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“War on Coal” Proponents Rejoice! Recently the EPA threw a giant bone to the coal and power industries by regulating coal combustion waste as solid waste instead of the hazardous waste that it actually is. The EPA’s recent implementation of CCW regulations are the culmination of a nearly decade-long political fight over the regulation of coal combustion waste that required a lawsuit to force the EPA to take any action at all. In essence, coal combustion waste, or CCW, is the residual dust and ash that is left over after coal is burned to produce electric power. CCW is an amalgam of heavy metals, such as arsenic, mercury, chromium (including the highly toxic and carcinogenic chromium VI), lead, selenium, molybdenum, antimony, nickel, boron, cadmium, thallium, cobalt, copper, manganese, strontium, thorium, vanadium and others. In addition to toxic metals, CCW also contains other materials that are hazardous to human health including dioxins, PCBs and radionuclides. CCW is comprised of small and “ultrafine” particles, the very smallest of which are inhaled into the deepest part of the lungs where they trigger inflammation and immunological reactions. Some of these particles gain access to the human circulatory system where they are transported to distant organs like the heart, brain and other organs, where they settle and produce disease and cancer. Here in the Ohio Valley, we are certainly no strangers to coal-fired power plants.  The Ohio Valley has perhaps the greatest concentration of coal-burning plants in the entire country. Ironically, as pollution controls, like electrostatic precipitators and baghouse filters, have become more effective at trapping coal ash from being spewed into the air, and have reduced the coal plant air pollution that blows into neighboring states, the waste being dumped into coal ash waste streams is becoming more concentrated, and hence more toxic for those of us who live in the shadow of these plants.  Whether blown from an uncovered dump site or the back of an open truck or leached or dumped into our public waterways and drinking water supplies, toxic CCW contaminates hundreds of communities across the country and presents significant health risks to the public. On December 22, 2008, 5.4 million cubic yards of coal combustion waste from the Tennessee Valley Authority (TVA) power plant in Kingston, Tenn. spilled over into neighborhoods and waterways near Knoxville. This catastrophic spill prompted the EPA to assess coal ash surface impoundments and gather information from facilities managing coal ash nationwide with an eye towards possibly regulating coal combustion waste as a hazardous material, which would have brought much-needed protection to communities like our Ohio Valley. Of course such regulations were staunchly resisted by big energy, with its billion-dollar war chest and armies of lobbyists and lawyers, who fought tooth and nail to avoid having to clean up its mess.  In the end, Big Energy prevailed, and not only will it not be made to clean up after itself, but the EPA regulations effectively greenlit the energy industry’s current practice of “recycling” this coal combustion waste into products like drywall, toothpaste and winter road cinders that it sells for profit at the continued expense of human health. Coal combustion waste from existing coal power plants causes some 13,200 premature deaths per year, as well as 9,700 additional hospitalizations and 20,000 heart attacks. Sadly, West Virginia, the state with the highest reliance on coal for electricity production, ranks first in mortality risk at over 20 deaths per 100,000 individuals.  The EPA’s decision practically guarantees that we will remain at the top of that mortality list for the foreseeable future.

February 26, 2015 Contact: Carrie Scanlon Wheelhouse Creative t: 304.905.6005 c: 304.830.1498 carrie@wheelhousecreativellc.com FOR IMMEDIATE RELEASE: WV SUPREME COURT UPHOLDS RULING IN FAVOR OF DALTON WOOD Charleston --- The West Virginia Supreme Court of Appeals issued its opinion today, delivered by Justice Menis Ketchum, finding that the West Virginia Secondary Schools Athletic Commission (SSAC) rule prohibiting a review of ejections from athletic contests violates the legislative requirement that the SSAC provide a proper review procedure. The ruling rejects the SSAC’s application to the Court for a writ of prohibition, and thus upheld the decision by 2 nd Judicial Circuit Chief Judge David Hummel in September that the SSAC non-review rule did not comply with the state statute. The Supreme Court makes clear in its ruling today that if the SSAC rules are properly within the authority granted to it by the legislature, courts do not review them and must stay out of the SSAC’s internal affairs. However, as in this case, circuit courts do have judicial review to the extent the SSAC exceeds its statutory or its constitutional authority. This ruling comes as a result of a case filed by the law firm of Bordas and Bordas on behalf of Cameron High School football player, Dalton Wood, his mother, and sister and was brought before the Honorable Judge David W. Hummel, Jr. for hearing after Wood was ejected from a high school football contest on September 19 which resulted in immediate suspension. After lengthy arguments by both sides, the Circuit Court ruled in favor of Dalton Wood, his mother, and his sister, and granted the preliminary injunction that resulted in this petition to the Supreme Court by the SSAC. Jamie Bordas, managing partner of Bordas & Bordas, said that he believes this opinion will force the SSAC to fall in line with other states that have functioning and reasonable review procedures. “We are pleased that the West Virginia Supreme Court released an opinion this afternoon in our case challenging the SSAC's failure to have an appropriate review mechanism in place for player ejections in high school athletic contests,” Bordas said. “The Court held that the SSAC cannot simply ignore the West Virginia legislature when it says that the SSAC shall contain a provision for a proper review procedure.” Bordas said the firm was pleased to be able to represent Wood and help other student-athletes in the state. “We are so happy that we were able to Fight for Justice for children who are student-athletes throughout the state of West Virginia in obtaining this ruling,” he said. “Often times doing work at no charge is the most rewarding kind.” Bordas & Bordas is a plaintiff’s litigation law firm consisting of 18 attorneys and more than 30 support staff that has offices in Wheeling and Moundsville, WV, St. Clairsville, OH and Pittsburgh, PA and practices throughout the region in diverse areas of law.  For more information, please contact Carrie Scanlon, 304.905.6005, visit bordaslaw.com, or connect with us via social media. ###

