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

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.”

The summer is a great time to be outdoors doing fun activities and enjoying the nice weather. But there are some things to keep in mind to ensure that you and your family are having a healthy and safe summer while still having fun. Wear sunscreen. By now, everyone is well aware of the many dangers that the sun can pose to our skin and the importance of wearing sunscreen. However, many people still think that the standard SPF 15 or 30 will be sufficient to protect them from harmful UV rays. While the CDC recommends use of an SPF 15 at minimum, many dermatologists recommend SPFs of much higher, particularly on one’s face. Additionally, even with application of sunscreen, other protective methods such as hats, clothing, and umbrellas should also be used, and sunscreen should be reapplied frequently, especially after swimming, sweating, or toweling oneself off. Be smart about watersports. Boating, waterskiing, tubing, kayaking, or canoeing are a great way to relax and enjoy nice weather outdoors, but these activities should be undertaken in a safe and conscientious manner. Lifejackets are a must and should be worn whenever possible. Each state has its own laws and regulations about life jacket availability and use, especially for children, and you should always check those out before heading out on the water to be sure you will be in compliance. Additionally, even though it can be fun to have a nice cold beer while out on the water, it is important to remain alert and aware while participating in water sports. Make sure to have a designated driver of any boat and stay on drive land if you feel the effects of alcohol, which can alter your judgment, reaction time, and muscle movement, all of which are important to remain on the water. Similarly, taking photos is a fun way to document your good times, but be conscious not to become so distracted with taking videos or selfies that you put yourself at risk of losing control of a kayak, boat, or yourself. Enjoy fireworks safely and legally. Fireworks are one of the things that makes summer special, but every year they contribute to injuries, deaths, or close calls. States have specific laws for purchase, possession, and use of consumer fireworks, and there may be various levels of regulations depending on the area where you may want to set off fireworks. Laws may also be seasonal or by date. You should take a look into any regulations that apply to your area before purchasing or attempting to set off fireworks on your own. A better option may be to check where fireworks will be set off in your area by professionals, as shows are usually free, pretty spectacular, and can be enjoyed from a safe distance!

I recently published two blog entries which reviewed the various factors that go into determining the settlement value of a client’s claim. Each of those previously-discussed factors play an important part in determining what an insurance company will be willing to pay in order to settle your case. There is, however, one final consideration that we need to discuss. This factor is often overlooked by injured parties, but I assure you that it is a critical consideration for insurance carriers. The “final factor” in determining the value of your case is the firm that is representing you. When I say this, I’m not simply talking about the firm’s reputation for competence. In order to get the maximum value for your claim, an insurance carrier has to be convinced that if they do not offer you full and fair compensation for your injuries and damages, the law firm representing you will not hesitate to take your case to trial. Believe me, if you don’t think this is an important consideration to the insurance company defending against your case, you don’t truly understand how those companies operate. For the first ten years of my career, I worked as an insurance defense attorney. If a person caused an automobile accident and later got sued, I was the person the insurance company hired to defend the case. My firm worked for Nationwide, Allstate, Liberty Mutual, and dozens of other insurance companies too numerous to recall or list here. Each and every one of the companies we worked for was driven by one prime directive: they wanted to hang onto as much of their money as possible, and they want to hang onto it for as long as possible. So, how does the law firm you choose factor into the settlement value equation? It’s simple, really. The insurance company needs to know for an absolute fact that if they don’t pay the amount you and your attorney are demanding in settlement negotiations, they are going to end up in trial. Insurance companies don’t like going to trial. Why? Because going to trial costs them money. Lots and lots of money. Insurance defense lawyers charge as much as $400 per hour or more to prepare and try cases. When you factor preparation time on top of actual time in the courtroom, defense trial costs can add up to a very big number. Insurance companies don’t like big numbers. They want to hang onto that money. Back in my days as an insurance defense attorney, adjusters frequently asked me about the reputation of the lawyer representing the injured party. “Is this a guy who will take us to trial?” If my response was in the affirmative, the company was almost always willing to pay more. The carriers knew, and they still know, which lawyers will fold, and which ones will take them to trial. I can truthfully tell you that anytime I was handling a case where Jim Bordas was on the other side, the settlement value went up, simply because the carrier knew Jim was not afraid to try cases. He has instilled the importance of that reputation into every attorney here at Bordas & Bordas. Each year, the attorneys in our firm take multiple cases to trial in West Virginia, Ohio and Pennsylvania. Already this year our firm has taken several cases to trial, obtaining, for instance, a multi-million-dollar verdict in a Pennsylvania medical malpractice case. Those are the types of verdicts that cause insurance companies to sit up and take notice, and those success stories translate into higher settlement values for our cases. There’s a story I enjoy telling about a case Jim Bordas tried thirty years ago. I was a partner at the insurance defense firm mentioned earlier, and I was sitting in court with a less-experienced attorney from our firm who was in trial for the first time. Jim had made a settlement demand prior to trial, and the insurance company had rejected it. Without going into a lot of detail, let’s just say that things didn’t go well for us at the outset of the trial. I asked the judge for a break and approached Jim about settlement again. I asked him if the demand he had made before trial was still on the table. He told me it was not, and that the plaintiffs’ demand had increased. I talked to the insurance company, and we paid the increased demand. Raising the price was Jim’s way of telling the insurance company that if you forced him to trial, you would pay a price for doing so. That is the attitude Jim demands of every attorney at Bordas & Bordas. It truly makes a difference.

