Thursday, July 31, 2003

West Virginia: A great place to die

This article from the AP reports that "West Virginia is considered a national leader in improving the quality of [end-of-life] care, according to a recent study by Midwest Bioethics Center in Kansas City, Mo., which directed a national community-state partnership program supported by the Robert Wood Johnson Foundation. The foundation in the past has provided funding to West Virginia state for end-of-life care initiatives."

Stop, in the name of Spam!

The AP is reporting that "[t]he canned-meat company filed two legal challenges with the U.S. Patent and Trademark Office to try to stop SpamArrest from using the decades-old name Spam, for which it holds the trademark."

Smoking ban case appealed to State Supreme Court

The Daily Mail reports that the Kanawha County Board of Health has appealed a ruling by Judge Charlie King which relaxes the county-wide smoking ban to exempt bars and restaurants. The judge found that the state constitution prohibits a board of health from regulating the air inside bars and alcohol-serving restaurants because state law considers them private clubs, not public places.

Wednesday, July 30, 2003

326 of W.Va's 728 schools are "left behind"

The Hagerstown Herald reports that in implementing the No Child Left Behind Act, "[s]tatewide, 326 schools were listed as being in need of improvement, as opposed to 78 the year before. Overall, 402 schools in the state had no problems meeting the guidelines...."

Citizens group creates "questionable doctors" list on the web

According to this report in the Charleston Gazette, a consumer group called the Public Citizen's Health Research Group has posted on its web site the names of 293 doctors in West Virginia who have been disciplined by state medical boards and the government for incompetence, sexual misconduct, criminal convictions and other offenses.

Tuesday, July 29, 2003

In defense of the "F" word

The Smoking Gun posts an interesting motion to dismiss authored by a public defender in Colorado who sought dismissal of criminal charges against his client, a juvenile, who cursed at his principal using variants of the "F" word.

Needless to say, the brief contains explicit language which may be offensive to some, but not to others (which is among the points made in the brief). It is the first brief I have seen that cites Google results and the Wikipedia to support legal arguments.

An important time in history for gay rights

In case there was any doubt that we have reached a pivotal moment in the gay rights movement, the following AP articles are all available online today:

N.Y. to Open 1st Public Gay High School This article discusses the new Harvey Milk high school in New York City, which is just for gay, bisexual and transsexual students. I thought separate but equal schools went out with Brown v. Board of Education, but it looks like the minority group in this case is requesting segregation for safety reasons.

Vatican Waging Offensive on Gay Marriages The Roman Catholic Church is stepping ups its offensive against legislation worldwide that "legitimizes" same sex marriage and civil unions.

A church split on gay inclusion. Meanwhile, the "other" Catholic church, the Episcopal Church, is struggling with whether it should confirm a gay bishop and allow civil unions for gay couples in the church at its upcoming National Convention. The Episcopals in North America favor inclusion of homosexuals, but the worldwide church is more conservative.

The effect of Lawrence v. Texas on the issue of gay rights cannot be understated. 2003 will prove to be an important year for the movement.

Buy computers tax-free

As reported here in the Dominion Post, this Saturday is the sales tax holiday in West Virginia. Computers up to $750, computer accessories and office supplies will all be sold without the 6% sales tax. Stock up!

Wednesday, July 23, 2003

W.Va. Lottery officials trying to close advertising loophole

The Charleston Gazette reports that "State Lottery officials are trying to close a loophole in the state's limited video lottery law that lets some bar operators get around the ban on advertising video slot machines[.]"

Regulations prohibit video lottery retailers from advertising, but the operators have opted to name their establishments in suggestive ways (like "Lucky Draw," "High Rollers" or "Monti Casino") to avoid the advertising ban. Lottery officials want to craft a bill to eliminate such wordplay in corporate names.

ACLU fights hunting ban in Ritchie County

The Dominion Post reports that the ACLU filed a suit in Ritchie County Circuit Court on Monday arguing that the County Commission cannot ban Sunday hunting on private property.

This article in the Daily Mail fleshes out the details of the suit a little more.

A magistrate that is not afraid to do some heavy lifting

[Via USAToday]

Tuesday, July 22
Martinsburg - If you're looking for a strong couple, try Berkeley County Magistrate Carlton DeHaven and his wife, Cindy. Both are weightlifters who broke state records in their respective divisions at a recent competition. They say weightlifting is an escape from high-stress jobs.

