West Virginia Lawyer Blog

Following the Upper Big Branch mine disaster, a panel of three mining experts will study ways to improve mine safety and oversee a $48 million foundation. The foundation was the result of a $209 million settlement entered into by Alpha Natural Resources, which purchased Massey Energy Company (original owner of Upper Big Branch) and the federal government.

The foundation, dubbed the Alpha Foundation for the Improvement of Mine Safety and Health, will be headed by Dr. David Wegman, a professor of work environment at University of Massachusetts Lowell; Michael Karmis, director of the Virginia Center for Coal and Energy Research at Virginia Tech; and Keith Heasley, a professor of mining engineering at West Virginia University.

Partially guided by findings from the Upper Big Branch investigation, the panel would consider research areas such as how to monitor gases in mines continuously, rather than periodic monitoring, which is the current method. The panel expects that most of the foundation money will be spent on research, as opposed to staffing or other overhead costs. Funds might be distributed over several years, with the foundation lasting five to eight years overall. That way, the panel members claim, the foundation is most likely to produce meaningful results, as the panel has time to consider several different approaches.

Mines in the United States are generally considered to be safer than mines in other countries, with lower rates of both injury and fatality. However, mining companies in the U.S. have been slow to adopt new technology for mining communication and mine worker tracking. We at the Wolfe Law Firm think that the foundation is a welcome development and hope that it leads to some important changes in the way mining companies operate.

However, mining companies don't need to wait for studies to come out, prescribing which technological changes to adapt, in order to produce meaningful safety results. One important first step is for mining companies to be honest in seeking out and fixing safety issues. This means keeping accurate log books and not pressuring workers to fill them out inaccurately -- as the Upper Big Branch managers shamefully did during the months leading to the accident. This also means allowing mine workers to be human beings, to take legally required rest breaks and not work back-breaking shifts. Finally, it means doing regular safety inspections of regularly used equipment and replacing equipment that is too old.

Continue reading "New Expert Panel Will Look For Ways to Improve Mine Safety " »

A man widely known to West Virginians for his crime fighting was recently charged with breaking and entering. Andrew Palmer, the former host of "West Virginia's Most Wanted," was found armed and driving a minivan. He allegedly threatened to shoot anyone who tried to arrest him because he feared going back to jail.

Palmer is a former convict who started "West Virginia's Most Wanted" in 2005 in order to track down local criminals and provide tips to police for unsolved crimes. Palmer is also considered to be a gang expert and is the founder of Chainbreakers, an anti-gang group. "West Virginia's Most Wanted" was credited with bringing to light details about a sniper shooting in 2003. In 2007, Palmer brought a source onto the show that said the attacks could be traced to a gang known as the "Charleston 5."

However, Palmer's own criminal record has not been spotless since 2005. In 2007, Palmer pleaded guilty to beating a man after he refused to buy Palmer drugs. In 2008, He pleaded guilty in Kanawha Circuit Court to breaking and entering E&H Manufacturing, making off with a GPS unit worth $100, as well as using a credit card stolen during the break-in to buy gas in the amount of $47. Palmer later claimed that he never committed those crimes, but pleaded guilty to avoid a longer prison sentence. In 2009, in response to these claims, the Kanawha Circuit Court judge adjusted Palmer's sentence, ordering him to serve three years on home confinement, along with drug testing and community service. Finally, in 2009, Palmer allegedly led police on a high-speed chase down Interstate 64. Given this history, it is sad, though unfortunately not surprising, that Palmer might have committed another crime.

Palmer is currently being held at the South Central Regional Jail. We at the Wolfe Law Firm hope that the charges against Palmer prove to be baseless, and he can remain among his loved ones. It is for people like Palmer that West Virginia criminal defense attorneys exist. Enshrined in the Sixth Amendment is the provision that a criminal suspect must have the assistance of counsel. If a criminal suspect is too poor to hire an attorney, one will be appointed.

Defense attorneys are charged with ensuring that whatever the suspect's past record, the suspect gets a full and fair hearing at trial. The criminal defense attorney also tries to ensure that the suspect gets the best possible terms, and may plea bargain for a lighter sentence prior to trial. A defense attorney may only do this with the suspect's informed consent -- he or she cannot simply act alone, even if the defense attorney believes that a plea bargain leading to a lesser charge, rather than a full trial on the more severe charges, would be the better option.

