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Recently, in the case of Harker v. Chan, the United States District Court for the Western District of Pennsylvania granted the defendants’ request for remittitur, lowering the jury verdict for past and future non-economic damages from $43,750,000 to $16,000,000, resulting in "the highest possible recovery that would not 'shock' the judicial conscience.” GH was born prematurely and was admitted to Conemaugh’s neonatal intensive care unit under the care of Dr. Chan, who observed some swelling on GH's head, which can be a normal finding. Dr. Chan believed that the swelling was either a caput, a cephalohematoma, or a subgaleal hemorrhage. The standard treatment for these conditions is primarily observation; however, Dr. Chan directed his nurse to wrap GH's head with an ACE bandage, a treatment that Dr. Chan learned while in medical school in the Philippines in the 1980s. The wrap remained in place for 48-hours, and upon removal, GH's head was bruised and swollen, and had abrasions that were oozing blood and serum. Both sides of GH's head, "all the way around," were discolored due to eschar. GH was transferred to Texas Children's Hospital and was treated by Dr. Laura Monson, a pediatric plastic and craniofacial surgeon. Dr. Monson noted "significant soft tissue loss" on GH's head and substantial hair loss. Fat oozed out of her scalp, and her skull bone was compromised. Dr. Monson peeled away the dead tissue from GH's scalp over the course of several days. GH began physical therapy for wound care, and underwent reconstructive surgery of her scalp, which entailed placing a tissue expander underneath her skin in an effort to grow new skin and recreate a hairline across GH's forehead. The tissue expanders limited GH's activities and require her head remain covered when GH goes outside in the sun. If no complications arise, GH will have tissue expanders in her head for three more years, however, Dr. Monson expected complications which could result in the expanders being in place for up to 10 years. Following this treatment, it was anticipated that GH would require additional surgeries, including a bone graft, multiple hospitalizations, and countless visits to the hospital. Despite her doctors' best efforts, GH will be permanently disfigured. GH has also suffered emotional distress; she is aware that she is "different" and has been teased by other children. She will require psychological counseling as she ages and becomes increasingly aware of her disfigurement. Plaintiffs sued Dr. John 0. Chan and Conemaugh Memorial Medical Center, alleging that Dr. Chan negligently treated GH, their newly-born daughter, by wrapping her head tightly with an ACE bandage shortly after birth, causing her to suffer permanent disfigurement to her head and scalp. The case proceeded to trial, resulting in a jury verdict for Plaintiffs in the amount of $43,750,000 for past and future non-economic damages and $3,283,579 in future medical expenses. On appeal, the defendants argued that the Court should remit the $43,750,000 compensatory damage award because it shocks the conscience. Defendants assert that comparing this compensatory damage award with awards rendered in similar cases establishes that the jury rendered an excessive verdict. Defendants also emphasize that GH did not suffer brain damage, cognitive impairments, or developmental delays. In response, plaintiffs argued that the jury rendered an appropriate verdict given the extent and severity of GH's injuries. Plaintiffs also argued that the Court should not compare verdicts when evaluating Defendants' Motion for Remittitur because GH's young age, unique injuries, and idiosyncratic individual characteristics defy any attempts to compare her to other plaintiffs. The Court noted that remittitur is well established as a device employed when the trial judge finds that a decision of the jury is clearly unsupported and/or excessive; however, it may not vacate or reduce the award merely because it would have granted a lesser amount of damages. The district court may only disturb a jury verdict if the damages assessed by the jury are so unreasonable as to offend the conscience of the Court. A compensatory damage award must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence at trial. If the Court remits, the reduction may not be less than the maximum amount that does not “shock the judicial conscience.” Further, in accordance with the Seventh Amendment, a district judge that remits must offer the plaintiff the option of a new trial. Here, the trial court determined that despite GH's severe physical injuries which will require future operations and medical treatment, her permanent disfigurement, and the high likelihood of future emotional damage necessitating counseling, her injuries by no means justify the $43,750,000 compensatory damage award that the jury rendered. The court believed that while GH would never grow hair on certain parts of her head and will have permanent scarring, she will be significantly less disfigured once the tissue expanders are removed and she will not have any permanent bumps on her head. Furthermore, the Court noted that GH did not suffer any brain injuries, developmental delays, or cognitive impairments. Moreover, the trial court noted that after having reviewed several other similar compensatory damage awards, the jury award in this case far exceeded the highest amount that would have reasonably compensated GH for her injuries. In fact, the highest non-economic damage award in a comparable case totaled $17,700,000, which was significantly less than half of the amount the jury awarded for compensatory damages here. In light of the foregoing, the trial court granted plaintiffs fourteen days to accept the reduced award or opt for a new trial on damages. Image courtesy of Pixabay.

