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Davis Stuart sees claims dismissed in a number of Greenbrier County civil cases

By Bobby Bordelon

Former employees of Davis Stuart saw over a dozen claims dismissed in a number of Greenbrier County Circuit Court civil cases on Friday, February 12, including alleged improper care of children, fraudulent medical government reimbursement forms, unpaid wages, and more.

Davis Stuart, a local “therapeutic residential treatment facility” which aims to be “committed to helping children and their families find the spiritual, emotional, and physical wholeness for which they have been created,” is the subject of these lawsuits. Over the past three years, many cases have been filed in the Greenbrier County Circuit Court against Davis Stuart, including two in 2018, 13 in 2019, and three in 2020. 

Although some of these cases are already closed, many of the remaining cases were the subject of a longer-than-typical hearing under Greenbrier County Circuit Court Judge Robert Richardson on Friday. In these cases, many of the plaintiffs were former employees of Davis Stuart represented by Attorney Adrian Hoosier II.

Although these cases are not a class action lawsuit, a number of them share language in the complaints, making it difficult to track which claims have been dismissed in which case. 

Utilizing the complaint filed in the Tabatha Martin case, some of the allegations include:

 – “Over billing of Medicare, Medicaid, and the West Virginia Department of Health and Human Services. Plaintiff was forced to fraudulent [sic] complete and/or process forms indicating that residents of Defendant (children) were receiving certain services, when in fact they were not receiving such services.”

 – Failure to pay wages.

 – “Defendant failed to have adequate food for patients … failed to have the required number of staff working to properly care for the child patients, … failed to have proper cleaning complete.”

 – “Defendant retaliated against Plaintiff and or created a hostile work environment because of … complaints about conditions/events.”

Davis Stuart defense attorney Bonnie Thomas with Steptoe and Johnson denied many of the allegations in Friday’s hearing. After negotiations with Hoosier, the dismissal of many claims was agreed on. 

According to Thomas, motions for summary judgment are currently being prepared or have been submitted, which would ask the judge to end the cases before they could go to trial when no facts are in dispute. This would include cases brought by Florence Ide, Brittany Powell, Delores Dempsey, Ressie Windon, Rachel Biesemeyer, Tabatha Martin, Debra Ballard, Samantha Carman-Lidel, and Brooke Phillips.

However, the possibility of a trial dealing with these issues might be on the horizon in several cases. For example, Richardson noted “with regard to the Tabatha Martin case, it appears that the parties have agreed to the dismissal of all of the claims in the case except for count three, which related to the claims under the patient safety act [dealing with retaliation]. I understand that this is a matter [where] there are factual disputes that will require a trial.”

A similar situation was found for the Ide case, with Thomas explaining “the parties have agreed to the dismissal of the bulk of the claims here, with the exception of the claim involving alleged unsafe working conditions and unsafe discharge, in violation of public policy, to those working conditions.”

An issue with a bat infestation is at the center of the unsafe work conditions claim in the Ide case, with Hoosier emphasizing Ide, “had a lot of issues with the bat infestation. She was up in years and she was required to clean bat waste, which she complained about on multiple occasions. … She complained that children were having to clean up the bat waste as well, and that was what she alleged in her complaint.”

However, Hoosier also noted “she testified that it was substantially taken care of prior to her leaving.” According to Richardson, Ide’s sworn testimony disagreed with the complaint Hoosier filed on her behalf.

In fact, I’m quite concerned there appears to be a severe discrepancy between the allegations contained in the complaint, which counsel signed, and in doing so, asserting that there was a good faith basis in [these] claims and allegations,” Richardson said. “On the other hand, [in] Ms. Ide’s sworn testimony, … she indicated that many of the things alleged in the complaint never took place.”

Thomas and Davis Stuart denied any medical reimbursement fraud while discussing the Dempsey case.

She claims to have been forced to fraudulently complete these notes, and that she complained to her supervisor that she was forced to fraudulently complete these notes,” Thomas said. “However, Ms. Dempsey did not complete the supportive counseling notes in the first place – what she completed [was] a daily summary of notes. … Furthermore, Davis Stuart did not knowingly submit any fraudulent reports. Davis Stuart trained its employees on how to complete these notes so they were properly completed. Additionally, Davis Stuart does not submit its supported counseling notes to Medicaid for reimbursement purposes … Plaintiff’s testimony that these notes were fraudulently submitted or violated federal billing practices is untrue.”

In addition, one common complaint in the cases is an alleged requirement that employees of Davis Stuart work without pay for approximately 15 minutes before their shift began.

There was no company policy that required her to work 15 minutes early and … she was never asked by a supervisor to come in early and not get paid for that 15 minutes of work,” Thomas explained. “Three, she was never permitted or allowed to suffer by coming in 15 minutes early because she never put that time on her time sheet, never giving Davis Stuart the ability to pay her.”

This complaint was common enough for a class action certification request, one which was denied.

This court already, in an order denying plaintiff’s motion for class certification … already determined that there was no written policy and this policy was not in any handbook, not posted on a bulletin board, or was not discussed at any staff meeting,” Thomas said. “Furthermore, this policy … was communicated only among staff members.”

Of the many suits filed in the past three years, those brought by Connie Hamilton, Gary Walkup, Lilly Flores, Mary Massey, Samantha Brown, and Teresa Adkins have already been closed.

Motions for summary judgment are expected to be considered in another hearing later in this term of court. Trials could be considered after the motions for summary judgment are heard.

 

 

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