Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

As an attorney, I often talk to potential clients on the phone regarding a variety of issues. Regardless of what their issue may be, they can do a number of things in preparation for a successful first phone call with a lawyer. The following are just some of the things a person can do when calling a lawyer for the first time: 1. Contact information – Have your contact information ready to provide to the attorney. Your name, address, email, and all phone numbers at which you can be reached. Also, make sure that when you provide this information that you specify whether the attorney is permitted to leave a message with anyone else in the household. I often ask this question, but it can helpful for a client to let the attorney know, as well. 2. Have a summary of your issue(s) – Before contacting an attorney, give some thought to your issue(s) and summarize the key aspects of your problem. I often find that when people call me to discuss an issue they are nervous and forget details. By jotting down some notes and summarizing your issue(s), this can alleviate some of the nervousness and help you express more clearly why you feel you need an attorney. 3. Have important dates and names handy – Always have important dates and names handy, so that you can provide them to the attorney. One of the first things an attorney may ask you after your name are the names of anyone else involved, so that they can determine if there are any conflicts. Also, dates are very important because the attorney has to determine if there are any statute of limitations issues. 4. Have a calendar in front of you – When talking with an attorney, often times you are nervous and forget dates and days, so having a calendar in front of you when talking to them can be helpful. 5. Have all related documents in front of you – Make sure that all related documents are in front of you when contacting an attorney, as much of the pertinent information will often be contained in those documents. For example, if you have been involved in a motor vehicle accident, having the accident report, hospital records and insurance declaration page, can be very helpful, as it will contain most of the information an attorney will need to determine if they can assist you or not. Hopefully, if you follow these tips it will help make your initial phone call with an attorney a success! Image courtesy of Unsplash

The question of what a speed limit is in a construction zone can be confusing. There is some conflict as to what the speed limit is an active work zone versus a work zone. A party going over the posted speed limit may attempt to argue that unless the work zone is active, the speed limited is the standard speed limit and not the reduced post speed limit in the construction zone. Don’t let that argument be made although at first blush it may appear such an argument is correct. A closer review of the law shows that the work zone need not be “active” for the lower reduced speed limit to apply. Law “Active work zone” is defined as “The portion of a work zone where construction, maintenance or utility workers are located on the roadway, berm or shoulder.” (emphasis added) 75 Pa. C.S.A. § 102. When passing through an active work zone, a person must not drive a vehicle at a speed greater than the posted limit. 75 Pa. C.S. § 3365(c.1). The section reads: “(c.1) Active work zones. When passing through an active work zone, no person shall drive a vehicle at a speed greater than the posted limit. An official traffic-control device shall indicate the beginning and end of each active work zone to traffic approaching in each direction.” A person driving at a speed greater than the posted limit when passing through an active work zone is guilty of a summary offense which carries with it a fine. 75 Pa. C.S. § 3365(d)(1)(i). From this specific section, it would appear that for the speed limit to apply, the workers must be, in the present tense, located in the construction zone at the time of the incident. However, don’t be fooled into accepting and believing the same. As there is more law on this issue that shows a very technical requirement for the same and that the speed limit may apply even if the workers are not actively working the area. The state of Pennsylvania requires specific signs and lights to designate an active work zone. An official traffic-control device must indicate the beginning and end of each active work zone to traffic approaching in each direction. 75 Pa. C.S. § 3365(c.1). 75 Pa. C.S. § 3326(d)(1) requires proper notice of traffic-control devices by placing these objects to notify motorists that increased penalties apply for moving violations in active work zones. In addition, 75 Pa. C.S. § 3326(d)(1) says that official traffic control devices shall be appropriately placed to notify motorists that increased penalties apply for moving violations in highway safety corridors. 