Blog

It is not unusual for a person to experience some sort of stress reaction, such as: upsetting memories, having trouble sleeping, or feeling on edge after witnessing or experiencing a traumatic event. Often, a person’s initial reaction to trauma meets the criteria for Acute Stress Disorder (“ASD”) immediately after experiencing a traumatic event. An estimated 13 to 21 percent of survivors of car accidents develop acute stress disorder and between 20 and 50 percent of survivors of assault, rape or mass shootings develop it. However, if the person’s reaction doesn’t go away over time or disrupt a person’s life, that person may have developed Posttraumatic Stress Disorder (“PTSD”). PTSD is a mental condition that some people develop after experiencing or witnessing a life-threatening event. ASD is different from PTSD in that symptoms of ASD are restricted to a duration of three (3) days to one (1) month. About half of people with ASD go on to have PTSD. A diagnosis of PTSD is made by using the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5 th Edition, commonly referred to as the DSM-5. Those criteria are as follows: Criterion A: Stressor (one required) – the person was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following way(s): Direct exposure to traumatic event; Witnessing the traumatic event as it occurred to others; Learning the traumatic event occurred to a relative or close friend; Indirect exposure to aversive details of the trauma, usually in the course of professional duties (e.g., first responders, medics). Criterion B: Intrusion Symptoms (one required) – the traumatic event is persistently re-experienced in the following way(s): Unwanted upsetting memories; Nightmares; Flashbacks; Emotional distress after to exposure to traumatic reminders; Physical reactivity after exposure to traumatic reminders. Criterion C: Avoidance (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s): Trauma-related thoughts or feelings; Trauma-related reminders Criterion D: Negative Alterations in Cognition and Mood (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways: Inability to recall key features of the trauma; Overly negative thoughts and assumptions about oneself or the world; Exaggerated blame of self or others for causing the trauma; Negative affect; Decreased interest in activities; Feeling isolated; Difficulty experiencing positive affect. Criterion E: Alteration in Arousal and Reactivity (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways: Irritability or aggression; Risky or aggression; Risky or destructive behavior; Hyper vigilance; Heightened startled reaction; Difficulty concentrating; Difficulty sleeping. Criterion F: Duration (required) – symptoms last for more than one (1) month. Criterion G: Functional Significance (required) – symptoms create distress or functional impairment (e.g, social, occupational). Criterion H: Exclusion (required) – symptoms are not due to medication, substance abuse or other illness. Symptoms of PTSD often begin within the first three (3) months after the traumatic event, although there may be a delay of several months or even years before the criteria for the diagnosis are met. PTSD affects approximately 3.5 percent of U.S. adults, and an estimated one in 11 people will be diagnosed with PTSD in their lifetime. The duration of PTSD symptoms varies with complete recovery within three (3) months occurring in approximately 50% of adults, while others remain symptomatic for more than twelve (12) months and sometimes for more than fifty (50) years. PTSD is associated with high levels of social, occupational and physical disability, as well as considerable economic costs and high levels of medical utilization. If you or someone you know has experienced a traumatic event and meets the criteria listed above, it is important for them to get the treatment they need. Generally, the earlier a person gets treatment, the better the likely outcome. www.psychiatry.org/patients-families/ptsd/what-is-ptsd www.media.eo.va.gov/ptsd/mp4/what_is_ptsd.mp4 National Center for PTSD, www.ptsd.va.gov/understand/what/index.asp DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 277. DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 276. www.psychiatry.org/patients-families/ptsd/what-is-ptsd DSM-5, Posttraumatic Stress Disorder, Development and Course, P. 277. DSM-5, Posttraumatic Stress Disorder, Functional Consequences of Posttraumatic Stress Disorder, P. 278.

