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If you have been injured on someone’s unsafe property, you may have a claim to recover damages. The body of law that governs such claims in West Virginia is known as premises liability law and governs the legal responsibilities of property owners and occupiers to prevent injuries to persons on another’s property. West Virginia premises liability laws applies a standard of care that requires a property owner to regularly inspect the property to identify dangerous conditions and either repair them or post warnings as appropriate. Employers, who are also property owners also have a duty to provide a reasonably safe place to work and to maintain the workplace in a reasonably safe condition. A number of premises liability cases center on the issue of when a dangerous condition arose, and whether the property owner had a reasonable opportunity to correct the hazard before someone got hurt. Liability for the injuries can attach to the owner or occupier of the property where that owner/occupier had a reasonable period of time in which to discover and/or correct the dangerous condition but failed to do so. The issue of what constitutes a reasonable period varies and is determined on a case-by-case basis. In addition, consideration is also given to the injured party’s actions and whether the injured person acted carelessly in a way that caused them harm. The court must assess all the facts and apply legal principles to decide whether liability lies with the defendant or the plaintiff in a premises liability case. One principle employed in West Virginia for determining whether an injured party can recover damages is the “open and obvious” hazards doctrine. This doctrine holds that a property owner is not responsible when a visitor on the property encounters an open, obvious and reasonably apparent danger, because the appearance of an obvious hazard gives notice to a reasonable person to proceed at his or her own risk. If that person chooses to ignore obvious danger, then fault lies with the visitor who assumed the risk and not with the owner/occupier of the property. The open and obvious doctrine operates as an absolute bar to recovering damages. In other words, if the hazard was open and obvious, the injured party cannot recover, regardless of how much or how little they may have been at fault for their injuries. The open and obvious doctrine has had a storied history in West Virginia, being abolished by the West Virginia Supreme Court of Appeals in 2013, before being restored by the West Virginia legislature in 2015.  The current law on open and obvious can be found in West Virginia Code §55-7-27, which reads, in pertinent part: (a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers. The effect of this law is that West Virginia property owners/occupiers are only liable when a hazard that is not apparent to a guest but should have been known to the owner causes an injury. If you have been injured on the premises of another, it is important that you contact an experienced attorney who understands the law and its potential impacts on your claim right away to explore your rights. Image courtesy of Unsplash.

If you are planning to travel, be aware that your decision to purchase travel insurance may be more significant than you think. Specifically, recent news reports have brought to light two class action lawsuits that were recently filed against Delta and JetBlue with regard to the travel insurance purchased by their customers. The allegations within these lawsuits provide that JetBlue and Delta “aggressively push customers to add ‘travel protection’ to online ticket purchases for an additional fee. What the airlines don’t say, the suits claim, is that they’re getting a cut of the profits despite not being licensed to sell insurance.” See Erin Gilmore, JetBlue, Delta Receive Unlawful Kickbacks for Selling Travel Insurance, Class Actions Claim. alt="" width="4032" height="3024" />The class action lawsuit filed against JetBlue is currently pending in the United States District Court for the Southern District of Florida. The allegations against JetBlue state in pertinent part as follows: “JetBlue proceeds to conceal its financial motivation in pushing the product by disclaiming its role in the trip insurance policies being sold on its website. Specifically, below the marketing language is the following language: Recommended by AGA Service Company, the licensed producer and administrator of this plan. Terms, conditions and exclusions apply, learn more. Plan underwritten by Jefferson Insurance Company or BCS Insurance Company.” JetBlue’s website thus represents to the consumer that it is AGA Service Company, and not JetBlue, who is recommending the trip insurance and who is “the licensed producer” for the trip insurance policies. A “producer” is insurance parlance for an insurance agent or broker, i.e., the one who makes a commission on the sale of insurance. Thus, by stating that AGA Service Company is “the” producer, JetBlue represents that it is not acting as an agent or broker, i.e., it is not making a commission on sales of trip insurance policies.  In fact, JetBlue cannot sell insurance to the consumer (and thus cannot receive commissions on sales) because it is not licensed as an insurer or insurance agent in Florida or anywhere else. Like Florida, other states across the country prohibit the unlicensed sale or brokerage of insurance, including the receipt of commissions by people or entities without a license.” There are numerous examples that the class action lawsuit points to demonstrating that JetBlue has engaged in unfair and deceptive trade practices, and further, that JetBlue has been unjustly enriched as a result of these deceptive practices. It will be interesting to see JetBlue and Delta’s response to these class action suits and whether such actions will be brought forth in other district courts in various states across the country. One thing is for certain, it is always important to read the fine lines when making any type of contractual decision; and further, that if you are purchasing trip insurance that you make sure you understand the coverage that is provided to you as well as who benefits from your purchase and whether they are legally entitled to do so. Image courtesy of Unsplash.

