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OAJ BLOG CENTRAL

Firefighters at Increased Risk of Workplace Injuries

Shared by Casper & Casper

casperlaw.com/blog


While everyone else runs away from a burning building, firefighters run toward it. Firefighters have one of the toughest jobs out there: it’s a job characterized by danger and injury, where dozens of firefighters are killed and thousands are injured each year.

It’s not just fires that firefighters have to be wary of, however.

An evolving body of research shows that firefighters are at an increased risk of cancer: studies done by the National Institute for Occupational Safety and Health found that, compared with the rest of the American population, firefighters face a 9 percent increase in cancer diagnoses and a 14 percent increase in deaths.

NBC reports that, according to The International Association of Firefighters, cancer is now the leading cause of death in this profession.

FIREFIGHTING AND CANCER

Why is cancer so prevalent among firefighters?

Today’s fires often involve synthetic materials, plastics, and chemicals. When these materials burn, they release compounds that are toxic to the human body. Over time, exposure to these compounds cause a variety of different cancers, from blood cancer to brain cancer.

Firefighters are supposed to wear self-contained breathing apparatus (SBCA) and clean their personal protective equipment (PPE); however, many firefighters take their SBCA off too early or do not clean PPE well enough. Until now, firefighters have not realized the danger of being exposed to toxic soot in the air and on their clothes.

Recent efforts by The National Fire Protection Association (NFPA) urge firefighters to keep their SBCA on for longer periods of time. The NFPA is also working on studies to determine best practices for removing toxic chemicals, pathogens, and other harmful substances from PPE. In addition, firefighting departments around the country are purchasing SBCA that work for 45 minutes (instead of the usual 30 minutes) and are cracking down on firefighters that break protocol.

Unfortunately for many firefighters—who are already injured—this new information comes too late.

WORKERS’ COMPENSATION FOR FIREFIGHTERS

Like almost all employees in the United States, firefighters are entitled to compensation if they are injured on the job or develop a disease as a result of their job; however, special circumstances make the workers’ compensation system work a bit differently for firefighters

Because of new information about the prevalence of cancer among firefighters—and thanks to the tireless efforts of firefighters and their families—the Ohio legislature passed the Michael Louis Palumbo Jr. Act in 2017.

This act, whose namesake has been diagnosed with brain cancer, recognizes cancer as a workplace illness for firefighters. Under the new law, if a firefighter is diagnosed with cancer, it will be assumed that the cancer occurred as a result of the job. This makes it easier for firefighters with cancer to receive the workers’ compensation they need to support themselves and pay for their medical bills.

That being said, firefighters still face some obstacles throughout the workers’ compensation process.

The Michael Louis Palumbo Jr. Act included several conditions to the law: the firefighter had to have been assigned to “hazardous duty” for six or more years, and he or she had to have been exposed to high-level carcinogens. The assumption may not apply if the firefighter was exposed before starting the job or if he or she performed an activity (like smoking cigarettes) that exposed them to cancer-causing agents. This means that, during the workers’ compensation claims process, firefighters must still prove when and how they were exposed — not an easy task for most people.

In addition, though the Michael Louis Palumbo Jr. Act was written to apply for 20 years, recent changes to workers’ compensation law shortens the time limit to 15 years: now, a firefighter must file a cancer-related workers’ compensation claim within 15 years of service.

This change is an unfortunate blow to firefighters who deserve compensation for their service. While 15 years might seem like a long time to file a claim, it’s important to remember that certain cancers are latent. This means that the cancer can take years or even decades after the initial exposure to become active and cause symptoms.


Increased Recourse for Victims of Sex Trafficking

Shared by McKeen & Associates, PC

www.mckeenassociates.com/blog


On Wednesday, the Allow States and Victims to Fight Online Sex Trafficking Act--dubbed "FOSTA" for short--was signed into law. The law is intended to bolster accountability among websites that--directly or indirectly--facilitate sex trafficking.

The impetus

The new legislation comes on the heels of a large-scale indictment against Backpage.com--a website that hosted third-party classified ads. Many ads on the site were for prostitution and child sex trafficking. Backpage has been charged with 93 counts of sex-trafficking related charges. Last week, the U.S. Department of Justice seized the website.

