Sean McGinley is a highly experienced trial and appellate lawyer. In 1995, he joined DiPiero Simmons McGinley & Bastress, PLLC and is a member of the firm. With almost thirty years of experience in the legal community, Mr. McGinley has extensive experience as a litigator, and has helped his clients recover hundreds of millions of dollars. He has been part of litigation teams that have had unique success representing the State of West Virginia and its state agencies in high profile, high stakes litigation, including the first State government lawsuits against Opioid distributors (over $47,000,000 in combined settlements in 2016-17), and the first successful State lawsuit against Purdue Pharma over its marketing of OxyContin ($10,000,000 settlement in 2004). He also is well known for successfully prosecuting many appeals presented to the Supreme Court of West Virginia. Mr. McGinley is rated by his colleagues as one of the "Best Lawyers in America" in the areas of personal injury litigation and commercial litigation. Mr. McGinley regularly represents individuals and families of accident victims with personal injuries sustained in auto, truck as well as industrial accidents, including coal miners, and victims of medical malpractice. Mr. McGinley also represents businesses in commercial litigation, and has represented professionals such as doctors and lawyers in administrative proceedings before license boards. He has lectured media companies and press organizations on First Amendment matters. Mr. McGinley was raised in Morgantown, West Virginia and earned his law degree at Keble College at Oxford University in 1990. Following graduation from Oxford, he served as a law clerk at the Supreme Court of Appeals, West Virginia, from 1990 through 1993. During his service, he clerked for Chief Justice Thomas E. McHugh and Justice Thomas B. Miller. From 1994 through 1995, he clerked for the Hon. Charles H. Haden, II, the Chief Judge of the U.S. District Court, Southern District of West Virginia. He makes his home in Charleston with his wife, Ana, and their two sons, Liam and Colin. He is passionate about coaching youth baseball and basketball, and is active in the community.
Lawyer Profile

Sean P. McGinley
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Recognized Since:2015
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Recognized in:Commercial LitigationPersonal Injury Litigation - Plaintiffs
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Law School:University of Oxford
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Lawyer Page:
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Website:
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Phone:
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E-mail:
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Location:604 Virginia Street, EastCharleston, WV 25301
Sean McGinley is a highly experienced trial and appellate lawyer. In 1995, he joined DiPiero Simmons McGinley & Bastress, PLLC and is a member of the firm. With almost thirty years of experience in the legal community, Mr. McGinley has extensive experience as a litigator, and has helped his clients recover hundreds of millions of dollars. He has been part of litigation teams that have had unique success representing the State of West Virginia and its state agencies in high profile, high stakes litigation, including the first State government lawsuits against Opioid distributors (over $47,000,000 in combined settlements in 2016-17), and the first successful State lawsuit against Purdue Pharma over its marketing of OxyContin ($10,000,000 settlement in 2004). He also is well known for successfully prosecuting many appeals presented to the Supreme Court of West Virginia. Mr. McGinley is rated by his colleagues as one of the "Best Lawyers in America" in the areas of personal injury litigation and commercial litigation. Mr. McGinley regularly represents individuals and families of accident victims with personal injuries sustained in auto, truck as well as industrial accidents, including coal miners, and victims of medical malpractice. Mr. McGinley also represents businesses in commercial litigation, and has represented professionals such as doctors and lawyers in administrative proceedings before license boards. He has lectured media companies and press organizations on First Amendment matters. Mr. McGinley was raised in Morgantown, West Virginia and earned his law degree at Keble College at Oxford University in 1990. Following graduation from Oxford, he served as a law clerk at the Supreme Court of Appeals, West Virginia, from 1990 through 1993. During his service, he clerked for Chief Justice Thomas E. McHugh and Justice Thomas B. Miller. From 1994 through 1995, he clerked for the Hon. Charles H. Haden, II, the Chief Judge of the U.S. District Court, Southern District of West Virginia. He makes his home in Charleston with his wife, Ana, and their two sons, Liam and Colin. He is passionate about coaching youth baseball and basketball, and is active in the community.
Lawyer Bio
Education:
- University of Oxford, B.A. (Jurisprudence), graduated 1990
- Oberlin College, A.B., graduated 1987
Bar Admissions:
- West Virginia, 1991
Recognized in The Best Lawyers in America for work in:
- Commercial Litigation
- Personal Injury Litigation - Plaintiffs
Federal Clerkships:
- United States District Court
State Clerkships:
- West Virginia - Supreme Court
Firm Details
DiPiero Simmons McGinley & Bastress, PLLC
http://www.dbdlawfirm.com
Headquarters
604 Virginia Street, East
Charleston, WV 25301
(304) 342.0133
Lawyer Case History
In re The Wall St. Journal, 601 F. App'x 215, 217 (United States Court of Appeals for the Fourth Circuit 2015)
Successful Writ of Mandamus overturning US District Court gag and sealing order.