I am always surprised at the number of people I talk to who have been involved in an automobile accident and have no idea about the various coverages that might be available to them under the terms of their own auto insurance policies. In the coming weeks, I’m going to go through a number of the coverages we often see in auto policies, to assist the reader in understanding all of the benefits that could be available. Benefits that you have paid for, by the way. In my experience, a large percentage of auto insurance policies contain what is known as “medical payments” coverage, more commonly known as “med pay”. Med pay coverage typically applies to anyone who suffers an injury from an accident while riding in the vehicle to which the med pay coverage applies. In fact, sometimes med pay coverage will apply when you are injured while riding in someone else’s vehicle. Everything depends upon the language of the policy in question. In simple terms, med pay coverage will reimburse you for medical expenses you incur for the treatment of injuries you sustain while riding in the vehicle to which the policy applies. Importantly, it doesn’t matter who caused the injuries you sustained. If you are driving your vehicle and you fall asleep at the wheel and run into a tree, med pay coverage will apply. If you are going the speed limit through an intersection and another driver runs a red light and hits you broadside, med pay coverage will apply. Fault is not an issue; the only issue is whether the injury is caused by the incident. I have seen med pay coverage with limits as low as $1,000, and as high as $50,000. Everything depends upon what you and your agent talked about and agreed to when you first bought your auto policy. In order to collect the benefits you are entitled to, you need to give your insurance company notice of the incident as soon as possible. The process is then usually as simple as sending the insurance company copies of your hospital/medical bills and waiting for them to send you a check. Importantly, it doesn’t matter if you also have health insurance that is paying your medical bills. You are entitled to collect your med pay coverage even if another insurance company is actually paying your bills. This is coverage you have paid for, so you might as well use it. That leads me to an important tip. When you contact your insurance carrier to put them on notice of your med pay claim, be sure to tell them they are not permitted to pay any med pay benefits to anyone but you. Here’s why: Let’s say you are injured in an accident, and you have good health insurance available through your employment. Let’s also say that your bill for treatment at the emergency room is $3000. If the hospital sends that bill to your health insurance carrier, the insurance company will pay something around half of the total bill, and the hospital will have to accept that amount as payment in full. That is the deal the hospital and the insurance carrier negotiated in advance. If, however, the hospital is able to send the bill to your auto insurance carrier instead of your health insurance company, they will collect the entire $3000 (assuming you bought that much coverage). So, if the hospital bills the health insurer, they collect $1500 or so, and you have $3000 in your pocket from where your auto carrier paid you directly from your med pay coverage. In the situation where the hospital bills your auto carrier, the hospital collects $3000, you get nothing, and the health insurance you are also paying for has gone to waste. Not a good scenario for you. Hopefully, you now have a better understanding of med pay coverage and how it can benefit you. Should you have any questions about this article, feel free to give us a call. Image courtesy of Pixabay.

