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.

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.

Who is responsible for the opioid crisis? - Bailey Javins & Carter

Who is Responsible for the Opioid Epidemic?

The opioid crisis in America has reached epic proportions. Opioid-related overdoses have claimed the lives of rock stars Prince and Tom Petty, and this epidemic is sweeping across the nation. Opioids are especially dangerous on college campuses, where they are often mixed with marijuana and other drugs. Former Fox News host Eric Bolling lost his son last year to an opioid overdose, and he said he “never saw any signs” that his son had a drug problem.

The Cost of the Opioid Epidemic

The National Institute of Health reports that more than 115 Americans die from opioid overdoses every single day. That translates into almost 42,000 opioid-related deaths each year and accounts for roughly two-thirds of all drug overdose deaths. The Centers for Disease Control and Prevention estimates that opioid-related deaths cost the U.S. economy $78.5 billion each year. This includes the cost of healthcare, treatment for addictions, lost productivity, and involvement with the criminal justice system.

How bad is the opioid crisis? The New York Times reports that drug overdoses from prescription drugs are now the leading cause of death for Americans under the age of 50, and the second leading cause of death for Americans ages 18-30. To put this in perspective, there are more deaths linked to overdoses of opioids and similar substances than from guns or auto accidents, and the mortality rates are rising rapidly each year.

The death toll from overdoses of opioids and other controlled substances is just the most visible sign of the problem we are facing. According to the National Survey on Drug Use and Health, nearly 100 million Americans took prescription painkillers in 2015, and 12 million took these drugs without a prescription. Millions of Americans have a problem with opioids, and in states like West Virginia, one out of five babies are born with a narcotics addiction and suffer from painful withdrawals during the first few weeks out of the womb.

It is difficult to quantify the overall cost of the opioid crisis, because its tentacles reach into so many areas of our society. Communities have been devasted by the loss of loved ones, and those who are addicted find it difficult to keep a job and cope with life. Another problem is that, as authorities have cracked down on prescription opioid abuse, many addicts have become more dependent on heroin and other illegal drugs. This has swelled prison populations, with a large percentage of inmates having to be placed in detox or withdrawal programs.

How Did We Get Here?

According to the Centers for Disease Control and Prevention, there were more than 200,000 opioid-related deaths between 1999 and 2016, and opioid-related deaths were five times higher in 2016 than they were in 1999. Prior to the 1990s, prescription opioid-related deaths were rare, which means that something must have changed during that decade to spawn the crisis. This suggests that the opioid epidemic was preventable, and that one or more parties are responsible. The questions going forward are who is responsible, and what can we do to stop this?

The Washington Post puts much of the blame for the crisis on the big pharmaceutical companies that produce the opioids. They take aim specifically at Purdue Pharma, a multi-billion dollar entity owned by the Sackler family, one of the wealthiest families in America. Purdue Pharma began to aggressively market the drug oxycontin, convincing the FDA that the drug was safe.

In 2001, a Purdue Pharma executive told Congress, “Addiction (to oxycontin) is not common, addiction is rare in the pain patient who is properly managed.”

The FDA approved the drug with a label claiming that it would provide “smooth and sustained” relief for up to 12 hours – a claim that Purdue knew at the time was far from accurate. Shortly after the approval of oxycontin, the head of the FDA, Dr. Curtis Wright, went to work for Purdue Pharma. In 2007, Purdue Pharma pled guilty as a corporation to falsely marketing the drug and was fined $634 million.

There is no doubt that Big Pharma and crooked physicians and pharmacists bear much of the responsibility for the opioid crisis, but the lynchpin that fueled the operation was the distributors. Last year, 60 Minutes interviewed Joe Rannazzisi, a former Drug Enforcement Agency (DEA) deputy assistant administrator who saw first-hand how the widespread influence of the distributors corrupted the DEA and compelled Congress to pass legislation that was favorable to the industry, which essentially tied the hands of DEA agents who were trying to reign in the distributors.

The nation’s three largest pharmaceutical distributors – McKesson, Cardinal Health, and AmerisourceBergen control between 85% and 90% of prescription drug distribution in the U.S. Rannazzisi says that as the DEA cracked down on crooked doctors and pharmacists, the death toll from drug overdoses continued to rise. This is when they realized that the distributors were the real “chokepoint”, and they began pursuing them.

In 2008, McKesson Corporation, the country’s largest distributor, was slapped with a $13.2 million fine by the DEA for sending millions of pills through “suspicious” orders. As more fines were levied in subsequent years, the distributors began to fight back. They hired former DEA officials to lobby the agency, and Rannazzisi suddenly found it much more difficult to prosecute cases against the industry.

After three years of lobbying by the drug distributors, Congress passed the Ensuring Patient Access and Effective Drug Enforcement Act of 2016, a bill sponsored by Pennsylvania representative Tom Marino and Tennessee representative Marsha Blackburn. This bill made it more difficult for the DEA to crack down on distributors who send large volumes of prescription drugs to crooked pharmacies. Inexplicably, the bill was passed unanimously on a voice vote in both the House and Senate and signed into law without a ceremony by then President Barack Obama.

