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Notebook of Articles

2019

Anticipating and Responding to the “Right to Cure” Offer Letter in a West Virginia Consumer Credit and Protection Act Case
Application of the Forum Defendant Rule in Diversity Removal in West Virginia
Avoiding a Pitfall in Reviewing Employment Applications: The Legislative Trend of Criminal Justice Reform and Its Intersection with the Application Process
Blockin’ in the Free Worlds: Surviving Elections in the Social Media Age
Continual Growth and Progress: The Next Step in the Business Court’s Quest for Achievement
Creating a New Beginning in the Middle – not the End: A Beginner’s Guide to Interlocutory Appeals in West Virginia
E-Discovery and Cellphones
Employment Law Issues with Medical Marijuana
Healthcare Liability Law Relating to Mid-Level Practitioners and Their Collaborating Physicians
How Does HIPAA Apply to Employers?
Ice, Ice Baby!: Force Majeure on Construction Projects Due to “Colder Weather” aka Working in a “Winter Wonderland”
Legal Considerations – Workplace Wellness Programs
Legal Distinctions Between the Duty to Defend and the Duty to Indemnify
Social Host Liability in West Virginia
West Virginia Co-Tenancy Modernization and Majority Protection Act: A Year Later
West Virginia Medical Professional Liability & Health Care Litigation Review 2017–19
What is an Employment Statute Doing in My Public Health Code? Defending Claims under the Patient Safety Act
Working from Home? A Look at the Employer’s Duty to Provide Remote Access as a Reasonable Accommodation under the Americans with Disabilities Act

2018

An Overview of Laws Impacting Animals in West Virginia
Autonomous Vehicles
Bring Your Gun to Work – Employers’ New Considerations for a New Law
Bristol-Myers Squibb v. Superior Court: A Re-Examination of Personal Jurisdiction
Double Trouble: Tort Liability is Necessarily Limited in the Lender or Loan Servicer and Borrower Contractual Relationship
Interplay of the Writing Requirement and Non-Retaliation Provisions of the Pregnant Workers Fairness Act
Malice: An Afterthought
Prominent Defenses to OSHA Citations: The Employer Knowledge and Unforeseen Employee Misconduct Defense
Should you Subscribe to the Scribe? Embracing the Importance of the Medical Scribe in the Era of Electronic Health Records
Statutory Calculation: The Proper Method for Calculating Judgments Under West Virginia’s Medical Professional Liability Act
STOP, before you collaborate, and listen: Threshold conduct which violates W. Va. Code §46A-2-127 and 128
Stretching the Bounds of Public Policy Claims
The “Missing Witness” Instruction and Its Use At Trial
The NLRB is under new management and it shows
The Reach of Arbitration Agreements in Wrongful Death Cases Considerations at the State and Federal Levels in West Virginia
The West Virginia Antitrust Act: A Critical Analysis of the Indirect-Purchaser Rule
Using ERISA’s Complete Preemption Doctrine as a First Line of Defense
Using Witness Depositions in Lieu of Live Testimony at Trial: For When Your Best Laid Plans Go Awry
Weighing Employers’ Risks in Work-Life Balance Programs
Wild and Wonderful Personal Jurisdiction: What the Corporate Defendant Should Expect from Personal Jurisdiction in West Virginia

2017

Construction Law Update
Defending the Peer Review Privilege: Guidance for Health Care Providers and Counsel after
Faragher and Ellerth Defense of Avoidable Consequences in Relation to the West Virginia Human Rights Act
Legislation Through Enforcement: MSHA’s Push to Expand Upon the Definition of Working Place Examinations in Metal & Nonmetal Mines
Medical Monitoring in West Virginia and the Surrounding State
No Alternative: A Plaintiff in a Products Liability Action in West Virginia Must Prove That a Feasible, Alternative Design Was Available at the Time the Product at Issue Was Manufactured
Question Presented: Are Class Arbitration Waivers of Employment-Related Claims Illegal and Unenforceable Under the FAA?
The Art of Persuasion at Trial
The Litigation Privilege in West Virginia: Starting With Defamation and Stopping at Malicious Prosecution and Fraud
The Need For Clarification Regarding When Declaratory Relief May and Should Be Postponed: An Analysis of Christian v. Sizemore
Tied Up In
West Virginia’s Highest Court Upholds Legislative Decisions Contained in the MPLA
When Does Violent Crime Violate OSHA’s General Duty Clause? A Guide for Mere Mortals

