Wednesday, February 21, 2018

CA man awarded $5M in disability discrimination lawsuit

disability actA former employee of a cellular company won $5 million in a disability discrimination lawsuit against his former employer in California. Stephen Colucci was a T-Mobile retail store manager for seven years.  In July 2014, Colucci’s new regional manager told him that he was being transferred to another work location – a T-Mobile kiosk located inside the Ontario Mills Mall.  Colucci suffers from agoraphobia, PTSD, and panic disorder based on witnessing a stabbing incident when he was a teenager.  Colucci disclosed his disability to his new supervisor, and to Human Resources and offered to transfer to a different location or to remain in the store he was managing.  He was not transferred to the kiosk but he was thereafter verbally harassed and mocked by the new supervisor.  Colucci lodged a harassment complaint to T-Mobile’s integrity line hotline and confronted his new supervisor about the harassment.  Within hours of learning about Colucci’s complaint, the new supervisor terminated his employment, allegedly based on a violation of the company’s conflict of interest policy.  Colucci established that the stated reason was pretextual and that the real reason he was terminated was based on retaliatory motives. T-Mobile retaliated against Colucci by terminating him within hours of making complaints about his new supervisor.  T-Mobile’s Human Resources Department did not investigate the complaints and supported the new supervisor’s decision to terminate Colucci. T-Mobile’s internal paperwork indicated that “litigation was probable” at the time of termination.   In addition, T-Mobile’s loss prevention team discussed the termination decision on a recorded conference call and a loss prevention manager reported on the call that Colucci was terminated for making complaints. National Trial Lawyers member Pat Barrera of Barrera and Associates in El Segundo represented Colucci. The Superior Court awarded Colucci $5,020,042.00 in damages in October 2017.  The court also denied T-Mobile’s post-trial motions for a new trial and for judgment notwithstanding the verdict in December 2017.  Plaintiff’s motion for fees and costs is pending.

 


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Tuesday, February 20, 2018

NTL member files 3rd opioid lawsuit

Beasley Allen has filed the third lawsuit against opioid manufacturers and distributors on behalf of a city or county government. The complaint, filed on behalf of Barbour County, Alabama, alleges the marketing of these drugs contributed to the creation of the opioid epidemic, a public health and safety crisis. Responding to the opioid crisis has required Barbour County to sustain economic damages and to continue to bear a significant financial burden. In December, Beasley Allen filed two similar lawsuits on behalf of the City of Greenville, Alabama and Houston County, Alabama. Barbour County is represented by Beasley Allen lawyers Rhon E. Jones, who is head of the firm’s Toxic Torts Section and a member of The National Trial Lawyers, Rick Stratton, Will Sutton and Ryan Kral, along with Eufaula lawyer Walter B. Calton.

“Decisions made in the pharmaceutical companies’ board rooms regarding prescription opiates have devastated so many lives and communities,” Jones said. “Choosing to turn a blind eye to suspicious orders was simply a way to quench their insatiable greed. Such callous disregard for human life and dignity, not to mention the enormous and needless cost to taxpayers, must be met with equally severe and deliberate consequences.”

Economic damages resulting from the opioid epidemic include costs for providing medical care, therapeutic care and treatments for patients suffering from opioid-related addiction or disease, including overdoses and deaths; costs for providing counseling and rehabilitation services; costs for treating infants born with opioid-related medical conditions; public safety and law enforcement expenses; and care for children whose parents suffer from opioid-related disability or incapacitation.

“Barbour county residents, like many in communities across our state and country, have watched friends and family suffer incredible pain because of opioid addiction and taxpayers have been forced to clean up the mess caused by negligent and greedy pharmaceutical companies,” said Calton. “We seek to recover the profits drug companies devoured after knowingly pedaling the highly addictive prescription drugs to our unsuspecting residents.”

