WHEELING — Precision Pipeline LLC wants a case in which a former employee’s family claims the company’s negligence caused the employee’s death heard in federal court.

Jennifer D. McDanell, individually and as administratrix for the estate of Robert Leon McDanell, originally filed her lawsuit May 31 in Brooke Circuit Court, alleging Robert McDanell was working an unreasonably unsafe job when he was struck and killed by large section of pipe. On June 19, Precision Pipeline sought to have the case removed to federal court.

Jennifer McDanell, of Louisiana, alleges Robert McDanell was working for Precision Pipeline in Brooke County on Dec. 16, 2012, when he attempted to place a large section of pipe into a prepared trench. The claim states the site was unnecessarily dangerous due to the pipe being on the wrong side of the trench, therefore, McDanell and another employee had to use excavators to pick up and transport the pipe.

According to the lawsuit, the large pipe swung into the cab of McDanell’s excavator while being transported, and struck him in the chest, causing his death. Precision Pipeline is accused of failing to provide a safe workplace for McDanell.

Precision Pipeline is seeking the removal due to the amount in controversy exceeding $75,000.

Precision Pipeline is being represented in the case by attorney George J. Joseph of Mannion & Gray, L.P.A. in Charleston. McDanell is being represented in the case by attorney Geoffrey C. Brown of Bordas & Bordas PLLC in Wheeling.

U.S. District Court West Virginia Northern Case No. 5:14-cv-00081-FPS

CHARLESTON – The West Virginia Court of Appeals has denied a request by the City of Weirton to prevent one of its former police officers from taking the deposition of a lawyer he did not formally retain.

The city had sought a writ of prohibition to prevent the Brooke Circuit Court from allowing Terry DiBacco from taking Dean Makricostas’ deposition.

Though Makricostas was not formally retained by DiBacco, he assisted the former city officer after he was placed on administrative leave.

DiBacco seeks to depose Makricostas for the purpose of establishing that the city, through its lawyer, Vince Gurrera, had required DiBacco to present a general medical release, not a mental health release, to be reinstated.

DiBacco served as a Weirton police officer for more than 15 years when, in April 2009, the city placed him on administrative leave based on his mental health status.

In an attempt to be reinstated, DiBacco submitted to the city a release from his family doctor stating he was under no physical restrictions. However, the city refused to reinstate him. Instead, he was told by the city that he either had to apply for a disability pension or be terminated.

DiBacco sued the city and the city’s Board of Trustees of the Policeman’s Pension or Relief Fund, claiming disability discrimination under the state’s Human Rights Act.

Weirton, in its petition to the state’s high court, argued that DiBacco’s request to depose Makricostas would: violate West Virginia Rule of Evidence 408 and West Virginia Rule of Civil Procedure 26(b)(1); have a “chilling effect” on future settlement negotiations in the state; and undermine the state’s public policy of favoring settlement negotiations.

The Supreme Court upheld the decision of the Brooke Circuit Court in its Sept. 23 ruling.

“As the circuit court correctly concluded, the fact that evidence obtained from Mr. Makricostas’ deposition may ultimately be inadmissible does not prohibit its discovery,” the justices wrote.

“The circuit court expressly found that the deposition of Mr. Makricostas was likely to lead to admissible evidence given the factual dispute regarding the type of release requested by Weirton; however, the circuit court deferred any decision regarding admissibility until such time as additional evidence obtained during discovery revealed the nature of the communications at issue.

“We find no error in the circuit court’s reasoning.”

WHEELING – A Brooke County woman is suing over claims she was injured on the wet floor of a Wendy’s restaurant bathroom.

Trista Owings filed a lawsuit Oct. 7 in Brooke Circuit Court against Primary Aim, doing business as Wendy’s Store No. 309, citing negligence.

According to the complaint, Owings was at the Wendy’s on Commerce Street in Wellsburg on April 20, 2013, when she slipped on an accumulation of water the bathroom floor and fell, sustaining a concussion and injuries to her neck and arm, as well as damaging her cell phone.

Owings says she has incurred more than $4,300 in medical expenses.

The defendant is accused of negligence in failing to provide a safe premises for customers or warn the plaintiff of the dangerous condition.

Owings seeks damages, including medical expenses, loss of earning capacity and lost wages, interest, court costs and attorney fees.

She is represented by attorney Daniel P. Taylor of Dittmar, Taylor and Makricostas in Weirton.

The case was assigned to Circuit Judge James P. Mazzone but was removed to the Northern District Court of West Virginia on Nov. 3 due to diversity of citizenship, as none of the members of the plaintiff company are residents of West Virginia where Owings is a resident, and alleging that the amount in controversy exceeds $75,000.

