May 2023 - Satterley & Kelley PLLC

Legal Discovery and Mesothelioma Lawsuits

May 24, 2023/in Mesothelioma/by Paul Kelley

Discovery is more than the channel for Naked and Afraid, Deadliest Catch, and Moonshiners. Legal “discovery” is also used for a critical part of the personal injury litigation process. What’s learned during discovery often makes or breaks cases.

What is Discovery?

Discovery refers to how the parties involved in a lawsuit gather information from each other and, when necessary, from third parties to gather relevant facts about the case. This information can include documents, testimony, videos, emails, texts, photos, notes, medical records, and physical evidence. It can also lead to the identification of new witnesses or previously unknown evidence.

Several different methods can be used. They include:

Interrogatories: This is a written set of questions one party sends to the other. The receiving party must answer these questions in writing under oath or respond with a valid objection
Requests for production of documents: One party requests to the other party they produce specific documents (on paper or in electronic form) that are relevant to the case
Requests for admissions: This involves asking the other party to admit or deny certain statements relevant to the case. It’s a way to potentially force the opposing party to admit to damaging facts in the case. It can also narrow the issues that the parties disagree about
Depositions: A party and witnesses are questioned under oath by the opposing party’s lawyer, then their lawyer. Expert witnesses can be deposed if they’re part of the case. Depositions are often recorded, a transcript is made, and testimony can be used as evidence at trial

Discovery can be a lengthy and complex process. Depending on the case, it can take months or years to complete.

What’s My Role in the Discovery Process?

After we receive discovery requests from the defendant, we’ll work with you to prepare and serve answers to the defendant.

We will also prepare you for your deposition. We’ll go through a “dry run” with questions we’ll ask and those we think the defendant’s attorney will ask. You must answer honestly, including admitting you don’t remember if that’s the case.

How Does Discovery Help Me?

Ideally, discovery will uncover facts and testimony that support your case. They may result in a faster settlement for a greater amount than expected. The more facts we know, the better we can represent you.

Uncovering damaging information is also helpful in a way. To competently and professionally represent you and your interests, we must know about all the evidence, whether it aids your case or not. It helps us decide what kind of settlement to recommend you accept or what we think your chances of success at trial will be. We also don’t want to be surprised by bad news if we go to trial.

Depositions not only provide important information, but we get a good idea of how the parties and witnesses will handle testifying if the case goes to trial. Someone may appear open, calm, credible, evasive, angry, under control, or overly emotional to a jury. Jury members may see the person as believable, relatable, unfriendly, or unlikeable. These negative and positive perceptions can influence case outcomes, and we consider this when advising our clients on what to do.

Discovery can also be a valuable tool for settling a case. By the time discovery is over, all of the parties’ proverbial cards should be on the table for all to see. Discovery allows the parties and their attorneys to fully understand the case and how it may play out at trial. With fewer unknowns, both sides should understand your case’s settlement value, making settling easier.

Speak With An Experienced Personal Injury and Mesothelioma Attorney

If another party’s negligence injures you or a loved one, Satterley & Kelley, PLLC has decades of experience representing accident victims. To discuss your situation with a knowledgeable Louisville lawyer, contact our law offices online or by telephone at 855-385-9532.

Unique Rules for Pursuing Asbestos Claims Against Employers in PA (Podcast)

May 22, 2023/in Asbestos, Podcasts/by Paul Kelley

In this podcast, Paul Kelley from Satterley and Kelley talks about employer liability for asbestos exposure that leads to mesothelioma. He explains when employees may qualify for worker’s comp and when they may be able to make a claim under the tort system. The latter provides additional benefits including compensation for pain and suffering.

John Maher: Hi, I’m John Maher. 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. Today, we’re talking about unique rules for pursuing asbestos claims against employers in Pennsylvania. Welcome, Paul.

Paul Kelley: Hey, John. How are you doing today?

Employer Liability for Asbestos Exposure

John: Good, thanks. So, Paul, can employees sue their employers for asbestos diseases under Pennsylvania law?

