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Just recently, in Commonwealth v. Mangel, 2018 Pa. Super. 57, the Pennsylvania Superior Court, ruled, at least in the context of a criminal case, social media posts could not be admitted into evidence without first a demonstration of proper authentication. In other words, the party offering the social media post must show proof of authorship. In 2016, Tyler Mangel was charged with aggravated assault after allegedly assaulting Nathan Cornell at a graduation party.  Cornell told police that he was struck in the back of the head, knocked to the ground, and was repeatedly kicked and punched by Mangel. Cornell stated that he did not know Mangel, nor had he been in contact with them during the course of the night, but he was able to identify him through Facebook pictures. In 2017, the trial court granted the Commonwealth’s Motion for Provider to Provide Subscriber Information, pursuant to 18 U.S.C. § 2307(c) and 18 Pa.C.S.A. § 5743(c) and (d), seeking to obtain Mangel’s Facebook records. Upon acquiring this information, the Commonwealth filed a Motion in Limine to introduce screenshots of certain pages of a Facebook account for “Tyler Mangel,” consisting of undated online and mobile device “chat” messages, and a Facebook screenshot wherein a photograph of purportedly bloody hands had been posted. In support of its motion, the Commonwealth presented the testimony of Erie County Detective Anne Styn, a computer forensics expert. Styn reviewed Facebook screenshots, including photographs, captured from online and mobile device chats of Tyler Mangel’s account taken by Trooper Schaeffer of the Pennsylvania State Police, one of which read “If all that you leave is a scratch you know you’re a bitch.” The account information showed the owner to be Tyler Mangel from Meadville, Pennsylvania. Moreover, Styn’s independent Facebook search revealed only one account for “Tyler Mangel;” the username associated with the account was “Mangel17;” and, the registered email addresses were mangel17@facebook and tylerkm@hotmail.com. Finally, the Facebook subscriber records indicated that the Facebook account had been verified by the cell phone number (814) ***-4409. Styn then obtained the Verizon subscriber records associated with this phone number, which identified the owner of the number as “Stacy Mangel,” residing at 10866 Pettis Road, Meadville, Pennsylvania. The trial court took judicial notice of the fact that this particular address was the same as the address listed in the Criminal Complaint filed against Mangel. Based upon the foregoing, it was Styn’s opinion that the Facebook account owner “should be the same” as the online and mobile accounts provided by the Commonwealth. However, Styn could not say to within reasonable scientific certainty that someone else did not intervene or grab the account.   The defense then introduced a screen shot of his Facebook investigation, which showed five accounts bearing the name, “Tyler Mangel,” one of which listed Meadville, Pennsylvania, as the hometown. Based upon the foregoing, the court denied the Commonwealth’s motion. Because the social media posts were critical to the Commonwealth’s case, the Commonwealth appealed the decision claiming that the trial court erred by applying “a reasonable degree of certainty, reliability, scientific, technological certainty” standard in determining whether the Commonwealth had satisfied the requirements for authentication of the proffered Facebook records. The Commonwealth argued that this case was analogous to United States v. Browne, 834 F.3d 403 (3d Cir. 2016), wherein the United States Court of Appeals for the Third Circuit examined the issue of the authentication of social media evidence and applied a “preponderance of the evidence” standard for authentication of Facebook records. Pennsylvania Rule of Evidence 901 provides: authentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient.  Evidence that cannot be authenticated by a knowledgeable person may be authenticated by circumstantial evidence. In United States v. Browne, the United States Court of Appeals for the Third Circuit addressed the authentication of Facebook chat logs in connection with under age sex crimes and concluded that the Facebook records were properly authenticated under F.R.E. 901. The Browne Court relied upon a substantial amount of circumstantial evidence to determine that the government had provided sufficient evidence from which the jury could reasonably find the authenticity of the records by a preponderance of the evidence. Rather than relying on Browne, the Superior Court reviewed the cases of Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) and Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), wherein the courts considered the authentication of computerized instant messages and cell phone text messages. In F.P., the defendant did not deny that he sent text messages threatening F.P., and he referred to himself by his first name in one of the texts. The court concluded that sufficient circumstantial evidence existed to authenticate the records. In Koch however, while the defendant admitted to owning a cell phone, which contained text messages indicating drug sale activity, the Commonwealth’s detective admitted that he could not confirm that the defendant was the author of the text messages. The Koch court ruled “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender is required.” Thus, the testimony of the detective was insufficient to authenticate the text messages in question, noting that there was no testimony from any person who had sent or received the text messages, nor any contextual clues in the drug-related text messages that tended to reveal the identity of the sender. Relying on Koch, the Superior Court found that the Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages. While this was a criminal case, it is reasonably anticipated that the same rule would be applied to civil cases going forward.

