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Exploding Takata Airbags

Shared by Hillary Rinehardt | Rinehardt Law Firm

Defective Takata airbags have caused 15 deaths and more than 180 injuries resulting in the largest safety recalls in U.S. history. The recall affects 45 million cars across 19 manufacturers.  Although there was initially an attempt to cover-up the problem, the primary objective right now is to get these defective airbags off of the road.

NHTSA Expands Do Not Drive Warning

The National Highway Traffic Safety Administration (NHTSA) recently announced that they are expanding their “do not drive warning” to include additional models of Ford and Mazda with defective Takata airbags.  The MY 2006 Ford Ranger and Mazda B-Series trucks have been added to the “do not drive warning” list. If you have one of these trucks, DO NOT DRIVE IT!  Testing showed these trucks pose a grave safety risk.

What Should I Do if I have a Car or Truck on the “Do Not Drive” List?

Contact the manufacturer to schedule a free repair.  Ford and Mazda have replacement airbags available now and will tow vehicles to a local dealership. They will also provide free loaner cars, all free of charge.  In the Takata air bag recalls, there are priority groups.  Parts are only available for certain vehicles starting at certain dates.

Check for Recalls Twice a Year

The NHTSA recommends checking your car’s Vehicle Identification Number (VIN) at least twice per year. Your VIN is on the lower left corner of your windshield and also on your car’s registration card.   You can also sign up at to be notified by e-mail if your vehicle is affected by a future recall.

Merit Decision: Cumulative Exposure To Various Products Containing Asbestos Does Not Establish Substantial Factor Causation. 

Shared by Marianna Brown Bettman

“It is impossible to reconcile a statutory scheme that requires an individualized finding of substantial causation for each defendant with a theory that says every defendant that contributed to the overall exposure is a substantial cause.”

Justice DeWine, Majority Opinion

On February 8, 2018, the Supreme Court of Ohio handed down a merit decision in Schwartz v. Honeywell Internatl., Inc., Slip Opinion No. 2018-Ohio-474 (According to the Reporter’s Note, the case was actually decided on January 24, 2018, while Justice O’Neill was still on the Court, but released on February 8, 2018, after O’Neill had left the Court.) In a 6-1 opinion written by Justice DeWine, in which Justice Fischer concurred in judgment only with an opinion, and Justice O’Neill dissented, the Court found that the evidence presented to the jury in this mesothelioma death case was not sufficient to show that exposure from Honeywell’s product was a substantial factor in causing Kathleen Schwartz’s mesothelioma. The case was argued October 17, 2017.

Case Background

Kathleen Schwartz died from mesothelioma, a disease that is almost always caused by breathing asbestos fibers. Kathleen’s exposure was mostly from the asbestos fibers from her father’s work clothes, which she helped wash.  Her father was an electrician.  He testified that he was exposed to asbestos dust every day at work, and that after work he would pick Kathleen up from school and play with his children without changing his clothes.

In addition to his job as an electrician, Kathleen’s father changed the brakes on the family cars, using Bendix products.  He did this in the family garage, five to ten times during the 18 years Kathleen lived there.  Kathleen and her siblings went through the garage to the backyard where they would play.  And her father would play with them after changing the brakes without changing his clothes. While Kathleen helped wash her father’s work clothes, there was no specific evidence that she helped wash these clothes.

After Kathleen’s death her husband Mark Schwartz (“Schwartz”) filed suit against a number of defendants. Eventually, the case went to trial only against Honeywell International, successor-in-interest to Bendix. During the trial, Honeywell twice moved for a directed verdict on the ground that Schwartz failed to establish that Kathleen’s exposure to asbestos from Bendix brakes met the substantial factor test of causation codified at R.C. 2307.96. The court denied Honeywell’s motions. The jury found Honeywell five percent responsible for Kathleen’s injuries. The court entered final judgment consistent with the jury’s verdict for Schwartz in the amount of $1,011,639.92.

On appeal, the Eighth District found the expert testimony that  Kathleen’s cumulative exposure was the cause of her mesothelioma was based on reliable scientific evidence, and that reasonable minds could have found in Schwartz’s favor on the causation issues. The appeals court affirmed the denial of Honeywell’s motions for a directed verdict.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 2307.96 (Asbestos Claim—Multiple Defendants—Substantial Factor Test; adopting Lohrmann test) (If a plaintiff in a tort action alleges any injury or loss resulting from exposure to asbestos as a result of the tortious acts of one or more defendants, in order to maintain a cause of action against any of the defendants the plaintiff must prove that the conduct of that particular defendant was a substantial factor in causing the injury or loss. This may be shown by the manner, proximity, and frequency of exposure along with any additional mitigating or agitating factors.)

