Lawyer Profile

Sean P. McGinley

DiPiero Simmons McGinley & Bastress, PLLC

Recognized Since:

2015
Recognized in:

Commercial Litigation

Personal Injury Litigation - Plaintiffs
Law School:

University of Oxford
Lawyer Page:

http://www.DBDLawFirm.com
Website:

http://www.dbdlawfirm.com
Phone:

(304) 342.0133
E-mail:

Sean.McGinley@DBDLawFirm.com
Location:

604 Virginia Street, East

Charleston, 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

Lawyer Client Comments

Firm Details

View Firm Profile

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.