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The proposed Equal Rights Amendment (“ERA”) provides that the rights guaranteed by the U.S. Constitution apply equally to all persons regardless of their sex. It is very brief: Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3. This amendment shall take effect two years after the date of ratification. The ERA was introduced in 1923, three years after the 19 th Amendment (granting women the right to vote) was ratified. In 1972, the ERA was finally passed by Congress and sent to the states for ratification. The original seven-year time limit was extended by Congress to June 30, 1982, but that deadline passed with only 35 states on board — 38 states were needed for ratification. The ERA has been introduced into every Congress since the deadline. The ERA has had something of a resuscitation this year. About two months ago, on May 31, 2018, Illinois voted to ratify the ERA, some 36 years after the original deadline for ratification was set by Congress. Some opponents of the amendment said that voting on it now is merely symbolic, noting that the protections that it outlines already apply to women today. Supporters, on the other hand, note that it is more important now than ever for the government to acknowledge clearly that women and men have equal rights under the law, citing the #MeToo movement and its revelations. Indeed, the #MeToo movement has underscored the importance of strong legal protections for women’s rights. The approval by Illinois sets up the possibility that one of the remaining states may want to move forward as the decisive vote to ratify. To be sure, there is a hurdle, so how would it work?  Supporters look to history, including the founding document. Six months after the Constitution went into effect, James Madison offered 17 amendments to the founding document. Congress ultimately approved 12, and by 1791, the states had ratified the first 10, which became the Bill of Rights. One of Madison’s amendments continued to slowly work its way through the states more than 200 years after congressional approval. Finally, in May 1992, Michigan became the 38 th state to ratify, making the 27 th Amendment the law. It provides that salary increases for members of Congress do not go into effect until the term after they were approved. Supporters of the ERA look to this history and ask, why did the ERA even have a deadline? There appear to be a couple of ways to revive the ERA completely, should one more state ratify it. A 2013 report of the Congressional Research Service, an office of the legislative branch, in its analysis has concluded that Congress could simply vote to change the old deadline. Or it simply might pass a brand-new amendment, which would most likely, as would a “new” amendment, require the states to ratify the ERA again. The states that have not ratified the ERA are Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana and Mississippi.

Recently, in the case of Walsh v. Bayer, et al., the Pennsylvania Superior Court analyzed a trial court’s dismissal of a “junk science” claim in connection with its application of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Specifically, at issue was whether Mr. Thomas J. Walsh’s forty-year occupational exposure to defendants’ pesticides, some of which contain known carcinogens and teratogens, was a substantial contributing factor in his death due to Acute Myelogenous Leukemia (“AML”). Mr. Walsh was employed for almost 40 years as a groundskeeper and golf course superintendent at several golf courses in the Pittsburgh area. During his employment, he frequently and regularly applied pesticides on the golf courses. He kept a diary of the chemicals used on the courses and the dates of their applications. His friend and coworker offered specific details about how the two men applied the pesticides, what pesticides were used, in what concentrations and the protective gear worn. On October 5, 2008, Mr. Walsh presented to the emergency room complaining of fever, chills, and a cough. Three days later, after a bone marrow biopsy, he was diagnosed with AML. Subsequent cytogenetic testing at West Penn Hospital showed chromosomal aberrations consistent with secondary leukemias, which are linked to radiation, chemotherapy, or chemical exposure. Mr. Walsh died on February 2, 2009. His treating oncologist later opined that Mr. Walsh’s extensive chemical exposure, together with “the high-risk karyotype and dyspoietic features associated with raise a high degree of suspicion that such exposure played a significant role in the development of his disease.” Wrongful death and survival action were initiated against the manufacturers of various pesticides that Mr. Walsh applied over the forty-year period, asserting claims in strict products liability, negligence, and breach of warranty. Plaintiff’s experts testified that epidemiological studies that have examined the association between pesticide exposure and leukemia risk have consistently shown a positive association, some estimates demonstrating a two-fold increase