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It was reported last week that a Tesla Model S with the Autopilot system activated was involved in a fatal crash, the first known fatality in which a car that was operating, at least semi-autonomously, crashed without human input. The crash occurred when a tractor trailer drove across a highway, perpendicular to the Tesla. The driver of the Tesla, a 40-year-old Ohio resident named Joshua Brown, was killed when the windshield of his Tesla crashed into the semi’s trailer. Mr. Brown had previously posted multiple YouTube videos of himself testing the Autopilot feature.  It was also reported that Mr. Brown was watching a Harry Potter movie at the time of the crash. According to Tesla, Mr. Brown’s death was "the first known fatality in just over 130 million miles where Autopilot was activated," while a fatality happens once every 60 million miles worldwide. It has been reported that the collision was due to a failure by both the driver and the Tesla’s Autopilot system to detect the white side of the tractor trailer against the backdrop of a bright white sky. If the witness reports of the Harry Potter video are to be believed, it would hardly be the first instance of a driver being disengaged from the driving experience while in a Tesla on Autopilot. Other YouTube videos show Tesla “drivers” playing games, taking naps and keeping their hands off the wheel in general. Autonomous vehicles (i.e. those with automated cruise control, lane recognition, automatic braking, etc.), currently being developed by Tesla, Google and others, promise to make our streets safer and vastly reduce the number of collisions, injuries and deaths, and all signs point to the realization of this goal within a decade or two. In the meantime, however, the Brown crash highlights the rocky road and growing pains it is going to take to reach that mountaintop. To a large extent, the early entry companies into this exciting new technology are victims of their own success.  The autonomous features work so well that within a very short time, drivers simply trust the vehicle to work and start doing other things, like texting, gaming or otherwise taking their hands off the wheel, all while traveling on a freeway going 60 miles per hour. And while it seems crazy at first blush to think drivers would act in this way, this autonomy and freedom to get other things accomplished during long commutes is the main hook being promoted by the companies developing this technology and driving the excitement and investment in this technology. The Brown crash brings into stark relief the lack of federal rules or regulations over autonomous driving technology.  Indeed, automakers do not need National Highway Traffic Safety Administration approval before putting these cars on the highway. Accordingly, for now it will be up to the Courts to determine the legal issues that arise when something like the Brown collision occurs, which presents a host of questions over who is responsible in tragic situations such as these. Does the manufacturer of the vehicle bear responsibility for a defective product?  Is it the driver’s fault for trusting in the technology even though it’s promoted as providing autonomy to the driver? “The NHTSA ranks self-driving cars based on the level they cede to the vehicle, with 1 being the lowest and 5 the highest.” In the Brown case, Tesla’s Autopilot technology was developed as a Level 2 technology, which means it was capable of staying in the center of a lane, adjusting speed according to traffic and changing lanes. Tesla also provided instructions and warnings to make it clear that the driver of the car remained responsible for its operation at all times. But what about Google, who is developing Level 4 and 5 technologies that would cede complete control of the car to the software and take the human driver almost completely out of the picture?  Where does responsibility lie in crashes involving that technology? Is it with the company who builds the car?  Is it with Google, who aims to simply supply the software to auto manufacturers? Undoubtedly, there will be a tremendous amount of additional development on Tesla’s Autopilot to engineer around the circumstances that led to the Brown crash, but what happens when the car is perfected to pick up on everything in its surroundings, but has to make split-second, life and death decisions? For instance, what if a tractor trailer pulls in front of an autonomous car at the last second and the only way to avoid that collision is for the software to cause the car to veer right, onto a sidewalk where an elderly man is walking.  Does the car cause you to crash into a likely fatal obstacle or hit the pedestrian and risk his life.  Who then, is responsible for the crash once that decision is made for you? On balance, autonomous technology seems poised to fulfill the promise of a much safer drive, but it carries with it a host of legal and moral conundrums that will have to be addressed in order for the technology to fulfill its potential.

Those poor One Percenters. Sure the wealthiest one percent of Americans own 40 percent of the country’s wealth, have multiple homes, cars, planes, yachts, even the newly minted legal defense of “affluenza” to exonerate them from killing people. But they have never been able to enjoy the benefits of social welfare organizations like Doctors Without Borders, the Humane Society or the Wounded Warriors Project. Until now that is. To combat this gross inequality that has been perpetrated upon these poor souls, the One Percenters have formed special social welfare groups and petitioned the government for non-profit status.  The poster child for such groups is Crossroads GPS, spawned by none other than Karl Rove himself. Crossroads GPS has spent every dollar it has collected, approximately $330 million, not on helping those in need, but on politics that benefit the uber-rich, either by funding its own campaigns to smear candidates or organizations who have the audacity to stick up for ordinary Americans or to fund other front groups who employ similar hatchet-job tactics. Now, thanks to a five-years-in-the-making ruling from the Internal Revenue Service that declared Crossroads GPS a nonprofit social welfare group, the injustice that has long befallen the One Percent shall be no more.  No longer shall Crossroads GPS be required to pay taxes on the hundreds of millions it collects to influence or outright buy elections for the benefit of the one percent (non-profit social welfare groups are tax exempt). No longer shall it be required to disclose its billionaire donors’ names, which inform ordinary Americans exactly who is behind the effort to destroy the very ideals (of liberty, justice and equality for all) upon which this country was founded (non-profit social welfare groups are donor disclosure exempt). Thanks to the IRS, the One Percenters can now bribe, err make “political contributions,” in total secrecy and remain completely insulated from those pesky repercussions that sometimes come from trying hard to undermine democracy.  Now all the CEO has to do is give that money to Crossroads GPS, who can funnel it to that candidate with total impunity. It would take the average American about three minutes to understand that groups like Crossroads GPS are just about the furthest thing from social welfare one could ever imagine.  It’s not providing support to wounded soldiers, abandoned children or abused animals.  On the contrary, Crossroads is nothing but a political group whose money goes entirely to people and organizations that work to actively undermine, or outright abolish, all kinds of social welfare. But these people want to hide in the shadows while doing it, and the IRS has just served them up an invisibility cloak on a silver platter. Of course, the groundwork was laid for this sort of thing by the U.S. Supreme Court’s democracy-killing Citizens United decision, which licensed the purchase of elections by Corporate America and has opened the floodgates in the current election, which has never seen this much money flow into a presidential campaign this early from so few donors ( $176 million from just 158 One Percenters). Political organizations should never receive the sort of benefits that are provided to groups that serve society by delivering food and shelter to folks ravaged by natural disasters or who work to provide clean water to poor communities or mentor foster children. I am sick to death of living in a country torn apart by runaway inequality.  We desperately need someone who is willing to fight against the rigged economic system, political corruption and the public/private revolving door. This election season there is exactly one presidential candidate who is speaking out about the absurdities and inequities of campaign financing, who has made ending this sort of thing one of the centerpieces of his campaign. His name is Bernie Sanders, and seeing decisions like Crossroads surely has me paying very close attention to his campaign.

