A Kanawha circuit judge on Thursday denied a motion to dismiss a lawsuit brought by a man whose wife died by suicide after photos of her in lingerie were posted throughout eastern Kanawha County in 2017.
Judge Joanna Tabit said it was too early in the case of the death of Denise Fernatt to altogether dismiss the suit before either party had presented any evidence in court.
“I’m not saying this case doesn’t get knocked out or dismissed on summary judgement, and I’m not saying it does,” Tabit said. “I don’t know what happens, but it seems to me to be premature at this stage to throw this case out.”
Roy Fernatt, Denise Fernatt’s widower, filed a lawsuit in August alleging four people conspired to post photos of his wife throughout Glasgow and Cedar Grove. The photos were cited as the reason that now-retired Fayette circuit judge John Hatcher Jr. fired her from her job in probation services, where she’d worked for 17 years.
Denise Fernatt died by suicide within the week after the photos were posted.
Roy Fernatt, represented by Charleston attorney Michael Clifford, said Lesley Taylor, Amanda Holmes, Crystal Foster and Glasgow Fire Chief Marty Blankenship each had a hand in bullying Denise Fernatt by obtaining, printing and distributing the photo, despite knowing she was diagnosed with depression and had previously attempted to end her life.
The four individuals are named as defendants in the lawsuit along with Fire and Iron Motorcycle Club Inc. and that club’s Local Chapter 40, located in Glasgow.
The defendants have denied the accusations against them, and none of them spoke during the court hearing Thursday.
Taylor, Holmes, Foster and Blankenship filed the motions to dismiss the suit that Tabit denied Thursday.
Under current legal precedent, wrongful death lawsuits typically aren’t heard unless there’s a claim that someone caused the suicide, whether by reckless behavior or neglect, or if a custodian, like a doctor or prison staff, failed to take action to prevent a death by suicide while a person was in their care.
Joseph Spano, representing Taylor and Blankenship, who are in a long-term relationship, said Fernatt’s case didn’t meet either of those exceptions to the legal standard.
Tabit said without more evidence to support the merit of Roy Fernatt’s claims, she was not inclined to dismiss the suit for the reasons Spano argued.
Glasgow police detectives investigated the posting of the photos, but ultimately didn’t seek to press charges after consulting with prosecutors in the Kanawha Prosecuting Attorney’s Office, who told them the circumstances, although morally reprehensible, did not violate any law that existed in West Virginia.
State Sen. Patricia Rucker, R-Jefferson, said in August she intends to amend the West Virginia Computer Crime and Abuse Act to make it so adults can face criminal charges for harassing and bullying other adults through social media and other digital means.
Under current law, bullying is a criminal act only if the victim is younger than 18 years old.