Restatement of the Law 2d Torts, Section 433 (1965) (When determining whether an actor’s conduct is a substantial factor resulting in the alleged harm, courts should consider three factors. These factors include the number of other factors for the harm and the extent or effect they have in producing it; whether an actor’s conduct creates an actively harmful operation or whether such an activity is harmless unless acted upon by other factors not under the control of the actor; and lapse of time.)

Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (The use of frequency, regularity, and proximity as factors in determining whether exposure to particular products constituted a substantial factor was reasonable. To support such reasonable inferences there must be evidence of exposure to a specific product on a regular basis, over some extended period of time, in proximity to where the plaintiff worked [or lived].)

Krik v. Exxon Mobil Corp., 870 F.3d 669, 677 (7th Cir.2017) (Under the cumulative exposure theory and the “each and every exposure” theory, it is impossible to determine which exposure to carcinogens, if any, caused an illness; both theories rely on all exposures to constitute a cumulative dose rather than any particular dose or exposure to asbestos.)

In re New York City Asbestos Litigation, 148 A.D.3d 233 (2017) (Cumulative exposure theory is irreconcilable with the requirements to present some quantitative information to assess the amount, frequency, and duration of exposure to determine whether exposure was sufficient to constitute a contributing factor of the disease.)

Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir.2009) (It is impermissible to consider each and every exposure to asbestos to be a substantial factor causing the disease. To take this approach would render the substantial factor test meaningless.)

Merit Decision

Executive Summary

The Court adopts Honeywell’s proposed proposition of law:

A theory of causation based only upon cumulative exposure to various asbestos-containing products is insufficient to demonstrate that a particular defendant’s product was a ‘substantial factor’ under R.C. 2307.96.

Click here to continue reading blog post.

Ohio’s New Workers’ Care Guidelines Add Hurdles to Treatment

Shared by Plevin & Gallucci Company, L.P.A.

When you become injured on the job in Ohio, you expect to be able to receive any type of treatment you need. Say you were working on a construction site and hurt your back after a bad fall. You’re in excruciating pain and unable to work. Your doctor may say you need painkillers, or perhaps a life-altering back surgery.

Unfortunately, new workers’ care guidelines in Ohio are now saying an injured worker cannot receive some treatments like painkillers or spinal fusion surgery before trying other methods first.

These guidelines are meant to attack the problem of opioids in Ohio, but may create a few of their own problems along the way. Let’s take a look.

Ohio Back Surgery & Opioid Guidelines Explained

The new policy from the Ohio Bureau of Workers’ Compensation (BWC) went into effect Jan. 1, 2018. It requires an injured worker to complete 60 days of alternative treatment before opting for spinal fusion surgery. There are a few exceptions to this rule, like the most severe cases, but opioid use will be frowned upon during the alternative treatment period, as well.

Types of alternative treatment include:

  • Physical therapy;
  • Chiropractic care;
  • Anti-inflammatories;
  • Ice;
  • Rest; and
  • Other non-surgical methods, such as spinal manipulation therapy, acupuncture, and cognitive behavior theory.

Those exempt from the new rule include people facing serious injury, such as:

  • Spinal fractures;
  • Tumors;
  • Infections; and
  • Functional neurological deficits.

The Associated Press notes that this is a more aggressive approach than other states are taking due to the opioid clause. One spinal surgeon, however, said the new Ohio rule is too broad and will result in more hurdles than necessary to treat back injuries. For one, more time will be spent with workers taking two months to explore other treatment options rather than getting pain relief right away with a lumbar fusion. In addition, workers will spend more money on the required alternative treatments before they even get to the operating table.

Delaying treatment, of course, could also make an injury worse and lead to potential legal claims.

However, the BWC has been vocal in wanting to spend less on opioid treatment. Some spinal fusion surgeries are ineffective and the worker becomes more dependent on painkillers after surgery than before. Many people also never return to work.

Terrence Welsh, BWC chief medical officer, told the AP:

“We now have better knowledge of who responds better to surgery, and we also know that some patients actually require more opioid medication after surgery than they did before surgery.”

How effective are spinal fusion surgeries?

By now, you may be wondering what exactly goes into a spinal fusion surgery and why they are such a big deal in workers’ compensation claims. In a spinal fusion, two or more vertebrae are joined together to stop slipping of affected vertebrae, usually due to herniated discs, spinal stenosis, scoliosis, or spondylolisthesis. This is accomplished using a bone graft, screws, plates, cages, or rods, making the vertebrae stable but immobile.