I hope to continue to provide our readers with updates as to the status of important cases pending in our highest courts that affect oil and gas and landowners. The Ohio Supreme Court recently issued its ruling on a matter that has been fairly well known to those interested in the Ohio oil and gas leasing scene. SER Claugus Family Farm, L.P. v. Seventh District Court of Appeals, et al.  and Hustack et al, v. Beck Energy Corporation,  Slip Opinion No. 2016-Ohio-178.  Some people have been aware that, for the last several years, litigation and appeals have been ongoing as to the validity of Beck Energy Corporation leases signed in Eastern Ohio as many as eight and nine years ago.  At issue was a standard lease form, Form G&T (83), used by Beck for most of its transactions.  Upon review of the lease, the Monroe County Court of Common Pleas ruled that the leases, as written were invalid under Ohio public policy because they created leases in perpetuity.  The rule against perpetuities is an old rule that developed in England to prevent wealthy landowners from tying up their property forever.  It was a means to try and help more people eventually become landowners.  In the context of the Form 83 leases at issue in the Beck cases, the trial court determined that the leases allowed Beck to keep their leases active indefinitely simply by paying delay rental fees, without any actual efforts to obtain oil and gas production.  The trial court believed that to be against the public policy of the State of Ohio. On appeal, the 7 th Appellate District disagreed and determined that the Form 83 leases actually did provide for a limited term of years during which the oil and gas company could delay its operations by the payment of rentals.   The company could not, however, do so forever.  Oil and gas leases include a defined “primary term” during which the payment of rents provides the company with the right to hold the property without operations.  If no operations have occurred during that primary term, the lease must either be renewed, if the lease allows, or renegotiated.  If, however, certain types of operations occur, the lease enters the secondary term.  Those types of operations are usually defined in the lease agreement and so long as those types of operations or activities are continuing, then the lease will remain in effect in its “secondary term.” The Ohio Supreme Court agreed with the 7 th Appellate District in the Beck cases.  The Court confirmed some longstanding principles of oil and gas law.  The Court confirmed that delay rentals alone may only hold a lease active during a primary term and that the language of the granting clause of a lease provides the nature and effect of the legal rights held by the parties.  Finally, the Court determined that implied covenants, which generally protect mineral owners during the operation of the lease, have limited effect during the primary term and can actually be waived by lease language agreed to by the parties to the lease.  The Supreme Court confirmed that the leases at issue had a 10-year primary term and that the oil and gas company could keep the leases active during that 10-year period by paying the delayed rentals. This was not an unexpected decision from my perspective.  While I hoped that landowners would be able to seek redress for the poor lease terms they were offered, the issues as presented were not that confusing and seemed to be headed towards the decision reached by the Court in this case.  Bigger concerns in this case related to the fact that many of the lease terms were actually stayed by the appellate courts during the time this litigation was ongoing.  Beck Energy filed Motions asking the Supreme Court to toll all the terms of the Form (83) lease as to all members of the class action, which potentially includes every single Ohioan who signed such a lease with Beck.  The Supreme Court, while finding the leases valid, did not enter an order tolling the leases further. Justice Pfieifer concurred with the decision that the leases were still valid, but authored a fairly vigorous dissent on other issues and took the Court to task as well as the original attorneys handling the case for the original Plaintiffs.  Non-parties to the original litigation, including the Claugus family, had their rights affected as the class action certification resulted the tolling of all of the Beck leases regardless of whether or not those affected landowners wanted to get out of their leases.  Despite the fact that the 7 th District determined that the leases were not perpetual, it continued the tolling for both the named and unnamed plaintiffs potentially affected by the case.  As a result, many hundreds of Ohio mineral owners were left in the lurch.   The end result in these cases is not what many wanted, but it seems to be that the decision was fairly clear under the law.

