Case law

Eghnayem v. Boston Scientific Corp.

57 F. Supp. 3d 658 · District Court, S.D. West Virginia · Oct 27, 2014

Failure to Establish or Adhere to Testing Protocol First and most simply, Dr. … Zakrzewski clearly indicates that he has no knowledge of who wrote the MSDS or why it was written. {See Za-krzewski Dep. [Docket 215-14], at 45). Dr.

RGIS Inventory Specialists v. Palmer

209 W. Va. 152 · West Virginia Supreme Court · Feb 22, 2001

established.” … If what the customer is buying is not primarily electronic data processing, then activity that might otherwise be seen as “incidental” to such processing simply cannot qualify for the exemption.

Tri-State Asphalt Products, Inc. v. McDonough Co.

182 W. Va. 757 · West Virginia Supreme Court · Apr 13, 1990

Ellison, 133 W.Va. 9 , 54 S.E.2d 182 (1949): “Allegations of fraud, when denied by proper pleading, must be established by clear and convincing proof.” … Although it does not appear that this photograph qualifies as an experiment or test, the admissibility of tests or experiments in evidence is also within the sound discretion of the trial court. See Spurlin v.

Bel-O-Mar Interstate Planning Commission v. West Virginia Commission on Aging

188 W. Va. 258 · West Virginia Supreme Court · Oct 23, 1992

PER CURIAM: This appeal by the West Virginia Commission on Aging (“WVCOA”), a public corporation established by statute, is from the final order of the Circuit Court of Marshall County entered January 16, 1992. … Reversed. . 42 U.S.C. § 3025 (a)(1)(E) and (2)(A) provide that a state agency must, in order to qualify for federal “programs of grants” benefitting older Americans: (E) divide the State into distinct planning and service

Elswick v. Charleston Transit Co.

128 W. Va. 241 · West Virginia Supreme Court · Nov 27, 1945

The testimony of Ruby Kiser objected to and excluded by the court was clearly inadmissible. Mrs. Neilson’s statement to the witness was not a part of the res gestae. “Res gestae” literally means “things done”. … It is contended that this part of the instruction is improper because the plain language of the city charter and the statute is overlooked in that the instruction does not qualify the bus operator’s duty to turn to the right

State of West Virginia v. Larry Vernon Hoke

West Virginia Supreme Court · Oct 12, 2018

Instead, the record clearly shows that petitioner’s counsel voluntarily abandoned his planned questioning of Ms. … THE COURT: Do you have any way of establishing that it’s a business record?

State Farm Fire & Casualty v. Robin Skinner Prinz

231 W. Va. 96 · West Virginia Supreme Court · May 21, 2013

England started the reform that led to the statutory removal of these qualifying elements in practically every state, including West Virginia. … In any event, the Dead Man’s statute is to be narrowly construed to permit the admission of relevant testimony, unless clearly excluded by the language and purpose of the statute.

Tracy v. Cottrell

206 W. Va. 363 · West Virginia Supreme Court · Nov 12, 1999

And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.” … "[U]nder this rule, [the plaintiff] would be required to establish what injuries he might have received even though he did not receive them.

State of West Virginia v. Darrell L.

West Virginia Supreme Court · Nov 24, 2014

Importantly, the circuit court ordered the victim be evaluated by a qualified psychologist who ultimately testified that the child was competent to testify. … As outlined above, the circuit court correctly determined that the child was competent to testify, and a direction to provide a verbal response, common in many courtrooms, does not establish otherwise.

Jones v. Rockefeller

172 W. Va. 30 · West Virginia Supreme Court · May 23, 1983

Spencer Hospital, located in Roane County, West Virginia, is a state hospital established under W.Va.Code, 27-2-1 [1977], and controlled by the West Virginia Department of Health. … In this country the absolute veto is unknown; the qualified or limited veto is all an executive has. 191 Mass. at 370-71, 77 N.E. at 717 . . In Cascade Telephone Co. v.

