Provost Umphrey, others argue ex-CSX workers shouldn't have sued in W.Va.

Steve Korris Nov. 12, 2010, 2:56am


WHEELING, W.Va. -– Former CSX railroad workers from North Carolina shouldn't have sued their former personal injury lawyers in West Virginia if they didn't feel like traveling to West Virginia, the former lawyers argue.

The Provost Umphrey firm of Beaumont and Atlanta lawyer Edward Cook seek an order directing 15 plaintiffs to sit for depositions in Wheeling, W.Va.

All 15 would prefer depositions near their homes, according to their lawyer, Donald Tennant Jr. of Wheeling.

U.S. Magistrate Judge James Seibert has set a hearing on the dispute for Nov. 18.

Plaintiffs claim Cook sued CSX in Gwinnett County, Ga., but dismissed the suits and filed them in Marshall County, W.Va., without their knowledge or approval.

They claim Cook later shared the litigation with Provost Umphrey lawyers who settled their claims for less than their true value.

Last month, after Provost Umphrey and Cook scheduled depositions in Wheeling, Tennant moved for an order setting them in North Carolina.

He wrote that his clients "were hamstrung to file the litigation where the transaction occurred rather than where they resided."

On Nov. 2, Provost Umphrey and Cook disagreed.

"Plaintiffs could have brought this lawsuit in either state or federal court in North Carolina," Michael Garrison of Morgantown wrote for Provost Umphrey.

Cook's lawyer, Margaret Droppleman of Atlanta, wrote that they could also have sued in Georgia or Texas.

Garrison wrote that plaintiffs initially retained Cook and his Atlanta firm to represent them on claims that they injured their lower extremities.

He wrote that Cook participated in meetings in North Carolina where railroad workers had been invited to discuss potential claims.

Provost Umphrey employed Cook as a partner in 2001, bringing the railroad cases with him. Cook subsequently left Provost Umphrey and agreed to share in expenses and any fees from the lower extremity cases.

Garrison wrote that contacts between other Provost Umphrey lawyers and North Carolina can be attributed to Cook by virtue of agency and joint venture principles.

For Cook, Droppleman wrote that Tennant failed to support his motion with evidence establishing physical or financial hardship.

She wrote that Provost Umphrey notified at least three plaintiffs that it would dismiss and refile their cases.

"Defendant Cook is not unsympathetic to the fact that traveling to West Virginia will involve time, effort and expense," she wrote.

"Still, plaintiffs chose to bring this lawsuit in the Northern District of West Virginia and, in deciding to do so, they assumed the burdens, expenses, and inconvenience they now complain of," she wrote.

U.S. District Judge Frederick Stamp has set trial to start May 24.

Cook is the nephew by marriage of former West Virginia Supreme Court Justice Warren McGraw, who is state Attorney General Darrell McGraw's brother. Darrell McGraw hired Cook, then at Provost Umphrey, in 2001 for a case involving law firm Steptoe & Johnson.

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