After eleven years and 21 films of interconnected cinematic storytelling, “we’re in the endgame now.” “Avengers: Endgame” is the 22nd film from the Marvel Cinematic Universe. My 7 and 9 (nearly 8 and 10) year old boys and I were among millions around the world that saw this epic film on opening night. The film delivers in its promise of finality after a poignant trip down memory lane for many of the franchise’s most enduring characters. While newer heroes like Ant-Man, Rocket Raccoon, and Captain Marvel have their roles to play, Endgame is squarely focused on the original six Avengers and amounts to a celebration of the saga’s roots. The film takes you on an emotional roller coaster. It begins with a post-apocalyptic atmosphere, where you can truly feel the frustration and anger of those that survived the genocide that the villain Thanos carried out at the end of Avengers: Infinity Wars. My boys, who have grown up on these films (“chest blasting” and throwing make-shift shields at each other), were ready to leave thirty minutes into this three-hour long finale. This exasperating feeling finally gave way to hope – as a plan to fix past mistakes emerged. Of course, our mood was also raised by the comedic relief that Marvel so brilliantly interjects into dire circumstances. The world of “Endgame” is marked by trauma and loss, and the film pulls off the magic trick of both letting the audience live in that loss along-side our heroes while also providing enough levity and comedy to lighten the mood when appropriate. The more MCU that you have seen the more you will appreciate this film, as it commemorates the films that have come before it. Die-hard MCU fans will notice all the small (and the not-so-small) call-outs to previous events. These moments are a reminder of the journey that preceded “Endgame” and an indispensable part of the overall experience. Endgame is an artful tribute to nearly all that came before. The film is highlighted by several touchingly human moments between the characters. There is, of course, a big, bombastic action scene at the film’s climax that goes above and beyond anything we’ve seen before. Well before the end of the film, my boys and I were among many that had cheered out loud in a theater full of enthused fans. The teenagers behind us could no-longer remain quiet and made their excitement known. My 9 year old had to join in. He had the entire theater laughing during the final scene with Thanos when he timely blurted out, “Will you just die already?” The film was thrilling, exhilarating and at times hilarious, but also deeply sad and contemplative. As I have heard more than once leaving the theater after an MCU film, “that was the best movie ever, dad.” “Part of the journey is the end.” And when it comes to Marvel, the end is unpredictable. So go enjoy the journey before someone spoils it for you. Image courtesy of The Wrap.

It’s a fairly common practice in small towns around the country. You’ll see a city employee marking the tires of parked tires with chalk. Then a little later they’ll check again to see if any of the cars have parked too long. Little did you know, there was a constitutional issue lurking in the shadows--does the chalking of a car’s tire constitute an unreasonable search or seizure under the Fourth Amendment? That question was recently addressed by the Sixth Circuit Court of Appeals in Taylor v. City of Saginaw, No. 17-2126. The plaintiff received multiple parking tickets from Saginaw, Michigan, a city of roughly 50,000. In April, 2017, the plaintiff sued under 42 U.S.C. §1983, a federal law authorizing recovery of damages when someone acting for a state or local government commits a constitutional violation. The plaintiff alleged that chalking a car tire, without a warrant, amounted to a violation of the Fourth Amendment’s protection against unreasonable searches and seizures. The lower court found that a search had occurred, but that it was reasonable under all the circumstances. The plaintiff then appealed to the Sixth Circuit. The first issue addressed by the Sixth Circuit was whether “chalking” a car tire amounted to a search for Fourth Amendment purposes. Historically, a search occurs when someone invades an area in which a person has “a…reasonable expectation of privacy.” Recent cases from the Supreme Court, however, have added other requirements--notably, whether the intrusion, however slight, amounts to a common law trespass. With these factors in mind, the court concluded that the chalking process was, indeed, a search. Marking car tires with chalk may be “low tech,” but it is still done for the explicit purpose of determining whether a car owner has violated a parking ordinance. Because the chalk mark intrudes upon privately owned property and serves an investigative purpose for the city, it is a search. The next issue was whether the search was reasonable. Under established law, the owner of a car has a diminished expectation of privacy. Cars are mobile and are generally more accessible to the public. Therefore, even without a warrant, a car can be subject to a search as long as there is probable cause supporting that search. Here, however, no probable cause existed. All cars parked in a given area are chalked and then reexamined at a later time. At the time the chalk mark is made, the city has no reason in the world to suspect that a parking violation has actually occurred. It’s only when the employee sees the chalk mark again on his return trip that probable cause even exists. Therefore, the “car” exception does not support the practice of chalking parked cars. The city also attempted to invoke what is popularly known as the community caretaker exception. When the government is acting to protect the public at large from injury