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

The Bordas and Bordas law firm sponsors the KeyBank Pavilion concert series. Recently, that sponsorship allowed me to travel in a time machine back to the 80’s and have a blast. I went to see the concert involving REO Speedwagon and Chicago. I was not a particularity big fan of either band and was not expecting much other than a nice evening out. We got to the concert a little early. We sat at the firm seats, which provided a spectacular view of the stage. I looked around and saw all the "old" people in the Pavilion. I thought, “What are all these old people doing at a rock concert?” It then dawned on me that I am one of these "old" people, which just heightened my questioning of why I came to a concert two see two bands that I never had any particular fondness for while I was growing up. However, then REO Speedwagon opened the concert with one of their songs that brought me back to my high school years driving my brother’s red Vega station wagon. As we belted out “Heard it from a friend who heard it from a friend who heard it from another that you’ve been messin’ around” it brought me right back to the 80’s. When Chicago came on stage, the time machine continued to fly us back through time zones. Watching these men on stage in their late 60s and early 70s having the time of their lives made me realize that if you are open to allow yourself fly in a time machine, you can have a great time no matter what your age. So the next time Hall and Oates are playing, count me in even though I was never practically a big fan of them, because I am a big fan of having fun. *Image courtesy of unsplash

My wife, Brenda, and I are no strangers to Amish Country. Brenda goes for the shops and the old-time feel of the Amish communities. I go for the food. Recently, we were driving through Amish country with our granddaughters. Someone suggested that we make a stopover at “The Farm” in Walnut Creek, Ohio. Besides traditional farm animals, “The Farm” also features a driving tour where you can see and feed other, more exotic animals. It sounded like fun, so we bought the food, piled into the car, and set off on our adventure. The girls were absolutely delighted by the deer, goats, and pot-bellied pigs that lined the roadway. Most of them were a little skittish, but a few came up to the car and were willing to eat out of your hands. Naturally, the girls were thrilled. As we kept driving, the animals became larger, more exotic, and definitely more aggressive. The llamas knew the routine. With their long necks they could stretch into the car and try to steal a mouthful right out of the food bucket.  The ostriches did the same thing.  If you worked hard enough, you could feed them handfuls of food through the car window, but they all knew that the bucket was the big score. So far everything was manageable. But by the time we reached the bison and the water buffalo, I was getting nervous. Before I knew what was happening, I had giant heads with giant tongues pushing through the window and reaching for the bucket. The girls were laughing, then screaming, then laughing some more. My wife and daughter were cackling nonstop as they snapped pictures from the backseat. Meanwhile, I got slimed by a water buffalo. That only made them laugh harder. I know my granddaughters thoroughly enjoyed their ride. And if I’m being perfectly honest, I did too. If you would like to have an adventure of your own, check out “The Farm.” It’s only about an hour and a half away and its fun for the whole family. And if you’re smart like me, you’ll stop for dinner at an Amish restaurant before heading home! *Image courtesy of Unsplash