Paul: So, under most circumstances, John, yes. It used to not be that way. About 10 years ago, very good lawyers, unfortunately not me, but some very good lawyers got the high court in Pennsylvania to change the law because, under the Workers’ Compensation laws in Pennsylvania, if the diagnosis of mesothelioma, for example, came in more than 300 weeks after the employee’s exposure ended, then it extinguished the cause, the Worker’s Compensation claim, before you actually had a disease, in order to file one.

And it always seemed unfair because people get this disease and, ordinarily, they would be able to recover some Workers’ Compensation benefits and get some recovery for this terrible disease that they got. But if it happened 301 weeks after their last exposure, then they were out.

Diagnosis After Exposure

John: And then, that’s a problem for mesothelioma cases because of the latency period. You can get mesothelioma 10, 20, 30, 40 years after your exposure. It’s much more typical that it happens after 300 weeks.

Paul: Absolutely. I mean, hardly anybody is diagnosed after 300 weeks of exposure. Now, again, it’s 300 weeks from the last exposure, not the first exposure. But still, what we see typically is 20, 30, 40 years after somebody stops being exposed, they’re diagnosed with this condition. 300 weeks is less than 10 years.

So, a lot of people were precluded from being able to recover any benefits at all from their employers. And, so, a lot of us lawyers complained over the years, that’s unfair. And if we can’t recover under Comp, and Comp, by the way, Workers’ Comp, is statutory, so the legislature enacts those laws, and only the legislature can do anything about increasing or decreasing the amount of time.

And I suspect that the reason that the 300-week limitation is in there is because it was a compromise with insurance companies that insure all of these different companies. It was a compromise that, “We want to know when our liability will end.”

Shifting From Worker Comp to Tort Claims

So, fair enough. But, again, the problem is that people are left without any recovery. And, so, there was a big push, back in the early 2010s, to try to get the law changed, which the courts can do, to allow employees to sue their employers if they’re precluded by the statute from pursuing a Workers’ Compensation claim.

And as you can imagine, Pennsylvania employers that exposed people to asbestos there fought very hard against that. But there was a breakthrough in 2013, and the law was changed. And it now allows people to sue their employers, again, if their last exposure was more than 300 weeks from their diagnosis.

And this provides a benefit, a huge benefit, to people. Workers’ Compensation laws are not great, in terms of what you can recover, but one of the big benefits of Workers’ Compensation law is you don’t have to prove anybody who’s at fault. All you have to prove is that you suffered a work-related injury. And if you suffered a work-related injury, then the employer has to pay whatever benefits are available, usually medical expenses, lost income, sometimes a survivor’s benefit to the widow or widower of the employee, but at least you don’t have to prove that somebody necessarily did anything wrong.

So, by knocking it out of the Comp system, while there are more damages that are available, pain and suffering being a big one that you just don’t get in Workers’ Comp, you have to now prove that somebody’s at fault, your employer was at fault, for causing you this disease.

Employer Defenses Against Mesothelioma Claims

And the employer’s going to say a lot of things about that. They’re going to say, “Well, manufacturers of products caused the disease. Suppliers of products caused the disease. Contractors that came into our employment caused the disease,” or “Maybe we did cause it, but we didn’t know that companies were giving us asbestos,” or “We didn’t know asbestos was hazardous or that it would cause this cancer.”

And, so, they have some defenses. So, it’s not necessarily this great, wonderful thing that you’ve been knocked out of the Comp system, and now you have to pursue this tort claim. But what it does do is it provides people in 2023 a remedy that they didn’t have in 2010, because now they can pursue this.

And it is better than Comp, in the sense that Comp, quite frankly, just doesn’t compensate people well enough for the kind of injury that’s at issue here. Workers’ Comp is wonderful for injuries that people get over. That’s wonderful for cuts and scrapes and burns and some small, broken bones-

John: Broken leg or something like that, yeah.

Paul: But it’s not very good for someone who gets terminal cancer.

John: Right.

Pain and Suffering in Mesothelioma Cases

Paul: And that’s what mesothelioma is. It’s a terminal cancer. So, while we have to do a lot of work in order to prove that the employer’s negligence caused the injury to our client, if we’re able to do that, then the employee is now able to get a full range of benefits. And again, as I mentioned before, they can recover pain and suffering. And that typically is tremendous.