2016

“I’m Sorry Dave, I’m Afraid I Can’t Do That” Autonomous Guided Vehicles: The Future of Product Litigation
An Overview of Business Cybersecurity Issues
Are all Employers Created Equal? Setoff Shenanigans for Special Employers in Deliberate Intent Cases
Curiouser and Curiouser: Legal Certainty and the Appearing, Disappearing Phenomenon that is Precedent
Estate Planning for the Unexpected: Wills, Beneficiaries, and West Virginia’s Anti-Lapse Statute
Fee Shifting Under §1983: What Every Practitioner Should Know
Potential Recovery For Employment Actions in West Virginia & How The New Statutory Limits on Damages Will Impact Practitioners
Professional Negligence of Insurance Agents in West Virginia
Recent Safety Related Initiatives in Energy Industries
Removing State Actions to Federal District Court: An Overview
She Blinded Me With Computer Science: Preserving Electronically Stored Information and the Importance of Understanding How eDiscovery Implicates Procedural and Ethical Rules
The Disutility of Rule 68 Offers of Judgment
The Hazards of Crossing the Line: How Out of State Employers May Lose Workers’ Compensation Immunity While Temporarily Working in West Virginia
The Never-Ending Horror Show: The Department of Labor’s Newsroom
Using Documents & Exhibits in Depositions
West Virginia Medical Professional Liability & Health Care Litigation Review 2014-
West Virginia’s Tumultuous Path to the Learned Intermediary Doctrine

2015

APP ON, PAP OFF: Minding the Insurance Gap in Bringing Transportation Network Companies to West Virginia
Apples and Oranges: The Problem with Barrett v. Retton
Brooks v. City of Huntington: A Case Study in the Measure of Damages for Residential Property
Can Insurance Carriers Require the Use of Salvage/Recycled OEM Crash Parts When Negotiating Repairs for Motor Vehicles in West Virginia?
Damages in Employment Cases After Senate Bill 344
Indemnity Agreements and Additional Insured Status in Master Service Agreements
Insurance Coverage Options for Intellectual Property Infringement Claims
The Arrival of Proximity Detectors: Good Things Come to Those Who Wait?
The Federal Burden: West Virginia’s Tort Reform Provides Little Relief to Railroad Industry
What to Expect When a Federally-Qualified Health Center is Named as a Co-Defendant in a Medical Professional Liability Action
Who Bears the Cost of Cyber Attacks: A Question Thornier Than Brer Rabbit’s Briar Patch
Winning the Blame Game: Shifting Liability in Complex Construction Litigation
Brave New World—The 2015 Amendments to the Deliberate Intention Statute West Virginia Code Section 23-4-2
Major Revisions to West Virginia’s Joint and Several Liability Law
Overview of the 2015 Amendments to the West Virginia Rules of Professional Conduct
Overview of the 2015 West Virginia Legislative Session
Overview of the September 2, 2014 Amendments to the West Virginia Rules of Evidence
West Virginia Medical Professional Liability & Health Care Litigation Review