What the new law does

The new law sends a strong message to websites: if you're hosting questionable content, you can be held liable--even if you're not the one creating the content. Under FOSTA, any website that knowingly hosts content which enables or promotes prostitution or sex trafficking can be held liable. The law increases criminal penalties for such offenders and allows sex trafficking victims to take civil action against such companies to recover damages.

In addition, under the new law, state attorneys general can prosecute such websites, even if the defendants violated federal prostitution law. Putting this authority in the hands of the states--rather than federal authorities--is expected to expedite the pursuit of justice.

Reaction to the law

Many have applauded the new law, hoping that enhanced website accountability will help curb instances of such crimes.

However, some sex worker advocates claim that websites provided women with a safe space to screen clients, and also provided an open platform for the government to track such activities. They argue that FOSTA will not stop sex trafficking from happening--it will just move it to spaces that are harder to control, such as the dark web, social media or outside the nation's borders.

In response to the passing of FOSTA, other sites hosting third-party content have begun large-scale self-censorship. Craiglist has removed its Personals, Dating and Missed Connections sections from its website, citing concern that unknown mis-use by third parties could put their company in jeopardy.

Some critics are also concerned that the new law opens up companies to liability for hosting questionable content they knew nothing about. In addition, if a company discovers suspicious content and takes steps to remove it, there is concern that the acknowledgement of such content demonstrates knowledge of it--which could also put website hosts on the chopping block.

The passing of FOSTA was received with both praise and consternation. Time will tell what the long-term implications of the new legislation will be.


Wearable Technology Being Adapted to Combat Driver Fatigue

Shared by Young & McCarthy LLP 

www.truckcrashvictimhelp.com/blog


Almost three-quarters of the products purchased by consumers in Ohio and around the country are transported using large commercial vehicles, and tractor-trailer drivers commonly spend up to 70 hours behind the wheel during a typical workweek to keep up with this demand. Truck driver fatigue has been a road safety issue in the United States for decades, and even strict hours of service regulations are not enough to prevent about 100,000 accidents each year involving drowsy tractor-trailer drivers.

A startup technology company formed by University of Oklahoma graduates aims to address the issue of truck driver fatigue by using the sort of wearable devices favored by fitness enthusiasts. BlyncSync is developing a range of products similar to the heart monitors and calorie counters worn by joggers to monitor how often truck drivers blink, nod their heads or yawn. These devices are designed to be connected to logistics companies or dispatchers and send alerts when truck drivers may be becoming dangerously drowsy.

The company's first offering is a pair of safety goggles that keep track of how often truck drivers blink. Hats, bands and watches capable of monitoring fatigue-related biometric data are also being developed according to a BlyncSync representative. The company plans to bring the safety goggles to market once they have been thoroughly tested and evaluated in the field by trucking companies.

Drowsy truck drivers rarely apply their brakes or take other forms of evasive action before crashing, and the accidents they are involved in may be catastrophic in nature as a result. Experienced personal injury attorneys may introduce hours of service records in truck accident cases to show that truck drivers willfully ignored federal regulations designed to keep road users safe. Attorneys might also pursue civil claims against logistics companies when official records reveal a pattern of hours of service irregularities or a history of safety violations.


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Better Safe Than Sorry: Updating Your Estate Plan as Your Family Changes

Shared by The Probate Pro

theprobatepro.com/probate-pro-blog


Family Situations Can Change Often

Time flies by faster than you think, but this is not merely an observation about life. The fact of the matter is, what works for you and your family today may not make sense tomorrow, or in a few years from now. Maintaining and updating your estate plan very important, there could be updates needed to your will, trust or beneficiary designations based on the current dynamic of your family.

Just as an example, let’s say you are married with a couple of younger children. Your parents are still living, but maybe you don’t get along with them the way you used to. In this example, it makes sense to designate your children and your spouse as a beneficiary in your will. It seems like common sense. However, that is only your life today.

Now let’s fast forward a decade or two. More likely than not, your kids are grown up and on their own. Maybe you are also married to someone else, and they too may have children, younger or older. Your parents may or may not still be living, and maybe you and your parents put your differences aside and you are ready to bring them back into your life.