For all the negative ideas coming out of Charleston during the recent legislative session, there was one small victory for mineral owners. Some of you might be aware that the West Virginia Supreme Court recently held a rehearing of one of its prior decisions, EQT v. Legget, and determined that oil and gas operators would be permitted to subtract post-production costs from old “flat-rate” royalty leases which had been modified by the minimum royalty statute. Years ago, there were many oil and gas leases which did not pay mineral owners a percentage of proceeds for their royalty, but instead paid pre-set flat fee- for example $300 per year after a well was drilled. Ultimately, the West Virginia legislature passed a statute which required minimum royalties of 12.5%. Old “flat-rate” leases were grandfathered into the new law unless the operator needed to alter their permit.  After the permit was altered, those old leases had to meet the 12.5% royalty requirement. Could the oil and gas operator subtract post-production costs from that minimum 12.5% royalty under the statute? Originally the West Virginia Supreme Court said no. A change in the make-up of the Court after the most recent Supreme Court elections enabled the new majority to rehear that decision and change their ruling. The new Court decided that it would allow post-production costs to be deducted from those 12.5% statutory leases. This year, however, Senate Bill 360 changed that. The bill passed both houses and was signed by the governor on March 9, 2018. The new law specifically altered the language of W.Va. Code § 22-6-8(e) to state that payments under the statute should be based on “the gross proceeds, free from any post-production expenses.” This does provide some protection to mineral owners, but there are still questions. The statute includes language referencing the “first point of sale” which still might be used to limit the monies ultimately payable to mineral owners.   Oil and gas operators might try to create earlier markets for gas such that the “price” that they receive is lower and ultimately lower royalties are paid to landowners. The concern is that these oil and gas operators might still obtain their value for the gas through other contractual and business relationships with the “third parties” who buy the gas. In any event, in a legislative session which seemed intent on continuing to protect big business, and the oil and gas industry in particular, there was one small victory and perhaps something that can be built upon moving forward. The new law, however, does not fully protect other landowners from the dangers of post-production costs. The oil and gas companies are continuing their assault on landowners by trying to milk every last cent of costs from the landowner’s royalty share. Landowners are losing as much as 50-60% of their royalty payments to these costs. If you have concerns about the nature and types of costs being deducted from your royalty checks, please do not hesitate to contact us!

Pennsylvania Superior Court orders new trial in landmark products liability case: Tincher v. Omega Flex The Tinchers lived in the central unit of a two-story triplex. In 2007, a fire erupted in their home. Investigators later determined that a nearby lightning strike caused a small puncture in corrugated stainless steel tubing (“CSST”) that transported natural gas to a fireplace located on the first floor of the residence. Heat associated with the melting of the CSST caused by the lightning strike ignited the natural gas and fueled a fire estimated to have burned for over an hour before it was discovered. No one was injured in the fire, but the fire caused significant damage to the Tinchers’ home and personal contents. The CSST installed in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas transportation system marketed as the “TracPipe System.” The Tinchers sued Omega Flex, asserting claims premised on theories of strict liability, negligence, and breach of warranty. The strict liability claim was based on section 402A of the American Law Institute’s Restatement (Second) of Torts (1965), which provides: One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The Tinchers alleged that “the CSST incorporated into the TracPipe System was defective, and unreasonably dangerous to intended users, because its walls are too thin to withstand the effects of lightning.” Omega Flex moved to have the trial court apply Sections 1 and 2 of the Third Restatement of Torts: Products Liability (1998) and to deliver jury instructions based on the Third Restatement, rather than the Restatement (Second) of Torts. The Tinchers responded that the Second Restatement remained the law of Pennsylvania and the court, therefore, should base its jury instructions on the Second Restatement and the Supreme Court’s decisions under that Restatement, including Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). In Azzarello, the Court had held that: it was improper to introduce negligence concepts into a strict liability case; it was for the court, not a jury, to determine whether a product was “unreasonably dangerous” under the Second Restatement; the dispositive question in a case alleging that there was a defective design was whether the product is safe for its intended use; and in such a case, “the seller is the ‘guarantor’ of the product, and a jury could find a defect ‘where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.’” The trial court denied Omega’s motion and instructed the jury under the Second Restatement and Azzarello. The jury returned