Continue reading "Crime Fighter From "West Virginia's Most Wanted" Arrested For Breaking and Entering" »

West Virginia's Attorney General Darrell McGraw has filed a lawsuit against a Georgia company in order to stop it from distributing ingredients that are then used to make illegal designer drugs.

The lawsuit was filed against Nutragenomics Manufacturing LLC in Putnam County Circuit Court. Attorney General McGraw argued that Nutragenomics products were frequently used to produce "bath salts" and K2, which are widely viewed as synthetic versions of cocaine and marijuana. The company allegedly markets the ingredients through various websites and then ships them by mail.

In April 2011, a ban on synthetic drugs went into effect in West Virginia, after growing evidence that they were being used frequently at high school and college parties. Studies have suggested that synthetic drugs can do more serious harm to those who take them than the drugs they imitate. Synthetic drugs have been linked to seizures, hypertension, psychotic episodes, suicidal thoughts, and death. Attorney General McGraw's lawsuit seeks the names of people who purchased Nutragenomics ingredients, to ban the company from advertising its products as legal and safe, and $5,000 penalties for each violation of the state's Consumer Protection Act.

Federal law already bans certain ingredients that have been used in the manufacturing and sale of synthetic drugs. However, the Attorney General's Office and Chad Napier, who is in charge of the Metro Drug Unit in Kanawha and Putnam counties, claim that companies like Nutragenomics change the molecular structure of the ingredients just enough in order to get around the law.

This is the first time the Attorney General's Office has gone to court for a civil action involving a chemical manufacturer like Nutragenomics. This is also the second major recent case in West Virginia that involved bath salts. An owner of two paraphernalia shops in Harrison County was indicted, along with three of his employees, on federal drug conspiracy charges for selling bath salts and synthetic marijuana. Given the Attorney General's commitment to this issue, the indictments and lawsuits will only grow in the future.

Continue reading "West Virginia's Attorney General Files Lawsuit Against Georgia Manufacturer of Synthetic Drug Ingredients" »

A mine safety expert, handpicked by West Virginia's Senator Joe Manchin to investigate three mining disasters, has been accused by NASA of conspiring with the Catholic college where he is employed to use millions of federal grant dollars for his personal gain and for the school's benefit.

Davitt McAteer is viewed by many to be expert on every type of mine, from Chilean gold mines to West Virginia coal mines. He was placed in charge of investigating the 2006 Sago mine explosion that trapped and killed 12 men, the 2006 Alma No. 1 fire that killed two men, and the 2010 Upper Big Branch mine explosion that killed 29. McAteer issued the first report on the causes of the Upper Big Branch explosion. He has also served as a commentator over the years on high-profile issues like the Chilean mine cave in that trapped 33 miners.

However, McAteer has also been under investigation since May 2010. He and Wheeling Jesuit University in West Virginia, where he has held several titles, may be guilty of as many as five crimes: theft of federal funds; fraud; false claims; conspiracy; and wire fraud.

Between 2000 and 2009, NASA gave Wheeling more than $116 million in federal awards for specific projects, with $65 million coming after McAteer took over the school's Sponsored Programs Office in 2005. When McAteer took over, he created a Combined Cost Management Service Center, which allegedly allowed him to control and consolidate all the expenses, whether related to the federal awards or not. The main accusation against him is that he used the new system to bill NASA for salaries and expenses even for those who did not work on the programs for which the money was intended. Federal investigators allege that the duties and salaries of his staff "did not, in any way, benefit the substantive work being done on the federal award projects."

At this point, it is not clear what the outcome will be. If McAteer did use federal funds for his gain, then it is a sad situation where someone with the public's trust abuses that trust. We rely upon investigators to protect us by giving us the information we need. When we find out they are lying, that forces us to think twice about whether that information is reliable. At a time when there have been significant cover ups about mine safety, such as with Upper Big Branch, people need to be able to trust the ones charged with exposing the cover ups.

Continue reading "West Virginia Mine Safety Expert Accused of Fraud and Other Crimes" »

Federal prosecutors are looking into whether the Mine Safety and Health Administration (MSHA) might have tipped off Massey Energy Company officials about inspections, prior to the events that led to the 2010 explosion at the Upper Big Branch mine. The explosion, the largest in West Virginia history, killed 29 workers.