State of West Virginia v. Tex B.S.

236 W. Va. 261 · West Virginia Supreme Court · Oct 8, 2015

A defendant’s right to be present at an initial sentencing hearing has been qualified by Rule 43(c)(4) of the West Virginia Rules of Criminal Procedure. … The record establishes that the circuit court held lengthy hearings when the appellant pled guilty and when he was sentenced.

Wamsley v. Prime Care/Medical Staff

District Court, S.D. West Virginia · Nov 18, 2020

compensatory damages for emotional distress cannot rely on conclusory statements that the plaintiff suffered emotional distress [or] the mere fact that a constitutional violation occurred, but, rather, the testimony must establish … In the rare instance when the face of a complaint clearly demonstrates a prisoner’s failure to exhaust administrative remedies, sua sponte dismissal on that ground is appropriate.

State v. Delaney

187 W. Va. 212 · West Virginia Supreme Court · Jun 1, 1992

We believe the guidelines established in Ramos are a reasonable method of balancing the defendant's need for the examinations against the victim's right to privacy. … Rockwell qualified as an expert at trial.

Wolfe v. Green

660 F. Supp. 2d 738 · District Court, S.D. West Virginia · Apr 9, 2009

While removing defendants bear the burden of establishing the propriety of removal, it is the plaintiffs burden to establish proper service of process. See Childress v. … Service was clearly not effected under Rule 4(d)(1)(A), (B), (D), or (E).

Wilson v. City of Wheeling

19 W. Va. 323 · West Virginia Supreme Court · Mar 25, 1882

And here we wish to be clearly understood in making the distinction between such dangers, as are incident to and consequent upon the nature of the work itself, and those which result from an improper execution of it. … The foregoing being correct views in principle, the last named instruction should have been qualified in accordance therewith, strictly speaking.

Bluefield Supply Co. v. Frankel's Appliances, Inc.

149 W. Va. 622 · West Virginia Supreme Court · Jun 29, 1965

the circuit court deeming himself disqualified, the parties, by agreement, selected a local attorney as a special judge to try, hear and determine the case, and on February 19, 1960, the special judge was duly sworn and qualified … The testimony of witnesses of the defendant indicates clearly that they knew that any effort of Looney to obtain credit in satisfaction of the claim for the television sets was being made without the knowledge and consent

Rinehart v. Rinehart

98 W. Va. 93 · West Virginia Supreme Court · Jan 27, 1925

Rinehart, named as executor, qualified as such and entered upon the discharge of his duties; that a settlement of the executor, made on- March 17, 1922, shows that there is a balance in his hands from the personal estate … Should the personal estate be insufficient, then the above well-established exception applies.

Berryman v. Mullen

District Court, N.D. West Virginia · Jan 23, 2019

According to the Defendants, they are entitled to qualified immunity because Berryman cannot satisfy either element of his failure-to-protect claim. Id. at 24-25. … NO. 155] unless they are “clearly erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). III.

W. Va. Dept. of Health and Human Resources/Behavioral Health v. E.H.

236 W. Va. 279 · West Virginia Supreme Court · Oct 15, 2015

An examination of the pertinent regulations .addressing the nature of a “business associate” clearly refutes this conclusion. Legal Ad repeatedly refers to itself as a “business associate” of the DHHR. … Thus, for the DHHR to act in violation of that established practice was contrary to the rule of law which governs this case.

Verizon West Virginia, Inc. v. West Virginia Bureau of Employment Programs, Workers' Compensation Division

214 W. Va. 95 · West Virginia Supreme Court · Jul 9, 2003

As related earlier, qualifying employers may elect to fully self-insure against all workplace risks or to self-insure against specific risks. … Second, omitting several paragraphs of statutory direction for the establishment of such rates, the statute directed the Commissioner, in conjunction with the Performance Council, to establish by rule the system for determining