Over the summer, the Environmental Protection Agency (EPA) Office of Pollution Prevention and Toxics announced a proposed “Significant New Use Rule” (SNUR) for asbestos, an undisputed carcinogen. SNURs are a mechanism within the Toxic Substances Control Act (TSCA) that require the EPA to specifically approve a chemical when it is used in a significantly new way or in a significantly new mixture. Sadly, for potentially tens of thousands of unsuspecting American workers and their loved ones, it appears that this EPA is using a SNUR process, in a particularly cruel bit of political doublethink that could easily increase American lung cancer and mesothelioma deaths, to quietly expand asbestos usage in the United States under the (false) guise of an “unprecedented” set of new protections against the dangers of asbestos which require manufacturers “to receive EPA approval before starting or resuming manufacturing, and importing or processing of asbestos” to hear former EPA Administrator Scott Pruitt (who resigned amid accusations of misconduct) tell it. A substance like asbestos, that everyone agrees causes terminal, human cancers, does not need a SNUR process, because it doesn’t matter if asbestos is being used in a new way or in a new mixture. It is always going to be a deadly poison with no known safe level of exposure. Period. In fact, it is precisely because the health and litigation risks of asbestos are so great that there are many unregulated uses for asbestos that are nevertheless effectively dead. But, the current administration seeks to change all that, by using the SNUR process to grant formal approval to some, if not many, of those uses if they pass a safety review that many scientists find flawed. The TSCA was undergoing a major overhaul that began under the Obama administration and then transitioned when the Trump administration took over. But the new EPA has “reinterpreted” the TSCA mandate in radically divergent ways that, instead of protecting American workers, as originally intended (by simply banning all currently unregulated uses of asbestos for instance), now look to put a potentially large swath of the working public and their loved ones (who face the risk of second-hand contamination), at even greater risk of contracting terminal cancer. A leaked opinion from EPA lawyer Mark Seltzer, an attorney advisor to the EPA Chemical Risk and Reporting Enforcement Branch who worked on the SNUR and openly concluded that: “This new approach allows asbestos-containing products that are not currently used to be used in the future.” According to critics, the path to this new future use lies with the way this EPA is using the SNUR for asbestos. First, the SNUR concerns only 15 specific uses the EPA “believes” to be comprehensive. Only addressing a few potential uses sets up the argument that anything outside those 15 listed uses, are not of concern and can be legally implemented. Second, and most troubling, is the way this EPA will evaluate the risk of these “currently unregulated former uses.” Its approach is not include information from existing uses of asbestos, notwithstanding the significant body of scientific work around the health risks stemming from those uses. This means that the known dangers posed by, for example, asbestos-containing tiles, adhesives and piping in millions of homes and commercial buildings nationwide, the 8.8 million pounds a year of asbestos deposited in hazardous landfills or the 13.1 million pounds discarded in routine dump sites, will not be considered in determining whether a particular use of asbestos is safe. Making it easier to say something is safe by simply ignoring a century’s worth of the uncontroversial science on asbestos as a human carcinogen, means far fewer restrictions or prohibitions will be placed on the use of asbestos. But it won’t matter to the landfill worker or the pipefitter or the father and son doing demolition whether the EPA declared the original use of the asbestos safe, when they’re moving it around or tearing it off and breathing it in. It won’t matter to their spouses or their children when they get terminal cancer decades down the road from doing dad’s asbestos-contaminated laundry. Unfortunately, I have seen, up close and personal, the devastating, awful toll that lax laws and political cover-ups, like these, have taken on the American workforce. This kind of dirty politics, putting people’s lives on the line in the name of “infinite growth” (in stock price), should have remained a long-dead relic of a dark period in American history. We need industries and lawmakers that work to create a future, not steal one from others.