in risk. She opined that organophosphate pesticide formulations, individually or in combination, causally related to an increased risk of leukemia in humans exposed to them. The defendants filed a “ Frye” motion to exclude plaintiff’s experts, from testifying at trial, arguing that the methodologies used by these experts were not generally accepted or conventionally applied in the relevant scientific communities. After reviewing the depositions of the experts and the parties’ briefs, the trial court granted the defendants’ Frye motions and precluded the testimony of Executor’s experts, effectively dismissing the case. According to the Superior Court, Frye contemplates a judicial inquiry, informed by experts, into the general acceptance of the scientific methods used, not the conclusions reached by the experts. In this case, the Superior Court found considerable support (over 700 articles) for plaintiff’s position that the link between pesticides and cancer has crossed the threshold from novel to general acceptance. The Court highlighted that both the defendants and the trial court agreed that the “Bradford Hill” methodology that the plaintiff’s experts utilized was appropriate. Here, the Superior Court found that the trial court scrutinized the studies cited by plaintiff’s experts, assessed their scientific relevance and validity, and then arrived at its own conclusion whether the expert’s reliance upon them was scientifically acceptable. In doing so, the Superior Court determined that the trial court impermissibly set itself up as a “super expert” in the field of medicine, which is beyond the purview of Frye. Instead, the Court found that the scientific literature, in the aggregate, supports a causal relationship between long-term pesticide exposure and leukemia, such as AML. Thus, the court held that for purposes of Frye, an expert need not rely on studies that mirror the exact facts under consideration. It is sufficient if the synthesis of various legitimate studies reasonably permits the conclusion reached by the expert. The absence of a treatise or study directly on point goes to the weight, not the admissibility, of expert opinion. An expert’s opinion will satisfy Frye when it is deduced from generally accepted scientific principles and supported by studies or literature, even where the expert could not point to one study involving parallel circumstances. The Court further held that since Frye is an exclusionary rule of evidence, “it must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.” Therefore, the Court reversed the trial court’s decision and remanded for further proceedings.

In all accidents involving large trucks, it is vital that attorneys perform a proper truck accident investigation. At Bordas and Bordas we use comprehensive programs to ensure no stone is left unturned. Among the plethora of steps taken to prepare a truck accident investigation and later litigate a truck crash case we: (1) Preserve all evidence during the truck accident investigation; (2) Obtain police and other agency reports; (3) Obtain witness reports; (4) Acquire coroner reports; (5) Obtain the black box data if the truck was equipped with an ECM (Electronic Control Module); (6) Obtain the subject vehicle’s black box data if it was equipped with an EDR (Event Data Recorder) or SDM (Sensing and Diagnostic Module); (7) Acquire the truck’s GPS (Global Positioning System) data; (8) Learn about the motor carrier and its licenses, insurance, safety record, etc.; (9) Get the full background and history on the driver; (10) Secure a truck accident reconstruction expert; (11) If the truck driver committed a criminal act which caused the accident, we will communicate closely with the prosecuting attorney in charge of any criminal proceedings against the truck driver; (12) Determine the best legal venue determined by substantive law and choice of law issues and (13) Prepare and file the lawsuit. We want the community to understand that commercial trucking companies (and their insurance carriers) face significant costs if they are held liable for personal injuries or fatalities caused by a trucking collision. As someone who defended trucking companies for over 15-years, within minutes after these catastrophic collisions they are sending investigators, lawyers and other personnel to the accident scene. It is their job to control the accident scene, shield the driver from giving damaging statements and preserve evidence in a light most favorable to their clients. From our years of experience handling complex truck collision investigation and litigation, we know how to effectively detect negligence and causes of the truck wreck, such as: Negligent truck safety Negligence in securing cargo Driver log falsification Over Hours of Service Speeding Truck driver fatigue Driver distractions Defective road design Bad weather Failure to enforce training procedures Other factors If you or a loved one has been involved in a collision with a commercial motor vehicle please feel free to call us with any questions you may have or ask us how we can help.