One of the most common reasons an individual may hire an attorney is after they are involved in a car accident. When that person meets with an attorney one of the first questions that they may ask surrounds what the insurance claim process is like, how long will it take for their automobile claim to be resolved, how will they pay for their medical treatment, etc. Although these questions from injured individuals come up time and time again, the main confusion people experience in regard to the letters and calls they get from insurance companies after any type of accident is – why are they asking me that specific information? What are they evaluating? What do they take into consideration in determining if they are going to pay anything on my claim? Although each accident and insurance claim is unique and fact specific to that accident and the type of insurance coverage that applies, there are some general considerations that insurance companies may take into consideration when evaluating your claim. Among these are some of the following: 1.      The circumstances surrounding the accident: Who was at fault? Was anyone cited for their actions? Were there environmental factors leading to the accident? How many people were involved? What was the impact of the collision like? 2.       Your injuries: Were you taken to the hospital via ambulance? When did you begin to treat for your injuries? How serious are your injuries? Are your injuries of a permanent nature? What course of treatment must you take part in? How much in medical bills have you accumulated because of your treatment? 3.       The effect of the accident on your daily life: Did you miss any work? If you did not miss any work, were any of your work activities limited? Have you been able to return to work? Have you been required to take a different type of job? 4.       The effect of the accident on your relationship with your family: Were you unable to complete any household responsibilities because of your injuries? Did your spouse have to take on more responsibilities while you recovered from the accident? Were you able to continue to fully care for your children or were alternate arrangements required to be made? As you can tell, there are a number of factors that go into an insurance company’s evaluation of what your claim is worth after an automobile accident, these are just a few examples of the type of evaluation that an insurance company may make when handling an automobile accident claim.

Nothing like starting off your workday with one of these! Really gets your heart pumping! I caught a glimpse of a shadow in the early morning light. When I investigated the direction of the shadow, I saw it, lying peacefully on the floor of the bedroom. After the initial shock and panic, I grabbed a towel and threw it over the intruder. In my panic, I grabbed a boot from the closet and started pounding on the towel. To my horror, the bat crawled out from under the towel and slid under the bed. With superhuman strength, I dragged the bed out from the wall and there it came, soaring like an eagle. Wings outstretched, not making a sound. It was really impressive. After some early morning screaming, it landed, and I grabbed another towel and covered it. This time, I tucked in the towel as to prevent another escape. I knew all I had to do was gather up the towel and take it outside, but I just couldn’t. So yet again, I called my wonderful neighbors – at 6:30 in the morning. Without delay, Scott, my hero, came to my aid. He gathered the creature in the towel and took it outside, across the street, and freed it. Again, up it soared. Reluctantly happy to say – it wasn’t injured. Ok, so last month I had a wood spider the size of my hand – which Scott again captured. This month – a bat. What will it be next month?? I shudder to think. Here’s some interesting information I found on the Internet. Bats may be legally protected in certain states, so it is important to understand that anything beyond releasing the bats can be a violation of state law. (Again, glad I didn’t injure the bat). Local jurisdictions may also have rules about wildlife and they may specifically address bats. If a bat comes into the house, it is usually accidental. Perhaps the bat has come from the attic and wandered into the living space by squeezing under a door to the attic. In warmer weather, bats may be attracted to homes after dark as the light attracts the bats, knowing that their food source – insects –  will be attracted to light as well. Bats can be encouraged to leave a structure by turning off lights, turning on outside lights and providing a way for the bat to escape, such as by opening a door or window. This is very effective. If a few strays are found in an area, the professional can pick them up with heavy gloves and relocate them. Bats should not be killed by the homeowner or the professional. There are no products available for bat control. Most bats in buildings in West Virginia are either big brown bats (Eptesicus fuscus) or little brown bats (Myotis lucifugus). Although less common, northern long-eared bats (M. septentrionalis) and Indiana bats (M. sodalis) have also been documented in West Virginia. What Not to Do – No lethal means can be used for bat control. If big-eared bats are encountered, consult with the WVDNR, Wildlife Diversity Unit. Big-eared bats are easily identified by the large ears (greater than one inch) and lumps on their noses. No glue boards or fly paper may be used in areas where bats are likely to encounter these items. Do not exclude bats when flightless young are present even if it is within the official safe dates.