My case is set for mediation – what does that mean? In today’s day and age, it has become the norm for judges to require parties to a lawsuit to engage in mediation. However, many people do not understand the process of mediation and/or what the so called “mediation” will require of themselves. To put it simply, mediation is an informal process of alternative dispute resolution wherein the goal is to attempt to resolve or settle matters between people or parties using the help of a neutral third party called a mediator. Because a majority of lawsuits no longer go to trial, mediation has become one of the regular manners in which a matter gets resolved. Additionally, judges will more often than not require that mediation take place before a certain date during the litigation process. Not only do many Courts require that mediation take place, but also, Courts want to know the status of the mediation – what happened, who was there, and where did things leave off between the parties. Accordingly, if you are involved in a lawsuit, you will more likely than not be required to mediate at some point in time. Now that you understand the basics of mediation, you may ask next, who is at mediation? First, all parties and their respective attorneys as well as the mediator will be present. In addition, courts have now required that the party who is responsible for making any type of payment have an individual present at the mediation who has the authority to say yes or no to a certain settlement amount. For example, common language currently found in scheduling orders will read as follows: “The following persons shall be furnished with reasonable written notice of mediation and shall be required to appear at mediation sessions: (1) each party or the party’s representative having full decision-making discretion to examine and resolve issues; (2)   each party’s counsel of record; and (3) a representative of the insurance carrier for any insured party, and said representative shall have full, unqualified decision-making discretion to examine and resolve issues and make decisions, including settlement decisions for full policy limits, without having to contact anyone for any type of authority.” Accordingly, it is important that all of these individuals are present at the mediation in order for it to be a productive step towards accomplishing resolution of a matter. Now that you know what mediation is and who is there – your next question may be, what happens and what do I as a party have to do? The manner in which mediation begins varies not only as a result of who the mediator is, but also it may depend on the nature of the lawsuit. For example, some mediators require “opening statements” wherein each attorney will present their theory of the case. Many times, videos are used to illustrate the theory of the case. Other times, counsel for the parties simply state a few words as to where the matter stands and if the parties have engaged in any settlement discussions to date. Thereafter, the various parties will separate to different rooms or areas and the mediator will go back and forth between each wherein settlement negotiations will take place. It is the mediator’s goal to present an objective look at each side’s evaluation of the case in an to attempt to reach a mutual agreement between the parties on the value of a case. In sum, that is the basic level of understanding of the mediation process – although it may seem relatively straightforward, there is a talent to mediation and skills that both attorneys and mediators must hone in to achieve successful results.   Today's blog: Have you ever wondered what a 'mediation' entails? Erica tells us about that on the blog today and what you can expect going into one with your attorney.

The Ohio Supreme Court has finally answered a long percolating issue related to oil and gas lease practices. In Dundics, et al. vs. Eric Petroleum Corp., the Court found that individuals holding oil and gas leases on behalf of oil and gas companies must be licensed real estate brokers. In this case, Thomas Dundics filed suit against Eric Petroleum claiming that Eric Petroleum had failed to pay him related to lease deals that Dundics had secured on behalf of Eric Petroleum. Dundic would seek out landowners and help get them to lease their land with Eric Petroleum. Dundic was to be paid based on the number of acres he was able to get leased and was supposed to receive a future percentage of production from working wells. When Dundic sued Eric Petroleum seeking to enforce the payment arrangement, the Mahoning County Court of Common Pleas dismissed the case finding that Dundic was not properly certified as a real estate broker and, as such, was precluded from bringing any lawsuit to recover damages for real estate transaction activities. The case worked its way through the appellate process and was finally affirmed by the Ohio Supreme Court. The Court held that the definition of real estate under Ohio R.C. 4735.01 includes “leaseholds as well as any and every interest or estate in land situated in ”. This case brings to bear one of the most frequent questions that people should be aware of when leasing or selling their mineral rights.  Who is working for who? Many dozens of different land contractor companies work directly on behalf of oil and gas companies to get landowners signed up to lease and sales deals. Those contractors are rarely concerned with the best interests of the mineral owner. Their goal is to get the best deal for the company they are working for and to get the most compensation for themselves. There are, however, companies out there that land owners can reach out to for protection. Law firms, like ours, have been working for years now to protect the interests of landowner. Other companies do exist that provide very important services. Bordas Mineral Management, LLC has taken up the mantle of helping protect mineral owners from the evils of the leasing system. If you have questions about your lease or have been approached by company landmen asking to talk to you about your land, please reach out and find individuals who are qualified and ready to protect your interests. Image courtesy of Pixabay