Partners Jim Bordas and Geoff Brown recently concluded, by way of a multi-million dollar settlement, the case that Tom and Michele McFadden brought against Wheeling physician Dr. Robert Cross.  The case the McFadden’s brought on behalf of their deceased 18-year-old son, who was a freshman at West Liberty University, began when Dr. Cross agreed to undertake an elective splenectomy to treat David’s non-life threatening blood disorder. David, his mother, father, brother and sisters understood that the procedure that Dr. Cross would be performing would be a general splenectomy. The original consent form that was signed by David indicated that the surgery would simply be a splenectomy.  Instead, the doctor, against the wishes of his 18-year-old patient and his parents, took it upon himself to perform the procedure laparoscopically. This decision by the doctor flew in the face of the directions given to him by both his patient and the patient’s parents not to perform a laparoscopic procedure inasmuch as Dr. Cross had never before performed a laparoscopic splenectomy. Instead, during the course of the doctor’s first laparoscopic splenectomy, which the doctor did without any training, without ever having performed the surgery, without ever having assisted in performing the surgery and only gaining knowledge as to how to do the surgery by reading a couple of articles and watching YouTube, encountered the problems one might expect of a physician unskilled and untrained in such a procedure. During the procedure, Dr. Cross had difficulty in breaking up and removing David’s spleen and decided to use a dangerous instrument called a morcellator, which he had never used before, nor had any training on its use.  Being unable to achieve success with the morcellator, he passed the morcellator on to a surgical technician with two years of training and no experience using the morcellator herself.  Within a very short period of time, the technician using the morcellator punctured David’s aorta, causing significant bleeding and death. Interestingly and incredibly, the hospital consent form that David signed originally had the word “splenectomy” as to the procedure that was to be done, but after David was taken into the operating room, Dr. Cross added the words “laparoscopic open if needed.” This case has been widely discussed in the Wheeling area as David was a popular student and athlete at Wheeling Central Catholic High School and as a freshman at West Liberty University had already gained many friends.  His mother and father have lived in the Wheeling area for many years, and David’s father, Tom, is a licensed physical therapist. EndFragment

Wow, the time is just flying.  It seems like it was not that long ago that once again it was time to get your kids ready for school and now it’s almost time for the holiday break. Even for college, there are many trips to the stores for the usual supplies.  The stores are always busy with back-to-school sales and a constant stream of kids and their parents or caregivers trudging along with questions like, “Do you really need that?” “ Are you allowed to have that?” Or, “I didn’t see that on the list (of suggested supplies).” Or even, “That’s for older kids in high school—you don’t need that.” With my own children, I found that the necessary school supplies for college are really not that much different than what was needed for high school.  The cart is loaded with mechanical pencils, highlighters, paper, spiral notebooks—all the usual—which will go along with having their backpack, iPhones, earphones, water bottle, etc.  However, they do not need Crayola crayons and Elmer’s school glue.  I tried to put these items in the cart and my son, Casey, kind of looked and gave me the evil eye.  I innocently said, “Are you sure you don’t need these?” I guess he doesn’t—he’s all grown up.   Now, though, it’s an iClicker - a device used by professors for students to do homework, take tests and answer questions in the classroom.  That’s kind of neat as long as it works, I suppose. All the stuff that came back from his first year of college went back to Morgantown along with all that is needed to actually cook meals, wash dishes and, yes, clean his apartment.  Last year in Casey’s dorm room, his bathroom was cleaned by a maid.  This year, he is the maid.  Or whatever the male equivalent of that is.  So, on the suggested list of things to bring is granite top cleaner.  Truthfully, I don’t have that in my house now, but he has that in his apartment.  He has a washer and dryer and will be doing his own laundry this year. Yay!!  I tried to assure him that this should be easier for him since he will not have to trudge home with his duffle bag full of clothes every weekend like he did last year.  He is a double major in engineering, mind you, and when I was showing him what buttons to press on the washer and dryer his eyes were crossing.  He actually asked me which one was which—not buttons—but which was the washer and which was the dryer.  His father laughed out loud— this is going to be good!! I should have taken him seriously when he said washing clothes was going to be his biggest challenge this year.  Oh my.  And I was sure it wasn’t going to be long before his t-shirts were looking pretty grungy because he washed them with his jeans. So, in two trips to Morgantown, I hauled carts of stuff and lined all the drawers, ran the new dishes through the dishwasher, finagled a regular-sized shower curtain to fit a much smaller opening for the shower stall, added cushions to a very austere/uncomfortable sofa and chair, and filled his cupboards and refrigerator with food.   And Casey still had stuff left at home to take down, but he assured me he would put away his clothes, get the printer hooked up, the coffee pot plugged in and use a Brita water pitcher instead of tap water to drink.  I haven’t been down to his apartment for quite a while but I am pretty sure it does not look the same as when I left it at the beginning of the semester. While we were shopping, I would ask him what he would like to have for his apartment, he would tell me yes to this or no to that, and, even though he said he did not want this when we were shopping, I left a glass candy jar filled with M&Ms on his kitchen counter and I frequently send M&Ms to refill the jar.  For him, a little touch of home. EndFragment