In its answer to the complaint on Nov. 3, the defendant alleged Owings’ injuries were the result of her own negligence and recklessness. On Nov. 4, the defendant submitted a motion to dismiss, or, in the alternative, summary judgment requesting the dismissal of the plaintiff’s claim for punitive damages, upon the claim that no facts to support the claim were provided by the plaintiff.

On Nov. 7, the plaintiff filed a motion to remand the case to circuit court based on the fact that, according to the plaintiff, the defendants failed to provide evidence that the amount in controversy exceeds $75,000.

Northern District Court of West Virginia case number: 5:14-CV-00146

WHEELING – A man is suing Black & Decker for a defective tool that caused him severe and permanent injury

On Aug. 14, 2013, Matthew Baker, while working for his employer, Schoop Home Improvement, was operating a DeWalt saw with all due care to perform a dado cut and was severely injured when he sliced through four fingers almost completely, which resulted in nerve damage and permanent injury, according to a complaint initially filed Dec. 17 in Brooke Circuit Court and removed to federal court Jan. 16.

Baker claims Stanley Black & Decker Inc.; Black & Decker Corp.; Black & Decker (U.S.) Inc.; and DeWalt Industrial Tool Company sold and held out the saw as being able to safely perform a dado cut, however, the saw’s design and/or its requirement that its blade guard must be removed while a user is performing a dado cut made the saw unreasonably dangerous to operate.

The defendants had a duty to test for, discover and eliminate hazards wherever possible first before utilizing a potentially dangerous product design, according to the suit.

Baker claims the defendants also had a duty to guard against and warn of potential dangers if it was not possible to first eliminate hazards through a safer alternative design.

In 2000, at a meeting of the Power Tool Institute Inc., the defendants were made aware of Sawtop technology that detects when human flesh touches the saw blade and, once contact is detected, stops the saw blade almost instantly, according to the suit.

At the time, the inventor offered to make the technology available to the defendants through a licensing agreement, but the defendants failed to pursue licensing and use of the available, safer technology, according to the suit.

Baker claims the defendants are negligent and breached its implied and express warranties.

Baker is seeking compensatory and punitive damages with pre-judgment interest. He is being represented by Eric T. Chaffin of Chaffin Luhana LLP.

The case is assigned to District Judge Frederick P. Stamp Jr.

U.S. District Court for the Northern District of West Virginia case number: 5:15-cv-00007

WHEELING – First Judicial Circuit (Brooke, Hancock and Ohio counties) Circuit Judge Martin J. Gaughan, 71, will retire effective June 30.

Gaughn

He sent a letter to Gov. Earl Ray Tomblin and Chief Justice Margaret L. Workman on April 4.

Gaughan is a native of Pittsburgh. He has a 1967 bachelor’s degree in history from West Liberty State College and a master’s degree and law degree in from Duquesne University, where he studied while teaching high school full-time. He also has studied at the American Academy of Judicial Education and the National Judicial College.

He practiced law in the Northern Panhandle for more than 20  years until 1995 when he was appointed to the bench in the First Judicial Circuit by then-Governor Gaston Caperton. He was elected in 1996 and re-elected in 2000 and 2008. He presides over the Northern Panhandle Mental Health Court, Adult Drug Court, Juvenile Drug Court, and Adult Re-Entry Program.

He is considered one of the founders of community corrections in West Virginia.

He was very active in formulating the Community Corrections Act of 2001 and was instrumental in obtaining funding for Day Report Centers in the Northern Panhandle and throughout the state. He was actively involved in the formation of the state’s first treatment courts and the Child Protection Act of 2006.

He has received numerous awards, among them the 2010 Distinguished Service award from the CEO of the National Association of Drug Court Professionals (NADCP), making him one of only five Judges nationally to have earned this award. He also received the 2010 award from the national Criminal Justice Association for the Best Criminal Justice System in the Southern Region.

He is a member of the West Virginia Judicial Association and has served on its Legislative Committee and Judicial Redistricting Committee. He also serves on the Supreme Court’s Committee on Overcrowded Prisons and Jails. He is a member of the Knights of Columbus and Italian Sons and Daughters of America.

He and his wife, Ginny, have three children and three grandchildren.

CHARLESTON – More than 30 businesses with video lottery terminals have filed lawsuits against the West Virginia Lottery Commission and an international gaming company for a computer change they claim will make their terminals “worthless.”

The businesses, along with the West Virginia Amusement & Limited Video Lottery Association, filed the suits last week in Kanawha Circuit Court. In addition to the state Lottery, Lottery Director John Musgrave and gaming company IGT Inc. are named as defendants.

According to the complaint, these 32 businesses were award limited video lottery (LVL) terminals in 2011, which was the last 10-year renewal period.