a verdict in favor of the Tinchers on the products liability claim and in favor of Omega Flex on the negligence claim. The jury awarded the Tinchers more than $950,000 in damages. After adding delay damages, the court entered judgment in excess of one million ($1,000,000.00) dollars. Omega’s appeal ultimately reached the Pennsylvania Supreme Court to determine whether the Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement. The Supreme Court declined to adopt the Third Restatement, overruled Azzarello, and crafted a new test for proving whether a product is in a defective condition under Section 402A of the Second Restatement of Torts: The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The Supreme Court remanded this case to the trial court for “further action upon post-trial motions,” and permitted the trial court to order the filing of supplemental post-verdict motions or briefs on the issue. The Supreme Court did not specifically grant a new trial. On remand to the trial court, Omega Flex filed a renewed motion for post-trial relief in which it abandoned its request for entry of judgment notwithstanding the verdict and sought only a new trial on the basis that the jury was instructed on the law under Section 402A of the Second Restatement of Torts and Azarello; and therefore, was improper in accordance with the Supreme Court’s decision . The parties submitted additional briefs, and the trial court held oral argument. Ultimately, the trial court denied Omega Flex’s motion, and it entered judgment against Omega Flex. In denying Omega Flex’s motion, the trial court recognized that the predominant factual issue in the case was whether the corrugated stainless steel tubing was defective because of its inferior thickness (equal to the thickness of four sheets of paper), rendering it incapable of withstanding perforation by an electrical arc produced by lightning. The court further held that if the jury instruction it gave in this case required a new trial, the Supreme Court would have simply remanded this case for a new trial. Omega appealed and the issue for the Superior Court was whether the trial court erred by denying Omega’s motion for a new trial. The Superior Court determined that there was a “fundamental” error in the trial court’s decision because the trial court instructed the jury in accordance with Azzarello and its progeny, Omega was entitled to a new trial. More specifically, the court noted that the jury was instructed only on whether TracPipe was defective under Azzarello’s now-overruled design defect test, and not on the new definition of “defect” under Tincher, and thus a new trial was required.

Last week a western Pennsylvania federal judge took the extraordinary step of sanctioning two lawyers from the Community Environmental Legal Defense Fund, for trying to stop the development of a fracking wastewater injection well in Grant Township by Pennsylvania General Energy, an oil-and-gas exploration company. Under PGE's proposal, the well, which received EPA approval in 2014, would become a busy industrial site, allowing 42,000 gallons of toxic and radioactive fracking wastewater to be injected each day into a layer of rock 7,500 feet beneath the community. For the past six years residents have successfully fought off the project with the help of CELDF, in large part by adopting a local ordinance that granted residents the right to self-government, and granted legal rights to nature. However, that tact appears to have come to an end for now as the court, in its recent ruling, called CELDF's legal tactics “implausible.” Judge Susan Paradise Baxter, of the U.S. District Court for the Western District of Pennsylvania called the self-government approach “unreasonable under any circumstance” as creating “enormous expense to parties” and imposing “taxes” on limited judicial resources. Judge Baxter then ordered CELDF executive director Thomas Linzey and CELDF attorney Elizabeth Dunne to pay $52,000 to Pennsylvania General Energy. Not only that, but these attorneys are also facing possible suspension or even disbarment as the Judge’s ruling will be passed along to the Disciplinary Board of the Pennsylvania Supreme Court, “to determine appropriate disciplinary measures.” CELDF's work has long been centered on protecting the rights of communities and the environment, and lessening the power of corporations. Judge Baxter's ruling seemingly deals a substantial blow, not only to CELDF’s approach, but to the very idea that people should have the right to control what goes on in their communities. This ruling is another boon to corporations’ longstanding philosophy of privatizing profits while dumping the inconvenient realities of its profit-generating activities on the commons, in this case greenlighting PGE’s foisting of its highly toxic waste onto the Grant Township community. Unsurprisingly, the Pennsylvania Independent Oil and Gas Association, a powerful industry lobbying group that intervened in the Grant Township for PGE, is emboldened by the court's decision and hopes that it has the type of chilling effect that will allow them to operate without impunity. But CELDF is not done yet. It will appeal the decision with the Third Circuit Court in Philadelphia. This is an appeal to keep an eye on. It is a fascinating examination of the dichotomy between the rights of citizens to have control over their local environment versus the power of corporations to do whatever it takes to maximize their bottom lines. For now, the Court has made its position clear, but the fight goes on.  Stay tuned.