Hurlbert v. Matkovich, 760 S.E.2d 152 (Supreme Court of Appeals of West Virginia 2014)
Successful appeal of trial court denial of FOIA request to state tax department. Requesters brought declaratory judgment action against the tax commissioner of the
State Tax Department seeking determination that Computer–Assisted Mass
Appraisal (CAMA) data related to real property taxation was subject to
disclosure pursuant to the Freedom of Information Act (FOIA). County
assessor intervened. The Circuit Court, Kanawha County, 2013 WL 7854114, Charles E. King, Jr., J., granted summary judgment in favor of commissioner and assessor. Requesters successfully appealed. Holdings: The Supreme Court of Appeals held that:1 tax commissioner was custodian of requested records;2 CAMA data did not categorically constitute tax return information;3 fact that requesters were not taxpayers or residents of state did not preclude request;4 CAMA data was not categorically exempted pursuant to invasion of privacy FOIA exemption;5 commissioner erroneously refused to provide redacted information; and6 commissioner failed to provide required Vaughn index.
Allen v. Monsanto Co., 2013 WL 6153150 (Supreme Court of Appeals of West Virginia 2013)
Successfully represented on appeal residents, students, and employees, who resided, attended school full time, or
worked in area of chemical plant, and those who owned property in the
area who had brought class action against corporate successor of owner of plant
for negligence, nuisance, strict liability, and trespass, alleging
injury from dioxin byproduct of plant's operation and burning of the
plant's waste material. The Circuit Court, Putnam County, approved
settlement and dismissed all claims. Members of class who objected to
settlement and their attorneys appealed.Holdings: The Supreme Court of Appeals held that:1 second hearing to certify class was not required for property class;2 members of property class were not entitled to second opportunity to opt out of the class;3 approval of settlement was not an abuse of discretion;4 circuit court did not abuse its discretion in failing to redefine the class to comport with the ultimate evidence;5 objectors were not entitled to discovery regarding the parties' mediations; and6
circuit court did not abuse its discretion by failing to strike
purported agreements that class counsel required several of his experts
to sign. The lower court's orders certifying the class and approving the settlement were affirmed.
W. Virginia ex rel. Morrisey v. AmerisourceBergen Drug Corp., 2013 WL 1305575 (United States District Court for Southern District of West Virginia 2013)
As Special Assistant Attorney General, successfully represented the State of West Virginia in motion to remand to state court case against numerous drug distributors for violations of the Controlled Substances Act, nuisance and consumer act violations concerning the opioid epidemic in West Virginia. Following remand, the drug distributor defendants settled with the State for a combined $47 Million.
Charleston Gazette d/b/a Daily Gazette Co. v. Smithers, 752 S.E.2d 603 (Supreme Court of Appeals of West Virginia 2013)
Successfully represented newspaper in case where newspaper filed complaint for declaratory judgment under West Virginia Freedom of
Information Act, seeking disclosure from state police of records or
documents concerning its internal review of complaints of officer
misconduct and investigations of officers who had three or more
use-of-force incidents within three-month period. The Circuit Court,
Kanawha County, 2012 WL 8676046, Jennifer Bailey,
J., had found that information sought was exempt from disclosure and
entered summary judgment for state police. The newspaper appealed. Holdings: The Supreme Court of Appeals, Workman, J., held that:1
remand was required for reconsideration whether records sought by
newspaper came within “invasion of privacy” exemption from disclosure
under Act;2 request did not come within law enforcement exemption from disclosure under Act; and3 request did not come within internal memorandum exemption from disclosure. Reversed and remanded in newspaper's favor.
W. Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d 169 (United States Court of Appeals for the Fourth Circuit 2011)
As a Special Assistant Attorney General representing the State of West Virginia in action in state court against
pharmacies alleging violations of West Virginia's generic-drug pricing
statute and West Virginia Consumer Credit and Protection Act (WVCCPA), where
Defendants removed action under Class Action Fairness Act (CAFA) and United States District Court for the Southern District of West Virginia,
John T. Copenhaver, Jr., J., 748 F.Supp.2d 580, granted Attorney General's motion to remand and defendant Pharmacies appealed. Holdings: The Court of Appeals, Niemeyer, Circuit Judge, held that:1
action was not removable under CAFA as class action on basis that it
was “similar” to Federal Rule of Civil Procedure governing class actions
and2 CAFA did not clearly demand that West Virginia's action against pharmacies be removed to federal court. Affirming remand to state court.
W. Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 748 F. Supp. 2d 580 (United States District Court for Southern District of West Virginia 2010)
As a Special Assistant Attorney General, successfully represented the State of West Virginia which had brought an action in state court against
pharmacies, alleging violations of West Virginia's generic-drug pricing
statute and the West Virginia Consumer Credit and Protection Act
(WVCCPA). The State moved to remand back to state court. Holdings: The District Court, John T. Copenhaver, Jr., J., held that:1 Attorney General's state law claims were not preempted by the Federal Employee Health Benefits Act (FEHBA);2 the claims were not preempted under the Employee Retirement Income Security Act (ERISA);3 the claims were not subject to “arising under” federal jurisdiction under ERISA; and4 the claims were not subject to federal jurisdiction under the Class Action Fairness Act (CAFA). Motion to remand granted.
In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008)
Successfully represented newspaper in case where City of Charleston brought action seeking a declaration of its rights and obligations after the newspaper made a Freedom of Information Act (FOIA) request seeking the activity logs and payroll time sheets of police officers who were accused of double dipping. The Circuit Court of Kanawha County, James Stucky, J., dismissed the city's complaint sua sponte, and city appealed. Holdings: The Supreme Court of Appeals held that:1 circuit court denied both the city and the newspaper an opportunity to be heard in violation of their due process rights when it sua sponte dismissed city's complaint;2 Supreme Court of Appeals would depart from its usual practice and address question not addressed by the circuit court; and 3 release of activity logs and payroll time sheets to newspaper would not constitute a substantial invasion of individual privacy, and thus were subject to disclosure under the FOIA. Reversed and remanded.
Wilkerson v. Target Corp., 578 F.Supp.2d 835 (S.D.W.Va. 2008) (United States District Court for Southern District of West Virginia 2008)
Represented newspaper in case where a Target employee had been arrested for possession of a concealed weapon filed a pro se action
against her employer, claiming that it was negligent in failing to
advise her that a box cutter, given to her for use in the course of her
employment, could be considered a concealed weapon, and sued news
organization, asserting a claim of libel. Employer and newspaper moved to dismiss. Holdings: The District Court, John T. Copenhaver, Jr., J., adopting the report and recommendation of Mary E. Stanley, United States Magistrate Judge, held that:1 employer did not breach any duty subjecting it to liability on a negligence theory, and 2 libel claim was barred by limitations.
Keeney v. Charnock, 441 F.Supp.2d 769 (United States District Court for Southern District of West Virginia 2006)
Successfully represented on motion to dismiss filed against former investigators for county prosecuting attorney's office who had sued county
prosecuting attorney, and county commission, claiming that they were
unconstitutionally terminated as part of mass political firings.
Defendants moved to dismiss. Holding: The District Court, Chambers, J., held that further discovery was required to determine whether the role of investigator was subject to political patronage. Motion was denied.
West Virginia ex rel. McGraw v. Minnesota Mining & Mfg., 354 F.Supp.2d 660 (United States District Court for Southern District of West Virginia 2005)
As Special Assistant Attorney General, successfully represented State of West Virginia in motion to remand state court action against respirator and dust mask manufacturers, who alleged that the State had
incurred cost of caring for miners who had contracted occupational
pneumoconiosis due to failure of masks and respirators. Defendants
removed case to federal court, and state moved to remand. The U.S. District Court, Copenhaver, J., granted motion to remand, holding that :1 state was real party in interest for diversity purposes;2 state was not fraudulently joined as plaintiff to defeat diversity jurisdiction; and 3 defendants would be permitted to amend notice of grounds for removal to
supply identity and citizenship of Bureau of Employment Programs (BEP)
as purported real party in interest.
Lawyer Disciplinary Board v. Arch A. Moore, Jr., 591 S.E.2d 338 (Supreme Court of Appeals of West Virginia 2003)
Represented former Governor Arch A. Moore, Jr., in petition for reinstatement of his license to practice law.Holdings: The Supreme Court of Appeals held that: 1 the extremely serious misconduct leading to attorney's disbarment was clearly ascertained and proven, and 2 record was sufficient to support finding that attorney failed to show
that he presently possessed the integrity and moral character to resume
practice of law.