In Bruno v. Erie Insurance, the Pennsylvania Supreme Court analyzed the “gist of the case” doctrine, which limits plaintiffs from recasting breach of contract claims as tort claims.  Typically, if the tort claim is wholly dependent upon the terms of the contract, then it will fail.  In other words, if the defendant has no duty to the plaintiff except for those created by the contract, the gist of the case is contractual.  For a negligence claim to be successful in the context of a contract, the allegations of negligence must fall outside the terms of the contract. The Brunos purchased a home and acquired a homeowner's insurance policy from Erie Insurance, which provided a rider covering physical loss to the property caused by mold.  This rider obligated Erie to pay the Brunos up to $5,000 for “irect physical loss” to the property caused by mold, or any “ecessary increase in costs” they incurred to maintain their “normal standard of living” should their residence be rendered uninhabitable as the result of mold.  The rider also required Erie to pay the cost of testing the air and any part of the covered property in order “to confirm the absence, presence or level of” mold “to the extent there is a reason to believe” mold was present, and, if mold was present, it obligated Erie to pay for the cost of its removal, including the cost of tearing out any part of the property needed to gain access to the mold. The Brunos detected mold during renovations and filed a claim for policy limits with Erie to test the mold.  Erie assigned a claims representative to investigate the claim, who in turn retained a private engineer (Rudick), to assist in the investigation.  Upon completion of the investigation, the claims adjuster and Rudick advised the Brunos that the mold was harmless; that the Brunos could continue with their demolition and renovations; and, that the claim was being denied on that basis. Relying upon the representations of Erie and Rudick, the Brunos continued with the home improvements; and, soon thereafter, developed respiratory problems, particularly Mrs. Bruno.  The Brunos tested the mold at their own expense and determined that the mold was toxic and a health hazard.  They reiterated their demand for the $5,000.00 policy limit, which was ultimately tendered by Erie.  Later, Mrs. Bruno was diagnosed with cancer, which health care professionals related to her exposure to the toxic mold.  Concerned for their safety, the Brunos subsequently vacated the house, which they were later forced to demolish, as the mold could not be eradicated. The Brunos sued Erie and Rudick alleging negligence and professional negligence for failing to recognize the nature and severity of the mold problem at the premises; misleading them regarding the nature and extent of the mold problem; minimizing the dangers and consequences of the mold infestation when it knew or should have known otherwise; and the creation or exacerbation of a dangerous condition.  The Brunos did not file a certificate of merit in support of their claims of professional negligence against Rudick.  The Brunos were seeking contractual damages as well as damages for pain and suffering, inconvenience, embarrassment and loss of enjoyment of life's pleasures. Both Erie and Rudick filed preliminary objections in the nature of a demurrer. The basis of Erie’s demurrer was that the Brunos’ negligence claim against it was barred by the “gist of the action” doctrine.  Rudick grounded its demurrer on the contention that the Brunos’ claim for professional negligence should be stricken due to their failure to file a certificate of merit within 60 days of the filing of their complaint, as required by Pa.R.C.P. 1042.3(a). The trial court sustained Erie’s preliminary objections, noting that, under the Superior Court’s formulation of the gist of the action doctrine, the critical distinction between a breach of contract action and a tort action is that “the former arises out of ‘breaches of duties imposed by mutual consensus agreements between particular individuals,’ while the latter arises out of ‘breaches of duties imposed by law as a matter of social policy.’”   The trial court reasoned that “ut for the insurance policy, Erie would owe no obligation as defined by larger social policies embodied by tort laws,” and, thus, it dismissed the Brunos’ negligence claim against Erie. The trial court also granted Rudick’s preliminary objections, holding that privity of contract was not a prerequisite for maintaining a negligence action against the private engineer.   Therefore, the Brunos were required to file a certificate of merit supporting their professional liability claims against Rudick; and, because they failed to do so, their claims were dismissed. The intermediate appellate court, the Pennsylvania Superior Court, affirmed the trial court on both accounts; however, the Supreme Court of Pennsylvania reversed. In analyzing the gist of the case doctrine, the Supreme Court held that the general governing principle as to whether the claim is solely one of contract concerns the nature of the duty alleged to have been breached.  In this regard, the substance of the allegations comprising a claim in a plaintiff’s complaint are of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort, e.g., for negligence, is not controlling. If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract — i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract — then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant’s violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort. Consequently, a negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises, which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.  Thus, the court determined that the homeowner's policy was nothing more than a vehicle, which established the relationship between the parties, during which the Brunos alleged a breach of a general social duty. The Pennsylvania Supreme Court also reversed the decision regarding the requirement of the Brunos to file a certificate of merit pursuant to Pa.R.C.P. 1042.3(a).  The court relied on the strict language of the statute that only required the filing of certificates of merit when the professional defendant has a patient/client relationship with the plaintiff. The decision is an important decision for plaintiffs to the extent that had the Brunos’ negligence claim been dismissed, they would not have been able to recover for the damages associated with their injuries and damages associated with toxic mold exposure.   In Bruno v. Erie Insurance, the Pennsylvania Supreme Court analyzed the �gist of the case� doctrine, which limits plaintiffs from recasting breach of contract claims as tort claims. Typically, if the tort claim is wholly dependent upon the terms of the contract, then it will fail. In other words, if the defendant has no duty to the plaintiff except for those created by the contract, the gist of the case is contractual. For a negligence claim to be successful in the context of a contract, the allegations of negligence must fall outside the terms of the contract.