In July, jurors in St. Louis hit Johnson & Johnson (“J&J”) with one of the largest product liability verdicts in U.S. history–a 4.69 billion award of compensatory and punitive damages to 22 ovarian cancer victims or their survivors. The company has been engulfed in an avalanche of talc-cancer claims. As of July 1, the company faced 10,600 lawsuits on behalf of people alleging they contracted cancer from routine use of talc powders, according to the company’s latest quarterly report. The vast majority of the claims are by ovarian cancer victims who say they contracted the disease from longtime use of the powder for feminine hygiene. The others claim the development of mesothelioma from unknowingly inhaling microscopic asbestos fibers when using talc powders. Talc, the softest known mineral, has a wide range of uses in cosmetic, pharmaceutical and even food products, but talc deposits are sometimes contaminated by naturally occurring asbestos. To date, plaintiffs have won eight of 12 talc-cancer trials against the drug and consumer products giant, with two cases ending in defense verdicts and one in a jury deadlock. On Monday, September 24, 2018, a mistrial was declared after a California state court jury deadlocked on whether Johnson & Johnson is responsible for the asbestos-related cancer of a woman who blamed her illness on longtime use of contaminated baby powder. Soon after starting a sixth day of deliberations, jurors in Los Angeles Superior Court told Judge Margaret L. Oldendorf that they were at an impasse, with eight of 12 favoring an award of damages to the plaintiff, Carolyn Weirick. That was one short of the nine votes needed for a verdict on claims that J&J was guilty of negligence, failure to warn about the risk of asbestos, and marketing defective products. Imerys Talc America, Inc., J&J’s talc supplier and co-defendant, was dismissed from the case after reaching a confidential settlement with Weirick just before jury deliberations began. Weirick, 59, suffers from mesothelioma, a deadly form of cancer strongly associated with asbestos exposure. According to her lawsuit, she had no occupational exposure to asbestos, but over many years had unknowingly inhaled microscopic asbestos fibers when she sprinkled on Johnson’s Baby Powder and another talc powder, Shower to Shower. In testimony in the case, plaintiff expert and materials scientist William Longo said his microscopic analysis turned up asbestos fibers in an old bottle of talc powder lying around Weirick’s home. Her lawyer also showed jurors internal J&J memos and test reports that he said showed J&J knew for decades that its talc supplies and even finished powders were sometimes tainted by asbestos. In a 1974 memo, marked as Exhbit 9 and placed in evidence, a J&J official said “our very preliminary calculation indicates that substantial asbestos can be allowed safely in a baby powder.” In another memo from the same year, marked as Exhibit 69 and placed into evidence, the head of research and development for Windsor Minerals, then a J&J mining subsidiary, wrote of the need to develop ways to purge talc of stray asbestos. Pursuing such methods “is strongly urged by this writer to provide the protection against what are currently considered to be materials presenting a severe health hazard and are potentially present in all talc ores in use at this time.” Another internal document in 1975 described the company’s approach as being “to initiate studies on talc safety only as dictated by confrontation,” to ”minimize the risk of possible self-generation of scientific data which may be politically or scientifically embarrassing.” These internal documents provide evidence that J&J has known for years about the adverse health effects of its products, similar to the internal documents uncovered in the tobacco litigation. Mesothelioma is extremely rare, striking about 3,200 people per year, or one in 100,000 U.S. residents. It has been described as a ”signal tumor” because it is so strongly linked to asbestos exposure, although some research suggests it can result from other causes. J&J is not the only company to be targeted by talc powder-cancer lawsuits. Colgate Palmolive, which formerly made Cashmere Bouquet powder, faces 222 cases, according to its latest quarterly report. Currently, another mesothelioma case against J&J is being tried in New Jersey. Colgate and Imerys Talc were also named as co-defendants in that litigation, but have settled the claims against them. Further documentation of Exhibit 9 & Exhibit 69 can be found here: Image courtesy of Unsplash.

One of the assessments that you and your attorney will make when it comes time to file your case will be whether to file it in state or federal court. There are limited situations where you can file a case in federal court. One is where the claims that you are bringing arise out of a federal law, such as a Civil Rights Act claim. The second type of case that can be filed in federal court is referred to as a “diversity claim,” which means that (1) the case is claiming more than $75,000 in damages and (2) all of the parties are citizens of different states. Both of these elements must be satisfied. Such a situation could arise if a resident of West Virginia is struck by a negligent driver who is a resident of Pennsylvania and seeks to recover damages arising out of the accident that are more than $75,000. Because the two parties are residents of different states and the damages are in excess of $75,000, the West Virginia plaintiff could choose to file his case in federal court. If federal court is an option for where you may file your lawsuit, your lawyer will discuss with you the reasons that it may be preferable over state court and reasons that federal court may not be the better option. Some of the pros and cons of federal court versus state court may include the type of case that you are filing and the laws that will be at issue in your case, the procedural rules of each court, and the historical results of trials and verdicts in both the federal and state courts for your types of cases. There may be a variety of other reasons that your attorney would suggest one court over the other depending on the specific facts and circumstances of your particular case. If you and your attorney decide that a state court filing is the better option for you and your case, your attorney may also warn you of the possibility that the defendant seeks to remove the case from state court to the available federal court. Similar to the plaintiff’s decision to file the case in federal court, the defendant can only seek removal if the case could have been filed in federal court in the first place. The case must fit either arise out of federal law or fit the “diversity claim” elements for removal to federal court. If the defendant does seek removal, you and your attorney can discuss whether you wish to challenge the removal and ask the federal court to remand the case back to state court, or whether you wish to proceed with the case in federal court. Again, this discussion and determination will be based on a number of case-specific factors, and will usually involve balancing some pros and cons. Regardless of whether your case proceeds through state or federal court, the actual litigation will run similarly in either court. You will likely engage in discovery, both written and by deposition, your attorney will file and respond to various motions, you will probably attend a mediation to discuss out-of-court settlement of your matter, and if mediation or negotiations fail, your attorney will prepare for trial. Attorneys at Bordas & Bordas have experience with filing and litigating cases in many different courts, both federal and state, and are available to discuss your legal situation with you to determine and explain your options. Image courtesy of Pixabay.

