Lawsuit aims to ban swimming with manatees in Florida

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.foxnews.com

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Jan. 15, 2014: A manatee calf nurses from its mother inside of the Three Sisters Springs in Crystal River, Florida.

The U.S. Fish and Wildlife Service is about to be sued over an animal that isn’t exactly “endangered.”

ECO-LAWSUIT: The Public Employees for Environmental Responsibility, a Washington, D.C.-based group, wants several tough new restrictions on human activity in manatee areas.

The Public Employees for Environmental Responsibility, a Washington, D.C.-based nonprofit, filed an Intent to Sue notice this week accusing the federal agency of mistreating “the endangered Florida manatee.”

PEER, which last month sued FWS to stop dirt bike and off-road vehicle noise and air pollution in California, says the agency is “facilitating significant physical harassment” of manatees by allowing the public to swim with the animals in the Crystal River National Wildlife Refuge.

The Crystal River National Wildlife Refuge was established in 1983, and it’s the only refuge created specifically for the protection of the Florida manatee, according to FWS.

By issuing special-use permits to local dive shops that lead manatee swim tours, PEER says the environmental agency is harming the animals.

The effort has the appearance of an overreaction. Natural events such as cold water and toxic red-tides have done far more to harm manatees in recent years than human contact. In the overlapping period, the animals have made…

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Mahwah man can pursue suit against Finkelstein & Partners law firm

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.northjersey.com

Mahwah man can pursue suit against Finkelstein & Partners law firm

By KATHLEEN LYNN

STAFF WRITER | 

The Record

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* Cites overcharges in slip-and-fall case

A Mahwah man’s lawsuit claiming that his lawyers overcharged him in a personal-injury case can move forward under a recent court ruling — though one of the original defendants, the well-known law firm Jacoby & Meyers, has been let off the hook.

Jeffrey Harding of Mahwah and his 80-year-old mother, Nancy Harding of Rockland County, hired lawyers with ties to Jacoby & Meyers, a New York company known for its television commercials, to file two slip-and-fall lawsuits on their behalf.

Nancy Harding hired Finkelstein & Partners of Newburgh, N.Y., after she suffered an injury at a Suffern, N.Y., tile business, and Jeffrey Harding, who had a separate case, hired Andrew Finkelstein of Finkelstein & Partners.

The Finkelstein firm shares many office locations and staff with Jacoby & Meyers, according to a lawsuit filed by the Hardings after their slip-and-fall cases were settled.

In their lawsuit, both Nancy and Jeffrey Harding claimed that the lawyers overcharged them by adding fees for services from a company, Total Trial Solutions, which was partly owned by their lawyers. Those fees were in addition to the regular attorneys’ fees of 33 percent of the amount recovered, the Hardings said in their lawsuit, which named Jacoby & Meyers, Finkelstein & Partners, Total Trial Solutions, and…

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Wage Disparity and Workers’ Compensation

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

When I began representing injured workers at a labor law firm in the 1970s, over one-third of the workforce was unionized. Almost all the workers I represented earned the maximum amount allowable to trigger the maximum workers’ compensation benefit in the event they missed work due to a work injury. Today with Union membership in the United States down to 6.6% of the workforce (about the same rate as at the turn of the 20th Century, few of the workers I represent are “maximum” earners, triggering maximum benefits under workers’ compensation. In fact, many of the workers I represent earn less than $10 per hour, which means their family income falls beneath the national poverty line.

Statistics about economic inequality are staggering. The richest 1% of the nation controls 40% of the wealth and earns 20% of the national income – proportions very similar to those in the early 20th Century (and up from about 25% and 9% in the 1970s when I started representing injured workers). Two recent books attempt to explain what, if anything, can be done to revive unionism. Historian Steve Frazer’s Age of Acquiescence looks at the long sweep of work in the United States. Frazer thinks the labor question is the key to confronting the economic gap and all its political and cultural consequences.  

