Common Challenges to a Product Liability Case - Bailey Javins & Carter

Common Challenges in a Product Liability Case

You have legal rights if you or someone you love has been injured due to a defective product in West Virginia. It may seem intimidating to file a products liability case against a manufacturer or other corporation, but a skilled personal injury attorney can help you obtain the compensation you deserve to pay for medical care, lost time from work, and pain and suffering.

Since most organizations and their insurance companies have deep pockets, they often won’t offer a fair settlement right away. In fact, some may attempt to deny fault, blame someone else, or settle for a nuisance value to close a case quickly. If you can show negligence and bypass some common challenges, your attorney should be able to safeguard your rights and help you obtain a positive case outcome.

What You Need to Win a Product Liability Case

When you have a products liability claim in West Virginia, you will need to prove several things under the state’s tort system. First, you must have been injured and suffered losses. Second, you must show that the product was defective. Third, you will need to prove that the product caused your injury. Finally, you must establish that you were using the product as intended.

Common Challenges in a Products Liability Case

The elements needed to win a product liability case are the source of several challenges associated with these claims. Some of those challenges include:

  • Proving Losses. Almost getting hurt or having a close call isn’t sufficient to file and win a traditional products liability case. You will not be able to collect damages if you can’t show injury or economic losses.
  • Was the Product Defective? Accidents happen, and they don’t always involve defective products. If a power tool fell off a shelf and caused injury, the cause probably wasn’t a defective power tool but instead poor placement on the shelf. Proving that a product is defective can involve showing that there was a fault in the design or manufacturing of the product. Alternatively, a product may not have come with sufficient warning or labels to prevent an accident.
  • Use as Intended. A product manufacturer may allege that you weren’t using the product as it was meant to be used. Even though a screwdriver was never intended to be used to open paint cans, this is something that a manufacturer can anticipate as a common use.
  • Retaining Evidence. Depending on when and where the accident took place, you may face a challenge in holding onto the evidence. Having the defective product itself can be critical in the investigation of fault. Although products may be destroyed during the accident or disappear in the care of an employer, having this in your possession makes it easier to meet the burden of proof in court.
  • Identifying a Supplier. In some cases, the party that sells a product could be held liable for damages. Identifying the seller can become difficult if the sale wasn’t documented or was many years in the past. In the case of pharmaceuticals, a company with the greatest “market share” in an area could be held responsible for damages.
  • Punitive Damages. Proving punitive damages in product liability cases is particularly difficult thanks to restrictions under state law. A plaintiff must show that the manufacturer acted with actual malice toward the plaintiff or that they displayed a reckless or conscious disregard for the safety, welfare, and health of others.

What is a No-Injury Lawsuit?

There are now instances of many “no-injury” products liability claims related to defective products and recalls that don’t involve physical injury. Instead, plaintiffs are claiming economic losses related to reduced value of the product. In other words, the defect makes the product worth less.

The court’s treatment of these cases varies depending on the jurisdiction. Many courts are dismissing the lawsuits, particularly those brought as class actions. If you have suffered physical harm from a defective product and wish to pursue recovery, you should speak with a qualified products liability attorney.

Do You Have a Product Liability Case in West Virginia?

If you’ve been injured or lost a loved one resulting from a defective product, you may be entitled to compensation from the responsible party. At Bailey, Javins & Carter, LC, our products liability attorneys have experience helping victims and their families collect full and fair damages for losses related to dangerous products.

Even if there are challenges related to recovery, we will thoroughly investigate your claim, protect your legal rights, and advise you of your options. Contact our Charleston, Logan, or Summersville office now at 800-497-0234 or online to schedule a free consultation.

Accidents in Haulage Ways - Bailey Javins & Carter

Injuries Caused by Materials in Haulage Ways

Mine supplies and other materials left in the haulage ways of underground mines can be extremely hazardous.  When these materials are impacted or run over by mobile equipment they can enter the operator’s or occupant’s compartment causing serious and even fatal injuries.  Adequate examinations of haulage ways must be performed to prevent these types of hazardous conditions.

Sadly, there are numerous instances over the past decades where miners have been fatally injured from extraneous material left lying in roadways entering the equipment they were operating or riding in.  Despite this clearly known and recognized hazard, mine operators continue to inadequately staff mines in a sufficient manner to have these areas properly inspected and hazards removed.  Bailey, Javins & Carter, L.C., has represented several miners and their families in these same circumstances.

In one such case, Bailey Javins & Carter, L.C. represented the widow and children of a 34-year-old Utility Man who was struck and fatally injured by two wooden planks that entered the operator’s deck of his underground mine scoop.  This incident resulted from failure to follow to comply with mine safety regulations requiring the mine operator to maintain haulage ways free of extraneous material.  In addition to holding the mine operator responsible for the miner’s death, Bailey Javins & Carter, L.C., also pursued an action against the manufacturer of the underground mine scoop for failing to have the operator’s deck properly protected from these known hazards. Suit was filed and following extensive discovery in the matter, the firm recovered a substantial settlement ensuring the financial future for the widow and her children.