Although many of the commercial truck crash cases we handle are caused by some combination of speed, fatigue or distraction, some also involve mechanical failure. These mechanical failures may be discovered by a motor carrier enforcement inspection after a crash, in an expert inspection our office arranges if we are hired quickly enough, or it may be disclosed later in expert examination of photos of property damage. When mechanical problems are found after a crash, most often the root cause is in the company’s systemic failure to follow the well-established rules in maintenance management. Perhaps just as important, evidence of poor maintenance over a long period of time helps jurors believe that the company neglected everything else about safety. Federal regulations require trucking companies and key personnel involved with vehicle inspection and maintenance to understand and comply with rules on vehicle safety. The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.1 mandates that “every motor carrier, its officers, drivers, agents, representatives, and employees directly concerned with the inspection or maintenance of motor vehicles shall comply and be conversant with the rules of this part.” Too often when we dig out the truth behind a catastrophic truck crash, we learn that truck maintenance personnel were not trained and did not adequately understand what is required. Regarding brake system, for example, the Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.25 outlines specific requirements for anyone who performs maintenance, inspection or repairs on air brake systems: (a) The motor carrier shall ensure that all inspections, maintenance, repairs or service to the brakes of its commercial motor vehicles, are performed in compliance with the requirements of this section. (b) For purposes of this section, “brake inspector” means any employee of a motor carrier who is responsible for ensuring all brake inspections, maintenance, service, or repairs to any commercial motor vehicle, subject to the motor carrier’s control, meet the applicable Federal standards. (c) No motor carrier shall require or permit any employee who does not meet the minimum brake inspector qualifications of §396.25(d) to be responsible for the inspection, maintenance, service or repairs of any brakes on its commercial motor vehicles. (d) The motor carrier shall ensure that each brake inspector is qualified as follows: (d)(1) Understands the brake service or inspection task to be accomplished and can perform that task; and (d)(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task; and (d)(3) Is capable of performing the assigned brake service or inspection by reason of experience, training or both as follows: (d)(3)(i) Has successfully completed an apprenticeship program sponsored by a State, a Canadian Province, a Federal agency or a labor union, or a training program approved by a State, Provincial or Federal agency, or has a certificate from a State or Canadian Province which qualifies the person to perform the assigned brake service or inspection task (including passage of Commercial Driver’s License air brake tests in the case of a brake inspection); or (d)(3)(ii) Has brake related training or experience or a combination thereof totaling at least one year. Such training or experience may consist of: (d)(3)(ii)(A) Participation in a training program sponsored by a brake or vehicle manufacturer or similar commercial training program designed to train students in brake maintenance or inspection similar to the assigned brake service or inspection tasks; or (d)(3)(ii)(B) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task in a motor carrier maintenance program; or (d)(3)(ii)(C) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task at a commercial garage, fleet leasing company, or similar facility. (e) No motor carrier shall employ any person as a brake inspector unless the evidence of the inspector’s qualifications, required under this section is maintained by the motor carrier at its principal place of business, or at the location at which the brake inspector is employed. The evidence must be maintained for the period during which the brake inspector is employed in that capacity and for one year thereafter. However, motor carriers do not have to maintain evidence of qualifications to inspect air brake systems for such inspections performed by persons who have passed the air brake knowledge and skills test for a Commercial Driver’s License. When a truck crash is caused, in whole or in part, by brake failure, we usually find that the person responsible for maintenance at the trucking company had no idea what a certified brake was, much less qualifying as one. In these instances when a mechanical failure contributes to the cause of a truck crash, we are likely to find in depositions of the maintenance supervisor and the truck driver that the driver vehicle inspection report was never shown to any driver, either the driver that filled out the report or the next driver. Another section of the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 396.11, states: “(c) Corrective action. Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle. Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again.” When we dig into the records, we are likely to find the company did not comply with this rule either. Requirements for annual truck inspections are outlined in 49 C.F.R. § 396, Appendix G. However, it is not unusual to find that the person in charge of maintenance was unfamiliar with this requirement, and therefore could not credibly sign off on inspection requirements with which he is unfamiliar. That very knowledge on the part of maintenance personnel is required of trucking companies. The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.19 requires: “(a) It shall be the motor carrier’s responsibility to ensure that the individual(s) performing an annual inspection under §396.17(d) (e) or is qualified as follows: (a)(1) Understands the inspection criteria set forth in 49 CFR Part 393 and Appendix G of this subchapter and can identify defective components; (a)(2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an inspection; and (a)(3) Is capable of performing an inspection by reason of experience, training, or both as follows: (a)(3)(i) Successfully completed a State or Federal sponsored training program or has a certificate from a State or Canadian Province which qualifies the person to perform commercial motor vehicle safety inspections, or (a)(3)(ii) Have a combination of training and/or experience totaling at least 1 year. Such training and/or experience may consist of: (a)(3)(ii)(A) Participation in a truck manufacturer sponsored training program or similar commercial training program designed to train students in truck operation and maintenance; (a)(3)(ii)(B) Experience as a mechanic or inspector in a motor carrier maintenance program; (a)(3)(ii)(C) Experience as a mechanic or inspector in truck maintenance at a commercial garage, fleet leasing company, or similar facility; or (a)(3)(ii)(D) Experience as a commercial vehicle inspector for a State, Provincial or Federal Government. (b) Evidence of that individual’s qualifications under this section shall be retained by the motor carrier for the period during which that individual is performing annual motor vehicle inspections for the motor carrier, and for one year thereafter. However, motor carriers do not have to maintain documentation of inspector qualifications for those inspections performed either as part of a State periodic inspection program or at the roadside as part of a random roadside inspection program.” The Federal Motor Carrier Safety Regulations at 49 C.F.R. § 396.25 requires that the brake inspector must be “knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task.” But when brakes fail, we are likely to find that the maintenance personnel lacked the knowledge of how to deal with a simple brake out of adjustment with an automatic slack adjuster, which disqualifies them as brake inspectors. When there is a truck crash in which mechanical problems are an issue, when we review personnel files of trucking company mechanics, we are likely to find that they, too, are deficient in training, experience or certification. While we seldom see a truck crash case in which mechanical failure is the sole cause, if hired early enough we are able to get a thorough inspection to find what mechanical issues are involved. In representing the victims of a catastrophic truck crash in which mechanical issues are involves, we work closely with experts who inspect the truck and guide us through the technical details required to build the case. Picture courtesy of Pixabay.

Recently, the Pennsylvania Superior Court, in Dunlap v. Fed. Signal Corp., affirmed a trial court’s entry of summary judgment for a defendant in a products liability case wherein it was asserted that the design of the siren caused the hearing loss of a class of firefighters. 247 members of the Pittsburgh Bureau of Fire were plaintiffs in a mass tort products liability action who allegedly suffered permanent hearing loss due to exposure to siren noise from the Q2B siren (“Q-siren”) manufactured by Federal Signal. The firefighters complained that the Q-siren was unreasonably dangerous and defective and negligently designed because it emits omnidirectional, high-decibel sound that, over time, causes permanent hearing loss to firefighters occupying the fire truck. The firefighters’ claim was supported by the expert testimony of an acoustics expert, who opined that a shroud could be applied to the Q-siren to divert the noise to the front of the vehicle while still meeting industry standards for warning sirens. More specifically, the shroud would funnel the noise in a cone-shaped direction in front of the fire truck, thereby reducing the noise level in the cab of that vehicle. In its defense, Federal Signal argued that attaching a shroud to reduce the angle at which the sound was emitted would render its product less safe for the pedestrians and motorists it was intended to warn, especially at intersections, as the shroud would reduce the noise level of the siren to the rear and sides of the vehicle. Thus, the defendant filed a motion for summary judgment (motion to dismiss) contending that the firefighters had failed to offer sufficient evidence to show that the shrouded alternative was effective and safe for all users, including the pedestrians and motorists it was intended to warn. The trial court determined that the firefighters failed to produce expert testimony to show that the proposed feasible alternative design “will provide as much protection to motorists, pedestrians, and firefighters occupying the fire truck as the design of the Federal Signal siren that provides unrestricted 360-degree noise projection.” The firefighters appealed the trial court’s decision to the Pennsylvania Superior Court. The Superior Court initiated its analysis by referencing the seminal Pennsylvania Supreme Court case of Tincher v. Omega Flex, which held that a plaintiff could prove defective design in two ways: 1) by showing that the product’s danger is unknowable and unacceptable to the average consumer (the consumer expectations test); or 2) that a reasonable person would conclude that the probability and gravity of the harm caused by the product outweigh the burden or cost of taking precautions (the risk-utility standard). Here, the firefighters proceeded under the risk-utility test, which required the satisfaction of the following factors: 1. The usefulness and desirability of the product – its utility to the user and the public as a whole. 2. The safety aspects of the product – the likelihood that it will cause injury, and the probable seriousness of the injury. 