When undergoing a bone graft, the patient will need two surgeries: one at the site of where the bone is being grafted, such as from the hip or pelvis, and the other at the site of the affected vertebrae. Risks in a spinal surgery include infection, damage to the spinal nerve, or wearing away later of the surrounding vertebrae, which may result in more problems.

People with chronic back pain before surgery are likely to still have some after a spinal fusion. It’s also difficult for a surgeon to predict before surgery how much a patient will improve, so you’re rolling the dice when you decide to go under. One of the biggest issues, however, may be the stress put on the spinal column above and below the fusion.

The outcomes of spinal surgeries are not often comprehensively reported outside of clinical trials. Of those outcomes, the benefits of surgery are small — not all patients benefit, so they must be carefully selected. In one study, fusion was found to be no more effective than cognitive therapy and exercises, but other studies found spinal fusion did make a difference. Yet even in one of those pro-lumbar studies, only 29% of patients found themselves to feel “much better” after surgery and no patient was reported to be free of pain completely.

Alternatives to Pre- and Post-Operative Pain

Researchers in Ohio are working on alternatives to opioids after surgery, which could fix some of the issues seen with lumbar fusions. Additionally, Medicaid is opening up coverage in several states for alternative treatments for pain, including acupuncture, massage, and yoga.

Non-Opioid Polymer Mesh

In late 2017, the University of Akron shared in $10 million in grant money to explore new methods of pain relief. One polymer scientist at the university is testing dissolvable polymers containing non-opioid drugs that would be inserted after a surgical procedure. The mesh is considered targeted pain relief and creators hope it’ll be on the market in a year or so.

Of course, part of the grant money came from pharmaceutical giant Merck, whose own products have been under fire in recent years with lawsuits against its defective products, including the Zostavax vaccine, the Fosamax osteoporosis drug, and the Nuvaring contraceptive. The University of Akron and Merck are working together on experimenting with seven non-opioid drugs for the polymer mesh.

Medicaid Coverage for Acupuncture

Low-income patients on Medicaid may be able to get a little help in Ohio with alternative pain management. In 2017, coverage was extended for acupuncture done by non-medical providers to relieve lower back pain and migraines. Previously, acupuncture had only been covered by Medicaid when delivered by a physician and deemed medically necessary. Eleven other states also are expanding Medicaid coverage for alternative pain relief in an effort to combat the opioid crisis.

While proponents say this may decrease reliance on opioid painkillers over time, others say it may make these alternative therapies more expensive in the long run if the medical benefits don’t pan out. Acupuncture may offer only small, short-term benefits for those suffering from chronic back pain.

An acupuncturist who led a Medicaid study on alternative pain treatments and their results in Vermont notes:

“Acupuncture is not going to solve the opioid crisis. But acupuncture is one tool that helps patients. It helps them get their feet back under them.”


The Most Important Mass Torts in 2018

Shared by Bey & Associates, LLC

When defective products are released into the market, there’s a strong chance they’re going to hurt or injure more than one person. Sometimes, they can affect large numbers of people. A mass tort lawsuit will represent the group of people affected by this product.

How Is a Mass Tort Case Different from Others?

Mass torts differ from other cases. Three main characteristics that set mass tort litigation apart from other cases are:

  • Claim Size. A mass tort case will have a large number of claims against a specific product.
  • Similar Facts. Many of the cases will probably have the same or similar facts. Examples include similar health problems with a medical device or side effects of a drug.
  • Structure. In mass tort litigation, those who were injured can be represented by attorneys in individual cases. Attorneys working on the case can share resources and they can use that knowledge or information for their client’s benefit.

What Are the Upcoming Mass Tort Cases?

Many upcoming mass torts involve drugs. When drugs are defective or have unknown side effects, the people taking them can suffer from serious side effects or die. Taking the drug companies to court holds them accountable for failing to inform the public of their drug’s side effects or cutting corners to push the drug on to the market faster. Some drugs that are the subject of mass tort cases in 2018 are:

  • Xarelto. This blood thinning drug has caused patients to have adverse side effects of internal bleeding. They claim that drug manufacturers should have disclosed this information about the side effect to them and to the medical community.
  • Risperdal. This antipsychotic drug is used to treat people with schizophrenia, bipolar disorder, and in some cases it’s used to treat autism. People coming forward claim that a connection between Risperdal and gynecomastia, an increase in male breast tissue size, was not disclosed by the drug manufacturers to patients.
  • Opioids. The country has an opioid epidemic. Many people are addicted to opioids and the drug addition has led to many fatalities. The addictions may have started from opioid prescriptions. People took their prescribed medication, but developed an addiction once it ran out and had to turn to other drugs to replace the opioids. Those coming forward claim that drug companies for pushing large amounts of pills into small towns and failing warn against the high addiction rate. Some opioid labels may have failed to accurately inform how long the drug remains in effect.
  • Pradaxa. Pradaxa is a blood thinning drug and patients have experienced terrible side effects of bleeding events and are at higher risk of gastrointestinal bleeding. Many people have come forward with similar experiences of major bleeding events and claim that the drug manufacturer didn’t provide warning about the possible bleeding side effects.