Osborne v. United States, 166 F. Supp. 2d 479 (S.D.W. Va. 2001)
Successfully represented wife, her children, and administrator of deceased husband's estate who had brought action under Federal Tort Claims Act (FTCA) against United
States, alleging that negligent medical treatment by a physician
employed by the United States caused motor vehicle accident in which
wife and daughter were injured and husband was killed. Following trial,
the District Court, Haden,
Chief Judge, held that: (1) physician's negligence in his treatment of
patient was proximate and foreseeable cause of injuries sustained when
patient's pick-up truck collided with plaintiffs' automobile; (2)
physician did not exercise reasonable and ordinary care in his repeated
prescription of codeine and butalbital; (3) failure of automobile parts
store employee to notify authorities of driver's impaired condition and
police officer's failure to arrest driver were not intervening causes
that absolved physician of liability; (4) award of $3,490,181.50 of
special or economic damages was proper; and (5) award of $1,000,000 of
general or noneconomic damages was proper.
Bradshaw v. Soulsby, 558 S.E.2d 681 (Supreme Court of Appeals of West Virginia 2001)
Successfully represented Widow, individually and as administratrix of husband's estate, who had brought wrongful death action against doctors after husband died of overdose of
drug prescribed by doctors, alleging that doctors breached duty of care
to husband by prescribing drugs despite foreseeability that husband
might take lethal overdose. The Circuit Court, Kanawha County, James C. Stucky, J., granted doctors' motion to dismiss the action as untimely. Widow appealed. The Supreme Court of Appeals, Starcher,
J., held that: (1) discovery rule, tolling the statute of limitations
until discovery of a claim, applies to actions arising under the
wrongful death act; overruling Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991),
and (2) statute of limitations began to run on widow's claim when she
first discovered that husband's death may have been caused by a wrongful
act, rather than when husband died.
State ex rel. Rist v. Underwood, 524 S.E.2d 179 (Supreme Court of Appeals of West Virginia 1999)
Successfully represented citizens who had Petitioned for writ of mandamus challenging Governor's appointment of Speaker of House of Delegates as Justice of Supreme Court
of Appeals. The Supreme Court of Appeals, McGraw,
J., held that Emoluments Clause of West Virginia Constitution
prohibited appointment in question, where, during Speaker's current term
of office, Legislature enacted pay increase with respect to such
judicial office.
Wooten v. Roberts, 518 S.E.2d 645 (Supreme Court of Appeals of West Virginia 1999)
Successfully represented Administrator of estate of employee purchaser of employer stock who had sued employer's successor and son of employer's owner, alleging breach of
fiduciary duty and constructive fraud relating to transfer of employee's
stock. The Circuit Court, Raleigh County, Robert A. Burnside, Jr.,
J., directed verdict in favor of successor and son, and administrator
appealed. The Supreme Court of Appeals held that whether statute of
limitations was tolled under discovery rule until time that last offer
to purchase stock was made by successor and son presented question for
jury.
Fitzwater v. Harding, 510 S.E.2d 286 (Supreme Court of Appeals of West Virginia 1998)
Successfully represented motorist who was injured in intersection collision with truck that was on return trip after delivering goods for shipper who had brought negligence
action against truck's owner and against shipper. The Circuit Court,
Nicholas County, Gary L. Johnson,
J., granted shipper's motion for summary judgment. Motorist appealed.
The Supreme Court of Appeals held that genuine issues existed as to
whether truck owner was independent contractor, and whether overloading
of owner's trucks by shipper was proximate cause of accident.
Brown v. Carvill, 527 S.E.2d 149 (Supreme Court of Appeals of West Virginia 1998)
On appeal, succesfully represented Estate of 13-year-old motorcyclist who was killed when he struck chain strung between two posts across private road brought wrongful death
action against owner of land upon which accident occurred. The Circuit
Court, Kanawha County, Irene C. Berger, J., had granted summary judgment for landowner. Estate appealed. On rehearing, the Supreme Court of Appeals, Starcher,
J., held that genuine issues existed as to whether landowner acted
willfully or wantonly towards motorcyclist, and as to whether chain
constituted dangerous condition that would impose upon landowner duty to
exercise due care towards trespassers.