This past Thursday, a St. Louis jury delivered a staggering verdict against Johnson & Johnson on behalf of 22 ovarian cancer victims whose cancer the jury found to be caused by these women’s exposure to Johnson & Johnson’s asbestos-containing talcum powder. The jury slammed J&J with an eye-popping $550 million in compensatory damages and another $4.14 billion in punitive damages for a total verdict of $4.69 billion (with a “B”). After a six-week trial, it took the St. Louis Circuit Court jury less than a full day to deliberate and return a verdict in favor of the claims of 22 women, six of whom have died, against J&J and its subsidiary Johnson & Johnson Consumer Inc. The jury unanimously held both J&J and J&J Consumer strictly liable and liable for negligence as to all of the plaintiffs. The jury voted 11-1 for the J&J punitive damages verdict, and unanimously for the J&J Consumer punitive damages verdict. For the better part of two years now, juries across the country have been rendering verdicts against J&J to the tune of hundreds of millions of dollars, making their voices heard time and time again in support of the unwitting victims of J&J’s Shower-to-Shower and other talcum powder-based consumer products. But last week’s verdict was, by far, the loudest outcry yet against the company who, the evidence shows, knew all about the deadly hazards of its talcum powder products at least four decades ago, while doing nothing to warn the American consumer and continuing to market and promote its talc products as perfectly safe, particularly for women of all ages. J&J continues to deny any wrongdoing and tries to cast the jurors who stand up to it as uninformed dupes who are having the wool pulled over their eyes by “slick-talking” lawyers. But the record size and punitive nature of the verdicts that continue to be delivered against J&J, through the country by ordinary Americans from all walks of life, is a clear signal that there is ample scientific evidence to support the link between exposure to J&J talcum powder products and ovarian cancer, as well as ample evidence that J&J knew and tried to cover up that danger to the American consumer. And that the average juror understands exactly the nature and scope of the harm J&J has vested upon thousands of women in the name of profit. The public could not be any clearer in telling J&J to pull its talc products from shelves and sell only its safe cornstarch alternative instead. Here’s hoping it will finally listen. If you suspect you have been the victim of J&J’s dangerous talcum powder products, you should contact an experienced lawyer right away to discuss your rights.

This week, I want to take a break from legal and political commentary and simply give our readers a “heads up” on a great vacation idea. It’s called the Boundary Waters Canoe Area, and if you enjoy fishing and the outdoors as much as I do, it will be the trip of a lifetime for you and your family or friends. The BWCA consists of a little more than 1 million acres of water and wilderness that extends along the US/Canada border in Northern Minnesota. It has been carefully cultivated and regulated by the two countries with an eye toward protecting and maintaining the wilderness, and from what I have seen throughout my years of traveling there, they are doing a really good job. Permits are required to enter and camp, and the number of campers in a particular area is strictly limited. No glass containers of any type are permitted. And the big thing — the one that I think does the most to keep the area pristine — is that motors are not permitted. So, if you want to get from point A to point B, jump in your canoe and start paddling. Your trip to the BWCA will begin with a flight into Minneapolis. From there, you drive north for a bit over four hours to the quaint little town of Ely. There you will find outfitters, restaurants, and unique stores galore. Any camping necessities you forgot to pack will be available somewhere in Ely. I suggest the Ely Steakhouse for the best meal in town, or for a few adult beverages on the back end of your trip. From Ely you will travel to your outfitter to prepare for your trip. I have been using Moose Bay Lodge ( www.moosebay.com) since I first started making this trip, and owner John Herrick really knows what he is doing. He can also give you a few tips on catching fish; he holds the world-record for smallmouth bass on a fly rod. You’ll be fishing the same waters that produced his world-record catch. On the day you head into the BWCA, you’ll be traveling in a motor boat with your 20-foot canoe strapped on top of a rack attached to the boat. You will check in at the ranger station at the border, and then head off into the wilderness. When you hit the restricted area, you put the canoe into the water; transfer everything from the boat to the canoe; hop in and start paddling. I have done trips where the paddle was as short as 45 minutes, or as long as 4 hours. Everything depends upon where you are going and which way the wind is blowing. Paddling a big, loaded canoe into a stiff wind is a serious workout. Trust me on that one. An experienced guide is a necessity, as handling that big canoe in rough water is darn near impossible for those who have not done it previously. Your outfitter can set you up with a good guide. Once you hit your campsite, the fun begins. You set up your tents, rig up your fishing tackle, and head out. Smallmouth bass are the fish of choice in the BWCA, although there a plenty of big pike and some walleye as well. But for my money, it’s the smallies that make the trip worth taking. 