When drug companies are held responsible for their actions, it may change how they proceed with drugs in the future. They could change their methods and this could possibly save people from pain and suffering.

Could Electronic Logging Devices Allow Trucks to be Hacked?

Shared by Young & McCarthy LLP

Recently put into effect, the Electronic Logging Device (ELD) rule represents a significant piece of regulation for the trucking industry. The congressional mandate stipulates that truckers must use ELDs to manage and record their time. The goal of the rule is to curb drivers from exceeding federally regulated hour restrictions, in turn reducing the number overtired truckers on the road.

Aimed at decreasing truck-related accidents, the ELD rule seeks to raise the level of safety for drivers across the industry. As the mandate relies on truck-integrated technology, however, some have voiced concerns that the vehicles could be hacked.

How vulnerable is the technology?

To understand the potential vulnerabilities of an ELD, it’s important to grasp how they work. ELDs link directly to a truck’s on-board diagnostic (OBD) port. The OBD connects to the vehicle’s internal communications network, a system that can control speed and braking abilities, as well as manipulate the instrument panel.

Experiments conducted at the University of Michigan found researchers able to hack into a truck’s OBD with a laptop. Once plugged into the system, the researchers could control the vehicle’s acceleration, as well as disarm its brakes. Gaining such a level of access suggests that a well-executed cyber attack could possibly do the same.

Just how likely is it?

While the concept of a malevolent individual remotely wresting control of a truck from its driver’s hands is a terrifying one, it would be pretty difficult to pull off. In order to hack an ELD, a cybercriminal would first need to hack into a mobile network—with knowledge of the ELD’s exact make—and then somehow overwrite the device’s firmware. It’s not an easy task, and the effort it would take would be noticed by those paying attention.

Makers of ELDs, for their part, take security seriously and do not wish to sell vulnerable devices. The companies who produce ELDs will likely account for cyber security risks as the trucking industry continues to adjust to the technology. It will be interesting to monitor the effect that ELDs have on overall road safety going forward.

Social Media v. Privacy: What's the Verdict?

Shared by The Probate Pro

Just recently, traditional notions of privacy have clashed with social media, prompting a headline-making case: Yahoo is denying two personal representatives access to their deceased brother’s emails.

What’s the Story?

John Ajemian was just 43 when he died in a bike accident in 2006. He did not have a Will, so his brother and sister both stepped forward as personal representatives to manage his estate. More than ten years later, the personal representatives now want access to their deceased brother’s Yahoo email account.

Seems Legit. What’s the Argument?

Legally, the personal representatives can speak on their respective decedent’s behalf. Yahoo, however, doesn’t feel that way, and is fighting to withhold the emails. Naturally, email contains stored information – in many cases, even very personal information –which is protected by what is called The Stored Communications Act, a Federal law. This act serves to prevent organizations in the public service sector from disclosing “the contents of stored communications.” In lay man’s terms, it protects your personal information from being shared with just anyone or being publically broadcasted for all the world to see.

What about the law Michigan passed?

Glad you asked. In 2016, Michigan Governor Rick Snyder passed state legislation regarding deceased people’s digital assets and information. Any person named in a Will or Trust as a personal representative, or specifically identified as the surviving manager of the deceased person’s digital accounts, has complete control over the decedent’s digital assets. Digital assets include pictures, emails, eBooks, music, social media, and other website accounts. While it was not easy to get Michigan tech companies to jump on board, they will assist designated people with accessing their deceased’s loved one’s accounts if they do not have the credentials to do so themselves.

Yes, this could change things.

Regardless of whether the court sides with Yahoo or with Ajemian’s personal representatives, it will surely set a precedent for how someone’s email will be handled after they die. Personal representatives will either have the right to access a decedent’s email account, or they will not. If not, it has yet to be determined what action, if any, will be taken with respect to those accounts. If a decision is made that contradicts Michigan’s law, it too could be challenged in the future.

Why Would I Want My Loved Ones to Have Access to my Emails?

There are many reasons you might want your loved ones to have access to your email account. Maybe you’re responsible for paying bills, and your e-statements and account information are filed there. Maybe email is where you store contact information for your closest family and friends. Maybe you have funny, memorable emails that you’ve sent over time and want your loved ones to keep them in your memory.

Whatever your reason, here are some ways to make sure your loved ones don’t end up in a legal dispute with your email provider.