I mean, the physical and mental pain associated with mesothelioma, the emotional distress, the people suffer knowing that they’re probably going to die from this condition. And sometimes people are young, and they have families, and there’s some benefits that are available to the families under the Tort System that aren’t available in the Workers’ Compensation scheme.

And, so, it’s a good thing. It’s a really good thing. And Pennsylvania has been one of the leaders in the country in recognizing the inequity involved, of just completely leaving people without a remedy because they weren’t fortunate enough to, fortunate in quotes, to get this disease before the expiration of that 300-week mark.

And, of course, people can have more than one employer that contributed. And, so, you can potentially pursue claims against any employer that you believe is responsible for causing the disease.

So, a lot of people, particularly people that worked in manufacturing and kind of your more blue collar-type jobs, they get conditioned, “Workers’ Comp, Workers’ Comp, Workers’ Comp. That’s all I can do. That’s all I can get.” And I’m here to tell you that, right now, as things stand in 2023, that’s not all you can get. In fact, you may not be able to get Comp at all and can recover directly in a lawsuit against your employer for causing the disease. So, it’s very important to understand that right and to not just assume that you’re limited in what you can get.

Now, I’d be remiss, John, if I didn’t let people know that, as you can imagine, this is a lightning rod issue for the employers in Pennsylvania. They thought they got their peace years ago, when the Workers’ Compensation laws were put in full force in effect. And, so, they are continuing to pursue ways to get the law changed back to what it was prior to the court’s decision back in 2013.

Thus far, those efforts have been unsuccessful. And right now, if somebody is diagnosed with mesothelioma today, and, again, that last exposure was more than 300 weeks ago, they can pursue a claim and try to prove that their employer’s negligence caused their disease.

Other Liable Parties for Negligence Claims

John: Right. So, prior to 2013, you could still pursue a negligence claim, but it was not against the employer. You had to go up against these, the manufacturers and the suppliers of the products that contained asbestos and things like that. And it’s just that, now, after 2013, in addition to those which are still in effect, and you can still go after those manufacturers and suppliers, you can also file a claim against … directly against your employer as well.

Paul: Yeah, that’s absolutely right. And it also provides the additional benefit that the employer was such an easy target for the manufacturers. Pre-2013, everybody pointed to the employer and said, “Well, it was their fault because they had the ultimate responsibility for providing safety to the employee.”

John: Mm-hmm.

Paul: While I certainly agree that the employer has that responsibility, I don’t agree that they’re the only ones that had that responsibility.

Well, now, when the employers are in this case, guess what they do? They fight back. And it creates, in a lot of ways, the perfect storm for the victim because now you have all the right parties there, and at some point, they’re going to become adverse to each other, and at some point they’re going to start pointing fingers.

And our experience is that a jury will typically pick somebody. I mean, they’re not going to … They almost never say, “Oh, this just happened,” in the face of overwhelming evidence that somebody was exposed to asbestos and that asbestos causes mesothelioma.

So, yeah, the law has always been such that you can recover in the civil justice system, the Tort System, from manufacturers, suppliers, contractors, other at-fault parties, but now it provides this other unique source of recovery if the Workers’ Compensation Act precludes compensation.

Establishing Liability for Asbestos Exposure

John: Right. Do you find in a case, too, that because you have both employer and the manufacturers involved in the case, that they start pointing fingers at each other and, in order to do that, they really have to admit that, “Yeah, this person probably got mesothelioma because of exposure to asbestos from our products.”

And, so, it almost helps the case overall because, in order for them to point fingers at each other, they have to be admitting that, yes, this product did contain asbestos, and this person probably got mesothelioma from it.

Paul: And that’s absolutely what happens. I could probably talk about this particular issue all day, but for the purposes of our discussion today, when I started doing this over 20 years ago, there wasn’t as much pushback that asbestos caused this person’s disease. That was almost always a given. And the way they defended was, “It was somebody else’s that caused it. It wasn’t us.”

Now, in the last 10 years or so, we’ve seen a lot more pushback, that someone’s mesothelioma was actually caused by asbestos exposure. I’ve always found that to be, for the most part, kind of a loser argument. It’s kind of like, “Oh, well, there’s all this exposure here, so we’re just going to say, ‘Oh, this person just had bad luck, bad genetics,'” whatever the case may be.

