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In my prior posts on this subject, I discussed how the law requires a citizen to get the permission of a doctor before suing one and how those laws begin the process of allowing doctors to control what facts a jury gets to hear. The next step in the case requires some explanation of what expert witnesses are and how they are supposed to be used in court cases. As defined by the Federal Rules of Evidence and most state counterparts, an expert witness is simply “ witness who is qualified as an expert by knowledge, skill, experience, training, or education” who “may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” I’ve highlighted the last part of that because it is critically important in understanding the point I wish to make about the use of expert witnesses in malpractice cases. Expert witnesses were only ever meant to help the jury understand the evidence. They were only ever meant to help the jury determine a fact. That is, the jury receives all of the relevant facts and determines for itself what facts are important and uses those important facts to determine what happened. If expert witnesses can help the jury do that job, great. But that’s all it was ever supposed to be. The jury was the fact-finder and its members used their own judgment to determine what was important and what was not. If experts were used at all, it was only to help (assist) the jury with its job. They jury was the primary fact-finder. Experts were secondary helpers, at most. Let’s take a look at what has happened in medical negligence cases. Are experts still playing the helper role they were designed to play or has their role expanded far beyond that?

In the first part of my series of posts on the subject of expert witnesses in medical malpractice case, I talked about the dangers of allowing so-called experts to interfere with the jury’s fact-finding role.  Juries are supposed to hear all of the relevant facts and make their decisions based on the facts that they believe are important, with as little interference as possible from outside influences.  We can and should trust our fellow citizens with this important task.  However, getting those facts to our community-representatives on the jury is a challenging task in a medical negligence case. Let’s start right at the beginning. You don’t need a truck driver’s permission to sue a truck driver. You don’t need a stockbroker’s permission to sue a stockbroker. In the vast majority of cases, you don’t need the permission of somebody like the defendant to file a lawsuit.  In medical negligence cases, that is simply not true. In order to even file a case against a doctor you first need the permission of a doctor just like the defendant. Because similar provisions exist in Pennsylvania and Ohio, I’ll use West Virginia as an example. When a West Virginia family has been victimized by the misconduct of a doctor, they often do not and cannot know all of the details of what happened because those details are controlled, to a large extent, by the doctors and the hospital that caused the harm in the first place. These families weren’t scrubbed in for the surgery that caused their loved-one’s death. The only thing they know about what happened during that surgery is what the doctors told them. Of course, one of the first steps in the case is to collect all of the medical records. Again, however, the facts that are contained in those records and the spin put on those facts are all controlled by the doctors and the hospital. Obviously, the family is already at a significant disadvantage. The key facts of the case have already been written by the people who caused the harm. Beyond that, this family will now need the permission of somebody just like the defendant before they can even file suit. West Virginia Code §55-7B-6 relates to all medical negligence cases in West Virginia. It states that before ordinary citizens of West Virginia can even file a lawsuit, they need permission to do so from somebody just like the defendant. If a West Virginia citizen is killed by the malpractice of a vascular surgeon, that citizen will need the permission of a vascular surgeon to even file a case, in most instances. More than that, the expert has to state exactly what happened and how that conduct caused harm. The expert’s opinion has to be based on the records, and the expert has to specifically identify the records that he or she has reviewed. Now, there are many well-qualified experts out there willing to speak up for families who have been hurt, but they are still doctors who see things like doctors do. The problem is clear. Before a case even starts, facts written by the defendant have now been filtered through a doctor with the same job. Ordinary citizens are supposed to have the right to seek justice in the courts that they pay for.  In malpractice cases, that right is subject to the blessing of doctors. Through this mechanism, the scope of what the jury gets to hear has already narrowed. It gets worse, as I’ll discuss in my next post on the subject.