The second book is by a lawyer who represented workers in Chicago, Thomas Geoghegan. Only One Thing Can Save Us suggests we have to return to the early labor union courage to challenge the inequities that surround workers – a spirit that is now largely evaporated. We have abandoned many of the crucial goals of the Progressive years – the rights to minimum wage, a limit on hours, unemployment insurance, and other benefits such as health insurance, pensions, paid vacations – that were won only through collective bargaining. 

The decline in unionism has hurt all American workers. About one in ten American workers is now self-employed (the most rapidly growing group in this category are maids and housekeepers, carpenters, landscapers, and hairdressers). Part time workers make up 17% of the labor force.  Additionally, workers hired as Independent Contractors (like many at FedEx, for example) are not eligible for unemployment compensation, do not have the right to organize a union, are not guaranteed overtime pay or the minimum wage, and lack access to the employment protections afforded by the Civil Rights Act. Moreover, the employers do not have to contribute to Social Security. We see this abuse often by employers characterizing workers as Independent Contractors who should be employees for whom the workers’ compensation, unemployment compensation premiums and payroll taxes is paid.

Times have changed and certainly not for the better.

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What is Legal Aid and Who Does It Help?

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Legal Aid (LANC) is a non-profit law firm that provides free legal services in civil matters to low-income North Carolina residents. LANC has 24 offices throughout the state and provides services to residents in all 100 counties.

In order to be considered eligible for their services your household income must fall approximately 125% below federal poverty guidelines. According to the U.S. Department of Health and Human Services, the federal poverty level in 2015 for a family of four is $36,375. If the legal assistance needed involves a domestic violence case or if the client is a senior citizen then the poverty guidelines may not apply.

Examples of cases being handled by Legal Aid in N.C. are bankruptcy, student rights, unemployment compensation, Medicaid/Medicare and/or health insurance issues, foreclosures, housing discrimination, family violence, wage theft, and tax assistance.

To read more about their services offered go to: http://www.legalaidnc.org/

Click here to learn more about the HHS 2015 Poverty Guidelines.

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What is Workers’ Compensation?

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

This is the first installment of a series that will educate workers and their families about injury, disease and death resulting from work. The most basic question is: What is workers’ compensation?

Workers’ compensation is a legal system established in all 50 states, Washington, D.C., and for federal employees. Workers’ compensation laws began in the United States in 1912. The laws are different in each state, but the basics of the law are quite similar in all states.

If a worker is injured, contracts a disease or dies as a result of work activities, all of the medical and burial expenses are to be paid by the employer. The employer is also responsible to pay for lost wages, physical disability, and mental disability. Workers’ compensation does not pay for pain and suffering and is generally limited in duration of payments, although some states pay lifetime benefits.

The balance of this series will go through the basic steps of how to obtain workers’ compensation benefit. The goal is to inform, which helps victims of workplace injury, disease or death receive proper compensation.

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“Independent” Medical Examinations in Workers’ Compensation (Anything but “Independent”)

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

“I thought their doctor Independent Medical Report was the last word on my case. I didn’t know any better.” 

This statement from a client I just met sums up the experience of many injured workers unfamiliar with the workers’ compensation process in Wisconsin (and many other states).

An insurance company or self-insured employer may request an injured worker submit to reasonable examinations by a physician, chiropractor, psychologist, dentist, podiatrist, physicians assistant, or Advanced Practice Nurse Practitioner of its choice. Wis. Stat. §102.17(1)(b). This examination is usually referred to as an Independent Medical Examination or “IME” although “adverse medical examination” more accurately reflects the process.  An Independent Medical Examination may be requested by the insurance company or self-insured employer in order to determine whether the claim is compensable and the extent of the disability or the necessity and type of treatment. 

