SMS QUARTERLY

The SMS Difference In recent years, the public perception of the legal community has

fallen to new lows. In the midst of this storm, SMS rises above the fray to effectively represent our clients with utmost professionalism. Here are five key attributes that we believe distinguish our law firm: Personal Attention. SMS is of a size which provides its clients immediate and direct access to cutting edge resources and lawyers who take pride in attention to detail and quality work. Meeting Client Needs. SMS does not limit representation to defense in a civil action. Rather, we actively assist clients with administrative matters, risk management, claims handling advice, and updates on the law, and we tailor our services to the specific needs of each individual client. Diversity of Practice. Regardless of the legal issue, there is almost certainly an SMS lawyer who is able to assist as we offer a very broad spectrum of legal services. Ethics. From the first year associate to the most senior member of our firm, we appreciate the importance of legal ethics and we place it into practice each and every day. Proven Excellence. From defense verdicts to successful dispositive motions and economical settlements, year after year SMS earns outstanding results for our clients. We look forward to continually affording our clients unmatched representation and advice.

AN INSIDE LOOK AT YOUR LAW FIRM AND WHAT ITS LAWYERS ARE DOING TO SERVE YOU AND OUR COMMUNITY

IN THIS ISSUE:

Cover Story: The SMS Difference Page two: SMS Presents to Physicians; SMS Lawyer Victories Pages three: SMS Lawyer Victories; SMS Welcomes Summer Law Clerk Page four through five: WV Legal Developments Page five: Quarterly Quote

ISSUE NO. 18

1411 Virginia Street, East, Suite 200 1445 Stewartstown Road, Suite 200 Charleston, West Virginia 25301-3081 Morgantown, West Virginia 26505 Telephone: 304-345-1400 Telephone: 304-291-2702 Facsimile: 304-343-1826 Facsimile: 304-291-2840

www.shumanlaw.com

SHUMAN, MCCUSKEY & SLICER, PLLC EXPERIENCED

JANUARY 2011

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Pictured: Karen Tracy McElhinny.

AN OPPORTUNITY TO CALL OUT AN

INTERESTING POINT YOU MAY LIKE TO SHARE

WITH YOUR AUDIENCE

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SPECIAL POINT OF INTEREST AND/OR CALL-OUTS

SMS Presents to Physicians

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ISSUE NO. 14

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SMS Quarterly, page 2 Issue No. 18, January 2011

SMS is committed to addressing the needs of its clients, and we appreciate that clients often require more than representation after a lawsuit is filed. SMS lawyers routinely speak to large groups on a variety of topics including claims management, risk management, legal developments, and many others. Recently, Member Timothy R. Linkous addressed a large group of physicians at the Tamarack Conference Center in Beckley, West Virginia on the issue of depositions. “I firmly believe that defending a deposition successfully is critically important whether the deponent is involved in the pending litigation or not. While one rarely, if ever, wins a deposition, the event can be a disaster if proper preparation is not undertaken,” commented Linkous. Mr. Linkous discussed topics such as the purpose of, preparation for, often employed tricks during, and execution of a deposition. He discussed the importance of a deposition as a party defendant as well as a fact witness or prospective defendant. “When you are under oath in a legal proceeding, your testimony has implications not only for the matter at hand, but also potentially for future matters as well. Therefore, deponents must completely understand the importance of their testimony,” said Linkous. The presentation lasted about two hours, and physicians received continuing medical education credits for their attendance. Please contact an SMS lawyer if you would like information about presentations SMS can perform for you or your company. Past presentation topics include updates on West Virginia law, recent decisions from the Supreme Court of Appeals of West Virginia, UIM and UM coverage, Medical Professional Liability, deliberate intent, coal mine safety, employment law, and many more. SMS tailors its presentations to the needs and requests of clients.

SMS Lawyer Victories

Claim Of Excessive Force Does Nothing To Strong Arm Jury

Congratulations to SMS lawyer Jason Wandling for his recent defense jury verdict in the United States District Court for the Southern District of West Virginia! Mr. Wandling successfully defended a city police officer from an excessive force claim arising out of an arrest during which the policeman subdued a DUI suspect. Judge Copenhaver presided over the three day jury trial. After closing arguments, it took the jury only forty minutes to completely absolve Mr. Wandling’s client. Mr. Wandling regularly defends clients facing similar claims, and he continues to be very successful.

