West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

    Following a two week trial, a jury has determined that Putnam General Hospital is liable for hiring and credentialing Dr. John King, who is a defendant in more than 110 medical malpractice lawsuits.  Last month, I wrote about the lawsuit and the controversy surrounding Dr. King's employment.

    According to the (Charleston) Daily Mail, the jury deliberated for about an hour before determining that Putnam General Hospital (now known as CAMC Teays Valley Hospital) will be a co-defendant with King in 122 lawsuits against him, based on its negligence in hiring him and giving him privileges to perform orthopedic surgery.  The jury also determined that the plaintiffs can seek punitive damages against Putnam General.  The medical malpractice trials start in September.

    This verdict is a blow to Hospital Corporation of America, Inc., which formerly owned Putnam General, and has been trying to put as much distance between itself and Dr. King as possible.  I noted in my earlier post that Judge O. C. Spaulding had ruled that the plaintiffs' lawyers would not be permitted to mention HCA's formerly ownership of Putnam General or that HCA had paid an $840 million fine in December 2000 for alleged unlawful Medicare and Medicaid billing practices. 

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    A recent decision from federal court for the Southern District of West Virginia illustrates what happens when a health insurance company uses questionable judgment in trying to save a few (in this case, very few) dollars. 

    In Juniper v. M&G Polymers USA, LLC, 2007 WL 2028844 (S.D.W.Va. 2007), Judge Robert C. Chambers granted summary judgment for the plaintiff, Samuel Juniper, who was pro se for almost the entire case, and against the defendant, M&G Polymers USA, LLC, the plaintiff’s employer and plan administrator.  Brian King of the ERISA Law Blog wrote about the case a few days ago.

    Aetna, M&G's health plan insurer, denied $40 in charges for three venipunctures.  Juniper pursued the matter and was given various and apparently conflicting reasons for the denials by Aetna and by M&G.  He filed suit against M&G in Mason County (West Virginia) Magistrate Court (which has a $5,000 jurisdictional limit) in order to obtain payment for the charges.

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   Tennessee litigator John Day, who blogs at Day On Torts, has a post today about the effect of judicial estoppel in a debtor's bankruptcy case.  The debtor, Gardner, failed to disclose the existence of a pending personal injury action when he filed for bankruptcy, then failed to disclose the action in a meeting with creditors.  Gardner received a Chapter 7 discharge of his debt.  When Gardner's personal injury lawyer subsequently learned that Gardner had failed to disclose the action, Gardner's bankruptcy was reopened in order to list the case as an asset.  At that point, the lawyers defending the personal injury case moved to dismiss on the grounds that judicial estoppel barred Gardner from prosecuting the action.  The district court granted the motion, which was affirmed by the Tenth Circuit Court of Appeals.

    The doctrine of judicial estoppel bars a party from asserting inconsistent positions in different proceedings, and has been applied in the Southern District of West Virginia in an action that is factually very similar to Gardner's, with identical results.  In Casto v. American Union Boiler Company of West Virginia, 2006 WL 660458 (S.D.W.Va. 2006), the District Court granted the defendant's motion for summary judgment against Casto's claim for age discrimination (which had been removed to federal court) because Casto had failed to disclose its existence when he filed for Chapter 7 bankruptcy protection. 

    Casto did not appeal the ruling (probably wisely), but the Fourth Circuit has previously endorsed the application of judicial estoppel in a case involving inconsistent allegations in a claim for Social Security disability benefits and an action alleging age discrimination.  King v. Herbert J. Thomas Mem'l Hospital, 159 F.3d 192 (4th Cir. 1998).

    The sometimes painful lesson is that if a client is contemplating bankruptcy and is a plaintiff or claimant in a pending matter, the client must be absolutely forthcoming about the existence of the action when dealing with the bankruptcy court.  Sometimes an omission can be attributed to ignorance (which may be persuasive, as intent is one of the factors that must be proven for judicial estoppel to apply), but it's much better to be able to avoid the entire analysis.

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    Thanks to Bob Ambrogi's post yesterday, which alerted me to the ABA Journal's redesign of its site, including its new Blawg Directory.  The directory is well organized, particularly its alphabetical listing of blawgs by topic.  There are also instructions on how to submit a blawg for inclusion in the directory.