Parents with young daughters like me have most likely been dragged into Justice, a popular retail store for girls and teens selling bright colored clothing, flavor-of-the-month trinkets and stuffed animals, costume jewelry and make-up. But a recent investigation by an ABC News affiliate reveals that all that glitters at Justice is far from gold. Scientific testing undertaken as part of the ABC investigation alarmingly demonstrated that Justice’s “Just Shine Shimmer Powder” make-up contains four heavy metals, including lead, in the makeup that can be toxic to humans in sufficient doses. However, perhaps the most troubling finding was that the "Just Shine Shimmer Powder" also contains significant quantities of asbestos! Lead researcher Sean Fitzgerald commented, "I would treat like a deadly poison, because it is." Indeed, asbestos is known to cause certain types of terminal cancers in all humans and is dangerous for anyone to consume. Asbestos-caused diseases can take decades to develop and once the fibers get into the lungs or body, they remain permanently, altering the cellular make-up of the human body. There is no recognized safe exposure level. As Fitzgerald correctly recognized, "n this powder designed for children, they could die an untimely death in their thirties or forties because of the exposure to asbestos in this product." Asbestos contamination of cosmetic products has been a long-running concern in this country, because these products typically contain talc. Because talc is dug from the ground, it can keep some very hazardous company - namely asbestos, which is often intermingled with talc. The U.S. Food and Drug Administration has long been concerned about asbestos contamination of cosmetic talc, but has allowed the manufacturing industry to self-police potential asbestos contamination. This decision has proven problematic since the U.S. imports large volumes of talc from countries, like China and Pakistan - two of the biggest suppliers, with notoriously lax safety regulation. As with most other imports, no government agency keeps track of who buys the talc, or how it is used. And these are precisely the circumstances that have likely resulted in an untold number of young girls being exposed to possible asbestos contamination from the Just Shine Shimmer Powder. Justice targets that age group where girls start to experiment with make-up, and in my experience, that is a stage where girls tend to overapply and use a lot of make-up because it’s fun to apply and play grown up. Arguably this demographic is among the greatest at risk for asbestos exposure from cosmetics.  For Justice to allow this product to be sold in its stores, apparently, without taking any steps to determine that it was safe for the young girls to whom it was marketed is deplorable.  Justice has since pulled the product from its shelves, but it remains to be seen just how many people were unwittingly exposed. If you have this product in your home, please contain and dispose of it, and please help spread the word to other parents and children in your networks.

Monsanto is in the news again for all the wrong reasons. Most recently, a federal judge in San Francisco unsealed Monsanto’s internal emails and emails to and from federal regulators indicating that Monsanto ghostwrote research on its controversial Roundup weed killer compounds, then passed it off as research from independent academics. These communications also show that Monsanto worked with senior officials at the EPA to quash a review of glyphosphate, Roundup’s main toxic ingredient, by the U.S. Department of Health and Human Services. Among the email gems was those written by a Monsanto executive, giving his colleagues the green light to ghostwrite glyphosate research and then hire academics to put their names on the papers as Monsanto had done in the past, saying "e would be keeping the cost down by us doing the writing and they would just edit & sign their names so to speak.” Another one from a Monsanto executive, to an EPA official who was heading the cancer risk evaluation of Roundup, stated that "If I can kill this, I should get a medal." The Roundup evaluation never happened. The point of such efforts was undoubtedly to mislead the American public into believing that Round-Up won’t give them cancer, despite a host of truly independent research suggesting that glyphosphate is a probable human carcinogen. In addition to its potential cancer-causing properties, Roundup has also been linked to a host of other health issues such as ADHD, Alzheimer's disease, kidney disease, liver disease, reproductive problems and birth defects, as well as environmental impacts, such as the record decline of monarch butterflies to the point of extinction. A 2014 study conducted by the U.S. Geological Survey detected the presence of Roundup in 75 percent of air and rainfall test samples taken from the Mississippi Delta, a fertile agricultural region. The International Agency for Research on Cancer (“IARC”) published their monograph on glyphosate, the main ingredient in Roundup, and classified it as "probably carcinogenic in humans" (category 2A) based on epidemiological studies, animal studies, and in vitro studies. IARC is a division of the World Health Organization, and an independent body of scientists that adheres to the strictest scientific methodology in coming to its determinations regarding carcinogens.  Moreover, a case-controlled study published in 1999 by Swedish scientists Lennart Hardell and Mikael Eriksson showed that non-hodgkin’s lymphoma (NHL) is linked to exposure to a range of pesticides and herbicides, including glyphosate. Prior to the 1940s, non-hodgkin’s lymphoma was one of the world’s rarest cancers. Now it is one of the most common. Between 1973 and 1991, the incidence of non-hodgkin’s lymphoma increased at the rate of 3.3 percent per year in the United States, making it the third fastest-growing cancer. In Sweden, the incidence of NHL has increased at the rate of 3.6 percent per year in men and 2.9 percent per year in women since 1958. Fake news is bad enough, but fake science represents an entirely different level of deceit. People have the right to choose food that has been produced without poisonous herbicides. Monsanto has repeatedly fought against truthful labeling regarding the food we are being sold, but its willingness to fake scientific studies represents a new low. If you or your loved ones have contracted non-Hodgkin’s lymphoma and were exposed to Roundup or other glyphosphate-containing products, you should contact a qualified attorney to explore your rights.