The U.S. Attorney's office plans to look at testimony given by a former Upper Big Branch superintendent Gary May, alleging that federal MSHA inspectors regularly told company officials when they planned to visit the Massey-owned mine. May made these allegations as part of a deal to cooperate with the federal criminal investigation of the 2010 explosion. May had pleaded guilty to conspiring to violate mine safety standards and to cover up the resulting conditions.

May claimed that MSHA inspectors on the property would inform Upper Big Branch employees that they would be back to inspect the next day, and where they planned to inspect. While the inspectors only told a few individuals that they met, word would quickly spread to the other employees, including those who worked underground. May claimed that the practice predated his employment, and was a common practice at all of the mines where he had ever worked.

May's claims come in light of the fact that MSHA officials are focusing on a program set up by Massey where security guards gave underground crews notice of mine safety inspections. MSHA officials believe that these warnings gave Massey employees time to cover up any unsafe conditions at the Upper Big Branch mine and were a major contributor to the explosion.

MSHA officials disputed May's claims, stating that the agency never tipped off any workplace of a mine safety inspection. Information regarding inspections is meant to be restricted solely to MSHA personnel. Anyone who provides an advanced warning of an MSHA inspection faces up to six months in prison and $1,000 in fines.

Continue reading "Federal Government to Investigate Whether MSHA Officials Conspired With Massey Energy Prior to the Upper Big Branch Explosion" »

Even with the economy slowly improving, people across the country continue to file for bankruptcy, including here in West Virginia. Bankruptcy is an interesting area of law: it is federal law, but the outcome of many cases depends upon state law. Oftentimes, the laws are so tightly intertwined, it is difficult to determine whether a matter should be litigated by a West Virginia bankruptcy attorney, or dealt with in state court.

Why do people file for bankruptcy? One of the biggest reasons is the threat of foreclosure. Ever since the housing bubble exploded, the rate of foreclosure in West Virginia has risen, with one in 8,320 houses foreclosed upon. The hardest-hit counties include Wayne, Kanawha, Hampshire, Berkeley, Jefferson, Hancock, and Tyler. Many people bought houses with mortgages that they could not afford, or they could afford their mortgages until they lost their jobs.

When you default on your mortgage payments, the mortgage lender usually first issues a notice of default. If you are unable to cure the default, the lender issues a notice of sale. Under West Virginia law, mortgage lenders are permitted to do what is known as a "non-judicial foreclosure." That means the lender can sell your house without having to get permission from a state court. The notice of sale must follow state requirements in Chapter 59 of West Virginia's code, including the time and place of sale; the names of the parties to the deed; the date of the deed; the quantity and description of the land; and the terms of sale. A trustee then auctions the house off to the highest bidder. "Judicial foreclosure," where the court must issue a final judgment, and the house is sold at a sheriff's sale, is also common.

If you file for bankruptcy before the foreclosure sale, you can prevent the sale from taking place. If you file for "personal," or individual bankruptcy, what is known as an "automatic stay" takes effect. The stay prevents creditors from continuing their harassment or acts of repossession, including foreclosure. As long as you do everything that you are required to do for your bankruptcy case, the stay will remain in effect.

There are some wrinkles, however. First, if you want to keep your home, you have to be careful about the type of bankruptcy you choose. If you file for Chapter 7, the most common type of bankruptcy, you could risk losing your home. That is because a Chapter 7 trustee takes over your "estate" and determines what is exempt and non-exempt property. The non-exempt property is sold and the proceeds are used to pay off creditors. On the other hand, if you file for Chapter 13, you may be able to keep your house. All Chapter 13 filers must provide a payment plan, where they state how much they will be able to pay to the Chapter 13 trustee -- who then pays the creditors -- over a period of several years. If you are able to make the plan payments, you could pay off your mortgage debt and keep your house. If you can't make the payments, or if the Chapter 13 or a creditor finds other fatal flaws in your case, your case could be dismissed and your house may be vulnerable once again.

Continue reading "Bankruptcy and the Threat of Foreclosure in West Virginia" »

Lately, the news has been filled with the story of Trayvon Martin, a Florida teenager shot dead by a neighborhood watch patrolman. Martin had stopped at a convenience store and was walking home when 28-year old George Zimmerman began to follow him. Zimmerman was convinced that Martin was on drugs and inspecting houses to rob. After an ensuing scuffle, where it was unclear who attacked whom, Zimmerman shot Martin in the chest. Martin died, and Zimmerman claimed self defense under Florida's "Stand Your Ground" law. Since then, outrage has been building. Evidence suggests that Martin, who had no criminal record, was not the aggressor and was trying to evade Zimmerman. If Zimmerman were the true aggressor, then Florida's "Stand Your Ground" defense would not apply. Even so, many have pointed out that the mere existence of Florida's "Stand Your Ground" law has prompted people like Zimmerman to behave more recklessly than they otherwise might have. Could a Trayvon Martin sitation happen in West Virginia?

