Railroad Workers and FELA Claims

Railroad Workers and FELA Claims (Podcast)

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Paul Kelley from Satterley and Kelley, a personal injury law firm, talks with John Maher about railroad workers and FELA claims. He explains the origin of FELA. Then, he outlines the differences between FELA and worker’s compensation. Finally, he explains what to do if you’ve been injured while working for the rail companies.

John Maher: Hi. I’m John Maher and I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 30 years of collective experience in handling personal injury and wrongful death claims. Today, we’re talking about railroad workers and FELA claims. Welcome, Paul.

Paul Kelley: Hi, John. How are you doing this morning?

Railroad Companies Use FELA, Instead of Workers’ Compensation

John: Good, thanks. So Paul, I’ve heard that if a railroad worker gets injured at work, he or she can’t file a Kentucky worker’s compensation claim. Is that true?

Paul: That is true. Railroads have an interesting history in this country, and many decades ago, Congress, probably in conjunction with the railroad companies, came up with an alternative source of recovery for railroad workers that got injured. And so they devised the Federal Employer’s Liability Act, which also is called FELA for short, and it is the only mechanism that most railroad workers can recover for a work-related injury.

And it’s pretty broad in terms of what injuries and what activities are covered by FELA. But the bottom line is that if you’re in Kentucky or if you’re in Illinois or Texas, California, wherever, and you’re a railroad worker and you’re injured at work, you can’t pursue a case under your state worker’s compensation laws. You have to pursue a case under the FELA laws.

Why Was FELA Created?

John: And was that created in order to make sure that railroads couldn’t go into bankruptcy and disappear and then you have all kinds of problems with the infrastructure in the country and things like that? What’s the reason for that?

Paul: Well, it’s kind of difficult to completely understand what the reason for it was, but it was a result of a lobbying effort. There’s going to be lots of injuries that occur on the railroad. I think that it was in part so that employees may not make as many claims as what they would under a worker’s compensation scheme.

For a worker’s comp injury, and maybe we’ll talk about this, you can cut your finger, you can make a claim, and I think that there was probably some desire to not have to deal with thousands of small claims. And I think the desire was that the railroad companies would take care of employees that suffered those kinds of injuries and that the injuries that would be most likely to go to litigation would be significant injuries that had a big impact on both the employee and a potential big liability impact on the railroad.

It also was intended, I think, to give the ability for more compensation to the employees, and we’ll talk about that in a bit. But under the worker’s comp scheme, there are some big differences in terms of what damages you can get. So, I think there’s a lot of good components for employees and a lot of bad components for employees, and then on the same side, I think there’s some pros and cons for the employers as to the existence of this special statute that exists for them.

Workers’ Comp Vs. FELA

John: Right. Why don’t you go ahead and tell me a little bit more about that and about the differences between a worker’s compensation claim and a FELA claim?

Paul: Sure. So under Kentucky Law, when we’re talking about a worker’s compensation claim, the most significant component to it is it’s no fault, so the employer does not have to be at fault in any way to be responsible for a work-related injury. The employee’s only burden is to prove that he or she suffered a workplace injury and then what the damages were for that particular injury, so that’s an important component.

Under FELA, the plaintiff, the injured worker, still has to prove that the railroad was negligent in some way in causing the injury, so it’s not no-fault. There has to be fault. So sometimes, injuries occur that might be the fault of a contractor, it might be the employee’s own fault, and it doesn’t matter. If it’s a workplace injury, under the worker’s compensation scheme, the employer’s still responsible to pay the employee, but under FELA, you have to prove that the railroad was slightly negligent, and that’s a good thing in terms of what the employee has to prove.

If it’s a normal negligence case, we’re taking the railroad out of it, if it’s a normal negligence case, the standard for proving negligence is 51%, so 51% more likely than not, the railroad caused an injury. Under FELA, the railroad just has to be slightly negligent, just a little bit negligent in order to cause the injury. So there could be a whole bunch of other causes, but if the railroad is 1% on the hook, then the railroad’s on the hook for the plaintiff’s entire damages, so that’s a good thing. But an employee at the end of the day for a FELA claim still has to prove that the employer was at fault, so that’s a big distinction.

The other big distinction between the workers’ compensation scheme and the FELA scheme is what you can get in terms of damages. Now, under… And I’ll stick with Kentucky where I’m at, for a workers’ compensation claim, the employee can get medical expenses, all of their expenses should be paid. They can get lost income, but there’s a cap on that. It’s capped at a certain dollar amount. There’s a maximum dollar amount and there’s a lot of people who make more money than that in their job, but they can’t get more than that because the statutory rate says this is what you get.