Have you heard about or read the article regarding the Blackford Circuit Judge in Indiana who issued an order directing an attorney, who made it a habit to appear in court without socks, to wear appropriate business attire, including socks and a tie? Good for you Judge! The Courtroom should be honored and respected ALL the time. On August 25, 2014, The Honorable Circuit Court Judge Dean Young issued an Order specifying for this attorney to wear appropriate business attire for future proceedings in his courtroom.  This was not singling out of any sort.  This was expected of all counsel in the courtroom. Now, the Judge warned this attorney, in private on a courtroom break, of what was required and was supported by the local rules.  Rather than comply, the attorney’s responded by saying, “I hate socks.”  Further, the article states the attorney responded by telling the judge that unless he could show him applicable "orders or other legal authority," he would continue his habit of appearing sockless in court." The Judge issued an Order with respect to future proceedings warning this attorney that, “ He will be subject to sanctions from the court which may include a delay ordered by the court in presenting his case, fines, continuances of pending proceeding for which costs, fees and expenses may be awarded opposing parties and/or their counsel, or such other sanctions for contempt that the court may impose in order to maintain appropriate decorum during court proceedings.” I sure do hope this attorney can respect the Courtroom enough in the future to comply.  It just seems so disrespectful otherwise. As for jurors, they are not upheld to these standards. Most courtrooms ask that no offensive clothing and poor use of language on the clothing, cut-offs, etc., be worn, which is the usual expectation. That brings us to office etiquette. Times have changed so much from what they were years ago and many businesses have gone to a business casual look and much more liberal, but I don’t think that means it’s a free pass to take it to excess. Certainly, unless you are going into the Courtroom where you may be expected to have suit and tie or a more formal look, men should consider a nice shirt and tie or button down with dress slacks or even a casual pant in the business place and ladies, well, they have a much wider variety to choose from nowadays, but it has gone to an extreme. A rule of thumb used to be if the skirt is six inches above the knee then it’s a no-no or at least something that you may need to doctor up understanding that minis are very common now, but should be accompanied by some thick tights or leggings, gals.  And, bare arms are usually not appropriate for either of the sexes. Open-toed shoes used to be taboo, but now they are a pretty common.  A nice shoe does not have to be an expensive shoe, but appropriate. If you stop and ask “Should I?” then you probably shouldn’t. It’s not Friday night after-hours at the office.  And, when choosing an outfit to wear to work, consider if you would you wear that to your initial job interview?  That could answer a lot because if you say, probably not, then I would say you may not want to wear it to the office just because your foot is in the door. It does take time to build up a business wardrobe, but some points to remember are neutral colors make great mix and match outfits.  There are many consignment shops that have slightly used professional attire and of course, look for the sales!  If you are bored with some of your attire swap it out with a friend and make it a new look for you. You want to have a company that is proud that you represent them.  Keep in mind, when you are in the public eye, not only do you leave an impression of who you are, you leave one for the company you represent as well.

For many working class families with loved ones who served in the Navy, worked in the heating, construction, chemical, coal and other similar trade industries, or simply lived in an older home, the day will unfortunately come when they receive news that a family member has contracted an asbestos-caused disease. Asbestos is a set of six, naturally-occurring silicate minerals that has been used, ubiquitously, throughout the United States since the 1940s, particularly in industrial facilities and in residential homes. For decades, asbestos has been widely used in many industrial products, including electrical wiring, cement, brake linings, gaskets, roof shingles, flooring products, textiles, and insulation. Folks who worked in jobs where they inhaled or ingested asbestos fibers, or household members exposed to asbestos dust brought home from the workplace, are at risk for developing a range of different asbestos-related diseases like asbestosis, lung cancer, or mesothelioma – a terminal cancer of the lining of the lungs, abdominal cavity and heart.  Asbestos has been scientifically understood to cause such diseases since the early 20th Century, but, for decades, the truth was concealed from those working in and around it while little, if anything, was done to protect them in the workplace. While the severity of asbestos-related diseases vary widely, the law applies equally to all asbestos claims and for exposed workers, a proper understanding that there are deadlines by which one must file an asbestos claim is critical to protecting a worker's rights and seeking a measure of justice.  It is bad enough to receive the news that you or a loved one has contracted an asbestos-related disease, but the most tragic situations occur when a worker waits too long to do anything about it. And unfortunately this situation is far too common, typically for two reasons. First many workers are simply not that sick when they are first diagnosed with non-cancerous, asbestos disease. They might have some trouble breathing at times, or get tired a little easier if they overdo it, but relatively speaking, their lives aren't all that different initially.  And so many asbestos victims don't pursue their rights initially. However, asbestos-caused diseases are progressive, which means they worsen over time, or morph into more serious asbestos-related cancers, and what seems like a relatively benign disease initially can become a very serious, even fatal, condition in just a few short years. Exposed workers who sit on their rights, thinking their diagnosis is no big deal, can quickly find themselves and their families left out in the cold just a few short years later, in their hour of greatest need, when the medical bills have piled up and they are no longer able to work. The other tragic situation we commonly encounter is where folks file lawsuits when first diagnosed with a non-cancerous, asbestos-related disease, but have bad experiences with the law firms they choose to represent their interests and mistakenly believe they are stuck with the law firm they first chose if they want to file a second claim for a different asbestos-related disease or an asbestos-caused cancer. Because of the bad experience they had with their lawyers the first time, some individuals choose not to pursue another claim when they develop a much more serious, asbestos-related lung cancer or mesothelioma.  And it is typically only after those individuals die, that we receive a call from their families trying to pursue compensation, but by then it is often far too late for our firm to help.  So it is important for asbestos victims to understand that they are not required to pursue a second asbestos claim with the same law firm that first represented them, and they should not delay contacting another law firm if their condition worsens or progresses into an asbestos-caused cancer months or years later. With most injury claims, injured parties only have one opportunity to present their claims.  Asbestos litigation is unique in that exposed individuals can make multiple claims under certain circumstances in which their asbestos-caused disease worsens or evolves. However, bringing a second asbestos claim does present a number of challenges that must be met to allow the claim to be properly pursued, and for those individuals whose asbestos-related conditions progress into the more serious forms of cancer, it is critical that they have a law firm, like Bordas & Bordas, that understands those nuances and challenges and has the experience and know-how to see those second claims to successful resolution. Getting the news that you or a loved one has contracted an asbestos-related disease is a very difficult situation for any family.  