Roughly 21 states have adopted "Stand Your Ground" laws, including West Virginia. The idea behind "Stand Your Ground" is that the one in danger does not have a duty to retreat before using deadly force against the perpetrator. The duty to retreat has long existed in criminal law, and is often a component to proving that your were acting in self defense. However, the duty to retreat has several exceptions, such as if you were attacked in your home. Many of these exceptions are part of state law, and they are either known as "Stand Your Ground" laws or as "Castle" (as in "your home is your castle") laws.

West Virginia has a "Castle" law. Section 55-7-22 of the West Virginia Code states: "A lawful occupant within a home or other place of residence is justified in using reasonable and proportionate force, including deadly force, against an intruder or attacker to prevent a forcible entry into the home or residence or to terminate the intruder's or attacker's unlawful entry if the occupant reasonably apprehends that the intruder or attacker may kill or inflict serious bodily harm upon the occupant or others in the home or residence." The occupant may also use reasonable force if he or she "reasonably believes that the intruder or attacker intends to commit a felony in the home or residence and the occupant reasonably believes deadly force is necessary."

So while West Virginia law does not require retreat within the home, the law does not go any further than that. By contrast, Florida's "Stand Your Ground" law extends to the open street as well. Since the West Virginia law is more restricted, a Trayvon Martin situation could never happen here -- or could it? If Trayvon Martin came to the door to sell chocolates for school, or because he had a flat tire, couldn't a nervous home occupant shoot him and invoke the "Castle" law? He or she could claim to have "reasonably" apprehended that Martin was going to break in and kill everyone in the house. Even if an investigation cleared Martin of wrongdoing, it would be far too late.

We at the Wolfe Law Firm understand the reasons behind the "Castle" law. Many believe that you should not have to flee an attacker in your own home before using force against him. The "Castle" law has a long history, having first been established in 17th century English common law. At the same time, the "Castle" law, as well as other "Stand Your Ground" laws, makes hair trigger violent reactions much more likely. People frightened in their own homes might not actually be in physical danger, but they might perceive that they are and act accordingly, before they know what is really happening. Any West Virginia criminal defense attorney could tell you that many who seeming fit the profile of a criminal are often innocent. Yet when the law lets perceived victims shoot first and ask questions later, the innocent person ends up just as dead.

Four more West Virginia counties are poised to set up a juvenile drug court program, joining 12 counties with programs already in place. A juvenile drug court program is best described on the West Virginia Judiciary website as "a cooperative effort of the juvenile justice, social service, law enforcement, and education systems in the state." The goal is to prevent juvenile recidivism -- or situations where a reformed juvenile offender lapses and gets arrested again. The drug court diverts non-violent youths away from the usual court process and gives them individualized treatment.

Drug court programs could make a big difference for the juvenile offender population in this state. Controlled-substance violations are among the most frequent committed by youths. Around 6,500 youths are under a court-ordered diversion program or supervision by a probation officer every day. Drug program operators try to get at-risk youths into the program as soon as possible, before they have been officially charged with an offense. Those who work for the drug court programs affirm that they bring positive results. One program director spoke of participants who started out receiving Ds and Fs and never thought that they would finish high school. Instead, thanks to the program, they raised their grades significantly to Bs and Cs and received their diplomas. Another mentioned the cost benefits of having the program in place: the total cost of the program is $6,400, compared to $200 to $500 a day if the youth is given residential placement. The youth receives supervision while remaining in a familiar home and school environment.

Drug court locations are not random, but are instead determined by a data-driven process. West Virginia Supreme Court officials look at information such as filings for substance abuse and juvenile arrests. Based on this information, they then decide which counties would be the best locations for a juvenile court. Supreme Court officials recently designated Raleigh County as one that could support a full program. Jefferson County, Greenbrier County, and Harrison County are also looking to develop programs. Funding for the courts comes by way of legislative funds, grants, and miscellaneous funding received by the West Virginia Supreme Court of Appeals Administrative Office.