3. The availability of a substitute product which would meet the same need and not be as unsafe. 4. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. 5. The user’s ability to avoid danger by the exercise of care in the use of the product. 6. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions. 7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. The plaintiffs argued that the court focused on the third factor, and incorrectly expanded it to include non-users of the product, namely pedestrians and motorists. In addition, the firefighters contended that such expert testimony is unnecessary in light of evidence that the proposed alternative design, the shrouded siren, meets all SAE industry requirements. Federal Signal argued that the trial court correctly granted summary judgment since the firefighters did not demonstrate that the alternative design was effective and did not introduce a new or greater hazard. It also argued that compliance with the SAE is not de facto proof that a siren is safe and effective. It maintained that the standard only sets minimum noise outputs in the front of the vehicle and does not contemplate the general risk to pedestrians and motorists. Finally, Federal Signal, citing to Tincher, maintained that the trial court properly considered the safety of the public, namely pedestrians and motorists, as well as firefighters in determining whether the product’s design was defective. The Superior Court determined that defective design could be widespread in the industry, and hence, evidence that a product comported with industry standards was not proof of non-defectiveness. Ultimately, the court ruled that an alternative product design’s compliance with governmental or industries standards, in the absence of expert testimony, was insufficient to establish that an alleged defective product was unreasonable dangerous. More specifically, the Superior Court agreed with the trial court’s finding that the plaintiffs required expert testimony to establish that an alternative design of the siren just as an effective warning device for all persons, such as pedestrians, as the plaintiff’s reference to the industry standard was not an acceptable substitute for such required expert testimony. Ultimately, the Superior Court affirmed the trial court’s ruling that the firefighters’ expert’s failure to provide an opinion regarding the alternative design of the siren for the safety for “all users,” namely pedestrians and motorists was fatal to the firefighters’ claim.

This past Friday, a jury ordered Monsanto Co., now part of Bayer AG, to pay $289.2 million to a Roundup user who developed non-Hodgkin’s lymphoma in a landmark lawsuit over whether exposure to Monsanto’s powerful weed killers cause cancer. The jury verdict, in San Francisco Superior Court, further shines the light on Monsanto’s weed killer Roundup following the 2015 determination from the International Agency for the Research on Cancer that glyphosate, the active ingredient Roundup herbicides, probably causes cancer. Dewayne Johnson's victory Friday could set a precedent for thousands of other cases claiming Monsanto's famous herbicide causes non-Hodgkin's lymphoma. Thousands of patients are suing Monsanto, claiming Roundup gave them cancer. After three days of deliberations this week, the jury at the Superior Court found Monsanto responsible for $39.2 million in compensatory damages Johnson and $250 million in punitive damages based on Monsanto’s misconduct in trying to conceal the dangers of glyphosate to human health. The big questions at trial were whether Roundup can cause cancer and, if so, whether Monsanto failed to warn consumers about the product's cancer risk. The jury emphatically answered those both questions in favor of Mr. Johnson. For plaintiffs suing Monsanto, who have the burden of proving that Roundup is carcinogenic, the jury’s decision may end up being the impetus for improving public health by helping to further educate the public on the hazards of Roundup. Monsanto continues to maintain that Roundup, the most widely used weed killer worldwide does not cause cancer, but Johnson’s case focused not only on glyphosate but Roundup as a chemical mixture, in which the interaction between glyphosate and the other ingredients in Roundup react synergistically to make the product more carcinogenic. While this fight is far from over – Monsanto will undoubtedly appeal – Round 1 went to the people in a big way in this battle and will hopefully cause Monsanto to take a hard look at itself and its products. As a lawyer who handles chemically-induced cancer claims from products like Roundup, I can attest to the importance of contacting a lawyer as soon as possible to explore your rights. If you or one of your loved ones have been diagnosed with non-Hodgkin’s lymphoma and have a history of exposure to Roundup, you should contact an experienced law firm right away to explore the possibility of a claim. *Image courtesy of Unsplash/Pixabay

Recently, in the case of Walsh v. Bayer, et al., the Pennsylvania Superior Court analyzed a trial court’s dismissal of a “junk science” claim in connection with its application of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Specifically, at issue was whether Mr. Thomas J. Walsh’s forty-year occupational exposure to defendants’ pesticides, some of which contain known carcinogens and teratogens, was a substantial contributing factor in his death due to Acute Myelogenous Leukemia (“AML”). Mr. Walsh was employed for almost 40 years as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. During his employment, he frequently and regularly applied pesticides on the golf courses. He kept a diary of the chemicals used on the courses and the dates of their applications. His friend and coworker offered specific details about how the two men applied the pesticides, what pesticides were used, in what concentrations and the protective gear worn. On October 5, 