  • Write down your log-in credentials and store several copies in an agreed upon place. It’s good to have a master copy of all of your credentials to important accounts, such as email and bank accounts. Keep it updated, and tell a trusted person where it is. This way, if something happens to you, someone has access to your accounts to pay bills, print documents, etc. You can also store it in the cloud using one of the many online security firms now offering this service.
  • Write it in your Will and/or Trust. As you may have heard it explained before, a Will and/or Trust gives direction regarding how you want your matters handled after your death. Ask your estate planning attorney to make sure it is included in your Will and/or Trust that you wish for so-and-so to have access to your email or other social media accounts.
  • Share an account. While this may not be ideal, it is an option. If your loved one is in a nursing or assisted living home, has special needs, or is just a minor, sharing the account might be an easy way to have all of their information. Both of your names could be included in the email address, such as: This way, the account is just as much yours as it is theirs. This is similar to having a financial power of attorney on your bank account – their name is on it and they have full access to the account. Keep in mind that sharing an account, whether social media, email, or financial, requires a great deal of trust. Any emails that flow through the account can be seen by both parties, especially medical records and financial accounts.



Lax Fines for Violations Won't Help Nursing Home Resident

Shared by Shapero | Roloff Co., L.P.A.

A recent New York Times article reported on the Trump Administration's actions to "ease" nursing home fines for violations of Medicare regulations.  Ease is a word that is often used when talking about the lessening of a heavy, and often untenable, burden.  It is not the word choice that lawyers like me or the families we represent might use in this situation.   In fact, probably a more apt way to frame these reductions is by talking about how much cheaper it will be for nursing homes to violate Medicare.  Another might be to highlight how much harder it will be to make nursing homes follow the laws that were designed to safeguard one of our most vulnerable populations.


Nursing homes are lucrative for-profit businesses.  The bottom line should not take precedence over the the number of staff, the skill of staff, and the overall quality of the care.  This will have an impact on our loved ones.

4 Types of Traumatic Brain Injury Caused by Car Accidents

Shared by Mellino Law Firm, LLC

According to the Brain Injury Society, falls and car accidents are the two biggest causes of traumatic brain injury (TBI). TBI is an “umbrella” term, under which two primary two classifications of injuries exist — open and closed head injuries. Specific brain injuries will then fall into one of those two categories. There are several types of TBIs that can be caused by car accidents, with the four discussed here being more common.

1. Concussions

Sustaining a concussion from a car accident is a relatively common occurrence, even if the accident was not severe. It doesn’t take much to concuss a person, and the snapping motion of the head and neck during an accident can be enough to cause the brain to become bruised. Concussions typically heal on their own, but must be observed closely in the first few days for complications. In a few cases, concussions can lead to long term side effects.

2. Axonal Closed Head Injuries

These types of traumatic brain injuries come from violent shaking, such as would occur in a multi-car pileup or a rollover accident that sends a car tumbling down an embankment, for example. The shaking actually rattles the brain inside the skull, resulting in a TBI. Over time, the damage caused may improve, but permanent brain injury is also a possibility. This type of TBI can cause a person to struggle with daily tasks and memory recall for the rest of their life.

3. Penetrating Head Wounds

Penetrating TBIs come from objects that penetrate the skull and enter the brain. There are several different ways this can happen in a car accident, although penetration injuries are not as common as injuries sustained to a closed skull. Flying debris can be propelled at a velocity that could cause a penetrating head wound and depending on where the brain is injured and how seriously, this kind of TBI can be especially devastating or even fatal.

4. Contusions

Contusions are similar to concussions, but they may involve blood clots and other bleeding that must be surgically addressed. This can cause significant brain damage if not handled carefully, so it is vital that the problem be detected quickly. However, even with proper treatment, contusions can cause lingering issues like behavioral and mood changes, memory loss, and more.

Traumatic brain injuries can have catastrophic and lifelong consequences. If you or a loved one has suffered a TBI, there is help available. A car accident lawsuit may provide financial remedy for medical expenses and lost wages and can also penalize negligent drivers for their actions behind the wheel.

Expanded Use of the Drug Nuedexta in Nursing Homes Could Lead Increase Risk of Falls

Shared by Becker Law Office

Until recently, few people had ever heard of a rare disorder that causes uncontrollable outbursts of laughing or crying. The condition is known as pseudobulbar affect (PBA) and is most commonly associated with people who have multiple sclerosis or ALS, also known as Lou Gehrig’s disease. If you have watched television in the last few years, then you may have seen commercials for a drug called Nuedexta to treat the condition. If you have a loved one who lives in a nursing home, you may have seen this medication prescribed.