But wait a minute! That same will, trust, and beneficiary designations that you setup a few years ago is suddenly looking out of date, and the people you care about may not be adequately provided for. When you name a beneficiary to an account, the funds go straight to that person when you pass away, rather than having to go through a probate process. Did you know that a beneficiary designation trumps any language in a will or trust? At the same time, you do not want to wait until it is too late to change your policies to reflect your current family situation. Unfortunately, “too late” sometimes comes when we least expect it. Don’t make this common estate planning error.

What is there to update and how do I do it?

It is much easier to name the correct beneficiaries now than to have your heirs try to figure it out later. Double-check your beneficiaries early and often – it is easy to do. Have your account information handy and call the customer service department for your retirement and other investment accounts, insurance policies, or any other accounts with a beneficiary. Many times, this information can also be verified online.

If you want to update any of your beneficiary designations, the forms to do so can oftentimes be found online, or you can call the company and they will send you a form to fill out. The form might request the new beneficiaries’ social security numbers. You may also need a signature from your spouse.

Make sure you are looking – and planning – a step ahead. Designate your assets for the loved ones you want to receive them today, not 20 years ago.


Ohio’s 3-Foot Passing law, Ohio Revised Code (ORC) §4511.27 and ORC §4511.132—the “dead red” exception—eff. 3-21-17

Shared by Kenneth Knabe | Knabe Law Firm Co., LPA

http://klfohio.com/blog


Bicycling is the second-most popular outdoor activity; commuter cycling is also on a steady upswing with an alarming increase in bicycle accidents and even deaths.  Ohio has recognized this increase in cycling and accidents and has joined numerous other states in passing the three-foot safe distance passing law.  Many thanks to Bikecleveland.org, Ohio Bicycle Federation, Ohio House and Senate, and the Governor for passing much-needed bicycle safety law on a statewide basis.

Ohio’s three-foot minimum safe distance passing requirement, ORC §4511.27 and the “dead red” exception, ORC §4511.132 became effective March 21, 2017.

Under newly-enacted ORC §4511.27(A)(1) & (2), a driver of a car passing a cyclist riding in the same direction shall pass to the left at a distance of three feet or more, not driving again to the right until the driver's vehicle has safely cleared the cyclist.  (This rule does not apply at intersections controlled by traffic control signals.)  Upon the car’s audible signal, the cyclist being passed must give way to the right in favor of the overtaking car, and the cyclist shall not increase speed until completely passed by the car.  A driver that violates this section is guilty of a minor misdemeanor unless convicted of one or more “predicate motor vehicle or traffic offenses” which include most other traffic offenses. See ORC §4511.27 (B) & §4511.01 (III) (1)

ORC §4511.132 was amended to permit a cyclist to stop and then safely enter an intersection on “dead red”. This occurs when a red light is not tripped to green because of failing to detect a vehicle, i.e. a bicycle. This is not a license for cyclists to ride through red lights but a specific exception when the light fails to detect the presence of a bicycle and stays red. Entering must be done with great caution and in complete deference to cars entering the intersection on green who have the right of way.


Pregnancy Discrimination: Words Versus Deeds

Shared by NachtLaw PC 

www.nachtlaw.com/blog


Sexual harassment in the workplace has been the topic of the last year. Another troublesome niche in workplace gender inequality still gets less attention: it is subtle to overt pregnancy discrimination.

As a short-term disability, the months of pregnancy require prenatal appointments, added trips to the restroom and often lifting weight restrictions. When a request to stop lifting heavy boxes is denied or jokes about your size make you uncomfortable, start taking notes to document what is happening.

The fashion industry

A recent example comes from a fashion house of a designer lauded for inclusion and fundraising for anti-harassment efforts. According to a former employee, the work environment did not live up to the external image.

At six months of pregnancy, the sales director had to hear derogatory comments about her weight gain and answer questions about whether she was getting enough exercise. When she suffered from the swelling of preeclampsia, the comment was “Maybe dresses aren’t the best option, nobody should see those legs.” She asked to wear flats. Her employer objected.

She explained how she felt a target and began to document what was happening. After a c-section and concerns about breast-feeding, she asked to work part-time from home. The company asked her to return to the office full time. She could not and lost her job. Was it a termination or resignation? Not surprising, each party framed it differently, but the label may not matter based on an individual situation.

