Blog

To the person driving westbound on I-70 toward the Ohio Valley Mall at around 4 p.m. on Thursday, Dec. 10, 2015, who cared enough to stop and lend a hand, this is directed at you. For anyone else, keep this in mind if you ever find yourself asking, “What should I do?” Dear Stranger: Still a very inexperienced driver, my 17-year-old son was headed towards the mall to purchase a Christmas gift for his girlfriend when it happened.  His tire flattened. I am thankful that there was no precipitation on the road that could have caused him to spin out and that he made his way to the shoulder safely. I’m thankful you cam to his aid.Mothers never like releaseing their children into the world and I don’t imagine we ever quit worrying. You made a decision that day and I, as his mother, thank you. I am grateful that you took time out of your day and set aside any thoughts of inconvenience this may have caused.  You helped my son when I was not there. You changed that tire that he had never changed before. You sacrificed your time to help keep my boy safe and I want to tell the world what a wonderful deed you have done. What you may have thought of as simply the right thing to do at the time meant the world to me. This Christmas season, I am especially thankful for those special people out there that put others needs in front of their own.  I know how busy everyone’s lives are and the tight schedules we all must keep, but you were selfless and your good deed has not gone unnoticed. Perhaps this made you late for an appointment or delayed your arrival home for dinner at the table with your own family. Maybe you scraped your hand or tweaked your knee while helping my son. You did it anyway and I thank you. May you and your family have a Blessed Christmas! ~Mamma Dodd EndFragment

The New York Times recently published an article titled “ Arbitration Everywhere, Stacking the Deck of Justice.”  In this article, the authors examine the growing number of arbitration clauses used by large companies in their contracts with consumers.  The article states that “y inserting individual arbitration clauses into a soaring number of consumer and employment contract, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.  Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration.”  The article continued by providing a broad summary of certain key court cases on this issue. In the article, F. Paul Bland Jr. was quoted stating, “orporations are allowed to strip people of their constitutional right to go to court . . . Imagine the reaction if you took away people’s Second Amendment right to own a gun.”  Unfortunately, the previous quote rings true in the tristate region and in our firm’s cases.  Many times, people enter into contracts with arbitration clauses without actually reading the contract and realizing the significance of the agreement. While we run into arbitration issues in many of our practice areas, this is a topic very applicable to oil and gas leases.  Many times, arbitration clauses are in contracts where the consumer has very little, if any, negotiation power.  However, we have successfully negotiated arbitration clauses out of oil and gas leases.  Like many of the other issues I have discussed in oil and gas blogs, many people enter into oil and gas leases containing arbitration clauses without any knowledge that they are signing away their right to bring a claim in court and, instead, will be forced to address any future issues in arbitration.  By entering into a lease with an arbitration clause, an individual waives their right to have a jury hear their claims.  Furthermore, the cost of pursuing a claim through arbitration would likely be significantly higher.  Moreover, the arbitration clause may make bringing claims for smaller amounts of damages nearly impossible, as many arbitration clauses contain class action bans. I wrote this blog not only to raise awareness about the New York Times’ article and arbitration issues as a whole, but also to encourage people to have a complete understanding of all terms contained in an oil and gas lease before signing.  As I have stated before, some of the most difficult conversations I have with potential clients involve stating that we will not be able to take their case or help them receive the actual value of their mineral rights due to a lease that was entered into without full knowledge of the future implications. EndFragment

Last week, a jury in Milwaukee awarded more than $5 million in damages to two police officers who were shot and severely injured with a firearm that Badger Guns unlawfully sold to a straw purchaser. More specifically, the jury, comprised of eight women and four men, found that Badger Guns was grossly negligent in selling a gun to 21-year-old Jacob Collins, who was ostensibly buying the gun for Julius Burton, an 18-year-old male who accompanied him to the store.  Mr. Burton was too young to lawfully purchase the firearm on his own, and evidence showed that he was the person who actually selected the gun ultimately purchased.  