The long-term success of the juvenile drug program remains an open question. However, the oldest court in Cabell County has been in operation since 1999 and the program has only expanded since then. We at the Wolfe Law Firm fully support the counties' efforts to keep youths from becoming repeat offenders. No West Virginia criminal defense attorney wants to defend juvenile suspects during criminal trials when these youths could instead receive the chance to start on the right path. West Virginia has long had a troubled history with drug use and production, especially meth production. For far too many years, the national answer to any crime, even nonviolent ones, was to throw offenders in jail. By law, someone caught possessing or producing meth in West Virginia could be sentenced to 15 years in prison. It is not a productive use of this state's resources, not when the offender is an adult and especially not when the offender is young.

West Virginia lawmakers ended their 60-day session by passing a bill that it would be harder to produce illegal drugs. The Senate passed unanimously, and the House of Delegates by an 80-8 vote, a bill that would place tighter purchase limits on cold remedies used to make methamphetamines.

Those who sought to buy pseudoephedrine would be barred from purchasing more than 3.6 grams per day, 7.2 grams per month, or 48 grams per year. Presently, cold remedy purchases are limited to nine grams per month. Pharmacies are also required to keep these pseudoephedrine products behind the counter.

In addition, the bill would require West Virginia to join a tracking system for cold remedy purchases, although lawmakers would need to renew enrollment in the National Precursor Log Exchange by January 2015. While there would be no cap on the amount of prescription pseudoephedrine, the bill would increase scrutiny of pain drug prescriptions, as well as increase oversight of methadone treatment centers. Pseudoephedrine that could not be used to make meth would be exempt from cap limits.

Illegal meth production in home laboratories has long been a problem in West Virginia. It is one reason the state has wrestled with a different problem, overcrowded prisons, which lawmakers also sought to correct in the latest session. The latest bill would add 200 beds to a prison-based drug treatment program. Offenders who completed the program could receive a reduced sentence. Those who violated parole and probation would also gain a reprieve: instead of being returned to prison, they would receive incremental sanctions. The bill did not satisfy everyone. Some felt that the scope of the bill was too far reduced, while Republican lawmakers opposed many provisions, including that would convert the last six months of a drug offender's sentence to early parole.

We at the Wolfe Law Firm support efforts by lawmakers to both limit the ability to purchase components to make illegal drugs and offer alternatives to those convicted of possessing drugs. Drug use can be destructive, but it should not mean a life sentence when you have the ability to turn your life around. West Virginia criminal defense attorneys spend too much time trying to defend clients on drug charges or working out plea bargains with the prosecutors. While a certain percentage of users and distributors are dangerous, many are just ordinary people struggling with an addiction. If they were given the opportunity to clean up, and to address the problems that led them to drugs in the first place, they could return to society and not be a burden on taxpayers. Long prison sentences should not be doled out indiscriminately. We hope that the new legislation creating a drug treatment program produces good results.

Continue reading "West Virginia Lawmakers Pass Bills for Drug Treatment Programs and for Restricting Drug Purchases Over the Counter" »

A West Virginia teenager shot himself in the face with a gun he believed to be unloaded while at a friend's house. The gunshot was not immediately fatal, and the teenager remains at the hospital under observation.

Tony Michael Lawson, age 18, was offered a .38 caliber Smith & Wesson revolver by his friend. He opened the gun and emptied it of cartridges, but did not count how many cartridges he had removed. He then pulled the trigger twice -- once while placing the gun under his chin, once while placing it against his temple. Both times, the gun did not go off. However, when Lawson placed the gun against his head and pulled the trigger again, a bullet shot through his right cheek and came through the other side of his face.

It is unclear what role Lawson's friend played in Lawson's experiment, whether he tried to discourage or encourage Lawson in his activity. Lawson's would be far from the first case of accidental shooting with an "unloaded" gun. In fact, in 2008, there were an estimated 680 accidental shooting deaths and 15,500 shooting injuries. We at the Wolfe Law Firm support responsible gun ownership, and believe that every gun should be treated with the greatest of care.