New law review article about weblogs

Thanks to Gary O'Connor (Statutory Construction Zone) and Stephanie Tai (blueblanketblog) for mentioning this weblog in their recent article "LEGAL AND APPELLATE WEBLOGS: WHAT THEY ARE, WHY YOU SHOULD READ THEM, AND WHY YOU SHOULD CONSIDER STARTING YOUR OWN," reprinted at the Statutory Construction Zone. The article mentions this weblog as one of several focusing on the law of a particular state.

I was just asking Steven Minor (Southwest Virginia Law Blog) the other day if he was aware of how many "state law" bloggers there were. This article points out in footnotes 19-27 that nine states are currently covered.

Saturday, July 19, 2003

En banc Fourth Circuit reverses panel's ruling in sexual harassment case

This post last October discussed a ruling by a panel of the Fourth Circuit in sexual harassment case, Ocheltree v. Scollon Prods., Inc., No. 01-6360 (4th Cir. Oct. 10, 2002). The facts of the case were pretty outrageous, and I am not going to repeat them here. Suffice it to say that the plaintiff, a woman, had to listen to constant sexually-explicit banter from a group of male coworkers.

On July 18, in an en banc decision (pdf), the Fourth Circuit voted 10-2 to affirm the jury's award of compensatory damages, which the panel had reversed, and to reverse the award of punitive damages, consistent with the panel's decision.

The new opinion dredges out even more offensive sexual banter than the panel opinion, but concludes that "here, a reasonable jury could find that, taken together, the various mannequin incidents, the vulgar song and picture, and the graphic descriptions of sexual activity (especially oral sex) that consistently painted women in a sexually subservient and demeaning light were sufficiently severe or pervasive to alter the conditions of Ocheltree’s employment and to create an abusive work environment."

I have to say that the original panel decision reversing the jury's verdict was pretty surprising, given the outrageous facts. Now it is pretty apparent that the defendant just got lucky with the panel it drew. (The panel consisted of Judge Niemeyer, Judge Williams, and Judge Michael, and was decided 2-1 with Judge Michael dissenting. Judge Michael wrote the en banc majority opinion).

Thanks to Howard Bashman for the pointer to this new opinion.

Friday, July 18, 2003

The Town of Bath is too far in debt to be dissolved

The Daily Mail reports that "Morgan County commissioners have unanimously decided not to dissolve the town of Bath because the town is in debt for about $2.8 million."

One of the town's 800 residents petitioned the the Morgan County Commission to dissolve the 227-year-old town after only 13 people showed up for the June election.

Lottery relocation case to go to the W.Va. Supreme Court

Does the state constitution prohibit the Lottery Commission from moving its headquarters to Putnam County? Judge Irene Berger plans to certify that question to the West Virginia Supreme Court of Appeals this fall, according to this article in the Daily Mail.

Capital High teacher shot at school board meeting

The Charleston Gazette reports that "[a] disgruntled Kanawha County school employee walked into a school board meeting Thursday night, threw a bucket of gasoline on his supervisor, pulled out an assault rifle and shot a teacher, police said."

Follow up question: This article in the Daily Mail reports that the assailant, Richard Dean Bright, was charged with malicious wounding and wanton endangerment, and was being held at South Central Regional Jail on $250,000 cash bond.

This man doused his supervisor with gasoline and tried to light it. Why was he not charged with attempted murder and held without bond?

Allyson Duncan confirmed

[via SW Virginia law blog]

U.S. Senate confirms Allyson Duncan to the Fourth Circuit As reported here by the AP, the United States Senate voted 93-0 to confirm Allyson Duncan to the U.S. Court of Appeals for the Fourth Circuit. ...

Thursday, July 17, 2003

Fourth Circuit decides two contribution cases related to the polio vaccine

The Fourth Circuit yesterday decided two cases involving a boy who contracted polio after receiving the oral polio vaccine Orimune. St. Louis University administered the vaccine to the boy. The boy developed a perirectal abscess and was given antibiotics. The antibiotics were apparently the wrong type, and they weakened the boy's immune system so that he contracted polio. (The polio vaccine uses a live but attenuated or weakened polio virus that normally induces a mild infection in the recipient.) The victim recovered a $16 million judgment from St. Louis Hospital in Missouri state court.