One month after the purchase, Mr. Burton shot Officer Bryan Norberg in the face and Officer Graham Kunisch in the head causing brain damage and the loss of his eye. Burton is now serving 80 years in prison while Collins spent two years behind bars. The jury determined that Badger Guns knew or should have known that it was participating in an unlawful sale and awarded the officers compensatory and punitive damages, which are designed to punish the wrongdoer and prevent others from committing similar acts. Until recently, few cases have held gun dealers responsible for selling a firearm linked to a crime. In fact, only two lawsuits have reached a jury since 2005, when Congress passed the Protection for Lawful Commerce in Arms Act (PLCAA), which provides qualified immunity for gun sellers.  In passing the PLCAA, Congress found: (1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed. (2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms. (3) Lawsuits have been commenced against manufacturers, distributors, dealers and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals. (4) The manufacture, importation, possession, sale and use of firearms and ammunition in the United States are heavily regulated by Federal, State and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act and the Arms Export Control Act. (5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended. (6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States. (7) The liability actions commenced or contemplated by the Federal Government, States, municipalities and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution. (8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States. Accordingly, the purpose of the PLCAA was: (1) To prohibit causes of action against manufacturers, distributors, dealers and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended. (2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting and competitive or recreational shooting. (3) To guarantee a citizen's rights, privileges and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment. (4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce. (5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably and to petition the Government for a redress of their grievances. (6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States. (7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution. The PLCAA effectively barred all lawsuits against a manufacturer or seller of a firearm, or a trade association, with the following exceptions: (i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted; (ii) an action brought against a seller for negligent entrustment or negligence per se; (iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including-- (I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or (II) any case in which the manufacturer or seller aided, abetted or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18, United States Code; (iv) an action for breach of contract or warranty in connection with the purchase of the product; (v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or (vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26, United States Code. The “Badger Guns” case was the first case since 2005 adverse to the gun seller.  Earlier this summer, a jury in a similar lawsuit found that an Alaskan gun seller was not liable for a firearm used in a 2006 murder.  In that case, evidence demonstrated that the convicted felon, who attempted to purchase the firearm, actually stole it thereby exonerating the seller from any wrongdoing.   According to Jonathan Lowy, director of legal action at the Brady Center to Prevent Gun Violence, “Litigation is one of the most promising avenues to save lives...Any victory that’s achieved in court is going to inspire and help the movement to prevent gun violence, and this latest victory is certainly a very important one.”  Not surprisingly, both advocates and opponents of gun control view this case as a success story.  As well they should – while it is an obvious victory for the victims and their families, it is also a welcomed result to the lawful gun sellers, the firearms industry and 2 nd Amendment supporters because it demonstrates that the PLCAA worked as intended.

At the risk of showing my age and my complete lack of technological savvy, I readily admit I thought the word “BLOG”, was an acronym. I could not figure out what it was an acronym for, so I spent 30 minutes searching the internet trying to determine what the word meant.  I finally figured out that, at least according to the internet, the word “Blog” is short for web-log.  Now I do not know what web-log means and I am starting from scratch. However, I do know that blogs are very popular.  The blog has created its own world and many new words recognized by the Merriam Webster dictionary, at least the one I found on the internet.  Blog, blogger, blogging, all are now recognized words of the English language.  To be politically correct, I wonder how you say blog in Spanish?  That would take an internet search that would unquestionably test my limited technological capabilities. I still have not figured out how someone starts his or her own blog.  Do you have to go to a website creator to start your own blog?  If I can get good at “blogging”, can I sell advertising on my blog?  How accurate must I be when I write something on my blog?  Obviously, if my blog makes it to the internet, everyone will assume what I say is true, otherwise it would not be on the internet. Jerry Seinfeld and Larry Davis created a sitcom about nothing that made billions.  If I blog about nothing, I wonder if I can make millions? I am thinking I best keep my day job, at least for now.