Two weeks ago, Pennsylvania's voters elected Democratic Judges Christine Donohue, David Wecht and Kevin Dougherty to the Supreme Court, giving the party a five to two majority for the first time since 2009. The Washington Post called such results "one of the biggest court shake-ups in recent history." It was the first time three seats on the high court were open in an election.  Two seats were open because of the resignations of former justices.  In 2013, a Republican was convicted of using her taxpayer-paid staff to do political work and, in 2014, a Democrat implicated in a pornographic email scandal. The third seat became vacant when former Chief Justice Ronald Castille was forced to resign after reaching the mandatory retirement age of 70. Democratic Gov. Tom Wolf, said the Democratic victories on the high court and two more on the mid-level appellate courts are indications that Pennsylvania voters want changes in their state government. The election results could influence the way that Pennsylvania's districts are drawn.  When the next census occurs in 2020, the United States Government will go through the process of "Reapportionment," which is the apportioning (or proportional division) of congressional seats (435 for the U.S. Congress since 1911) among the 50 states according to their relative population.  Based upon the new census data, the state general assemblies will go through the process of "Redistricting,” which is the re-drawing of congressional districts within each state, according to the number of seats they were apportioned. The party that controls the Supreme Court gets to appoint the chair of the state's five-member redistricting commission.  Thus, the court's vote is tie-breaking, as the other commission members are comprised of two Democrats and two Republicans.  The State Supreme Court is also the final word on redistricting maps. Pennsylvanians who take issue with the redistricting commission's decision can sue, and the Court gets to hear and rule on those appeals. Depending on where the lines are drawn, Democrats could take back the majority of U.S. congressional seats in next year's elections. So why can redistricting be controversial.  According to a very interesting article published by Loyola Law School, the location of district lines decide which voters vote for which representative. Changing the lines may change the relevant voters, and can change the identity, allegiance, and political priorities of a district's representative, and of the legislative delegation as a whole.  Interestingly, since the birth of our country, politicians have attempted to change district lines to affect political power.  For example, Patrick Henry, who opposed the new Constitution, tried to draw district lines to deny a seat in the first Congress to James Madison, the Constitution's primary author. Henry ensured that Madison's district was drawn to include counties politically opposed to Madison. The attempt failed, and Madison was elected -- but the American "gerrymander" had begun. EndFragment

A few months ago, I wrote about how the application of Ohio’s Dormant Mineral Act should soon gain more certainty.  That was because the Ohio Supreme Court had before it several cases which should clarify the more contentious disputes surrounding the application of the law.  One step towards that certainty was taken in the recent Slip Opinion issued in Chesapeake Exploration, LLC et. al., v. Buell et al. case.  The decision came out on November 5, 2015.  The case actually came to the Supreme Court on certified questions of law from the United States District Court for the Southern District of Ohio.  Even though the case was pending in Federal Court, the issues involved are Ohio substantive state law issues.  As such, the Federal Court is required to interpret and apply Ohio law.  Often times, when the answer to a question is not clear under state law or a new issue has been brought up, Federal Courts can certify specific questions of law to state supreme courts to have the highest court in the state determine the issue and tell the Federal Court what the law is.  That is what happened in this case. The important questions that the Ohio Supreme Court was asked to resolve for the Federal Court were: 1. Is the recorded lease of a severed subsurface mineral estate a title transaction under the ODMA, Ohio Revised Code 5301.56(B)(3)(a)? 2. Is the expiration of a recorded lease and the reversion of the rights granted under that lease a title transaction that restarts the twenty-year forfeiture clock under the ODMA at the time of reversion? The Court was asked to decide, therefore, whether the recordation of an oil and gas lease executed by a severed mineral owner is a “savings event” that would prohibit the abandonment of oil and gas rights under the ODMA.  It was also asked to decide if the expiration of such a lease, which results in the reversion of any rights provided under a lease back to the Grantor, is a “savings event.” The decision was not unanimous on the various points, but the holding of the Court is that oil and gas leases which have been recorded in the Recorder’s office are, in fact, title transactions.  Those leases then qualify as “savings events” which prohibit abandonment under the ODMA.  Two dissenting judges would have found that a lease by itself is not a “savings event” as a specific “savings event” is already applicable for the actual production or withdrawal of minerals.   The Court ruled, however, that the unrecorded expiration of one of those recorded lease agreements is not a title transaction and does not preclude abandonment under the ODMA.  The Court was unanimous on that point. Interestingly, the Court may have telegraphed its thinking on another issue soon pending before it.  The Court stated that “the unrecorded expiration of an oil and gas lease does not constitute a saving event under R.C. 5301.56(B)(3)(a) that would restart the 20-year clock.”  (Italics added.) Do the words “restart the 20-year clock” mean that the Court would be inclined to find a rolling 20 year look back period rather than one specific 20 year window as some argue under the 1989 version of the act?  The Court will hopefully resolve that issue soon as arguments in the Eisenbarth v. Ruesser matter are set for November 17, 2015.  One of the issues in that case is whether a fixed or rolling 20 year abandonment period is to be applied under the 1989 version of the Ohio Dormant Mineral Act. We will continue to keep you updated as the Ohio Supreme Court continues to resolve the myriad of questions involving the Ohio Dormant Mineral Act.  If you have questions about your rights under the Ohio Dormant Mineral act, don’t hesitate to give us a call for a free consultation. EndFragment