In a long string of cases, the West Virginia Supreme Court has consistently enforced arbitration agreements in the face of legal challenges. The Court continued this trend in Hampton Coal, LLC v. Varney. Unfortunately, the Court in Varney refused to provide protection against forced arbitration in two important areas—in employment cases generally and in cases involving statutory claims. The plaintiff, Michael Varney, worked at a coal company for nearly 15 years. When the company was bought out, the new company required all employees to sign an agreement stating that all future employment disputes would be resolved through binding arbitration. Thereafter, Mr. Varney sued the company for “deliberate intent,” alleging that he was entitled to compensation for a workplace injury caused by the company’s intentional conduct. Mr. Varney also alleged that the company violated the human rights act, W.Va. Code 55-11-1, by demoting him after an illness. Citing the arbitration agreement Mr. Varney was forced to sign, the company moved to compel arbitration. The trial court found the agreement to be unenforceable. The Supreme Court, however, reversed the trial court’s ruling and found the agreement to be enforceable in its entirety. First, the Court rejected the argument that more stringent rules should be applied in the employment context. Employers often require employees to sign an arbitration agreement as a condition of employment. Because the arbitration agreement is offered on a take-it-or-leave-it basis, Mr. Varney argued that it was unsupported by consideration and, therefore, unenforceable. The Court disagreed, finding that the agreement was valid simply because it contained mutual promises to arbitrate. Second, Mr. Varney argued that statutory claims should not be arbitrated. Claims arising under the human rights act are meant to implement our state’s public policy favoring equal treatment. Those claims should be heard by law-trained judges and decided by juries chosen from a cross section of our communities--not by arbitrators. There are, after all, critically important rights at stake. Nevertheless, the Supreme Court held that even statutory claims are subject to arbitration, depriving Mr. Varney of his right to a jury trial. Unfortunately, this case is part of a steady erosion of the right to a jury trial—a right guaranteed by the Seventh Amendment. Compelling arbitration in employment cases deprives working West Virginians of a valuable right. Hopefully, the Supreme Court will correct its course in the future so the right to a jury trial will be fully protected. Image courtesy of Unsplash

Hiring an attorney can be a stressful and overwhelming event because it typically accompanies a difficult, painful, or worrisome event in your life. You may feel lost, confused, or mistrustful, and may have no prior experience with attorneys and not know what to expect. This is why it is important to find an attorney that is not only experienced and knowledgeable, but also that you can connect with and trust. One way to help you feel more at ease with entrusting your case to an attorney is to get to know your attorney better. Attorneys will learn a lot about you and your life as part of investigating and pursuing your case, but there are ways for you to get to know your attorney as well. One of the first ways that you might learn more about your attorney is to check out their website and biography. This will usually contain a lot of information about the attorney’s education and experience, such as where they received their undergraduate degree and where they went to law school. It will likely list significant academic or professional accomplishments, such as if they have authored any published written works or if they have given presentations or been speakers at conferences or other events. The website biography will usually list the courts of which the attorney is licensed to practice, the areas of law that they typically focus on, and may also list some significant cases they may have worked on or won. Another way to learn about your attorney is to perform a simple Google search. This will pull up various websites that review attorneys and can give you an idea of experiences that past clients have had with that attorney. Some of these websites include Avvo or SuperLawyers. These sites may also provide you with some additional information about the attorney’s significant accomplishments or awards and will also provide educational and licensing information for the attorney. While all of these sources are useful for learning about the attorney as an attorney, it can also be beneficial to learn about who your attorney is as a person. It can help put you more at ease to find ways that you connect with your lawyer, such as knowing that you are both parents or that you enjoy similar hobbies. Website biographies can sometimes be a source of this information, but you might want to check out the attorney’s law firm social media pages as well. Those will often shed more light on the types of causes the firm’s attorneys support or events that they attend, including sporting events, community or church organizations, or charities that they support or serve as board members for. Finally, the best way to get to know your attorney better is to ask them questions about him or herself! Most attorneys are happy to tell you about their work experience, education, or answer other questions that you may have to make you feel comfortable working with them. The attorneys at Bordas & Bordas are always happy to get to know clients and welcome the opportunity to share information about themselves and learn more about their clients as well. Don’t hesitate to introduce yourself and ask us questions! Image courtesy of Unsplash.

