Suddenly September falls into October |
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And just like that we move from sunny summer days, to Autumn colors, football and the upcoming holidays. The attorneys at Bailey & Wyant have been working around the clock and producing some tremendous results. Squashing the competition like those pesky stinkbugs. You know what I am talking about. We all have them in our homes and have absolutely no idea how they got there. We hope everyone has a safe and productive October. |
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Meticulous Motion for Summary Judgment |
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Bailey & Wyant PLLC's Associate Jeffrey M. Carder
and Equity Member John P. Fuller
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Equity Member John P. Fuller and Associate Jeffrey M. Carder received a voluntary dismissal for a client in a case in the Southern District of West Virginia. The clients were 3 correctional officers. A paraplegic inmate alleged that he was subjected to unconstitutional conditions of confinement (left to lie in his own feces, not turned in his bunk properly, left to fall in the shower, etc.).
Through discovery Mr. Fuller and Mr. Carder were able to demonstrate that their clients were not even present at the jail at the time of any of the alleged incidents. Mr. Fuller and Mr. Carder's motion for summary judgment meticulously laid out that none of the officers were present at the jail when any of the events of unconstitutional confinement were alleged to have occurred.
After identifying that summary judgment was to be granted in the case, the Plaintiff’s counsel was contacted and Mr. Fuller and Mr. Carder explained that they would seek to recover legal fees pursuant to 42 USC §1987 unless his client voluntarily dismissed the 3 correctional officers from the lawsuit. To avoid paying legal fees for the 3 correctional officers, Plaintiff agreed to the voluntary dismissal.
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Dismissal of Violated Eighth Amendment Right |
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Bailey & Wyant PLLC's Member Jordan K. Herrick and Associate Adam K. Strider |
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Member Jordan K. Herrick and Associate Adam K. Strider of the Charleston office, obtained dismissal on behalf of health care workers at a Northern Correctional Facility. A complaint was filed by an inmate that alleged the health care workers violated his Eighth Amendment right by not timely treating a condition which he claims ultimately resulted in a blood transfusion which he claims caused him to contract Hepatitis C. The Court found that there was no plausible claim for violation of his Eighth Amendment rights against the health care workers and dismissed the Complaint.
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"Cease and Desist" request Successfully Defended |
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Bailey & Wyant PLLC's Of Counsel, Albert "Abbie" C. Dunn |
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Of Counsel, Albert "Abbie" C. Dunn of Bailey & Wyant PLLC's Charleston office defended a debt collection claim brought against a debt buyer in Fayette County. The claim made by the Plaintiff was that during a creditor or collector’s attempt to collect a debt by phone call, if the consumer makes a statement to the effect that they do not want to discuss the debt, this “cease and desist” request bars all future debt collection phone calls.
The Plaintiff’s claim was premised upon the statutory interpretation of West Virginia Code, 46A-2-125 and an argument that this code section’s definition of “inconvenient” times to attempt to collect a debt extends to phone calls after a “cease and desist” request, due to a liberal and remedial reading of the Code Section. Judge Blake held that 46A-2-125 cannot be interpreted to support a claim that a consumer simply avoid debt collection attempts by evidencing a desire not to receive further communication. The Court held that while the purpose of the debt collection prohibitions contained in the Consumer Credit Protection Act is to protect consumer from illegal, unfair or deceptive collection acts and practices, it is not the purpose to prevent reasonable attempts to collect a debt.
In conclusion, the trial Court stated that had the legislature intended to create this “cease and desist” requirement to prevent collection attempts, it would have specifically provided for same in the statute. This is an important decision in that it holds 46A-2-125 is clear and unambiguous and cannot support the argument of counsel presented in countless cases in the past.
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Bailey & Wyant PLLC's Charleston Member, Suleiman O. Oko-Ogua |
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Member Suleiman O. Oko-Ogua had the opportunity to represent Bailey & Wyant at the 2021 DRI Las Vegas Conference.
DRI tirelessly advocates for the valuable role attorneys play in representing businesses and individuals in civil matters. DRI is committed to enhancing the skills and professionalism of defense attorneys. DRI members enjoy access to industry experts and a global network of peers that support their efforts in building successful legal careers.
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Failure to Exhaust Administrative Remedies |
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Managing Member Charles R. Bailey and Member Jordan K. Herrick |
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Bailey & Wyant PLLC's Managing Member Charles R. Bailey and Jordan K. Herrick obtained summary judgment on behalf of the medical care providers at Mount Olive Correctional Complex. The plaintiff alleged that the medical care providers violated his Constitutional rights by failing to provide him with timely care to self-inflicted wounds. However, the United States District Court for the Southern District of West Virginia found that the plaintiff failed to exhaust his administrative remedies and therefore was barred from asserting any claims against the medical care providers. |
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COVID-19: A Community Spread Virus |
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Member Jordan K. Herrick and Associate Samuel M. Bloom |
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Member Jordan K. Herrick and Samuel M. Bloom of Bailey & Wyant PLLC's Charleston office obtained a dismissal of healthcare workers at Huttonsville Correctional Center. The inmate claimed that he contracted COVID-19 due to the failure of the healthcare workers to properly administer COVID-19 tests. The Court found that the inmate failed to allege sufficient facts that any of the actions of the healthcare workers contributed to him becoming infected with COVID-19 due to the fact that COVID-19 is a community spread virus.