You may have the opportunity to serve your community as a juror someday. I cannot express to you what an important role and an honor this should be. It is very important to know, and to fully understand this great responsibility. After all, if you were on trial in a criminal matter, or, the plaintiff or defendant in a civil matter, wouldn’t you want the jurors deciding your case to fully comprehend the difference of the weight of the scales? Let’s begin by noting the differences between civil and criminal matters and how the scales of justice weigh in when it’s time for jury deliberations. When a civil lawsuit is initiated, it involves a person(s) or perhaps a corporate entity known as the plaintiff(s). The lawsuit has commenced because the plaintiff(s) claims that another person(s) or entity has failed its duty owed to the plaintiff(s), which resulted in some kind of harm to the plaintiff(s) for this failure. This can be a physical harm, a civil rights harm, a complete loss of life or property harms. These types of cases are generated through private law firms. In a criminal case, a person(s) is accused of a crime. A felony is a more serious crime. The defendant is usually indicted, and this indictment serves as the formal accusation. For lesser crimes, a misdemeanor is the general charge. I assume for criminal matters, I do not have to list examples because we all know what violating the law is, or at least, we should. It is the state or federal government who prosecutes these types of cases. Victims do not have the responsibility to privately prosecute these cases. This responsibility rests solely upon the state or federal prosecutor(s) assigned to this case to represent this victim(s). So, let’s examine the difference when it comes to deliberations, that is, the jury has been handed the case to decide its outcome. In considering criminal cases, the burden of proving the defendant's guilt is completely the responsibility of the Prosecution. Not only is it the responsibility of the prosecution, this requires them to establish guilt beyond a reasonable doubt. That is, leaving no question in the mind of a juror. This is where the difference lies between a criminal matter and a civil one. In civil cases, the plaintiff(s) do have the burden of proving its case, however, by preponderance of the evidence. Meaning, more likely than not. The greater weight of the evidence required in a civil lawsuit or more convincing as probable truth from the evidence presented in consideration of evidence and testimony presented at the trial. It is, The Tipping of the Scales. The weight can be fractional of 51% to 49%, or, much greater. The point is, any slight tip of that scale in the more likely than not direction that this occurred, or these circumstances caused the harms and losses, means, you must rule in favor of the plaintiff. So, now that we know the differences between juror responsibility when it comes to the weight of the scales of justice in a civil or criminal matter, perhaps when you have the privilege of serving your community in these very important matters, this may be a helpful tool in your consideration of deciding a case. *Image courtesy of Pixabay

As Labor Day Weekend approaches it’s important to understand the meaning and history behind this National Holiday which is dedicated to the social and economic achievements of American workers. Labor Day was not always a national holiday, but rather, was slowly recognized by various states around the country.  According to the United States Department of Labor, the first state to pass law declaring Labor Day a holiday was Oregon in 1887. Thereafter, four more states, Colorado, Massachusetts, New Jersey, and New York created the Labor Day holiday by legislative enactment. Seven years later 23 more states had adopted the holiday. However, it was not until June 28, 1894, that Congress passed an act making the first Monday in September of each year a legal holiday. During the first Labor Day celebrations there was a tradition of having parades, picnics and various other celebrations in support of labor issues, such as shorter hours or to rally strikers. The labor unions were at the center of these parades as it was common during this time period for the average American to work seven days a week for approximately twelve hours a day. Additionally, during this time it was also not uncommon for young children to be working for minimal pay in unsafe conditions. Accordingly, the parades were a way for the unions to raise awareness of the hardships American workers faced on a daily basis. To this day, Labor Day is still celebrated with parades, picnics, and other public meetings that celebrate the progress we as a country have made in regard to our working conditions as well as all of the economic achievements to date. As many people are aware, Labor Day is also known as the official end to summer celebration for many. Whatever your Labor Day plans entail, take time to celebrate your accomplishments over the year! *Image courtesy of Unsplash

If you are involved in a civil lawsuit, you will likely be served with at least one set of written discovery requests. These will probably contain a series of interrogatories, which will ask you to provide written answers to various questions related to the lawsuit, and requests for production of documents and other things, which will ask you to provide copies of documents that have information that could be related to the lawsuit. Both of these types of discovery requests are fairly easy to understand – the opposing party wants information about the lawsuit and is asking you to provide it. Sometimes, however, you may also be asked to answer requests for admission. This discovery tool can be a little more difficult to understand what is being asked of you, or what the purpose of your responses will be. A request for admission is a written discovery tool that asks the answering party to admit the truth of particular statements. The admission of these statements is only for purposes of the litigation in which the request for admission is being served. The statements may involve any discoverable information that relates to either the facts, the application of law to facts, or the answering party’s opinion about the facts or the application of law to the facts. They may also ask the answering party to admit that certain documents are genuine. The purpose of requests for admission is to help narrow the scope of the case and determine what facts or aspects of the case are not in dispute between the parties. This is important for two primary reasons. The first reason is to try and establish proof of important and essential aspects of the case. The second purpose of requests for admission is to help eliminate issues that are not a part of the case. The parties will spend a good deal of time and some money doing discovery to try and obtain as much information as possible about their case, and if there is an agreement about certain elements of the case, then less effort will be necessary to get to the bottom of that element and place evidence before the court on that issue. For example, if the lawsuit is about a collision where a semi-truck hit a passenger car, one issue that the plaintiff may want to explore in discovery is the driver’s employment with the trucking company. If the defendant company or driver will admit that, at the time of the collision, the driver was employed by the trucking company, and was driving for the trucking company as part of his job, then less efforts will need to be taken to establish and prove the employment relationship. Requests for admission also help the court by reducing the amount of evidence that the court will need to rule upon whether it may be admitted at trial. Your attorney will help you properly respond to any requests for admission that were served on you, and can explain to you the purpose of serving any requests for admission in your case on the opposing parties. *Image courtesy of Pixabay

