Judge denies physical exams for Provost Umphrey clients

Steve Korris Dec. 8, 2010, 3:14am

WHEELING, W. Va. – The Provost Umphrey law firm of Beaumont can't examine former clients to check their fitness for travel, U. S. Magistrate Judge James Seibert decided.

On Nov. 23, Seibert denied a motion for independent examinations of 13 North Carolina men pursuing a legal malpractice claim against Provost Umphrey.

Provost Umphrey planned to depose them in Wheeling, W. Va., where they sued the firm, but the men pleaded they couldn't make the trip.

Their lawyer, Donald Tennant Jr. of Wheeling, moved in October for depositions near their homes.

"Plaintiffs have various medical conditions that make travel difficult, while three are using wheelchairs," he wrote.

He wrote that the trip would take 1,000 miles driving or cost $500 to $700 flying, plus hotel, car rental and general travel costs.

"Defendants herein possess a financial position greater than the plaintiffs," Tennant wrote.

He wrote that they were hamstrung to sue where the transaction occurred.

For Provost Umphrey, Michael Garrison of Morgantown, W. Va., answered that they could have sued in state or federal court in North Carolina.

For Atlanta lawyer Edward Cook, defending himself separately, Margaret Droppleman of Atlanta wrote that Tennant failed to establish physical or financial hardship.

Seibert held a hearing on Nov. 18 and took it under advisement.

He quickly rejected the firm's oral motion for physicals.

"The court finds this unnecessary," he wrote.

He told Provost Umphrey to file responses to exhibits the men filed about their health.

Cook first represented them, suing in Gwinnett County, Ga.

The men claimed injuries to their lower extremities from working on the railroad.

Provost Umphrey hired Cook, dismissed the suits, and started them over as pieces of mass litigation against CSX in Marshall County, W. Va.

Tennant's clients now allege that settlements between CSX and Provost Umphrey reduced the value of their claims.

They claim they did not consent to bringing their cases in West Virginia.

Cook no longer works for Provost Umphrey.

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

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