Since 2012, nursing homes and other long-term care facilities have accounted for more than half of Nuedexta’s sales. The number of prescriptions has increased by 400 percent since 2012. According to a recent investigative report by CNN, Nuedexta may put some older adults, particularly those with dementia, at increased risk of falling. The CNN report found that many patients may have been improperly diagnosed with PBA. The efforts of the drug’s manufacturer, Avanir Pharmaceuticals, to market its product to nursing home residents could be placing an already vulnerable population at risk.

How Nuedexta Works

Avanir itself admits that it is uncertain precisely how Nuedexta works. On the drug’s website, an FAQ page states, “Although the exact way in which NUEDEXTA works in people isn’t fully understood, it is thought to act inside the brain.” What we do know is that Nuedexta is a cocktail of two seemingly unrelated drugs — one used as a cough suppressant, and the other to treat heart problems. The FDA has approved Nuedexta to treat PBA. However, it is difficult to know how it might interfere with the functioning of people living with dementia, without a fuller understanding of how the active ingredients in the medication interact to affect the brain.

Nuedexta Warnings

Evidence of adverse reactions to Nuedexta has led Avanir to list a number of potential side effects for the drug, including dizziness, weakness, and fainting. All of these reactions could potentially cause elderly patients to fall, putting them at a risk of broken bones and other injuries.

The one study that Avanir conducted solely on patients with Alzheimer’s disease found that the use of Nuedexta was correlated with a twofold increase in the rate of falls among Alzheimer’s patients. This is especially troubling because of what appears to be a push by Avanir to have the drug prescribed to a disproportionate number of patients with Alzheimer’s and other forms of dementia.

According to the CNN report, while the manufacturer claims that as many as 40% of dementia patients suffer from PBA, many medical experts estimate the proportion at a much lower 5%.

Nuedexta complaints and lawsuits

Since Nuedexta became available in 2011, the FDA has received a number of complaints and adverse event reports involving the drug, according to CNN. CNN found that many of the doctors responsible for the increased prescription of Nuedexta to nursing home residents had been paid promotional fees by the drug manufacturer. The complaints about Nuedexta have prompted the Los Angeles City Attorney to open an investigation of California-based Avanir and whether Nuedexta was illegally marketed to long-term care facilities as a form of chemical restraint for dementia residents.

Personal injury attorneys are helping families investigate Nuedexta-related fall injuries.  Nuedexta lawsuits involve proving negligence on the part of the drug manufacturer. For the manufacturer, the negligence may involve continuing to market a drug to dementia patients that is known to increase their risk of injury without taking reasonable steps to warn them of that risk. 


CSX Employment Test Faces Discrimination Challenge

Shared by Murray & Murray

For nearly a decade, thousands of people who have applied for work at CSX Transportation’s freight rail yard in Huntington, W.Va. were required to strap into an isokinetic machine that measures muscle strength. While it’s true that working for a railroad line typically involves physical strength, in August the U.S. Equal Employment Opportunity Commission (EEOC) filed a class-action lawsuit claiming that the outcomes of the test demonstrate discrimination against women.

According to the lawsuit filed by the EEOC, nearly nine in 10 men passed the test with the top strength score, while just three in 10 women earned similar scores. More than half the women failed the test, while just six percent of the men did. The lawsuit also alleges that two tests, the “step test” to measure aerobic capacity and the “ergometer test” to measure arm strength, are failed significantly more by women than men. The test results demonstrate a disparity in how tests affect a certain class of people (in this case women) that the EEOC is responsible for protecting against workplace discrimination.

Although many employers in all industries use some type of assessment to measure physical and cognitive abilities and certain personality traits as a condition of employment, such tests can have unintended consequences and must be statistically validated to ensure that they effectively predict job safety and performance, meaning a railroad operator must be able to demonstrate that those who pass the test work safer and more effectively than those who don’t. 

This is not the first lawsuit alleging that a physical employment test constituted sex discrimination. In July 2014, the U.S. Justice Department filed a lawsuit against the Pennsylvania State Police over physical fitness tests that excessively screened out females applying for state trooper positions. A bench trial in the case has been scheduled for April 9, 2018.

Waking up to the Dangers of Falling Asleep Behind the Wheel

Shared by Sandel Law Firm

Ohio readers likely know that certain behaviors, such as distracted driving and speeding, can lead to the increased chance of a car accident. People are aware of the danger of negligent or reckless driving, but many fail to recognize the potential danger that comes from getting behind the wheel of a car while drowsy. 

Drowsy driving can be as dangerous as distracted driving in some respects. While most people have operated a motor vehicle while a little sleepy, there is a difference between being tired and being dangerously exhausted. Tired drivers can cause serious accidents, and in some cases, it may be possible to hold these parties accountable by filing a civil claim.