And then there’s temporal limitations as well under the comp scheme. Under Kentucky, I think it’s 425 weeks total that people can get compensated for their lost income, regardless of what the injury is. And you get no pain and suffering in worker’s comp. There is a survivor’s death benefit if somebody dies as a result of the injury, and there are no punitive damages.

So worker’s comp, good because you don’t have to prove anybody was at fault and you should get compensated for your workplace injury, but there are significant limitations on what you can actually recover from those injuries. And what I’ve always said about the workers’ compensation scheme is it’s great for the person who suffers a pretty minor injury that’s not going to permanently disable them, but it’s not real good for people who suffer catastrophic injuries and can’t ever go back to work because their damages are, in most circumstances, going to be significantly limited. And there are exceptions, but for the most part, it’s pretty limited compensation.

Under FELA, you get lost income. There’s no natural statutory limitation on what that lost income is. Under most railroad retirement plans, most people are eligible for retirement at age 60 and after 30 years of service, so they have to have both of those two things – 30 years of service and be 60 years of age – and they can start drawing their pension and benefits, but it doesn’t mean that they have some natural limitation as to their ability to labor and earn money.

People have that ability far beyond the age of 60. And so you can recover for both past and future lost impairment to the power of labor and earn money in a field of claim. Of course, you can get your medical expenses as well.

And then the main damage that you can get in a FELA claim that you can’t get in worker’s comp is pain and suffering, and pain and suffering is the physical and mental pain and other suffering associated with an injury. So imagine someone who suffers a brain injury. They’ve been deprived of their ability to work and do the job. Most people, if you can believe it, most people that I’ve represented, and we’ve represented hundreds of railroad workers in the past, they love their job. It was a dangerous job. I’m not sure that I would’ve loved their job, but they loved their job.

John: True.

Pain and Suffering Claims Under FELA

Paul: And it’s been taken from them. We’ve had clients before who’ve suffered amputations as a result of injuries that occurred on the tracks. They can’t work anymore so they can’t earn a wage, but obviously it goes beyond that. They can’t do any of the things that they enjoyed doing prior to the injury, and so they can recover for that pain and suffering as a result.

Now, under FELA, there are no punitive damages, so that’s a big item of damages, and I suspect that that was in the negotiation between the railroad workers and the railroad companies way back when FELA was enacted. So you can’t get that item of damages in either kind of case, but certainly you can get pain and suffering. And the impact of that is that the people who’ve suffered FELA injuries frequently get seven figure or eight figure verdicts in cases against their employers for the tremendous pain and suffering that they endure as a result of whatever that work related injury is. And at a minimum, they have the ability to get it, and that’s the important part of it.

So from our standpoint, railroad work’s dangerous work, and while I wish that FELA had a no-fault scheme to it, I personally think that it’s better to be able to get that full range of damages in a FELA case than what you can get in a worker’s compensation claim, and so railroad workers can hopefully get full recovery for an injury instead of partial recovery.

Types of Injuries Suffered by Railroad Workers

John: So what are some of the types of injuries that railroad workers can file a lawsuit against their railroad employers for?

Paul: So, gosh, anything. We have represented a number of railroad workers over the years. We’ve had brain damage cases from chemical exposure. We’ve had amputation cases from people whose legs were cut off as a result of being run over by a train on the tracks.

We see a lot of repetitive trauma cases, so people who develop carpal tunnel and other problems with hands and feet and wrists and elbows from the constant repetitive motion they have to make or the constant vibrating that’s associated with doing their job. A lot of noise loss or hearing loss claims. Railroads are frequently in very loud environments with lots of heavy machinery being operated and railroad workers have suffered full or partial deafness as a result.

We have litigated a number of cases for railroad workers that were exposed to asbestos in the railroad. Asbestos was all over railroad shops. For a period of time, it was all over rail cars and engines. It was utilized in brakes. Diesel fumes, diesel fumes have caused lung cancer in the past, and people are exposed to a lot of diesel fumes in the shops where these trains are worked on and cleaned and those sorts of things.

And then just your other, somebody falls and breaks a leg, breaks an arm, but any injury that can be causally connected to work that was being conducted at a railroad shop or on a railroad track or on a railroad car are potentially compensable. Again, we have to prove some fault on behalf of the railroad in order to recover those damages.

Types of Damages You Can Recover in a FELA Case

John: Talk a little bit more about the type of damages that you can claim in a FELA case for an injured railroad worker, because you said that punitive damages for example are not allowed, so what types of damages are allowed?

Paul: So the main are going to be past and future medical expenses, past and future lost wages, and then the physical and mental pain and suffering. You can get travel expenses if you have to travel out of state or out of your community for medical treatment, and that happens a lot.