2014

A New Era: Drug Testing In West Virginia Coal Mines
Applying Twombly and Iqbal’s Plausibility Standard to Affirmative Defenses in West Virginia Federal Courts
First Party vs. Third Party – Who can sue for bad faith?
Fourth Circuit: False Claims Act Is Not Meant to Promote Regulatory Compliance
Is it Possible for Employers to Prove There was a “Stoppage of Work” When Defending Unemployment Compensation Claims Arising Out of a Labor Dispute?
Limiting the Scope of Harless: Using Statutory Preemption to Obtain Dismissal of Common Law Wrongful Discharge Claims
Open and Obvious: Not So Obvious Anymore
Spoliation of Facebook: Why Cleaning Up Your Dirty Laundry Can Cost You
The Collateral Source Rule – Whose Windfall Is It?
The Common Interest Privilege in West Virginia: Various Applications and Results
The Diminishing Doctrine of Exhaustion of Administrative Remedies
The Force of Contract and the Statute of Limitations: What Happens When an Unstoppable Force Meets an Immovable Object (Heimeshoff v. Hartford Life & Accident Insurance)
The Increasingly Perilous Legal Malpractice Climate and its Evidentiary Intersection with the Rules of Professional Conduct (CLE Presentation re: ethics and malpractice)
Water, Water Everywhere – the Unsinkable Tort of Failure to Warn
Why West Virginia Courts Should Reject the “Any Exposure” Theory of Causation in Asbestos Litigation
Withstanding Unconscionability Attacks Upon Arbitration Provisions
2013 West Virginia Insurance Law Update: Supreme Court of Appeals of West Virginia Opinions
Civil Procedure Law Update
Deliberate Intent Developments
DTCWV 2014 Legal Malpractice Law Update
West Virginia Medical Professional Liability & Health Care Litigation Review 2013-14

2013

2013 West Virginia Legislature General Session :Biting the Bullet
Implications of New Drug Testing Law For Mine Industry Employers
Mandatory Attendance At Mediation of Client Representative with "Full Decision -Making Authority"
No Damage for Delay Clauses in West Virginia, Pennsylvania,Ohio and Virginia
OOPS! Insurers, Erisa, and New Grounds For Denial of Coverage
Preparing for a Department of Labor Wage and Hour Inspection
Recent Developments in West Virgininia Deliberate Intent
Reinsurance: The Devil is in the Details
Shale Gas Migration Claims
The Mine Safety and Health Administration's New Pattern of Violations Rule
West Virginia Medical Professional Liability & Health Liability
West Virginia Senate Bill No. 355: Wage Payment and Collection
Civil Procedure Law Update
Legal Malpractice Law Update
West Virginia Insurance Law Update
West Virginia Medical Professional Liability & Health Liability

2012

“Pre-Birth Accident: The Loss of Consortium Claim for a Child Born Post Accident”
Considerations in Defending a Negligent Credentialing Claim
Medical Monitoring in West Virginia: Not All Class Members Are Created Equal
Product Liability Litigation: Understanding West Virginia’s Legal Landscape Regarding Proximate Causation, Product Identification, Market Share Liability and the Bulk Supplier Doctrine
Reducing Recovery: Avoiding Subrogation Claims and Invoking Immunity Under the West Virginia Governmental Tort Claims and Insurance Reform Act
Servicemembers Civil Relief Act: Background, Provisions, and Why Compliance is Important
Shield or Sword?: Rule 26 and its Requirements in the Coming Years
Slippery Slope: Pre-Trial Expert Disclosures and Rule 26
The Risks and Pitfalls of Multi-Unit Residential Construction Litigation (The Uniform Common Interest Ownership Act Unplugged)
The Supreme Court of the United States and the West Virginia Supreme Court of Appeals on Arbitration Agreements under the Federal Arbitration Act – How Will the West Virginia Court Rule in the Wake of Concepcion and Marmet?
The West Virginia Consumer Credit and Protection Act: Bad Policy and Bad Law
What Every Defense Attorney Should Know About EPLI Policies
2012 Commercial Law Update
Civil Procedure Law Update
Deliberate Intent – an Update on this Unique Cause of Action
Evidence Law Update
Insurance Law Update
Legal Malpractice Law Update
Mass Tort & Class Action Law Update
National Labor Relations Board Update
Statutes of Limitations Update
West Virginia Medical Professional Liability Review 2011-12