One of the remarkable features of the American system of justice is the use of juries in civil cases.  The jury, comprised of members of the community to speak on its behalf, ultimately decides the facts of the case and renders a verdict. We rightly trust our fellow citizens with this important task.  The use of a jury in civil cases should stand as a rejection of trial by elites – people who think they know better than so-called average citizens.  It also stands as a rejection of the tempting idea that defendants should be tried to a jury of their peers, narrowly defined.  When a trucking company causes a wreck by overworking its drivers, would we want that case tried to a jury comprised exclusively of trucking company executives?  Of course not.  When a corporation understaffs its nursing home and the residents suffer as a result, do we think it makes sense for that jury to be comprised exclusively of nursing home executives?  Of course not.  Along similar lines, we would not want a medical negligence case against a doctor tried exclusively to a jury of doctors, so our system of civil justice is set up to ensure that malpractices cases are tried to a jury made up of members of the community, just like other cases. Of course, the companies that provide malpractice insurance to doctors and hospitals know this all too well.  They know they can’t get a jury made up of doctors and hospital executives.  But what’s the next best thing?  What if there was a way to make sure that the jury only got to hear certain facts?  What if there was a way to set the system up so that the jury only got to hear facts that the doctors thought were important, and no other facts that ordinary citizens might think were critically important?  What if there were a way to make sure that even those facts were filtered through a panel of so-called experts, who got to tell the jury not only what the facts of the case are, but why those facts are important?  If the system could be set up like that, there would be little room for the members of the jury to use their own collective wisdom and experience in deciding medical negligence cases.  Doctors would tell them what facts were important and the jury would never even get to hear any other facts.  They jury would not get to decide what facts were important and what facts were not.  Doctors would.  The jury would not even get to decide why or if certain facts were important.  Doctors would.  The jury’s sole function would be to pick between competing facts that were already pre-selected and filtered for them by members of the medical profession.  I would argue that this is not the way our system of justice is supposed to work, but it is exactly what has happened to a large extent in medical negligence cases.  I’ll discuss the beginnings of this problem in the next post in this series.

When you experience a situation where you realize that you may need legal help, it can seem overwhelming at first. You may be injured or sick, you may have just lost a job, or even worse, a loved one. There might be calls to make to insurance companies, medical bills piling up, a vehicle out of commission, and many other things you must deal with that seem confusing or intimidating. Contacting an attorney to discuss your potential legal situation may seem like another scary task about which you are just not certain of what to do. This doesn’t need to be the case, and there are different ways to reach out to an attorney to get an evaluation of your potential case and learn about your legal options. Telephone calls One of the most common ways to reach an attorney and discuss a potential legal claim is to pick up the phone and call the attorneys’ office. Firms will typically make their telephone number readily available through print advertising, TV and radio commercials, and their website. Once you call in, you can explain to the person who answers the phone that you would like to speak to a lawyer about a potential legal situation, or can even just say that you were in a car wreck, lost your job, or had a bad medical experience, and want to talk to a lawyer. Once you have been put in touch with a lawyer, they will go through your situation in more detail to determine what your legal options are. Telephone calls to an attorney are a fast and direct way to discuss the situation, however, if you call after business hours, it may be more difficult to speak to someone right away. Phone calls can also be overwhelming for some people, particularly when it requires them to discuss something sensitive or stressful. If that is the case, there are some other options to reach out initially to an attorney. Website inquiries Another direct way to contact a lawyer’s office about a legal claim is to submit some information through their website. This is beneficial for a lot of people who might not be able to initially call a lawyer’s office during business hours, and can also reduce some of the stress of having to speak to someone on the phone and answer questions about a difficult situation right off the bat. Oftentimes, the website will have a chat function that allows you to message with an intake representative to provide some information about your situation, after which, you will be put in touch with an attorney who can call or email you to discuss the situation in more depth. This is a good option for reaching out to an attorney at any time of day and for people who may not be quite ready to get into a full conversation about their situation. Social media Many lawyers’ offices have social media pages, such as Facebook and Twitter, where they can interact with new clients and make arrangements to discuss potential legal claims. You can send direct messages to the account through their pages, and explain that you are looking to speak to a lawyer. This can be a good option if you do not have access to a computer but can access the social media accounts through apps on your phone. You can contact the attorneys at Bordas & Bordas to discuss potential legal claims through any of these channels. Our attorneys and staff members will make sure that you are promptly directed to the appropriate person to speak to about your situation, and you will receive timely responses to any calls, messages, or submissions through our website. While contacting a lawyer can be an unfamiliar thing to do, we are happy to help make the process as easy on you as possible.