On June 14, 2018, in Minnesota Voters Alliance v. Mansky, the United States Supreme Court struck down Minnesota’s ban on political apparel in polling places. A 7-2 majority, led by chief Justice John Roberts, held that Minnesota’s law prohibiting voters from wearing a political badge, political button, or anything bearing a political insignia inside a polling place on election day, violated the First Amendment. Chief Justice Roberts’ majority opinion was joined by Justices Kennedy, Thomas, Ginsberg, Alito, Kagan, and Gorsuch. Justices Sotomayor and Breyer dissented. The Supreme Court held that although a state may prohibit certain apparel because of the message it conveys so that voters can focus upon their voting decisions, any state with such restrictions must draw a “reasonable” line. In addition, the Court noted that the state “must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. Here, the unmoored use of the term ‘political’ in the Minnesota law, combined with haphazard interpretations” provided by the state in official guidance statements and in representations to the Court, caused the Minnesota restriction to fail. The Minnesota law aligned two important interests against each other: the right to vote in a safe environment and the right to say (and to wear) what you want. Although the Court struck down this particular state law, it recognized prior Supreme Court cases that permit the government to limit speech in and around polling places in order to prevent voters from being intimidated, confused, or defrauded. In so doing, the Court implied that Minnesota’s problem was that it drafted a law that was overly broad, not that it was trying to protect voters at polling places by limiting speech. This is how the dispute arose. In 2010, Andrew Cilek went to his local polling place to vote wearing a T-shirt bearing the Tea Party logo and message, “Don’t Tread on Me,” as well as a button with the message, “Please I.D. Me.” When an election worker told him that he would have to take off or cover up the t-shirt and button, Cilek refused. Eventually, he was allowed to vote, and an election worker recorded his name and address. Cilek and the Minnesota Voters Alliance went to court to challenge the law as a violation of the First Amendment’s guarantee of free speech. The U.S. Court of Appeals for the 8 th Circuit upheld the law, but the Supreme Court reversed that holding. The Supreme Court recognized that polling places, at least on election day, are government-controlled property set aside for the sole purpose of voting. Restrictions on speech there, according to the Supreme Court, are subject to a relatively low bar: the restrictions merely have to be reasonable. Even considering this low bar, however, the Court found that Minnesota’s restrictions banning “political” apparel were too vague, lacking guidance as to the meaning of “political.” Minnesota failed to provide the kind of “objective, workable standards” needed to pass muster under the First Amendment in order to restrict speech. At least 10 states impose political apparel bans, and all fifty states restrict political speech to some extent at polling places. Although a political t-shirt is unlikely to destroy democracy, in today’s political climate, it may keep the peace. Perhaps recognizing this, the Supreme Court’s decision acknowledged that a polling place, as Minnesota argued, should be “an island of calm in which voters can peacefully contemplate their choices.”