or ongoing harm instead of investigating crimes, Fourth Amendment protections may be relaxed. For example, a car may be searched after being impounded--not for investigative purposes but, instead, as part of a general policy for making an inventory and protecting the public from any potential harm. Here, however, no one disputed the fact that the chalking was done for purposes of enforcing the city’s parking ordinance and not for any kind of public safety. Because the city failed to prove that the community caretaker exception applied, the chalking was both unreasonable and unlawful. The ruling in this case applies in every state covered by the Sixth Circuit--Kentucky, Michigan, Ohio, and Tennessee. To be honest, I have mixed emotions about the ruling and its impact. I have a bit of a libertarian streak in me. I’m not a fan of any kind of government overreach. But I also have a hard time believing that a harmless, temporary mark on a car tire amounts to a Fourth Amendment violation, especially in light of a long line of cases recognizing that the privacy rights we have in cars are substantially less than in other kinds of property. I also wonder how this ruling will affect Smallville, USA. With the “low tech” option no longer available, cities affected by this ruling will have choices to make that could have budget-busting consequences. Will they be forced to buy parking meters or investigate other new and expensive technologies? The answer for now is unclear. But in the coming days, weeks and months, hard choices will have to be made.

The month of May marks the 1 yr. anniversary of one of my favorite live televised events. The event was the Royal wedding of Prince Harry and Meghan Markle- Now the Duke and Duchess of Sussex. I like many people tuned in early that Saturday morning to watch the ceremony. The wedding, like all royal weddings, was nothing short of magical. Although the event was televised a viewed by over 29 million Americans, details about the wedding are tightly sealed. In honor of the Royal couple’s anniversary, I found some fun facts about the wedding and a few things about the Royal Family. Every Royal bride carries myrtle in her wedding bouquet. The myrtle represents love and marriage. The tradition comes from Queen Victoria and Prince Albert. They were gifted a myrtle plant from Albert’s grandmother. Ever since then a piece of that plant is placed in the bouquet. Meghan Markle was the first royal bride to have walked down the aisle of her wedding without an escort. Meghan's "something old" was Queen Mary's diamond tiara. Which was lent to Meghan by Queen Elizabeth II. Harry’s wedding band is made from platinum. The royal family has been using Welsh gold since 1923 The ceremony was steeped in tradition, all the while having the touch of their personal style. I’m a huge fan of all the Royal weddings but Harry and Meghan have been my favorite by far. Well at least until the next Royal wedding… Today's blog: Do you follow the lives of the royals? Donneshia tells us her favorite parts of Meghan and Harry's big day last May and even shares a few fun facts about the couple!

A favorite summertime activity for a lot of people is camping. There’s something to be said about spending a few days in the great outdoors and roughing it—but are we really roughing it? We do a lot of camping and I’ll be honest—I don’t see too many people roughing it in tents anymore. Most people who venture to a campground do it with some form of modern camper. Last year we traded in our very large, older fifth wheel trailer for something smaller, since our kids had grown up. We ended up with a 24 ft. travel trailer with many nice features—some nicer than what I have in my house. Our new camper has Bluetooth technology, quartz countertops, flat screen TVs, LED lighting, an outdoor kitchen, etc., etc. All of the modern conveniences a person would need for a weekend of “roughing it” in the woods. Camping can be a fun, inexpensive way to have a mini-vacation, right? Wrong. Depending on where you camp at and what amenities are offered, you can actually pay as much for a campsite per night as you could for a cheap hotel room. Then you factor in such things as fuel to get your camper where you’re staying, propane for the grill, special toilet paper and chemicals for the toilets, insect repellant or citronella candles, picnic supplies, and the list goes on and on, and maybe now you have spent enough to stay in a really nice hotel. There is also a lot of packing to do, and trips back and forth from the house to the camper loading it up with supplies, but I’ve learned to try to keep our camper stocked as if it were a second house. When we decide to go, I basically only have to throw in some food, our clothes, and our dogs of course! Everything else I need should already be in the camper. If you like to camp and ride ATVs, there’s a great campground close to the Wheeling area known as Four Seasons Resort in West Finley, Pennsylvania, with over 35 miles of marked ATV trails. My husband will be pulling the camper, and I’ll be pulling the trailer with the side-by-side in a few weeks for a fun weekend of camping and riding the trails. There is a lot of expense and preparation to camping, but don’t let that keep you from doing it. Who doesn’t like taking a walk in the woods, cooking over an open fire, or sitting back in your camp chair with a relaxing beverage by the campfire at night chatting with friends and maybe roasting a few marshmallows? Camping can be a very fun and relaxing way to get away from it all and take some time off and everyone should try it at least once. I know I’m looking forward to several weekends of camping this summer! http://www.campfourseasonsresort.com/ Image courtesy of Sheila Cottrell.