In my last blog I covered how to support a claim for lost earnings when you are self-employed. Today I would like to cover the law that will support how you can make a claim for future lost earnings for more than what you have made in the past. In Lewis v. Pruitt, 487 A.2d 16, 21 (Pa. Super. Ct. 1985), the Superior Court stated the test for “impaired earning capacity” as being “whether the economic horizon of the disabled person has been shortened because of the injuries sustained as a result of the tortfeasor’s negligence.”  (Citing Bochar v. J.B. Martin Motors, 97 A.2d 813 (Pa. Super. Ct. 1953); Janson v. Hughes, 455 A.2d 670 (Pa. Super. Ct. 1982).) In Lewis, the plaintiff was employed at a dress manufacturing plant at the time of her accident. However, she had graduated from the Empire Beauty School in York, Pa. and was licensed as a beautician. She had previously maintained her own shop with equipment in her home, working thirty to forty hours a week for eleven years. Id. at 20.  Plaintiff had continued to do beauty work for friends and family, while employed at the dress manufacturing plant, “and had even discussed reopening a beauty shop with two of her fellow workers.” Id. at 20.  Defendant argued that the plaintiff needed to evidence a “definite plan to return to work in a given occupation” in order for it to be permissible to introduce evidence to demonstrate a loss of earning capacity in that field. Id. at 21.  The court rejected this argument. Id.  Instead, the court held, “Where, as here, the plaintiff has maintained her skills…continued to practice in her trade albeit on a part-time basis and engaged in discussions pointing towards a return to that occupation, we hold that it was not an abuse of discretion for the trial judge to submit this evidence to the jury on the issue of impairment of earning capacity.” Id.  In fact, the plaintiff in Lewis even “introduced evidence of the probable compensation available to her were she to resume full-time work as of the time of trial.” Lewis shows that a plaintiff need not even be practicing in a given trade at the time of the injury in order to submit to the jury evidence of future lost earnings in that trade.  As such, if you may not have been earning much in the job at the time of the incident because of your choice to be self-employed or have a job in a field that will not allow you to make as much as in another field, if you could make more money in the future by working for someone else or in a second trade you are skilled in, is relevant as to what you could earn based on your skills and experience; regardless of whether you had a “definite intent” to do so.  Thus, if it was permissible for the plaintiff in Lewis to introduce evidence of “probable compensation” were she was to return to a trade she did not actively practice, it should be permissible for you to introduce evidence of probable compensation if you were to practice your trade in a different way (i.e., through transitioning from self-employment to employment for someone else or in the second trade you are skilled in). Restatement (Second) of Torts § 924 cmt. d states, in regard to lost future earnings, “The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm.”  Accordingly, “the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff probably would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined.” Id. (emphasis added).  The use of the phrase “could have received” suggests that future earnings can be measured not just with reference to what a plaintiff would have earned, with mathematical precision or certainty, but also to what a plaintiff could earn, taking into account relevant factors such as “the type of work that the plaintiff has done and the type of work that, in view of his physical condition, education, experience and age, he would have been doing and will be likely to do in the future during the working period of his life.” Id. § 924 cmt. d was cited approvingly by the Pennsylvania Superior Court in Pratt v. Stein, 444 A.2d 674, 696 n.36 (Pa. Super. Ct. 1982).  In Pratt, appellants argued, inter alia, that “the trial judge erred in charging the jury that an award for loss of future earnings represents the amount which appellee ‘would have or could have earned during his life expectancy but for the injuries that he sustained in this case.’” Id. (Emphasis in original.) Citing the Restatement (Second) § 924, the Superior Court stated that this approach “is axiomatic,” and that the trial court’s charge aligned precisely with the Restatement; therefore, there was no error. Id. Restatement (Second) § 924 cmt. d. and Pratt support calculation of a future lost earnings based not just on what one would have earned through self-employment, but also on what could have earned in other employment, but for injury. In Gillingham v. Consol Energy, Inc., 51 A.3d 841, 864 (Pa. Super. Ct. 2012), the Superior Court stated that a future earnings calculation “requires a reasonable basis to support such an award…Furthermore, to ensure that a plaintiff is fully compensated for loss future earnings , projected increases in productivity must be taken into account… by factors that include age, maturity, education, skill, and technology advances” (citing Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601 (Pa. Super. Ct. 2009)).  Moreover, a plaintiff need not have expert testimony to show loss of earning capacity; rather, a plaintiff can rely on his own testimony. Gillingham, 51 A.3d at 866.  In Gillingham —which was a case of consolidated appeals made by Consol Energy, Inc. against rulings made at the trial level in favor of appellees the Gillinghams and the Deckers, id. at 847. The Superior Court affirmed the trial court’s award of future lost earnings and future earning capacity as to both appellees.  The case of Mr. Decker is elucidating, as the court held that Decker could be awarded damages for future lost earnings and future lost earning capacity which exceeded what he was currently making with his employer at the time of the accident. Regarding Mr. Decker, the tortfeasor, Consol, challenged “the evidence lost future earnings to whether he would have earned commissions .” Id. at 864.  Consol alleged that the lost future earnings were “based on speculation.” Id.  Decker, at the time of the accident, had been earning no commission, for the two years he was with his current employer, Pump Action; and he was earning $100,000 per year, though he had been earning $125,000 with a prior employer. Id.  Decker anticipated that his salary at his current employer would have continued to increase to $125,000 (while he was only earning $60,000 - $80,000 per year post-accident). Decker v. Consol Energy, Inc., 2011 Pa. D. & C. LEXIS 167 at *27 (Pa. D. & C. 2011).  The jury awarded Decker $528,000, or $44,000 per year ($125,000 - $81,000), in lost wages, and $15,000 per year in lost commission for 12 remaining work years, which totaled $708,000. Id. at *24. In holding that the evidence supported the jury’s determination as to Mr. Decker’s future ability to earn commission, the court noted that “Mr. Decker had twenty-seven years’ experience in… a vast amount of skill in the field.  Additionally he had many contacts in the pertinent industry from working at .  He stated that he planned to work until age seventy because he did not have much in retirement savings.  There was nothing speculative or uncertain about the proof offered, and the jury verdict was within the range of that established by the evidence.” Gillingham, 51 A.3d at 865. As in Gillingham, an injured person may expect to earn more in the future based on increases in productivity.  In Gillingham, Mr. Decker anticipated using his skills and contacts in the future to receive more commission than he had received in his employment prior to the accident. Thus, there are numerous examples of which somebody could actually recover more money than they had in the past. Examples would be a recent college grad, a resident becoming a doctor, a person who was making less money being self-employed then he could had he worked for somebody else, and a person who just recently changed jobs. In short, there are various arguments, if the facts support it, to actually recover more money than they had earned in the past. It is important to understand, one is not always limited by their past earnings.