Trial is under way for a 46-year-old Californian father of two, Dewayne Johnson, who is dying of cancer and suing U.S. agrochemical giant Monsanto, in the first lawsuit of its kind claiming Monsanto’s popular herbicide 'Roundup' causes cancer. Mr. Johnson alleges he developed non-Hodgkins lymphoma, a type of blood cancer, from his contact with and exposure to Roundup, which he used for two years from 2012 as a groundskeeper for the Benicia school district near San Francisco. Mr. Johnson alleges that Monsanto hid the product’s dangers from him and the public-at-large. His case could have sweeping ramifications for Monsanto and the hundreds of other people throughout the country making similar claims. If Mr. Johnson is successful in his suit, Monsanto could face massive losses should it have to pay out damages over its Roundup products, whose main ingredient is glyphosate, a substance which some say is dangerously carcinogenic. Thousands of lawsuits targeting Monsanto are currently proceeding through the US court system. Mr. Johnson’s case was expedited because he currently has only a few months to live. The carcinogenic nature of Roundup has been the source of seemingly endless debate among government regulators, health experts and lawyers. The International Agency for Research on Cancer—a World Health Organization body—has classified glyphosate, widely used throughout the world, as "probably carcinogenic." The European food safety and chemicals agencies have so far not followed suit. A US Department of Health study has suggested its toxicity is limited. Monsanto, of course, remains steadfast in its denial of any link between disease and glyphosate, claiming that "ore than 800 scientific studies, the US EPA (Environmental Protection Agency), the National Institutes of Health and regulators around the world have concluded that glyphosate is safe for use and does not cause cancer.” However, Monsanto was also caught ghostwriting scientific studies to show that Roundup does not cause cancer. So now the issue heads to the American public. Mr. Johnson’s case is one to keep an eye on and could have significant ramifications on the Monsanto and the pesticide industry as a whole. If you or a loved one have developed cancer you believe may be caused by exposure to Roundup, you should contact an experienced attorney right away to discuss your options.

In Berg v. Nationwide Mutual Insurance Company (NMIC), a Pennsylvania Superior Court panel that agreed to reconsider its decision to vacate a high-profile $21 million verdict has largely reinstated the result in a new, only slightly revised, opinion. On September 4, 1996, Plaintiff, Sheryl Berg was driving her “leased” 1996 Jeep Grand Cherokee when she was hit by another vehicle. NMIC’s first damage estimate concluded that Berg’s vehicle should be “totaled” at a value of $25,000. NMIC sought a second estimate, which concluded that the vehicle could be repaired with a cost saving of half the expense. The repair process took four months to complete. Berg drove the vehicle under protest for almost two years claiming that it was not crashworthy. When Berg satisfied her lease payments, NMIC determined that the vehicle was “totaled” and paid the bank $18,000.00 to settle the claim and obtain ownership of the vehicle. Berg sued NMIC and the dealership (Lindgren) for violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), and insurance bad faith. The jury awarded Berg $1,925.00 in compensatory damages from Lindgren and $295.00 from appellant for the UTPCPL violation. The second phase, a bench trial on UTPCPL treble damages and bad faith, resulted no treble damage award, and a directed verdict in favor of NMIC on the bad faith claim. Berg appealed, the Superior Court then dismissed the appeal on a procedural issue, but the Supreme Court reversed the Superior Court’s decision and remanded the case back to the Superior Court for disposition. After remand, the Superior Court concluded that the trial court erred in directing a verdict on plaintiffs’ bad faith claim. Berg v. Nationwide Mut. Ins. Co., Inc., 44 A.3d 1164 (Pa. Super. 2012) (“Berg II”) and remanded the case for a new trial on the bad faith claim. During the second trial, Berg argued, and the trial court found, that NMIC acted in bad faith by repairing the Jeep rather than declaring the Jeep a total loss and compensating Berg for its value at the time of the loss. While the parties agreed that Lindgren did poor repair work, they disputed NMIC’s role in and knowledge of the faulty repair job. In summary, the parties disputed (1) whether NMIC overrode Lindgren’s initial total loss appraisal in order to save money; (2) whether NMIC forced Lindgren to repair the Jeep knowing the Jeep could not be restored to its pre-accident condition; (3) whether NMIC allowed Lindgren to return the Jeep to Berg knowing the Jeep was not crashworthy and therefore not safe to drive; and (4) whether NMIC’s subsequent conduct—including its conduct of this litigation—was an elaborate cover-up of its prior bad faith conduct. Ultimately, the court ordered NMIC to pay $18 million in punitive damages and $3 million in attorney’s fees. Relative to the first issue, the Superior court concluded that the evidence did not support the trial court’s finding that NMIC vetoed the total loss appraisal. Industry standards provided for second opinions following total loss estimates. Addressing the second issue, the Superior Court determined that the record, viewed in a light most favorable to Berg did not support a finding by clear and convincing evidence, that the Jeep was beyond repair. In fact, the majority of the evidence showed that the Jeep was repairable. With respect to the third issue, while the Superior Court determined that the record supported the trial court’s finding that the vehicle was not crashworthy, it did not support the finding that NMIC knew this fact and acted with reckless disregard of its obligations to its insured in permitting Lindgren to return the Jeep to Plaintiffs. More specifically, the Court found that the record contained no evidence that the extent of the faulty repairs would have been evident during a visual inspection when the repairs were nearly complete, much less that NMIC knew or should have known about the faulty repairs. Finally, the Court concluded that the record did not support a finding that NMIC failed to attempt to resolve the dispute in the early stages of litigation, or that it refused to have the Jeep repaired or purchased. The facts were that NMIC offered to repair the Jeep to make it crashworthy, or they would purchase it. In addition to reversing the trial court, the Superior Court took exception to the trial court’s dissertation, which provides: hat laintiff, and more importantly, what lawyer in his right mind will compete with a conglomerate insurance company if the insurance company can drag the case out 18 years and is willing to spend $3 million in defense expenses to keep the policyholder from getting just compensation under the contract. Its message is 1) that it is a defense minded carrier, 2) do not mess with us if you know what is good for you, 3) you cannot run with the big dogs, 4) there is no level playing field to be had in your case, 5) you cannot afford it and what client will pay thousands of dollars to fight the battle, 6) so we can get away with anything we want to, and 7) you cannot stop us. The Superior Court reaffirmed that the question before the trial court was whether Berg proved, by clear and convincing evidence that NMIC acted in bad faith in this case. Cost containment measures employed by the insurance industry in general have no bearing on whether NMIC committed bad faith in this case. The dissent highlighted that the Superior Court is required to affirm the trial court as the finder of fact if there is sufficient evidence in the record to support its findings. The dissent determined that the trial court provided citation to ample evidence from the record to support its verdict and damage award in favor of the Bergs. Thus, the dissent declined to vacate the verdict because it believed the majority usurped the fact-finding power of the trial court by its own interpretation of the factual and testimonial evidence.