There are fair amount of mineral owners in the Ohio Valley area who might own a 100 percent interest in their mineral rights, or a share in minerals rights held by their family, but who are unable to execute a lease for those rights.  I am not talking about lands were are still “held by production” or “held by storage” by older leases and wells that are still active.  I am talking about the concept known as “executive rights.”  The executive right, in the context of mineral ownership, is the actual right to negotiate and enter into a mineral lease agreement.  This usually lies with the ownership of the minerals, but not always.   Many times a person who decided to keep all or part of their mineral rights would give the surface owner the executive right.  When done properly, the executive rights holder would be the individual or entity to have to right and ability to negotiate any oil and gas lease related to the property.  In theory, this gave the land owner the right to protect the surface of the property by negotiating the terms on which their surface might be used for oil and gas operations.  The mineral owner would benefit from the lease agreement when production began and would receive their royalty interest when the oil and gas was ultimately sold from the property.  In most situations, the executive rights holder would have the right and ability to receive any “bonus” monies related to the execution of the lease. While the mineral owner is “non-participating” in the leasing process that does not mean that they are without rights.  Case law from the Texas oil fields, and which has been acknowledged here in West Virginia, demonstrates that an executive right holder owes fiduciary duties to the mineral owner.  What that means, essentially, is that the executive right holder has a duty not to unfairly or unreasonably negotiate deals which are unfair or inequitable to the mineral owner.  For example, an executive right holder, knowing that he or she would not receive royalties from the oil and gas produced from the property, might try to negotiate a higher per acre bonus rate in exchange for a lower royalty rate.  The executive right holder is not harmed, because he is not entitled to the royalty.  The mineral owner, however, is harmed greatly because the royalty rate is the only way they will ultimately profit from their interest.  There are many different ways in which a mineral owner might be harmed by the actions of an executive right holder.  A careful review of the terms negotiated and entered into by the executive rights holder is necessary to make sure the mineral owner’s rights have been protected.  If you are a mineral owner who does not hold their executive rights, take special care to review any deals entered into by the executive to make sure your interests were protected.  Contact a mineral rights attorney today as you may have a claim for a breach of the fiduciary duty owed to you if the executive holder placed its rights above yours during the negotiation process.

I just received notification that I will be called for jury duty. Given what I do for a living, I probably won't be selected, but I would gladly serve if needed. Other than our judges, trial attorneys like me probably know better than anyone how valuable jury service really is. Whenever I try a case, I always remind myself that the individual members of the jury have taken time away from their lives, jobs, and families to participate in the greatest system of justice in the world. It is an important and necessary sacrifice. I recently read that an experienced federal judge has started a project designed to make things easier on jurors while recognizing the vital nature of the work that juries do every day in our courtrooms. Specifically, the judge has asked the legal community to adopt and respect a "Juror's Bill of Rights."  Among the provisions of this Bill of Rights would be an acknowledgement that jurors have the right not to have their time wasted by lawyers who are unprepared for their cases, to be informed about exactly how long the case will last, and the right to a clear and understandable explanation of the law and their role in the case. These are all great ideas and I know that I will be more aware of these issues the next time I have the privilege of stepping in front of a jury. To all those who have served on a jury and to all those who will serve in the future, your service is appreciated. Thank you.

For any of us unfortunate enough to have to file a civil lawsuit, we know all too well the truth of the familiar refrain “the wheels of justice turn slowly”. Indeed, it can be quite frustrating, and borderline maddening at times, to be embroiled in litigation over a just cause, only to see months and months pass with what seems like no real movement towards resolution.  And the typical pace of a lawsuit is even more acutely felt when the stakes are high and the case involves important matters that have changed one’s life drastically. From a lawyer’s perspective, it seems like there’s never enough time to get ready and each client’s case dominates the lawyer’s daily life for years.  But a lot of what occurs in preparing for a lawsuit does not directly involve the client on a daily basis.  So months can pass where the client is not directly involved in the day-to-day preparation of the case, which can greatly add to a litigant’s frustration. Today, I wanted to take a moment to try and bring some understanding to the moving parts of a typical lawsuit in hopes that, through awareness, litigants can find a bit more solace while they wait for their case to resolve. Every civil lawsuit starts with the filing of a Complaint.  A Complaint is the initial pleading that a plaintiff (the person who brings the lawsuit) files that outlines the basic facts and allegations of the lawsuit.  A Complaint is not a form or typically a document that can simply be whipped out and filed once the client leaves a lawyer’s office after that initial meeting.  On the contrary, typically a fair amount of planning and fact gathering must take place before a Complaint can be drafted, because there are rules in every state that govern virtually every aspect of the filing of a civil lawsuit.  These rules must be followed or a litigant risks the very real possibility that the Court will simply dismiss the lawsuit for non-compliance right out of the gate.  