Defendants include Purdue Pharma L.P.; Purdue Pharma, Inc.; The Purdue Frederick Company, Inc.; Teva Pharmaceutical Industries, LTD.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceutical Inc. n/k/a Janssen Pharmaceuticals, Inc.; Noramco, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals, Inc.; Allergan PLC f/k/a Actavis PLS; Watson Pharmaceuticals, Inc. n/k/a Actavis, Inc.; Watson Laboratories, Inc.; Actavis, LLC; Actavis Pharm a, Inc. f/k/a Watson Pharma, Inc.; Mallinckrodt plc; Mallinckrodt LLC; McKesson Corporation; Cardinal Health, Inc.; and AmerisourceBergen Drug Corporation.

The complaint is filed in the U.S. District Court for the Middle District of Alabama.


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Friday, February 16, 2018

Webinar: How to Get 7 Figure Injury Cases without Spending a Dollar

John Fisher is a medical malpractice attorney for plaintiffs in New York.

John Fisher will show you how to build a seven-figure injury law practice on a shoe-string budget.

Webinar Title: The Secrets of Lawyer-to-Lawyer Referral Based Marketing
When: Wednesday, 21 February 2018, at 2:00 PM Eastern
Hosts: John Fisher and Larry Bodine

Click here to register for this webinar

Attendance is free, but space is limited.

Where do you get your best cases? It’s no secret, you get your best cases from lawyer referrals. Then, why do lawyers have no systems for lawyer referrals?

This is really important. 98% of lawyers have no system for lawyer referrals. I’m going to show members of The National Trial Lawyers how to do it.

This system for lawyer referrals costs (almost) nothing and I’m going to show you everything. No secrets will be held back!

  • “What would it be like if you didn’t have to spend another dollar on mass marketing?”
  • “What would it be like if your overhead was paid…2 years ahead of time?”
  • “What would it be like if your clients never complain and think you’re an absolute rock star?”

What if you had a system that would (almost) guarantee a steady stream of high-quality referrals from lawyers…while reducing your marketing budget?

What if you had the freedom to pick only the best cases, while leaving the crappy cases for others?

How would you like to be a superstar among lawyers without spending another dollar on marketing?

John Fisher will show you how to build a seven-figure injury law practice on a shoe-string budget. If you are not getting the cases you want, you need to attend this webinar.


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The “In-Use” Requirement Under the Locomotive Inspection Act

law news, legal news, verdict settlementBy R. Seth Crompton  [1] and Patrick R. Dowd [2]

The Federal Employers’ Act (“FELA”) supplants state tort and workers’ compensation schemes for railway workers who are injured on the job and provides their only right to recover damages for workplace injuries.  N.Y. Cent. R.R. Co. v. Winfield, 244 US 147, 150-52 (1917).

A plaintiff suing under FELA must prove that the railroad either was negligent or violated one of two safety statutes, the Locomotive Inspection Act (“LIA”)[3] or the Safety Appliance Act (“SAA”), 49 USC §§ 20301-20306.  Id. at 189.  The purpose of FELA is “to provide liberal recovery for injured workers.”  Kernan v. Am. Dredging Co., 355 US 426, 432 (1958). The LIA and SAA each set forth specific safety standards that apply to different aspects of railroad operations.  All three statutes are “to be liberally construed in the light of [their] prime purpose, the protection of employees and others by requiring the use of safe equipment.”  Lilly v. Grand Trunk W. R.R. Co., 317 US 481, 486 (1943).

A finding that the railroad violated the LIA can drastically impact an injured employee’s lawsuit, including partial summary judgment or a directed verdict in favor of the employee.  One of, if not the most, contentious and hotly contested areas of litigation within the LIA is the “in-use” requirement.  The railroad defendants often obfuscate the law and facts in an effort to impermissibly narrow the scope of the meaning of “in-use” in order to avoid liability under the LIA.

