat diversity jurisdiction. Including an in-state defendant would help Myers, who purchased the drug at the second Patterson’s location in Inwood, keep his lawsuit out of federal court, the drug store alleged.

“Notably, not one factual allegation exists stating that Patterson’s Drug Store did anything except sell Plaintiff the prescription drug prescribed by his physician,” a motion to dismiss filed in October says.

“Plaintiff has dressed this claim up as a ‘failure to warn’ claim, but doesn’t even attempt to explain how Patterson’s Drug Store’s Inwood, W.Va., location obtained information allegedly hidden from the entire medical community by Takeda Pharmaceuticals.

“All of the plaintiff’s theories of recovery against Patterson’s Drug Store are based on its dispensation of medication and allegations that such dispensation caused a medical injury.”

Karos, who won his fourth term as Martinsburg’s mayor in 2012, prefers to not talk about the lawsuit. He said he’ll leave that to his lawyers.

What he will talk about is business, which is still solid despite the presence of chain pharmacies like CVS, Walgreens, Wal-Mart, Target and Kmart in Martinsburg. He says bigger pharmacies often send customers to his store, which has five pharmacists, seven registered pharmacy technicians and free delivery.

“We thrive on competition,” he said.

The store was named Patterson’s in 1926, which was 54 years before Karos and a former business partner purchased it. Karos started working there part-time as a 10-year-old.

Aside from filling prescriptions, its signature is the JoJo – a glass of ice cream, chocolate syrup, melted peanut butter and marshmallow cream that is probably unfriendly to diabetics like Myers.

A collection of old pharmacy bottles and books at Patterson’s Drug Store.

Myers first filed the lawsuit in Harrison County, approximately a three-hour drive from the Martinsburg-Inwood area.

From there, the lawsuit was removed to federal court, where Patterson’s filed its motion to dismiss. Downs successfully argued it was too soon for U.S. District Judge Irene Keeley to rule on it because of a pending motion to remand the case back to Harrison County.

In November, Keeley remanded the case to Harrison County. There, Patterson’s made the argument it should be heard in Martinsburg in Berkeley County Circuit Court, which is also just a few miles from Inwood.

On April 22, Harrison Circuit Judge Thomas A. Bedell signed an order transferring the case to Berkeley. He said the choice of Harrison County, which is a half-hour trip down Interstate 79 and Route 50 from Downs’ Fairmont office, was “overly suspect and improper.”

“Upon a fair reading of the proffered allegations and facts (or lack thereof) as contained in the complaint and other responsive pleadings of Plaintiff Myers upon the various motion pleadings presently under consideration, this court finds and concludes there has been no actual showing… that the Defendant Patterson and/or the Takeda defendants: (1) maintain any business relationships with any parties located in Harrison County; (2) perform any services for those parties located in Harrison County; or (3) conduct or benefit from any ongoing business transactions or any ongoing business relationships between it and any customers in Harrison County that would satisfy as ‘sufficient minimum contacts’ in order to lay venue in Harrison County,” Bedell wrote.

As for the actual allegations that will play out in Berkeley County, Myers is claiming Patterson’s altered the original retail package of the drug, supplying him with packaging that included defective information about the side effects of Actos.

“Pharmacies play a crucial role in warning patients about the risks of prescription medications because they are the party responsible for providing patients with written medication guides when they sell and hand the pill bottles to the patient,” Downs wrote.

The counter at Patterson’s Drug Store.

Patterson’s, the plaintiff claims, did not provide a medication guide that the federal Food and Drug Administration directed Takeda to create as early as September 2009.

“(H)ad the plaintiff received adequate warnings about bladder cancer from Patterson’s pharmacy, then he would not have ingested Actos,” Downs wrote.

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

One of the four softball fields at Charlotte Prather Park

MARTINSBURG – The attorneys defending a youth softball league in a lawsuit filed by a former player have gone on the offensive, questioning the plaintiff’s decision to sue and drop out of nursing school.