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    This is an update to my post last month about the lawsuit filed by the Book Exchange, an independent bookstore, against West Virginia University and Barnes & Noble, which alleged antitrust violations and unfair trade practices as a result of WVU's program of reserving funds from students who receive financial aid, then requiring the money to be spent at its bookstore. 

    According to Forbes.com, Circuit Judge Russell M. Clawges, Jr. granted the Book Exchange's motion for a preliminary injunction today.  The injunction prevents WVU from sending out e-mails to the students informing them the funds have been reserved, which was scheduled to occur today.  The article does not say whether the injunction also prevents WVU from reserving the funds in the first place.  Presumably, the Court granted the injunction because the immediate and irreparable harm that the Book Exchange alleged was the e-mail notifications, after which the students could begin to make their purchases at WVU's bookstore. 

    Forbes.com's article says that approximately 3,000 students participated in the program last fall.  If each student spent the $500 that was reserved, that's about $1.5 million in sales that the Book Exchange did not have an opportunity to compete for. 

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    Just as there are patent trolls, I have learned, thanks to legal marketing consultant  Larry Bodine, that there are domain trolls, whose business is registering domain names in which someone has shown an interest, but has not purchased, then offering the names for sale, usually at exorbitant prices.  Larry warns that you should not check for the availability of a domain name through sites like www.whois.com, but to use your Web browser or to Google the name to find out if it's available. 

    Larry Seltzer, a columnist at www.eWeek.com, wrote about the practice last year, and identified an entity called Chesterton Holdings, which is a domain squatter (a more polite term for domain troll), and described how Chesterton acquired domain names.  I also came across an outfit called Internet REIT, which is a very sophisticated domain squatter.  According to John Cook, who writes a blog for the online Seattle Post-Intelligencer, Internet REIT has bought up 400,000 domain names.  So don't be surprised if the one you want is among them.
   

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    Last week, FiberNet, LLC, a telecommunications provider with customers in West Virginia, Pennsylvania, and Maryland, experienced a disruption in its service to approximately 14,000 of its 24,000 West Virginia customers. The disruption left the customers, which included emergency call centers, law enforcement agencies, hospitals, businesses, and residences, without phone service, and some without data service as well.
   
    Three customers have sued FiberNet on behalf of themselves and a proposed class consisting of all of FiberNet's affected West Virginia customers.  Here is their complaint, which was filed in the Circuit Court of Wood County (Parkersburg), West Virginia, and alleges causes of action for breach of contract, fraud, and negligence, and seeks compensatory and punitive damages.   The complaint very specifically limits its scope to West Virginia customers of FiberNet, which is a West Virginia corporation, in order to avoid federal jurisdiction under the Class Action Fairness Act of 2005.

    I am curious about how much protection FiberNet’s contract with its customers will provide.  Typically, there is a provision that holds the service provider harmless in instances like this one, or at least limits its liability for its customers’ damages to what they can actually prove.  So how does a plaintiff quantify its damages, in terms of lost income or profits or opportunities?  This is particularly important in this case, where the interruption in service lasted, for nearly all of FiberNet's affected customers, for about two days, from early Tuesday morning to some point on Thursday.  And if you're one of the customers without service, certainly long enough to be a major inconvenience, regardless of your losses. 

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    The big news in West Virginia is Wheeling Pittsburgh Steel Corporation’s verdict on Monday for nearly $220 million against Massey Energy Corporation and one of its subsidiaries, Central West Virginia Energy Company.  Following a month long trial in Wellsburg, Brooke County, the jury awarded Wheeling Pitt $119.85 million for its compensatory claims and $100 million in punitive damages.  I wrote about the trial last month, when Massey chairman Don Blankenship testified.

    Wheeling Pitt claimed that Massey and its subsidiary breached a contract to provide Wheeling Pitt with 104,000 tons of metallurgical-grade coal per month for its coke ovens. Ken Ward, Jr.’s article in yesterday’s Charleston(WV) Gazette gives some background.

    In reaction to the verdict, Blankenship said that, "We recognized that a trial in Wheeling Pitt's backyard would be challenging, but we were still surprised at the outcome."  His comment parallels what I wrote, in questioning what effect his testimony would have on the jury.  Now we know: apparently not much, at least in Massey's favor.

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