Discovering that you waited too long to seek substantial compensation makes the situation immeasurably worse.  If you or a loved one have been diagnosed with an asbestos-related disease, no matter how good you feel at the time, please contact an experienced law firm right away to learn more about your rights and how to best navigate the particulars of your situation.  If you or a loved one are in the unfortunate position of dealing with an asbestos-related disease that has worsened or progressed into a lung cancer or mesothelioma, please contact an experienced law firm with the resources and know-how to successfully handle the challenges that come with filing a second claim.  Any delay in doing so could cost you or your family the opportunity to receive substantial justice for the harm done by being exposed to asbestos.   For many working class families with loved ones who served in the Navy, worked in the heating, construction, chemical, coal and other similar trade industries, or simply lived in an older home, the day will unfortunately come when they receive news that a family member has contracted an asbestos-caused disease. Asbestos is a set of six, naturally-occurring silicate minerals that has been used, ubiquitously, throughout the United States since the 1940s, particularly in industrial facilities and in residential homes. For decades, asbestos has been widely used in many industrial products, including electrical wiring, cement, brake linings, gaskets, roof shingles, flooring products, textiles, and insulation. Folks who worked in jobs where they inhaled or ingested asbestos fibers, or household members exposed to asbestos dust brought home from the workplace, are at risk for developing a range of different asbestos-related diseases like asbestosis, lung cancer, or mesothelioma � a terminal cancer of the lining of the lungs, abdominal cavity and heart. Asbestos has been scientifically understood to cause such diseases since the early 20th Century, but, for decades, the truth was concealed from those working in and around it while little, if anything, was done to protect them in the workplace.

Over the past several weeks, two separate grand juries decided not to indict two police officers for the deaths of Michael Brown and Eric Garner. First, before I go any further, this is a topic many people feel very passionate about and this article is not my personal opinion on what is right or wrong. Instead, I want to look at the process that takes place when allegations are made against a police officer, such as Darren Wilson or Daniel Pantaleo, and specifically focus on the grand jury process that has been the topic of much conversation and confusion. I sincerely appreciate the sacrifice made by police officers when they risk their own safety to protect our communities, I have many friends who serve in law enforcement positions, but also realize that, like all professionals, police officers are not perfect. The first question that many of my friends have asked is why are these officers not going to trial? Many times, when someone kills another person, they go to trial, a jury is selected and that jury decides whether someone is guilty. The jury must decide whether, based on the evidence presented in the courtroom, the defendant is guilty "beyond a reasonable doubt." However, this was not the process that took place in Ferguson or New York in the recent publicized cases. These cases never made it to a jury for a decision of guilt and, instead, grand juries decided there was not enough evidence to bring these cases to trial. So the next obvious question is what is a grand jury? Grand juries can differ based on the jurisdiction, however, many have similar characteristics. Grand juries are not intended to determine whether a defendant is guilty; instead, grand juries decide whether probable cause exists to bring charges against a defendant. However, there are other key differences between a jury trial and a grand jury. Grand juries are secret proceedings, all the facts are usually not presented and only one lawyer is present. Moreover, unlike a normal trial, a grand jury has the power to see and hear almost anything they would like without many of the limitations of the rules of evidence. The one lawyer present is the prosecutor who presents the evidence he or she believes is necessary to obtain an indictment, which would result in the case being tried in front of a jury. Unlike a trial for guilt or liability, no defense attorney or judge is present, which would lead many people to believe that the odds of obtaining an indictment are stacked in the prosecutor's favor. Regardless of a person's feelings of whether the correct result was reached in the recent high profile cases, it is important to always analyze the process and ask what could be improved for the future. One suggestion has been the appointment of an "independent prosecutor" when a police officer is being indicted. Former New York State Chief Judge, Sol Wachtler, once stated that a prosecutor could persuade a grand jury to "Indict a ham sandwich." University of Illinois law professor, Andrew D. Leipold, has been quoted as stating, "If the prosecutor wants an indictment and doesn't get one, something has gone horribly wrong." This is not to say that something went wrong in either Ferguson or New York, but many question why we would not take reasonable steps to eliminate possible bias in a local prosecutor. Throughout law school, I had the opportunity to work as an intern for both a prosecutor and public defender's office, and I agree with many people that it could be difficult for a local prosecutor to effectively prosecute a local police officer. Again, this is not to say it is impossible or to even suggest that bias was present in either of the recent high profile cases. However, many times, prosecutors work very closely with the police force and, with my experience, many of them are friends. There is nothing wrong with this, but it could create a difficult situation if the police officer commits a crime. This leads to the difficult question of how effective is a local prosecutor in presenting a case against one of his colleagues? An independent prosecutor is someone who could be brought in to prosecute a police officer. The independent prosecutor would not be from the local jurisdiction and, therefore, theoretically could eliminate or limit the potential conflict of interest. However, even if an independent prosecutor is used, it is still impossible to remove all bias from the prosecution process. First, the police department where the officer worked is likely going to be the department responsible for investigating the incident. This is not to say that the police department cannot complete a good faith investigation, but it could raise concerns. Moreover, jury bias will always be present. Police officers have to be allowed to use deadly force and juries know this. Many times, officers must make split second decisions and they cannot always be right. It can be difficult for a jury to punish someone who is responsible for protecting their community, even when the wrong decision was made and especially when contrasting stories exist. People do not want their safety to be put in jeopardy by limiting an officer's abilities. Regardless of a person's opinion regarding the recent cases, the legal profession must always reflect on itself to ensure that justice is served.   Over the past several weeks, two separate grand juries decided not to indict two police officers for the deaths of Michael Brown and Eric Garner. First, before I go any further, this is a topic many people feel very passionate about and this article is not my personal opinion on what is right or wrong. Instead, I want to look at the process that takes place when allegations are made against a police officer, such as Darren Wilson or Daniel Pantaleo, and specifically focus on the grand jury process that has been the topic of much conversation and confusion. I sincerely appreciate the sacrifice made by police officers when they risk their own safety to protect our communities, I have many friends who serve in law enforcement positions, but also realize that, like all professionals, police officers are not perfect.