For example, we have clients who’ve developed mesothelioma as a result of railroad work, and Louisville, Kentucky, while it has a lot of great physicians, we don’t have a mesothelioma cancer center here and other states do. So folks will go to Massachusetts or California or North Carolina for specialized treatment, and so they can get all those kinds of expenses. Basically, any loss that someone can attribute to injury that they suffered at the railroad is potentially open for compensation, but mostly what we see are the medical expenses, the lost wages, travel expenses and pain and suffering.

Statute of Limitations on Railroad Worker Injury Claims

John: And is there a statute of limitations for filing a claim against a railroad company?

Paul: Yeah, so that’s another, what I think is good news. Under FELA, railroad workers have three years to file a claim, and it doesn’t matter whether it’s personal injury or a wrongful death case. Generally speaking, people are going to know that they were injured the day it happened, but there are some situations, the chemical exposure cases, the asbestos mesothelioma cases or lung cancer cases where they don’t find out for many years down the road. And so there is something called the discovery rule.

We have three years from the date that we know or should know that we’ve been injured and what the cause of that injury is. So if you’ve got someone who develops cancer 20 years after they left the railroad, their cause of action begins when they develop that cancer and when they’re able to figure out what caused it.

Same thing with carpal tunnel, most people don’t realize that they have a repetitive trauma injury, and then all of a sudden, one day they realize, “I don’t get it. My hands and wrists hurt like heck,” and then somebody connects it to the work on the railroad. And so they’ll have three years from when they figure it out or should have figured it out in order to file such a claim.

Now, the one big caveat is that for a wrongful death case, if the person doesn’t file a claim within three years of it occurring in their life, then there is no wrongful death case. They have to file the personal injury case within three years of them getting it, whatever the injury or disease is. But if they don’t file it and the person dies, say at two years, then they still have time to file the wrongful death. It’s just if that statute of limitations expired in their life, then there’s nothing that can be done about it in their death.

John: Right. So the people who are handling their estate, if the three years have already gone by and then that person passes away and then their family decides, “Oh, you know what? We probably had a case here that we could have pursued,” but three years have already gone by, it’s too late.

Paul: Unfortunately, they’re probably going to be out of luck.

John: Okay. And the three years to file a claim is longer than the typical statute of limitations, at least in Kentucky, right?

One-Year Statute of Limitations on Injuries Caused by Other Parties

Paul: At least in Kentucky. Kentucky, we only have a one-year statute of limitations, which gives us very little time to investigate and determine who all the appropriate parties are, so at least under FELA, if you’re filing against a railroad company, you have three years.

Now, again, there are some work related injuries that the railroad may have been responsible for, but there could be somebody else that’s not the railroad company. You still have one year to pursue anybody but the railroad company, so I want to make sure that that’s clear. But if you work for railroad A and you think that railroad A caused your injury, you have three years to pursue that case against railroad A.

What Should Railroad Employees Do If They Get Injured at Work?

John: Okay. And if you’re a railroad employee and you suffer a workplace injury like we mentioned, what should you do? What are the next steps?

Paul: Absolutely, you need to contact a lawyer immediately, of course, depending on what the injury is. Getting your medical situation under control and making sure that you understand what your injury is and what the treatment requirements are, that’s certainly critical. But again, even though it’s three years to pursue a claim, there could be another actor involved that’s going to have a one-year statute of limitations, so you’d need to talk to a lawyer who can begin investigating that part of it.

Lots of times, railroads will try to settle with their employees before they hire a lawyer, and they’ll dangle some amount of money that might not seem unreasonable to the employee at the time but is not at all representative as to what their damages really are or what their case is really worth, and they’ll sign releases and that will preclude them from being able to pursue a case.

If the employer is offering money early, I usually tell people, they’re doing that for a reason. It’s not because they think your case is terrible. It’s not because they think that your case has no merit whatsoever. It’s because they do think that it has merit and they’re trying to buy you off early before you have an opportunity to talk to a lawyer and find out what your real rights are.

The other problem with that is, and we’ve seen it happen a lot, and it happens, they try to do it to me when I represent somebody, is that they try to give you this release that will release them from liability for things you don’t have, for injuries that haven’t happened. So you’re pursuing a hearing loss case against the railroad, and instead of giving you a release that releases them from liability for the hearing loss, that release is also going to say, “And oh yeah, if you get mesothelioma, if you get brain damage, if you get leukemia, lung cancer, carpal tunnel, you’re going to release all of these things too.”

And we fought over the years to have releases like that declared null and void, as not being appropriate, and there’s certainly a lot of case law that protects workers, but there’s a lot of case law that doesn’t. And so yeah, $25,000 may seem like a wonderful thing, but is $25,000 worth it to sign away your rights for a cancer claim that’s going to inevitably cause your death? Nobody would make that bargain.