Last October, we stopped at the port in Roseau, Dominica, during the course of a seven-day Caribbean cruise. Dominica is a tiny island located in a string of islands between Antigua and St. Lucia. Dominica is NOT the Dominican Republic, which is a completely separate island over six hundred miles away. The island of Dominica is nicknamed the "nature island” because of its diverse terrain—mountains, waterfalls, beaches, volcanic remnants, and lush rainforests are only a few of nature’s wonders you may see if you visit Dominica. We visited the island a little over a year after it was devastated by Hurricane Maria. There were many houses and businesses without roofs, or using tarps for roofs, and some buildings were completely uninhabitable. Despite the devastating effects of the hurricane, it was obvious the island was in a state of recovery and the people were very friendly and welcoming. We were the first ship to port for the season, and we were warmly greeted by school children in uniform singing to us and handing out flowers. As with many Caribbean islands, tourism is their number one industry, and the efforts to rebuild and restore Dominica to its pre-hurricane status were evident everywhere. We took a tour of the island and road construction was an obvious priority as we were on newly paved roads which were better than a lot of the roads in West Virginia. As we traveled up into the mountains we drove by a lot of beautiful flowers and fruit that grow wild on the island, and saw the rain forest, a river, and Trafalgar Falls. We ended up stopping at what I would call a little roadside bar, where we had a drink and sampled fresh pineapple, guava and star fruit, which are native to the island. Upon our return to the port, our driver was very concerned that we had a good tour and a good experience with him, and we assured him we had. There was another group interested in a tour and he tracked us down and asked us to give him a good recommendation, which we gladly did. Again, tourism is very, very important to the economy and is the number one industry for many of the Caribbean islands, so the islanders usually strive to please. Although we saw devastation and some poverty, we also saw the strength and resilient spirit of the people of Dominica as they struggled to rebuild their island. It was very eye-opening and heartwarming, and I look forward to going back some day for another visit.

When He entered Jerusalem on the Sunday before Passover, Jesus was welcomed like a celebrity. The streets were filling with well wishers. Many were waving branches and spreading them in front of Jesus and his disciples as they passed through the streets. Shouts of welcome and praise filled the air. But the tone quickly changed as Jesus entered the temple. Seeing the money changers, He overturned their tables and drove them out, accusing them of defaming and defiling the house of God. Throughout the week, He taught in the temple, but he was constantly confronted by the Jewish teachers and leaders. Their efforts to disgrace Him or undermine His authority were futile. Soon they were filled with jealousy and rage. By Thursday, the mood around the Passover table was somber. Then Jesus dropped a bombshell: “One of you will betray me.” The disciples were confused, and they listened in worry and disbelief as Jesus said He would leaving them. When the meal was over, they headed to a nearby garden where Jesus began to pray. Eventually, His prayers were interrupted by torches, swords, and spears as a band of temple guards seized Him and dragged Him before the Jewish high court. In short order, He was condemned to death. And, so, as the sun began to rise on Friday morning, he was presented to the Roman governor, Pilate. The crowd that had shouted “Hosanna!” a few days earlier now shouted “Crucify!” By 9 a.m. he had been tortured, flogged, and taken to the site of his execution--Golgotha, or the “place of the skull.” For six hours, he endured the pain and humiliation of the cross. With the words, “It is finished,” His early life came to an abrupt end. His followers were devastated. His enemies were convinced that He was no longer a threat. But then came Sunday! Early on Sunday morning, a group of women went to the tomb where He was buried. Then an angelic visitor announced the news that would reshape the world for generations to come: “He is not here! He has risen, just as he said!” Out of defeat, God brought a great victory. Out of death, God brought the promise of eternal life through his son, Jesus. I pray that you would know Jesus for yourself, and that you would join me in celebrating all that He did for us on an old, rugged cross 2,000 years ago. Have a blessed Easter! Image courtesy of Unsplash.