In the case of Dean v. Bowling Green-Brandywine, the Pennsylvania Superior Court addressed the issue of whether the trial court properly granted nonsuit based upon the application of the limited immunity provision of the Mental Health Procedures Act (“MHPA”). The MHPA at 50 P.S. § 7114 provides that those who are engaged in treating or examining a patient “under the act” cannot be held liable absent “willful misconduct or gross negligence. Andrew Johnson was 23-years-old when he voluntarily applied for admission to Bowling Green Brandywine Treatment Center (“Brandywine”). Johnson was suffering from addiction to opiates and benzodiazepines, which had been prescribed for back injuries suffered in an ATV accident. Less than 10 days after he was admitted, he was found unresponsive on the floor of his room at Brandywine. He subsequently passed away. Johnson’s parents filed a complaint alleging Johnson’s death was caused by medical malpractice on the part of Brandywine and associated defendants. Some of the defendants raised the qualified immunity provision of the act, while others did not, including Brandywine. The case proceeded to trial. The Johnsons presented their case through expert testimony, which showed that the defendants had breached their duty of care to Johnson by failing to recognize his risk for and signs/symptoms of sudden cardiac death, and that Johnson died from a cardiac arrhythmia caused by deficient potassium levels and side effects of the medications in his system. The defendants moved for the entry of an involuntary nonsuit. They argued that the Johnsons had failed to present evidence capable of establishing willful misconduct or gross negligence. The trial court determined that the Johnsons had failed to present evidence capable of establishing that any of the defendants had been grossly negligent in their care of Johnson; therefore, the court granted the defendants’ request for nonsuit. It did not matter to the trial court that some of the defendants did not raise the issue of qualified immunity under the Act as an affirmative defense, since the Johnsons already knew it would be an issue. According to 50 P.S. § 7103, the Act applies to the “voluntary inpatient treatment of mentally ill persons;” however the Act does not define the term “mentally ill person.” However, the Department of Human Services has issued regulations defining “Mental illness” as: hose disorders listed in the applicable APA Diagnostic and Statistical Manual; provided, however, that mental retardation, alcoholism, drug dependence and senility do not, in and of themselves, constitute mental illness. The presence of these conditions, however, does not preclude mental illness. 55 Pa. Code § 5100.2. Here, the Superior Court determined that while Johnson was being primarily treated for substance abuse, the defendant psychiatrist and Brandywine were treating Johnson for co-morbid psychiatric conditions, therefore, nonsuit was proper. The Superior Court also agreed with the trial court that the Johnsons were not prejudiced by Brandywine’s failure to plead the Act as an affirmative defense since the Johnsons were put on notice of the claim through the pleadings of the other defendants. Finally, the Court determined that some of the defendants were not entitled to qualified immunity since their alleged substandard conduct in treating Johnson’s substance abuse occurred before the provision of mental health treatment. Given this holding, it is incumbent that plaintiffs consider the higher standard of gross negligence when the circumstances of the case involve the provision of both physical and mental health services. *Image courtesy of Unsplash/Pixabay