John: Or even just an injury that makes you not be able to work for 10 years or more.

Don’t Sign Liability Releases Without Contacting a Lawyer

Paul: Absolutely. So railroads I think do try to take advantage of their employees a little bit and they’ll get somebody trusted involved to make the first contact, and then before you know it, a lawyer’s involved, and before you know it, a seven-page release that releases the world is put in front of them and with a check right there ready to hand to them, and they sign it away and before you know it, they’ve signed away or potentially signed away a lot of rights.

And it may end up being that there are reasons to go ahead and take that money, but the release can always be tweaked. Nobody can make you sign away your rights to something that hasn’t happened yet, and if they are making a settlement for hearing loss contingent upon you signing away your rights for lung cancer, mesothelioma, brain damage or some other catastrophic injury, well, don’t make that settlement. We’ll beat them.

But it’s absolutely critical to reach out to an attorney to find out what your rights are, reach out to someone who’s had a history of litigating cases. That release issue, it’s a big issue, and I see it from clients that walk in my door, and about six months later after I filed the case, the railroad company will drop this release on me. And every time, I’m like, “Why did somebody let them sign this release? This is absolutely outrageous. What happened here?

And so unfortunately, the world was different 20, 30 years ago and a lot of releases like those were signed, and hence, a lot of future claims were resolved just like that, so that’s tough. But the only way that you can really figure out what the full range of rights you have is to talk to a lawyer, and it could very well be that you don’t have a lot to worry about and take whatever money the railroad’s offering and be done, or it could be that you’ve got a massive case that could result in millions of dollars of damages and you’re giving them up by either not contacting an attorney or not contacting the right attorneys.

Contact Satterley and Kelley If You’ve Been Injured

John: All right. Well that’s really great information, Paul. Thanks again for speaking with me today.

Paul: Thanks, John, I appreciate it.

John: And for more information about personal injury and wrongful death cases, visit the law firm of Satterley & Kelley at satterleylaw.com, or call (855) 385-9532.

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Johnson and Johnson Bankruptcy

Johnson & Johnson Bankruptcy and Asbestos Cases (Podcast)

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Paul Kelley explains how asbestos got into Johnson & Johnson talc powder. Then, he outlines what the company has done to try to avoid liability, and he tells people what to do if they’ve been affected.

John Maher: Hi, I’m John Maher and I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm Satterley & Kelley which has over 30 years of collective experience in handling cases involving mesothelioma and asbestos exposure. Welcome, Paul.

Paul Kelley: Hi, John. How are you doing this morning?

Has Johnson and Johnson Manufactured Products That Contain Asbestos?

John: Good, thanks. So, Paul, today we’re talking about the Johnson & Johnson bankruptcy and asbestos cases. Has Johnson & Johnson manufactured products that contain asbestos?

Paul: Absolutely John. We’ve been kind of at the ground floor of litigation involving Johnson & Johnson talcum powder products, and what we’ve discovered for the last 10 years of litigating these cases is that J&J has historically manufactured body powders. Probably the one that everybody’s most familiar with is Johnson’s baby powder that contained asbestos.

J&J also manufactured another popular body powder called Shower to Shower that contained asbestos as well for many, many decades. Most recently, within the last year or two, J&J originally pulled talcum powder off the shelves, the baby powders and any other products that they manufactured in the United States. Then even more recently, they’ve taken those products off the shelves worldwide.

So no longer can anyone purchase powders that were made with talc anymore in 2023. But what we’ve learned from handling these cases for the last 10 years or so, is that the talc that was put into, used to manufacture J&J’s baby powder and Shower to Shower, that it’s a mined product and it’s been mined in places like Vermont. It’s been mined in China, there’s been some Italian talc mines that have produced some talc.

Talc is a naturally occurring product, and asbestos is a naturally occurring product. It’s been demonstrated time and time again through the medical and scientific literature, the geologic literature that talc and asbestos form in the same places. So when they mine the talc, they also mine asbestos as a part of the talc. Then they take that talc product, they send it over to the process center, and they mill the talc and refine it, and then mix it with other products. Then you have your product, your baby powder or your Shower to Shower.

But unfortunately through part of the collection process, as part of the milling process, there’s no way to eliminate the asbestos. The asbestos is there and it’s in the final product and has been in the final product probably for as long as it’s been produced. But we’ve seen internal documents from Johnson & Johnson indicating that testing labs back in the fifties and sixties were seeing asbestos in the Johnson’s Baby Powder, or the talc that was used to make the Johnson’s Baby Powder.