  1. The Locomotive Inspection Act

The LIA provides that a railroad may use or allow to be used a locomotive “only when the locomotive…and its parts and appurtenances – (1) are in proper condition and safe to operate without unnecessary danger of personal injury…”  49 U.S.C. §20701.    A railroad worker who is able to show a violation of the LIA, or other railroad safety statute or regulation, has shown FELA negligence as a matter of law for which the railroad is strictly liable.   45 U.S.C. §§53–54a; CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2643 n.12 (2011); Urie v. Thompson, 337 U.S. 163 (1949). In such cases, the railroad cannot assert the plaintiff’s contributory negligence as a defense and the plaintiff need not prove notice of the hazardous condition or the railroad’s failure to exercise ordinary care. 45 U.S.C. §§53–54a; Wright v. Ark. & Mo. R.R., 574 F.3d 612, 620 (8th Cir. 2009); O’Donnell v. Elgin, Joliet & E. Ry., 338 U.S. 384, 393–94 (1949).  To avoid this strict liability, railroad defendants began challenging whether the locomotive at issue was “in use” at the time of the injury which is necessary for the LIA to apply.

  1. In-use under the Locomotive Inspection Act

The purpose of the “in use” requirement is to effect Congress’ intent to “exclude those injuries directly resulting from the inspection, repair, or servicing of railroad equipment located at a maintenance facility.” Steer v. Burlington N., Inc., 720 F.2d 975, 976–77 (8th Cir. 1983)(quoting Angell v. Chesapeake & Ohio Ry., 618 F.2d 260, 262 (4th Cir. 1980)). “The ‘in use’ limitation gives the railroad an opportunity to remedy hazardous conditions before strict liability attaches to claims made by injured workers.” Wright, 574 F.3d at 620.

  1. United States Supreme Court Precedent

The seminal case for starting the analysis is Brady v. Terminal R.R. Ass’n, 303 U.S. 10 (1938).  Consistent with the remedial purpose of the statutes that protect injured railroad workers, the Supreme Court has explained that a locomotive or other vehicle is “in use” when it has “not been withdrawn from use.”  Id. at 13.  That includes vehicles moving from one city to another, as well as motionless vehicles that are on yard tracks undergoing inspection.  Id.  Liability attaches “[e]ven where the required equipment is known to have become defective and the car is being hauled to the nearest available point for repairs….”  Id. at 15-16.  A vehicle is not “in use” when it “has reached a place of repair.”  Id. (emphasis added).

To obfuscate application of this seemingly straightforward rule, railroad defendants have spent decades urging courts to employ a totality of the circumstances or multi-factor approach in deciding whether the locomotive was in-use.  Accordingly, the practitioner should plan to also make an argument under the totality of the circumstances or multi-factor approach as most courts now tend to use this method in determining whether the locomotive was in-use, which is a question of law for the court to decide.  See, e.g., Huntsinger v. BNSF Railway Co., 286 Or.App. 84, 90, Fn. 8 (Or. Ct. App. 2017).  

  1. The Totality of the Circumstances or Multi-Factor Approach

While there is no uniform set of factors or circumstances, the following cases will be helpful in winning the argument regarding in-use under the LIA:

  • Angell v. The Chesapeake and Ohio Railroad Company, 618 F.2d 260, 262 (4th Cir. 1980) (locomotive being moved “to another track … to later pull a train also indicates that the engine was not in need of further repair or servicing” and was “in use”);

 

  • Deans v. CSX Transp., Inc., 152 F.3d 326, 329 (4th Cir. 1988) (locomotive being prepared for outbound trip was “in use” even though it had not undergone final pre-departure inspection);

 

  • Rivera v. Union Pac. R., 868 F Supp. 294, 301 (D. Colo. 1994) (“The [LIA] is not rendered inapplicable simply because a worker is injured while performing an inspection of a locomotive.”);

 

