Provost Umphrey says no evidence plaintiffs can't travel for depositions

By Steve Korris | Dec 16, 2010

WHEELING, W. Va. – Provost Umphrey law firm of Beaumont claims 15 former clients from North Carolina failed to prove they can't travel to West Virginia for depositions in their malpractice suit against the firm.

On Dec. 9, the firm's lawyer, Michael Garrison of Morgantown, W. Va., attacked affidavits of former CSX Transportation workers listing conditions that restrict their mobility.

"The documents fail to provide any medical opinion or evidence to substantiate the claim that plaintiffs cannot travel," he told U.S. Magistrate Judge James Seibert.

"The affidavits are nothing more than conclusory statements that they have whatever medical conditions their lawyers say they have," he wrote.

The lawyer for the 15, Donald Tennant Jr. of Wheeling, W. Va., seeks a protective order that would move depositions closer to their homes.

Garrison wrote that Tennant acknowledged their ability to travel at a hearing in October, when he said they could and would travel to Wheeling for their trial.

He wrote that Jerry Hinson, Lloyd Wheeler, James Williams, Elaine Cockman and Linda Snead didn't submit affidavits, leaving no question that they should travel.

Cockman and Snead, representing estates of Mitchell Cockman and Jerry Snead, conceded they could make the trip, Garrison wrote.

Former Provost Umphrey lawyer Edward Cook of Atlanta, defending himself separately, ridiculed the affidavits.

"Litigation is not for the faint of heart," Margaret Droppleman of Charleston, W, Va., wrote for Cook on Dec. 9.

"Plaintiffs have chosen West Virginia as the forum for their case," she wrote. "If they now find it so inconvenient that it impairs their ability to proceed, the proper remedy is to request another jurisdiction."

She wrote that no plaintiff submitted records from any health care provider articulating travel restrictions or mobility limitations.

The plaintiffs apparently reached their own conclusions, Droppleman wrote.

The records they produced revealed most physicians didn't agree, she wrote, and added that physicians for Russell Pait and Gregory Warnock noted no physical limitations, "not even arthritis."

Earnest Bryant's affidavit noted that the brief on the protective order incorrectly attributed infirmities to him, and Droppleman wrote that his records contain no statement that his back injury or arthritis prevents his travel.

She wrote that Hiram Davidson of Rockingham, N.C., saw a doctor on more than one occasion in Richmond, Va., 248 miles away.

Davidson and Carroll Garner were cautioned against prolonged standing, not against riding in a car or an airplane, and Bobby Lambert and A. B. Strickland identified issues relating to their weight but not to any injury, she wrote.

A doctor showed mobility limitations for John McIver and indicated difficulty in traveling in 2002, but didn't indicate a permanent problem.

She conceded that David Davenport, a wheelchair bound amputee, might have a legitimate basis for a deposition in North Carolina.

She wrote, "While some wheelchair bound persons are in fact quite mobile, it may be that plaintiff Davenport is not."

"Unfortunately, the medical records do not comment on this issue and it is left to speculate as to whether the wheelchair confines this plaintiff to his home or the immediate surrounding geographic area or if he is more mobile."

Cook originally represented the men, suing CSX in Gwinnett County, Ga.

They 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.

CSX and Provost Umphrey settled the mass of claims.

When the North Carolina group learned the terms of the settlement, they retained Tennant to sue Provost Umphrey and Cook, who had left the firm.

They claimed they didn't consent to bringing their cases in West Virginia.

Provost Umphrey and Cook set depositions for all 15 in Wheeling, prompting Tennant to plead for relief.

Tennant wrote that his clients were hamstrung to sue in West Virginia because the transaction at issue occurred there.

Provost Umphrey and Cook answered that they could have sued in state or federal court in North Carolina.

Tennant later abandoned the claim that he had no choice, according to Garrison.

"It is undisputed that plaintiffs' forum selection was a volitional act, and not something over which they had no control," he wrote.

Droppleman wrote, "If they now find it so inconvenient that it impairs their ability to proceed, the proper remedy is to request another jurisdiction."

U. S. District Judge Frederick Stamp, who presides over the case, assigned Seibert to hear the motion for protective order.

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

He denied a defense motion for independent physical examinations of plaintiffs.

Stamp has set trial to start May 24.

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