For instance, in a medical malpractice case, most states require a litigant to present a notarized “certificate of merit” from a licensed doctor practicing in the same specialty as the defendant doctor, certifying that the case is meritorious, before one is even allowed to file their Complaint. To obtain that certificate from a qualified doctor, the doctor has to review all of the relevant medical records, which can take several months to obtain from the medical facilities at issue. Some states, like West Virginia, then require a litigant to give the doctor’s certificate to the target defendants of a lawsuit and then wait another 30 days before filing the Complaint. So from the day you first consult with a lawyer, it can often take many months before your lawyer is even in a position to file your Complaint. Once a Complaint is filed, the defendants in the lawsuit typically have 28-30 days to file a responsive pleading.  That responsive pleading typically takes one of two forms.  First, a defendant can file an Answer addressing each of the allegations in the Complaint.  The filing of an Answer can help move a lawsuit along, because once an Answer is filed, discovery of each side’s evidence can begin, bringing the litigants one step closer to trial.  However, the other type of responsive pleading that is typically filed is a Motion to Dismiss the Complaint.  The law provides numerous grounds by which a defendant can try to have a lawsuit dismissed.  These grounds include things like the plaintiff’s failure to state a claim, defects in the Complaint or an argument that the plaintiff has insufficient evidence to support their claim. Typically, when a Motion to Dismiss is filed, discovery of the other side’s evidence is put on hold, until the Court rules on the Motion to Dismiss. If a Motion to Dismiss is denied, the defendant typically gets additional time (typically two to four weeks) to file an Answer.  Once the Answer is filed, then discovery can begin.  The Civil Rules of procedure allow for the discovery by each side of the other side’s evidence.  This is accomplished through two mechanisms.  First, written discovery requests are served by each side asking for information and documents that the other side has that could be relevant to the issues raised in the lawsuit.  Typically the answering party will have 28-30 days to respond to this request, but extensions of those timeframes are typically granted upon request so these time frames can and usually are extended once or twice.  Usually after written discovery has been completed, the second phase of evidence gathering begins – namely the taking of depositions.  Depositions are the mechanism by which each side gets to question the other side’s witnesses, who are place under oath to tell the truth.  The testimony of each side’s witnesses are recorded by a court reporter and testimony is to be given exactly as if the witness were sitting in Court on the stand during trial in front of the jury.  Depending on the number of witnesses that have discoverable information and the complexity of the case, depositions can take months, if not years to accomplish. Once all the information possessed by each side has been discovered, the defendants get another chance to have the lawsuit dismissed.  You see, the plaintiff in a lawsuit has the burden of proof, which means that the plaintiff is the party that must present enough evidence of their case to even allow the jury to decide the issues.  The Court acts as a gatekeeper here to make sure that the evidence is good enough to even present it to a jury.  If the plaintiff is unable to present sufficient evidence to meet their burden of proof, the Court will dismiss the lawsuit.  The legal procedure for trying to get a lawsuit dismissed at the end of discovery is called “summary judgment”, and the defendant in every civil lawsuit has the opportunity to ask for such relief from the Court. If a plaintiff survives the summary judgment stage, the next phase of the lawsuit typically involves each side moving to exclude certain evidence or arguments from being presented to the jury at trial.  Under the Civil Rules of Evidence, only relevant evidence is admissible.  Only evidence that has any tendency to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence is admissible at trial.  So in almost every case, each side will argue over which evidence meets that standard. Once the Court has ruled on each side’s motions to exclude evidence, only then is the case ready to be presented to a jury.  Depending on the evidence, trials can last anywhere from days to many, many months.  Once a verdict is delivered by the jury, each side has the right to appeal the decision, which can add a great deal of additional time to the ultimate resolution of one’s case.  Litigants are somewhat more fortunate here in West Virginia, since West Virginia only has one appellate court, The West Virginia Supreme Court of Appeals.  But other states have multiple levels of appeal courts and litigants have a right to appeal to each one of them to overturn a verdict. Typically, if all goes smoothly through this procedure, a litigant is looking at a trial anywhere from 12 to 18 months from the date the Complaint was first filed.  And, unfortunately, this is usually a best-case scenario.  There are many, many other factors that can delay the resolution of a civil lawsuit.  For instance, Courts are very busy places and a big factor in how soon you can get your case to trial depends on the Judge and the Court’s schedule.  Criminal cases get priority over civil cases, so it will take longer to get your civil case to trial in a county that sees a lot of criminal activity.  Also, a litigant can appeal a Judge’s decisions along the way, before the case even goes to trial.  For instance, a defendant who loses a Motion to Dismiss can petition for an appeal of that decision.  All of these things can add a tremendous amount of additional time to the ultimate resolution of a lawsuit. On the bright side, cases can settle at any time during the litigation process, but the process is daunting not only because of the emotional turmoil that lawsuits often involve, but also simply because of the length of time one must remain patient in order to see justice done.  For those reasons, I often feel a great deal of pride and admiration for the clients we represent.  For their willingness to stay the course to see wrongs righted, for their steadfastness in the face of significant procedural adversity.  It takes a great deal of courage, perspective and patience to seek justice, and I am fortunate enough to work with clients every day who dig deep and rise above the inherent hurdles they must climb to have their case decided by a jury of their peers.  If you are considering the filing of a lawsuit, please do not despair.  Although justice can often take a while, truth can and still does win out in the end, and a cause worth fighting for is a cause worth fighting for.  Period.