As most of you know, we are facing an ongoing drug epidemic in the United States today. Although prevalent in our communities, there are those trying to do their part to combat this epidemic. On a national level, the DEA has attempted to take control of this epidemic by various measures, one being the implementation of “National Prescription Drug Take Back Day.” What is "National Prescription Drug Take Back Day" you may ask? According to the DEA, it is a day where Americans all across the country can drop off any unused, unwanted or expired prescription medications at which time local, state and federal partners of the DEA collect these prescriptions and destroy them. The purpose of Take Back Day is to prevent individuals from either stealing these unused prescriptions from family or friends and/or from abusing these medications personally. According to the DEA’s website, this year’s Take Back Day brought in record numbers of prescription pills being dropped off and led to the destruction of close to one million pounds of drugs. Because of this success, the DEA plans to continue with Take Back Day and has set an October 27, 2018 date for the next planned event. If you are interested in finding your local authorized collector to drop off any unused or expired prescription medications, the DEA’s website will allow you to search within your area to find a location. On a more local level, this past March, the Wheeling community participated in Drug Take Back Day which was sponsored by Cardinal Health, the Ohio County Sheriff’s Department and Elm Grove Pharmacy and was garnered as a success by those who organized the event. It will be interesting to see if Drug Take Back Day becomes more prevalent as the battle against the prescription drug epidemic wages on.

As I get older I have been trying to be more cautious about my health, including diet, skin care and removing toxins. This means performing what seems to be never-ending research on products my family and I use every day. A few weeks ago, I was looking for a night light and came across “pink Himalayan Sea Salt” lamps at a local shop. As I was buying groceries, I come across pink Himalayan Sea Salt in the organic spice section. So, of course, I begin to wonder what the big hype is about this salt. What makes it so special? Here is what I found out: Regular table salt (the kind most of us consume) is stripped of very important minerals during the refining process. Basically, salt is not really unhealthy until it becomes processed and refined. However, Himalayan sea salt is mined from ancient sea beds which is untainted by toxins and provides a rich source of 60+ trace minerals. Detoxifies the body by balancing systemic pH Improves hydration by providing trace minerals Improves mineral status of the body Reduces muscle cramps by improving minerals and hydration Helps balance blood sugar Supports hormone balance for everyone, no matter what hormonal issues you face Helps balance blood pressure because it provides unrefined, mineral-rich salt in an ionic solution Improves sleep by supporting blood sugar and hormone balance Acts as a powerful antihistamine Supports weight loss by balancing hormones and improving energy Supports thyroid and adrenal function. I have read many variations of using Himalayan Sea Salt from consumption to pouring some into your bath water for a detox bath. Of course, the simplest way to enjoy the health benefits of Himalayan salt? Just swap Himalayan salt for the refined stuff in your salt shaker!