2008, Mr. Walsh presented to the emergency room complaining of fever, chills, and a cough. Three days later, after a bone marrow biopsy, he was diagnosed with AML. Subsequent cytogenetic testing at West Penn Hospital showed chromosomal aberrations consistent with secondary leukemias, which are linked to radiation, chemotherapy, or chemical exposure. Mr. Walsh died on February 2, 2009. His treating oncologist later opined that Mr. Walsh’s extensive chemical exposure, together with “the high-risk karyotype and dyspoietic features associated with raise a high degree of suspicion that such exposure played a significant role in the development of his disease.” Wrongful death and survival action were initiated against the manufacturers of various pesticides that Mr. Walsh applied over the forty-year period, asserting claims in strict products liability, negligence, and breach of warranty. Plaintiff’s experts testified that epidemiological studies that have examined the association between pesticide exposure and leukemia risk have consistently shown a positive association, some estimates demonstrating a two-fold increase in risk. She opined that organophosphate pesticide formulations, individually or in combination, causally related to an increased risk of leukemia in humans exposed to them. The defendants filed a “ Frye” motion to exclude plaintiff’s experts, from testifying at trial, arguing that the methodologies used by these experts were not generally accepted or conventionally applied in the relevant scientific communities. After reviewing the depositions of the experts and the parties’ briefs, the trial court granted the defendants’ Frye motions and precluded the testimony of Executor’s experts, effectively dismissing the case. According to the Superior Court, Frye contemplates a judicial inquiry, informed by experts, into the general acceptance of the scientific methods used, not the conclusions reached by the experts. In this case, the Superior Court found considerable support (over 700 articles) for plaintiff’s position that the link between pesticides and cancer has crossed the threshold from novel to general acceptance. The Court highlighted that both the defendants and the trial court agreed that the “Bradford Hill” methodology that the plaintiff’s experts utilized was appropriate. Here, the Superior Court found that the trial court scrutinized the studies cited by plaintiff’s experts, assessed their scientific relevance and validity, and then arrived at its own conclusion whether the expert’s reliance upon them was scientifically acceptable. In doing so, the Superior Court determined that the trial court impermissibly set itself up as a “super expert” in the field of medicine, which is beyond the purview of Frye. Instead, the Court found that the scientific literature, in the aggregate, supports a causal relationship between long-term pesticide exposure and leukemia, such as AML. Thus, the court held that for purposes of Frye, an expert need not rely on studies that mirror the exact facts under consideration. It is sufficient if the synthesis of various legitimate studies reasonably permits the conclusion reached by the expert. The absence of a treatise or study directly on point goes to the weight, not the admissibility, of expert opinion. An expert’s opinion will satisfy Frye when it is deduced from generally accepted scientific principles and supported by studies or literature, even where the expert could not point to one study involving parallel circumstances. The Court further held that since Frye is an exclusionary rule of evidence, “it must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.” Therefore, the Court reversed the trial court’s decision and remanded for further proceedings.

In an effort to combat identity theft, the Federal Government has begun issuing new Medicare cards to all Medicare recipients. In 2015, the Medicare Access and CHIP Reauthorization Act required that the Center for Medicare & Medicaid Services (“CMS”) remove Social Security Numbers from Medicare cards by April 2019. The new cards will automatically be mailed out. Once you receive your new card, you should destroy your old card and begin using the new card. The new cards remove your Social Security Number (“SSN”) from the cards and replace that with a new Medicare Beneficiary Identifier (MBI) Number. The new numbers, which are 11 characters in length, are made up from a unique random combination of both numbers and letters. The MBI uses the numbers 0 through 9 and all the letters in the alphabet except S, L, O, I, B and Z, which are never used. Be on the lookout for scams. Medicare will never call you uninvited and ask that you provide personal or private information to obtain a new Medicare Number or card.  According to the Medicare website, as of June 25, 2018 mailing out of the new MDI Cards has been completed in both Pennsylvania and West Virginia. Mailing to residents of Ohio is expected to begin soon. It is important to note that receiving a new MBI won’t change your Medicare benefits. You should begin using the new MDI as soon as you receive it when seeking medical care or treatment. The effective date on the new MBI is the same as the date on the old card, it is the date each beneficiary was or is eligible for Medicare. If you have other coverage such as a Medicare Advantage Plan, Prescription Drug Plan or Medicaid, you new MBI Card does not replace the card that you use from your plan. You should still use your existing plan card when you receive medical care or prescription. However, you’ll need your new MBI Card if you want to join, leave, or switch to a different plan. You may also be asked to show your new MBI Card if you require hospital services. Always remember, never give your new MBI to anyone other than your doctor, pharmacists, other health care providers, your insurer or people you trust to work with Medicare on your behalf.