On May 10, attorneys for Martinsburg-Berkeley County Softball League filed their motion for summary judgment in a lawsuit brought in March 2011 in Berkeley Circuit Court by Courtney Roberts, who was 14 when she slid into third base during practice and broke her ankle.

Martinsburg attorneys Richard McCune and Alex Tsiatsos are representing the league. They say Roberts and her parents were well aware of the risks of injury.

“Unfortunately, Courtney suffered one of the injuries that occasionally happen in sports such as softball,” the motion says.

“Courtney’s parents chose to sue the volunteer league and its young, volunteer, unpaid, college-age coach, claiming that their daughter has lost millions of dollars because they allege she cannot be the specific kind of nurse that she wanted to be.”

Roberts alleges that the injury will prevent her from achieving her goal of becoming a registered nurse. On Feb. 16, her mother said Roberts was on track to complete pre-nursing course work at James Rumsey Technical Institute in Hedgesville and had been accepted into the nursing program at Blue Ridge Community College.

Two months later, Roberts’ life care expert Elizabeth Davis said during a deposition that Roberts should be able to complete course work and function as an RN with physical limitations. Roberts would also experience a slight loss in earnings, Davis said.

But on May 1, Roberts’ attorney sent a letter to Tsiatsos, notifying him that Roberts experienced ankle and back pain during her final exam that was much more serious than she anticipated.

“Courtney advised that she realized that she would not be capable of becoming a nurse due to her ankle,” the letter says. “She will not be going to nursing school.”

This made attorneys for the league skeptical.

Skinner

“This alleged sudden change, coming so shortly after Elizabeth Davis’ deposition, raises serious concerns,” the motion says.

“If one difficult day is enough to discard a lifelong career goal, how speculative were the career earnings to begin with?

“The plaintiff’s sudden decision that Courtney cannot go to nursing school risks treating Courtney as though she were crippled. But Courtney is not crippled. She walks all day at school and can drive and take care of herself and does not consider herself disabled.”

The plaintiff’s lawyers have not yet responded. On May 13, Stephen Skinner, a member of the House of Delegates, said he was taking over as lead counsel.

He advised Judge Gray Silver that legislative interims will be held in Wheeling on June 19 and recommended pushing a June 23 trial date back. The league’s attorneys have also asked for a new scheduling order.

Original defendants also included Courtni Williams, a coach who was running the sliding drill, and the league’s insurance provider. Williams was recently dismissed as a defendant by the plaintiff.

Roberts alleges she didn’t want to participate in the sliding drill and that she’d never slid before. Court records show that she told the coaches present that she did not feel comfortable sliding, and on her first run to third base she went in standing up.

On the second try, Williams asked Roberts if she wanted to try sliding, and Roberts crushed her left ankle, tibia and fibula and has undergone several surgeries. She is also alleging that the condition of the field was substandard.

The motion for summary judgment alleges Roberts’ chiropractor, three weeks before the accident, had told her not to do anything strenuous for two weeks to a month.

Roberts and her parents “voluntarily participated in a sport in which they knew that broken ankles were possible from sliding,” the motion says.

“Broken ankles are an inherent risk in playing softball. West Virginia law therefore bars their recovery for any resulting injuries.”

Another notable aspect of the case was a former expert witness for the defense who was arrested on heroin-related charges.

The expert was former Martinsburg High softball coach Calvin Anthony Russ. He was allegedly in a car when a confidential police informant purchased $50 of heroin from Russ’ girlfriend Kayla Bell.

He was arraigned in September on felony charges of delivery of heroin and conspiracy to deliver heroin.

On Oct. 23, the league substituted local softball coach Thomas Merceruio as an expert witness.

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

Groh

MARTINSBURG – A federal judge has dismissed the lawsuit of a Martinsburg physician who had his license revoked and sued the West Virginia Board of Medicine for $9 million.

U.S. District Judge Gina Groh, of the Northern District of West Virginia, on May 15 granted a motion to dismiss filed by WVBOM, concluding Louis J. Del Giorno’s constitutional rights were not violated when his license was revoked in June 2010.