On September 29, 2015, the New Jersey Supreme Court held that a physician’s failure to disclose to a patient that the physician does not maintain statutorily required medical malpractice insurance coverage does not give rise to a claim for the physician’s failure to secure the patient’s informed consent prior to performing a medical procedure which results in injury to the patient. In Jarrell v. Kaul, the New Jersey Supreme Court was presented with a situation where an anesthesiologist, Richard A. Kaul, M.D., performed a spinal fusion surgery on James Jarrell in October 2005 in an attempt to alleviate Mr. Jarrell’s chronic back pain.  At the time of the October 2005 surgery, Dr. Kaul’s medical malpractice insurance policy expressly excluded coverage for spinal surgical procedures.  Not only did the October 2005 surgery not alleviate Mr. Jarrell’s pain, his pain increased and he began to experience drop foot.  After examination by a board certified neurologist revealed that improperly placed screws from the October 2005 surgery were pinching a nerve, the neurologist performed a second surgical procedure on Mr. Jarrell in January 2006 to remove and replace the fixation devices implanted by Dr. Kaul. Mr. Jarrell and his wife filed suit against Dr. Kaul and the surgical center where the October 2005 procedure was performed asserting medical malpractice/negligence claims and several claims stemming from Dr. Kaul’s failure to possess the statutorily required medical malpractice insurance coverage, including a claim for failure to obtain informed consent and for the surgical center’s permitting Dr. Kaul to perform the procedure at the facility.  New Jersey, like Pennsylvania , requires physicians to provide proof of medical malpractice insurance or an approved self-funded alternative plan to compensate victims of medical malpractice in order to obtain and maintain a license to practice medicine in the state.  The trial court refused to recognize any claim relating to Dr. Kaul’s failure to comply with financial responsibility statutes or his failure to disclose to Mr. Jarrell that he did not possess the statutorily required insurance and dismissed all claims, with the exception of the pure medical negligence claim, prior to trial. After the jury found Dr. Kaul negligent and awarded $500,000 in damages to Mr. Jarrell for his pain, suffering, and disability, and $250,000 to his wife for loss of consortium, the Jarrells appealed the pretrial dismissal of their remaining claims. In a partial victory for victims of malpractice, the New Jersey Supreme Court did unanimously reinstated the Jarrells’ claims against the surgical center finding the surgical center had a continuing duty to ensure that any physician granted privileges to surgical procedures at its facility maintained the required insurance and to withhold privileges to any physician who does not.  The court declined to adopt a strict liability standard for such claims; instead holding that an injured patient is required to prove the facility was negligent in verifying the physician’s continuing compliance with statutory licensing requirements such as maintenance of insurance.  This partial victory was tempered, however, by a 5-2 majority of the court’s refusal to recognize that a patient has a right to know that a physician does not maintain medical malpractice liability insurance prior to consenting to treatment by the physician, particularly where the failure to maintain such insurance violates licensing laws! A physician is legally required to explain the risks and benefits of proposed treatment options and obtain the patient’s informed consent to a course of action before proceeding.  Ordinarily, this requires a disclosure of the risks associated with the recommended procedure and alternative procedures or therapies.  Most people would agree that a physician’s ability to compensate a patient in the event of injury caused by the physician’s negligence is a material information impacting the patient’s decision to allow the physician to proceed in executing the treatment plan.  Indeed, an Ohio statute requires physicians practicing medicine not otherwise immune from civil liability to provide written notice to patients that the physician is uninsured prior to performing nonemergency services.  O.R.C §4731.143.    Five of the seven New Jersey Supreme Court Justices in Jarrell, however, disagree that a patient has the right to know his physician is uninsured for the treatment being provided to the patient. The majority in Jarrell found that a physician’s financial responsibility and compliance with licensing laws are not material facts impacting a patient’s ability to provide informed consent to a treatment plan, including surgery.  Upholding the dismissal of the Jarrells’ informed consent claim and finding it non-viable under New Jersey law, the majority callously stated “To be sure, a patient who has been injured due to negligent care by an uninsured physician has sustained a financial loss, but such a loss is not the injury that the informed consent doctrine ever contemplated.”  The absurdity of the majority decision is made readily apparent by the dissenters’ synopsis of the case: “The facts here present the quintessential case of lack of informed consent. Dr. Kaul did not have the medical malpractice insurance required by law to perform the invasive surgical procedure on his patient, plaintiff James Jarrell.  Performing the procedure without the requisite insurance constituted professional misconduct. Yet, Dr. Kaul never explained any of this to his patient, presumably because plaintiff never would have agreed to the procedure had he been fully informed. Dr. Kaul failed to disclose material facts to his patient. He denied plaintiff the right to decide whether a financially incompetent—or worse yet, a professionally incompetent—physician should perform invasive surgery on him.” The tort reform assault of the last decade or two has resulted in far too many restrictions on a person’s ability to be compensated for injuries caused by the negligence of another, particularly in the area of medical malpractice.  At times, “compromises” were made which, in exchange for restrictions on a patient’s ability to recover for injuries caused by medical malpractice, requirements were imposed upon physicians to maintain a certain level of medical malpractice liability insurance.  For example, In West Virginia, a physician must provide proof of a malpractice insurance or a self-funded plan in order to obtain the protections of statutory damages caps.  W.Va. Code §55-7B-2(j); W. Va. Code § 55-7B-8.  As claims accruing after enactment of statutory restrictions on medical malpractice claims continue to mature, Jarrell’s informed consent issue is likely to be addressed in other jurisdictions, including West Virginia and Pennsylvania.  Hopefully, when the informed consent issue is addressed in other jurisdictions, the courts will follow the lead of the Jarrell dissent and recognize that “a physician cannot hide material facts and that the patient has a right to make critical choices concerning his health”, choices which include refusing to permit uninsured physician to perform surgery on the patient.