What's so bad about being a little tired?

According to the Centers for Disease Control and Prevention, drowsy driving is a major problem on American roads and highways. Drowsy driving happens when a driver gets behind the wheel while too tired to safely operate it, and drugs or alcohol can increase the effect of exhaustion that a person may feel. Tired and fatigued driving is dangerous for many reasons, including the following:

  • Exhaustion can slow a driver's reaction time to a perceived danger in the road.
  • Being too tired to drive safely can make a person less able to think clearly and make good decisions.
  • Fatigue diminishes a driver's attention levels and the ability to focus.

In some cases, a driver is tired enough to actually fall asleep behind the wheel, which can lead to serious accidents. Whether or not a person is tired because of an unusual work schedule, medication, a medical condition or other reason, every person is responsible for knowing when he or she is unable to safely operate a vehicle.

Driving while drowsy can be just as dangerous as driving while drunk or distracted. Victims of this type of negligent behavior have the right to seek compensation for damages and financial losses.

Your course of action as an accident victim

As the victim of a car accident, you may feel overwhelmed by your options and unsure of what you should do next. It can be useful to start with a complete evaluation of your case in order to understand if you could have grounds to move forward with a personal injury claim.

Drowsy driving is a dangerous problem, and victims of this type of negligent behavior or any other type of reckless behavior exhibited by another driver have the right to speak up and take action.

Why do People Keep Texting and Driving?

Shared by The Heck Law Offices, Ltd.

You would have to be living under a rock not to know that distracted driving, particularly through cellphone use, is a huge issue these days.

State have passed laws against it. There are reminders not to text and drive on billboards, on flashing roadside signs and on rental car dashboards. There are commercials about it. Even phone manufacturers have gotten into the act -- some phones automatically shut off if you're traveling at certain speeds unless you manually tell them you're a passenger, not the driver. Games and apps you can use on your phone contain similar warnings and disabling functions.

So, why do people keep picking up their cellphones while driving?

If everybody knows it is a bad idea, why does anybody even dream of picking up a phone while behind the wheel?

Scientists think they have the answer -- and the answer may just bring the cure.

According to cognitive psychologists, the reason people pick up the phone when they drive is nothing short of a chemical in the brain that a lot of people are vaguely familiar with: dopamine.

Dopamine is a naturally-produced substance that signals rewards or satisfaction in human brains. When it works best, it helps humans remember what is good for them and how to get the most pleasure out of life. Unfortunately, it can also lead the way to addictive behaviors as people seek the dopamine rush that comes from things like drugs, sex, gambling and even dangerous activities like driving too fast.

Sociologists and psychologists both say that phones have become an intrinsic part of most people's social networks -- and social contacts drive dopamine levels up.

In other words, people pick up their phones while they're driving and check the latest text or note from Messenger for the same reason that a lot of people lose a couple of hours of productivity a day to social media sites: They're getting a dopamine fix from it.

Last year, roadway fatalities increased 6 percent. If dopamine and distracted driving are the cause, what's the cure?

It may be time to revert back to an almost unthinkable era where cars weren't "wired in" to the Internet of Things. That will shut off the driver's access to those dopamine-driven behaviors.

In the meantime: turn your phone off -- or even lock it in the trunk -- while you drive.


Ohio Employer Required Posters
Shared by Dagger Law

Numerous state and federal laws require Ohio employers to post specific employment related signs throughout the workplace. The required posters are designed to ensure that employees are aware of guidelines and laws that could affect them in the workplace. Certain posters are required of all Ohio employers; other posters are unique to certain industries.

The Ohio Fair Employment Practices Law poster is required to be posted by all employers in the workplace. This mandatory poster generally states that Ohio law prohibits discrimination on the basis of race, religion, sex, age, military service, nationality and other protected classes, and that the Ohio Civil Rights Commission is available to investigate any employee complaints.

Ohio requires that all employers post the Ohio minimum wage. Ohio employers also must have a sign displaying the employer’s Workers’ Compensation Certificate. Additionally, all places of employment in Ohio must post a “No-Smoking” poster at each entrance. Many Ohio employers are required to have an Ohio Minor Labor Law poster, which advises employees younger than 18 years of age how much they are legally allowed to work.

Various federal laws also require mandatory postings in Ohio businesses. Similar to the Ohio Fair Employment Practices Law poster, federal law requires that employers display the “Equal Employment Opportunity Is the Law” poster, which is meant to protect employees from workplace discrimination. Federal law also requires employers to post information relating to the Fair Labor Standards Act, which details the minimum wage, child labor laws, and overtime requirements. Depending on their size, Ohio employers may additionally be required to post the “Rights under the Family and Medical Leave Act.”   