The Lost Art of Letter Writing (Part 3) The year was 1957. Like the hit song by The Statler Brothers, my dad was graduating from high school and ready to conquer the world. But there was a problem. My granddad was a steelworker who made ends meet, but he didn’t have enough money to put my dad through college. Thankfully, a wealthy relative stepped up and agreed to pay his tuition. When fall rolled around, my dad headed from his home in Weirton to Salem College, a small, independent school in northcentral West Virginia. For the next four years, his home and his friends would be nearly two hours away. But he left something even more important behind—his longtime sweetheart who, in due time, would become my mom. I’ve never really thought of my dad as a letter writer. But during those college years he and my mom wrote regularly. To be honest, it was a bit of a shock to see the sheer volume of letters he produced in so short a time. But as I read them, I could see how important it was for my dad to keep connected with familiar things and familiar people. More than that, I could see just how much he cared for my mom. Occasionally, they could get together for a short visit.  But most of the time my dad was alone. “This place just doesn’t seem right because you’re not here,” he wrote. He put a picture of my mom on his dresser. “I can sit and look at your picture all night, but that doesn’t satisfy. I would rather have you in my arms.” He certainly wasn’t afraid to share how he felt: “I love you just a little bit more every time I see you.” I especially enjoyed the early letters. Like a time machine, they let me see what a college freshman’s life was like. Freshmen had to follow a ridiculous set of rules that were enforced by “tribunals” of upperclassmen. If asked, freshmen were expected to know how many days were left in the school year, the words of the school’s fight song, etc. They also had to wear beanies any time they were on campus. Any violation of these rules would get you hauled before a tribunal. “About 50 freshmen were called to tribunal court today,” my dad reported in one of his letters, “but I’ve been lucky—so far.” My dad learned quickly that the best way to protect yourself from bullies on campus was to befriend someone who was even bigger. “I got me a good buddy now,” he told my mom. “He played football for West Virginia University in the Sugar Bowl last year. He stands 6 ft 5 in and weighs 245, so I don’t think I’ll have anybody try to shove me around!” Not surprisingly, college was a busy time. The work was challenging and time-consuming. “I was going to write you last night,” he confessed in one letter, “but I got here and I had to do an English theme.” The easy days of high school were over. “This year I have work to do every night and I can’t get used to it.” At one point he took a typing class and—like me—found himself struggling a bit. The professor was already giving time tests, he complained, “and I don’t even know all the keys yet.” Ah, yes, a kindred soul! Even as a young man, my dad dreamed of having a family of his own. I had no idea! One day he saw a married couple walking through campus with their children. “I couldn’t help but think of you, honey,” he confessed. Within a couple of years his dreams came true. My parents got married the summer before my dad’s senior year. I was born shortly after that. I found a letter that my dad wrote during the pregnancy. It was very eye opening for me. I always considered my dad to be a self-confident man. But as he wrote to my mom, he shared the mixed emotions he was feeling. He was happy and excited at the prospect of having a baby and starting a family, but he worried about the future: “It really makes me proud to think I’m going to be a father and I don’t think I could have picked a better mother. I just hope after I get out of school, whatever I get into will be good enough and pay enough that we won’t have to worry about depriving our baby of any of the good things in life.” Despite his misgivings, I’m here to tell you that my dad’s venture into fatherhood was an unqualified success. My dad was an avid storyteller, and through the years he enjoyed telling us what it was like growing up and going to school. But his stories were no substitute for the letters he left behind. Here, in his own words, he felt free to share his innermost thoughts—his fears, his dreams, his struggles. He was open, honest, and vulnerable with the woman he loved. I thought I knew my dad. After reading his letters, I came to realize I only knew a part of his story. I still don’t know everything, but I’m happy he was willing to share this chapter. Believe me, I’ll cherish it! *Image courtesy of Unsplash/Pixabay For those too young to remember, the chorus from “The Class of ‘57” goes like this: The class of '57 had its dreams But living life day to day is never like it seems Things get complicated when you get past eighteen But the class of '57 had its dreams