When his senior year came to an end, my oldest son, Ryan, decided he would go to WVU to fulfill his dream of becoming an anesthesiologist. However, coming from a very close knit family posed some problems for Ryan.  When he got to college, he was lost.  He didn’t know how to handle being out in the big wide world, let alone at one of the most reputable party universities.  Needless to say, he did not fare well with the college life.  Although he made it through one year of school, he decided he didn’t want to attend a university or go away from home for school.  So, he went to WVNCC.  Now, as a parent, I had very mixed feelings about this decision.  I was excited he would be back in our home, but in the same breath, I knew he needed to learn to be on his own.  When I found out about half way through the first semester at WVNCC that he was skipping classes and was failing, I sat him down and had a little talk with him.  My speech basically consisted of something along these lines: I don’t care what you decide to do with your life, because essentially, it is your life and you’re the one that has to be happy with your choices.  You’re intelligent, things come easy for you and you have a memory beyond anyone’s wildest beliefs.  Why you can’t see this and become what you’ve always wanted to be is beyond me.  You have the ability to do or be anything you want.  No matter what you decide to do with your life, I will always be very proud of you. However, you cannot live with mom and dad for the rest of your life. Now, I didn’t realize this little speech of mine would have such an impact. Apparently it did, though, because within a month or so he told me had had joined the United States Air Force!  WAIT…WHAT!!!! Ryan had never spoken of the military that I can remember.  It was never a thought or option.  This came completely out of the blue and was the biggest shock and surprise of our entire family’s life.  Thank you to all the men and women who have served and continue to serve our country.

We have all seen the ads. You’re sitting there, watching afternoon or late-evening television when it comes across your screen. That generic, print-only with the back-ground typewriter sound, ad that says “Mesothelioma is a serious disease.  If you have been diagnosed with Mesothelioma and worked around asbestos, you may be entitled to compensation.”  “Call this 1-800 number.”  Sure, there are many variations on these ads, but that is always the gist of them. Fortunately for most of us, these ads are simply background filler while we wait for our programs to return. But for those who have been diagnosed with an asbestos-caused disease, either mesothelioma, lung cancer or asbestosis, these commercials often take on particular importance, and numerous victims write down that 1-800 number that flashes across their screen and call it. And often-times, doing that proves to be a critical and costly mistake that they and their loved ones come to regret. You see the people running these ads are not actually law firms, but instead glorified, out-of-state marketing firms who hope they can get asbestos victims to sign contracts and then farm their case out to some other out-of-state law firm thousands of miles away with whom these marketing firms have cut a deal to share in the proceeds of the claim with the out-of-state law firm. This process, while legal, can result in substantial problems for asbestos victims and their families that can add unnecessary stress and inconvenience to an already terrible situation and often cost these victims substantial amounts of compensation to which they and their families would otherwise receive. To ensure the best possible outcome, it is critical for an asbestos victim to have a law firm that can provide direct, specialized, local attention to a victim’s claim. There are many reasons for this, and I could spend pages discussing them, but chief amongst them is the seriousness of the disease.  Tragically, asbestos victims can often become critically ill or even die shortly after being diagnosed.  To successfully litigate an asbestos claim, it is essential that the victim give sworn testimony about his work history and the asbestos-containing products to which he was exposed.  If an asbestos victim dies before providing that testimony, because they are represented by some law firm in Texas who has no idea what the day-to-day, on-the-ground situation is with their client for instance, that critical evidence can vanish forever, along with their and their loved ones’ lawsuits. In my experience in asbestos litigation, I have seen this happen many times over the years where out-of-state firms are involved. Sometimes, asbestos victims are already hospitalized, and require their lawyer to visit with them in the hospital to obtain critical information necessary for their case. That’s not a big deal for a local firm. But for an out-of-state lawyer, if they can even be bothered to come at all, they must travel here to meet with their client, which requires substantial planning and oftentimes flying to West Virginia or at least flying close enough to drive the rest of the way. And that additional and unnecessary delay can often cost a victim their claim. Another important reason, in addition to ensuring that the evidence necessary to prove the case is handled correctly, to “buy local” is that West Virginia asbestos attorneys also provide a significant advantage in having formed relationships with the lawyers who repeatedly defend the companies involved in all asbestos claims and the Court who hears these lawsuits. In West Virginia, all asbestos claims get consolidated before the Circuit Court of Ohio County, who holds asbestos trials multiple times throughout each year. There are always more cases pending than the Court can hear at any one time, so the Court has established certain procedures and protocols to ensure that asbestos-victims have equal access to West Virginia’s legal system to litigate their rights and claims. Having a local lawyer who understands the inner workings and nuisances of this unique system also provides a significant advantage to making sure that your asbestos claim gets the due attention it deserves. It is also important to understand that, even if you signed up with some out-of-state firm for one type of asbestos-related condition, you are not stuck with that firm if you go on to develop one of the more serious asbestos-caused diseases, like malignant mesothelioma or lung cancer.  In West Virginia, people who go on to develop malignant conditions have a new claim and are free to choose any law firm they want to represent them in that new claim. The reason we are constantly bombarded in West Virginia with these generic asbestos TV commercials is because asbestos-caused diseases are very serious conditions that often result in substantial compensation for the victims and their families, deservedly so. And these big law firms spend tens, if not hundreds of thousands of dollars all over the country trying to get as many of these cases as possible, whether they have any idea about the proper way to handle them in any given county or state. And with hundreds or thousands of claims in the office, most often there simply isn’t time to give due attention to the day-to-day requirements of any one case to ensure the maximum success for that case.  That big law approach might be OK for some types of cases, a company selling half-full printer cartridges for full price for instance. But that approach can prove critically problematic, or even fatal, to asbestos claims.  So, I strongly urge all of you with any historical contact to West Virginia who end up suffering from an asbestos-related disease to strongly consider a West Virginia lawyer to handle your claim.