Since only about one in ten injured workers in Wisconsin is represented by an attorney, nine out of ten unrepresented workers are not aware that the insurance company’s “IME” is actually an adverse exam by a doctor hired by and paid by the insurance company to issue his report. Although IME examiners would deny they routinely render an opinion in favor of the insurance carrier, my forty years of experience suggests just that. For many years lawyers representing injured workers have been proposing the terminology “Adverse Medical Examination” apply to give represented and unrepresented workers a more fair assessment of the process. Many IMEs make hundreds of thousands of dollars annually performing these examinations. At one of these examinations, my client overheard the IME physician (who had rented a motel room) speaking to a prospective young doctor trying to convince that doctor to perform IMEs. “This is a great practice.” He said.  “All you have to do is review the medical records, meet with the worker for a few minutes, and deny the claim. And for that you can charge $1,500.” Although my client’s testimony to this effect was barred, the underlying accuracy of his testimony is undisputable.

Beware the “Independent” Medical Examination.

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“Experts Provide Tips to Become More Resilient”

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Original post titled “Bounce Back” in Time Magazine June 1, 2015 (subscription required).

For almost two decades, Dr. Stephen Southwick, professor of psychiatry at the Yale School of Medicine, and Dr. Dennis Chaney, Dean at Ichan School of Medicine, have been studying what makes some people “bounce back” faster than others after a traumatic or stressful experience. Their main conclusion is that having a set of learned skills, not a disposition or personality type, helps people thrive during and after hard times.

Some tips to help strengthen your resiliency are:

  1. develop a core of set beliefs that nothing can shake,
  2. try to find meaning in whatever stressful or traumatic thing has happened,
  3. try to maintain a positive outlook, and
  4. take cues from someone who is especially resilient.

Other helpful tips are to attempt to face your fears instead of running from them, and remember not to beat yourself up over or dwell on the past.

While all of these tips can help strengthen your ability to bounce back during a particularly tough time, finding the one that works for you is the key to being able to bend rather than break. Whether that is finding an exercise plan that works with your life style (exercise helps the development of new neurons which are damaged by stress according to Southwick) or facing your fears for the first time, there are several ways to strengthen your mind to be able to cope better with stressful events.

Read more about training the brain to be more resilient in the June 2015 issue of Time magazine.

 

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Take-home Asbestos Exposure Causes Mesothelioma Decades Later

Today’s post comes from guest author Brian M. Wright, from Causey Law Firm.

Today’s guest post was co-authored by my wife, Kaitlin Wright, Associate Attorney with Bergman Draper Ladenburg Hart.  – – BMW

Take-home asbestos exposure through laundering contaminated clothing causes mesothelioma decades later.

Thomas H. Hart, III

Kaitlin T. Wright

There are few things in life that seem as mundane and benign as the simple act of doing household chores like laundry. Yet this routine chore, done for her husband, was the source of Barbara Brandes’ unwitting exposure to asbestos that ultimately caused her death decades later.

From 1971 until 1975, Barbara Brandes’ husband Ray worked as an operator at the newly-constructed Atlantic Richfield Company (ARCO) Cherry Point oil refinery in Ferndale, Washington. Defendant Brand Insulations contracted to perform the insulation work during the construction of the ARCO refinery in 1971 and 1972. At a time when there could be little doubt that the world knew asbestos was dangerous and carcinogenic—after the enactment of the Occupational Safety and Health Act and the genesis of the environmental revolution it epitomized—Brand used asbestos insulation in its work at the Cherry Point refinery without warning workers or taking any precautions to reduce hazardous asbestos exposures generated by Brand’s insulation work.

During the early 1970s, Brand insulators worked on-site at the Cherry Point refinery fabricating and installing insulation in the areas where Ray Brandes worked as an operator. The dust generated by Brand’s insulation activities contaminated Ray’s clothing with asbestos fiber. He was also exposed to asbestos when he and other ARCO employees removed the insulation materials Brand had installed when performing repairs to equipment and pipe.

At the end of each shift Ray worked at the Cherry Point refinery, he would return home in the clothes he had worn to work. Barbara would launder that clothing several times a week. When she shook the clothes out before putting them into the washer, asbestos fiber was released and dispersed into the air, exposing Barbara to invisible, imperceptible carcinogenic dust.