2011

Bond Basics: Performance Bonds
C.Y.A: Is Your Expert Covered?
Desmond v. PNGI Charles Town Gaming, L.L.C.: A Case Study in Calculating Unpaid Overtime Compensation When an Employee is Misclassified as FLSA Exempt
How to Help Out-of-State Counsel to Hear the Beat of the Different Drum to which Pro Hac Vice Attorneys and Local Counsel Must
Justice Ketchum: A Practical Approach to Law
Lender Liability: Glascock, White, and the Special Relationship Duty
Post-Cuomo: The Floodgates Have Not Opened and Watters Still Predominates
Service by Publication: Service: Service or Sham?
Textually Active: Criminalizing Teen Sexting as Child Pornography
The Decline of Dunlap: Enforcement of Arbitration Provisions in Consumer contracts are Gaining Ground in West Virginia
Civil Procedure Update
Commercial Law Update
Evidence Law Update
Insurance Law Update
Labor Law Update
Legal Malpractice Law Update
Mass Tort and Class Action Update
Statute of Limitations Update

2010

A Little Deconstruction of Construction Litigation
Finding an Effective Gatekeeper for Unfounded Claims: The Case for Aligning West Virginia’s Rule 12(b)(6) Standard
How Does Dunn v. Rockwell Impact the Discovery Rule and Statute of Limitations Defense in West Virginia?
Internal Sexual Harassment Investigations: United States Supreme Court of Appeals’ Unanimous Decision to Expand Employee Rights Under Title VII’s Anti-Retaliation Provision
Mandatory Flu Vaccination Policies and an Employee’s Right to Religious Exemption
Overview of Perrine v. E.I. DuPont de Nemours and Company (W.Va. Supreme Court, Mar. 26, 2010)
Product Liability: The Emergence of the Sophisticated Purchaser and Bulk Supplier Defenses
Protecting Insurance Company and Defense Firm Interests Under the Medicare Secondary Payer Act
Substituted Service of Subpoenas: State ex rel. Progressive Classic
The Challenges Faced by Defendants Seeking Psychiatric Examinations of Plaintiffs in Employment Litigation
The Physician Health Program; Confidential and Privileged
The Problem of Duplicative Punitive Damages in West Virginia Wrongful Discharge Cases
The Quandary in West Virginia When Qualifying Medical Experts by Balancing the MPLA with Rule 702
Timing is Everything: An Overview of the 2009 Amendments to the Federal Rules of Civil Procedure
UM/UIM Coverage: Enforceability of “Other Insurance” Clauses
Use of the “Reliance on Counsel” Defense to Claims of Insurer Bad Faith
Commercial Litigation Update
Deliberate Intention Update
Employment Law Update
Evidence Law Update
Insurance Law Update
Labor Law Update
Premises Liability Update
Products Liability Update
Statutes of Limitations Update
Worker’s Compensation Update

2009

Case Management Orders and The Effect on Complex, Multi-Party Litigation
Do Multiple Statutory Damages under the WV Consumer Credit and Protection Act Violate Due Process?
Employee Wellness Programs and the Law: Practical Considerations for West Virginia Employers
Ex Parte Communication by Opposing Counsel with Your Client’s Current and Former Employees
Loss of Consortium Claims for Spousal Injuries Occurring Prior to Marriage
Nurse Practitioner Liability: Unknown Territory
Re-Learning The FMLA: A Primer on the Department of Labor’s Revised FMLA Regulations
The Taxman Cometh: An Examination of Recent West Virginia Tax Appeal Decisions
The Use of Lone Pine Case Management Orders in Mass Tort Litigation
West Virginia Medical Professional Liability Review 2008-09
Why Medical Records Matter in Employment Litigation: What Have You Told Your Doctor That You Haven’t Told Me
Commercial Litigation Update
Deliberate Intention Update
Employment Law Update
Evidence Law Update
Insurance Law Update
Labor Update
Legal Malpractice Update
Mass Tort & Class Action Update
Premises Liability Update
Products Liability Update
Statutes of Limitations Update
The Americans with Disabilities Act Amendments of 2008
Workers’ Compensation Update 2009