Then moving into the sixties, and seventies and certainly moving forward into the modern era that talcum powder has routinely tested positive for asbestos containing products. Whether it be chrysotile, which is a serpentine form of asbestos, or whether it’s anthophyllite or tremolite, which is an amphibole form of asbestos.

Now, J&J doesn’t agree with this, or at least they don’t publicly agree with this. You won’t see any J&J people in the news agreeing that they supplied a product of asbestos, and you certainly won’t get anyone from J&J to agree in a court case that their products contain asbestos. But the evidence is overwhelming that J&J’s baby powder and Shower to Shower contain asbestos and has contained it at least since the 1950s and probably before, but the testing really began at that period of time.

Diseases Caused by Asbestos in J&J Talcum Products

John: So what diseases have been caused by the asbestos that’s in J&J talcum powder products?

Paul: Sure. So the most commonly associated diseases that have been proven, again, I think by the medical and scientific literature is ovarian cancer. Thousands of women have been diagnosed with ovarian cancer over the last 40, 50 years. Unfortunately, because it was not widespread knowledge that J&J’s products contain asbestos, women and all people continued to use it for forever.

More recently, in the last 20 or 30 years, the medical and scientific literature has made a causal connection between ovarian cancer and exposure to talcum powders. So that’s one.

Then the other one is mesothelioma, which is most commonly associated with asbestos exposure. Asbestos is the only known cause of mesothelioma, and we have handled cases for numerous people who have been diagnosed with mesothelioma and the only exposure they had, or one of the exposures they had to asbestos was a lifelong exposure to Johnson’s Baby Powder, or maybe their mother or father used Johnson’s Baby Powder on them when they were a baby and a child. Then decades later, they develop mesothelioma, which again is a cancer that is universally accepted to be caused by asbestos exposure.

Lawsuits About Asbestos in Johnsons & Johnsons Baby Powder

John: Okay. Have there been any lawsuits or jury trials regarding asbestos and Johnson & Johnson talcum powder products?

Paul: There are thousands of lawsuits that are currently pending against Johnson & Johnson associated with asbestos exposure from baby powder, Shower to Shower, and any other talcum powder products that they’ve made. There have been, to my knowledge, approximately 50 cases that have gone to trial, probably roughly half-and-half between ovarian cancer cases and mesothelioma cases.

There have been numerous jury verdicts in favor of plaintiffs in those cases. Those jury verdicts have totaled in the billions of dollars when it’s all added up. There of course have been a few defense verdicts as well, but there are thousands of lawsuits that are pending.

I believe the latest statistics are somewhere in the upwards of 38,000 ovarian cancer cases that are currently pending somewhere in the United States, and I believe about 350 mesothelioma cases. You may ask, well, why is there a disparity between the ovarian cancer matters and the mesothelioma cases?

It’s because mesothelioma is so very rare. It is a disease that’s diagnosed in approximately 3,000 people per year in the United States. Fortunately, there’s far less people afflicted with mesothelioma and of course, both diseases are fatal. Mesothelioma is universally fatal. I mean, everybody who gets that disease will unfortunately probably die within 18 to 24 months.

Ovarian cancer can have a much better outcome. Of course, it can be fatal as well, and frequently is fatal. But if it’s caught early, there’s a lot of treatments that can be provided and ovarian cancer is just typically a more common disease process. But essentially between these two disease processes, there’s at least 40,000 cases that are currently pending against Johnson & Johnson from various women who have developed ovarian cancer and men and women who developed mesothelioma from using the product.

Johnson & Johnson’s Convoluted Bankruptcy Filing to Avoid Paying Liability Claims

John: Now we understand that Johnson & Johnson is going bankrupt or has filed for bankruptcy. Did Johnson & Johnson go bankrupt because of these lawsuits?

Paul: Well, therein lies the rub John. Johnson & Johnson did not go bankrupt. Johnson & Johnson is a Fortune 50 or Fortune 100 company, is flush with cash and is worth hundreds of billions, if not into the trillions of dollars.

What Johnson & Johnson did in order to try to avoid all of these lawsuits and try to A) avoid having to pay fair value to each and every claimant and B) to try to expediently resolve the cases, it went into Texas and employed a procedural device called the Texas two step, or also known as a divisive merger. Essentially, and it’s more complicated than this, but I’ll try to keep it as simple as possible. It formed two other companies, and one company was intended to dump all the liabilities, and specifically the talc liabilities into this company. Then the other company got all the assets, got the product line, got everything that J&J and its subsidiaries did, and business would continue as usual, and they would never miss a beat.

The company that got all the liabilities was destined for bankruptcy. That was the plan all along. So J&J did this with its subsidiary and it created these two companies, and then the company destined for bankruptcy was immediately moved and was headquartered in North Carolina. Then I believe two, maybe three days after the creation of the company and the transition to North Carolina, it declared bankruptcy.