This blog is directed to those men and women who have worked around products containing asbestos and who were exposed to the various diseases that are caused by that exposure, as well as the families of those workers who may have contracted asbestos-related diseases as a result of having been around their loved ones as they brought these asbestos particles home from work. The majority of the people who suffer from asbestos-related diseases, such as mesothelioma, are in the trades and labors. One of the most problematic and dangerous effects of asbestos is mesothelioma. Malignant mesothelioma is a rare form of cancer which may originate in the protective lining that covers the organs in the abdomen and chest. Unfortunately, there are around 4,000 people diagnosed each year in this country with mesothelioma. This thing called mesothelioma is not limited to any one race or gender, nor is it limited to young or old. It covers all the bases. The primary risk factor for contracting mesothelioma is the individual’s exposure to asbestos. Although some in the scientific field believe that even a single exposure to asbestos may cause serious medical problems, as a general rule, those who are most at risk are the individuals who have repeated exposures to asbestos for long periods of time. In addition to the people who suffer from “meso” who worked around asbestos products, their family members may also be at risk. Others who have been diagnosed with “meso” may have been exposed at their home or place of employment during renovation projects. The mesothelioma symptoms often don’t occur until 20-60 years after exposure to asbestos. The average latent period is 32 years after the initial exposure according to the National Institute of Health. In other words, a mesothelioma victim is often times exposed to asbestos 20-60 years before the diagnosis of mesothelioma is made. Symptoms of mesothelioma may be a painful cough, shortness of breath and weight loss. If you have those symptoms, then you’ll need to see an appropriate doctor. A competent physician suspecting that you may have some disease of the lungs or heart will, in all likelihood, order chest x-rays, CT Scans and perhaps biopsies. If you are unfortunate enough to be diagnosed with mesothelioma, then you would, in all likelihood, be provided with treatment options such as chemotherapy, radiation therapy and surgery. The purpose of chemotherapy is basically to shrink the tumor before surgery to make it easier to remove all the cancer, or to shrink the tumor before radiation therapy so the treatment area is smaller, thus subjecting the patient to less radiation. Sometimes after surgery, a doctor may feel that radiation therapy is necessary in an effort to try to kill any cancer cells that may have been left behind. The purpose of the surgery and the radiation therapy is to attempt to prevent the cancer from coming back. When arranging your treatment with your mesothelioma doctor, you should be prepared to ask the doctor a number of questions, including the following: What type of mesothelioma do I have? What is the treatment that you are recommending? What is my prognosis? Are there medications available to me as opposed to surgery and radiation? What will my lifestyle be like from this point on? How much will this cost? Are there any clinical trials that I can be put in to further my chances for a better life? Finally, after you’ve met with your doctor, considered the type of mesothelioma that you are suffering from, decided on the treatment options and looked at insurance coverages and other ways to pay for the treatment, you may ask if there are any government or non-profit organizations that could help. The answer is yes, and you might want to contact the Centers for Medicare and Medicaid Services by calling 1-800-MEDICARE or 1-800-633-4227; the Social Security Administration at 1-800-772-1213; the Veteran’s Health Administration at 1-800-827-1000; the American Cancer Society, Patient Navigator Program, at 1-800-227-2345; Cancer Care at 1-800-813-4673; or the National Coalition for Cancer Survivorship.  All of these governmental agencies and non-profit organizations can be found at various websites, such as www.webmedicalcare.gov, www.medicare.gov, www.ssa.gov, www.va.gov, www.cancer.org, and www.cancercare.org. Finally, if the diagnosis of mesothelioma has been made, in addition to the medical, governmental and non-profit care that you will need, you may also need the help of one of the lawyers at our firm who can conduct an in-depth interview to determine whether you have a claim that will result in a monetary recovery as a result of your asbestos exposure that brought about the mesothelioma. There is plenty of blame to go around and there are still massive funds for compensation to asbestos victims!