The question is whether Lawson's friend's parents could be sued under premise liability theory. Homeowners or tenants are liable under this theory when a person is injured in their home after the homeowner failed to properly keep it safe. Most guests in a home are known as "licensees," and under premise liability theory, homeowners have a duty to warn when there is a known hidden condition that could be harmful to the licensee. Lawson, therefore, would have been a licensee in his friend's home. Presumably Lawson's friend's parents owned the .38 caliber revolver. One could argue that the friend's parents knew that the revolver was loaded and dangerous and failed to warn Lawson, thus making them liable.

However, there are some extra factors that complicate the scenario. Lawson's friend likely warned Lawson that the gun was loaded, or else Lawson would not have removed the cartridges before pulling the trigger. Did Lawson's friend know how many cartridges were supposed to be in the revolver? Did he have a duty to know? Did Lawson's friend's parents, if they knew of the danger, even know that Lawson was visiting? If Lawson's friend's parents knew that Lawson was visiting, and how many cartridges were supposed to be removed from the revolver, then a West Virginia premise liability attorney could argue that by failing to warn Lawson, the friend's parents were liable.

Continue reading "West Virginia Teen Accidentally Shoots Himself With a Gun He Thought Was Unloaded" »

The United States Supreme Court recently dealt a blow to the West Virginia Supreme Court's ruling on nursing home negligence. Back in June, the West Virginia Supreme Court ruled that nursing homes should not be able to insert arbitration clauses into contracts that prevent families of residents from suing if they believe that residents are being mistreated. The U.S. Supreme Court claimed that West Virginia's decision did not conform to the requirements of the Federal Arbitration Act (FAA) of 1925.

The FAA provides that parties can agree via contract to deal with certain state and federal disputes through arbitration rather than litigation. In particular, the FAA states that state law that disfavors arbitration will be preempted by the FAA, unless the arbitration clause is found unconscionable. With arbitration, instead of a judge presiding over the case, an arbitrator -- who is frequently neither a judge nor a lawyer -- hears from both sides and makes a decision. Arbitration clauses are becoming increasingly common: once mainly inserted into employment contracts, they are now regularly inserted into consumer contracts and contracts for other services. In AT&T Mobility v. Concepcion (2011), the Supreme Court upheld the right of AT&T to insert an arbitration clause that barred class action lawsuits.

The West Virginia Supreme Court had found that the FAA did not apply to nursing homes because Congress never intended the FAA to apply to wrongful death or injury lawsuits. The U.S. Supreme Court disagreed, stating that West Virginia's interpretation " was both incorrect and inconsistent with clear instruction in the precedents of this Court." The U.S. Supreme Court ordered the West Virginia Supreme Court to reconsider its decision using the FAA as a framework.

We at the Wolfe Law Firm applauded the West Virginia Supreme Court's earlier decision, and hope that the Court is able to issue a similarly just ruling after looking to the language of the FAA. While arbitration may offer some benefits, such being faster and less expensive, there are certain things that arbitrators should not be allowed to consider. Personal injury and wrongful death situations are very fact-intensive and often the outcome relies upon the type of evidence. These cases demand a longer, more drawn out litigation process so that a West Virginia personal injury attorney can gather all of the necessary documents and witnesses. In arbitration, while both parties may be represented by an attorney, it is not required. This can easily result in situations where the employee or customer is at a disadvantage compared with the company. Furthermore, there is evidence that because arbitration organizations have a contract for services with the company, their arbitrators are inclined to be biased toward the companies in hope of maintaining business. While arbitrators may be experts in a field, nothing requires them to have certain credentials, or even to know the law that is at issue. Worst of all, compared with the court system, the FAA provides for very limited review. A party on the wrong end of an arbitration decision has just three months to appeal to court for review, or the court will confirm the decision and make it binding.

Many critics argue that the FAA was never meant to have the all-encompassing power that the U.S. Supreme Court has given it. Even though the FAA permits arbitration clauses to be struck down for unconscionability, the Supreme Court in AT&T would not accept an unconscionability finding in certain situations (like class actions). It is time for the U.S. Supreme Court to permit a more flexible view of the FAA, one that provides more equal footing to those who are most vulnerable in contract situations -- employees, customers, and relatives of loved ones in nursing homes.

In South Charleston, West Virginia, nine employees from an IHOP restaurant had to be taken to the hospital after inhaling a cloud of hazardous chemicals. The cloud was formed when one employee added the wrong type of chemical to a dishwasher used to clean restaurant hardware.

