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W.Va. justice refuses to recuse in another nursing home matter

By Chris Dickerson | Feb 17, 2015

Davis 150x150

CHARLESTON, W.Va. (Legal Newsline) -  An attorney involved in a major nursing home verdict last year has filed a motion in another case saying West Virginia Supreme Court Justice Robin Jean Davis should recuse herself from hearing a petition in a similar case.

On Feb. 11, Davis responded and refused to recuse herself from the case.On Feb. 5, Robert M. Anspach filed a motion for disqualification of Davis from hearing a Petition for Writ of Prohibition in an ongoing Kanawha Circuit Court case against HCR Manorcare filed on behalf of the estate of Sharon Hanna.

Anspach, of Dayton, Ohio-based Anspach Meeks Ellenberger, is the attorney for HCR Manorcare in the Hanna case and the Douglas case that was ruled on last year by the state Supreme Court. The Douglas case resulted in an approximate $40 million verdict against HCR. Davis was Chief Justice at the time and wrote the majority opinion in the case.

The Douglas case has been under scrutiny since December when ABC News reported that plaintiff’s counsel in the case, particularly Michael Fuller of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Davis’ husband Scott Segal, for more than $1 million in 2011. The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

In June, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas. The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.

In his Feb. 5 motion in the Hanna case, Anspach references the “many television and print media stories about the noteworthy relationship” of Davis, Segal and Fuller. He also cites the online user comments on some of these stories regarding the “perceived unfairness.”

“The relationship between Justice Davis and Mr. Fuller, or the appearance thereof, creates reasonable questions regarding Justice Davis’s ability to preside as an impartial Justice,” Anspach wrote. “Justice Davis must disqualify herself.

“There is actual public concern and media attention in her ability to preside in cases that involve Mr. Fuller.”

Anspach writes that judges have a responsibility to “avoid impropriety and the appearance of impropriety.”

“Justice Davis’ relationship with Mr. Fuller undoubtedly creates reasonable questions about her ability to preside impartially,” he wrote. “Even if Justice Davis had no direct personal involvement in the jet transaction, according to West Virginia law, the sale could create a reasonable inference that she could not preside fairly in cases involving Mr. Fuller and his firm.”

Anspach also writes that because Segal and his firm also do some nursing home litigation, Davis “could have a financial interest in this type of litigation as a result of her husband’s direct involvement” even if “there is no direct quid pro quo agreement between her and Mr. Fuller.”

In her Feb. 11 response, Davis said the state and federal constutitions “do not yield to media-orchestrated grounds for recusal.”

She notes that the contributions by Fuller and his associates equal less than one half of 1 percent of the total contributions to her 2012 campaign.

As for the sale of the plane, Davis writes that she didn’t know the purchase price of the 2011 transaction until Dec. 2 when media coverage of the issue began.

She also criticized the media coverage of the matter.

“The media, in a vicious politically-driven effort to destroy my nineteen years of judicial integrity, then launched a national campaign to make it appear that I was devoid of all integrity because I did not inform the litigants in Manor Care that my husband had sold an airplane several years earlier to Mr. Fuller,” she wrote. “Solely as a result of the media’s national fixation with casting me in a negative light, the petitioners now argue that I have an appearance of partiality in any case in which Mr. Fuller is an attorney.”

She also says she adopts and incorporates her Feb. 5 response to a motion in another nursing home case.

Last week, Davis filed a 29-page response in Gibson v. AMFM. She makes similar arguments, but she also asked the state Supreme Court clerk to notify the Office of Disciplinary Counsel to investigate a “misrepresentation” defense attorney Mark A. Robinson had made in his motion for disqualification regarding Segal and nursing home litigation in Wyoming County.

Speaking Feb. 11 about the motion he filed, Anspach also mentioned that 29-page response.

“It seemed unusual to me that the justice felt it necessary to issue a 29-page opinion explaining why she refused to recuse herself under the circumstances,” he said. “As I understand it, it is the justice herself who wrote a letter to the counsel in the Gibson case referencing the media coverage that has occurred over the last several months and requesting that if any of the parties felt aggrieved by that, that they should so indicated.

“It’s also my understanding that Mark Robinson wrote a letter that his client, under the circumstances, the justice wrote a letter asking the justice to recuse herself. And then she filed a motion setting forth the reasons for her to do so. For her, under those circumstances, refer Mr. Robinson to disciplinary counsel is, I would say, very curious.”

Anspach said he doesn’t have direct knowledge of the Gibson case because he isn’t involved, but he said it seems similar.

“I’m not comfortable speaking about the Gibson case, but from having read her opinion and having then also read Mr. Robinson’s motion, it certainly seems to me that there are grounds there for her to recuse herself,” Anspach said. “But I can’t comment further. As to our (Hanna) case, I absolutely believe that she ought to recuse or disqualify herself from our case or I would not have filed the motion to disqualify in the first place.

“Our motion was thoroughly researched and everything stated in there, including the litany of articles that have appeared, including the poll from The West Virginia Record. All of them are reasons why she should not sit on a case against the same facility, virtually the same defendants and the same plaintiff’s law firm involved in the Douglas case.”

Anspach also said he believes the 29-page motion is “more reason” why Davis should voluntarily recuse herself.

“She clearly has strong opinions,” he said Wednesday. “I will accept her subjective belief that she is not bias. But her subjective belief is not what governs. What governs is if a justice’s impartiality might be questioned. And all of this, I think, would lead many reasonable people to question if she can hold the balance nice clear and true in this matter.”

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