As a result of that, and there was some legal maneuvering that had to happen in order to get to that point, but the bankruptcy was eventually moved from North Carolina to New Jersey because J&J is headquartered in New Jersey. J&J’s subsidiary was also headquartered in New Jersey.

So the bankruptcy court in North Carolina decided New Jersey’s the place for this bankruptcy. But as a part of that process, J&J, even though it was not the bankrupt entity, was granted a stay of all legal proceedings against it from people alleging that they suffered some disease caused by exposure to its talc. So what that meant is all those lawsuits, all those 38 some thousand lawsuits came to a grinding halt. This happened I believe in October or November of 2021.

So if a case was filed before that, it couldn’t move. It didn’t matter where it was. It could be in state court, it could be in federal court, could be Vermont to Washington, didn’t matter. The plan was going to be that J&J would fund this new company so much money. I believe the original process or the original suggestion was about $2 billion.

Could have been more, really doesn’t matter, wouldn’t have been enough to compensate all those folks. But basically try to resolve all those claims in the bankruptcy system. It didn’t matter that J&J wasn’t bankrupt, it didn’t matter that its subsidiary barely existed long enough to develop any other liabilities or do anything. It was going to declare bankruptcy and the plan was to avoid all these lawsuits and to avoid future lawsuits. So that’s a part of this procedure.

Numerous asbestos manufacturers over the years have gone into bankruptcy. It’s been a little controversial in some regards because some of those companies were allowed to continue their business. But unlike J&J, it was absolutely determined in 99% of the cases with previous manufacturers that have gone into bankruptcy that they were suffering from financial distress. That the lawsuits that had been filed against them were overwhelming. I mean, these were companies that only made asbestos products or substantially made asbestos products, and they could not have continued their business for too much longer and continue to pay victims had they not been granted some sort of protection from the bankruptcy code.

J&J wasn’t in that same situation. I mean, J&J manufactures a wide variety of products. Baby powder is one of their flagship products, but in terms of profitability, there’s a lot of other things that J&J does aside from talc that precluded it from going bankrupt. Further, J&J, they did it this way so that J&J did not have to suffer the consequences of declaring bankruptcy.

Once a company does that, then there’s a period of time that the company loses control over their business. May be a matter of months, may be a matter of years, but there’s something called a bankruptcy trustee whose job is to identify what the assets are and identify what the debts are, to collect those assets and to distribute funds or to figure out a 524 plan how claimants can be paid.

So you lose a lot of control over your business. So that’s why J&J created this separate entity. So the separate entity would go through all that and J&J could just plug along business as usual.

John: What was this subsidiary of Johnson & Johnson called?

Paul: It’s called LTL. LTL Management, I think, or LTL LLC. It is relatively meaningless. It doesn’t do anything. It just holds those liabilities.

Current State of the Johnson & Johnson or “LTL” Bankruptcy

John: Right. So what’s the current status of this LTL bankruptcy?

Paul: Well, right now we have some great news. About two weeks ago, the third Circuit Court of Appeals… Well, let me backup. The bankruptcy court, a group of creditors, and that’s what the asbestos claimants are, they’re just creditors. They had asked the bankruptcy court to dismiss the bankruptcy or to lift the stay as to J&J. The impact for that would be that J&J would be back in the court system, people could continue to litigate their cases on an individual basis in whatever court they filed their case in.

The bankruptcy judge in New Jersey decided not to do that, denied the plaintiff’s motion. He said that he thought that the bankruptcy court was the place to be and that claimants would get a much more expedient resolution if cases were resolved through that system because over the years, only 50 cases have been tried and that it would take decades to try just the current inventory.

Of course, we disagreed with that considerably and there’s a process that allowed us to go straight to… Or allowed the claimants to go straight to the Third Circuit Court of appeals to appeal that denial of the motion. About two weeks ago, the Third Circuit Court of Appeals decided, issued a decision, and said that that bankruptcy should be dismissed. I won’t get into all the details, but essentially it concluded that the new company was not in financial distress and in part the new company was not in financial distress because its parent company J&J was not in financial distress.

J&J had agreed to provide funding to the new company, quite frankly and well into the future that would make it very unlikely anytime soon that that company would be in financial distress under the current circumstances.

So ultimately all of these cases will be returned to the court system and people will be able to litigate their cases on an individual basis as has been done in the past. There’s still some appellate procedure that’s in place. Last week, Johnson & Johnson moved for what’s called rehearing en banc, and that means that ordinarily an appeal is decided by three appellate judges and you have got to get two out of three in order to win.