Dozens of other laws and regulations mandate posters (unemployment compensation rights, Occupational Safety and Health rights, to name just a few), depending on the size of the business, or even across types of industries.  Businesses and employers may also choose to post other signs (for example, prohibiting concealed weapons on their premises).  Failure to follow “poster laws” could subject employers to monetary fines and penalties, and also could restrict their ability to defend claims made by employees.  

Many fee-based services are available to assist employers with required posters. Businesses are encouraged to annually audit their posters for compliance with “poster laws,” particularly given the wide array of laws that are involved.

Woman Confronted with Misdiagnosis Still has Medical Bills

Shared by The Goldberg Law Firm Co., LPA

If an Ohio resident has a medical issue and goes for treatment, the expectation is that the medical professionals will assess the situation, conduct tests, come to an accurate diagnosis, and begin treatment. However, if there are mistakes, that can lead to the person not getting the proper treatment or getting treatment that was not necessary. Both can be viewed as forms of medical malpractice. A legal filing can be initiated if there was a mistake.

A woman who had been told she was suffering from ovarian cancer was treated with more than four months of chemotherapy. She had significant changes to her appearance including a loss of hair and discoloration of her fingernails. However, when the doctors conducted tests to see if the treatment was effective on her tumor, they found that she did not have ovarian cancer, but gastrointestinal cancer, also referred to as GIST. This type of cancer is treatable with a prescription. The woman will need to take the pill for three years to treat the disease. While this is an overall positive, there is still the reality that the doctors made a mistake in her diagnosis and treatment. Compounding the issue is that she is still receiving bills for the treatments that she did not need. A portion was written off, but she still owes for the treatment. She is hoping the bills will be written off completely because of the mistakes.

Doctors and other medical professionals can make a litany of errors when they are treating patients. Some can cause significant damage and lead to death. Others might not have long lasting ramifications, but do have a negative impact on a person's life. No matter the situation, when going for medical treatment, it is reasonable to believe that the staff will do their jobs and make certain that their diagnosis is accurate before and during treatment. If there is an error and the person is harmed personally of financially because of it, it could be the basis for a legal filing to be compensated.

In this case, the woman was given a treatment for a cancer she did not have. The actual cancer was one in which it could be treated with a pill and she did not have to have chemotherapy. Since she was misdiagnosed and received treatment she did not need, she might have the right to be compensated not just for the costs of the treatment, but for what she went through. 

4.6 Seconds is a Long Time for a Trucker to Drive Distracted

Shared by Donahey Law Firm, LLC

Commercial drivers, including those who operate semitrucks and buses, need to have their attention on the roadway. Failing to do so can result in accidents that can range from minor fender benders to fatal crashes. One thing that can distract truckers and other commercial drivers is texting. For this reason, the federal government has stepped in to set up regulations regarding texting, smartphone use, and cellphone use for these drivers.

A driver who is sending or receiving a text takes their eyes off the road for an average of 4.6 seconds. This doesn't seem like a very long time, but when you are traveling at high rates of speed, it is actually a very long time. In this time span, a vehicle moving at 55 miles per hour travels the entire length of a football field. That is enough distance to cause a very serious accident -- in less than five seconds.

Truckers have options for remaining connected to loved ones while they are on the road, so lack of communication can't be cited as a reason for violating regulations. These truckers can choose to use hands-free options for answering and making calls. Speech-to-text programs and text-to-voice programs can enable the truckers to continue to send and receive texts.

Ultimately, when truckers are distracted, innocent people suffer. The victims of distracted trucking accidents might choose to seek compensation for the injuries they suffered. The actions of the trucker in the moments leading up to the accident might come into the picture, so understanding how to obtain crucial evidence can help you as you begin to build your case against the trucker.





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OAJ Blog Central showcases informative blog posts from law firms and trial attorneys throughout Ohio. 

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Recent Posts:
Exploding Takata Airbags
• Merit Decision: Cumulative Exposure To Various Products Containing Asbestos Does Not Establish Substantial Factor Causation.
 Ohio’s New Workers’ Care Guidelines Add Hurdles to Treatment
The Most Important Mass Torts in 2018
• Could Electronic Logging Devices Allow Trucks to be Hacked?

Keywords: Takata AirbagsSchwartz v. Honeywell Internatl., Inc., Asbestos, Workers' Compensation, BWC GuidelinesMass TortsElectronic Logging DevicesSocial MediaFinesCar Accidents, TBINursing HomeNuedextaCSX, Employment Law, DiscriminationDrowsy DrivingTextingEmployer PostersMedical Bills, Misdiagnosis, Distracted Driving

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