2008

Recent Developments in Antitrust Law Affecting West Virginia
Take a Bite Out of Crime: An Overview of Premises Security Litigation in West Virginia
An Introduction to Litigating the “New” West VirginiaWorkers’ Compensation Claims
Blurring the Lines Between Tort and Contract; Punitive Damages for Breach of Contract
Communications With Lower-Level Managers and Employees, Former Employees, and Affiliates: When Does the Attorney-Client Privilege Apply?
Federal Preemption in the Wake of the 9/11 Commission Act Did Anything Really Change?
If Don Quixote is Standing in My Front Yard Is It a Nuisance? West Virginia Nuisance Law and Burch v. Nedpower
Nursing Home Negligence and the MPLA
The Attorney Fee: A Consumer Defendant’s Greatest Exposure
The Uniform Trade Secrets Act and Practical Considerations for West Virginia Employers
The West Virginia Workers’ Compensation Act: Using Statutory Immunity to Defeat Common Law Claims in Employment Discrimination Cases
Thwarting Attacks on Arbitration Agreements in the Long Term Care Arena
West Virginia Medical Professional Liability Review 2007-08
Civil Procedure Update
Commercial Litigation Update
Deliberate Intention Update
Evidence Law
Insurance Law Update
Labor and Employment Law Update
Mass Tort & Class Action Update
Premises Liability Update
Products Liability Update
Statutes of Limitations Update
The Year in Review: 2007–2008 Case Law Update for West Virginia

2007

The Year in Review: 2006 - 2007 Case Law Update for West Virginia
A Perspective on Joint and Several Liability in West Virginia: Past and Present
Alternative Causes of Action: Are Plaintiffs Double Dipping???
Braving the Uncharted Waters of Zubulake: A Brief Overview of E-Discovery Spoliation Following Zubulake, Morgan Stanley and the Recent Amendments to the Federal Rules of Civil Procedure
Enforceability of Arbitration Provisions in Employment Applications
Jury Instructions: Using Plain English to Win
Medical Professional Liability Update
OSHA Record Keeping and Reporting Basics Forms 300, 300A and 301
Overview of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and Summary of Recent Case Law Interpreting USERRA
Poilitical Firings: Balancing First Amendment Rights with Effective Operation of Government
Preemption: A Look at Recent Court Decisions in Failure to Warn Cases Interpreting the FDA's Preemption Preamble
Returning Integrity to Insurance Coverage for Excess Verdicts
Ryan v. Clonch: What is the New Standard for Deliberate Intent?
SAY WHAT ?!? How the Concept of Materiality May Be Used to Broaden the Application of the Doctrine of Informed Consent in West Virginia.
The Privilege of Self-Critical Analysis
The Status of Expert Witness Testimony in West Virginia – State and Federal Standards
Update on Punitive Damages After Philip Morris USA v. Williams
Who Has Standing to Bring a Legal Malpractice Suit?
Civil Procedure Update
Commercial Litigation Update
Deliberate Intent Update
Evidence Update
Insurance Law Update
Labor & Employment Update
Mass Tort & Class Action Update
Statutes of Limitation Update
West Virginia Product Liability Update 2007: One Step Forward; Two Steps Back
Workers' Compensation Update

2006

The Loss of Chance Doctrine: Should the Doctor Be Liable For Results That Were Not Caused By His Negligence?
Basics of Offers of Judgement in Fee-Shifting Cases
Discovery Commissioners in West Virginia
Duties and Obligations of Insurance Agents and Brokers
Electronic Discovery - The Necessity of a Document Retention Policy
FDA Issues Policy Statement Reaffirming the Preemptive Effect of its Drug Labeling Regulations
Flood Litigation - Water Law and West Virginia Precedent
From Discretion to Confusion? An Analysis of Heldreth v. Rahimian And the Award of Attorney's Fees Under the West Virginia Human Rights Act
Removal Primer: What, How and When? An Exploration of Selected Issues in 28 U.S.C. §1441 Removal
Removing the Threat of Retaliation: Examining Adverse Expert Witness Civil Immunity
Terminating Alcoholic and Illegal Drug Addicted Employees Under the Americans with Disabily Act and West Virginia Human Rights Act
The Duty to Defend and Indemnify Under the Homeowner's Policy
The Slow Erosion of Workers' Compensation Employer Immunity: Is It Over Yet?
Using Ethical Rules of Engagement to Combat "Rambo" Style Litigation Tactics
Insurance Law Update
The Unusual Suspects: Unlikely Players in the Product Liability Arena
Update of the Law 2005 - Professional Liability
West Virginia Medical Professional Liability Review 2005-06