I recently had the opportunity to get together with a group of my friends from law school for the weekend. With the exception of one friend’s wife, who is a nurse, everyone else graduated from Notre Dame Law School the same year as me, 2013, and is now an attorney. As we got to talking about our jobs, and the things that we face day to day, it really made me realize just how incredibly broad the opportunities can be for lawyers, and how much the job can vary depending upon the path that you choose to take with your law school degree. Up until graduation from law school, most of our experiences were fairly similar. During the first year of law school, we all took the very same classes. We may have had a different professor, but everyone took the same three, core courses each semester, along with legal research and legal writing seminars. After the first year, people’s curriculum and involvement began to vary a bit more. Some of us began to focus more on skills courses, such as learning how to take a deposition or taking a trial advocacy class. Others began to head toward corporate studies or enrolled in various criminal law classes. But generally, we were all still attending roughly the same amount of classes, and many times we were in the same courses together. Following graduation, everyone spent the summer studying for the bar exam in the state where he or she planned to practice. Anytime I talked to my friends up until the bar exam, it still seemed like we were all in the same boat, watching our lectures online and wondering if we had done enough practice essays or multiple choice problems. Once people began working, however, I really didn’t think much about how different our experiences would be. I know what I do at my job, and much of it is typical “lawyer things,” such as taking calls from potential clients who may need my firm’s help, writing various legal documents, answering and drafting discovery requests, and taking depositions. In many ways, I assumed that this is what all of my friends did at their jobs as well, and that any variations were simply due to the nature of their work, criminal versus civil, or corporate work versus litigation, for example. This past weekend really shed light on the fact that there really is no completely “standard” legal job, and each one of us has responsibilities at our respective jobs that may seem totally foreign to another attorney. One of my friends works at a center that assists immigrants. In addition to helping people file paperwork for their visas or green cards and navigate the American legal system, she also teaches classes to help them learn English and aspects of American culture. Another friend recently decided to go out on his own in doing criminal defense work, and was sharing his new experiences with the business side of operating a law practice. A third friend works as a tax attorney, and will probably never see the inside of a courtroom in his work. One works at a very small firm, doing intellectual property work, and oftentimes she fills the roles of human resources representative or office administrator, in addition to working on cases. Even where my friend’s job seemed most similar to mine, working as an associate attorney at a firm doing civil litigation work, there were still many differences in her day to day assignments from what I typically find myself doing. It was interesting to hear about each person’s job, and really think about the many different opportunities, many of them unexpected, that can present themselves within a legal career. Law school is definitely not a “one size fits all” decision, and neither is taking a job as an attorney.