State ex rel. Charleston Mail Association v. Ranson, 488 S.E.2d 5 (Supreme Court of Appeals of West Virginia 1997)
Successfully represented newspapers in petition for writ of prohibition vacating order entered by the Circuit Court, Kanawha County, Lyne Ranson, J., in murder and arson
prosecution denying newspapers' motions to quash criminal defendant's
subpoenas duces tecum requesting unpublished photographs of crime scene
taken by newspapers' photographers. After issuing rule to show cause,
the Supreme Court of Appeals, Davis,
J., held that: (1) prohibition was appropriate form of relief for
newspapers; (2) criminal defendant seeking from news source unpublished,
nonconfidential information must show with particularity that requested
information is highly material and relevant to defendant's articulated
theories of defense, that requested information is necessary or critical
to assertion of defendant's articulated theories of defense, and that
requested information is not obtainable from other available sources;
and (3) once criminal defendant has shown with particularity that
unpublished, nonconfidential information requested from news source
satisfies three-part threshold balancing test for overcoming qualified
reportorial privilege against disclosure, circuit court shall conduct in camera
review of requested material and release to defendant only that
information which court deems to be relevant to defendant's articulated
theories of defense.
Cordial v. Ernst & Young, 483 S.E.2d 248 (Supreme Court of Appeals of West Virginia 1996)
Successfully represented on appeal the Receiver of defunct insurer who had brought suit against accounting firm which had been hired to do statutory audit for insurance commissioner at same
time it was performing generally accepted accounting principles (GAAP)
audit for insurer on theories of fraud, breach of contract, and
negligent misrepresentation. Following jury trial before the Circuit
Court, Kanawha County, Tod J. Kaufman,
J., verdict was returned and judgment entered for accounting firm.
Receiver appealed from denial of her motion for new trial. The Supreme
Court of Appeals, Albright,
J., held that: (1) instructions, as whole, were inaccurate and unfair
to both parties, and (2) because deficiencies in charge reached every
cause of action before jury, plain error required new trial.
Smith v. Stacy, 482 S.E.2d 115 (Supreme Court of Appeals of West Virginia 1996)
Successfully represented cemetery owners who had brought legal malpractice action against attorney who represented their interest in sale of cemetery and who was allegedly
hired to insure that third party was given whatever rights he had under
contractual right of first refusal to purchase cemetery. The Circuit
Court, Kanawha County, Charles King,
J., granted summary judgment for attorney on grounds of statute of
limitations. Cemetery owners appealed. The Supreme Court of Appeals, Workman,
J., held that: (1) action sounded in tort and contract such that it
could not be precluded by tort statute of limitations, and (2) court
adopted continuous representation doctrine which tolls statute of
limitations in attorney malpractice action until professional
relationship terminates with respect to matter underlying malpractice
action.
State ex rel. East End Association v. McCoy, 481 S.E.2d 764 (Supreme Court of Appeals of West Virginia 1996)
Successfully represented Objectors who brought action to enjoin medical center from constructing medical waste incinerator before center obtained permits under Solid
Waste Management Act and Medical Waste Act. The Circuit Court, Kanawha
County, denied relief. Objectors then filed petition for writ of
mandamus against Division of Environmental Protection (DEP) and
Department of Health and Human Resources (DHHR) to compel them to
perform their mandatory, nondiscretionary duties under Acts. The Supreme
Court of Appeals, McHugh,
C.J., held that: (1) medical center was not required to obtain
construction permit under Solid Waste Management Act in addition to
construction permit under Air Pollution Control Act; (2) solid waste
permit was required before center could operate incinerator; (3) center
could not operate incinerator until it obtained permit under Medical
Waste Act; and (4) DHHR had duty, under Medical Waste Act, to promulgate
legislative rules setting forth procedures for public participation in
permit application process of noncommercial infectious medical waste
management facilities.
State ex rel. Suriano v. Gaughan, 480 S.E.2d 848 (Supreme Court of Appeals of West Virginia 1996)
Successful petition for writ of mandamus against physician who had brought libel action against county education association and its former president in connection with newspaper advertisement and
newspaper article. The West Virginia Supreme Court of Appeals granted the writ, holding that: (1)
libel plaintiff is a limited purpose public figure if defendant proves
that plaintiff voluntarily engaged in significant efforts to influence
public debate on matter of public concern, that public controversy and
plaintiff's involvement existed prior to publication of allegedly
libelous statement, and that plaintiff had reasonable access to channels
of communication that would permit him to make an effective response;
(2) plaintiff was limited purpose public figure; (3) accusation in
advertisement that physicians including plaintiff had denied health
services to public teachers and their families was substantially true
and thus was protected speech; (4) even assuming falsity of accusation,
it fell within actual malice privilege; and (5) statement attributed to
president of educational association, that physicians who had decided
not to provide services to patients covered by state insurance programs
should honor their professional code, was not provably false and thus
not actionable as defamation.
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