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

    One of the rulings made by Monongalia County Circuit Judge Robert Stone in West Virginia University’s lawsuit against its former football coach, Rich Rodriguez, dismissed the third-party complaint filed by Rodriguez against the West Virginia University Foundation, Inc., WVU’s fundraising arm.

    As a result of its dismissal, the Foundation has asked, pursuant to Rule 11 of the West Virginia Rules of Civil Procedure, that Rodriguez be made to pay its attorney’s fees of $29,461.00 and costs of $826.44.  Here is its motion filed on April 16, which quotes Rodriguez’s counsel as suggesting that the purpose of naming the Foundation was to obtain a tactical advantage in the litigation against WVU. 

    Rodriguez had alleged in his third-party complaint that he needed the records maintained by the Foundation in order to prove that contributions to WVU had not been affected by his resignation: 

The only way for Richard Rodriguez to obtain a fair trial and to see if damages actually have been incurred by West Virginia University is to review the books and records of the Foundation, along with donations that have been made since his departure, compared with donations prior to his departure from the West Virginia University.

Rodriguez also alleged that the Foundation was WVU's alter ego and was a necessary party to the litigation because it would receive any payments made by Rodriguez as part of his buyout.  

    The Foundation’s position is that its counsel asked Rodriguez to voluntarily dismiss the action, and when he would not do so, it had “to fully participate in the litigation.”  The affidavit attached to the motion establishes that the Foundation’s counsel expended 125.8 hours in its representation.  The motion also notes that “[a]dditional detail [regarding the billing entries] will be supplied to opposing counsel and the Court for review after agreement regarding confidentiality and the attorney client privilege.” 

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    I think I’m going to avoid predicting how an appellate court will rule in a particular matter, and instead focus on the issues presented.  Yesterday, I wrote that Camden-Clark Memorial Hospital’s petition for appeal from a $1.3 million sanctions award was being considered by the Supreme Court of Appeals, and that I thought that the Court would accept the petition.

    According to the Court's website today, the Court refused the petition by a vote of 5-0.

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    Last spring, the Circuit Court of Wood County, West Virginia awarded $1.3 million in sanctions against Camden-Clark Memorial Hospital and its lawyer for their alleged misconduct before and during the trial of a medical malpractice action (which itself resulted in a verdict of $6.5 million).

    The Supreme Court of Appeals today considered the hospital’s petition for appeal from the sanctions award.  The Court did not have the vote posted on its website by the end of the day, but it should be posted tomorrow.  Here are the hospital’s petition for appeal and the plaintiff’s response in opposition, courtesy of plaintiff's counsel, Chris Regan.

    Even though the Court rejected the hospital’s petition for appeal from the underlying malpractice verdict, I think the Court will accept this petition because of the amount of the award and in order to review the alleged (mis)conduct at issue in the case.  It is rare enough in West Virginia for a trial court to award sanctions, but to do so in this amount is startling.  

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     A West Virginia state court judge has awarded sanctions of $1.3 million against Camden-Clark Memorial Hospital, located in Parkersburg, West Virginia, and its lawyer for their conduct before and during a 2006 medical malpractice trial. Chief Judge Robert A. Waters of the Circuit Court of Wood County found that the hospital and its lawyer engaged in extensive misconduct in several areas.  A copy of the Court’s 54 page order is here. 

    The Court found that the hospital had:

• defrauded the plaintiff, as found by the jury by clear and convincing evidence;
• violated multiple court orders, as found by the Court on December 19, 2005 (at an earlier hearing);
• made numerous material misrepresentations of fact and law to the plaintiff and the Court, both before and during the trial of the action;
• concealed important evidence until the commencement of trial and even in the middle of trial, including the very documents the hospital had been ordered to produce by the Court;
• destroyed, concealed or altered material evidence in advance of trial, including cardiac monitor strip times and nurse's notes;
• advanced frivolous defenses before the Court; and
• wasted countless hours of the Court's time, as well as that of the plaintiff and his counsel, through all of the above misconduct.

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