More than 40 years after Ray left the ARCO refinery, Barbara was diagnosed in June of 2014 with malignant pleural mesothelioma, a terminal cancer of the lining of the lung. At the time of her diagnosis, Barbara was advised by her physicians that her life expectancy was likely one year. Barbara succumbed to her mesothelioma on April 19, 2015, the evening before closing arguments in her trial against Brand Insulations.

The case was tried over two weeks in April in King County Superior Court before Judge William Downing. Plaintiffs were represented by Tom Hart and Kaitlin Wright of Bergman Draper Ladenburg Hart, PLLC. Brand Insulations, Inc. was represented by David Shaw and Malika Johnson of Williams, Kastner & Gibbs, PLLC. Barbara was 80 years old at the time of trial. The jury found that Brand was negligent, and that Brand’s negligence was a proximate cause of Barbara’s mesothelioma. The verdict included non-economic damages in the amount of $3,500,000.

Discovery Hurdles

One of the challenges in this case was locating witnesses capable of testifying to Ray Brandes’ employment and exposures at the Cherry Point refinery. Due to health issues, Ray was unable to testify or to recall the names of his coworkers so that they could be contacted and interviewed. An ad placed in The Bellingham Herald led to identification of Ray’s former coworkers, some of whom remembered working with him at the refinery back in the 1970s. An ARCO employee who responded to the ad testified at trial, and was one of the most compelling witnesses in the case as he was able to provide direct testimony regarding the work practices and exposures Ray Brandes experienced while Brand was working in his vicinity.

Liability Issues

In pretrial motions practice, the trial court granted summary judgment dismissing Plaintiff’s common law product liability claim against Brand, leaving negligence as the sole theory of liability for trial. Plaintiffs presented evidence that Brand had won the insulation subcontract with the general contractor for construction of the Cherry Point facility by coming in with the lowest lump-sum bid for the job. Brand contracted to perform “installation of thermal insulation of columns, heat exchangers, vessels, reformers, tanks, and piping in the various refinery units” at Cherry Point, procuring and installing all insulation materials on equipment and on the miles of piping required to be insulated throughout the refinery.

Brand offered testimony from Michael McGinnis, the project engineer who coordinated the Cherry Point job on behalf of Brand. Mr. McGinnis testified that he was just 21 years old when he traveled from Chicago to Ferndale to oversee the job, and conceded that he was equipped only with a high school education and on-the-job experience gained from his work as an apprentice insulator for Brand. On cross-examination by Mr. Hart, Mr. McGinnis acknowledged that the Cherry Point project was Brand’s largest dollar-value job in the company’s history by orders of magnitude. Mr. Hart also elicited from Mr. McGinnis on cross-examination the concession that no one at Brand had reviewed then-applicable Washington regulations identifying asbestos as a hazardous dust and requiring industrial hygiene controls to reduce exposures, nor did Brand make any effort to comply with those regulations.

Plaintiffs offered testimony from workers at the Cherry Point refinery who explained that the work of Brand insulators in the various refinery units manipulating, cutting, sawing, and installing asbestos insulation products generated considerable dust. Additional witnesses explained that ARCO had initially requested an asbestos-free refinery, but the asbestos-free insulation failed, so Brand reverted to asbestos-containing insulation materials part-way through their work at Cherry Point. Under cross-examination by Mr. Hart, Mr. McGinnis conceded that Brand nonetheless never warned workers that they were using asbestos or took any measures to reduce asbestos exposures to bystanders like Ray Brandes.