Ndamukong Suh, defensive tackle for the Detroit Lions, was suspended after stepping on Green Bay Packers Quarterback Aaron Rodgers ' leg after a play during a Monday night football game. I watched the video and call me naïve, but I don't know that I believe it was necessarily intentional. Regardless of what I think, it doesn't matter, I commend the NFL for being cautious or even at times overly-cautious. The NFL is really stepping up to protect its players. With all the concussion precautions and protecting the passers and the kickers, I can live with their ruling. At the time of the incident, Suh was not flagged on the play; they found repeated reviews of the films "made the act look more malicious." Aaron Rodgers did complain right then to the official as he had already been suffering from a calf injury since earlier in the season. I understand that the normal fine that would have hit him in his wallet was not the route the NFL took because apparently, Suh has made a reputation for himself and is guilty of playing dirty in the past, which he has paid hundreds of thousands of dollars in fines and been suspended from games before. I didn't know that either when I originally watched the video. You can watch it and decide on your own what you think, but for me, I'm just glad someone is watching out for the guys on the field and realizing it's not all about the game, it's about real people out there doing a job that deserve to be protected and respected.

Last month West Virginia voters sent a message for change, seating a Republican legislative majority for the first time in 80 years. Candidates on both sides of the aisle ran big on jobs. Candidates that campaigned on staunch opposition to the EPA's efforts to mitigate the impact of climate change resonated with voters that believe that the President and his supporters have waged a war on coal, and voters resoundingly placed their trust in the Republican Party this election season to honor their campaign promises of retaining and adding good jobs here in West Virginia. When it comes to a good job, I think we can all agree that, at a minimum, a good job has to be a safe job. The real job creators, the ones worth voting for, understand this and fight hard to uphold laws designed to ensure a safe working environment. One of the many things that makes me proud to be a West Virginian is the way West Virginia has historically stood up for workplace safety. Among the most important ways West Virginia has helped protect its workforce is by enacting W.Va. Code § 23-4-2, which allows a jury to determine the value of the harms and losses to an employee who is hurt on the job because an employer knowingly risked that employee's safety. Ordinarily, state workers' compensation laws provide employers with immunity from civil lawsuits by injured workers. In exchange for that immunity the injured worker simply has to be hurt "on the job," without having to prove an employer's fault, to receive workers' compensation benefits. However, a number of states have taken measures over the years to strip an employer of its immunity and hold the employer responsible for the entirety of the harms and losses an employee sustains when the employer acts with intent to harm the employee or forces an employee to act in violation of a specific safety law. Under those scenarios, some states allow an employee to seek compensation for harms and losses, like past and future pain and suffering, mental and emotional anguish and the death of a loved one, that are ordinarily unavailable or limited under worker's compensation law. Deliberate intent laws protect a worker's fundamental right to a safe job by deterring employers from pressuring workers to engage in unsafe conduct and making the employers pay full freight if they maim or kill a worker because they cut safety corners. Deliberate intent laws are a hugely important mechanism to ensure a safe workplace, because OSHA fines, the only other mechanism in place to address unsafe workplaces, are typically too small to prompt any meaningful reform. On the other hand, being made to answer for the entire scope of the harms and losses to an employee can prove much costlier to those employers willing to risk a worker's safety by knowingly placing him in harm's way. So, unsurprisingly, the past couple of decades have seen a highly organized, concerted, nationwide effort by Corporate America to eliminate state's deliberate intent laws. Ohio, for instance, has succumbed to a barrage of lobbying efforts over the years that have gutted Ohio's deliberate intent law and effectively repealed it. Although deliberate intent remains on the books in Ohio, "reform" efforts have rendered it nothing more than a paper tiger in terms of deterring unscrupulous employer behavior. Currently, in order to have the full measure of the harms and losses to an injured worker valued by a jury, Ohio requires an employee to prove, by the much higher legal standard of clear and convincing evidence, that the employer had an actual, who is specifically gunning for you in the workplace, this is a practically impossible standard for employees to meet, and the current law provides no true incentive for employers to closely adhere to safety laws. West Virginia's deliberate intent law has been subjected to the same type of "reform" efforts over the last decade, but we have successfully resisted such efforts, thus far, thanks to legislators that have remained steadfast and worked hard to protect the fundamental right of every employee to a safe workplace. But you better believe the West Virginia legislature will continue to be pressured to repeal West Virginia's deliberate intent law, likely with a renewed vigor now that corporate lobbyists and organizations, like the notorious Koch brothers, have turned West Virginia red. Safe jobs allow us to raise families. Safe jobs allow us to be productive, supportive members of our communities. Safe jobs give us the freedom to grown and learn so we can be the best employees we can be. Safe jobs give us pride in ourselves and in our great State. Those things quickly evaporate for workers seriously injured because their employer knowingly put them in harm's way. Politicians who are really about job creation recognize this reality, and will do everything they can to uphold West Virginia's deliberate intent law. For all of you voters who chose candidates on the basis of their position on jobs, keep a close eye on their approach to West Virginia's deliberate intent law. That is the litmus test that will reveal whether your elected official actually walks the walk. Elected officials that don't fully support your right to a safe workplace don't deserve your support at the polls next time.   Last month West Virginia voters sent a message for change, seating a Republican legislative majority for the first time in 80 years. Candidates on both sides of the aisle ran big on jobs. Candidates that campaigned on staunch opposition to the EPA's efforts to mitigate the impact of climate change resonated with voters that believe that the President and his supporters have waged a war on coal, and voters resoundingly placed their trust in the Republican Party this election season to honor their campaign promises of retaining and adding good jobs here in West Virginia.