The hopsital then filed contribution actions against American Cyanamid (the manufacturer of the vaccine) and the United States Government, who regulated the vaccine--both of whom had been adjudicated liable for manufacturing (in Cyanamid's case) and approving (in the Government's case) vaccine lots that did not comply with the regulatory requirements for neurovirulence. See In re Sabin Oral Polio Vaccine Prods. Liab. Litig., 743 F. Supp. 410 (D. Md. 1990). The question in these two cases was whether this judgment, rendered under Maryland law, could be applied in the contribution action by St. Louis University.

The district court held that while St. Louis University was not entitled to contribution agaist Cyanamid, it was entitled to contribution from the United States. Citing differences in Missouri law and the law of Maryland regarding the need to prove causation, the Fourth Circuit affirmed the judgment in favor of Cyanamid, see American Cyanamid Co. v. St. Louis Univ., No. 02-1235 (4th Cir. July 16, 2003), but reversed the judgment against the United States, see United States v. St. Louis Univ., No. 02-1351 (4th Cir. July 16, 2003), leaving St. Louis Hospital to bear the entire $16 million judgment.

Wednesday, July 16, 2003

Arbitration delayed is arbitration denied

In American Reliable Ins. Co. v. Stillwell, No. 02-1431, 02-1807 (4th Cir. July 16, 2003), an insurance company attempted to exercise an arbitration clause in an insurance policy 14 months after litigation was commenced in a West Virginia circuit court. Perhaps sensing the circuit judge intended not to grant their motion to compel arbitration, the defendants filed (but did not serve) a new suit in federal court seeking to compel the arbitration. Two days after an unfavorable ruling in state court, the defendants served process in the federal case.

Judge Stamp dismissed the second suit, citing the Rooker-Feldman doctrine, which prohibits litigants from using federal courts to "appeal" allegedly erroneous state court decisions. On appeal, the Fourth Circuit affirmed.

In what appears to be an issue of first impression, the Fourth Circuit held that the doctrine applied even though the federal suit was filed before the adverse ruling. "To find otherwise would permit litigants to nullify the purpose of Rooker-Feldman by precisely the kind of ploy used here by Appellants." The timing of the filing of the complaint in federal court is a relevant consideration, but it is not outcome determinative, the court ruled.

No acronymn left behind

This article in the Daily Mail notes that the new No Child Left Behind (NCLB) law contains dozens of terms and phrases that will be crucial for parents and educators to understand in order for the sweeping reform to work. Some teachers who are worried that parent's will be "left behind" because they don't understand the jargon have created bookmarks with key terms printed on them.

A special Web site devoted solely to West Virginia's implementation of the new law features a question-and-answer section and a glossary.

Court case against Honor Society thrown out

NBC 25 reports that Judge David Sanders has dismissed a suit brought by a Berkeley County high school student against Martinsburg High School for being rejected by the school's National Honor Society chapter. The Court ruled that the National Honor Society is not a government body subject to the Freedom of Information Act.

West Virgnia not alone in enacting tort reforms

This report in the Insurance Journal notes that 19 other states have enacted tort reform measures this year, making this the busiest year since 1995 for tort reform.

In a related report in today's Daily Mail, a new analysis by Pennsylvania's state Department of Insurance shows that medical malpractice insurance underwriters lost $18 million last year, underscoring industry claims that Pennsylvania's tort system is driving out insurers.

Tuesday, July 15, 2003

Uncertainty Emerges in Debate on Overtime

The new overtime regulations are confusing, says this AP article. According to the author, "[t]he [Bush] administration says its rules could cost 644,000 workers the right to extra wages. Labor unions and Democrats say the real number is at least 8 million and maybe even higher."

How can there be such a huge disparity in the estimates, given the fact that the new regulations were intended to eliminate ambiguity? This is a change only lawyers can love.

Friday, July 11, 2003

Oh my God, he's got a gun ... on his T-shirt

Thanks to Steve at the Southwest Virginia Law Blog for pointing out this article about a case winding its way through the 4th Circuit in which a student has sued the school board for prohibiting him from wearing an NRA Shooting Camp T-shirt at school. The vice-principal claimed that the depiction of shooters on the shirt had the potential to disrupt classroom instruction. The civil suit is still pending, but the plaintiff appeals an order prohibiting him from wearing the shirt to school in the meantime.

Ethics Commission vetoes ads on patrol cars

I have to say I am glad to see this report in the Charleston Gazette that the State Ethics Commission has thwarted a plan by several cash-strapped W.Va. municipalities to lease for $1 police cruisers that would serve as billboards for various advertisers. The cities wanted to contract with a North Carolina-based ad agency to provide basically free police cars and other public vehicles featuring advertising.