  • McGrath v. CONRAIL, 136 F.3d 838, 842 (1st Cir. 1998) (locomotive at issue was idling on a yard track used to store, inspect, classify, and switch locomotives and railroad cars. Plaintiff, the engineer, allegedly sustained an injury after boarding the locomotive and walking toward the daily inspection card, which he was required to consult prior to moving the locomotive.  Applying the two determinative factors, the First Circuit held that the injury was actionable under the LIA since plaintiff sustained the injury in the course of performing duties “‘incidental to [the] task of operating the train as an engineer,’” rather than in the course of maintenance work, and the locomotive’s location-the yard track-was not a place of repair.);

 

  • Bardin v. Consolidated Rail Corporation, 270 A.D. 2d 696, 698 (S.C. App. Div. N.Y. 2000) (finding that a locomotive was in use, when the conductor, a member of the transportation crew with no maintenance or repair duties, was injured while disengaging a brake before departure. The court noted that “Plaintiff was not performing any maintenance function but was merely making a final visual inspection to see that nothing was out of the ordinary and that the cars’ hand brakes had been released.”);

 

  • Wagner v. Union Pac. R.R., 642 N.W.2d 821, 837–38 (Neb.App. 2002) (locomotive was “in use” when employee was injured in the process of putting a locomotive on a train being readied for departure from the yard);

 

  • Horibin v. Providence & Worcester R. Co., 352 F.Supp. 2d 116, 121 (D. Mass 2005) (finding that a locomotive was in use when an engineer, who was a member of the transportation crew with no maintenance duties or repair duties, was injured setting a handbrake following its arrival at the engine house, a part of his required duties and which must be done before it is taken out of “use”);

 

  • Bearfield v. Soo Line Railroad Company, 2008 WL 268587 *4 (D. N.D. Jan. 29, 2008) (Citing to McGrath, the court found that plaintiff’s inspection duties were “incidental to [the] task of operating the train as its engineer.” The court also found that even though the crew had not fully assembled the train, the “in use” determination focuses on the locomotive, as opposed to the entire train and the locomotive was “in use” at the time Bearfield suffered his injury.);

 

  • Balough v. Ne. Ill. Reg’l Commuter R.R. Corp., 409 Ill.App.3d 750,765–66 (Ill.App. 2011) (that the train was not assembled at the time and no crew was assigned when plaintiff was injured did not preclude a finding the locomotive was “in use”);

 

  • Babin v. New Orleans Pub. Belt R.R. Comm’n, No CIV A 12-1868, 2013 WL 1856067 at *5 (E.D. La. May 1, 2013) (reasoning that “it is irrelevant that the train was still being inspected and had not yet been released,” and “[w]hat is relevant is that the locomotive had already been inspected and okayed a[t] the time of the plaintiff’s accident”) (emphasis added);

 

  • Edwards v. CSX Transp. Inc., 821 F.3d 758, 762 (6th Cir. 2016) (“[A] locomotive is ‘in use’ almost any time it is not stopped for repair.”);

 

  • Huntsinger v. BNSF Railway Co., 286 Or.App. 84, 94-95 (Or. Ct. App. 2017) (finding that the locomotive was in use even though an air pressure monitor was malfunctioning, the train was blue-flagged (which signals that workers are in, under or around a train), the train did not have a scheduled departure time, and the transportation crew was not on site. That the locomotive was coupled to a train being readied for departure indicates the servicing, repair and maintenance of the locomotive were completed.).

For their part, Defendants tend to repeatedly rely on one case in particular:  Trinidad v. So. Pac. Trans. Co. 949 F.2d 187 (5th Cir. 1991). However, Trinidad is an outlier decision which adopted a bright line test that requires a train to be fully assembled, through all inspections, and released for travel.  Many courts have refused to adopt this approach as overly restrictive and contrary to the liberal construction that courts must give to the FELA and related safety statutes.  See, e.g., Wright, 574 F.3d at 623–24; Babin, 2013 WL 1856067 at *7-8 (distinguishing Trinidad which involved whether a train is in use under the Safety Appliance Act from the issue of whether a locomotive is in use under the LIA) (emphasis in original); See also, Hinkle v. Norfolk S. Ry., 2006 WL 3783521 at *3-4 (S.D.Ohio Dec. 21, 2006); Haworth v. Burlington Northern and Santa Fe Ry. Co., 281 F.Supp.2d 1207, 1211-12 (E.D. Wash. 2003); Huntsinger, 286 Or.App. 84 at 92.