In order to hold insurance companies accountable for unfair insurance claims practices, in 1990, the Pennsylvania legislature passed 42 Pa.C.S.A. § 8371, otherwise known as Pennsylvania’s “bad faith” statute, which provides: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: (1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%. (2) Award punitive damages against the insurer. (3) Assess court costs and attorney fees against the insurer. Pennsylvania’s general assembly did not define “bad faith” conduct, instead leaving the issue for the Pennsylvania judiciary to decide. Pennsylvania courts have repeatedly held that mere negligent conduct, however harmful to the interests of the insured, is not sufficient to show bad faith.  So what constitutes bad faith conduct?  Since 1994, Pennsylvania courts have relied upon the framework established by the Superior Court in Terletsky v. Prudential Prop. And Cas. Ins. Co. 437 Pa.Super 108 (1994), which requires a plaintiff to satisfy a two-part test to prove bad faith conduct.  To successfully sue an insurance company for bad faith, an insured must first show that the insurance company did not have a reasonable basis for denying benefits under the policy.  Once this is shown, the insured must then satisfy the second prong of the test and prove that the insurance company knew or recklessly disregarded its lack of reasonable basis in denying the claim. Rancosky v. Washington National Insurance Company The Rancosky case arose out of a cancer insurance policy, which provides benefits to an insured diagnosed with an internal cancer while the policy is in effect including, inter alia, cash benefits and payment of surgical, hospitalization and treatment costs.  In 2003, Ms. Rancosky was diagnosed with ovarian cancer and she attempted to collect benefits under the policy.  When a dispute arose, she filed suit alleging bad faith in the Court of Common Pleas of Washington County. The trial court entered judgment in favor Washington National Insurance Company finding that Ms. Rancosky failed to prove the first prong of the Terletsky test.  Specifically, the trial court ruled that Ms. Rancosky failed to prove that Washington National Insurance Company had motive or self-interest or ill-will in denying her claim for benefits.   Ms. Rancosky appealed to the Pennsylvania Superior Court, who disagreed with the trial court and remanded the case back to the trial court for a new trial on Ms. Rancosky’s bad faith claim.  More specifically, the Superior Court held that the trial court erred in applying the Terletsky because the trial court used the “motive of self-interest or ill-will” language as part of the first prong of the Terletsky test, not the second and that because of this error, the verdict could not stand. The Pennsylvania Supreme Court The Pennsylvania Supreme Court will address two (2) questions:  (1) Whether this Court should ratify the requirements of Terletsky v. Prudential Property & Casualty Insurance Co. for establishing insurer bad faith under 42 Pa.C.S. § 8371; and, assuming the answer to be in the affirmative, (2) whether the Superior Court erred in holding that Terletsky factor of a “motive of self-interest or ill-will” is merely a discretionary consideration rather than a mandatory prerequisite to proving bad faith? Comment The Supreme Court should ratify Terletsky and hold that factors of “motive of self-interest or ill-will” are discretionary considerations rather than a mandatory prerequisite to proving bad faith.  At a bare minimum, the Court should rule that reasonable inferences of motive of self-interest or ill will is sufficient to prove bad faith conduct.  This is true because insureds already face substantial obstacles in establishing a bad faith claim in Pennsylvania.  As stated above, proof of the insurer’s “careless” conduct is insufficient to establish a claim for bad faith.  Second, policyholders must prove bad faith by “clear and convincing” evidence, which is a higher burden of proof that the “preponderance of the evidence,” i.e. “more likely than not” standard typically used in civil damage lawsuits.  Lastly, it is often very difficult, if not impossible, to offer direct evidence of an insurance company’s motive of self-interest or ill-will as serving the sole basis for a bad faith claim.  However, there are occasions where the circumstances surrounding the insurer’s conduct substantially infers this level of intent.  The Pennsylvania Supreme Court has held that a defendant acts recklessly when his conduct creates an unreasonable risk of harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. Hutchison v. Luddy, 870 A.2d 766, 771 (Pa.2005).  In other words, an insurance company should be held accountable for conduct that it knows or should know is creating an unreasonable risk of harm to its insured and that such risk has a high degree of probability of occurring.