One of the most difficult decisions most families face at some point in their lives is having to place a loved one in a nursing home or other similar facility. Most of us will take on this challenge at some point and, as heart wrenching as it often is, sometimes there really is no other practical choice. For a family, that decision comes with tremendous responsibility to remain diligent in making certain that their loved ones are adequately fed, hydrated and regularly moved, to prevent bed sores that can easily lead to a terminal infection. Recently, through my own experiences, I've come to learn of another nursing home hazard to guard against, namely the possibility that our loved ones are being grossly overmedicated with drugs, being used off-label, to suppress the anxiety or aggression that can sometimes come with Alzheimer's disease and dementia. A 2011 study by the U.S. Department of Health and Human Resources found that found that 88 percent of Medicare claims for antipsychotics prescribed in nursing homes were for treating symptoms of dementia. The problem is that not only are antipsychotic drugs not approved to treat dementia, they come with a specific, black box warning that elderly patients with dementia-related psychosis who are treated with antipsychotic drugs are at an increased risk for heart failure, infections and death. Nevertheless, estimates by patient advocates reveal that approximately 300,000 nursing home residents nationwide continue to receive antipsychotic medications to "calm" their dementia-related symptoms. In recent years, substantial effort has been focused on this nationwide problem. In 2012, the federal Centers for Medicare and Medicaid Services ("CMS") undertook a concerted effort to reduce nursing home use of antipsychotic drugs, but missed their target. In 2013, Johnson & Johnson agreed to a $2.2 billion settlement of civil and criminal charges with the U.S. Department of Justice for its aggressive off-label marketing of antipsychotic drugs to nursing homes. Nevertheless, reduction in the overuse of these drugs in the nursing home setting has proven extremely difficult and, according to CMS, over 20 percent of long-stay nursing home residents continue to receive these drugs. What's even more alarming is that the residents receiving antipsychotics are not always the aggressive or difficult ones. One study, found that 22 percent of dementia residents on antipsychotics did not have any behavioral symptoms and 29.5 percent had non-aggressive behavioral symptoms. Another study revealed that antipsychotics were being used off-label in nursing homes to treat relatively benign behavioral symptoms such as wandering, crying or "resisting care." Although many nursing homes undoubtedly find it more convenient to manage resident anxiety, confusion, or behavioral issues with antipsychotics, this practice amounts to chemical restraint, plain and simple. It's really not much different than strapping a patient down for shock therapy but, given the well-developed body of research regarding the substantial risks to dementia patients subject to this practice, it is dangerous and misguided. Our loved ones deserve better, and there are alternatives. Residents often become agitated because they are in pain or discomfort. Simply giving them due attention, to identify and address those underlying causes, can make a substantial difference. In addition, evidence continues to mount showing that well-targeted, non-drug therapies, such as aromatherapy, music therapy, massage therapy, behavior management techniques, and animal-assisted therapy, can benefit dementia patients and help reduce certain behavioral issues. CMS studies have shown that changes promoting such therapies may be achievable without a substantial investment in additional resources and, when compared to the risks and costs of the off-label antipsychotics, these alternatives seem like a relative bargain. Although strides have been made towards reducing the practice of chemically restraining nursing home residents, this practice unfortunately remains relatively widespread today. Therefore, it continues to fall to those of us with parents, grandparents, friends or other relatives in such facilities to remain diligent in an effort to enhance the quality of life for our loved ones, to protect them from substandard care and to help promote goal-directed, person-centered care for each and every resident. Please take the time to learn about the type of medication your loved ones are being prescribed. Read the labels on that medication. If you feel a resident is being subjected to improper chemical restraint, speak up. Contact the director of nursing at the facility. Contact your loved one's doctor. If that doesn't work, report the practice to OHFLAC, the State agency that regulates nursing homes and other similar facilities, or contact an experienced attorney who can help get your loved one's life back on track and ensure the safest and best care for their particular circumstances.   One of the most difficult decisions most families face at some point in their lives is having to place a loved one in a nursing home or other similar facility. Most of us will take on this challenge at some point and, as heart wrenching as it often is, sometimes there really is no other practical choice. For a family, that decision comes with tremendous responsibility to remain diligent in making certain that their loved ones are adequately fed, hydrated and regularly moved, to prevent bed sores that can easily lead to a terminal infection. Recently, through my own experiences, I've come to learn of another nursing home hazard to guard against, namely the possibility that our loved ones are being grossly overmedicated with drugs, being used off-label, to suppress the anxiety or aggression that can sometimes come with Alzheimer's disease and dementia.