As my family has traveled over the years, we have been fortunate enough to take advantage of a couple personal encounters with animals; including sharks and swimming with dolphins. Normally, I don’t think about unique experience like this practically in my own back yard. It may not be swimming with the marine life, but when you have daughters, they can flip over some extraordinary furry creatures. All girls have favorite animals that make them crazy growing up. They seemingly run 50 mph as they shrill just because they spot a t-shirt across the entire store displaying this creature. They have folders and socks and pillows, with these favorites on. It’s just part of our nature as females, I suppose, and my girls have always had a liking and fascination with sloths. I read in the local newspaper that our great Oglebay Good Zoo was offering private family encounters with some of the animals; so, I jumped on the chance for my girls to spend the day with their fury friend, Sweat Pea, the sloth. Honestly, I never really understood the obsession they had with this particular animal until now. It was simply captivating to watch Sweet Pea move ever so eloquently at such a sedating pace. Just as happy as can be as she nonchalantly ate from our hands and seemed to rest in most comical positions. Courtney, our encounter guide, was top-notch. We learned so much about the two-toed sloth, the differences between a two-toed and three-toed. We had all of our questions answered and truly came to appreciate how much of a struggle it is for these beautiful works of wonder out the in the wild. It makes you reflect upon what’s out there in the wild and how it’s battle of survival. Sweet Pea is quite adored at our local zoo and we are o very appreciative that we were able to have this time with her. Thanks, Oglebay Good Zoo for a memorable experience and it comes highly recommended if you have the chance to take advantage of this adventure, it makes for a fabulous fun family day.

We live in a world where information is readily available to us almost all of the time. We are able to instantly answer any question that we have by pulling out our phone, and can extensively research any topic, big or small. This is a great resource when you need a quick answer – for example, if you are driving in an unfamiliar location and need to find a gas station, or when you are at the store and can’t remember the last couple of ingredients in a recipe. But having this type of information available can actually sometimes cause us to cut ourselves short because we focus on getting the answers that we think that we want instead of finding out what all of our options may be. Nowadays, people tend to plan ahead on everything that they do. If they are shopping for something new, they will do online searches for the type of products they want. They will read dozens of reviews, good and bad, about the products, and look at photographs to compare colors and styles. They will see what kind of prices they can get from different websites or stores, then typically either order that product directly from a website or go straight into the store knowing exactly what they want, making it a quick trip to purchase that item and get back on their way. The same is often true for restaurants or vacation destinations. Research into the place’s Facebook, Yelp, Google, or TripAdvisor pages will be done, the menu will have been scanned in advance, and sometimes a virtual tour of hotel rooms or the location is even an option. While all of this can help save time and help make an informed decision, it might cause you to miss out. Many stores, salons, restaurants, and vacation destinations employ individuals who are experienced, informed and passionate about their line of work. These places generally want to put their best foot forward to customers, and make sure you have a good experience. You might think that you are ordering the best item on the menu based on your own review – but if you ask a waiter or bartender, they might give you information that could be relevant to your decision, such as the portion size or an option of combining certain foods that you didn’t even realize that you had. They might suggest a great drink to go with your meal. You may be turned on to a local destination on your vacation that most tourists would not know to visit. Many salons and beauty product stores are happy to provide samples or let you test the products in the store and can offer guidance about which products you might like best based on your questions or information you give a salesperson or stylist about yourself. Employees at bike shops or other sporting gear stores often enjoy the very types of activities for which they are selling products and can give personal feedback. From talking to employees at the store, you may also learn of sales or deals available to regular customers or at special events, or that are not publicly advertised. While it can be helpful to use your phone to do your own research into shopping, dining or making other purchases, sometimes it's worth a try to do it the old-fashioned way and ask for advice in person! You never know what you might learn or find.