Brand argued that it did not or could not have known of a risk of take-home asbestos exposure from the insulation work it performed at Cherry Point resulting in mesothelioma among family members of ARCO operators like Ray Brandes. Plaintiff’s expert pathologist Dr. Andrew Churg testified that Mrs. Brandes had malignant mesothelioma of the pleura or lining of the lung, and that her mesothelioma was caused by washing her husband’s asbestos-contaminated work clothing. Plaintiff’s expert industrial hygienist, John Templin, CIH, testified to the industrial hygiene measures and engineering controls available to Brand in the 1971-75 timeframe to protect against Ray and Barbara Brandes’ significant asbestos exposures resulting from Brand’s insulation work. Plaintiffs also called Dr. Barry Castleman who testified regarding the extensive body of scientific and medical literature published throughout the decades leading up to Barbara’s exposures in the early 1970s, which confirmed that asbestos exposure could cause fatal disease, including mesothelioma, and detailed methods of avoiding dangerous exposures to bystanders and family members of exposed workers. Brand called Francis Weir, Ph. D., and Joseph Holtshouser who testified regarding toxicology and industrial hygiene principles. Dr. Weir testified during cross-examination by Mr. Hart that other West Coast insulation contractors were researching the hazards of asbestos by the time Brand began its work at Cherry Point. Mr. Holtshouser testified to the dose reconstruction of Barbara’s asbestos exposures he had performed and opined that her exposures were minimal and insignificant.

Damages

Prior to her diagnosis, Barbara had undergone many rounds of chemotherapy in an attempt to slow the progression of her cancer and prolong her life. She was not a candidate for surgical resection of her tumor, nor was radiation therapy recommended. Barbara bravely pursued as aggressive a chemotherapy regimen as her body could tolerate and her oncologist would recommend. She had more than one bout with pneumonia and experienced many other side-effects from the chemotherapy. Plaintiffs elected to forego pursuit of economic damages related to Barbara’s medical treatment, and instead simply asked the jury to decide Barbara’s non-economic damages for her injuries, disability, inconvenience, loss of enjoyment of life, and pain and suffering.

Because Barbara passed away on the eve of closing arguments and submission of the case to the jury, Plaintiffs faced the prospect of quickly converting Barbara’s personal injury action to a survivorship action to allow the case to proceed. This was successfully accomplished and the jury was instructed as to the fact of Barbara’s passing, the change in the case caption, and that future non-economic damages were no longer to be considered in assessing Plaintiff’s damages. In closing, Ms. Wright and Mr. Hart brought together the story of Brand undercutting local insulation companies to win the Cherry Point contract, and Brand’s concomitant sacrifice of safety to maximize profit in the largest job it had ever undertaken. The jury was unanimous in its finding of Brand’s negligence.

Barbara is survived by her eight children and many grandchildren, great-grandchildren, and a great-great-grandchild. While Barbara’s deteriorating health prevented her from being present in the courtroom every day, her daughter Ramona Brandes attended trial and was able to observe her mother’s engrossment in the case even as she approached the end of her life. Ramona explained: “My tales of the trial in her last days were one of the things she sparked on, wanting to hear every last detail. She passed away the day before closing arguments, but I know her verdict is something she would have been so thrilled about because her win will help other families like ours fighting for their own justice.”

Thomas H. Hart, III, Partner – Bergman Draper Ladenburg Hart, PLLC

Tom Hart was a pioneer in asbestos litigation in the United States and continues work on behalf of injured shipyard workers, former Navy personnel, pipe fitters, carpenters and others ravaged by asbestos disease. Since 1980, Tom has successfully represented asbestos victims in over 40 States and Territories. Tom has won verdicts and settlements totaling hundreds of millions of dollars for his clients and their families. In 1986, Tom filed and served as Lead Counsel in the first Nation-wide Class Action Settlement for asbestos victims.

Kaitlin T. Wright, Associate – Bergman Draper Ladenburg Hart, PLLC

Kaitlin Wright joined Bergman Draper Ladenburg Hart as an associate in 2013 after graduating from Seattle University School of Law, magna cum laude. Prior to joining Bergman Draper Ladenburg Hart, Kaitlin externed with the Honorable Stephen J. Dwyer at the Washington Court of Appeals in Seattle. Kaitlin also worked during law school as a Rule 9 legal intern with the Snohomish County Prosecutor’s Office in Everett. In her two years at Bergman Draper Ladenburg Hart, Kaitlin has represented mesothelioma victims in litigation in Washington and Oregon and has tried cases to verdict in both states.

 

Photo credit: Tabsinthe / Hampton Patio / CC BY