On Saturday, a man named Ismaaiyl Brinsley woke up in Baltimore and shot his girlfriend in the stomach. He then drove to New York City and killed two police officers, Wenjian Liu and Rafael Ramos, before taking his own life. The officers were the 44 th and 45 th law enforcement officers to fall to gunfire in 2014. The crime in New York stands out in many ways. In a pre-meditated, senseless, and cowardly fashion, Brinsley snuck up on a marked police vehicle and shot the officers as they sat in the front seat. Brinsley's social media messages indicate that he intended to kill LEOs for the sheer sake of it. Because of Brinsley's sickening and depraved actions, two families lost husbands and one lost a father. Ramos had two sons, one just thirteen-years-old. Liu was a newlywed. The vicious and pointless nature of the crime will haunt the families and friends of these men for the rest of their lives. However, Ramos and Liu are not the first United States LEOs to lose their lives to "revenge-style" killings, even this year. This past June, in Las Vegas, two police officers were shot in an equally cowardly and pointless attack. Officers Igor Soldo and Alyn Beck were murdered by white supremacists Jerad and Amanda Miller, while eating pizza on their lunch break. The killers left a swastika and Gadsen flag on Beck's body. The Millers also killed Joseph Wilcox, a civilian who attempted to stop them. Similar to Brinsley, these killers had boasted in advance of their intention to kill police officers because they believed they were "oppressors," and followed through. Jerad Miller was killed by police and Amanda Miller shot herself before she could be apprehended. Like every mass shooting in America, there are two main lines of thinking. One is that mass shooters like Brinsley or the Millers are psychopaths, or mentally ill, if you prefer. No broader conclusions can be drawn from their actions and, at best, we can hope to watch out for people who may suddenly open fire on others, and then themselves, in this manner. In this mindset, mass shootings are a sort of natural disaster that can't be predicted or reliably prevented. The other line of thinking is that Millers or Brinsleys "represent" whatever ideas they claim to have about what they are doing, and everyone else with any similar thoughts. In this case, Brinsley's extreme anti-police postings - death threats in fact - mean to some that he represents anyone who has been critical of the Brown, Garner, or Tamir Rice deaths that have been so much in the news. Likewise, in some minds, the Millers were representative of the Cliven Bundy Ranch protesters and anti-tax or anti-government regulation thinking out west. Too often, the view a person has of the "meaning" of a mass shooting depends on what they already thought before it happened. We're so deeply buried in our politics that a mass murder of human beings becomes nothing more than a bloody Rorschach test for whether a person watches right-wing or left-wing TV news. New facts and situations confirm what we already think, so nothing is solved, nothing is learned, and nothing improves. On April 4, 1968, Martin Luther King was assassinated. News traveled so slowly then that a group of people who had assembled to hear Robert Kennedy speak actually got the news from him, instead of off their phones and tablets. Kennedy knew something of violence, having lost his elder brother to an assassin's bullet, and he would soon die himself at the lands of another "lone gunman." Here is what he said, in part: What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence and lawlessness, but is love, and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or whether they be black. So I ask you tonight to return home, to say a prayer for the family of Martin Luther King -- yeah, it's true -- but more importantly to say a prayer for our own country, which all of us love -- a prayer for understanding and that compassion of which I spoke. We can do well in this country. We will have difficult times. We've had difficult times in the past, but we -- and we will have difficult times in the future. It is not the end of violence; it is not the end of lawlessness; and it's not the end of disorder. But the vast majority of white people and the vast majority of black people in this country want to live together, want to improve the quality of our life, and want justice for all human beings that abide in our land. You can score the killing if you want, by color, by uniform, by point of view, even. You can explain how each one shows how right you are about everything you've already said, or thought, or heard. We are as good at that as anything we do. But there is another way to spend our energy. We can say a prayer for our country; and, in 2015, we can try to live more peacefully, more justly, and with more compassion for "all human beings that abide in our land."

Tune in to this week's episode of the Bordas & Bordas Legal Review wherein Jamie Bordas and Chris Regan discuss the new Republican West Virginia Legislature and what type of agenda it might bring for West Virginia in the coming years. Will West Virginia institute the death penalty? Will action be taken on abortion bans after twenty weeks of pregnancy? Will there be changes to our legal system? Most of all, will any of the changes implemented by the new Republican majority actually benefit ordinary West Virginians? Jamie and Chris discuss it all in an episode you won't want to miss. You can view the Bordas & Bordas Legal Review locally on Comcast Channel 14 or also online, both streaming and in the archive. The current episode is embedded within this post. You can tune in to Comcast Channel 14 or watch this episode in the Vimeo archives. Check out the WLUTV schedule for other B&BLR show times and programming from WLUTV.