Nationally Recognized Attorney Sharon Eubanks Joins Bordas & Bordas Nationally recognized attorney and author Sharon Eubanks has joined the Wheeling, W.Va.-based law firm of Bordas & Bordas where she will focus on complex civil litigation. With more than 30 years of experience in the legal field, Managing Partner Jamie Bordas is pleased to add Eubanks to his team of attorneys. “Sharon, as one of the nation’s leading trial lawyers, brings a wealth of experience and knowledge to the firm,” Bordas said. “Her background in handling high-stakes litigation throughout the country will be a valuable resource as we fight for justice on behalf of individuals who cannot fight for themselves.” In 2000, Eubanks served as lead counsel on behalf of the United States in United States v. Phillip Morris USA, et al., - the federal tobacco litigation. This was the largest civil Racketeer Influenced and Corrupt Organizations (RICO) enforcement action ever filed. Following the nine-month trial, it was determined by the federal district court that the major U.S. cigarette companies violated the civil provisions of RICO and committed fraud. The Court ordered the companies to change their business tactics, especially in the areas of advertising and marketing. The trial court’s decision was upheld on appeal to the D.C. Circuit. Eubanks also co-authored “Bad Acts: The Racketeering Case Against the Tobacco Industry,” an insider account of the federal tobacco litigation that led to the landmark decision. Eubanks comes to Bordas & Bordas from Edwards Kirby in Washington, D.C. Prior to joining Edwards Kirby, Eubanks was a partner in the firm Edwards & Eubanks. She co-founded the firm with Cate Edwards. Eubanks began her legal career in 1980 with the Federal Trade Commission where she handled antitrust cases. In 1983, she joined the U. S. Department of Justice and served as deputy director of the commercial litigation branch from 1992-1999.  While at the D.C. law firm of Holland & Knight from 2007-2009, Eubanks worked exclusively on pro bono matters and in 2009, she joined a civil litigation boutique firm in Washington representing plaintiffs in wage and hour, lead poisoning, medical malpractice and employment discrimination cases. She was part of a legal team that represented more than 6,000 women claiming gender and pregnancy discrimination in Velez v. Novartis and secured a $253 million judgment for the plaintiffs – the largest employment verdict in a gender discrimination case in U.S. history. Eubanks has discussed her work on several nationally televised programs including Hardball with Chris Matthews, Fox News Sunday, The CBS Evening News and Face the Nation with Bob Schieffer. She also has been a guest on radio programs including the Rachel Maddow Show on Air America and several National Public Radio programs.  Eubanks was also featured in the 2011 documentary film, “Addiction Incorporated.” Eubanks has been the recipient of many awards for her work. In addition to her time in the courtroom, Eubanks speaks on litigation topics, civil rights and public health issues. As an adjunct professor, she has taught trial advocacy at George Washington University School of law and has worked as an instructor for the National Institute for Trial Advocacy (NITA).  Eubanks serves as a member of the board and an officer of Americans for Nonsmokers’ Rights and is a member of the advisory committee for the Center for Tobacco Control Research and Education at the University of California, San Francisco. Eubanks is a 1976 cum laude graduate of Mississippi State University and earned her Juris Doctor in 1980 from Georgetown University Law Center. Bordas & Bordas is a plaintiff’s litigation law firm of 19 attorneys based in Wheeling, W.Va., with offices in Moundsville, W.Va., St. Clairsville, Ohio and Pittsburgh. The firm’s attorneys practice throughout the region in diverse areas of law. For more information, please contact Jamie Bordas at 304.242.8410 or Michele Rejonis at 304.905.6005, or visit bordaslaw.com.