  • Conclusion

The defendant railroad will obfuscate and often misrepresent the law and facts in an effort to avoid liability under the LIA.  An understanding of the case law is necessary to develop the pertinent facts you need so as to maximize the recovery for the injured railroad worker.

 

[1] Mr. Crompton grew up in a family of union railroad workers, which gives him a unique and specialized understanding and knowledge of the dangers and difficulties faced by railroad and maritime workers.  He has represented injured railroad and maritime workers across the United States, and has obtained millions of dollars in verdicts and settlements on their behalf.  In addition to specializing in FELA and Jones Act litigation, his practice also encompasses other high stakes litigation including class action, pharmaceutical drug and device, complex commercial litigation, environmental contamination, product liability, trucking accidents, and a variety of other catastrophic injuries.  He has been appointed by courts across the country to a variety of leadership positions and has obtained multi-million dollar awards, as well as resolutions of large, national complex litigations, He has also been recognized by his peers and the judiciary as a distinguished trial lawyer, including receiving the Martindale-Hubbell preeminent AV rating (5.0/5.0), the National Trial Lawyers Top 100 Trial Lawyer, inclusion in the Global Directory of Who’s Who, and designation in Super Lawyers.

[2] Mr. Dowd is a third-generation attorney who grew up in a family of lawyers and judges in the St. Louis area.  He has spent years successfully representing injured railroad and maritime workers across the United States.  In addition to FELA and Jones Act litigation, his practice includes pharmaceutical and drug devices, product liability, trucking accidents, medical malpractice, chemical and toxic exposures, and complex business and commercial litigation.

[3] Until 1994, the LIA was known as the Boiler Inspection Act.  The names was changed when the statute was recodified.  Tootle v. CSX Transp., Inc., 746 F Supp. 2d 1333, 1340 (S.D. Ga. 2010).


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Thursday, February 15, 2018

Are You Really Paying Attention to Your Business? Working in it or On it?

Harlan Schillinger is a Legal Marketing Expert in Paradise Valley, Arizona.

By Harlan Schillinger.

You might be working, but are you really working on what matters to the growth and positioning of your law firm? Probably not.

Most law practices, both large and small, around the country put way too much emphasis on reacting—to the phone calls and leads that come in the door—rather than building a forward-looking strategy for the future of the firm. After all, You have so much coming at you.

This is no way to become the innovative, thought-leading attorney you once envisioned for yourself. You must turn reactivity on its head—even when you’re making more money than you can count. Why? Because one day that random revenue stream might dry up before your eyes.

We see it all the time: Even when practices throw money at marketing, lawyers are far too quick to call vendors out when the advertising program, for example, fails. But that usually happens when attorneys don’t get vested in the future of the practice. Why? Because it takes time, research, relationships—and guts.

But the truth is this is low-hanging fruit. The best-positioned law firms in the country are taking action rather than making excuses. And the reality is every law firm can start marketing smarter right now.

Relationships are a requirement.

If you thought you could market without caring and involvement, sorry that game is up. When you invest in your people you are building relationships that pay off. But it’s not just about leading and rewarding your own staff—the people and paralegals who answer your phones, execute on marketing tactics and feed you leads. This also applies to your marketing vendors—the experts and firms who know digital marketing, TV advertising, and media placement. Believe us, they want you to be a partner in the process. They want your involvement. They want your communication. They want your partnership in a team effort.