In other words, your local police officer could have been driving around with lawyer ads and promotions for 99 cent wings at "Fat Larry's" if the Ethics Commission had ruled in favor of the plan. I know desperate times call for desperate measures, but are we that desperate?

House Backs Bush on New Overtime Rules

The AP reports that the House voted 213-210 to reject a Democratic provision that would have derailed the Department of Labor's proposed new overtime regulations that would deprive certain white collar workers of overtime pay.

The DOL estimates at least 644,000 white-collar workers now required to get overtime would lose it as a result of new definitions of jobs that would be exempt from the extra pay. Unions say that figure would actually exceed 8 million.

Federal Court Blocks Washington Video Game Sales Law

Howard Bashman (How Appealing) points out this AP report that U.S. District Judge Robert Lasnik issued an injunction blocking enforcement of a Washington state law designed to restrict the sale of violent video games to minors.

The law, which would have been effective July 27, would have imposed a $500 fine on anyone who sold a video game depicting violence against "law enforcement officers" to minors under age 17.

Thursday, July 10, 2003

W.Va.'s population continues to decline

The City of Huntington has dropped below 50,000 people, according to the U.S. Census Bureau, the Charleston Gazette reports. This leaves Charleston as the only West Virginia city with a population of greater than 50,000.

The 50,000-person threshhold is important because cities meeting that requirement can qualify for direct annual community development block grants from the Department of Housing and Urban Development.

The City of Huntington had about 86,000 people in 1950, the report notes.

W.Va. Auditor and Treasurer sue the Governor

According to this article in the Charleston Gazette, John Perdue (Treasurer) and Glenn Gainer (Auditor) announced Wednesday that they had filed suit in Kanawha Circuit Court to prevent the Wise administration from proceeding with plans to issue $3.9 billion of bonds to cover future debts in state teachers' and public employees' pension funds.

The two contend that the bond issue constitutes undertaking new state debt, which requires approval of state voters through a constitutional amendment. If the move is considered refinancing of old debt, no such amendment would be required.

Teacher's union sues W.Va. School Boards Association

The Charleston Gazette reports that the West Virginia Federation of Teachers sued the state School Boards Association, comprised of county school board members from across the state, alleging the association improperly uses public funds to lobby state lawmakers.

"The WVFT says state law only authorizes the school boards association to train county school board members in 'boardsmanship' and 'governance.' The group has no legal right to lobby, according to the lawsuit."

Teachers dismissed from National Honor Society suit

The Dominion Post reports that seven teachers sued by a girl who was not inducted into her high school's National Honor Society chapter have been dismissed from the suit. The suit will proceed against the principal and Board of Education.

Wednesday, July 09, 2003

Video lottery lawsuit has precedent to support it, plaintiffs claim

The Charleston Daily Mail reports that the anti-gambling groups looking to pull the plug on the state's video lottery terminals believe they have some precedent to support their arguments. It appears from the article that they intend to argue that a constitutional provision (Article VI-36) providing that the "Legislature may authorize lotteries which are regulated, controlled, owned and operated by the State of West Virginia in the manner provided by general law" does not authorize video lottery machines.

Fourth Circuit sorts out some more cybersquatting jurisdiction issues

A man who was stripped of his ownership of the domain name "" by Network Solutions, Inc. (NSI) could not sue Network Solutions for transferring the domain name, but he could maintain a claim against the company that caused the transfer.

In Hawes v. Network Solutions, Inc., No. 02-1182, 02-1377, 02-1824, 02-1825 (4th Cir. July 09, 2003) NSI transferred to French cosmetic company L'Oreal after L'Oreal initiated trademark litigation in a French court. The plaintiff sued in the U.S. to get the domain name back, but the district court dismissed the suit for lack of subject matter jurisdiction.

The Fourth Circuit reversed in part and affirmed in part. It found that although the district court did have jurisdiction over the claim against NSI, its dismissal of the claim was nonetheless proper because the plaintiff failed to allege all of the required elements of his claim. (The Anticybersquatting amendments to the Lanham Act generally prohibit suits against registrars like NSI unless the plaintiff can show that one of three exceptions to the limitation of liability granted by 15 U.S.C. 1114(2)(D)(i) applies. The failure to meet the elements was a 12(b)(6) issue, not a jurisdictional issue, the court found).