75 Pa. C.S. § 3326(e) states that official traffic-control devices shall be erected at the beginning of an active work zone with a white strobe light or other unique, illuminated light or device. The light or device shall indicate that workers are present in the active work zone. Id. The light or device shall be turned off if no workers are present. Id. An official traffic-control device shall be erected immediately at the end of the active work zone indicating that workers are no longer present. Id. According to 67 Pa. Code § 212.419(d), the “Active Work Zone When Flashing” Sign (W21-19) shall be erected as close as practical to the beginning of the active work zone. In addition, 67 Pa. Code § 212.419(d)(3) states that the W21-19 signs shall be installed on temporary sign posts or on Type III barricades, and a white Type B high-intensity flashing light must be attached to the upper portion of each W21-19 sign. The light shall be activated only when workers are present, and deactivated when workers are not anticipated during the next 60 minutes. Lastly, 67 Pa. Code § 212.419(e) concludes that the “End Active Work Zone Sign” (W21-20) shall be erected immediately at the end of each active work zone, except this sign is not necessary if either the “End Road Work” Sign (G20-2a) or the “End Work Area Sign” (G20-3) is installed at the end of the active work zone. The Pennsylvania Department of Transportation’s website summaries the requirements of an active work zone: “Active work zones must be designated as such to notify motorists when they enter and leave the work zone. A white flashing light attached to the ‘Active Work Zone When Flashing’ sign will indicate an active work zone. The flashing light will only be activated when workers are present and turned off when workers are not present.” Pennsylvania Department of Transportation, Work Zone. This only adds to the appearance that the work zone must be active to require the reduced speed. However, that is not the law. As there are areas termed “work zones” that require the posted reduced speed limits to be followed and there is law that allows Penn DOT to post a reduced speed limit regardless if it is an active work zone or not. The term “ work zone” is defined as “The area of a highway where construction, maintenance or utility work activities are being conducted which is properly signed as a work zone in accordance with regulations of the Department of Transportation.” 75 Pa. C.S.A. § 102. Motorists are required to exercise special caution in driving in construction and maintenance areas, and there are often reduced speed limits that are temporarily in place during such construction. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 7:7 (2016–2017 ed.)  While driving through work zones, drivers are required to exercise more than ordinary caution in the operation of vehicles. Brenton v. Colbert, 157 A. 619, 620 (Pa. 1931). In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). A Pennsylvania court held that classifying a work zone as not active at the time of vehicle stop simply because there were no workers in the posted 40 mph construction zone through which the defendant was speeding was too narrow of an of interpretation. Com. v. Reid, No. CP-36-CR-0003038-2013, 2015 WL 7299802 at *3 (Ct. Com. Pl April 8, 2015). In addition, although there were no workers between the mileposts where the vehicle was pulled over for speeding, there was workers on the road further west of that location. Id. The court in this case held that based upon the facts that the posted reduced speed limit of 40 mph and the proximity to active workers in the construction zone, it was found that the defendant was driving in an active work zone. Id. Something to note about this case is that it is a memorandum decision. According to Pennsylvania Superior Court Internal Operating Procedure (IOP) § 65.37(A): “An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding....” 210 Pa. Code § 65.37. Analysis of hypothetical situation: Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. In addition, a state trooper observed the reduced speed limit as 45 as well. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances. Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive. Here are the two statutes that govern speeding in PA. I cite 336. 75 Pa.C.S.A. § 3361 § 3361. Driving vehicle at safe speed No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. 75 Pa.C.S.A. § 3362 § 3362. Maximum speed limits (a) General rule.-- Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this section or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits: (1) 35 miles per hour in any urban district. (1.1) 65 miles per hour or 70 miles per hour for all vehicles on freeways where the department has posted a 65-miles-per-hour or 70-miles-per-hour speed limit. (1.2) 25 miles per hour in a residence district if the highway: (i) is not a numbered traffic route; and (ii) is functionally classified by the department as a local highway. (2) 55 miles per hour in other locations. (3) Any other maximum speed limit established under this subchapter. (b) Posting of speed limit: (1) No maximum speed limit established under subsection (a)(1), (1.2) or (3) shall be effective unless posted on fixed or variable official traffic-control devices erected in accordance with regulations adopted by the department which regulations shall require posting at the beginning and end of each speed zone and at intervals not greater than one-half mile. (2) No maximum speed limit established under subsection (a)(1.1) shall be effective unless posted on fixed or variable official traffic-control devices erected after each interchange on the portion of highway on which the speed limit is in effect and wherever else the department shall determine. (c) Penalty: (1) Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of: (i) $42.50 for violating a maximum speed limit of 65 miles per hour or higher; or (ii) $35 for violating any other maximum speed limit. (2) Any person exceeding the maximum speed limit by more than five miles per hour shall pay an additional fine of $2 per mile for each mile in excess of five miles per hour over the maximum speed limit. § 3363.  Alteration of maximum limits. On highways under their respective jurisdictions, local authorities subject to section 6109(e) (relating to specific powers of department and local authorities) or the department, upon the basis of an engineering and traffic investigation, may determine that the maximum speed permitted under this subchapter is greater or less than is reasonable and safe under the conditions found to exist upon any such highway or part thereof and establish a reasonable and safe maximum limit. The maximum speed limit may be made effective at all times or at times indicated and may vary for different weather conditions and other factors bearing on safe speeds. No maximum speed greater than 55 miles per hour shall be established under this section except on highways listed in section 3362(a)(1.1) (relating to maximum speed limits), where the maximum speed for all vehicles shall not be greater than 70 miles per hour. (June 13, 1995, P.L.57, No.9, eff. 30 days; Dec. 21, 1998, P.L.1126, No.151, eff. 60 days; Nov. 25, 2013, P.L.974, No.89, eff. imd.) Section 75 Pa CSA 102 defines "Department." The Department of Transportation of the Commonwealth. 2013 Amendment. See the preamble to Act 89 in the appendix to this title for special provisions relating to legislative findings and declarations. 1995 Amendment. See section 4 of Act 9 in the appendix to this title for special provisions relating to report on effect of increased speed limit. § 3111. Obedience to traffic-control devices (a) General rule: Unless otherwise directed by a uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic-control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an emergency vehicle in this title. (a.1) Penalty.-- (1) A person who violates this section commits a summary offense and shall, upon conviction, pay a fine of $150. No costs or surcharges imposed under 42 Pa.C.S. § 1725.1 (relating to costs) or section 6506 (relating to surcharge) shall be assessed or imposed upon a conviction under this section. (2) Notwithstanding any other provision of law, including 42 Pa.C.S. § 3733(a) (relating to deposits into account), the fine collected under paragraph (1) shall be deposited as follows: (i) Twenty-five dollars of the fine shall be deposited as provided under 42 Pa.C.S. § 3733(a). (ii) After deposit of the amount under subparagraph (i), the remaining portion of the fine shall be deposited into the Public Transportation Trust Fund. (b) Proper position and legibility of device: No provision of this title for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that official traffic-control devices are required, the section shall be effective even though no devices are erected or in place. (c) Presumption of authorized placement: Whenever official traffic-control devices are placed or held in position approximately conforming to the requirements of this title, the devices shall be presumed to have been so placed by the official act or direction of lawful authority, unless the contrary shall be established by competent evidence. (d) Presumption of proper devices.--Any official traffic-control device placed or held pursuant to the provisions of this title and purporting to conform to the lawful requirements pertaining to such devices shall be presumed to comply with the requirements of this title, unless the contrary shall be established by competent evidence. Both 75 Pa.C.S.A. § 3111(a) and 75 Pa.C.S.A. § 3111(c) could be relevant to our analysis. Section 3111(a) states the general rule that drivers shall obey any applicable official traffic-control device. According to 75 Pa.C.S.A. § 102 “official traffic-control devices” are defined as “Signs, signals, markings and devices not inconsistent with this title placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.”