Was it an isolated incident? Reports from other employees indicate a systemic disdain for anyone taking time off for any type of medical leave.

Is this legal?

From 2010 to 2015, the Equal Employment Opportunity Commission received 31,000 pregnancy discrimination complaints. That may not fully reflect the problem because many women report fearing to request any accommodation in the first place.

What is pregnancy discrimination? It includes:

  • Refusing to hire an applicant because she is pregnant
  • Demoting or terminating a pregnant employee
  • Denying a mother the same job she had before taking parental leave
  • Treating a pregnant woman differently than other temporarily disables employees (denying a lifting restriction for a pregnant woman but allowing the same request to another employee recovering from a surgery)

Title VII includes the Pregnancy Discrimination Act of 1978. The PDA clarifies the prohibition on discrimination related to pregnancy, childbirth and related conditions. This federal legislation applies to all employers with more than 15 employees.

For larger employers with more than 50 employees, the FMLA guarantees 12 weeks of unpaid leave where your health benefits remain in place to care for a newborn or adopted child. This law also requires that you receive the same job when you return with the same pay and benefits.

The Americans with Disabilities Act prohibits discrimination related to disability. Recent changes added pregnancy-related impairments to the list that requires reasonable accommodations.

The only way to put a stop to pregnancy-related discrimination is to stand up. 


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Oral Argument Preview: Personal Foul! Should Ohio’s Discovery Rule Toll Claims Involving Latent Brain Diseases Like CTE? 

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


On April 11, 2018, the Supreme Court of Ohio will hear oral argument in the case Steven Schmitz et al v. National Collegiate Athletic Ass’n et al, 2017-0098. At issue in this case is whether a diagnosis of a latent brain disease sufficiently tolls Ohio’s statute of limitations under the discovery rule, and whether the fraudulent concealment and constructive fraud claims should be subject to the two year or four year statute of limitations. The case will be argued at Ottawa-Glandorf High School in Putnam County as part of the court’s off-site program.

Case Background

Steven Schmitz was a running back and receiver for the University of Notre Dame du Lac (“Notre Dame”) football program from 1974 to 1978. During this period, the university was a member institution of the National Collegiate Athletic Association (“NCAA”) (collectively, the “Defendants”).

Almost forty years later, in December of 2012, Schmitz was diagnosed at the Cleveland Clinic with chronic traumatic encephalopathy (“CTE”). CTE is a latent disease of the brain, which is purported to be the result of repetitive head impacts. At fifty-seven, Schmitz suffered from memory loss, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.

Less than two years after his diagnosis, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the NCAA for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium. In sum, Schmitz alleged that the Defendants knew, or should have known, about the increased risks of brain injury football posed to players during and after their collegiate careers, but the Defendants ignored these risks. Schmitz died on February 13, 2015, and his estate was substituted as plaintiff with Yvette acting as the fiduciary. Yvette remained a plaintiff in her individual capacity.

On September 1, 2015, Cuyahoga County Court of Common Pleas Judge Deena R. Calabrese granted the Defendants’ motion dismissing Schmitz’s complaint as time-barred.

The Appeal

In a unanimous decision authored by Judge Mary J. Boyle, joined by Judges Larry Jones, Sr. and Frank Celebrezze, Jr., the Eighth District Court of Appeals reversed the trial court’s dismissal on statute of limitations grounds of Schmitz’s claims of negligence, fraudulent concealment, constructive fraud and loss of consortium, affirmed the dismissal of the contract claims as time-barred, and not subject to the discovery rule, and affirmed the dismissal of the constructive fraud claim against NCAA on non-statute of limitations grounds. Following other courts addressing similar issues around the country, the Eighth District found that the discovery rule applied to Schmitz’s latent brain injury because it was unknown until he received his formal diagnosis in 2012. The court also found a prior toxic-tort case, Liddell v. SCA Servc., to be particularly instructive.

The Eighth District also held that the claims of fraudulent concealment and constructive fraud were separate and distinct from the claims for bodily injury, and therefore, were subject to the four year statute of limitations in R.C. 2309.09(C).

Votes to Accept the Case

Yes: Justices O’Donnell, O’Neill, French, and Fischer.