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Deliberate Indifference to Medical Needs |
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Equity Member John P. Fuller and Associate Jeffrey M. Carder
Equity Member John P. Fuller and Associate Jeffrey M. Carder represented a former Commissioner and former Warden at Mt. Olive Correctional Center.
An inmate had been prescribed an epilepsy medication which required regular blood testing. Claiming he was needle-phobic, the inmate refused to submit to blood draws. Without blood monitoring, the inmate’s blood levels could potentially become toxic resulting in severe health consequences up to and including death. The prison doctor discontinued the medication and switched him to a different medication that did not require regular blood draws. The inmate wrote letters to both the Commissioner and Warden asking them to intervene in his medical treatment. While weening him off one medication and slowly introducing the second, the inmate alleges he had a seizure.
The inmate sued the prison doctor alleging she was deliberately indifferent to his medical needs. The inmate also sued the Commissioner and Warden under alleging they were deliberately indifferent to unconstitutional conditions of confinement. The defendants responded that neither of them were physicians and therefore could not intervene overriding the medical decisions made by the doctor. They argued they were legally entitled to rely on the professional judgment of trained medical personnel in such matters.
Mr. Fuller and Mr. Carder won summary judgment for their clients. The Judge agreed that not only was it medically reasonable for the doctor to discontinue the Plaintiff’s medication replacing it with another that did not require regular blood draws, but that the Commissioner and the Warden, as non-medical personnel could rely on the judgment of trained medical professionals with respect to reasonable and appropriate standards of care.
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Associate Harrison M. Cyrus and Of Counsel Albert "Abbie" C. Dunn |
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Bailey & Wyant PLLC's Associate Harrison M. Cyrus and Of Counsel Albert "Abbie" C. Dunn participated in this years Children's Therapy Clinic Golf Tournament.
Children’s Therapy Clinic is a private, non-profit organization located in Charleston, WV. They provide comprehensive therapy to children with disabilities. Children’s Therapy Clinic offers a team approach to focus on each child’s needs and abilities by including parents, caregivers, family members, and other professionals involved with the child. Their therapists help each child to reach his or her full potential and help create the little miracles of a child’s first step or word.
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Celebrating 20 Years of Dedicated Service |
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Bailey & Wyant PLLC recognizes Diana Kirk for over 20 years of dedicated service. This year marks Diana's 21st year with the company. Due to restrictions last year from COVID-19 we celebrate her nonetheless a year later. Thank you Diana for all you do. |
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Dram shop liability refers to a body of law which recognizes that there is potential liability against bars, restaurants, and other commercial establishments that sell alcohol for injuries caused by their patrons. These types of actions are most commonly brought when a drunk driver hurts someone, but, in reality, can extend to any situation in which someone is injured by the intoxicated individual.
Although there is no specific dram shop statute in West Virginia, West Virginia courts have recognized that a violation of Chapter 60 of the West Virginia Code, which pertains to state control of alcoholic liquors, can provide the basis for dram shop liability against an establishment. Essentially, if an establishment sells, furnishes, tenders, or serves alcohol to someone under twenty-one years old, to someone who is a “habitual drunkard,” is intoxicated, is addicted to the use of any controlled substance, or is mentally incompetent, then that establishment can be held liable for a resulting injury to person or property caused by the person who was drinking.
One of the first dram shop actions in West Virginia occurred in 1893 in Ohio County. The plaintiff had sued a liquor seller for the unlawful sale of liquor to her husband, which resulted in some injury to him that affected his ability to provide for their home. The appeal to the West Virginia Supreme Court of Appeals in 1895 does not delve into any of the factual details of the case, but the Court upheld the wife’s damages award of $750.
Since then, there have been a notable number of dram shop cases litigated in the State and there has been an evolution in the case law for dram shop liability. For example, under West Virginia law there is no social host liability for those who gratuitously furnish alcohol to party guests. Thus, a social host who serves alcohol to a social guest, knowing that the individual is intoxicated and intends to drive after, cannot be held liable for injuries to an innocent third party as a result of the guest’s intoxication. One other example of the evolution of dram shop liability in West Virginia is that the courts in West Virginia have held that there is no liability upon the owners of property upon which alcoholic beverages are served. This means that owners or real estate who simply rent or lease real estate to a bar cannot be held liable in a dram shop action.
For instances where liability can be established, it must be proven that the person who caused the injury was “physically incapacitated” from drinking and that the server of the alcohol was aware that the individual was physically incapacitated. For liability to be formed, the buyer of the alcohol had to have exhibited some physical sign of drunkenness, such that reasonably prudent serving personnel could have known that the buyer was drunk (i.e. physical staggering, slurring of words, loud or inappropriate speech, bleary eyes, shaky hands, and general slovenliness). Additionally, the sheer amount of alcohol a patron has been served may make it apparent to the server that the drinker has had too much. If a drunk individual is served a drink, but that individual displays no signs of drunkenness, liability can not be established. However, if multiple drinks are server over a comparatively short period of time, that alone may be sufficient to establish liability because a server should realize that the individual is getting drunk.
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Our philosophy is simple. We provide aggressive and effective legal representation, while being ever mindful of each client's individual needs, goals, and economic interests. No matter how complex or novel, our focus in a case is always to reach the right resolution for our client.
304.345.4222 CHARLESTON
304.233.3100 WHEELING
304.901.2000 MARTINSBURG
Sincerely,
Bailey & Wyant, PLLC
304-345-4222
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