FOR IMMEDIATE RELEASE October 7, 2015 Contact: Michele Rejonis t: 304.905.6005 michele@wheelhousecreativellc.com Circuit Court Approves $18 Million Wrongful Death Settlement by Bordas & Bordas Arising out of Tyler County Explosion WHEELING, W. VA. - A lawsuit arising out of the death of a local man resulting from a 2013 explosion at a Tyler County oil and gas operation came to a conclusion on Wednesday.  The Circuit Court of Ohio County approved the settlement of $18 Million for the wrongful death case that had been filed by the law firm of Bordas & Bordas on behalf of the family of Bruce Phipps. The lawsuit alleged that the negligence of several companies who were involved in operating the Eureka-Hunter Pipeline, LLC Twin Hickory pig launching and receiving station caused the explosion that led to Phipps’ death.  Phipps was survived by his widow, Karen Phipps, who initiated the lawsuit on behalf of the Estate, as well as a daughter, two grandchildren and three siblings. Scott Blass, a partner at Bordas & Bordas, who served as lead counsel in the case commented on the settlement, “This fine man who died as a result of the significant burns received over most of his body suffered in a way that no person should be forced to suffer.  As a result, this family will forever be without a husband, a dad and a grandfather.  The most tragic part of this very sad scenario is that this could have been avoided if these companies simply would have conducted their operations in a safe and reasonable manner.  Although this settlement will not bring Bruce back, we are hopeful that it will cause companies to think twice before putting workers in harm’s way when conducting their operations throughout the Tri-State region.” In addition to Eureka-Hunter Pipeline, LLC, other defendants in the case included Triad Hunter, LLC, Transtex Hunter, LLC, Magnum Hunter Resources Corporation, Apex Pipeline Services, Inc., Exterran Energy Solutions, LP, and Western Oilfields Supply Company, Inc. dba Rain For Rent. Jamie Bordas, managing partner at Bordas & Bordas, who served as lead negotiator on the case, stated “I am very pleased with the work that our firm was able to do in this case.  We take pride in having the experience and talent to fight to try to get large corporations to conduct business in a safer way.  We know that the oil and gas companies are going to be in West Virginia, Pennsylvania and Ohio on a long-term basis and we want to be the ones to make sure that they protect the lives of the workers and citizens in our communities while they are here.” The settlement is believed to be one of the largest, if not the largest, settlements in the history of Ohio County on behalf of a single family. Bordas & Bordas is a plaintiff’s litigation law firm of 19 attorneys based in Wheeling, W.Va., with offices in Moundsville, W.Va., St. Clairsville, Ohio and Pittsburgh. The firm’s attorneys practice throughout the region in diverse areas of law. For more information, please contact Jamie Bordas at 304.242.8410 or Michele Rejonis at 304.905.6005, or visit bordaslaw.com. -end- FOR IMMEDIATE RELEASE October 7, 2015 Contact: Michele Rejonis t: 304.905.6005 michele@wheelhousecreativellc.com Circuit Court Approves $18 Million Wrongful Death Settlement by Bordas & Bordas Arising out of Tyler County Explosion

Talc. That softest of minerals, dug from the ground and used by most Americans every day. Talc is found in everyday cosmetics. It is used as a filler in various pills and capsules. Talc is a food additive, found in many of the processed foods we eat.  And, of course, as every parent can attest, talc is a daily household fixture during those early years of our child’s lives. And yet because talc is dug from the ground, it can keep some very hazardous company - namely asbestos, which is often intermingled with talc and can cause fatal diseases in people who inhale its microscopic fibers.  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. In a highly unsettling example of what can happen under this business model, recent tests found stray asbestos from contaminated talc in some Chinese-made toy fingerprint kits and crayon sets putting children at particularly high risk for exposure. A child exposed to asbestos is 3.5 more likely than a 25-year-old to develop mesothelioma, a fatal lung disease marked by rapidly growing tumors in the tissue surrounding the lungs and heart, that is only caused by asbestos. It marks the third time in 15 years that the asbestos has been detected in crayons or fingerprint toys marketed to children. Popular brands, including Disney’s Mickey Mouse Clubhouse, Saban’s Power Rangers Super Megaforce crayons, and Nickelodeon’s Teenage Mutant Ninja Turtle Crayons, all contained asbestos fibers. Asbestos fibers were also found in the fingerprint powders of two crime scene kits the EduScience Deluxe Forensics Lab Kit, sold at Toys ‘R Us, and the Inside Intelligence Secret Spy kit, sold on Amazon.com. Only the purest grades of talc are supposed to go into cosmetics, pharmaceuticals, food and children’s toys. And many manufacturers say they only use talc with no detectable asbestos. But it is well understood that there is no safe level of asbestos and, according to experts, the standard tests are outdated and are simply not sensitive enough to detect asbestos at low, but still hazardous, levels. Technical panels from two standards organizations–ASTM International and the U.S. Pharmacopeial Convention–are working to tighten test standards to keep asbestos from slipping into consumer products.  But for now, talc contamination with asbestos remains a very real concern. One target of recent lawsuits has been Colgate-Palmolive Co.’s Cashmere Bouquet powder, which Colage produced for more than 100 years before selling the brand in 1995. Laboratory tests found asbestos in samples of Cashmere Bouquet as far back as the 1970s, and air testing concluded that people could have inhaled asbestos when they sprinkled on the powder. Research has also shown that even though talc may contain only a small amount of asbestos, when a person applies it, those asbestos fibers linger in the air, usually right in the person's breathing zone, longer than the talc itself. Asbestos-caused diseases can have a long latency period, such that the full extent of the harm from asbestos exposure can take decades to manifest. So people who were exposed to Cashmere Bouquet powder, for instance, in the 50’s, 60’s and 70’s may only now be getting sick. Cosmetics have also long been a target of research and investigation into possible asbestos contamination through the talc used in their production.  