No: Chief Justice O’Connor, and Justices Kennedy and DeWine.

 

Click here to continue reading blog.


Cleveland Hospital Faces Lawsuits Over Damage To 2,000 Frozen Eggs, Embryos

Shared by Landskroner Grieco Merriman, LLC

www.teamlgm.com/blog


Attorneys handling case against University Hospitals of Cleveland explains case

University Hospitals Ahuja Medical Center’s Reproductive and Fertility Center in Cleveland faces legal action in the wake of news that a hospital storage tank overheated, resulting in damage to more than 2,000 frozen eggs and embryos stored there.

More than 700 people who paid to have frozen eggs and embryos stored at the facility were affected by the incident. Many of the people who stored eggs and embryos there planned to have children in the future. Now, those hopes have been dashed and the investigation into why this situation happened has begun.

“What we can do is hold the hospital accountable so it never happens again,” Cleveland attorney Tom Merriman said in an interview with NBC Nightly News.

Merriman is a partner at Landskroner Grieco Merriman, LLC (LGM). The law firm is filing lawsuit on behalf of many people affected by the malfunctioning frozen storage unit, according to an interview with The Washington Post. Merriman added in additional interviews with other news organizations that they want answers into how this fiasco happened in the first place.

“Who’s responsible? Is it the hospital, is it some mind of vendor? Is it the manufacturer of the refrigeration system? There’s a lot of different options and those kind of investigations will start now,” Merriman said in an interview with ABC News 5 Cleveland.

BACKGROUND HISTORY

Couples have been freezing eggs and embryos (which are fertilized eggs) in order to have children at a later time since the 1980s. Couples choose to freeze eggs or embryos for many reasons. According to the Mayo Clinic, some of the most common reasons why couples choose to freeze their eggs or embryos include:

  • Someone is about to undergo treatment for cancer or another illness that could affect future fertility.
  • Someone is undergoing in vitro fertilization.
  • Someone wishes to preserve younger eggs for future use.

The number of embryos in cold storage has increased dramatically in recent years, according to The Washington Post. In 2002, there were estimated 400,000 frozen embryos. In 2011, that figure was estimated to be 600,000. Now, there are an estimated 1 million frozen embryos in cold storage.

Timeline of events

Sometime during the weekend of March 3 and 4, the temperature in a liquid nitrogen freezer at UH’s Ahuja Medical Center – used to store the frozen eggs and embryos – started to rise, according to The Cleveland Plain Dealer on March 16.

The temperature fluctuation was due to the sudden failure of the cryopreservation tank, according to CNN. As a result, all of the frozen eggs and embryos stored inside could possibly be permanently damaged. An estimated 2,100 eggs and embryos were stored in the tank.

The storage tank has off-site monitoring and an alarm designed to alert staff members of temperature changes, according to The Cleveland Plain Dealer on March 8. The alarm was going off the morning of March 4 when staff members arrived at the hospital. No one was in the facility overnight on March 3.

Response to incident

On March 6, the hospital sent letters to families notifying them of the incident, according to The Cleveland Plain Dealer on March 8. Officials are still trying to determine why the temperature rose since the storage tank was plugged into the hospital’s emergency power supply, which is hooked up to a generator designed to switch on if the hospital loses power.

On March 8, University Hospitals published a statement on its website regarding the incident. The statement reads:

We are investigating a recent incident at our Fertility Clinic involving an unexpected temperature fluctuation with the tissue storage bank where eggs and embryos are stored in liquid nitrogen. At this time, we don’t yet know the viability of these eggs and embryos.

We have initiated an investigation to identify the cause of this event. We are bringing in independent experts to ensure we understand all aspects of this occurrence and do everything possible to address the situation.

Right now, our patients come first. We are incredibly sorry this happened. We are committed to getting answers and working with patients individually to address their concerns. We have already initiated contact with all of our patients to inform them and respond to their questions, and set up a designated call center to arrange personal meetings or calls with their physicians.

As always, we are guided by the principle that we are going to do the right thing by our patients and their families.

On March 13, two accreditation organizations – The College of American Pathology and The Joint Commission  – and the Ohio Department of Health announced that they were investigating University Hospitals to determine how the equipment malfunction occurred, according to The Cleveland Plain Dealeron March 13.