Tom Brady has given up on the appeals process with regard to his four game suspension to start the 2016-17 NFL season resulting from his involvement in the Deflategate scandal surrounding deflated New England Patriots footballs in the 2015 playoffs. However, the reasons behind his decision are likely strategic. If Brady had chosen to appeal the decision of the 2nd Circuit upholding his suspension, that appeal would be to the Supreme Court of the United States. The Nation's highest court rarely hears appeals. In fact, it does so in less than 1% of cases in which it is petitioned to do so.  The Court would not immediately consider whether it would hear the appeal. That decision would not likely come for months. However, here is the catch.  The Justice in charge of appeals coming from the 2nd Circuit, Ruth Bader Ginsburg, could order a Stay of the suspension until the full Court weighs in. In other words, Brady's four game suspension would be delayed.  If later, the full Court decided not to hear the Appeal, the Stay of the suspension would be lifted and Brady would immediately serve his suspension at that point. This scenario could come about during the final stretch of the regular season, or even worse for Brady and the Patriots, at the beginning of the playoffs or during the Super Bowl. In the end, it would be much better for Brady to serve his suspension now at the beginning of the regular season than to pursue a risky appeal that could land him on the sidelines for a much more critical stretch of games. This is likely the reason that Brady decided to not pursue the appellate process any further and it seems as though that was probably good legal advice from his attorneys. However, even though Brady is going to accept the four game suspension at this point and not pursue an appeal himself, there have been reports that Brady will allow the NFL Players Association to continue to pursue the appeal on his behalf.  This would allow the Players Association to challenge the future authority of NFL Commissioner Roger Goodell to hand out such punishments and to even potentially recover Brady's lost pay if the appeal is successful. So, the process is not really over yet. Brady will serve the four game suspension and will not pursue an appeal. But, the NFL Players Association very well may pursue it. A truly strategic decision.

How is it possible that we can keep up with the Kardashians, but we cannot keep up with the Supreme Court? Although many states permit some form of video recordings of state court proceedings, video cameras and recordings are prohibited in the U.S. Supreme Court and all lower federal courts, save a very limited pilot project for some cases in three U.S. District Courts in San Francisco, Seattle and Guam. Americans should have real-time access to their courts—they should be able to actually observe justice, rather than just read about it.  After all, the vast majority of federal court proceedings are open to the public, and all one has to do is find an empty seat and take it.  As the Supreme Court brilliantly observed in 1947 in Craig v. Harney, “A trial is a public event.  What transpires in the courtroom is public property.” This observation notwithstanding, the federal courts thus far have not recognized an unqualified First Amendment right to televise court proceedings, even though most states have rules allowing cameras in the courtroom. In the Supreme Court’s decision in 1980 in Richmond Newspapers v. Virginia, the Court went so far as to state that the First Amendment did guarantee at least a qualified right of the public and the press to attend and comment on criminal trials, and the following year, in 1981, the Court allowed for states to experiment with television coverage of criminal trials in a unanimous decision in Chandler v. Florida.  What the Supreme Court did not address or recognize, however, was any right of access that included a right to audio or video recording of federal court proceedings for broadcast. The Judicial Conference of the United States establishes policy for the federal courts, and it is responsible for the existing prohibition—a position consistent with that taken by Chief Justice Roberts.  The bases for denying cameras in the courtrooms have not altered over the years.  Opponents continue to assert a belief that cameras are a distraction and that they unfairly affect the outcome of trials, diminishing the dignity of the courts.  Whatever the reason, this lack of transparency and access runs counter to the notion that court proceedings typically are, and should be, accessible to the public.  Just as we can observe White House news conferences and congressional hearings live, the Court simply ought to make its proceedings available to the public in real time.  There certainly is nothing in the Court’s jurisprudence that suggests that the First Amendment would or should restrict this right.  Indeed, the “creative dynamic” spoken of in the Court’s Citizens United decision surely is applicable to the situation that presents in an oral argument.  That “creative dynamic inherent in the concept of free expression” should be made accessible to all who want to experience it. First Amendment principles cannot realistically defend the Court’s policy on prohibition.  In a rare bipartisan moment last year, Congress introduced the aptly named Cameras in the Courtroom Act, H.R. 94.  The bill provides that “he Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of one or more of the parties before the Court.”  Despite the simplicity of the proposed legislation and its bipartisan support, the bill failed to gain traction and has not become law.  So for now, until there is a bill signed into law by the President, or a policy change, there will be no live-streaming.  Most of us will have to rely on those sketch artists’ renderings and our imaginations for a visual of what transpires in the courtroom, at least such is the case in federal court.