2-3 pounders are the average, but I can almost guarantee you will catch some 4 and 5  pound hogs during your trip. It’s all catch and release (except for what you keep for dinner), and in over 10 years of taking this trip, I’ve never had a bad week of fishing. This year, my buddy Rich and I kept track of the fish we caught throughout 1 day. We fished just a little over 4 hours, during which time we caught a total of 77 fish. We were in a bay filled with Northern Pike when the guide called “last cast”, and each of us hooked a pike that was 10+ pounds on those casts. Unbelievable. Some folks call camping in the BWCA “roughing it”. Those folks haven’t been there before. We eat steak, pork chops, grilled/fried fish, ceviche, wine, cheese, and anything else you want to take with you, space and weight permitting. All of the pictures included with this article are from the BWCA. The one with my son and the dog gazing out over the lake is from our usual campsite. The pictures will give you some idea of what it’s like up there. For me, it’s a stress-reliever like no other. Give it a try, and feel free to call me at our Moundsville office if you have any questions.

Corporations are a ubiquitous part of modern life. A corporation is a legal entity that exists separate and distinct from its owners. Advantages of a corporation include limited liability for its shareholders, a perpetual existence and ease of transferring ownership interests. Corporations come in two forms, C corporation and S corporation, and each has distinct advantages and disadvantages. The C corporation is the most common form of incorporation. It is a separate legal entity that is owned by shareholders. Most large, publicly traded companies are C corporations. S corporations combine most of the advantages of C corporations with a better tax structure for the owners. The income of an S corporation is not taxed at the corporate level. Instead, the reported income is passed through to the owners where it is taxed at personal tax rates. Corporations enjoy a type of personhood and have at least some of the legal rights and responsibilities enjoyed by natural persons – the ability to enter into contracts for instance. But corporations are very much a legal construct and to maintain the benefits of the corporate form, corporate formalities must be followed. Owners who fail to take the appropriate steps to maintain the corporation as a separate entity run the risk of having the “corporate veil pierced” and being held personally liable for any corporate transgressions. Under West Virginia law, see e.g., Laya v. Erin Homes, Inc., 177 W.Va. 343, 347, 352 S.E.2d 93, 98 (1986), Courts consider a number of factors where a litigant attempts to pierce the corporate veil. These factors include the identity of the directors and officers of two entities who are responsible for supervision and management (a partnership or sole proprietorship and a corporation owned and managed by the same parties); the absence of separately held corporate assets; the use of a corporation as a mere shell or conduit to operate a single venture or some particular aspect of the business of an individual or another corporation; use of the same office or business location by the corporation and its individual shareholder(s); employment of the same employees or attorney by the corporation and its shareholder(s); disregard of legal formalities and failure to maintain proper arm's length relationships among related entities; use of a corporate entity as a conduit to procure labor, services or merchandise for another person or entity; or the use of a corporation as a subterfuge for illegal transactions. While corporations are fairly straightforward to establish, their continued existence requires constant attention and nurturing to maintain the advantages and benefits of the form. For any West Virginia business owners thinking of incorporating, it is important to understand and remain mindful of the Laya factors to maximize the benefits the corporate form offers.

If you’re looking for a quick, delicious dessert to make during these summer months, but without baking, you’re going to love this! I found the recipe for this no-bake peanut butter pie via Pinterest and each time I’ve made it, it’s been a hit. You will need: 8 ounces cream cheese (softened) 1 cup creamy peanut butter 1 cup confectioners’ sugar 1/4 cup milk 1 teaspoon vanilla extract 2 – 8-ounce containers of frozen cool whip, thawed 9- inch store bought chocolate Oreo pie crust Chocolate syrup for garnish (optional) Peanut butter chips for garnish (optional) Follow these steps: Using an electric mixer beat cream cheese, peanut butter, sugar, milk and vanilla extract in a large bowl until creamy. Fold in 1 of the 8-ounce containers of cool whip. Reserve the other container of cool whip for serving. Spread mixture into prepared pie crust. Chill pie in the refrigerator for at least 4 hours or overnight. Before serving, top pie with remaining cool whip. Garnish with chocolate syrup and peanut butter chips if desired. It’s delish! See for yourself.