Del Giorno allegedly ignored evidence that the patients to whom he was prescribing medication were drug addicts. WVBOM’s order said his prescribing practices were “horrifying.”

“Despite the fact that the plaintiff’s failure to exhaust administrative remedies does not bar his claim, his complaint is nevertheless facially deficient… inasmuch as it fails to state a claim upon which relief may be granted,” Groh wrote.

Allegations against Del Giorno included:

-Prescribing controlled substances to a 30-year-old patient who admitted to snorting cocaine the week before and taking her father’s Oxycontin the day before;

-Prescribing controlled substances to patients who had evidence of addiction;

-Failing to check hospital records where a number of his patients to whom he was prescribing controlled substances were being treated for overdoses;

-Rarely doing base line urine screens for patients treated for chronic pain;

-Prescribing controlled substances while ignoring ‘red flags’ that suggested intravenous drug use; and

-Noting that a patient is doing well on more medication, then six days later noting that the patient committed suicide.

In its order, the board said it did not have the power to permanently prohibit Del Giorno from prescribing controlled substances without revoking his license.

Del Giorno alleged that a hearing examiner had ruled he should be suspended for a probationary period and that he not write any more prescriptions. When WVBOM overruled its own hearing examiner, it violated the Supremacy Clause of the U.S. Constitution, he alleged.

“(T)here is nothing unconstitutional about a state administrative tribunal, acting within the scope of its discretion, fashioning a disciplinary action which also contemplates the effect of applicable federal statutes with regard to the person being disciplined,” Groh wrote.

Del Giorno also alleged his write to equal protection under the Fourteenth Amendment was violated because the 26 area physicians he named in a complaint were not subject to disciplinary action. He said those physicians treated patients he had discharged from his practice over suspected drug use.

“(T)he plaintiff does not allege that he was discriminated against because of his occupation. In fact, the plaintiff does not allege that he was discriminated against because of his membership in any class whatsoever,” Groh wrote.

“The plaintiff does not allege that the WVBOM drew any sort of categorical distinction between himself and other physicians. The plaintiff merely alleges that he was disciplined by the WVBOM, while other physicians whom the plaintiff alleges were engaging in the same practices for which the plaintiff had his license revoked were not disciplined.

“Suffice it to say that such allegations do not amount to an equal protection violation, and the plaintiff therefore fails to state a claim upon which relief may be granted.”

Groh also rejected claims of violations of the Double Jeopardy Clause, due process rights, rules of evidence and the Confrontation Clause. Del Giorno sought $3 million in compensatory damages and $6 million in punitive damages.

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

Patterson’s Drug Store in downtown Martinsburg.

MARTINSBURG – The circuit judge assigned to an Actos lawsuit that included a Martinsburg pharmacy as a defendant has disqualified himself from hearing the case.

Berkeley County Circuit Judge Gray Silver III on May 16 filed an order of recusal in Richard F. Myers’ lawsuit, which alleges the diabetes drug Actos caused his bladder cancer. Unlike other Actos cases, it names the pharmacy in which Myers had his prescription filled in addition to Takeda Pharmaceuticals, the drug’s manufacturer.

Silver wrote the appearance of judicial propriety and impartiality would be best served by his recusal.

“The court has been a longstanding regular customer of Defendant Patterson’s Drug Stores, Inc., including the pharmacy, for as long as the court can remember and until as recently as within the last couple of weeks and has a longstanding relationship with Mayor George Karos, owner of Patterson’s, as well as most of the employees, including the pharmacists,” Silver wrote.

The case has been reassigned to Circuit Judge Christopher Wilkes.

Actos cases are just starting to go to trial, and a plaintiff in Los Angeles recently won a $6.5 million judgment against Takeda. However, the judge in the case threw out the verdict, claiming the testimony of the plaintiff’s expert witness was unreliable.