A 1976 FDA report charged that cosmetics makers had been lax in monitoring the safety of talc supplies. However, the agency ultimately allowed the cosmetics industry to also self-regulate and, despite additional testing in 1994 and again in 2001 that raised concerns for asbestos contamination, FDA officials have continued this self-policing policy for cosmetics manufacturers. More recently, the FDA has asked the U.S. Pharmacopeail Convention (“USP”), a scientific nonprofit sets standards enforceable by the FDA for the quality and purity of drugs, food and dietary supplements, to revise test methods for screening talc for asbestos noting that current methods “have insufficient sensitivity to detect asbestos and cannot provide the highest possible level of confidence when used by suppliers of talc to certify ‘absence of asbestos.’” In response, an expert panel created by the USP endorsed the call for tougher screening, likely requiring the use of transmission electron microscopy, a technique that uses electron beams to produce extremely high magnification of tiny particles. But there is no timetable for completing new standards, and a consensus is far from being reached with industrial groups. One thing is for sure.  No powdered products intended for regular, if not daily, physical contact should contain even a single fiber of asbestos. The deadly hazards of exposure to even minute quantities of asbestos, with its lethal, needle-like fibers, have been well-recognized and understood for over a century. Asbestos-containing products have been banned the world over, except here, in the United States, thanks to political pressure from an industry coalition of trade groups and other lobbyists. So it appears for now that we can add shopping for everyday household products to our “up-to-us-to” list. Carefully review labels of the everyday products you buy to determine whether a product contains talc and contact the manufacturer for documentation of the source of their talc. Avoid buying crayons and other Chinese-manufactured art supplies from dollar stores and other discount retailers, as they tend to stock products more likely to be contaminated.  Testing on Crayola-brand crayons revealed no asbestos contamination, so look to that brand if possible. You can also write to your elected officials to urge them to ban products that contain asbestos and increase funding for mesothelioma research.  And if you believe you have contracted an asbestos-caused disease from exposure to talcum powder or other talc-containing products, you should contact and experienced asbestos law firm for a complete evaluation of a potential claim.

More and more nursing homes are corporatizing the delivery of healthcare to increase profits. A trend for the past several years has been to insert an "arbitration clause" in their resident agreements.  By signing this agreement, the resident or his/her legal guardian are relinquishing their right for any potential claim, no matter how egregious the circumstances, to be heard by a jury.  The agreement strips away the people's voice and, in many circumstances, terminates a real opportunity to improve resident safety and quality of care.  By signing these agreements, the nursing home directs the flow of complaints to corporate-designed dispute systems, which serve their interests to the detriment of the resident, the resident's family and the community at large. These corporate interest "alternative dispute" systems eliminate the best judicial system in the world where the people rule and the fact finder, most often, cannot be influenced by anything other than the facts and law of the case.  The checks and balances that our system of jurisprudence provides to facilitate truth and justice are not applicable in these settings.  And, as history has shown, not only does our civil justice system provide the best means in the world to compensate victims of abuse and neglect, but it is arguably the best driver of quality healthcare. As the following examples show, the lives of countless seniors and many millions of dollars in future health care costs have been saved as a result of lawsuits. ·      A 78-year-old woman, admitted to a nursing home for short-term hip and wrist rehabilitation, died after suffering severe pressure sores, malnourishment and dehydration. As part of the settlement, the company changed its patient monitoring and care procedures in each of its 65 nursing homes. ·      A 72-year-old man contracted a bacterial infection from a fellow patient after undergoing knee replacement surgery; his leg lost all mobility. This lawsuit and similar cases caused health care facilities around the country to be more attentive to infection control. ·      A 63-year-old Alzheimer patient was strangled to death by the restraints in her bed rails while sleeping. As part of the settlement, the nursing home agreed to numerous operational reforms, while the bed rail manufacturer agreed to warn its customers about the dangers of entrapment. ·      A 79-year-old woman was crushed to death after a Home Depot forklift operator knocked lumber and other merchandise stacked several feet above her. After the case settled, Home Depot announced plans to change its merchandise-stacking policies. ·      A 79-year-old nursing home patient suffering from Alzheimer’s disease drowned in a bathtub after being left unattended. As a result of this lawsuit, the nursing home installed safety strips in bathtubs and exercised closer supervision of its elderly patients. ·      An 81-year-old woman died after taking the anti-arthritis drug Oraflex manufactured by Eli Lilly. As a result of this lawsuit, Lilly and its executives were held criminally responsible for mislabeling and failing to report fatal side effects and illnesses related to the drug. ·      An 80-year-old was legally blinded in her left eye when a twist-off aluminum cap blew off a plastic two-liter Diet 7-Up bottle and struck her in the eye. As a result of lawsuits, the company converted to using plastic pre-formed caps that greatly reduced the likelihood of caps blowing off and added a specific warning on the bottles. Pennsylvania courts seemingly recognize the value of the civil justice system's ability to influence best nursing home practices.  In a victory for Pa. residents, the Pennsylvania Superior Court in Washburn v. Northern Health Facilities, Inc., et al., held that an arbitration agreement was not binding upon a plaintiff resident when his wife signed the agreement as her husband’s “designated legal representative,” because Mrs. Washburn did not have her husband’s power of attorney and had not been appointed his guardian.  