In an effort to combat identity theft, the Federal Government has begun issuing new Medicare cards to all Medicare recipients. In 2015, the Medicare Access and CHIP Reauthorization Act required that the Center for Medicare & Medicaid Services (“CMS”) remove Social Security Numbers from Medicare cards by April 2019. The new cards will automatically be mailed out. Once you receive your new card, you should destroy your old card and begin using the new card. The new cards remove your Social Security Number (“SSN”) from the cards and replace that with a new Medicare Beneficiary Identifier (MBI) Number. The new numbers, which are 11 characters in length, are made up from a unique random combination of both numbers and letters. The MBI uses the numbers 0 through 9 and all the letters in the alphabet except S, L, O, I, B and Z, which are never used. Be on the lookout for scams. Medicare will never call you uninvited and ask that you provide personal or private information to obtain a new Medicare Number or card.  According to the Medicare website, as of June 25, 2018 mailing out of the new MDI Cards has been completed in both Pennsylvania and West Virginia. Mailing to residents of Ohio is expected to begin soon. It is important to note that receiving a new MBI won’t change your Medicare benefits. You should begin using the new MDI as soon as you receive it when seeking medical care or treatment. The effective date on the new MBI is the same as the date on the old card, it is the date each beneficiary was or is eligible for Medicare. If you have other coverage such as a Medicare Advantage Plan, Prescription Drug Plan or Medicaid, you new MBI Card does not replace the card that you use from your plan. You should still use your existing plan card when you receive medical care or prescription. However, you’ll need your new MBI Card if you want to join, leave, or switch to a different plan. You may also be asked to show your new MBI Card if you require hospital services. Always remember, never give your new MBI to anyone other than your doctor, pharmacists, other health care providers, your insurer or people you trust to work with Medicare on your behalf.

Many landowners in Ohio have known about the Ohio Dormant Mineral Act. Originally enacted as part of the Ohio Marketable Title Act it was passed in 1989 and went fully into effect in 1992 after a three-year waiting period which was designed to allow landowners the opportunity to protect their rights. One of the purposes of the act was supposedly to make it easier to determine who was the owner of old severed oil and gas mineral interests. The act itself, however, never applied to coal ownership. The law provided, generally, that certain mineral interest could be deemed abandoned if they had not been used by the original owner, or their heirs and assigns, during a 20-year window. The law was amended in 2006 and at that time additional requirements were added which more clearly stated that a landowner wishing to claim abandonment needed to take certain actions and provide certain types of notice to the mineral owners who might be subject to losing their interests. The question remained, however, what happened with those mineral interests that could be deemed abandoned under the old version of the law. Neither version of law was passed with a vision to the billions of dollars that would be at stake with the advent of the Marcellus and Utica Shale plays. The sheer amount of money at issue made for large scale and numerous legal attacks and litigation related to the Ohio Dormant Mineral Act. Just over a year and a half ago the Ohio Supreme Court, in a surprising ruling, attempted to provide some simplification and guidance regarding the two laws. The Court ruled that the original 1989 Act was not self-executing. That meant that even if the requirements of claiming the abandonment of a mineral interest were met, the landowner still had to do something to claim those rights. They had to file some time-of-action in the court system to affirm their claims. The majority thinking before that decision was that the law did not require such action and the mineral interest reattached to the surface interest automatically. The court determined after the new law went into effect in 2006, that a landowner had to then comply with the provision of the 2006 act to claim abandonment and had to undertake the more stringent research and notice requirements. This has now led to a whole host of new litigation issues including potential claims that attorneys performing ODMA work might have committed malpractice. Much of the litigation and unrest now lies in the question of whether attorneys and landowners conducted sufficient due diligence and research to find the heirs of the old severed mineral interest. For many years it seemed that research in the county recorder, probate and/or tax offices would be sufficient to identify the heirs of long lost reservations. Now it seems that this research might not be enough. Are you required to research genealogical databases or simply conduct web searches for people and addresses? Many people who did hire attorneys and proceed under the requirements of the 2006 act are now being sued or contacted by people claiming that they should have received notice of the abandonment claims and should have had the opportunity to respond accordingly. What was supposed to have become a settled area of law which clearer ownership has continued to be a muddied mess. Unfortunately, even for people who signed leases and were paid based on the provision of the ODMA, you might still face uncertainty and litigations.