In the wake of the recent conflict in Ferguson, Missouri, the White House issued Executive Order 13684, which established the National Initiative on Building Community Trust and Justice (National Initiative).  The National Initiative is designed to improve relationships and increase trust between minority communities and the criminal justice system. The National Initiative authorizes the Department of Justice's Office of Justice Programs (OJP) to satisfy five (5) major components. Select pilot sites to test strategies and provide training on procedural justice, implicit bias, and racial reconciliation (Pittsburgh, PA; Birmingham, AL; Fort Worth, TX; Gary, IN; Minneapolis, MN; and Stockton, CA); Create a central information clearinghouse that will provide technical assistance to the field;.Support new research; Develop materials to help carry that research into practice; and, Promote public discussion of issues around race and policing. The $4.75 million initiative will seek to assess the police-community relationship in each of the six pilot sites and develop a detailed site-specific plan that will enhance procedural justice, reduce bias and support reconciliation in communities where trust has been eroded. It is apparent that Pittsburgh has been identified as a candidate for this National Initiative, in part, due to the perception of the relationship between the Pittsburgh Police and the members of the community. According to Attorney General Eric Holder, the six (6) above referenced pilot cities, by helping to develop programs that serve their own diverse experiences, these cities will stand on the leading edge of our effort to confront pressing issues in communities across the country. Already seeking to increase diversity within the ranks of the Pittsburgh Bureau of Police, the City of Pittsburgh signed a legal agreement with the American Civil Liberties Union on May 7, 2015 to secure cutting-edge improvements to police hiring methods. Interesting developments to be sure, particularly when considered in context with ongoing support for the use body cameras, and debate revolving around concern of the “militarization” of local law enforcement agencies and flow of federal funding.  Stay tuned…

Knowing what to do or where to go after high school or college is very confusing and can be a scary time. Some people know right away what they want to be, where they want to live and have it all planned out.  Others may need more time to find themselves and figure it all out. For me, a key to knowing what I wanted to do was taking a look at my personality and finding something that would allow me to be just who I am. I have always had a deep interest in helping others.  Compassion for others was always prominent in my personality.  I knew I possessed a trait that, quite honestly, could sometimes cause me distress, but I knew I wanted to do something about it.  That trait was my longing to speak up in an unfair situation or when others were afraid to stand up on their own. It all clicked for me when my older brother, Bill, was entering law school.  At that point, I became very interested in law and really saw myself as a paralegal. My interest in the law coupled with my craving to help a variety of people from diverse backgrounds, my obsessive-compulsive organizational skills and my outspokenness…BINGO – I knew what I wanted to do. So many people go through life not utilizing their degrees or enjoying what they do.  They just take a “job” and collect a paycheck. Not me. I was very fortunate to know what I wanted to have as a career.  I’ve always known why I wanted to do it, but the amazing thing for me is that I’ve done just that. Working at Bordas & Bordas has allowed me to grow as a person.  It has enriched my knowledge and confidence.  It has proven that I actually can do something to help others and the experience has been priceless. Whatever degree you seek or career you desire, make it one you love.  Find that area that interests you, involves your “spirit” and most of all helps you grow as a person.

Most of us have certain expectations about how we would like to be treated at a doctor’s office or a hospital. We would all like to be treated with respect, care and compassion and we certainly don’t want to be kept in the waiting room for hours.  One expectation that we should also have is the expectation that we will be given the best care possible under the circumstances.  What happens if we do not get that level of care and somebody gets hurt?  This is the question that faces many individuals and families across the country, as statistics show.  We often get calls from families in these very circumstances and it is not unusual for these families to tell us at the beginning of the conversation that they are not sure what to do or how to proceed.  This is the start of a conversation that eventually turns to whether or not the doctor or the hospital in questions has committed what’s known as “medical malpractice.” So what is medical malpractice?  The first thing to understand is “medical malpractice” is the same thing as “medical negligence.”  What I mean is that in order to have a case, the patient does not have to prove that they were intentionally hurt by a doctor.  They just have to prove that the doctor was negligent.  The patient also does not necessarily have to prove that there was some type of extreme or outrageous facts involved.  They must only prove that the doctor was negligent.  In terms of the law, they need to prove that the doctor fell below something called the “standard of care.”  So what is the “standard of care”? Generally speaking, the “standard of care” means that doctors have an obligation to provide the same care that would be rendered by an ordinary and careful (i.e., reasonable and prudent) doctor acting in the same or similar circumstances.  West Virginia defines the standard of care through a statute, which is typical of the definition of the standard.  As the West Virginia Code states: “(a) The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and (2) Such failure was a proximate cause of the injury or death.” Of course, the call to our office is only the beginning of the process.  An important step in determining whether a case will be filed is the opinion of experts in the relevant area of medicine.  Before instituting a lawsuit in either Ohio or West Virginia, an expert physician has to sign an affidavit saying that they have reviewed the case and determined that the physician was negligent.  That’s because the standard of care that I discussed above must usually be determined by an expert in any particular case.  Of course, finding and retaining the appropriate expert is one of the most important steps in any case.  Every case is different and must be evaluated on its own. If you or a loved one has been injured by a doctor or hospital, Bordas & Bordas would be honored to speak with you to help determine what your rights may be.