2005

Attorneys’ Fees: The fruit or the trees? A Brief Look at Commissioner v. Banks
Obligations of a West Virginia Lawyer Upon Death of a Party to Litigation
Admissible and Inadmissible Evidence of Discrimination: An Analysis of McKenzie v. Carroll International Corporation
An Argument for the Nonassignability of Bad Faith Claims
An Introduction to Medicare Claims for Reimbursement
Bustin’ Up the Joint: A Survey of Joint and Several Liability and a Suggestion for Reform in West Virginia
Considerations in Settling Cases in West Virginia
Immunities and Actions Against State Agencies and Political Subdivisions: A Primer on Governmental Liability
Phantom Damages: Is the Collateral Source Rule Applicable to Medical Provider Write-Offs?
Redefining Medial Professional Negligence After the 2003 Amendments to the Medical Professional Liability Act – A Nursing Home Perspective
Sanctions Available Under Rules 16, 37, and 41 of the West Virginia Rules of Civil Procedure for an Opponent’s Discover Failures
West Virginia Medical Professional Liability Review 2004-05

2004

Applying The Crime-Fraud Exception To The Attorney-Client Privilege And Work- Product Doctrine In West Virginia Bad Faith Actions
Conflicts Of Class: Defending Against The Growing Familiarity Of Class Counsel And Class Representatives
Current Issues In UM/UIM Coverage
Defending An Unfair Trade Practices Act Cause Of Action Based On Post-Litigation Conduct
Ethics For Insurance Defense Counsel
Four-Wheeler Coverage Under Automotive Liability, Underinsured, And Uninsured Motorist Policies
Ignoring Pavlov’s Bell: An Analysis Of In Re West Virginia Rezulin Litigation And The Implications For Production Liability Class Actions In West Virginia
Liability Of Educational Institutions For Student Harassment
Mediation: Just How Confidential Is It? An Overview Of Reported Decisions
One Year Post Implementation-The Effects Of The HIPAA Privacy On Litigation
Opposing Admission Of Medical Records Unsupported By Testimony
Primary Insurer’s Bad Faith As A Third-Party Defense To Claim Of Excess Carrier
Privacy Issues In Adjusting Claims In Virginia And West Virginia: HIPAA And The GLBA And The Gaps In Between
Reconsidering the Third-Party Private Cause of Action Under the UTPA?
Redefining Bona Fide Occupational Qualifications: The Case For Privacy
Insurance Defense Practice Update

2003

Electronic Discovery: Pitfalls & Possibilities
Confronting Zando: Protecting the Record and Your Client's Right to Indemnification as the Non-Settling Defendant
Dealing With the Peer Review Privilege
Defining the Scope of Arbitration Exemptions Under the Federal Arbitration Act: An Analysis of Federal and West Virginia Case Law
Good News and Bad News: A Look at Osborne v. United States
Joint and Several Liability Reconsidered
Maladministration of Patient Care and Erisa's Complete Preemption Doctrine: Recent Developments in the Fourth Circuit
Overview of the West Virginia Guardianship and Conservatorship Act W. Va. Code 44A-1-1, Et Seq.
Post Litigation Conduct of an Insurer and it's Counsel as a Basis for a Bad Faith Cause of Action
Rosmer v. Pfizer Inc., 263 F.3d 110 (4th Cir. 2001): Opening the Federal Door to Class Action Diversity Jurisdiction
The Records of a Minor . . . No Minor Issue in Litigation
Tort Reform in West Virginia in 2003: A Review of House Bill 2122, West Virginia's New Medical Professional Liability Act