Recently, in the case of Harker v. Chan, the United States District Court for the Western District of Pennsylvania granted the defendants’ request for remittitur, lowering the jury verdict for past and future non-economic damages from $43,750,000 to $16,000,000, resulting in "the highest possible recovery that would not 'shock' the judicial conscience.” GH was born prematurely and was admitted to Conemaugh’s neonatal intensive care unit under the care of Dr. Chan, who observed some swelling on GH's head, which can be a normal finding. Dr. Chan believed that the swelling was either a caput, a cephalohematoma, or a subgaleal hemorrhage. The standard treatment for these conditions is primarily observation; however, Dr. Chan directed his nurse to wrap GH's head with an ACE bandage, a treatment that Dr. Chan learned while in medical school in the Philippines in the 1980s. The wrap remained in place for 48-hours, and upon removal, GH's head was bruised and swollen, and had abrasions that were oozing blood and serum. Both sides of GH's head, "all the way around," were discolored due to eschar. GH was transferred to Texas Children's Hospital and was treated by Dr. Laura Monson, a pediatric plastic and craniofacial surgeon. Dr. Monson noted "significant soft tissue loss" on GH's head and substantial hair loss. Fat oozed out of her scalp, and her skull bone was compromised. Dr. Monson peeled away the dead tissue from GH's scalp over the course of several days. GH began physical therapy for wound care, and underwent reconstructive surgery of her scalp, which entailed placing a tissue expander underneath her skin in an effort to grow new skin and recreate a hairline across GH's forehead. The tissue expanders limited GH's activities and require her head remain covered when GH goes outside in the sun. If no complications arise, GH will have tissue expanders in her head for three more years, however, Dr. Monson expected complications which could result in the expanders being in place for up to 10 years. Following this treatment, it was anticipated that GH would require additional surgeries, including a bone graft, multiple hospitalizations, and countless visits to the hospital. Despite her doctors' best efforts, GH will be permanently disfigured. GH has also suffered emotional distress; she is aware that she is "different" and has been teased by other children. She will require psychological counseling as she ages and becomes increasingly aware of her disfigurement. Plaintiffs sued Dr. John 0. Chan and Conemaugh Memorial Medical Center, alleging that Dr. Chan negligently treated GH, their newly-born daughter, by wrapping her head tightly with an ACE bandage shortly after birth, causing her to suffer permanent disfigurement to her head and scalp. The case proceeded to trial, resulting in a jury verdict for Plaintiffs in the amount of $43,750,000 for past and future non-economic damages and $3,283,579 in future medical expenses. On appeal, the defendants argued that the Court should remit the $43,750,000 compensatory damage award because it shocks the conscience. Defendants assert that comparing this compensatory damage award with awards rendered in similar cases establishes that the jury rendered an excessive verdict. Defendants also emphasize that GH did not suffer brain damage, cognitive impairments, or developmental delays. In response, plaintiffs argued that the jury rendered an appropriate verdict given the extent and severity of GH's injuries. Plaintiffs also argued that the Court should not compare verdicts when evaluating Defendants' Motion for Remittitur because GH's young age, unique injuries, and idiosyncratic individual characteristics defy any attempts to compare her to other plaintiffs. The Court noted that remittitur is well established as a device employed when the trial judge finds that a decision of the jury is clearly unsupported and/or excessive; however, it may not vacate or reduce the award merely because it would have granted a lesser amount of damages. The district court may only disturb a jury verdict if the damages assessed by the jury are so unreasonable as to offend the conscience of the Court. A compensatory damage award must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence at trial. If the Court remits, the reduction may not be less than the maximum amount that does not “shock the judicial conscience.” Further, in accordance with the Seventh Amendment, a district judge that remits must offer the plaintiff the option of a new trial. Here, the trial court determined that despite GH's severe physical injuries which will require future operations and medical treatment, her permanent disfigurement, and the high likelihood of future emotional damage necessitating counseling, her injuries by no means justify the $43,750,000 compensatory damage award that the jury rendered. The court believed that while GH would never grow hair on certain parts of her head and will have permanent scarring, she will be significantly less disfigured once the tissue expanders are removed and she will not have any permanent bumps on her head. Furthermore, the Court noted that GH did not suffer any brain injuries, developmental delays, or cognitive impairments. Moreover, the trial court noted that after having reviewed several other similar compensatory damage awards, the jury award in this case far exceeded the highest amount that would have reasonably compensated GH for her injuries. In fact, the highest non-economic damage award in a comparable case totaled $17,700,000, which was significantly less than half of the amount the jury awarded for compensatory damages here. In light of the foregoing, the trial court granted plaintiffs fourteen days to accept the reduced award or opt for a new trial on damages. Image courtesy of Pixabay.