If you or a loved one as been injured or killed as a result of extraneous material not being properly removed from haulage ways or workspaces, contact Bailey Javins & Carter at (304) 345-0346 or through our website contact form. The experienced mine accident injury attorneys at Bailey Javins & Carter will work diligently to make sure you receive the damages you deserve.

What is Mesothelioma?

What is Mesothelioma?

Mesothelioma is a type of serious cancer that develops in the thin layer of tissue covering a majority of your body’s internal organs. Mesothelioma is an aggressive type of cancer, with approximately 3,000 new cases being diagnosed each year.

This is a cancer that disrupts the lives of families and one that can have a catastrophic outcome. The life expectancy for the average patient with a Mesothelioma diagnosis is 6-12 months, and just one-third of patients live longer than a year.

Because of the origins of the disease, a person who receives this diagnosis may have legal rights. Likewise, family members may be able to make a claim for compensation in the event of wrongful death.

What Are the Different Types of Mesothelioma?

Mesothelioma is primarily categorized based on where it appears in the body. The most common type is Pleural Mesothelioma that occurs in the lungs, which is found in roughly 75% of cases. Peritoneal Mesothelioma occurs in about 10% of cases and is found in the abdomen. Pericardial Mesothelioma is found in just 1% of cases and is in the heart. Testicular Mesothelioma is a rare form of the disease that occurs in the testicular region of the body.

Common Causes of Mesothelioma

The only proven cause of Mesothelioma to date is exposure to asbestos. These fibers, which are now a banned substance, can be inhaled or swallowed when they are disturbed. Once taken internally, the asbestos fibers will become lodged in the lungs, abdomen, or heart and may eventually mutate and lead to the growth of cancerous cells.

Most asbestos exposure occurs on the job although some can happen when a person lives in an older residence that has the substance. Asbestos used to be a common material used in paint, insulation, electrical wiring, roofing and flooring, piping, and automobile brake pads. A person who was exposed to asbestos at work could also bring loose fibers home with them on clothing, which could then be inhaled by family members.

Mesothelioma Symptoms and Treatment

Symptoms of Mesothelioma may not appear until 10-50 years after exposure to asbestos. Tragically, a person may not feel sick until the disease has become advanced. A victim may ignore early symptoms because they resemble other common ailments. Still others are misdiagnosed and could miss out on life-prolonging treatment.

Common symptoms of Pleural Mesothelioma include painful coughing, chest pain, shortness of breath, weight loss, and unexplained lumps of tissue on the chest. Common symptoms of Peritoneal Mesothelioma include abdominal pain and swelling, weight loss, and unexplained lumps of tissue on the abdomen.

While there is no cure for Mesothelioma, there are treatments that can slow the spread of the disease, ease suffering, and potentially prolong life. These treatments might include surgery, radiation and chemotherapy, and other experimental procedures.

Types of Legal Mesothelioma Claims

In most cases of asbestos exposure, people were either unknowingly exposed to a dangerous material or not given a choice by a careless or reckless employer. While health and well-being may be a top priority after hearing a Mesothelioma diagnosis, this treatment comes at a significant cost, and you may also be facing other losses.

There are two main types of Mesothelioma lawsuits that can help victims and their families collect fair compensation for losses – a personal injury or wrongful death lawsuit. Which type of lawsuit you choose depends on whether you are filing as the Mesothelioma patient or a surviving family member.

A personal injury suit can be filed against any company responsible for asbestos exposure following a Mesothelioma diagnosis. This could allow recovery costs related to medical care, lost wages, travel, and pain and suffering. A wrongful death suit is filed by surviving family members of a Mesothelioma patient. It allows for recovery of the same damages as well as a claim for funeral expenses.

Speak with an Experienced West Virginia Mesothelioma Attorney

If you or someone you love has received a Mesothelioma diagnosis, time is a factor in pursuing damages. West Virginia has placed a statute of limitations on asbestos legal claims of two years from the date of diagnosis.

The experienced and aggressive personal injury attorneys at Bailey, Javins & Carter, LC have experience helping injured victims and their families obtain justice from asbestos manufacturers and negligent employers. Contact us now at 800-497-0234 or online to schedule a free initial consultation.

AST Explosion - Injury Law Firm - Bailey Javins & Carter

Fatal Doddridge County Explosion Highlights the Dangers of Aboveground Storage Tanks

On Friday, May 25, an explosion in Doddridge County, WV claimed the life of one worker and severely injured three others. The four men were disassembling three aboveground storage tanks (ASTs) near West Union. The ASTs are believed to be owned by Hydrocarbon Well Services, an oil and gas company based in Buckhannon that has serviced oil and gas wells in the Appalachian region for over 30 years.

After the explosion, the four men were flown to Mercy Hospital in Pittsburgh to treat their injuries. Larry Battea, a 51-year-old employee of Hydrocarbon, later died of thermal and inhalation injuries. The other three men are employees of Waste Management. Their condition is currently unknown.