“There is nothing improper in naming Patterson’s as a defendant in this case, particularly in light of Patterson’s duty to provide medication guides to patient,” wrote Myers’ attorney, Taylor B. Downs of Manchin Injury Law Group in Fairmont.

“Taken in the light most favorable to Plaintiff, the plaintiff has sufficiently alleged that Defendant Patterson’s Drug Store had a duty (to) warn Plaintiff about the risks of Actos and failed to warn Plaintiff about the risks of Actos.”

Patterson’s attorney, Thomas M. Hancock of Bowles Rice in Charleston, had filed a motion to dismiss the lawsuit after it was removed to U.S. District Court for the Northern District of West Virginia.

Patterson’s claimed the only reason it was included as a defendant was to defeat diversity jurisdiction. Including an in-state defendant would help Myers, who purchased the drug at the second Patterson’s location in Inwood, keep his lawsuit out of federal court, the drug store alleged.

“Notably, not one factual allegation exists stating that Patterson’s Drug Store did anything except sell Plaintiff the prescription drug prescribed by his physician,” a motion to dismiss filed in October says.

“Plaintiff has dressed this claim up as a ‘failure to warn’ claim, but doesn’t even attempt to explain how Patterson’s Drug Store’s Inwood, W.Va., location obtained information allegedly hidden from the entire medical community by Takeda Pharmaceuticals.

“All of the plaintiff’s theories of recovery against Patterson’s Drug Store are based on its dispensation of medication and allegations that such dispensation caused a medical injury.”

Myers first filed the lawsuit in Harrison County, approximately a three-hour drive from the Martinsburg-Inwood area.

Karos

From there, the lawsuit was removed to federal court, where Patterson’s filed its motion to dismiss. Downs successfully argued it was too soon for U.S. District Judge Irene Keeley to rule on it because of a pending motion to remand the case back to Harrison County.

In November, Keeley remanded the case to Harrison County. There, Patterson’s made the argument it should be heard in Martinsburg in Berkeley County Circuit Court, which is also just a few miles from Inwood.

On April 22, Harrison Circuit Judge Thomas A. Bedell signed an order transferring the case to Berkeley. He said the choice of Harrison County, which is a half-hour trip down Interstate 79 and Route 50 from Downs’ Fairmont office, was “overly suspect and improper.”

As for the actual allegations that will play out in Berkeley County, Myers is claiming Patterson’s altered the original retail package of the drug, supplying him with packaging that included defective information about the side effects of Actos.

“Pharmacies play a crucial role in warning patients about the risks of prescription medications because they are the party responsible for providing patients with written medication guides when they sell and hand the pill bottles to the patient,” Downs wrote.

Patterson’s, the plaintiff claims, did not provide a medication guide that the federal Food and Drug Administration directed Takeda to create as early as September 2009.

“(H)ad the plaintiff received adequate warnings about bladder cancer from Patterson’s pharmacy, then he would not have ingested Actos,” Downs wrote.

Last year, Karos won his fourth term as Martinsburg’s mayor. He began working at Patterson’s part-time when he was 10 years old and bought the store in 1980.

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

Collis

MARTINSBURG – A Martinsburg nursing and rehabilitation center is being sued by the estate of a woman who spent more than three months there in 2012.

Sue R. Johnson on May 8 filed a lawsuit in Berkeley County Circuit Court on behalf of the estate of Frances Rhodes, who spent March 27, 2012, to July 8, 2012, at Heartland of Martinsburg. The lawsuit says Rhodes passed away July 31.

Other defendants include Manor Health Care Services and unknown medical providers, controlling officers, managing members and general partners.

The lawsuit alleges the company failed to:

-Properly hire and oversee staff;

-Provide a safe environment;

-Adequately assess Rhodes’ needs;

-Adequately assess and treat pain;

-Document assessment and medical records;

-Notify her physician and family in a timely manner regarding changes in condition;

-Follow the physician’s orders;

-Prevent falling;

-Provide adequate nutrition and hydration; and

-Prevent several urinary tract infections.