“The plaintiffs range from very small LVL retail locations with as few as five permits to operators with more than 500,” the WVALVLA states. “They collectively paid the (West Virginia) Lottery millions of dollars for permits to operate terminals from 2011 to 2021 with the understanding they could use their existing terminals.”

But the plaintiffs contend the Lottery and IGT negotiated to require the plaintiffs to either buy new terminals or pay IGT for “a costly upgrade” by the end of 2017. They say before the bids were submitted in 2011, the state Lottery held two educational seminars with an IGT representative. There, potential bidders were told they could use terminals with either the ICIS or SAS protocol, or computer language.

According to the complaint, the Lottery and IGT had private discussions in the year following the bid in which IGT said it no longer would service or support ICIC protocol after 2015, which is when the current contract for the state Lottery’s central computer system was set to expire.

“IGT owns the rights to both the ICIS and SAS protocols, as well as being the manufacturer of most of the LVL terminals in the state,” the WVALVLA said in a press release. “At the time, 100 percent of all terminals were in the ICIS protocol, and bidders relied on the ability to continue to use their existing terminals or buy used terminals in that protocol.”

WVALVLA spokesman Michael Haid said his members feel swindled.

“These West Virginia businesses would not have bid for as many permits or paid nearly as much for a permit if they thought that existing terminals would be made obsolete before the end of the permit period,” he said. “Many of our members feel like they have been subject to a classic ‘bait-and-switch.’”

Haid said members of his group were not told of this plan by either the state Lottery or by IGT. Still, the plaintiffs say the state Lottery extended its contract for its current central computer system until 2017, and it negotiated a deal with IGT for the company to offer permit holders a conversion kit to allow ICIS terminals to function as SAS terminals.

“With encouragement and approval by the lottery, permit holders bought thousands of the conversion kits from IGT, paying between $1,000 and $3,000 apiece, often borrowing from IGT or banks to do so,” the plaintiffs say. “Despite having been approved by the Lottery last fall, most of the kits are deficient and cannot be installed.

“In addition, the Lottery has proceeded with plans to take bids for a new central computer system that will no longer accept terminals in the ICIS after 2017, more than three years before the current 10-year permit period ends in 2021. In addition to paying for conversion kits or new terminals, permit holders will have millions of dollars in other expenses related to the change in protocol because an expensive ‘site controller’ must also be installed at most of the retail locations.”

The WVALVLA says the state Lottery and IGT essentially are forcing small West Virginia businesses to pay millions unnecessarily to a huge international corporation. IGT recently was acquired by G-Tech, another gaming giant. Before the merger, IGT’s annual profit was tens of millions of dollars more than the combined revenue of West Virginia’s 1,500 LVL operators, the press release states.

“This is money that should stay in West Virginia and could be used by the restaurants, taverns and others in the video lottery business to employ and help other West Virginians,” Haid said.

The plaintiffs listed in the complaints are A-1 Amusement Inc. of Wood County, Action Gaming Inc. of Ohio County, Lottery Technologies LLC of Mineral County, Blue Diamond LLC of Berkeley County, CD 3 LLC of Ohio County, Clay Music Corporation of Kanawha County, Coach’s Club Association of Marshall County, Dustyn Enterprises of Cabell County, Elm Room Inc. of Hancock County, Fabulous 50’s Café LLC of Hancock County, Gridcoach LLC of Brooke County, Hot 5 Stop LLC of Berkeley County, J-Bird LLC of Berkeley County, J&J Amusment LLC of Berkeley County, Jerry’s Bar Association of Marshall County, LeeJay Inc. of Wood County, LL&M Inc. of Berkeley County, Mimi’s Inc. of Kanawha County, Mountaineer Music LLC of Kanawha County, Nitro Lodge #565 of Kanawha County, PDM Associates of Weirton LLC of Hancock County, Palatokas Associates LLC of Hancock County, Patty’s Inc. of Kanawha County, Progressive Video Lottery LTD of Monongalia County, Random World LTD of Mercer County, TA Vending LLC of Ohio County, The Lounge LLC of Berkeley County, Tiffany’s LLC of Ohio County, Trans-Allegheny Enterprises LLC of Wood County, Wheeling Coin LLC of Ohio County, Woldap LLC of Mason County and WV ‘Café” Holding Company LLC of Wood County.

They accuse the defendants of regulatory taking, violation of due process rights, tortious interference, fraudulent inducement/concealment, business and economic duress, unjust enrichment and civil conspiracy. They seek compensatory and punitive damages and to order the defendants to support the ICIS protocol through the entire 10-year period to 2021 and/or order defendants to cover costs to switch to the SAS protocol. They also seek court costs, attorney fees and other relief.

They are represented by William C. Brewer and J. Tyler Slavey of the Morgantown law firm of Brewer & Giggenbach PLLC.

Kanawha Circuit Court case numbers 15-C-914 to 15-C-946