Recently, in Marshall v. Brown’s IA, LLC (“ShopRite”), the Pennsylvania Superior Court vacated judgment as a result of the trial court’s failure to provide the jury with an adverse inference jury instruction. While shopping at ShopRite, Ms. Marshall slipped on water and fell, aggravating a pre-existing injury to her hip and back. ShopRite employees summoned medical assistance, and an incident report was prepared immediately thereafter. The incident report revealed that Ms. Marshall stated that she was getting a pepper in the produce department when she slipped and fell on water. Approximately two weeks later, ShopRite received a letter of representation from Ms. Marshall’s counsel requesting that ShopRite retain surveillance video of the accident and area in question for six hours prior to the accident and three hours after the accident. Additionally, the letter cautioned: If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence. Please be advised that you are not permitted, and are in no position, to decide what evidence plaintiff would like to review for this case. Accordingly, discarding any of the above evidence will lead to an Adverse Inference against you in this matter. While Ms. Marshall’s slip and fall was captured on the store’s video surveillance system, ShopRite decided to preserve only thirty-seven minutes of video prior to Ms. Marshall’s fall and approximately twenty minutes after, and permitted the remainder to be automatically overwritten after thirty days. Ms. Marshall filed a claim against ShopRite alleging that it was negligent in failing to keep its premises safe by failing to remove water on the floor that it knew or should have known was present and posed a risk to its customers. The case proceeded to a jury trial, and in his opening statement, counsel for ShopRite told the jury that it wasn’t possible to tell from the video if there was water on the floor, how it got there or when it got there. ShopRite’s Risk Manger testified that it was ShopRite’s “rule of thumb” to preserve video surveillance from twenty minutes before and twenty minutes after a fall, but offered no explanation why it deviated from its typical practice. It was his opinion that the video produced was sufficient to see the defective condition if it could be seen at all, and because the substance on the floor could not be seen on the retained portion of the video, he maintained it “would be a fool’s errand” to go back several hours as requested. He added that it was impractical and costly to retain the requested six hours of pre-incident videotape. ShopRite also offered evidence of its reasonable care in keeping the store premises safe for customers. Managers testified that employees were trained in the importance of preventing slip and falls, and described financial incentives for employees who located and cleaned up spills. The store also uses the Gleason system, an electronic monitoring system whereby an employee walks around the store every hour on a designated route that passes thirty-five buttons. As the employee inspects the floor in each area near the button, he or she uses an electronic wand to press the button indicating whether there was a wet spill, dry spill, or the area was clear. The system creates a log for each of the walk-throughs. Ms. Marshall fell almost fifty minutes after the last Gleason inspection. At trial, Ms. Marshall contended that ShopRite’s conscious decision not to retain the video evidence constituted spoliation, which entitled her to an adverse inference charge to the jury. Specifically, Pa.S.S.J.I. 5.60, relating to spoliation of evidence, provides: If a party disposes of a piece of evidence before the other party had an opportunity to inspect it, and the party who disposed of the evidence should have recognized the evidence was relevant to an issue in this lawsuit, then you may find that this evidence would have been unfavorable to them, unless they satisfactorily explain why they disposed of this evidence. ShopRite argued that because the video did not show water of the floor, the destroyed video would have no relevant evidence. Moreover, ShopRite claimed that by following its retention policy, it did not act in bad faith in deleting the additional video requested. The trial court determined that Ms. Marshall’s counsel’s request to preserve the video did not make it relevant. The court also concluded that ShopRite did not act in bad faith; and therefore, refused to give the requested adverse inference charge. However, the court permitted Ms. Marshall’s counsel to argue to the jury that it should infer from ShopRite’s decision not to retain more of the video prior to Ms. Marshall’s fall that the video was damaging to ShopRite. In his closing argument, counsel for Ms. Marshall told the jury that ShopRite intentionally decided to eliminate the requested portions of the video because it was harmful to them, and that the water was on the floor long enough that, with reasonable care, they should have seen and remedied it. ShopRite maintained that because one could not discern water on the floor in the existing video, it could not be reasonably expected to show water during any other portion of the video.  