Representing the plaintiff is Michael T. Collis of Wilkes & McHugh in Pittsburgh.

The lawsuit makes claims of negligence, premises liability, breach of fiduciary duty, respondeat superior and wrongful death.

The case has been assigned to Judge John Yoder.

Berkeley Circuit Court case number 13-c-367.

MARTINSBURG – Two Berkeley County women are upset that officials will not grant them a second temporary food permit that would allow them to continue their food stand Toothpickin’.

Patricia and Hope Jaeger filed a lawsuit May 17 in Berkeley Circuit Court against the Berkeley County Health Department, alleging it has no right to deny them a second two-week temporary food permit as they save money to open a restaurant.

The lawsuit alleges they have been told a temporary food permit shall not be granted twice at the same address and are challenging that decision. They are representing themselves.

The Jaegers say they sought to open a commercial food establishment but lacked the funds to purchase equipment or rent a facility, so they discussed options with the Health Department.

On the Health Department’s suggestion, the Jaegers began with a two-week temporary food permit for an establishment on Route 11.

“A long list of regulations was met, the inspection took place and the permit was granted,” the complaint says.

“We sold $1,600 worth of food in two very strenuous weeks and made a lot of people happy. Everyone who stopped thanked us emphatically for ‘being here.’”

Toothpickin’ was on a busy highway in an isolated location not surrounded by other retail, they say. After investing more time and money for a second two-week period, the Jaegers were turned down for another permit.

They say they were humiliated telling potential customers they were shut down by the Health Department. They seek $20,000 in damages and a series on temporary permits to be issued until they have enough money for a permanent facility.

“We only want a fair chance at making something useful and profitable from our property on busy Route 11,” the complaint says.

The case has been assigned to Judge Gray Silver III.

Berkeley Circuit Court case number 13-c-381.

The Waffle House on Edwin Miller Blvd. in Martinsburg

MARTINSBURG – A Berkeley County man who was beaten outside a Waffle House has settled his claim that the restaurant didn’t provide a safe environment for $7,500.

Hurshell V. Ricks II filed a lawsuit against Ricardo Lewis, Theo Washington, Congress Foods – doing business as Waffle House – and John Does 1-2 in Berkeley County Circuit Court over a July 2009 incident.

Ricks claimed Washington and a John Doe assaulted him while a Waffle House security guard looked on.

Ricks has incurred $12,000 in medical bills, and his $7,500 settlement will be retained until the precise amount being paid by Medicaid is known.

Ricks filed his original complaint on July 1, 2011. It alleged that he was invited by Lewis to the Waffle House on Edwin Miller Boulevard in Martinsburg to eat on July 5, 2009.

Once there, he was introduced to John Doe 2, who was identified by Lewis as a Waffle House security guard, the complaint says.

Lewis asked Ricks to speak with Washington and John Doe 1 outside the Waffle House entrance and told him Doe 1 would escort him, the complaint says. Once outside, Washington and Doe 1 allegedly began to beat him in the face.

“Plaintiff turned back to the door for help and Defendant Doe 2 said ‘no,’ locked the door, failed to both intervene and render aid in the attack and then went over to where Defendant Lewis was seated,” the complaint says.

Congress Foods fought the lawsuit in a motion to dismiss and a motion for summary judgment, arguing it was not a named defendant in the original lawsuit and the statute of limitations tolled once it was added to an amended complaint.

It was represented by Tracey A. Rohrbaugh of Bowles Rice in Martinsburg.

On Sept. 20, the plaintiff filed a motion for default judgment as to Lewis. It was granted Oct. 1 by Judge Gray Silver III, who set up a damages hearing.

Waffle House objected to the damages hearing while its motion to dismiss was pending. It also said it planned to file cross-claims against its co-defendants.

“(T)he damages caused by Defendant Lewis, if any, should be determined by a jury during the trial of this matter,” Rohrbaugh wrote.

Silver agreed and cancelled the hearing.

Patrick G. Henry III served as mediator. Ricks was represented by Paul Taylor

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