The Washburn Court followed another recent Pa. Superior Court decision in Taylor v. Extendicare Health Facilities, Inc., wherein the Court held that an arbitration agreement signed by the resident decedent or his or her authorized representative was not binding upon non-signatory wrongful death beneficiaries, and they cannot be compelled to arbitration.  The Taylor Court also refused to severe the Survival Action from the Wrongful Death Action since the claims arising out of the same set of facts shall be consolidated.  Hopefully, Pa. courts will continue this trend to limit the utilization of these heavy-handed contracts. In my opinion, any healthcare agreement attempting to limit consequences of wrongdoing presents a conflict of interest, particularly when a potential resident and his/her family members are in a vulnerable state in a desperate search for reasonable and necessary healthcare, is inappropriate.  Many times the resident and/or the resident's family have no choice, based in realty, to rebuke the nursing home's efforts to enforce the signing of the arbitration agreement. The Center for Medicare Medicaid Services, acknowledging these concerns, has recently released proposed rules "to ensure that if a facility presents binding arbitration agreements to its residents that the agreements be explained to the residents and they acknowledge that they understand the agreement; the agreements be entered into voluntarily; and arbitration sessions be conducted by a neutral arbitrator in a location that is convenient to both parties."  Importantly, admission to the facility could not be contingent upon the resident or the resident representative signing a binding arbitration agreement. Moreover, the agreement could not prohibit or discourage the resident or anyone else from communicating with federal, state or local health care or health-related officials, including representatives of the Office of the State Long-Term Care Ombudsman. While CMS is attempting to even the playing field between the corporate interests and the resident and resident’s family, some feel that forced arbitration agreements have no place in nursing home admissions.  The American Association for Justice is currently sponsoring a petition to encourage the federal government to ban arbitration agreements in nursing home admissions. Click here for more information. While investigating the best nursing homes for your loved one, you should inquire whether the nursing home forces residents to sign arbitration agreements.  If that is their policy, then your interests might be best served by researching other alternatives.  Others may consider contacting your state’s Department of Aging or Ombudsman to report the nursing home’s efforts to utilize its unequal bargaining power in having the resident or member of the resident’s family sign such an agreement under duress.

The Ohio Supreme Court seems poised to start to clean up the muddled application of the Ohio Dormant Mineral Act. The ODMA has provided a mechanism to permit Ohio surface owners who do not own the minerals underlying their property to reclaim those minerals if the owner(s) of those minerals have not taken steps to use or claim those minerals from abandonment.  Two of the original ideas behind the statutory scheme were to permit the reasonable extraction and production of mineral rights which had long been forgotten and to clear up ownership issues when the owners of long forgotten mineral rights.  One of my prior blogs, “Reclaiming Severed Oil and Gas Rights” touched on the issue and the importance of speaking with a mineral rights attorney. Ohio’s ODMA has been the subject of considerable litigation and appeals.  As you can imagine, the Courts of Common Pleas and the Appellate Districts serving Eastern Ohio have been quite busy with this issue.  Some of the questions surrounding the ODMA relate to the fact that two different statutory schemes have been enacted.  One version of the statute was passed in 1989.  Many Courts have held that this version of the act was “self-executing."  That means that no effort or action was necessary by the surface owner to reclaim the severed minerals.  If a mineral owner had not used the minerals or engaged in any type of “savings event” related to the minerals over a 20 year window, then the mineral rights automatically vested with the surface owner.  The earliest that such vestings could occur was March of 1992.  The first statute specifically set March of 1969 to March of 1989 as the first 20 year window.  The General Assembly added a three year savings window, until March 1992, to permit mineral owners to further protect their interest. In 2006, the law was amended and provided notice provisions designed to further protect and facilitate the ability of mineral owners to prevent abandonment of their rights.  Surface owners seeking abandonment are now required to go through notice procedures which may include sending certified mailings to identifiable mineral owners and/or submitting legal notices for publication in local newspapers when such individuals cannot be reasonably located or found. Multiple questions have arisen between the two acts.  While the United States Supreme Court found an Indiana statute very similar to the 1989 act to be Constitutional under the Federal Constitution, the Ohio Supreme Court faces the question of whether the 1989 act, without requiring notice to mineral owners, meets the requirements of the Ohio Constitution.    After the enactment of the 2006 version of the act, does the 1989 act still apply to minerals which could have been deemed abandoned prior to 2006?   Is a lease agreement a “title transaction” that qualifies as a “savings event"? Is there one 20 year winded, 1969-1989, under the 1989 Act or is there a revolving 20 year window after each alleged “savings event”? In Dodd v. Croskey, 2015-Ohio-2362, the Ohio Supreme Court began the process of sorting out some of these open questions.  In that case, dealing solely with the 2006 version of the act, the Court held that filing a claim to preserve minerals, filed in response to a notice of abandonment by a surface owner, is sufficient to prevent an abandonment of minerals even if a “savings event” had not occurred in the prior 20 years.  This decision seems to me to be a fairly straightforward ruling that has very little controversy under the 2006 version of the law.  The more controversial cases will deal with the interplay between the 1989 Act and the 2006 version of the Act. Dodd v. Croskey was just the first in several cases which are expected to clear up the ODMA picture in Ohio, other cases for decisions include, Chesapeake v. Buell, Corbin v. Chesapeake, LLC, Walker v. Noon, Eisenbarth v. Reiser, and Farnsworth v. Burkhart.  Stay tuned here as additional decisions come down from the Court.