The gas industry continues its attempts to attack and control West Virginia. After losing a West Virginia Supreme Court case a few years ago, EQT successfully petitioned to have the case re-heard, and, with new business-friendly court members, succeeded in getting a decision which previously protected and benefitted West Virginia land owners overturned. In a seemingly rare event, republican controlled West Virginia legislature actually passed a new law which reversed the West Virginia Supreme Court’s change of heart and again provided protection to West Virginians who held old flat rate royalty leases. The law made it clear that companies like EQT could not deduct post-production costs from leases which had been modified from the old flat rate lease to a 12.5% royalty lease under West Virginia law. EQT retaliated by suing the state of West Virginia and claiming the law to be unconstitutional. West Virginia has sought to dismiss the suit and EQT claims the law involved provides no broad societal interest and, instead, is an improper attack on private contracts. One thing is certain, EQT is doing all it can in the election, lobbying and now federal court system to impose its will on West Virginia citizens. *Image courtesy of Unsplash/Pixabay

Going through my family letters, I found many that were written by my granddad while he was serving in the Navy during World War II. I knew that he served, and as a boy I remember reading through his Navy manual and playing with the mementos he brought back from the South Pacific. But he never talked about his war experiences. Even after I was grown up, I can’t remember a single conversation we had dealing with his Navy days. But now, quite unexpectedly, I’ve been given a glimpse into what those days were like. Week after week, my granddad wrote letters to my grandma and their two young sons. My grandma was in her twenties, a young mom who was suddenly on her own. My dad was only five years old. My granddad was drafted in early 1943 and was assigned to the LST-740, an amphibious ship. You’ve probably seen pictures of an LST before, coming right up to the shoreline and opening its side to offload men and supplies during an invasion. I had the privilege of touring an authentic LST a few years ago, and I can tell you they’re big! My granddad took part in General McArthur’s famous return to the Philippines (if you look closely, you’ll see the 740 behind McArthur) and many other battles in the Pacific islands. But against this backdrop of war, I saw a man who was determined to write his wife faithfully, to be an encourager, and to stay as involved as he possibly could in the life of his family. I was struck by my granddad’s longing to go home. It was a theme that came up often, especially during the holidays. Christmas seemed to be the worst. With two young boys, Christmas was a busy, magical time. My granddad couldn’t be home for Christmas, that’s true, but he did get the next best thing--grandma gave a full rundown of the day. I could almost see my granddad smiling as he thanked her for sharing the day’s excitement. Another theme was the heat. Naturally, there was a lot of deck work to be done on a Navy ship, and for most of the war the 740 was sailing in tropical waters. According to my granddad, the men shed their work shirts in Bora Bora and never wore them again on deck duty. He also described going belowdecks into the ship’s storage room and almost being overcome by the heat. It shouldn’t come as a surprise, then, that he missed the West Virginia snow. He liked hearing stories of the boys playing outside in the snow and complained how the Pacific winters were almost “like July.” It wasn’t just family he missed. It was the rhythm of the seasons too. One letter was especially moving to me. It was written on December 7, 1944, and my granddad was recalling the Pearl Harbor attack. Like those of us who experienced the September 11 attacks, Pearl Harbor became a defining moment for a generation. My granddad remembered exactly where he was when he heard the news. Then he asked philosophically: who could have imagined that he would end up fighting in a war half a world away? I couldn’t help but think of my own emotions after September 11. I was surprised by the reassuring tone of my granddad’s letters. In almost every letter he let my grandma know that he was safe and that he would be coming home soon. What made this surprising was the fact that the 740 was constantly in harm’s way. In fact, it was a part of six different invasions during its tour of duty. More than that, my granddad was a gunner. That meant he was responsible for manning one of the 20 mm guns on the ship’s deck. I’ve read a summary of the 740’s time at sea. I know there were plenty of encounters with enemy aircraft. I know a few of them were kamikaze attacks. But in spite of the danger, my granddad was still an encourager every time he wrote. *Image courtesy of Unsplash/Pixabay