I believe that this decision was decided three zero by that panel, but an aggrieved party by a panel’s decision can ask the entire group of appellate judges in that circuit, which would be the Third circuit Court of Appeals to grant a rehearing and essentially try to decide the issue differently than what the original panel did.

Hearing en banc is rare. When one’s granted, it’s typically not granted and quite frankly, we have very little expectation that it’ll be granted in this case, but it certainly could be. If it were, then that would give LTL and J&J some life on this bankruptcy, the procedure that they have employed.

But the likely scenario is it gets denied. At that point then they have to petition for a writ of certiorari with the United States Supreme Court. The United States Supreme Court takes a very small percentage of cases that it’s asked to take. I make no prediction as to what the Supreme Court would do with this, except the odds are not in anybody’s favor when they file a petition of the Supreme Court because it just can’t take all the cases that are filed.

So our expectation and our hope is that by spring early summer of this year, all of these cases will be back where they belong and people who have filed claims and have a grievance with Johnson & Johnson will be able to have their day in court. That’s what our tort system, that’s what the Seventh Amendment of the Constitution of the United States, as well as most states allows and we’re looking forward to the opportunity to be able to continue this fight against Johnson & Johnson and all the other companies at fault for causing people’s disease from exposure to these products.

Contact Satterley and Kelley to Learn More

John: All right. Well that’s really great news and great information, Paul. Thanks again for speaking with me today.

Paul: Thanks, John.

John: For more information about mesothelioma and asbestos exposure, visit the Law Firm of Satterley & Kelley at Satterleylaw.com or call 855-385-9532.

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Negligent Security

How Does Negligent Security Happen?

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People are injured due to negligent security all the time. Many don’t realize they may qualify for compensation because a property owner was negligent in failing to prevent the crime. They just assume since it’s a criminal matter, there’s no civil law remedy for their injuries. Depending on what happened, why, and whether a property owner/occupier may be responsible, you may have that option.

A negligent security claim usually involves a property owner/occupier who doesn’t take proper precautions or security measures to prevent violent crime. The plaintiff needs to show the property owner/occupier was aware, or should’ve been aware, of the potential for crime, there was a lack of security, it allowed the crime to occur, and the plaintiff was injured.

Where Do Negligent Security Incidents Happen?

Common places are apartment complexes, office buildings, hotels, shopping areas, and their parking lots or ramp garages. To have a claim, these areas must be in neighborhoods or locations where crimes regularly occur or are at least predictable.

You might have a tough time with a negligent security claim if it happened where crimes rarely occur. The property owner/occupier may not be obligated to prevent a crime that’s unusual or out of character for the area.

What Kinds of Crimes Can Cause Negligent Security Claims?

These cases can involve just about any crime causing any injury. We investigate our clients’ negligent security claims, and so do insurance companies. In an interview with an insurance investigator James Barbieri, he cited some of the cases he looked into:

  • A husband parked outside a drug store, and his wife went inside to shop. He was robbed and killed. His next of kin argued the business is in a high-crime area and inadequate lighting contributed to the crime. The owner should’ve used more care in providing security and adequate lighting
  • A fight at a bar left the plaintiff seriously injured, and the bar failed to provide security, bouncers, or adequate security measures
  • A tenant’s boyfriend picked her up from work and brought her home to an apartment complex in a high-crime area early in the morning. He drove into the parking lot because its gate was broken and stuck in the open position. They were followed by another car. The occupants tried to rob the two, a gunfight ensued, the boyfriend was killed, and the tenant was injured. One of the attackers said they went into the parking lot because the gate was open. Before the incident, several tenants complained to management about the broken gates. The apartment complex was new and advertised itself as a safe and gated community
  • A woman living in an apartment was raped after her attacker entered the unit through a window with a broken lock. She just moved into the apartment, and the owner or manager should’ve inspected the unit before she took possession. They would’ve found the problem, and if they fixed it, they would’ve prevented the crime

Barbieri also said he’s had cases involving:

  • Broken or nonexistent fences
  • Lack of security cameras
  • A lack of security alarms
  • Malfunctioning security alarms
  • A lack of security guards
  • Untrained or unqualified security guards

Other negligent security cases include:

  • The mother of a 15-year-old murder victim is suing the Housing Authority of Savannah in Georgia because they had “ample prior notice and knowledge that Yamacraw Village was both unsafe and unkempt and did little to nothing to ensure the safety of its residents,” according to The Current. The victim was shot on their premises in May 2022, and the crime remains unsolved. The housing authority is accused of not having security officers, fencing, or working surveillance cameras despite their knowledge of extensive violent crime in the apartment complex’ common areas
  • Metria Leo Willis, the mother and personal representative of Zion Willis, who was shot to death outside a convenience store in Ocala, Florida, in 2021, is suing its owner for negligent security, reports the Ocala Star Banner. The lawsuit alleges management should’ve known of several violent crimes against customers before the incident, but they failed to warn, guard, or protect them
  • Shanquisha Perry and her son are suing two Fort Myers, Florida, nightclubs and a parking service for failing to protect her during a 2022 shooting that left her partially paralyzed. She claims the nightclubs failed to separate people involved in a violent dispute that lasted for several minutes or provide different departing times for each, according to the News-Press.