. In addition, 75 Pa.C.S.A. § 6122 states that “The department on State-designated highways and local authorities on any highway within their boundaries may erect official traffic-control devices…”. Thus, Penn DOT had the authority to erect that sign. And since 75 Pa.C.S.A. § 3111(c) says that the devices shall be presumed to have been placed by the official act or direction of lawful authority, we can presume that Penn DOT placed the sign there and, as stated above, Penn DOT has the proper authority to place the sign. Thus, making that speed limit the valid rate which drivers should obey under the general rule of § 3111(a). 75 Pa.C.S.A. § 3111 was utilized in in Commonwealth v. Gernsheimer, 419, A.2d 528 (Pa. Super. 1980) to establish that a reduced speed limit was valid despite it being lower than what was prescribed by75 Pa.C.S.A. § 3362 without a verifying engineering report. In that case the defendant had been found guilty of operating his automobile at a speed of sixty (60) miles per hour in a speed zone, marked by traffic-control signs, which established the maximum allowable speed at forty-five (45) miles per hour in violation of 75 Pa.C.S.A. § 3362(a)(3). He appealed alleging that a speed zone in which the maximum speed is set at less than fifty-five (55) miles per hour under § 3362(a)(3) is unlawful unless such a speed zone is established on the basis of an engineering and traffic investigation citing 75 Pa.C.S.A. § 3363 for this proposition. 75 Pa.C.S.A. § 3111(c) provides for the presumption that official traffic-control devices, such as a sign establishing a 45 mile per hour speed limit, are validly placed by an official act or direction or lawful authority. It is uncontested that the speed limit signs were official signs and that they were posted so as to have been readily observable by the motoring public. The Commonwealth was, therefore, entitled to the presumption that they were lawfully authorized. In addition, Pa.C.S.A. § 3111(a) gives deference to any applicable official traffic control devices displayed by stating that the general rule is that drivers shall obey the instructions of these devices. Analysis of hypothetical situation Multiple signs, with and without flashing lights, have designated the speed limit as 45 mph where the accident occurred. While there were no workers on that side of the rode while the accident took place, there were workers on the other side of the highway and there were proper signage stating a reduced speed limit and barriers to designate a work zone. Therefore, at the very least the area should be classified as a “work zone” since there is construction, maintenance or utility work activities being conducted and the area is properly signed as a work zone. 75 Pa. C.S.A. § 102. A common-sense argument, not necessarily a legal one, for why there are these signs in a work zone is to not only protect the workers when they are there, but to also alert drivers of traffic patterns and construction equipment. In an effort to keep both highway workers and the traveling public safe, it is critical to establish sufficient warnings, at the proper distances.Dale G. Larrimore, 13 West's Pa. Prac., Pennsylvania Rules of the Road § 3:10 (2016–2017 ed.). By putting these signs before, during, and after a work zone, motorists have time to adjust their driving and anticipate obstacles. Not having workers on that side of the highway does not mean it is not a work zone and it does not diminish the need for drivers to exercise more than ordinary caution in the operation of vehicles. While it is easier to establish there is a work zone from the facts of our case, Com. v. Reid can help us make the argument that there was an active work zone present. Though Reid has no precedential value, it stated that despite there being no workers on the segment of the highway the crime took place, the area was still designated an active work zone since there were workers west of that location. Here, there are workers on the other side of the highway. It can be argued, though maybe a stretch, that this dynamic fits within the definition of an active work zone since the portion of a work zone where construction, maintenance or utility workers are located on the roadway, just going the opposite way on that roadway. It would obviously be more advantageous to have the area deemed an active work zone since there is an ample amount of statutes stating that the speed limit is definitely the rate stated by the construction signs. However, as stated above, there are some good common-sense arguments to why that posted reduced limit would also apply for any work zone, active or inactive. Finally, a review of the identified statues allows us to argue that unless the posted speed limit signs are not covered while in active, it is a work zone for the safety of the traveling public. Regardless if there is active construction going on and Penn DOT has the right an authority to post the speed limit to a speed that it feels is warranted under the demographics of the work zone in question. In short, there is an abundance of support that shows the posted speed limit will apply in a work zone, regardless if it is active work zone at the time of the incident. Image courtesy of Unsplash.

