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Attorneys debate if switched at birth case should continue

Attorneys spent more than an hour of arguing their respective causes during a motion hearing to dismiss a civil lawsuit brought by 78-year-old men who were switched at birth.

Judge Phillip Gaujot complimented both Charles Crook, who is representing the plaintiffs, John William Carr II and Jackie Lee Spencer, and Jim Gardill, who represents the defendant, the Catholic Diocese of Wheeling-Charleston, on their arguments.

Gaujot did not rule on the motion and both parties will have 30 days to submit proposed orders of facts, findings and conclusions after they receive a transcript of Wednesday’s hearing.

The two men, both born on the same day in 1942 at St. Joseph Hospital in Buckhannon, allege they were sent home because of negligence of hospital staff.

Gardill argued that the statute of limitations and repose – both similar yet different principals that determine if a lawsuit can be brought – had long since passed and under his interpretation of the law around the issue, the case should be dismissed.

Because it’s been 78 years since the two men were sent home with the wrong families there is simply no way to continue with the case, Gardill said.

The parties involved such as hospital administration, staff and the parents of the plaintiffs are no longer alive to prove or disprove any allegations. A parent could have grabbed the wrong child rather than staff negligence, for example.

Crooks made two distinct arguments as to why the case should proceed. The first involved the definition of the word “accrues” in the application of the relevant law.

The second was that the hospital committed fraud by sending out the birth certificates for the two men and that “estoppel” can be applied in the case.

Estoppel is a common law fairness doctrine and essentially prevents the defense from asserting its argument about the amount of time it took to bring the case because it was the defendant’s fault it took so long.