Texting has become a standard part of today’s communication. In addition to the text communications that we exchange with friends, family members, and colleagues, we also receive text messages from doctor’s offices, hair salons, pharmacies, restaurants, delivery services, and other businesses to make and confirm reservations and appointments, relay that orders are ready, or provide other information to help facilitate things in our busy lives. Because texting is so common, many clients may want to use it as a way to communicate with their attorney during the course of a lawsuit. While texting with your attorney can be a quick and easy way to share information, there are important considerations to take into account when texting with an attorney, and in many circumstances, texting may not be the appropriate method of communicating with your lawyer. The most important consideration when communicating with your attorney in any manner, including text message, is that the attorney-client privilege remain protected. This means that the communications between you and your attorney need to stay between you and your attorney. As a general rule other people should not be able to participate, listen, or read what you and your lawyer discuss, otherwise the attorney-client privilege may be deemed waived and these communications may be subject to disclosure to the other side in your lawsuit. Texting can pose some significant risks to protecting the confidentiality of communications with your lawyer. Depending on privacy settings on your cell phone, the texts may be visible on the home screen for anyone to see as they are delivered to your phone, or someone may be able to simply pick up your phone and read through all of your text messages, including with your lawyer. Texts can also be harder for your lawyer to document in their file than emails, which are usually linked to a server and able to be saved in their original format, or hard copy communications such as letters, which are copied and filed when the letter is drafted and sent. Text messages can also be difficult for communicating complicated or in-depth information, and are not ideal for conversations where you may have a lot of questions for your lawyer and they will need to give you answers with lengthy explanations. In short, while it may be convenient and not pose problems to text your attorney for some basic communications, such as to confirm the time of a meeting, or the location of a deposition, keep in mind that text messages with your attorney should be exchanged with some caution and are often not ideal for discussions about your case. Emails and telephone calls are a more secure and practical way to effectively communicate with your lawyer in a way that ensures confidentiality and the attorney-client privilege are maintained.

As most people are aware, Pennsylvania law requires all drivers to carry a minimum of $15,000 in liability insurance. However, the sad reality is that there are many people on the road who operate their vehicles without the required insurance coverage. A pedestrian or passenger of a vehicle who are injured by an uninsured driver, and who do not own a vehicle and therefore do not have access to uninsured motorist coverage through their own insurance policy, may qualify for benefits under Pennsylvania’s Assigned Claims Plan. Under Pennsylvania’s Assigned Claims Plan, an eligible claimant (injured person) may recover medical benefits up to a maximum of $5,000. Eligible claimants may also recover for losses or damages suffered as a result of the injury up to $ 15,000 per person and $ 30,000 in the aggregate. However, the amount of medical benefits recovered or recoverable up to $5,000 are set off against that amount. Unfortunately, no income loss benefits or accidental death benefits are payable under the Plan. In order to qualify for benefits under the Assigned Claims Plan the claimant must satisfy the specific requirements set forth in 75 Pa.C.S.A. § 1752: 1.    You are a resident of Pennsylvania; 2.    You have been injured in a vehicle accident that occurred in Pennsylvania; 3.    You are not the owner of a vehicle required to be registered in Pennsylvania; 4.    You are not the operator/occupant of a vehicle owned by the Federal Government, any of its organizations, authorities, or departments; 5.    You are not the operator/occupant of a vehicle owned by a self-insurer or any individual or entity exempt from liability for benefits; 6.    You are not permitted to receive first party benefits under section 1711 (required benefits) or 1712 (availability of benefits) applicable to the injury(ies) resulting from the vehicle accident; 7.    You are not the operator/occupant of a recreational vehicle unintended for highway use, motorcycle, motor-driven cycle, motorized pedal cycle, or similar vehicle that is to be registered under this title.   One of our personal injury attorneys can help determine whether you qualify for coverage. In addition, one of our lawyers can also determine whether there exist grounds which would make you ineligible for benefits. A potential claimant is ineligible to recover benefits if any of the following contributed to your injuries: 1.    The injury occurred as a result of you intentionally injuring yourself or attempting to intentionally injure yourself or another; 2.    The injury occurred while engaged in a felony; 3.    The injury occurred while seeking to elude lawful apprehension or arrest by law enforcement; 4.    The injury occurred while knowingly converting a vehicle. In addition, in order to qualify for benefits, an eligible claimant must bring a claim within four years from the date of the accident. 75 Pa.C.S. § 1757(a). However, if the eligible claimant is a minor, an action must be commenced within four years of turning 18 years of age. 75 Pa.C.S. § 1757(b). If you or someone you love has been injured in an uninsured motorist, you should speak with a lawyer about making a claim.