Two chemicals, a degreaser and a chlorine-based cleaner, were mixed together to create the hazardous cloud. The cloud soon filled the air, smelling strongly of bleach. It was large enough that restaurant diners were able to see it and knew that something was amiss. Restaurant workers then called 911 and evacuated diners to the outside parking lot. When emergency first responders arrived, they set up a staging area in a specific location where the wind was blowing the other way, so the cloud would not reach them.

The offending degreaser is known as Delimer, which contains phosphoric acid. The safety sheet accompanying Delimer warns against mixing it with "chlorinated detergents," or the result could be toxic fumes. Under federal law, employers are supposed to provide employees with safety sheets for any toxic substances used in the course of employment, as well as training on how to safely handle the materials. That may not have taken place at IHOP, given that employees allegedly used Delimer with chlorine bleach repeatedly.

It is more common than one would think for people in homes and businesses to mix bleach with other cleaning products. They do so in order to produce a chemical that cleans easier. But the result is a chlorine gas that, at the least, can irritate the eyes and affect breathing. At worst, in stronger doses, it can cause death from asphyxia or pulmonary edema, especially for people with previous respiratory ailments. Fortunately, although nine IHOP employees were taken to the hospital for treatment, none were seriously harmed. Emergency workers cautioned, though, that other symptoms could manifest later.

We at the Wolfe Law Firm have represented many employees who have suffered injuries while on the job. Most employers are required to carry workers compensation insurance; therefore, if an employee gets injured at work, he or she can collect a fixed amount of payments in place of wages until the employee is able to work again. This is true regardless of whether the employee's conduct was at fault. The main exception to this rule is if the employee was injured as a result of being intoxicated or on drugs. If an employer carries workers compensation, however, the employee cannot elect to file a lawsuit instead. The employee has no choice but to take the workers compensation payments.

Continue reading "Nine IHOP Employees Sent to the Hospital After Chemical Cloud Unleashed" »

Will Governor Earl Ray Tomblin's proposal to have mine workers tested for drugs distract from other necessary mine safety repairs? That is what Independent Investigator Davitt McAteer and the United Mine Workers fear.

The drug testing element is part of an overall mine safety bill introduced by the governor. Governor Tomblin's bill is one of two being considered, with the other being introduced by House Speaker Rick Thompson. Both bills have provisions for criminal penalties and automatic shutdown of equipment if the methane levels are too high. However, they differ on other crucial elements. Governor Tomblin's bill features the industry-backed drug testing requirement, while Thompson's features more whistleblower protections and family involvement in investigations.

McAteer calls the drug testing provision a "distraction" and emphasizes that it was not what killed mine workers in the 2010 Upper Big Branch disaster. Autopsies of those killed in the disaster showed no illicit drugs in the mine workers' systems. Instead, the cause of death was decidedly due to Massey Energy's failure to follow safety rules governing mine ventilation and the cleanup of coal dust, which can be highly explosive. McAteer pointed out that nearly three-fourths of the mine workers killed in the Upper Big Branch explosion had black lung disease. A strict limit on the legal level of coal dust in underground mines would help prevent this. McAteer recommended legislation requiring mine companies to use coal-dust meters that would measure "explosibility" levels and also require companies to install ventilation monitors that would keep track of fresh-air flow underground. As part of the settlement, Alpha Natural Resources, which purchased Massey Energy Company, has agreed to implement these changes.

We at the Wolfe Law Firm believe that while worker behavior can be at fault for an accident, creating a safe workplace should be the priority -- especially in an industry as dangerous as coal mining. As McAteer noted, West Virginia is still a leader in mining fatalities. What would happen, though, if the law were passed and coal mine workers needed to be tested?

Most employers are required to carry workers compensation insurance. When you or your loved one is injured in a workplace accident, you would be eligible to receive workers compensation in place of wages during the recovery, even if your conduct contributed to the accident. However, there are exceptions. In many states, if drugs or intoxication contributed to the accident, the worker may be denied workers compensation. That is likely the reason mining companies are pushing to have mine workers tested -- because the company could argue that drugs or alcohol caused, or contributed to, the accident -- or that the worker should be de facto denied just for having had alcohol or used drugs. When that happens, it would be best to find a West Virginia personal injury attorney to explain your options.