As the scope of the opioid crisis becomes clearer, many in Congress have moved to repeal the Ensuring Patient Access and Effective Drug Enforcement Act. Attorney General Jeff Sessions has also become very proactive and is working closely with many state attorneys general to tackle this crisis. Still, the ties between the pharmaceutical industry and the federal government run deep, and it will be a long fight ahead to curb their influence in Washington.

What Can be Done about the Opioid Crisis?

Important people within the federal government, such as Attorney General Sessions, are finally realizing the magnitude of this crisis and the need for an overwhelming response. There are also many states that are fighting back against the big drug distributors. In West Virginia for example, Attorney General Patrick Morrisey has worked closely with the Justice Department to fight drug trafficking, and he has been praised by Sessions for being “tireless in his efforts to combat this crisis from all fronts.”

Back in 2016, while many in Congress were doing the bidding of the drug distribution industry, Attorney General Morrisey filed a lawsuit against McKesson Corporation for violating the state’s Controlled Substances Act. Attorney Lee Javins of Bailey Javins & Carter is one of the attorneys representing the state in this lawsuit.

Attorney Javins has been an aggressive advocate on behalf of the people of West Virginia for over two decades. He has a successful track record standing up for victims in cases involving workplace injury, product liability, personal injury, and consumer litigation. Lee will be one of the attorneys deposing McKesson executives later this month as they prepare for the trial, which is scheduled to begin in April of 2019.

Several other states have filed similar lawsuits against McKesson and the other large pharmaceutical distributors, and they are seeking millions of dollars in damages. This litigation is important, because these distributors must be held accountable for their role in this crisis. If they are not held to account, their egregious practices are likely to continue, putting the lives of more and more Americans in jeopardy.

speeding commercial trucks - Bailey Javins & Varter

The Dangers of Speeding Commercial Trucks

Unsafe speed is one of the most common causes of dangerous and deadly road accidents. When the driver of a passenger car or truck chooses to speed, they are putting the lives of everyone in their path at risk. When a commercial truck driver drives at an unsafe speed, the results can be even more catastrophic.

Speed limits are set on various roads and highways for a purpose. It is to create the safest circumstances possible based on the particular conditions and risks present on a certain roadway. Driving faster than the posted speed limit may not only make it difficult to slow down for hazards, but it may also mean that your vehicle is hard to control under various conditions.

Speed and the Condition of West Virginia’s Roads

West Virginia has 38,766 miles of public highway, much of which is rural two-lane roadways. The terrain of the state is mountainous, with small shoulder areas, which creates a unique hazard for drivers. There were 144 speed-related fatalities in West Virginia in 2012, and that figure dropped to 130 in 2013.

In West Virginia, the maximum speed is 70 mph on some rural interstates, but the law specifies that no person may drive a vehicle faster than is reasonable and prudent for the existing conditions and hazards. This means that inclement weather, low light conditions, or road hazards require that drivers reduce their speed to use extra caution while on the road.

When Commercial Trucks Decide to Speed

Many drivers speed on the road, but the results of a speed-related commercial truck accident can be life-altering. These are massive tractor-trailers and 18-wheelers that are more difficult to control than a passenger vehicle. When speeding, it takes even longer for a commercial truck to stop or turn if there is sudden traffic or obstacles in their path. Often, these maneuvers at an unsafe speed are the cause of rollovers, jackknife accidents, and even runaway truck situations in mountainous regions.

Truck drivers often speed because, to them, time is money. These drivers have strict delivery schedules and each moment on the road takes profit away from their bottom line. Truck drivers are under intense pressure from their employers and clients to meet deadlines, which they can only do if they cut corners and speed on the road. Despite the safeguards put in place that require certain hours of rest, this is a constant issue in the commercial trucking industry.

How Serious is Speeding in West Virginia?

Nearly every U.S. state now has an issue with commercial truck accidents because of the growth of interstate commerce. While essential for our economy, the increased presence of large trucks on the road produces a greater risk to everyday drivers and their passengers. Since West Virginia is largely rural, there is also the issue of lack of emergency resources when these tragedies do occur. Within the entire state, there are just 35 acute-care hospitals, only two of which are classified as Level I trauma centers.

If you are involved in a commercial truck accident in West Virginia, you may have to wait longer for rescue personnel to reach your location simply because of the makeup of our landscape. These accidents can be terrifying and leave victims with significant damages. Not only will your car likely be totaled, but you will also need medical care for your injuries, may lose time from work, and may suffer from permanent impairment as well as pain and suffering.

How an Experienced Truck Accident Lawyer Can Help

If you’ve been involved in a commercial truck accident in West Virginia due to the careless acts of another party, you have the right to file a claim for damages. Recovering full and fair compensation in a truck accident is not a simple matter and requires the expertise of an attorney who understands how to handle these complex legal issues.

Large truck accident cases are different from car accident claims because the laws regulating the trucking industry vary and the parties that could be held responsible for your damages are numerous. A commercial trucker involved in a West Virginia accident may not be from the area, and their company could take swift measures to either suppress evidence or try to quickly settle a case for much less than it is worth.

If you or someone you love has been injured in a tractor-trailer accident, hiring a West Virginia truck accident lawyer should be your top priority. Our experienced personal injury attorneys will investigate your case, protect your rights to recovery, and do everything possible to ensure that you are fully compensated for your losses. Contact the law offices of Bailey, Javins, & Carter L.C. now at 800-497-0234 or online to schedule a free consultation with a member of our legal team.