As to the claim against L'Oreal brought under 15 U.S.C. 1114(2)(D)(v), (which authorizes a domain name registrant to sue trademark owners for "reverse domain name hijacking") the Court found again that jursidiction was present. However, as to this claim, the Court found that all of the necessary elements were alleged and that the claim should not have been dismissed.

The Court was careful not to step on the toes of the French court system, which was hearing similar claims in France. ("We should add that our conclusion that Hawes' complaint states a cause of action under s1114(2)(D)(v) over which a United States court may exercise jurisdiction does not imply any disrespect of any French court that may have taken jurisdiction of a related dispute in France.")

Monday, July 07, 2003

Addicted to data

This article in the New York Times (thanks to Slashdot for the pointer) discusses how the need for the constant stimulus gained from receiving new information can become an addiction.

"It's like a dopamine squirt to be connected," said Dr. Ratey, who compares the sensations created by constantly being wired to those of narcotics — a hit of pleasure, stimulation and escape. "It takes the same pathway as our drugs of abuse and pleasure."

I have a feeling a lot of bloggers suffer from this addiction.

Is Internet access a basic human right?

According to this article in the Christian Science Monitor, the enlighted post-communist government of Estonia believes the answer is yes. [via Slashdot]

Thursday, July 03, 2003

Court refuses to order reinstatement of suit challenging video lottery

The State Supreme Court refused a petition for appeal in the video lottery suit mentioned in these previous posts (1,2), brought by Larry Harless on behalf of anti-gambling groups bent on shutting down West Virginia's burgeoning video lottery industry. See Rory Perry's post here for links to the press release and order.

Wednesday, July 02, 2003

Court says Gator-style ads are legal reports that Gator-style ad hijacking is legal, according to a ruling by the Eastern District of Virginia. Several other suits involving this type of advertising program are still pending.

Thanks to Steve at the SW Virginia Law Blog for the pointer.

Fourth Circuit decides another Internet personal jurisdiction case

In Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., No. 02-1137 (4th Cir. 2003), Carefirst, the medical insurance behemoth, sued Carefirst Pregnancy Centers, a non-profit, evangelical, pro-life advocacy organization, for trademark infringment. The suit was brought in the U.S. District Court for the District of Maryland, despite the fact that the defendant was an Illinois corporation.

The plaintiff based its claim of specific personal jurisdiction solely on (1) the defendant's semi-interactive, Maryland-accessible Internet website, which contained defendant's allegedly infringing use of the CAREFIRST name; and (2) defendant's contract with a Maryland web hosting company, NetImpact, which enabled the defendant to launch the allegedly infringing website.

Applying the holding in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (see this previous post), the District Court found that personal jurisdiction was lacking. It dismissed the case, and the Fourth Circuit affirmed the dismissal

The Fourth Circuit reiterated that by setting up a generally accessible, semi-interactive Internet website, one does not thereby direct electronic activity into another state with the manifest intent of engaging in business or other interactions within that state in particular. With regard to the contract with NetImpact, the court held that "it is unreasonable to expect that, merely by utilizing servers owned by a Maryland-based company, CPC should have foreseen that it could be haled into a Maryland court and held to account for the contents of its website."

This is the second case to apply the holding of ALS Scan. The first was Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002) (see this previous post).

Kiss says he'd rather run for Supreme Court in 2004

House Speaker Bob Kiss told reporters that he would rather run for Supreme Court than for governor in 2004, according to this article in today's Daily Mail.

The article mentions that Kiss believes "that the things [he] would like to see accomplished in the state would be accomplished easier from the Supreme Court bench, not the governor's office."

That's a telling statement, coming from the state's Speaker of the House. The legislature is, after all, supposed to be the primary organ of public policy in the state. Kiss recognizes that lately, to have any real policy-making influence in this state, you have to be on the supreme court.

The court, as it is currently composed, has been criticized for leaning too far left. Justices Warren McGraw, Larry Starcher and Joseph Albright compose a liberal majority in many key decisions--especially ones in which politics plays a substantial role. Justice Robin Davis is regarded as a moderate, while Justice Elliott "Spike" Maynard is considered the court's lone conservative.

Speaker Kiss is a pragmatic, moderate democrat who could restore a moderate balance to the Court if he were to replace Justice McGraw. Although in the article he seems to express doubt about his ability to raise funds based on the disparity in name recognition, he would have the solid support of the State Chamber of Commerce and most businesspeople in this state, should he choose to run.