But whenever we’re in trial, and it doesn’t matter where we are anywhere in the country, whenever we’re at trial, ultimately, there’s finger-pointing. I mean, they may, at some point, put on a medical defense and try to assert that it’s just not asbestos-related at all. But if they do that, we inevitably hear the infamous, “If it was caused by asbestos exposure, then it was their exposure.”

And it’s almost always the employer, if it’s occupational exposure, as opposed to somebody doing some brake mechanic work on the side or something else, inevitably, they always point the finger at the employer. It’s always the employer’s fault.

And they do that because, prior to 2013, at least in Pennsylvania, the employer’s not there. They’re not at that trial. They’re not there to push back. They are the easiest target. Now, they’re there, and they push back, and they push back at the manufacturers. And they give the jury the full story. I mean, we’re giving that to them. But they’re solidifying the full story to the jury as everybody’s responsibility for causing the injury.

And asbestos and the diseases caused by asbestos, they’re unique. Nobody can really say that it was this exposure over here that caused the disease, and this exposure over here had nothing to do with it. I mean-

How Employer Liability in Pennsylvania Has Changed

John: Right.

Paul: Medically and scientifically, I don’t care what anybody says, nobody can do that. And the way the medicine and the way the law is developed is, we recognize that there can be multiple causes for this disease. Sometimes, there can be many, many, many causes for the disease. And when I say causes, I mean asbestos causes. Somebody may work at 35 job sites, and it can cause a disease, or they may work at one job site, but there’s 35 different products that are supplied to that job site. And they can all be-

John: Right.

Paul: Responsible, both medically and legally. And again, we won’t dig into the weeds too much, but there’s a slight difference between medical causation and legal causation.

But employers can be held responsible for their responsibility in contributing to the exposure. And then, of course, the manufacturers and suppliers can also be held responsible because they’re the ones that made the product. They have a responsibility under State law to provide a safe product.

But employers, since the beginning of time, have always had a huge target on their back. And up until 2013, they were really the whipping boy of every asbestos defendant because they weren’t there to push back.

Well, now they’re there, so they’re a lot harder to push the blame on. And for our purposes, it’s a lot harder for a jury to give nothing. If the employer’s there, and the jury thinks the employer’s at fault for causing the disease, now the victim can recover for that.

What You Should Do If You Were Exposed to Asbestos While at Work

John: And, so, if you’ve been diagnosed with mesothelioma, and you think that that was caused by your exposure to asbestos from working at a company in Pennsylvania, what should you do next?

Paul: Certainly, contact a lawyer. I mean, I mentioned earlier today that a lot of folks are conditioned to believe that they only have a Workers’ Compensation claim. That may or may not be true, depending on the facts of your case. So, don’t speculate or assume anything. Speak to a lawyer. See what information there is about that particular job site or job sites that they work for, and fully assess your rights to pursue whatever remedies are available to you.

And as we’ve mentioned numerous times that we’ve gotten together, this is a devastating diagnosis. And, so, it’s important to get medical care and medical treatment under control and make sure that the doctors have set up a plan that makes sense for you and your family.

But in terms of what we do and asbestos lawyers do, nothing gets better through the passage of time. So, the quicker that retain a lawyer and the quicker the lawyer can start investigating and pursuing the claim, the greater chance of recovery that you have.

John: And is there a Statute of Limitations on pursuing a claim in Pennsylvania?

Paul: For asbestos cases in Pennsylvania, it’s two years from the diagnosis. That can be lengthened a little bit if there’s a bonafide issue as to when you knew or should have known what caused your disease. But the rule of thumb is, you can’t go wrong if you file your case within two years that you were diagnosed. And that’s certainly what we try to do and try to get it filed much sooner. But you do have two years, and it goes by quickly.

Contact Satterley and Kelley for Help

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

Paul: Thanks, John.

John: And 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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What is Product Liability?

May 18, 2023/in Personal Injury/by Paul Kelley

Products liability is a personal injury claim that applies to injuries, deaths, or property damage caused by a product or device available to the public. While in car accident claims, you would need to show the other party acted negligently, that’s not the case in products liability claims.

These lawsuits aim to compensate those injured or killed or owners of property damaged by products. The victim used it as it was intended to be used and as it’s marketed and advertised, but harm happened anyway.