Families take action

Kate and Jeremy Plants were one of the couples storing frozen eggs and embryos at the University Hospital’s fertility clinic. Kate was diagnosed with ovarian cancer in 2015. Soon after, she underwent fertility treatments and produced by viable embryos. “It was a miracle,” Kate Plants said in an interview with ABC News 5 Cleveland.

Then the Plants received the news earlier this month that their embryos may no longer be viable due to the unexpected temperature fluctuation in the frozen storage bank. “It hit me like a ton of bricks,” Kate said in an interview with CNN. “But Jeremy took it even harder. The rest of the world looks at it as eggs and embryos, but we look at it as our future children.”

Since then, the Plants and many other families affected by the hospital’s negligence have taken legal action against University Hospital. “I’ve talked to 20 different patients directly, and all have been told their embryos are not viable,” Merriman said in an interview with CNN. “I had another 15 emails Monday morning, and phone has been ringing all day.”

And as attorney Jack Landskroner, another partner at Landskroner Grieco Merriman, LLC, told the Plain Dealer, every family is facing unique challenges. ”After meeting with and talking to dozens and dozens of affected couples and individuals, we believe each client’s story is unique and individualized,” Landskroner said. ”In turn, we have determined that, at least for the people we are representing, their interests are better suited to have their claims addressed on a case-by-case basis rather than in a class proceeding.”


Tougher FINRA Rules: A New Tool to Fight Financial Exploitation of Seniors and Adults with Disabilities

Shared by Hickman & Lowder Co., L.P.A.

www.hickman-lowder.com/hickman-lowder-weblog


The Securities and Exchange Commission has just enhanced the protection for seniors and adults with disabilities who may be subject to financial abuse. Earlier this month, the Financial Industry Regulatory Authority (FINRA), an independent regulator that protects investors and regulates financial brokers and dealers, released new rules intended to block unauthorized withdrawals and other disbursements from the accounts of vulnerable adults.

Now, brokers and dealers have rules that permit them to step in when they “reasonably believe” that exploitation of a senior or adult with disabilities is taking place, and place temporary, 15-day holds on disbursements of funds or securities from accounts of their customers (holds can be extended if necessary).

In addition, the rules allow account holders to designate a “Trusted Contact Person” for their accounts, who, along with the account holder and other concerned parties, receives notification when holds are placed. Naturally, if there is reason to believe the Trusted Contact Person is part of the exploitation, that notification is not made.  

These new regulations will not end the abuse of the elderly or vulnerable, but they do provide additional comfort that vulnerable loved ones can be safe from financial exploitation.


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Exploding Takata Airbags

Shared by Hillary Rinehardt | Rinehardt Law Firm

www.rinehardtlawfirm.com/blog


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 NHTSA.gov/Alerts 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

www.legallyspeakingohio.com


“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.

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

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

www.plevinandgallucci.com/legal-news-blog


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.”


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The Most Important Mass Torts in 2018

Shared by Bey & Associates, LLC

www.beyandassociates.com/blog


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

www.facebook.com/pg/truckcrashvictimhelp/notes/


 

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

theprobatepro.com/probate-pro-blog


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: JoeJaneSmith@someemailaccount.com. 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.

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

Blog Policies

Recent Posts:
• Firefighters at Increased Risk of Workplace Injuries
Increased Recourse for Victims of Sex Trafficking
• Wearable Technology Being Adapted to Combat Driver Fatigue
• Better Safe Than Sorry: Updating Your Estate Plan as Your Family Changes
• Ohio’s 3-Foot Passing law, Ohio Revised Code (ORC) §4511.27 and ORC §4511.132—the “dead red” exception—eff. 3-21-17

Keywords: Firefighters, Workplace InjuriesFOSTA, Human TraffickingTechnology, Driver FatigueEstate Plan3-Foot Passing Law, BicyclePregnancy Discrimination, Ohio Supreme Court, Oral Argument, ConcussionsCleveland Hospital, Fertility CenterFINRA, Financial ExploitationTakata AirbagsSchwartz v. Honeywell Internatl., Inc., Asbestos, Workers' Compensation, BWC GuidelinesMass TortsElectronic Logging DevicesSocial Media

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