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Sanctions against track are requested

February 05, 2004|by DAVE McMILLION

charlestown@herald-mail.com

A judge on Wednesday was asked to consider sanctions against Charles Town Races & Slots after an attorney representing a woman in a lawsuit against owners of the track said a track employee destroyed evidence that was to be used in the case.

The lawsuit was filed against the track's parent company, Penn National Gaming Inc., by Donna Jackson, a Hagerstown woman who was injured in a car wreck on U.S. 340 four years ago.

Court records allege that her car was struck by a car driven by a drunken patron from the track.

Jackson is seeking unspecified punitive and compensatory damages in the case.

On the night of Dec. 11 and the early morning of Dec. 12, 1999, Benjamin Napper was given free alcoholic drinks at the track to encourage him to gamble, according to allegations in the suit filed in Jefferson County Circuit Court.

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The track "over-served" Napper, until he was visibly intoxicated, the suit alleges.

As a result of the accident in the area of the U.S. 340 bridge near Harpers Ferry, W.Va., Jackson had massive injuries to her legs and head, a punctured lung and collapsed lung and broken ribs, the suit said.

Jackson's infant grandchild, who was in the car, suffered a broken leg, the suit said.

Napper later pleaded guilty to driving under the influence causing injury, Jackson's attorneys said.

Jackson entered the courtroom Thursday in a wheelchair.

In an attempt to find out who served Napper drinks at the track, attorneys representing Jackson requested time sheets from the track to determine who was working that night.

On two occasions, the track provided Jackson's attorneys with time sheets for all employees except cocktail servers and bartenders, Jackson's attorneys Peter Pentony and Ronald Kronthal said in a motion requesting sanctions against the track.

At one point, track officials said in a letter that they were reproducing the time sheets and would provide them soon, Pentony and Kronthal said.

The letter was dated Nov. 17, 2003, even though the time sheets had been destroyed on Nov. 8, 2003, the motion alleges.

Opening statements in the case were scheduled for Wednesday in Circuit Court but were delayed to allow Kronthal to pursue the issue of sanctions.

During a hearing Wednesday, Kronthal called on track employee John Jeffries to testify about an investigation he conducted into the shredding of the time sheets.

Jeffries, a former West Virginia State Police officer who now conducts internal investigations for the track, testified that the time sheets were placed about 10 feet from other documents that were to be shredded. An employee who was shredding documents assumed the time sheets were trash and shredded them, Jeffries said.

Jeffries described the incident as a "terrible mistake."

David L. Whitley, vice president of compliance at the track, testified that keeping tabs on those types of records can be a challenge because some have been moved as the track has expanded.

Whitley said he did not believe the time sheets were shredded intentionally. He said he went through "hundreds of boxes" to try to find the requested records.

Kronthal told Circuit Judge Thomas W. Steptoe Jr. that the "most severe sanctions should be imposed" because of what happened to the records.

Kronthal is asking for Steptoe to consider a default judgment, which would entail ruling in favor of Jackson in the lawsuit and allowing the jury to then consider possible damages against the track.

Steptoe is expected to rule on possible sanctions against the track this morning.

Other documents relating to the track's serving of alcohol also were discussed Wednesday, including a track memo that was sent from Bill Bork Jr., a track official, to a group of track employees on Oct. 20, 1998.

In the memo, Bork directed track employees to do away with the "two free drinks" promotion in favor of "unlimited complimentary drinks." The unlimited drinks were to be given to patrons who had credits built up in slot machines, the memo stated.

Despite requests for any such memos, Jackson's attorneys were never given a copy of it by track officials, Kronthal said. Instead, it was turned over to Jackson's attorneys by a former track employee, Kronthal said.

Steptoe referred to the Bork memo as a possible "bombshell."

"I have never seen that document. I have never seen it until they produced it to me," track attorney George Stewart said.

Stewart said Jackson's attorneys were implying he has a "secret folder (full of) good stuff. I am offended by that."

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