If you are injured to an extent that it prevents you from being able to keep working, what are your economic damages? As part of any personal injury claim, you are entitled to recover lost wages. If you are employed by another entity, the calculation to figure out your lost wages are easy; you simply use the salary or hourly rate and calculate what was lost over the time you were unable to work in the past and/or into the future. However, how do you calculate the lost earnings for a self-employed individual when your earnings are not specifically comparable to an employed individual? What are your rights if you have not returned to work and will be unable to work for a period time into the future? It is not uncommon for the self-employed to have unique accounting records, so how do you calculate your wage losses if you are self-employed? The case Serhan v. Besteder, 500 A.2d 130 (Superior Crt.1985) holds that income tax records for a sole proprietor can be introduced as evidence to show lost past earnings, though for a sole proprietor courts in Pennsylvania treat them as lost profits of a business, and look to the decline in earnings of the business the plaintiff owned as a result of the injury. Serhanmay also allow the use of comparing the plaintiff’s sole proprietorship to doing identical work at a larger company, in order to show prior lost earnings. In the event that it does not, suggested jury instructions and King v. Pulaskioffer means of proving both prior lost wages as a measure of damages and also suggest how to prove and introduce evidence of impaired future income. In Serhan v. Besteder, the Superior Court held that using federal income tax records, and especially Schedule C, could be introduced by a sole proprietor or small business owner whose income was primarily produced by the “personal services and attention of the owner,” and that a sole proprietor plaintiff could therefor use “the net profits of the business” because they “afford a reliable measure of the owner’s earnings.” Id.at 133. The Superior Court noted that sole proprietors whose business essentially rely and profit from their work provide an acknowledged exception to the general rule against using business earnings to provide evidence of a plaintiff’s earnings power. Id.(citing Bell v. Yellow Cab Co., 160A.2d 437, 441 (1960)). The Superior Court noted that “Virtually the entire business was based on her labors,” Id.at 134. As a result, the Superior Court held that the tax records for her business were admissible and that the net profits of the business could be used to show prior lost earnings. Id. at 135. Additionally, the Superior Court allowed the use of Ms. Serhan’s tax returns for the years prior to the accident before she had her own business and worked as an interior decorator for a department store as evidence of earning capacity. Id. The Superior Court’s holding that evidence of future earnings capacity can be introduced through tax records or other documentation may allow you to make reference to the income of someone doing your job if you were employed by a larger corporation. A more recent case, King v. Pulaski, in reviewing methods of proving future lost earnings potential, pointed out that proving lost earnings potential does not need to be exact, noting an expert’s broad ability to testify as to the lost potential for the plaintiff’s earnings and that evidence of significant impairment or permanent injury was sufficient to show loss of earning power. 700 A.2d 1200, 1205 (1998). In Serhanthe Superior Court noted that “with respect to impairment of earning capacity, the law requires only proof that the injured person’s economic horizons have been shortened as a result of the tortfeasor’s negligence.” 500 A.2d at 134 (citing Holton v. Gibson, 166 A.2d 4 (1960), Lewis v. Pruitt, 487 A.2d 16 (1985), and Janson v. Hughes, 455 A.2d 670 (1982)). Finally, comments to the suggested standard civil jury instructions for Pennsylvania provide that for proving past loss of wages or income, “testimony by the plaintiff of his loss of wages has been held sufficient proof to permit a judge to instruct on past lost earnings” (interpreted as lost profits for a sole proprietor). PA-JICV 7.110, Pa. SSJI (Civ), § 7.110 (2013). The suggested jury instruction also indicates that for computing lost wages, income, or profits, a plaintiff’s “opportunities for employment are relevant in determining the amount . . . could have earned.” Id. Additionally, for reduction of future earnings capacity, the suggested jury instructions charge that “the plaintiff is entitled to be compensated for any loss or reduction of future earning capacity that . . . will suffer as a result of a decrease in or loss of future productivity.” PA-JICIV 7.120, Pa. SSJI (Civ), § 7.120 (2013).