SMS Quarterly, page 3 Issue No. 18, January 2011

Plaintiff Ordered To Pay Sanctions Member Timothy R. Linkous and Associate Jenny Wrobleski recently obtained an Order from the Honorable Judge Christopher C. Wilkes granting sanctions and other relief in favor of their client. In a motor vehicle accident involving three automobiles, Mr. Linkous and Ms. Wrobleski served requests for admission and other discovery requests upon the Plaintiffs. After the Plaintiffs failed to respond, a Motion to Compel was filed, and an Order granting the same was issued. Thereafter, the Plaintiffs still failed to serve discovery responses, and a second Motion for Rule to Show Cause was filed. In response to the Motion, Judge Wilkes ordered that the Plaintiffs pay $250.00 in sanctions to Mr. Linkous and Ms. Wrobleski’s client. Judge Wilkes also ordered that the requests for admission be deemed admitted.

Court Strikes Expert Member Timothy R. Linkous and Associate Molly Miner recently obtained an Order from the Honorable Judge J. Lewis Marks, Jr. striking Plaintiffs’ expert witness and granting other relief in a case involving the destruction of a commercial building. The civil action was scheduled to be tried on December 7, 2010. Eight months earlier, the Plaintiffs identified and disclosed the opinions of three expert witnesses. Three weeks prior to trial, the Plaintiffs withdrew one of the experts and identified a new “substitute” expert who held additional opinions. The Plaintiffs informed the Court that the initial expert had a conflict of interest. Mr. Linkous and Ms. Miner filed a Motion to Strike and Motion for Sanctions, and the Court heard those Motions one week before trial. At that time, the Court continued the case and held the Motions in abeyance.

After the hearing, Mr. Linkous and Ms. Miner discovered that the initial expert, a professional engineer, was never retained by the Plaintiffs. Rather, he performed an evaluation of the damaged building at the request of a non-party. Plaintiffs’ counsel contacted the expert to give a deposition, he raised the possibility of a conflict, he researched the issue, and he then informed Plaintiffs’ counsel that he did not have a conflict. Despite these events, Plaintiffs continued to represent to the Court that a conflict existed. Mr. Linkous and Ms. Miner renewed their Motion to Strike and Motion for Sanctions, and the Court recently struck the “substitute” expert. The Motion for Sanctions was taken under advisement.

SMS Welcomes Summer Law Clerk

SMS is pleased to announce that John P. Blanc will serve as a Law Clerk this summer in the SMS Morgantown office. Mr. Blanc is from Charles Town, West Virginia, and he is a graduate of Jefferson High School. He is currently a second year law student at the West Virginia University College of Law where he ranks 4th overall in his class. He also serves as Associate Editor of the West Virginia University Law Review. Prior to entering law school, Mr. Blanc held employment positions with several banking institutions and other companies. He earned his Bachelor of Arts from Shepherd University, and, during his tenure there, earned several honors. Mr. Blanc enjoys legal research and writing, and he is extraordinarily personable.