Ultimately, the jury found in favor of ShopRite, and Ms. Marshall’s appealed the decision claiming that the trial court erred in refusing to give the requested spoliation instruction to the jury. The Pennsylvania Superior Court found that where a party destroys or loses proof that is pertinent to a lawsuit, a court may impose a variety of sanctions, among them “entry of judgment against the offending party, exclusion of evidence, monetary penalties such as fines and attorney fees, and adverse inference instructions to the jury.” Hammons v. Ethicon, Inc., 190 A.3d 1248, 1281 (Pa.Super. 2018). The Adverse Inference doctrine “attempts to compensate those whose legal rights are impaired by the destruction of evidence by creating an adverse Inference against the party responsible for the destruction.” Duquesne Light v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa.Cmwlth. 1997). The duty to retain evidence is established where a party “knows that litigation is pending or likely” and “it is foreseeable that discarding the evidence would be prejudicial” to the other party. Where spoliation has occurred, the trial court must weigh three factors in assessing the proper penalty: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Gavin v. Loeffelbein, 161 A.3d 340, 353-54 (Pa.Super. 2017). Ultimately, the Court determined that the missing video was relevant because it may have shown when the spill occurred, or whether other customers may have slipped, and/or it could have been probative as to whether ShopRite’s inspection and safety precautions were being followed. Moreover, the Court found that ShopRite intentionally, unilaterally and arbitrarily preserved thirty-seven minutes of footage prior to the fall without any explanation as to why it deviated from its usual practice, why thirty-seven minutes in particular were preserved, or who made that decision. In fact, ShopRite’s Risk Manger disavowed any knowledge of who made the decision to retain only a portion of the video. The Court further explained that the thirty-seven minutes prior to Ms. Marshall’s fall did not even include the fifty minutes that elapsed after the last Gleason inspection of the area. Furthermore, conspicuously absent was testimony from anyone at ShopRite that he or she watched the video for the six-hour-period prior to the fall before determining that it did not contain any relevant evidence. Finally, the Court held that the trial court’s finding that there was no spoliation because ShopRite did not act in bad faith was based on an incorrect application of the doctrine. The Court explained that spoliation may be negligent, reckless, or intentional; a party’s good or bad faith in the destruction of potentially relevant evidence goes to the type of sanction that should be imposed, not whether a sanction is warranted. Thus, the Court held that ShopRite’s conduct herein constituted spoliation, and remanded the case back to the trial court for a new trial.

Unfortunately, stories like this are sure to abound as the years progress. A recent Bordas & Bordas, PLLC client was very pleased to find out that we were able to correct a royalty calculation mistake that was going to cost them almost $73,000! A West Virginia couple had recently been contacted by Equinor, formally known as StatOil, and were told that there had been an overpayment in their royalty account of over $80,000! Equinor advised the royalty owners that they would no longer receive royalty checks until that $80,000 payment was recouped. The couple called and emailed and attempted to get explanations for the situation but could seemingly get nowhere. The explanations they did get just didn’t seem to make sense to them. Worried about their rights they contacted Bordas & Bordas, PLLC and I was able to review their documents and reach out to the gas company. After some pointed communications asking for specific reasons why the alleged overpayment had occurred an in-house corporate attorney for Equinor finally wrote back. My questions had prompted a new investigation into the account. Unfortunately, the landowners’ questions alone did not seem to be enough. It was not until an attorney became involved that the gas company took the complaint serious. The gas company attorney explained after the company review that nearly the entire overpayment had been a mistake and the landowners did not owe over $80,000 in overpaid royalties. While there had been a mistake in the calculation of ownership percentages as the production unit changed in size, only about $7,000 in overpayments had occurred! While that is still a substantial amount of money, it is much less than the $80,000 originally claimed by the company. Rather than waiting years to receive their royalties and giving up about $73,000 in income, the family will soon again be receiving their royalty checks. This was possible because the couple questioned what the gas company told them and were willing to reach out to an attorney to have their situation reviewed. If your royalty checks don’t seem right, if the company tells you something that does not make sense please don’t hesitate to contact someone and see if it can be checked out. Whether through greed or neglect it appears that many landowners are being taken advantage of by the gas operators. Don’t let it happen to your family. Make the call and let us see if we can help you out.