Berkeley Springs man files petition to dissolve town

The Charleston Gazette reports that "Thomas Hall delivered a letter to the Morgan County Commission Monday asking for a special election or dissolution of the Town of Bath, also known as Berkeley Springs, because only 13 out of its more than 400 registered voters showed up for the June election."

Governor Wise ready to use veto on grant committee bill

The Clarksburg Exponent-Telegram reports that the governor is prepared to veto the Economic Development Grant Committee reform bill if it gives the legislature the final say on who receives grants.

Some legislators want to retain the power to give a final approval of all committee awards.

Follow-up: According to this article in the Dominion Post, the the Legislature voted yesterday to adopt the governor's plan (without the legislative approval amendment).

Tuesday, July 01, 2003

Circuit courts increase fees

I received this new fee list from the circuit clerk's office today in Berkeley County. I assume the prices are the same for every county in West Virginia based on SB 2011.

JULY 1, 2003

CIVIL CASES - $125.00
ADOPTIONS - $125.00



BAIL PIECE - $ 10.00



OTHER SERVICE - $ 20.00 RESTRICTED, $ 10.00 CMRRR [Which I assume means certified mail, return receipt requested]


W.Va. Legislature approves technical changes to workers' comp bill

The West Virginia Legislature last night approved technical corrections to the recently passed Workers’ Compensation reform package and sent the measure to the Governor for his signature. According to this article in the Daily Mail, the vote totals in each house were: Senate 26-7, House 62-29. The main amendment that lawmakers added to the bill cleaned up technical errors, including the removal of references to an intermediate court of appeals, which lawmakers had intended to drop earlier this month.

Supreme Court to hear DuPont petitions

The Marietta Times reports here that the West Virginia Supreme Court of Appeals has agreed to review petitions filed by DuPont in the class action lawsuit regarding the presence of C8 in local water supplies.

DuPont appeals from an order requiring it to pay for blood tests of residents concerned about their exposure to C-8, a chemical used to make Teflon and other products. It also seeks review of the circuit judge's decision not to recuse himself from the case.

The article notes that the Supreme Court denied a petition seeking the recusal of Justice Albright, whom DuPont claimed had a prior affiliation with the Parkersburg water district.

Oral arguments are scheduled for September 23.

Merriam-Webster unveils new Collegiate Dictionary

"A former dot-commer working a McJob was listening to some headbangers while laying out the last of his dead presidents for longnecks and some less than heart-healthy Frankenfood.

"Confused? Consult the new edition of the Collegiate Dictionary from the folks at Merriam-Webster." [The Dominion Post]


Some new law was made yesterday in the area of spoliation of evidence. In Hannah v. Heeter, No. 30962 (June 30, 2003), the West Virginia Supreme Court of Appeals answered three certified questions regarding the viability of certain spoliation claims. The Court clarified that West Virginia recognizes two common law causes of action for spoliation: negligent spoliation and intentional spoliation. It defined the parameters of these two torts as follows:

Negligent spoliation.
Syl. Pt. 2: "West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action."

Syl. Pt. 5: "West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence."

Syl. Pt. 7: "A duty to preserve evidence for a pending or potential civil action may arise in a third party to the civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances."

Syl. Pt. 8: "The tort of negligent spoliation of evidence by a third party consists of the following elements: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute, administrative rule, voluntary assumption of duty, or other special circumstances; (4) spoliation of the evidence; (5) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; and (6) damages. Once the first five elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The third-party spoliator must overcome the rebuttable presumption or else be liable for damages."

Intentional spoliation.
Syl. Pt. 9: "West Virginia recognizes intentional spoliation of evidence as a stand- alone tort when done by either a party to a civil action or a third party."

Syl. Pt. 10: "Intentional spoliation of evidence is defined as the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action."

Syl. Pt. 11: "The tort of intentional spoliation of evidence consists of the following elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The spoliator must overcome the rebuttable presumption or else be liable for damages."

Another challenge to mountaintop mining in the works

Steven Minor of the Southwest Virginia Law Blog points out this AP report about a new challenge by environmentalists to a mountaintop mining permit for a proposed Mingo county mine. The interesting twist is that the environmentalists intend to take their appeal through state courts instead of federal courts, hoping the West Virginia Supreme Court of Appeals is a friendlier forum than the Fourth Circuit has been.

Apparently, these environmentalists think that popularly elected judges will favor the environment over jobs. The last time I checked, fish weren't voting, but unemployed coal miners were.