SMS Quarterly, page 4 Issue No. 18, January 2011

Legal Developments The January 2011 Issue of the SMS Quarterly features two decisions from the Supreme Court of Appeals of West Virginia. If you would like more information about these cases or information about other cases recently decided by our high court, please contact an SMS lawyer today. Young v. Bellofram Corporation, et al. (WVSC September 2010 Term, No. 35439 – Filed November 5, 2010) Case Synopsis: Plaintiff filed an employment discrimination and wrongful termination lawsuit against her Employer based upon gender and age, and the Circuit Court of Hancock County (Judge Recht) entered judgment in favor of Plaintiff. The WVSC reversed the decision finding that Plaintiff failed to prove every essential element of her claim. Case Details: Bellofram, a company that manufactures a variety of products, hired Plaintiff in 1994 as a molder. Thereafter, she was promoted to senior molder, master molder, and lead molder. In 2004, Plaintiff was promoted to second shift supervisor at the age of fifty-nine. Thereafter, Plaintiff was made aware of racial and sexual harassment occurring, Plaintiff did nothing to stop the harassment, Plaintiff directly witnessed some of the harassment, and Plaintiff instructed other employees to disregard the harassment. The complaints of harassment eventually reached Bellofram’s human resource department, and an investigation ensued. After determining that Plaintiff failed to take action, she was suspended. Bellofram hired a third-party consultant to investigate the matter, and the consultant came to the same conclusions. As such, Plaintiff’s employment was terminated in 2005. Plaintiff initiated her lawsuit against Bellofram alleging wrongful termination, discrimination based upon her age, and discrimination based upon her gender in violation of the West Virginia Human Rights Act. W.Va. Code §5-11-1. She also alleged that Bellofram failed to follow its own progressive disciplinary policy, she alleged breach of contract, and she alleged the tort of outrage. Bellofram defended by arguing that Plaintiff’s employment was terminated because she failed to properly manage or discipline employees under her supervision. A bench trial was held in the Circuit Court of Hancock County, West Virginia (Judge Recht presiding), and the Court found that Plaintiff stated a prima facie case of employment discrimination because (1) she belonged to a protected class, (2) she was discharged from employment, and (3) another employee who did not belong to a protected class was disciplined less severely than Plaintiff. The WVSC, in a per curiam opinion, reversed the decision of the lower court. Specifically, the Court found that Plaintiff failed to produce any evidence on the third essential element of her claim: “But for the plaintiff’s protected status, the adverse decision would not have been made.” The Court concluded that Plaintiff neither showed any direct evidence that her employment termination resulted from her age or gender, nor did she produce evidence to prove that other employees who did not belong to a protected class were disciplined less severely under similar circumstances. The WVSC, thus, reversed the Circuit Court’s Orders awarding Plaintiff a total of $411,679.73 in damages, attorney’s fees/costs, and interest.

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White v. Wyeth, et al. (WVSC January 2010 Term, No. 35296 – Filed December 17, 2010) Case Synopsis: Class action Plaintiffs sued a drug manufacturer for violation of the West Virginia Consumer Credit and Protection Act. The Circuit Court of Putnam County certified questions to the WVSC to determine whether Plaintiffs must prove reliance on alleged unlawful conduct or false advertising. The WVSC held that where a cause of action alleges affirmative misrepresentations, reliance must be proven to satisfy the causation element. The high Court also held that private causes of action under the Act do not apply to prescription drug purchases. Case Details: Plaintiffs sued the Defendants alleging unfair and deceptive practices in the promotion of hormone replacement therapy drugs to physicians and patients. The cause of action was brought pursuant to the West Virginia Consumer Credit and Protection Act. W.Va. Code §46A-6-106(a). Plaintiffs alleged that the Defendants used misleading statements in advertising, marketing and labeling of the drugs. However, Plaintiffs did not allege or prove that any of the class members or physicians ever received, read or relied upon the alleged misrepresentations. In holding that Plaintiffs must prove reliance on misrepresentations for causes of action under the Act, the WVSC issued two new Syllabus Points: Syl. Pt. 5. “A private cause of action brought pursuant to the provisions of West Virginia Code §46A-6-106(a) (2005) of the West Virginia Consumer Credit and Protection Act must allege: (1) unlawful conduct by a seller; (2) an ascertainable loss on the part of the consumer; and (3) proof of a causal connection between the alleged unlawful conduct and the consumer’s ascertainable loss. Where the alleged deceptive conduct or practice involves affirmative misrepresentations, reliance on such misrepresentations must be proven in order to satisfy the requisite causal connection.” Syl. Pt. 6. “The private cause of action afforded consumers under West Virginia Code §46A-6-106(a) (2005) does not extend to prescription drug purchases.” ________________________________

Quarterly Quote: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln.

Visit SMS on the web at www.shumanlaw.com (Timothy R. Linkous is the Member responsible for this publication. This publication is an advertisement for Shuman, McCuskey & Slicer, PLLC).

SMS Quarterly, page 5 Issue No. 18, January 2011