The word bullying is a word that we frequently hear and read about in the news. It certainly was present when I was growing up. I remember when I was a 10-year-old, there was a 12-year-old boy who was not particularly well liked by the older kids and who was picked on fairly frequently. As a matter of fact, I was encouraged to play a role in picking on this boy. The moment that I, through peer pressure, decided to join in, still to this day stands out in my mind and is a blemish on who I was at that time. But, I believe that it was also instrumental in who I was to become. I was the oldest of nine children - seven boys and two girls, and I lived in some fairly tough neighborhoods. I was taught by my father to box at an early age. I also was a fairly decent athlete when I was growing up. I could have been identified as a leader if someone cared to do so. At the time, I was not very confident outside of my athletic abilities. It was at age 10 that I was convinced by the older kids to fight the kid that was not so popular. So, I fought the boy, but it was not much of a fight since he did not offer much resistance. I remember the boy was crying, and I was congratulated for beating up this kid that no one seemed to care for. Soon after, I saw the boy, Eddie, and his mother walking across the playground towards my house. I knew that I was really going to be in trouble. Within minutes of Eddie and his mother arriving at my house, my own mother called for me. My mother said, “Jimmy, Eddie and his mother are here, and he has something he wants to say to you.” All I could think about is what I was going to say in defense to Eddie and his mother. I was already thinking of a story that might deflect some of the punishment that I would receive as a result of my actions. In my family, you were never allowed to start a fight, or lose a fight. But, starting a fight was strictly prohibited. Each of us knew that if we started a fight, we would be severely punished. It wasn’t bad enough that Eddie and his mother were at my doorstep getting ready to tell what I had done to Eddie, but I knew that when my dad came home, I would without a doubt be punished. Astonishingly, Eddie’s mother said, “Eddie is so sorry that he has done something that would make you angry enough to want to hit him, and he wants to apologize.” I was absolutely shocked. This was nothing at all what I expected. I immediately burst into tears and ran into my bedroom. I could not believe that this poor innocent kid, whom I picked on, was apologizing to me for something that he felt he had done when he had done absolutely nothing wrong. At age 71, I am starting to forget names. I sometimes even forget faces. But, I will never, for as long as I live, forget the name of Eddie Kuhl or the incredible lesson that his mother taught me. I made a mission after my bad behavior with Eddie to change my life. At age 10, I began thinking for the first time about bullying. I thought, what made the kids that encouraged me to pick on Eddie want to do so, and why did I allow myself to be talked into playing the role of bully! I made up my mind that this would not ever happen again to me and that if I could do something to stand up to bullies, I would do so. As I grew older and approached the eighth grade, I began playing football for the Charleston Catholic High School junior high team. It was at that time in my life that I observed first-hand the seniors bullying the eighth and ninth graders. They would make them run errands for them, and they would push them around and slap them with towels. It seems, looking back, that it was somewhat like a fraternity initiation. I thought to myself that if I was ever strong enough and in the position of a leader that I would change that. When I became a senior, I thought I could assume a leadership role, and in that role, I could encourage my teammates and classmates to look out for the smaller and weaker kids - the underclassmen. It started as just a discussion between my close friends and I that we would not allow the things that we saw as underclassmen happen to the underclassmen now. It would not be tolerated by us as seniors. We also identified the younger and weaker ones on the football team and made a mission to make them feel special and really a member of the team. For example, during away games, we would sing songs on the bus home after we won. We would call out the names of those who were known as the stars of the game. John Shemo, a smaller sophomore who didn’t get much playing time, led us in song every game of my senior year, followed by every classman who did not get to play much. These were the younger kids on the team. We also that year attended daily mass as a unit. Since some of the football players were extremely popular, that encouraged others in school to frequently attend mass. Throughout my life, I continued to have concerns about people being picked on and singled out even as I entered the legal profession. One of the most traumatizing moments I had in my legal career involved a local judge. I had just finished my first criminal case. My client was charged with delivery of LSD, and a policeman had witnessed the transaction and acted as an informant. The only defense we could offer was entrapment. It was the only time that I ever used that defense, and likewise, was the only criminal case that I ever lost. After the verdict, I made a motion for bond to be set for my client so he could remain out of jail while his appeal was being perfected. The hearing was to take place while I was out of town on vacation with my wife. This was the first vacation that I was able to take