I am fortunate that I get to speak with a lot of people about their oil and gas issues. Lots of people have questions about their leases, their royalties, other payments, pipelines, right of ways and even just the loud noise that might be coming from the operations next door. Time and again as I speak to potential new clients, we need them to gather their documents together for review. If you have questions about your lease, your right of way, your payments or the types of operations that might be going on, your first step before calling an attorney should be to make sure that you have all of your documents together. The relationship that you have with the gas company is mainly controlled by the language of the written agreements that you entered into with the company. The “law” -so to speak -may provide some details, but by in large the words of the agreement that you have control. The language of the agreement may even exclude or void some provisions of what you might consider the law to be. Courts in all states respect the freedom to contract. If you have a deal with someone the courts will try to enforce that deal to the greatest extent possible. With that being said, there are still some legal rules that can help landowners when faced with confusing or misleading contract language. For example, if the gas company prepared the contract and there is ambiguity- or confusion- as to what the language of the contract means, then often times a court is required to read the contract in the light most favorable to person who did not write the contract. Additionally, sometimes the gas companies don’t seem to understand or remember what their contract requires of them. I have reviewed several agreements where the companies have shot themselves in the foot by not following their own contract language. Oil and gas leases, pipeline agreements and right of way documents are often confusing. It is vitally important, however, that you understand the general meaning of those documents to know if you are, in fact, being treated appropriately. If you have questions about any oil and gas related issue your first step should be gather your papers. After you gather all of the relevant papers you are in a good position to call an attorney who can look at the documents and determine if they can help you.

Bad things can and typically do happen when a tractor trailer is parked on the side of a busy roadway. The most catastrophic is when a smaller passenger vehicle is caused to leave the roadway and underrides the back end of the trailer. When an innocent passenger is killed or maimed, a portion of fault is normally apportioned to the driver of the vehicle who departed from the traffic lane. It is necessary, however, to examine the decision to violate safety standards by parking a big rig on the side of the road. The common reaction of people who are uninformed as to the safety standards governing commercial motor vehicles is to immediately conclude the driver of the car striking the parked tractor trailer is responsible. Thus, it is necessary to thoroughly investigate and, if possible, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash. Why? One of the least understood hazards on our roadways is a tractor trailer parked on the side of the road. I am sure just about everyone has witnessed it, whether during the day, or late at night, a tractor trailer parked inches from the right travel lane. It goes without saying how dangerous this conduct is to vehicles traveling on the roadway. Why? Vehicles can and will occasionally leave the travel portion of the roadway. Everyone expects such a deviation. How many people have ever run over rumble strips positioned just off the roadway? This can happen for any several innocuous reasons. A driver may be forced to swerve to avoid another vehicle or an animal running onto the roadway. A vehicle can hydroplane and spin off the road when water pools during heavy rain. The foreseeability of vehicles departing from the traffic lane is why highways built in the United States in recent decades have incorporated road design features to make roadsides forgiving for drivers who makes such mistakes. The American Association of State Highway and Transportation Officials ( AASHTO) recommends construction standards for shoulder and right of way design. This includes clearance of obstructions such as, trees, steep slopes, or abutments which may hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails whenever feasible to redirect drifting vehicles back onto the paved portion of the roadway. The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way. The highway shoulder is not designed for parking. It is a “clear zone” or “recovery zone,” not a parking area. Yet every day we see 18-wheelers parked in that “recovery zone” or shoulder, parked overnight and not illuminated. A large Commercial Motor Vehicle (CMV) parked on the shoulder of a highway becomes a large, immovable, rigid barrier blocking the “clear zone.” It creates an eminent hazard to occupants of any vehicle which may depart, for whatever reason, from the travel portion of the roadway. Tractor trailers parked in the “clear zone” or “recovery zone” create the equivalent of an unforgiving solid wall. This presents a vastly greater danger to people in approaching cars. When a car veers out of its lane and collides with an 80,000-pound tractor trailer, the physics is devastating. Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds meets the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside. Conspicuity of big rigs parked on the roadside, especially in darkness and/or poor weather conditions affecting visibility is a hazard. That is why the Federal Motor Carrier Safety Regulations have strict rules on this. At § 392.22 on Emergency Stops, the regulations require, “whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices”. As soon as possible, and in all cases within 10 minutes, the driver must places three reflective triangles or flares. Trucking company corporate management can reduce this risk of a deadly crash through management practices that include good trip planning so that drivers can reach safe places for planned stops before they run out of safe driving hours. Companies should manage their fleets to make frequent vehicle inspections and perform appropriate equipment maintenance. Trucking company management should require drivers not to stop along the roadside in non-emergency situations and instruct drivers to exit the highway and find a safe place to park when necessary. If due to mechanical breakdown a truck driver has no choice but to stop on the side of the road, trucking companies should train drivers and dispatchers on things they can do to reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include: Immediately turn on hazard flashers when slowing and leave them on while stopped. Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22. Keep marker lights on after dark. Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic. Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch. When stopped, set parking brakes. Notify employer as soon as possible to arrange roadside assistance. Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer. Walk along the side of the vehicle opposite traffic. Watch out for debris or uneven surfaces when outside the vehicle. Use a visible flashlight after dark. Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle. When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, Bordas & Bordas investigates the crash and retain the appropriate experts. We determine why the driver chose that spot to pull off and stop. We download electronic control module data and other electronic records from both vehicles. How long had the truck been parked? Was there a dash cam video on either vehicle that could be evidence? Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break” on the roadside rather than in a safe place off the road? Did the truck driver can stop in a safer location? If a family member is badly injured or killed in a collision with a tractor trailer parked on the roadside, please call us at Bordas & Bordas.