Marvin Summerford, age 88, presented to the emergency department of Abington Memorial Hospital ("AMH") with concerns for pneumonia. He was admitted to AMH, and the next day, he suffered cardiac arrest. Mr. Summerford survived and was transferred to the ICU. The next day, a feeding tube was inserted and an order was placed for an x-ray to confirm proper placement. The x-ray revealed that the tube had been inadvertently inserted into the lung and was therefore removed. The feeding tube was re-inserted, and another x-ray was ordered to confirm proper placement. Again, the feeding tube was not properly placed. After the third try to properly place the feeding tube, Dr. Kristin Crisci, a radiologist, incorrectly confirmed proper placement. Unfortunately, the tube was in Mr. Summerford’s lung when tube feedings began; consequently, his condition deteriorated, and there was a delay in diagnosing the improper placement of the feeding tube. By the time the error was recognized, Mr. Summerford had died. After a five-day jury trial, the jury returned a verdict on May 13, 2016 in favor of Mrs. Summerford’s daughter and against AMH and Dr. Crisci in the total sum of $5,000,000 ($1.5 million for the wrongful death claim and $3.5 million for the survival action claim). The jury apportioned liability as follows: AMH 25% and Dr. Crisci 75%. The verdict was molded to add Rule 238 delay damages for Mrs. Summerford and against the defendants, resulting in a molded verdict in the amount of $5,947,157.53. The defendants raised several issues for appeal, two of which requested judgment notwithstanding the verdict (JNOV) claiming that Summerford failed to present substantial competent evidence to support her negligence claims. Pennsylvania law provides that a motion for a non-suit may be granted only where it is clear that no other conclusion could be reached under the evidence presented. Bowser v. Lee Hosp., 399 Pa.Super. 332,337,582 A.2d 369,371 (1990). The Superior Court quickly disposed both issues by stating that there was sufficient evidence to support both the negligence claim against Crisci and the corporate negligence claim against AMH. Crisci argued that she is entitled to a new trial because AMH’s radiology expert testified that a first year resident could have identified the misplaced tube on x-ray. Here, the Superior Court referred to precedent, which holds that: very unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973) (citations omitted). Further, the Superior Court noted that the trial court properly disallowed AMH’s expert to offer an opinion regarding the standard of care because the opinion was not contained in the expert’s report. Finally, the court explained that the expert’s testimony when taken in context was referring to the quality of the x-ray, and not the interpretation of same. Thus, the court found no merit to Crisci’s claim. Next, Crisci argued that the trial court erred in allowing AMH’s radiology expert to testify that Crisci’s negligence “increased the risk of harm” to Summerford. The Superior Court held that the trial court’s discretion concerning the allowance of expert testimony was broad, and that it was appropriate for the court to limit AMH’s radiology expert to “increased risk of harm,” and prohibiting him from opining that Crisci’s negligence caused Summerford’s death. Finally, the defendants argued that the $5,000,000 jury award was excessive, punitive and clearly exceeded what the evidence warrants. In this case, the jury’s award was based solely upon a noneconomic award. Mr. Summerford was 88-years-old at the time of the time of his death; he had suffered from dementia, syncope, hypertension, pulmonary insufficiency, congestive heart failure, coronary artery disease, and other maladies; and, he suffered cardiac arrest prior to the negligent conduct, which defendants argued reduced significantly his chances of mortality. Specifically, the defense expert, John Kirby, M.D. testified