This past Friday, a jury ordered Monsanto Co., now part of Bayer AG, to pay $289.2 million to a Roundup user who developed non-Hodgkin’s lymphoma in a landmark lawsuit over whether exposure to Monsanto’s powerful weed killers cause cancer. The jury verdict, in San Francisco Superior Court, further shines the light on Monsanto’s weed killer Roundup following the 2015 determination from the International Agency for the Research on Cancer that glyphosate, the active ingredient Roundup herbicides, probably causes cancer. Dewayne Johnson's victory Friday could set a precedent for thousands of other cases claiming Monsanto's famous herbicide causes non-Hodgkin's lymphoma. Thousands of patients are suing Monsanto, claiming Roundup gave them cancer. After three days of deliberations this week, the jury at the Superior Court found Monsanto responsible for $39.2 million in compensatory damages Johnson and $250 million in punitive damages based on Monsanto’s misconduct in trying to conceal the dangers of glyphosate to human health. The big questions at trial were whether Roundup can cause cancer and, if so, whether Monsanto failed to warn consumers about the product's cancer risk. The jury emphatically answered those both questions in favor of Mr. Johnson. For plaintiffs suing Monsanto, who have the burden of proving that Roundup is carcinogenic, the jury’s decision may end up being the impetus for improving public health by helping to further educate the public on the hazards of Roundup. Monsanto continues to maintain that Roundup, the most widely used weed killer worldwide does not cause cancer, but Johnson’s case focused not only on glyphosate but Roundup as a chemical mixture, in which the interaction between glyphosate and the other ingredients in Roundup react synergistically to make the product more carcinogenic. While this fight is far from over – Monsanto will undoubtedly appeal – Round 1 went to the people in a big way in this battle and will hopefully cause Monsanto to take a hard look at itself and its products. As a lawyer who handles chemically-induced cancer claims from products like Roundup, I can attest to the importance of contacting a lawyer as soon as possible to explore your rights. If you or one of your loved ones have been diagnosed with non-Hodgkin’s lymphoma and have a history of exposure to Roundup, you should contact an experienced law firm right away to explore the possibility of a claim. *Image courtesy of Unsplash/Pixabay

Hey all you lefties out there! August 13 th is International Left Handers Day. I am also a lefty and am mostly fine with it. I generally do well in the right-handed world except for the following things that annoy me no end. Spiral notebooks. When I was growing up, I spend an inordinate amount of time washing the ink off my left hand from ink smear while writing. I don’t understand why there can’t be left-handed notebooks, or make notebooks with a flip top like a steno notebook. After all, we make up about ten percent of the population. That’s a lot of left-handers! Can openers. All I can do is sigh at this one. Right-handed can openers can be used by lefties but it’s awkward. I just prefer electric can openers so I don’t have to deal with it. Scissors. If you have ever used right-handed scissors, you will find you can’t cut anything with them because the blades are backward. Switching the handle around to cut hurts your thumb because, of course, the hole is smaller. Desks that are designed for right-handed people. I don’t know about anyone else, but when I try to work in a desk designed for right-handed people, my work space is the smaller part of the “L” design. Growing up, my left-handed brother and I were always placed beside each other at the dinner table so we wouldn’t bump elbows while eating. He loved it more than I did because he hated peas and lima beans so he shoveled them onto my plate. I just felt like an outcast for being different. Luckily, I have since outgrown my inferiority complex and now embrace my leftiness. It’s too bad we can’t have a store like Leftorium from the Simpsons. How great would that be? No searching through throngs of products to see which ones are for left-handers. Everything is for left-handers! But until a left-handed store exists, hat’s off to all of you lefties out there who have suffered in the right-handed world. And, yes, my hat is in my left hand. *Image courtesy of Unsplash/Pixabay