The cause of the fatal explosion is still under investigation by the federal Occupational Safety and Health Administration (OSHA). The West Virginia Department of Environmental Protection (WVDEP) is working closely with OSHA and local emergency officials to uncover additional details about the incident.

Initial reports indicate that the three aboveground storage tanks were taken to a site on Whitehair Lane just south of U.S. Highway 50 to be disassembled. Two of the three tanks had already been decommissioned for several years, while the third one was part of an active oil and gas well.

It is believed that the explosion occurred when the active tank was being disassembled in order to be replaced. During the process, the workers were using a torch to cut up the tank, so it could be used for scrap. The torch apparently caused the tank to ignite, resulting in the explosion.

In the aftermath of the explosion, it appears that some oil spilled into Cabin Run, a small stream located near the explosion site. The amount of oil that was spilled is currently unknown, and steps have been taken to prevent the oil from spreading beyond the site.

Enviroclean was hired immediately after the accident to conduct environmental remediation at the scene. Absorbent booms were placed in the stream at the point where the initial spill occurred, and additional booms were placed roughly 700 feet downstream. In addition, they installed an overflow dam approximately 100 feet downstream of the spill.

Petroleum Mishaps from Aboveground Storage Tanks

Unfortunately, the recent Doddridge County explosion is not an isolated incident. The Steel Tank Institute published an extensive list of fuel tank-related accidents that have occurred in the past decade. These accidents have resulted in countless workplace injuries and wrongful deaths, and oil and gas companies have paid millions in fines and lawsuit settlements.

The impact on workers and their families from these accidents is impossible to quantify. When a loved one is killed or suffers a debilitating injury that robs them of their livelihood, it exacts an enormous physical, emotional, and financial toll on everyone involved. But despite the obvious dangers, energy companies are not doing nearly enough to protect their employees and subcontractors.

The environmental impact of spills from the aboveground tanks is another major concern. The lack of adequate spill-prevention measures has caused widespread damage to fish, wildlife, and public drinking water systems. The Environmental Protection Agency’s (EPA) Spill Prevention, Control, and Countermeasure (SPCC) Regulation sets forth the requirements for preventing, preparing for, and responding to oil spills from aboveground tanks and other facilities. In many cases, however, energy companies have cut corners and failed to properly adhere to these regulations.

Hazards Caused by Aboveground Storage Tanks

Use of aboveground storage tanks by energy companies has become more widespread in recent years. Oil and gas companies prefer ASTs because they are less costly to install and easier to monitor than tanks located below ground. But as the Doddridge County explosion and countless similar incidents show, the hazards associated with ASTs can be extremely harmful to both workers and the environment.

Accidents and spills from aboveground storage tanks happen for a number of reasons. Some of the most common include:

  • Vandalism: If the ASTs are not properly secured, vandals can get in and damage the tanks, in some cases resulting in leaks, fires, and other hazards. Companies must take appropriate measures to ensure that their tanks are protected from outside intruders.
  • Incidental Leakage: Over time, ASTs can become corroded and attached pipes can start to disconnect. This can cause hazardous substances to leak slowly out of the tank, exposing them to workers and the environment. To prevent this from happening, it is important to perform frequent inspections and to follow proper cleaning procedures.
  • Lack of Proper Protection: Those who work on ASTs need to wear the proper safety gear; e.g., masks, respirators, safety goggles, gloves, body clothing, etc. When companies do not ensure that their workers are wearing the appropriate gear, it can be potentially hazardous to their health and safety.
  • Poor Work Environment: Sloppy and careless procedures set forth by AST owners, putting workers in dangerous work environments. AST owners routinely cut corners on safety measures in order to maintain high production rates, valuing speed over worker safety. Employers also often ignore Federal and State AST safety regulations because these restrictions impede productivity. As a result of these reckless actions taken by employers, workers often suffer serious injuries or are killed. An example of this unsafe behavior is performing “hot” work on an active AST (such as using a torch to disassemble an active tank) could result in an explosion and potentially lead to serious injury.

Safety First

The use of aboveground storage tanks is a reality in the oil and gas industry. While this practice may be advantageous for energy companies, the fatal explosion that just occurred in Doddridge County underscores the need for these companies to do more to protect their workers. Hopefully, this horrible tragedy will bring more attention to this issue and prompt energy companies to redouble their efforts to follow requirements and ensure that their employees and subcontractors have a safe and secure work environment.

Contact A West Virginia Personal Injury Firm

If you or someone close to you was injured or killed in a workplace accident in West Virginia, it is important to have a strong legal advocate by your side. Gas, oil and storage companies and their insurers have multiple high-priced attorneys on retainer whose job it is to minimize their liability in these types of cases. Before discussing the case with your employer and/or the insurer of the responsible party, contact our office at (304) 345-0346 for a free, no-obligation consultation. The experienced personal injury attorneys at Bailey Javins & Carter are ready to protect your rights. We have recovered millions of dollars in damages for workers and their families who have been injured or killed as a result of unsafe working environments.