You have been in a terrible motor vehicle accident and suffered severe injuries. Your attorney explained to you that you will need to repay Medicare for the medical bills they paid. After negotiations, you have agreed to a settlement amount with the other driver’s insurance company. Your lawyer informs you that the adjustor now says the funds will not be issue without Medicare being listed on the check or a letter from Medicare that confirms the medical lien has been resolved. The adjustor explains his supervisor is concerned that the carrier will be sued by Medicare if the lien is not paid. Your attorney confirms that a settlement with Medicare may take some time. You have bills to pay and just want to get what was agreed to in the settlement agreement. Good thing you are represented by Bordas & Bordas, because we know the law that will force the insurance company to immediately issue the settlement check. Let me share the same with you. First, let me explain why the insurance company might be concerned with being sued by Medicare, if the carrier settles the claim with you. Pursuant to the Medicare Secondary Payer Act ("MSPA"), Medicare is a secondary payer meaning that Medicare can only pay bills not paid by a "primary payer." If Medicare makes a payment and a primary payer is identified, the primary payer must reimburse the United States. 42 U.S.C. §1395y(b)(2). The MSPA identifies an automobile or liability insurance policy as a primary payer. 42 U.S.C. §1395y(b) (2)(A)(ii). This means that if the insurance company has made a settlement payment and it is later discovered that Medicare had already made a payment for the same services or items, the insurance company which paid the settlement amount can be required to reimburse Medicare pursuant to regulations promulgated by the U.S. Department of Health and Human Services to implement the MSPA. Now let’s talk about why the insurance company cannot withhold the settlement proceeds when an agreement was already made without a requirement the check is made payable to Medicare and/or receiving a letter from Medicare confirming the lien is resolved before the money will disbursed. In Pennsylvania, the issue of whether a defendant can withhold payment of a settlement or verdict amount until Medicare issues a no-lien letter or the plaintiff waives future Medicare reimbursements for the injury is controlled by Zaleppa v. Seiwell, 9 A.3d 632. (Pa. Super. Ct. 2010). In Zaleppa, a personal injury case, the jury returned a verdict of $15,000 to be paid to the plaintiff. Id at 633-634. The defendant argued that the trial court erred in denying her post-trial motion that the court either order her to name Medicare, along with the plaintiff, as a payee on the verdict amount, or pay the verdict pending notification from Medicare notifying her that all outstanding liens had been paid. Id at 634. The Superior Court affirmed the trial court’s ruling, holding that the defendant’s statutory obligation under the MSPA to reimburse Medicare was “distinct from Medicare's statutory right of reimbursement.” Id at 638. Furthermore, the court interpreted that the MSPA’s statutory scheme was “not designed to enable private parties to act on behalf of the United States government as ‘private attorneys general.’” Id at 639 quoting Stalley v. Catholic Health Initiatives, 509 F.3d 517, 523 (8th Cir. 2007). The court held that it was Congress’s intent, based express language of the MSPA, “to bestow only the United States government with the authority to recover outstanding conditional Medicare payments.” Id at 639. “The MSPA expressly provides that only the United States government, not a private entity, may file a lawsuit in which the rights of the government are asserted.” Id. The court held that it was Congress' intent that the MSPA would only allow the United States government “to vindicate its own interests in reimbursement,” and that that intent “must be applied throughout the MSPA.” Id. Therefore, the court ruled that the prohibition of private parties acting on behalf of the United States government through the MSPA extended to all phases of litigation. Id. The Honorable Judge R. Stanton Wettick, Jr. of the Allegheny County Court of Common Pleas applied the Zaleppa decision in his ruling on a case with circumstances mirroring our client’s. Wimberly v. Katruska, 25 Pa. D. & C. 5th 532 (C.P. 2012). In Wimberly, plaintiff’s claims were settled for $9,000 in a telephone conversation between counsel. Id at 533. The defendant argued that, as a matter of law, the insurance company was entitled to withhold payment of the settlement until Medicare issued a no-lien letter, so as to avoid potential double payment. Id. Plaintiff petitioned the court to enforce the settlement. Id. Judge Wettick ruled that Zaleppa controlled the dispute, and that the defendant’s argument thatthe insurance company was entitled to withhold payment until Medicare issued a no-lien letter