Trial is under way for a 46-year-old Californian father of two, Dewayne Johnson, who is dying of cancer and suing U.S. agrochemical giant Monsanto, in the first lawsuit of its kind claiming Monsanto’s popular herbicide 'Roundup' causes cancer. Mr. Johnson alleges he developed non-Hodgkins lymphoma, a type of blood cancer, from his contact with and exposure to Roundup, which he used for two years from 2012 as a groundskeeper for the Benicia school district near San Francisco. Mr. Johnson alleges that Monsanto hid the product’s dangers from him and the public-at-large. His case could have sweeping ramifications for Monsanto and the hundreds of other people throughout the country making similar claims. If Mr. Johnson is successful in his suit, Monsanto could face massive losses should it have to pay out damages over its Roundup products, whose main ingredient is glyphosate, a substance which some say is dangerously carcinogenic. Thousands of lawsuits targeting Monsanto are currently proceeding through the US court system. Mr. Johnson’s case was expedited because he currently has only a few months to live. The carcinogenic nature of Roundup has been the source of seemingly endless debate among government regulators, health experts and lawyers. The International Agency for Research on Cancer—a World Health Organization body—has classified glyphosate, widely used throughout the world, as "probably carcinogenic." The European food safety and chemicals agencies have so far not followed suit. A US Department of Health study has suggested its toxicity is limited. Monsanto, of course, remains steadfast in its denial of any link between disease and glyphosate, claiming that "ore than 800 scientific studies, the US EPA (Environmental Protection Agency), the National Institutes of Health and regulators around the world have concluded that glyphosate is safe for use and does not cause cancer.” However, Monsanto was also caught ghostwriting scientific studies to show that Roundup does not cause cancer. So now the issue heads to the American public. Mr. Johnson’s case is one to keep an eye on and could have significant ramifications on the Monsanto and the pesticide industry as a whole. If you or a loved one have developed cancer you believe may be caused by exposure to Roundup, you should contact an experienced attorney right away to discuss your options.

In Berg v. Nationwide Mutual Insurance Company (NMIC), a Pennsylvania Superior Court panel that agreed to reconsider its decision to vacate a high-profile $21 million verdict has largely reinstated the result in a new, only slightly revised, opinion. On September 4, 1996, Plaintiff, Sheryl Berg was driving her “leased” 1996 Jeep Grand Cherokee when she was hit by another vehicle. NMIC’s first damage estimate concluded that Berg’s vehicle should be “totaled” at a value of $25,000. NMIC sought a second estimate, which concluded that the vehicle could be repaired with a cost saving of half the expense. The repair process took four months to complete. Berg drove the vehicle under protest for almost two years claiming that it was not crashworthy. When Berg satisfied her lease payments, NMIC determined that the vehicle was “totaled” and paid the bank $18,000.00 to settle the claim and obtain ownership of the vehicle. Berg sued NMIC and the dealership (Lindgren) for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), and insurance bad faith. The jury awarded Berg $1,925.00 in compensatory damages from Lindgren and $295.00 from appellant for the UTPCPL violation. The second phase, a bench trial on UTPCPL treble damages and bad faith, resulted no treble damage award, and a directed verdict in favor of NMIC on the bad faith claim. Berg appealed, the Superior Court then dismissed the appeal on a procedural issue, but the Supreme Court reversed the Superior Court’s decision and remanded the case back to the Superior Court for disposition. After remand, the Superior Court concluded that the trial court erred in directing a verdict on plaintiffs’ bad faith claim. Berg v. Nationwide Mut. Ins. Co., Inc., 44 A.3d 1164 (Pa. Super. 2012) (“Berg II”) and remanded the case for a new trial on the bad faith claim. During the second trial, Berg argued, and the trial court found, that NMIC acted in bad faith by repairing the Jeep rather than declaring the Jeep a total loss and compensating Berg for its value at the time of the loss. While the parties agreed that Lindgren did poor repair work, they disputed NMIC’s role in and knowledge of the faulty repair job. In summary, the parties disputed (1) whether NMIC overrode Lindgren’s initial total loss appraisal in order to save money; (2) whether NMIC forced Lindgren to repair the Jeep knowing the Jeep could not be restored to its pre-accident condition; (3) whether NMIC allowed Lindgren to return the Jeep to Berg knowing the Jeep was not crashworthy and therefore not safe to drive; and (4) whether NMIC’s subsequent conduct—including its conduct of this litigation—was an elaborate cover-up of its prior bad faith conduct. Ultimately, the court ordered NMIC to pay $18 million in punitive damages and $3 million in attorney’s fees. Relative to the first issue, the Superior court concluded that the evidence did not support the trial court’s finding that NMIC vetoed the total loss appraisal. Industry standards provided for second opinions following total loss estimates. Addressing the second issue, the Superior Court determined that the record, viewed in a light most favorable to Berg did not support a finding by clear and convincing evidence, that the Jeep was beyond repair. In fact, the majority of the evidence showed that the Jeep was repairable. With respect to the third issue, while the Superior Court determined that the record supported the trial court’s finding that the vehicle was not crashworthy, it did not support the finding that NMIC knew this fact and acted with reckless disregard of its obligations to its insured in permitting Lindgren to return the Jeep to Plaintiffs. More