Products liability lawsuits put the costs of these unexpected and unwarranted injuries on those making money from them. They also encourage manufacturers to make safer products and use better, more accurate instructions and warnings.

Generally, product liability cases boil down to one or more of these allegations:

Design defects: The product’s design is intrinsically dangerous for its intended use, no matter how well it’s manufactured
Manufacturing defects: The manufacturing or assembly process is defective, so a product that might be safe and useful “on paper” is dangerous to users
Failure to warn: The product is sold without sufficient labeling, instructions, or safety warnings. If the public isn’t told of possible dangers and users aren’t warned about them, if that risk of harm is realized, the user should be compensated for resulting injuries and financial losses

In negligence cases, parties who made serious mistakes that led to the injury pay compensation. In products liability actions, a plaintiff can be successful if he or she shows the defendant put a defective product into the marketplace and it caused injuries.

What is Kentucky Law for These Cases?

Kentucky statute defines a “product liability action” as any legal claim brought for or on account of personal injury, death, or property damage caused by or resulting from any product’s:

Manufacture
Construction
Design
Formulation
Preparation
Processing
Assembly
Testing
Warning
Instructing
Marketing
Advertising
Packaging
Labeling

Other issues include the fact that a manufacturer is liable if, before the accident:

The product is used in its original, unaltered, and unmodified condition
The user changes the product according to the manufacturer’s specifications or instructions
The product becomes dangerous after ordinary wear and tear

A manufacturer won’t be liable:

When the user fails to perform routine care and maintenance
Even if the product is defective or the manufacturer is at fault, if the user made an unauthorized product change or failed to use ordinary care when using it and that was a substantial cause of the accident and the injury or property damage

Non-manufacturers can be liable for harm under Kentucky law under certain circumstances:

If a wholesaler, distributor, or retailer who distributes or sells a product can show it was sold in its original condition or package or in the same condition as when it was received, they won’t be liable just because they distributed or sold the product
An exception to this rule is there can be liability if the wholesaler, distributor, or retailer breached a warranty or it knew or should have known the product was defective or unreasonably dangerous to the user

As you can see, these cases can be complex. If you’re seriously injured by a product, device, or machine, call our office so we can discuss if you may have a case against those selling the item.

What are Examples of Product Liability Cases?

These cases are only limited by the products, how they injured people and property, and what caused them to be defective:

Johnson & Johnson is accused of causing customers’ cancer by selling talcum powder contaminated with asbestos
Ford was sued for providing defective tires on its vehicles and for airbags that don’t deploy during accidents
Ryobi was sued because their table saws lacked safety devices that could prevent a user’s fingers from being cut

Lawsuits may be brought against parties for any dangerous defective product if it causes injuries or property damage.

Schedule A Free Consultation — Contact Us Today

You might have a valid compensation claim if you or a loved one suffered an injury or extensive property damage due to a dangerous or defective product. Schedule a free initial consultation where you can discuss your case with an experienced product liability attorney. Call 855-385-9532 or contact us online to reach our office in Louisville.

Dram Shop Law and Liability (Podcast)

May 15, 2023/in Car Accidents, Podcasts/by Paul Kelley

In this podcast, Paul Kelley explains dram shop liabilities. He explains what dram shops are. Then, he outlines how they can be liable for injuries when they overserve a patron who gets into a drunk driving accident or causes certain other types of injuries.

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

Paul Kelley: Hey, John. How you doing today?

What Is a Dram Shop?

John: Good, thanks. Paul. What is a dram shop? Where can these cases originate?

Paul: Sure. A dram shop is essentially a bar or a restaurant. It could be a venue like a concert hall, a stadium. It’s a place that sells liquor to patrons. Those patrons occasionally can be overserved, can become intoxicated and cause injuries to others in a variety of ways. Many states, including the state of Kentucky, have dram shop laws that can allow people to hold a dram shop or the restaurant, bar, facility responsible for causing that injury.

Types of Liability Cases Related to Dram Shop Overserving

John: Okay. Do liquor liability cases like this only happen in the case of a car accident where somebody was overserved and then they get into a drunk driving accident afterwards? Or can it be for other reasons as well?