was “ without merit.” Id at 535. Critically, Judge Wettick found that “ unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Id. Judge Wettick then turned to the defendant’s second argument in opposition to Plaintiff’s Petition to Enforce Settlement, which was that prior to agreement being reached, the parties agreed thatpayment would “be conditioned on plaintiff's counsel obtaining documentation from Medicare stating whether plaintiff is currently receiving Medicare benefits and what, if any, benefits were paid that were related to the accident.” Id at 536. Plaintiff’s counsel denied having ever agreed to such a condition. Id. Judge Wettick applied the same analysis he used in a similar case, Exp. Boxing & Crating, Inc. v. Tech Met. 56 Pa. D. & C.4th 393 (C.P. 2001)(where the parties stipulated that a deal had been reached, and that the terms in dispute, “pro rata release” and “pro tanto” had never been used in any discussion). Id at 537. Ruling that the settlement agreement was a contract governed by general rules of contract interpretation, Judge Wettick held that “he common expectation is that a defendant will promptly pay the settlement amount.” Id at 538-539. Following that logic, Judge Wettick ruled that, “since the only dispute was over whether payment of the agreed-upon settlement amount was conditioned upon defendant’s receipt of a no-lien letter ,” the defendant had the burden of proving the same. Id. This is directly applicable to our hypothetical case. The MSPA prohibits private defendants from acting on behalf of the United States government during any phase of litigation. In Zaleppa, the Superior Court of Pennsylvania applied the MSPA to the post-trial phase of litigation by affirming the trial court’s denial of a defendant’s motion to add Medicare as a payee to the jury verdict. At the Allegheny County Court of Common Pleas, Judge Wettick applied Zaleppa to a settlement agreement, finding that, as a matter of law, the defendant was not entitled to withhold the settlement payment because he had not received a no-lien letter. Critically, Judge Wettick found that “unless there is a specific agreement conditioning payment on a no-lien letter, it is a matter of contract law that a defendant cannot subsequently raise new conditions regarding the payment that the defendant agreed to make.” Our hypothetical case perfectly mirrors Wimberly v. Katruska. During negotiation, there was no mention of a Medicare set-aside. The adjustor added this as a condition for payment after the agreement was reached. Therefore, it would be the carrier’s burden to prove that payment of the agreed-upon settlement amount was conditioned upon receipt of a Medicare set-aside. Once again, Bordas and Bordas would make sure the justice is achieved swiftly and the money would immediately be issued the client.

We are told from a young age that exercising enhances or maintains our physical fitness and overall health and wellbeing. Although these words of wisdom are repeated on a daily basis by those in the health and fitness industry, the constant repetitiveness of the saying can fall on deaf ears. However, this principle should not be forgotten, especially for those that engage in travel on a regular basis or have a daily commute. The reason for this being that when motorists are involved in an automobile accident, the most common injury that will be sustained is a whiplash type injury to the neck and back in which the muscles and ligaments are stretched due to sudden movements imposed on the body during the collision. While preventing injury completely may not be possible, motorists may improve their chances of suffering a less serious whiplash type injury by exercising. Specifically, by engaging in strength training, muscles, tendons and ligaments learn to undergo a certain amount of stress before becoming injured. Thus, when one’s muscles, tendons and ligaments are used to dealing with a certain amount of stress, the body will not become as severely injured when faced with such a sudden movement, such as whiplash, as compared to other individuals whose muscles are not trained or prepared to undergo any stress whatsoever. Although this may not always be the case, it is true that being physically fit can improve your chances of suffering from a less significant injury when involved in an automobile accident. Likewise, engaging in exercise after being permitted to do so by your doctor after an accident may help speed one’s recovery time. For example, engaging in stretching exercises is known to keep scar tissue from forming as your body heals. Moreover, engaging in exercise is a great way to help your body deal with inflammation which ultimately may speed your recovery time. In sum, although each accident and injury sustained is unique-it is true that by engaging in exercise on a regular basis you may help your body recover in the long-run if you are involved in an accident at any point thereafter.