specifically, the Court found that the record contained no evidence that the extent of the faulty repairs would have been evident during a visual inspection when the repairs were nearly complete, much less that NMIC knew or should have known about the faulty repairs. Finally, the Court concluded that the record did not support a finding that NMIC failed to attempt to resolve the dispute in the early stages of litigation, or that it refused to have the Jeep repaired or purchased. The facts were that NMIC offered to repair the Jeep to make it crashworthy, or they would purchase it. In addition to reversing the trial court, the Superior Court took exception to the trial court’s dissertation, which provides: hat laintiff, and more importantly, what lawyer in his right mind will compete with a conglomerate insurance company if the insurance company can drag the case out 18 years and is willing to spend $3 million in defense expenses to keep the policyholder from getting just compensation under the contract. Its message is 1) that it is a defense minded carrier, 2) do not mess with us if you know what is good for you, 3) you cannot run with the big dogs, 4) there is no level playing field to be had in your case, 5) you cannot afford it and what client will pay thousands of dollars to fight the battle, 6) so we can get away with anything we want to, and 7) you cannot stop us. The Superior Court reaffirmed that the question before the trial court was whether Berg proved, by clear and convincing evidence that NMIC acted in bad faith in this case. Cost containment measures employed by the insurance industry in general have no bearing on whether NMIC committed bad faith in this case. The dissent highlighted that the Superior Court is required to affirm the trial court as the finder of fact if there is sufficient evidence in the record to support its findings. The dissent determined that the trial court provided citation to ample evidence from the record to support its verdict and damage award in favor of the Bergs. Thus, the dissent declined to vacate the verdict because it believed the majority usurped the fact-finding power of the trial court by its own interpretation of the factual and testimonial evidence.

This past April, for the first time, the Food & Drug Administration (“FDA”) approved a kit to test for breast cancer risk that consumers can purchase “over the counter” without having to go through their doctor first. Offered by 23andMe, which is best known for its ancestry DNA testing, the kit involves taking a saliva test to identify three genetic mutations associated with increased breast cancer risk. The FDA warned that the particular mutations tested affect only a limited number of people and that the kit should not be used as a substitute for regular medical screenings. However, the FDA’s decision is the first step in the availability of direct-to-consumer genetic tests, and what better way to start than with breast cancer. On average, 1 in 8 women in the United States will be diagnosed with breast cancer. It is estimated that a woman is diagnosed with breast cancer every two minutes. Sadly, it is also estimated that a woman dies of breast cancer every 13 minutes. While breast cancer is most commonly diagnosed in women, it can also affect men. Statistics show that an estimated 2,470 men are diagnosed with breast cancer each year. For women, the 23andMe test kit produces a report which describes if she is at an increased risk of developing breast cancer and/or ovarian cancer. For men, it describes if he is at an increased risk of developing breast cancer and/or prostate cancer. However, again, the test only detects three out of more than 1,000 known mutations. “ negative result does not rule out the possibility that an individual carries other…mutations that increase cancer risk,” a press release issued by the FDA warned. Moreover, most cases of cancer are not caused by hereditary gene mutations but are thought to be caused by other factors such as smoking, obesity and other lifestyle factors.

A Los Angeles jury delivered a $25.7 million verdict against Johnson & Johnson last week in a lawsuit brought by a 68-year-old woman and long-time user of J&J’s talcum baby powder. The jury ordered J&J and its talc suppliers to pay $21.7 million compensatory damages, and $4 million in punitive damages. J&J was assigned 67 percent responsibility, with the rest distributed among other defendant suppliers of talc. Over the past several years, Johnson & Johnson has had a number of high-dollar verdicts against it for the manner in which it marketed and distributed its talcum-powder containing products while failing to disclose known health hazards associated with talc exposure. Talc is a mined mineral that is often found intermingled with seams of asbestos, which is believed to contaminate the talc. J&J is battling some 6,000 cases nationwide, most of which center on claims that its talc powder products caused ovarian cancer, but last week’s decision highlights the new focus talc litigation has taken on in recent months with plaintiffs claiming the widely used product causes mesothelioma – a terminal cancer strongly associated with asbestos exposure. Last week’s verdict marks the second mesothelioma trial loss in two months against J&J over allegations that its talc-based products contain asbestos. In April, a New Jersey state court jury ordered J&J and its talc supplier to pay $117 million to a man who alleged he developed mesothelioma due to asbestos exposure from J&J baby powder. J&J has appealed that decision. But mesothelioma is very strongly associated with exposure to asbestos, to the exclusion of nearly every other possible cause. And for mesothelioma victims that have no known occupational or traditional product exposure to asbestos, talcum powder exposure is a relatively novel, but potentially very real cause. If you have been diagnosed with mesothelioma, you should contact an experienced attorney right away to learn more about your rights.