1.  Clinton San Francisco and Jessie San Francisco v. Wendy’s International, Inc. - 33284 - This is an appeal by the plaintiffs below, who filed a lawsuit for injuries allegedly caused by eating an uncooked hamburger prepared by the defendant. The Circuit Court of Kanawha County granted summary judgment in favor of the defendant, after concluding that testimony about causation offered by two plaintiff's experts would not be admissible, and therefore the case could not proceed to a jury trial. On appeal, plaintiffs contend that the circuit court was unduly restrictive in exercising its gatekeeper function under Rule 702 of the Rules of Evidence. In response, the defendant argues that the trial court properly concluded that one expert was not qualified to testify about the cause of food borne illness, and that another expert's theory was not based upon reliable science. (Clinton and Jessie San Francisco are represented by Guy R. Bucci and D. Blake Carter, Jr., Bucci, Bailey & Javins, Charleston WV and Pamela Lambert, Gilbert WV. Wendy's International is represented by Teresa A. Kleeh and Scott E. Johnson, Steptoe & Johnson PLLC, Charleston WV.)

• Appellant's Brief
• Appellee's Brief

2.  Colgan Air, Inc. v. WV HRC & Rao Zahid Khan - 33355 - This is an appeal by Colgan Air from a decision by the West Virginia Human Rights Commission ("HRC"). The HRC concluded that the company had violated the Human Rights Act by creating or not preventing a hostile work environment for one of its employees, Mr. Khan, who was a co-pilot in a Huntington-based flight crew, and was of Pakistani descent and Muslim religion. Mr. Khan was terminated in October 2001 after failing a required proficiency check. He filed a complaint with the HRC, and the case was heard by an Administrative Law Judge ("ALJ"). The ALJ ultimately concluded that the company had not discriminated against Mr. Khan, because company management was not aware of the initial harassment, and once management became aware, it took action. Further, the ALJ concluded that the company did not subject Mr. Khan to disparate treatment by not offering him retraining after the failed proficiency check; in view of the financial position of the regional airlines following the events of September 11, 2001, the company acted fairly and consistently. On review, the HRC reversed the conclusions of the ALJ, after determining that Mr. Khan did report the harassment to an employee with supervisory responsibilities, and therefore liability could be imputed to the company. Further, the HRC concluded that the company provided other employees with retraining, so it should have treated Mr. Khan the same way. On appeal, Colgan Air argues that the HRC should not have re-examined the conclusions of the ALJ, and further argues that the HRC wrongly concluded that liability should be imputed to the company. Khan responds that the HRC properly viewed the evidence as a whole, and that the company does not dispute that a hostile work environment existed. (Colgan Air is represented by Brian J. Moore, Jackson Kelly, PLLC, Charleston WV and Mark A. Dombroff and Shaleeza Altaf, McLean VA, admitted pro hac vice. The West Virginia Human Rights Commission is represented by Richard M. Riffe, Assistant Attorney General, Civil Rights Division, Office of the Attorney General, Charleston WV. Rao Zahid Khan is represented by Dwight J. Staples, Henderson, Hendersnn & Staples, L.C., Huntington WV. An amicus curiae brief was filed by The Regional Airline Association, represented by Scott Caudill, Caudill Law, Charleston WV.)

• Appellant's Brief
• Brief of Appellee, Rao Zahid Khan
• Brief of Appellee, WV Human Rights Commission
• Reply Brief
• Amicus Brief of The Regional Airline Assoc.

3.  State of W. Va. v. Thomas MacPhee - 33297 - Thomas MacPhee appeals his McDowell County jury conviction for the first degree murder of Lori Keaton. MacPhee argues that the evidence presented at trial was insufficient to convict him. He asserts that his exculpatory statement was not rebutted by the State. MacPhee alleged that while he was outside on the front porch, another individual, Danny England, killed Lori Keaton during an argument. MacPhee asserts that Danny England threatened him into assisting with disposal of the body and the victim's car. Although the body was never found, the State did locate a site with personal effects from the victim, and also located her car. MacPhee admits he disposed of the car, and does not appeal his grand larceny conviction. MacPhee argues that he was an outsider from New Jersey who was convicted by a McDowell County jury based upon insufficient evidence and improper argument by the prosecutor. In response, the State disputes that MacPhee's statement is exculpatory, and also points out that MacPhee denied involvement and only gave the statement implicating Danny England when he was confronted with physical evidence. The State asserts that there was ample circumstantial evidence to sustain the conviction. (Thomas MacPhee is represented by E. Taylor George and Robert C. Catlett, Assistant Public Defenders, Kanawha County Public Defender Office, Charleston WV. The State of West Virginia is represented by Sidney H. Bell, Prosecuting Attorney of McDowell County. ) 

• Appellant's Brief
• Appellee's Brief
• Reply Brief

4.  Edward W. Cantley, Sr., et al. v. Lincoln County Commission - 33345 - . Plaintiffs below filed an action against the Lincoln County Commission seeking recovery for damages sustained as a result of two Mud River floods in the course of a week in November 2003. The plaintiffs asserted that the county commission had negligently maintained the river for a number of years, despite having statutory power to act, and despite numerous warnings issued by the U.S. Army Corps of Engineers. The Circuit Court of Lincoln County dismissed the plaintiff's complaint. The circuit court determined that the county commission did not have a duty to engage in flood prevention, and that another entity formed in 1965, known as the "Middle Fork Drainage, Levee and Reclamation District of Lincoln County," has sole power to engage in flood prevention on that part of the Mud River, and that the numerous warnings issued by the Corps of Engineers were directed to the drainage district, not to the county commission. On appeal, the plaintiffs argue that the county commission does have a statutory obligation to alleviate flooding, and that the drainage district is a defunct entity. At the very least, the plaintiff argues, it should be allowed to conduct discovery on the nature of the relationship between the county commission and the drainage district. The county commission responds that the plaintiffs simply sued the wrong entity, and that the drainage district is capable of being sued. (Edward W. Cantley, Sr., et al. are represented by Rudolph L. DiTrapano, Lonnie C. Simmons and Heather M. Langeland, DiTrapano, Barrett & DiPiero, PLLC, Charleston WV and Jason E. Huber, Forman & Huber, Charleston WV. The Lincoln County Commission is represented by R. Carter Elkins and Andrew P. Ballard, Campbell Woods, PLLC, Huntington WV. )

• Appellant's Brief
• Appellee's Brief