that an 88-year-old person normally has a life expectancy of 4.55 years, but that Mr. Summerford had a zero percent life expectancy before the feeding tube in dispute was placed into Mr. Summerford at AMH. Regarding the wrongful death claim, the defendants argued that Mrs. Summerford produced very little evidence to demonstrate the value of loss of the decedent’s life to the family. Mr. Summerford lived in a nursing home in Pennsylvania while Mrs. Summerford lived in California or Georgia for most of her adult life. The defense argued that while Mrs. Summerford visited her father whenever she could get to Pennsylvania, the visits were infrequent. Furthermore, while Mrs. Summerford testified that she spoke with her father on the telephone several times each week; there were notes in Mr. Summerford’s nursing home records concerning the lack of family involvement and interest in his care. In response, Mrs. Summerford testified that she spoke with her father 2-3 times each week for 40 years. She also demonstrated her father's importance to her and her family by introducing family photographs of their time together at her graduation and at other times with her children and grandchildren. She also testified she and her sister would rendezvous with her father over the years; and, that one of her sons attended high school in Pennsylvania while living for an extended period of time with decedent, and another one of her sons lived with Mr. Summerford for four years while attending college. According to the law of Pennsylvania, the grant or refusal of a new trial due to the excessiveness of the verdict is within the discretion of the trial court. Appellate courts will not find a verdict excessive unless it is so grossly excessive as to shock one’s sense of justice. Each case is unique and dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa.Super. 2009) (citations omitted), reargument denied, June 1, 2009. Here, the Superior Court found that Mrs. Summerford’s evidence was sufficient to submit to the jury for consideration of damages under the Wrongful Death Act. 'The duty of assessing damages is within the province of the jury' and, thus, as a general matter, a compensatory damage award 'should not be interfered with by the court unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.' Gradel v. Inouye, 491 Pa. 534,421 A.2d 674, 680-81 (1980) (quoting Tonikv. Apex Garages, Inc., 442 Pa. 373,275 A.2d 296,299 (1971)). Further, the court found that the jury's award of $1.5 million is consistent with other Pennsylvania verdicts for wrongful death claims. See, Rettger, supra; Hyrcza v. W Penn Allegheny Health System, Inc., 978 A.2d 961 (Pa. Super. 2009). Therefore, the court determined that the trial court’s decision to deny defendants’ request for remittitur was proper. The measure of damages awarded in a survival action includes, inter alia, the decedent's conscious pain and suffering. Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). In awarding damages for pain and suffering, a jury may consider, inter alia, the severity of the injury, the duration and extent of the physical pain and mental anguish which the decedent experienced, as well as the health and physical condition of the plaintiff prior to the injuries. See, Pa.R.C.P. 223.3. The defendant has the burden of convincing the court that the award deviates substantially from what is considered reasonable compensation. Hyrcza, supra. The determination of the amount to be awarded for pain and suffering is primarily a jury question." Gunn v. Grossman, 748 A.2d 1235, 1241 (Pa. Super. 2000); see also, Whitaker v. Franliford Hosp. of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009). In this case, there was testimony that Mr. Summerford essentially drowned in the tube feedings and suffered significantly as a result. Therefore, the Superior Court agreed with the trial court that the verdict was not “so grossly excessive as to shock our sense of justice.”