Finally! The recognition I've been waiting on for 41 years has arrived. Moundsville, West Virginia has been ranked the 6 th Most Exciting Place to Live in West Virginia by some real estate website I've never heard of. Sure, it's not U.S. News and World Report, or even USA Today, but I will take it! After all, Moundsville is where I was born, on Olive Avenue straight across from East End Playground. It's where my father was born too. On "Spanish Row," just off Jefferson Ave. It's where most of my family has always lived and worked, all of my grandparents, my aunts, uncles and cousins. My Uncle Larry opened and ran Pink Door Pizza (still going strong today). My Grandma, Mary, and my Aunt, Ramona, opened and ran the Flavor Mate soda shop. And though we moved up the road a little ways when I was still young, on balance I'd venture to say I've spent as much time in Moundsville as any place else. At least enough time to know that to grow up in Moundsville is to love it. For me Moundsville has always held a certain All-American mythos. I feel both peaceful and optimistic when I'm there. That feeling was born through my Dad, who still has great stories to tell me about being raised in Moundsville. My Dad grew up at the height of Moundsville's population, when East End Playground teemed every night with the electricity of a community fully engaged in youth sports, when the Moundsville field house would boast the likes of basketball players like Hot Rod Hundley and the Harlem Globetrotters or famous wrestlers like Gorgeous George. When real hot rods ruled on Jefferson Avenue, lines formed around the block to take in the latest picture at the Strand and the Spurr Pool teemed with teenagers from everywhere for the weekly Swim Dances. My guess is when Jimmy Stewart came to Moundsville to film Fool's Parade he felt a lot like he'd entered a living, breathing Frank Capra set. After all, Moundsville always felt like the best parts of Bedford Falls to me. In an era of sock hops and soda shops, Moundsville had it all. Working class sensibilities with a strong sense of community and togetherness. Americana writ large. I was fortunate enough to get some time in the afterglow of that vibe and it was just as magical for me. In many ways, the Moundsville of the 80's and 90's was the same place as my parents' Moundsville. From the dances to the Strand to the nightly ballgames at East End, I was lucky enough to catch that wave, even if it wasn't quite the monster my folks got to ride. I can remember many summer nights when the fence line would still be filled with parents, fans, and girls (apologies to my wife) watching us hoop or play baseball. I still got to spend many a night at Spurr Pool, just on the basketball court instead of on the dance floor. Moundsville is where I learned to drive a car, date a girl, play Pinochle and swing for the fences. Moundsville taught me about hard work and respect. Moundsville gave me confidence. And wonderful memories. And a lot of good friends. And Moundsville also taught me how to become mentally tough and compete in a healthy way. Starting from the time I was about 14, my friends and I would bum any ride we could get to Moundsville to play basketball at East End or Spurr Pool, wherever the best games were (and most nights that was a toss-up). It was there that we encountered the likes of Moundsville natives Dave Ealy, John Harler, Mark Crow, Kent Yoho, Gunnar Rose, Al Ingram, Steve Lavenski and plenty of other legitimate, adult athletes still in their prime. Now you might think those guys would have gone a little easy on us youngsters still trying to learn their way in the game. But you'd be wrong. Those men treated us kids like any other players. They posted us up, muscled us, stole the ball from us, blocked our shots, elbowed for position and did everything else they could to win. In short, they did us the best favor they ever could have. Of course none of us liked it at first. When we were 14 and 15, my friends and I would lose every game, sometimes never scoring more than a point or two. But we stuck together and learned we'd never get very far without each other. Although we couldn't see it at the time, those older players were doing their best to help us build character. And by the time we were 16, the benefits of those hard lessons started to pay off. We'd still lose a lot, but we started to be able to hold our own, to gel as a unit and even occasionally win a game or two. By the time we were seniors, our transformation was complete, and we were the ones dominating the win column. That street-level education paid off in spades during my senior basketball season when we boasted one of the most competitive teams in Monarch history. We had size, shooters, depth, athleticism and a toughness forged on those Moundsville playgrounds. But more than that, we were bolstered by a community that was genuinely invested in our team; the same way Moundsville always got behind my dad's teams growing up. Something special happened over the course of those summers we spent battling the locals. Even though they treated us as adversaries on the court, those men came to embrace us off it. And by the time we were seniors, the City of Moundsville could boast a legitimate claim to our team. We had three great coaches and mentors on the court and at least a dozen more off it. We had more than just a High School team. It was truly a community's team. And I remain convinced that it was that community foundation that played a pivotal role in our success and helped us to thrive in a hugely competitive sea of local talent (folks who played or followed hoops in '91 know how loaded every team was that season). Dunking in warm-ups was forbidden at the time, so we'd always try to get on the floor as early as possible, before the referees came out (sorry John Artimez), to put on our own dunk contest, and fans would actually show up for that in droves. Whatever energy I'd expended trying to go all out in warm-ups was immediately replaced the moment we came back out of the locker room to a jam-packed house of cheering fans. The Moundsville Fieldhouse was at capacity or more for every home game we played that season and it all felt like one big, happy family. I've never felt anything quite like that special feeling, on that scale, since, and I'll always be grateful to Moundsville for gifting me with that. That kind of wholesale communal embrace has always been in somewhat short supply, but never in Moundsville. And, for me, that embrace was hardly limited to sports. From doctors to judges, to police officers and in practically all other walks of life, this City has always offered support and insight to help me grow in a healthy, positive way. Today, I've moved even a little further up the road, but I've never truly left Moundsville, and I never will. I remain so blessed to be able to work in Moundsville. To shop, eat, visit, and bring my family to Moundsville. To tell my kids the same kind of stories my Dad told me about growing up in Moundsville. What a gift it is to be able to work in a City where almost every time I walk outside, or down the street, I run into someone I know who is genuinely happy to connect with me, even just for a minute or two. A City where I see still get to interact with many of the same folks who were so supportive of me growing up. To this day, I still feel that same electricity I felt when I was a kid on a Fall Friday night when the Monarchs are about to kick it off, or when the Strand hosts an event or even when I ride by East End on a warm summer night and see the kids playing basketball and the people lining the fence watching a game. As society seemingly becomes more insular with each generation, I think communities like Moundsville become rarer and rarer. But near as I can tell, Moundsville has done its best to stay the course. To my eye, Moundsville remains as in tune with the resonance of its rich history as well as any place. So I'm thrilled to see Moundsville get some well-deserved recognition, even if it is from some obscure website. My hats off to you Moundsville. And take that Charleston (which ranked 7th)! Thanks for everything Moundsville! You got my vote.