When you hire someone—anyone—you can’t expect that person to do a good job just because you will it that way. You have to get involved in understanding their craft as much as they will rely on you to better understand the legal craft.

When was the last time you sat down with your employees and marketing agency to talk about intake? Do you understand how to work with your digital agency toward a common goal for moving the business forward? You can’t expect people to understand what you want and bank on stellar results unless you put the time into building relationships upfront and ongoing. Managing expectations is important. It’s just that simple.

Messaging matters more than you realize.

One of the biggest missed opportunities in legal marketing is messaging. Lawyers are often so focused on the end result—the calls come in the door—that they forget just whom they should be talking to and what those people really want to hear.

  • Are you separating yourself from your competitors?
  • What is the 2% difference between your firm and your competitor’s firms?

Nailing the right message to represent your practice, whether you’re communicating with audiences online or through a TV commercial, is critical. And, again, the success of this message is measured by your involvement in the process.

Only you know the history and nuances of your law practice. If you’re not willing to share these stories with your advertising team, there’s a good chance you will never reach the right target market. Or generate the public perception you want. Or attract the high-quality leads and cases your business needs to be sustainable.

Metrics count as an investment in the future.

By nature, attorneys like to count. They count clients, outcomes, cash, and accolades every day. But do they invest in understanding the marketing metrics that really count? Most likely not. In fact, ask yourself when was the last time you really looked at all of your matrix. Do you even have solid matrix tools in place to look at?

You might expect your marketing partners to keep track and alert you of how your website is performing, the number of clicks and likes your social media campaign gets, and how many people are calling the office after seeing a TV ad. But this is actually part of your work too if you are truly invested in your practice as a business and not just a job.

Learning the basics of Google Analytics, running and reviewing digital and advertising performance reports, and holding vendors accountable based on real-time data—these are the investments you must make to feel confident in future marketing decisions.

So, take more responsibility for your business. Don’t expect the people around you to read your mind. Communicate from the top down. Look for an opportunity and cash in on what you’ve been missing. It might require building some better relationships, making your messages matter and looking at the facts and figures. But you’re already pretty good at lots of those things. It’s just time to apply those tactics to your marketing.

The reality is, you have to pay attention, be accountable and have tools and software in place to track everything. Communicate this to your staff and to your Vendor Partners. You will get a much better result. After all, “What You Don’t Know, You Don’t Know”!
Harlan Schillinger is a Legal Marketing Expert in Paradise Valley, Arizona. He can be reached at HarlanSchillinger@gmail.com and 303-817-7313. He has four decades of experience in legal advertising with a passion for legal marketing, intake, and conversion.

 


Harlan Schillinger has worked with more than 120 law firms in over 98 markets throughout North America. Currently, he is consulting privately only with lawyers who share his vision of increasing business, being accountable and obtaining high-value cases. He takes, perhaps, the most unique and accountable approach to Intake and conversion.

Currently, Harlan is working with and in charge of business development Glen Lerner Injury Attorneys. With offices nationally, Glen has one of the largest and most successful plaintiff’s practices in America. The firm already takes on well over 1,500 cases a month, and Harlan is positioning the firm for even more growth.


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A conversation with Maureen Sherry, former managing director at Bear Stearns and best-selling author


A conversation with Maureen Sherry, former managing director at Bear Stearns and best-selling author posted first on https://www.youtube.com/feeds/videos.xml?user=HarvardLawSchool

Wednesday, February 14, 2018

NTL president says Remington bankruptcy could put settlement at risk

Gun maker Remington is expected to file for bankruptcy, a move that threatens a landmark class action settlement, according to The National Trial Lawyers President Mark Lanier. CNBC quotes Lanier as saying “If they file for bankruptcy, it will stay all proceedings.” Lanier was a lead attorney for plaintiffs who said Remington’s Model 700 and several similar models could fire without the trigger being pulled because of a design defect. Lanier also told CNBC that he’s concerned that none of the weapons will be retrofitted with a fix.


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