It’s been awhile since I have written anything that could be fairly characterized as “political commentary”. Some folks who know me well tell me that I get too caught up in the political goings-on in our country. My wife went so far as to persuade me to swear off all political commentary on Facebook for a year. I confess to having fallen off the wagon once or twice since then, but I have largely kept my promise. This blog entry is my not-so-sneaky way of getting around the political commentary ban, this one time. Sorry, sweetheart. To say that I am very concerned with the decline of civility in our country, particularly where political discourse is concerned, is a gigantic understatement. There was a time when we recognized that people of good conscience could disagree on issues of importance. We respected differing opinions, and civil discussion and debate often resulted in compromise that was good for everyone. Sadly, those days are long gone, replaced with ugly rhetoric, name-calling, and a stubborn refusal to give up an inch to the “other side”. The result: lots of anger, more name-calling, and stalemate. Recent events that played out on the national stage are a perfect illustration. White House Press Secretary Sarah Sanders, along with several members of her family, was asked to leave a Virginia restaurant without being served. The restaurant owner made no bones about the fact that her decision was based upon Ms. Sanders’ position in the current administration. Shortly after that incident, Congresswoman Maxine Waters gave a speech in which she encouraged people to publicly accost members of the Trump cabinet or staff. “Tell them they’re not welcome anymore, anywhere.” Waters later refused to back off of her comments, noting that people should “absolutely harass” Trump staffers. Now, before you all jump to the conclusion that I am a Trump supporter, let me set you straight. I’m not. Not even close. I hate the fact that the leader of our great nation thinks it acceptable to belittle those who disagree with him, resorting to grade-school name calling like “slippery” this, “lyin’” that, or “crooked” the other thing. It’s embarrassing to see the President of the United States act like a grade school bully. Even worse is the fact that when our President acts that way, much of the nation follows. He sets the bar, and right now, I think the bar is very dangerously low. I mean low to the point that I fear serious incidents of widespread violence based solely upon political differences are not far off. People who support the comments by Congresswoman Waters argue that President Trump frequently called for violence against opponents in his campaign rallies. That is a truth that cannot be ignored, but it doesn’t mean that the rest of the nation has to sink to that level. For those who oppose the president, isn’t the fact that he supports such actions reason enough to completely reject them? For those who support him, are you not the same folks who called President Obama “the most divisive president in the history of our country”? Does anyone honestly believe that public harassment and name-calling will lead to an end of the ever-widening division between those of differing political ideologies? One of the best political quotes of recent years came from First Lady Michelle Obama, when, speaking of the need to remain civil in our political disagreements, she said, “When they go low, we go high”. We should all take that comment to heart, because the course we are presently following can only lead to a very ugly and destructive end. Let’s all resolve to “go high”. Civility must live on. Without it, the very future of our great nation as we have known it for 200+ years is at risk.

The Fourth of July, America’s birthday, isn’t our only Independence Day. June 19, known as “Juneteenth,” celebrates the end of slavery. There is a common misconception that Abraham Lincoln freed the slaves with a stroke of his pen on January 1, 1863, during the Civil War. The Emancipation Proclamation, signed by President Abraham Lincoln, did no such thing in reality. The Civil War raged on for over two more years, until the surrender of Confederate Robert E. Lee to General Ulysses S. Grant in April of 1865. In fact, many enslaved people, particularly in the western-most confederate state of Texas, did not even know of the existence of the Emancipation Proclamation until the war ended. Even if they had known, there was no one to protect them from being hunted down or even murdered if they simply tried to escape. The Union simply did not have in place, until the end of the war, sufficient forces to enforce the terms of Lincoln’s Emancipation Proclamation. On June 19, 1865, Union soldiers came to Galveston, Texas, and General Gordon Granger read aloud a general order freeing the quarter-million enslaved persons residing in the state. The forces were finally strong enough to influence and overcome any resistance. Many of those enslaved in Texas had never ever heard of the Emancipation Proclamation in any event.  June 19, 1865, was the first news most learned of their freedom. The President’s executive order, known as "General Order Number 3", began as follows: “The people of Texas are informed that in accordance with Proclamation from the Executive of the United States, all slaves are free.  This involves an absolute equality of rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and free laborer.” The reaction to this profound news ranged from pure shock and disorientation to immediate jubilation. There were 250,000 former enslaved persons in Texas on June 19, 1865, and June 19 th was coined “Juneteenth,” celebrated in African-American communities during the late 19 th century. In more recent times, there has been a movement to revive this celebration; it is a legal state holiday in Texas. Today, 39 states and the District of Columbia recognize Juneteenth, although all do not grant it full legal holiday status. A Congressional resolution also underscores the historical significance of “Juneteenth Independence Day.” In recognizing the history of American freedom, Juneteenth is as deserving of recognition as Independence Day. It represents a time of celebration and reflection. As Robert Meyers, chairman of the National Juneteenth Observance Foundation put it: “We have gotten there in different ways and at different times, but you can’t really celebrate freedom in America by just going with the Fourth of July.”