Each case is unique. The crimes are different, and how they should’ve been prevented varies.

Speak To a Negligent Security Attorney Today

Satterley & Kelley PLLC lawyers have the experience to take on insurance companies and win when negligence leaves innocent crime victims suffering from significant injuries and the effects of emotional and psychological trauma.

We recover millions of dollars for victims and their families in personal injury verdicts and settlements. Our attorneys will fight for you to obtain the compensation you deserve for the injuries caused by a property owner’s negligence.

Schedule a free initial consultation at our Louisville office, call 502-589-5600 (toll-free at 855-385-9532), or complete our contact form so we can discuss what happened, how Kentucky law may apply, and your best options moving forward.

Dram Shop Law KY

Should the Person Serving Alcohol Have Known the Customer Was Intoxicated?

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Under Kentucky law, an establishment with a liquor license should not serve alcohol to someone who is or appears to be intoxicated. It not only can cause problems with them keeping their license, but if the drunk person causes an accident and injures someone, they may be held at least partially responsible for the harm caused. This is known as “dram shop” liability, a type of personal injury claim.

If you’re injured by such a person and file an insurance claim or a lawsuit, you must prove the server knew the customer was intoxicated or they should’ve known but served them anyway. You would also need to show the customer injured you because of the server’s actions.

How people respond to alcohol (and drugs) varies widely. Some of us “hold their liquor” better than others. But there are classic signs servers should be aware of and possibly cut off customers showing them. If someone shows multiple indications they’re drunk, they should not drink more. The signs include:

1. Alcohol odor

The smell could come from their breath or drinks spilled on their clothes. It may be difficult to tell where the odor’s coming from if the bar’s busy, but it’s something a server must consider.

2. Flushed or red cheeks

Depending on our complexion, some of us get flushed cheeks after we drink. Alcohol causes the expansion of blood vessels, so you may look flushed or as if you’re blushing. 

3. Fatigue

Alcohol can break down inhibitions, so a person may be very active, but it’s also a depressant. Drunk people may sit or lie down, yawn, rub their eyes and face. Someone this drunk may fall asleep behind the wheel before causing a crash. They should be served non-alcoholic drinks to rehydrate them and not allowed to drive.

4. Slurred speech

Slurred speech is a common sign of intoxication. If someone is so drunk they can’t speak clearly, they shouldn’t be served.

5. Repetition

Someone drunk may fixate on something and forget what they said a short time ago, so they repeat themselves. You may hear over and over how happy or sad they are, how much they hate their boss, or what drink they want next. If a server hears the same thing repeatedly, the alcohol should stop.

6. Poor coordination and balance

If someone is stumbling, struggling to stay upright, or knocking things over, they’re probably intoxicated and shouldn’t be served. Even if their problem is purely medical and they haven’t had anything to drink, alcohol may make the situation worse. No matter the cause, they shouldn’t be served or drive.

The problem may start slowly, with someone struggling to stand or they lean onto something to stay up before falling or tripping over themselves. Someone this physically impaired shouldn’t be served.

7. Difficulty concentrating

The person may be unable to focus, so the person talking to them may need to repeat themselves before the message is understood. The person may be unable to count their money or forget the PIN on their cash or credit card. The server should ensure the person understands they’ve had enough to drink, and the alcohol should stop.

8. Unstable mood

There’s a good chance someone may be intoxicated if their emotions and behavior radically change. They may keep to themselves, then be talkative, happy to depressed to irritable, and aggressive. Someone who’s emotionally unstable thanks to alcohol could become violent or sexually aggressive.

The establishment needs to stop serving and, in extreme cases, get the person out before they harm another patron in a way that doesn’t involve driving. 

9. Overly generous 

Bartenders like to get tips, but if someone’s throwing money around, it may be because their inhibitions have stopped because they’re intoxicated. Someone may be celebrating too much and buying strangers rounds of drinks. They may open a tab that they’re too drunk to pay later.

Speak With An Experienced Dram Shop Injury Attorney

Satterley & Kelley, PLLC has decades of experience representing motor vehicle accident victims and we can help you with a dram shop matter. To discuss your situation with a knowledgeable Louisville lawyer, contact our law offices online or by telephone at 502-589-5600 or toll-free at 855-385-9532.