In July, jurors in St. Louis hit Johnson & Johnson (“J&J”) with one of the largest product liability verdicts in U.S. history–a 4.69 billion award of compensatory and punitive damages to 22 ovarian cancer victims or their survivors. The company has been engulfed in an avalanche of talc-cancer claims. As of July 1, the company faced 10,600 lawsuits on behalf of people alleging they contracted cancer from routine use of talc powders, according to the company’s latest quarterly report. The vast majority of the claims are by ovarian cancer victims who say they contracted the disease from longtime use of the powder for feminine hygiene. The others claim the development of mesothelioma from unknowingly inhaling microscopic asbestos fibers when using talc powders. Talc, the softest known mineral, has a wide range of uses in cosmetic, pharmaceutical and even food products, but talc deposits are sometimes contaminated by naturally occurring asbestos. To date, plaintiffs have won eight of 12 talc-cancer trials against the drug and consumer products giant, with two cases ending in defense verdicts and one in a jury deadlock. On Monday, September 24, 2018, a mistrial was declared after a California state court jury deadlocked on whether Johnson & Johnson is responsible for the asbestos-related cancer of a woman who blamed her illness on longtime use of contaminated baby powder. Soon after starting a sixth day of deliberations, jurors in Los Angeles Superior Court told Judge Margaret L. Oldendorf that they were at an impasse, with eight of 12 favoring an award of damages to the plaintiff, Carolyn Weirick. That was one short of the nine votes needed for a verdict on claims that J&J was guilty of negligence, failure to warn about the risk of asbestos, and marketing defective products. Imerys Talc America, Inc., J&J’s talc supplier and co-defendant, was dismissed from the case after reaching a confidential settlement with Weirick just before jury deliberations began. Weirick, 59, suffers from mesothelioma, a deadly form of cancer strongly associated with asbestos exposure. According to her lawsuit, she had no occupational exposure to asbestos, but over many years had unknowingly inhaled microscopic asbestos fibers when she sprinkled on Johnson’s Baby Powder and another talc powder, Shower to Shower. In testimony in the case, plaintiff expert and materials scientist William Longo said his microscopic analysis turned up asbestos fibers in an old bottle of talc powder lying around Weirick’s home. Her lawyer also showed jurors internal J&J memos and test reports that he said showed J&J knew for decades that its talc supplies and even finished powders were sometimes tainted by asbestos. In a 1974 memo, marked as Exhbit 9 and placed in evidence, a J&J official said “our very preliminary calculation indicates that substantial asbestos can be allowed safely in a baby powder.” In another memo from the same year, marked as Exhibit 69 and placed into evidence, the head of research and development for Windsor Minerals, then a J&J mining subsidiary, wrote of the need to develop ways to purge talc of stray asbestos. Pursuing such methods “is strongly urged by this writer to provide the protection against what are currently considered to be materials presenting a severe health hazard and are potentially present in all talc ores in use at this time.” Another internal document in 1975 described the company’s approach as being “to initiate studies on talc safety only as dictated by confrontation,” to ”minimize the risk of possible self-generation of scientific data which may be politically or scientifically embarrassing.” These internal documents provide evidence that J&J has known for years about the adverse health effects of its products, similar to the internal documents uncovered in the tobacco litigation. Mesothelioma is extremely rare, striking about 3,200 people per year, or one in 100,000 U.S. residents. It has been described as a ”signal tumor” because it is so strongly linked to asbestos exposure, although some research suggests it can result from other causes. J&J is not the only company to be targeted by talc powder-cancer lawsuits. Colgate Palmolive, which formerly made Cashmere Bouquet powder, faces 222 cases, according to its latest quarterly report. Currently, another mesothelioma case against J&J is being tried in New Jersey. Colgate and Imerys Talc were also named as co-defendants in that litigation, but have settled the claims against them. Further documentation of Exhibit 9 & Exhibit 69 can be found here: Image courtesy of Unsplash.