Continue reading "Drug-Testing Proposal in Governor Tomblin's Mine Safety Bill Called a "Distraction"" »

The Fourth Circuit Court of Appeals recently reversed a decision by a district court in West Virginia, finding for an insurer who refused to defend an inmate against a lawsuit. Originally, the District Court of the Southern District of West Virginia had found that Ezra Lambert, an inmate at Southwestern Regional Jail, should be defended by National Union Fire Insurance Company because he met the definition of a "volunteer worker."

The incident that sparked the lawsuit took place in 2006. Lambert was working in the jail's kitchen six days a week, eight hours a day, as a cook. Betty Jean Hale, a jail employee who worked in the kitchen with Lambert, alleged that Lambert injured her while pushing a cart carrying a mixer. The mixer fell and injured Hale's foot, resulting in medical bills. Hale then filed suit in state court, naming Lambert along with the West Virginia Department of Military Affairs and Public Safety, and the West Virginia Regional Jail and Correctional Facility Authority. When National Union Fire Insurance Company -- the state's insurance company at the time -- learned that Lambert had been named a defendant, it filed a declaration stating that it had no duty to defend or provide other policy benefits to Lambert.

Both Hale and Lambert sought a court order declaring Lambert insured under state policy, which would allow Lambert to defense as well as indemnification. The district court ruled that Lambert qualified as a volunteer worker under state law, and was therefore covered by state insurance, due to Lambert's work in the kitchen without compensation. However, the Fourth Circuit ruled that Lambert could not possibly fit the definition of "volunteer worker" as defined by statute. Because Lambert was an inmate and forced to work in the jail, he could not be a volunteer. The Fourth Circuit noted that while a volunteer had the freedom to leave work if it became too onerous, when Lambert tried to protest working conditions by refusing to labor, he was put on lockdown. Lambert therefore was not entitled to be covered by the state insurer.

We at the Wolfe Law Firm think that this was probably the right decision, but an unfortunate one. Being an inmate, Lambert likely has little in the way of resources -- Hale probably knew this, which is why she sought coverage for Lambert, so that she could actually receive payment for her medical bills. Now it is unclear what will happen to either of them.

Insurance companies exist to pay out in the event of an accident or a medical issue. The point is to prevent you from going completely broke if you are responsible, or even if you're not. However, too often insurance companies are tight-fisted and refuse to pay what is owed. It often requires the work of an experienced West Virginia personal injury attorney to get insurers to agree to pay out, usually as part of a settlement. While again, the Fourth Circuit's verdict was probably correct, it was a reminder that too often, insurance companies are unwilling to help the customers they are meant to serve.

The family of a patient who died from an untreated urinary tract infection has sued the Charleston, West Virginia hospital where he sought treatment. Back in 2007, Clarence Leroy Dunnavant, who suffered from multiple sclerosis, checked into the Saint Francis Hospital with a high fever caused by a urinary tract infection. However, doctors allegedly misdiagnosed Dunnavant's urinary tract infection, resulting in Dunnavant dying in the hospital less than one day later.

Dunnavant reportedly died after a hole developed in his intestinal tract, causing air to slowly fill his abdomen. The alleged result was that Dunnavant died through slow suffocation. Now Dunnavant's family blames Saint Francis for negligent behavior. They have sued both the hospital and several of its doctors and nurses. The family's attorney argues that Dunnavant's on-call doctor never took the steps required to determine whether Dunnavant had a perforated bowel, and did not even personally examine Dunnavant until shortly before Dunnavant's death. A second doctor failed to notice that Dunnavant's X-ray showed that his abdomen was filled with air and therefore did not call for a radiologist for interpretation. Dunnavant's nurses were also accused of negligent behavior for failing to keep the on-call doctor informed of Dunnavant's symptoms and not following the doctor's instructions for his care.

The on-call doctor insists that he followed careful procedures. He claims that the symptoms relayed to him by the hospital staff throughout the evening led him to believe that Dunnavant was suffering from a less serious ailment. The on-call doctor allegedly ordered all of the treatment based on the information received. In any event, the fates of Saint Francis and its staff, the on-call doctor, and the X-ray doctor lie in the hands of a West Virginia jury.

Medical mistakes are sadly all-too-common, with more than 200,000 occurring each year nationwide. This number is higher than the number of people killed in car accidents, yet mistakes are probably still underreported. The most frequent medical mistakes tend to involve prescription drugs, surgical errors, and birth injury mistakes. Over the years, the Wolfe Law Firm has seen all of these types of cases, as well as the issue involving Dunnavant's case: misdiagnosis and poor care.

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