within the first two years of practicing law, so I arranged for one of my associates to cover for me. This was a routine task for the Court to continue bond until the appeal was finalized. Unfortunately, the associate forgot to attend the hearing. Since the associate did not show up, the Judge called the senior partners at the law firm I was working at and told them that I had missed the hearing and wanted me to call him. I then telephoned the Judge, who I had believed to be my friend. The judge informed me that I had missed the hearing and asked me what had happened. I explained the situation, seemingly to his satisfaction. He then told me to come to Court in the morning and to bring my client with me. When we arrived at the courthouse, I noticed two different television trucks. When we got inside the courtroom, the television crews were setting up and there were a couple of local newspaper reporters. When the Judge entered the room, he glared at me and said, “Mr. Bordas, I am glad that you could make it today. I want you to tell me why you chose to thumb your nose at the Court and ignore your responsibilities to your client this week by failing to attend the bond continuance hearing that had previously been set.” I was stunned. I then said, “Judge, as I told you last night over the telephone …” The Judge interrupted and said, “I don’t want excuses, I want you to tell me what happened.” I then said, “My associate, Greg, was supposed to cover for me. He forgot. Nonetheless, this is my client, and I was the one who was supposed to be there, and I take full responsibility.” The Judge then found me in contempt of Court and ordered me to write a 500-word paper. All of this was being filmed by the television stations and being taken down by the newspaper reporters. I was the subject of the news that day. I later found out that the Judge, whom I thought was my friend, had an ongoing battle with the senior partners of my firm, and they detested each other. He would do anything he could to get at them. In this situation, he got back at them by embarrassing me in front of the county. In fact, this instance was covered locally and nationally. Friends of mine that lived as far away as Florida and Wisconsin called to tease me about what they had seen or read. It was obviously incredibly embarrassing to me and my earliest recognition of bullying by adults. This taught me to be stronger. I have since witnessed first-hand the attempt by others to bully adults throughout my career, and I have found that bullying can occur at any stage or situation in life. Five years ago, my law firm started the anti-bullying program. We recognize children in Ohio, Marshall, and Belmont Counties who most exemplify the ideals of anti-bullying. That person is kind, considerate, courageous, and strong. That person stands out among his or her peers as one who has been able to help prevent bullying that has become so prevalent in our society. A teacher, or anyone for that matter, can identify someone who they think should be recognized. The award is a $500 check, plus tickets to a Pittsburgh Pirates game at our law firm suite, with food and drinks provided by the law firm. This seems to have been a success. The reason we started this is because I wanted to make it popular to be the nice person, the good guy, the one with the courage to stand up to bullying, although it seems to me that the message has to start with the parents and teachers, so it can filter through to kids. In order to get the message to my children, who I hoped would pass it on, my wife and I impressed upon our boys the fact that they needed to be aware of the people who were not blessed with the same opportunities as they were. Hence, if they ever saw someone sitting alone in the cafeteria, they were required to sit by them and talk to them. If they saw someone being bullied or picked on, they were to stick up for them. On the flipside of that, sometimes it is a difficult thing for a parent to ‘walk the walk’ after they were done ‘talking the talk’. I have passed up opportunities to enjoy being with some of my friends to sit with the lonely. This was not necessarily always because it was the right thing to do, but because the message that I have told my kids resonated within me. So, the message I want to relay today through this blog is that in order to try to put a dent in this bullying curse that we have in society, first we need to make it a popular thing to be against bullying. I especially think we need to make it popular to prevent bullying. I think that once we get the kids to buy into this idea, we can begin to bring the bullying curse to an end. It’s going to take a lot of work, courage, and preaching, but I think that with the right attitude, we can greatly reduce the incidents of bullying. Finally, I recently had the fortunate opportunity to watch the movie, Wonder. This is a movie that our law firm took all the Ohio County fifth graders to. I was not able to attend with the fifth graders, but my wife and I were able to watch the movie in Naples, Florida, with practically all of the moviegoers being over the age of 50. My wife and I both cried at times during the movie. Although no producers, actors, or so forth were present in this showing, when the movie was over, there was a round of applause. I have been told this has happened in many of the theaters across the country. It seems that the anti-bullying message is truly one that sells under certain circumstances. We all need to work to find the right buttons to push – then push them. Image courtesy of Unsplash.

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.