One of the assessments that you and your attorney will make when it comes time to file your case will be whether to file it in state or federal court. There are limited situations where you can file a case in federal court. One is where the claims that you are bringing arise out of a federal law, such as a Civil Rights Act claim. The second type of case that can be filed in federal court is referred to as a “diversity claim,” which means that (1) the case is claiming more than $75,000 in damages and (2) all of the parties are citizens of different states. Both of these elements must be satisfied. Such a situation could arise if a resident of West Virginia is struck by a negligent driver who is a resident of Pennsylvania and seeks to recover damages arising out of the accident that are more than $75,000. Because the two parties are residents of different states and the damages are in excess of $75,000, the West Virginia plaintiff could choose to file his case in federal court. If federal court is an option for where you may file your lawsuit, your lawyer will discuss with you the reasons that it may be preferable over state court and reasons that federal court may not be the better option. Some of the pros and cons of federal court versus state court may include the type of case that you are filing and the laws that will be at issue in your case, the procedural rules of each court, and the historical results of trials and verdicts in both the federal and state courts for your types of cases. There may be a variety of other reasons that your attorney would suggest one court over the other depending on the specific facts and circumstances of your particular case. If you and your attorney decide that a state court filing is the better option for you and your case, your attorney may also warn you of the possibility that the defendant seeks to remove the case from state court to the available federal court. Similar to the plaintiff’s decision to file the case in federal court, the defendant can only seek removal if the case could have been filed in federal court in the first place. The case must fit either arise out of federal law or fit the “diversity claim” elements for removal to federal court. If the defendant does seek removal, you and your attorney can discuss whether you wish to challenge the removal and ask the federal court to remand the case back to state court, or whether you wish to proceed with the case in federal court. Again, this discussion and determination will be based on a number of case-specific factors, and will usually involve balancing some pros and cons. Regardless of whether your case proceeds through state or federal court, the actual litigation will run similarly in either court. You will likely engage in discovery, both written and by deposition, your attorney will file and respond to various motions, you will probably attend a mediation to discuss out-of-court settlement of your matter, and if mediation or negotiations fail, your attorney will prepare for trial. Attorneys at Bordas & Bordas have experience with filing and litigating cases in many different courts, both federal and state, and are available to discuss your legal situation with you to determine and explain your options. Image courtesy of Pixabay.

National Voter Registration Day: September 25, 2018 The fourth Tuesday of September is known as National Voter Registration Day. Voting is one privilege in this Nation that many people fail to exercise. Considering the political climate in our country today, and the upcoming midterm elections, it is more important than ever that folks get out and exercise this right. I found some interesting facts on the internet. If you’re not registered to vote, now is the time to do it!  Make sure to check out your polling place and deadlines before it’s too late. Here are some fun historical facts about voting: 1. No idiots, please ​Ohio's constitution bans "idiots" from voting according to Article V, Section 6 of the state constitution. 2. ​ George Washington campaigned with booze ​During his first legislative run, George Washington spent his campaign budget of 50 pounds on a round of election day drinks for his constituents. 3. ​ Voting, Texas-style As part of the Texas voter ID process, you can't vote with a student ID but if you show a gun license, you're good to go. 4. Those persevering Utah women ​ Utah women voters were granted the right in 1870 — but it was revoked by Congress in 1887 — and re-instituted by the state in 1895. 5. ​​ You had to pay a tax to vote ​Poll taxes, started in the 1890s, legally kept southern African-Americans from voting by making them pay for the right. 3 important facts you should know about voting & what you can do to spread the word: 1. Time to celebrate our democratic heritage National Voter Registration Day has volunteers out en masse with voter registration activities at school, in the workplace, and in your neighborhoods. For one whole day, volunteers and various organizations collaborate by setting up registration tables, knocking on doors or producing social and mass media awareness campaigns over the importance of registering to vote. National Voter Registration Day makes an all-out effort to register the tens of thousands of Americans who can make a difference at the ballot box. 2. Don't hate—celebrate National Voter Registration Day discourages political voter rage in favor of voter celebration. Imagine over 10,000 volunteers working together one full day to educate Americans on one of our most precious rights — the right to vote. In 2016, 750,00 voters registered on National Voter Registration Day. With so many world citizens denied this basic right, promoting our core democratic values, voting, should give all Americans something to cheer about on National Voter Registration Day. 3. It educates Americans on voting rights National Voter Registration Day reminds and educates American on the voter requirements. You must be at least 18 years old, a U.S. citizen, and a current resident of your state. When you see a National Voter Registration Day table or volunteer, you can do more than just register. You can confirm your polling place, update your registration details, or just get information if it all seems a little over your head. Voting — it's all good! Image courtesy of Unsplash.