Paul: That’s certainly the most common, motor vehicle collisions. I mean, the classic dram shop case is one where someone goes to a bar or restaurant and consumes a considerable amount of alcohol over a period of time. That person becomes visibly intoxicated to the dram shop, to the bar, to the person serving them the alcohol.

That’s really the standard in Kentucky and in most states. It’s not that the bar contributed to the intoxication. It’s that the bar contributed to intoxication to the point that the bar knew, or should have known, that was occurring, and allowed the person to become overserved and then allowed the person to leave the bar, get into their car and cause an injury.

There have been dram shop cases for circumstances other than motor vehicle accidents. I mean, we’ve seen them in physical assaults, gun disputes, sexual assaults, things of that nature. I think the burden to prove a case in things other than motor vehicles can be a little heightened. Certainly, there’s always foreseeability issues and things like that, that a bar would say, “Well, guys, we didn’t know that we served somebody, that they would sexually assault a person in another location miles away.” Certainly, cases like that have been filed and successfully pursued.

But your most common case is going to be the situation where a person gets behind the wheel of their car after being overserved by that bar, restaurant. They didn’t even necessarily have to have all of the alcohol in that one location. You could have five drinks at your home or at another establishment. But it’s really what happened in that particular dram shop as to whether that dram shop can be held responsible for causing or contributing to an injury.

Again, the standard always is did they know, or should know, that this person was intoxicated to the point that they would be a danger behind the wheel of a car. There’s no hard and fast rule. I’m sure you’ve heard, all of the listeners have heard about the various drunk driving laws in all the states. Most states have a blood alcohol level of 0.08, which is presumptively intoxicated.

There’s nothing that says that if you get the person to 0.08, that’s going to be a presumptive liability for a dram shop. Everybody is different. Some people, for whatever reason, have a very high tolerance to alcohol, and 0.08, at least to the casual observer, is nothing for that person. Other people, a couple drinks, don’t get anywhere near the presumptive level, they may be visibly intoxicated at that point, and the dram shop should have taken some responsibilities to try to prevent that person from becoming more intoxicated, and in some situations, to prevent that person from getting by the wheel of a car.

Responsible Parties in a Dram Shop Case

John: Okay. Who are the responsible parties in a liquor liability or dram shop case?

Paul: Well, the obvious person who’s liable is the person that overconsumed alcohol and caused a collision, or committed a crime or assault or something like that. The individual is ultimately the one that’s responsible. Some states do it a little bit differently, but in Kentucky, the way we’ve handled it is we have a statute that says, “The driver is always the primarily responsible party for causing an injury or death as a result of drunken driving or some other substance.”

But we’ve carved out this little exception that enables us to also hold the dram shop or the bar, the restaurant, the concert hall, the football stadium, places like that, they become secondarily liable. That’s more legal stuff that our listeners don’t need to worry about, but for the purposes of somebody gets into a motor vehicle collision, you’re minding your own business and somebody slams in your vehicle and causes horrible physical injuries, a lot of folks may be thinking, “Well, the driver.”

A big problem that I think everybody has in every state, and we certainly have in Kentucky, there are insurance requirements for drivers of motor vehicles, but the minimum limits are $25,000 per person, $50,000 per incident. What that means is that if it’s just one person in the vehicle that’s hurt, it doesn’t matter what the injuries are. The insurance could literally be limited to $25,000. You could have two broken arms and seven broken ribs and a multitude of other injuries that incur tens of thousands, hundreds of thousands of dollars of medical expenses. So you’re limited to that insurance.

Now, fortunately, not everybody carries the minimum limits, but a lot of people do. So folks are thinking, “Well, my gosh, what am I going to do?” Well, that’s where we come in. I have no idea when a case comes in the door, for the most part, whether the defendant driver was consuming alcohol or if that is part of the police record. We don’t know where and the circumstances.

Other Responsible Parties in Liquor Liability Cases

John: Right. They could have been consuming the alcohol at home and then gone out and driven.

Paul: That’s right. There’s not going to be a dram shop in that circumstance. There typically is not a dram shop case if somebody just goes to a private person’s party and is served alcohol there. It’s generally limited to establishments, places that serve alcohol for money or have liquor licenses and things like that.

Now, there’s always some carve-outs. If a minor’s involved in a drunk driving accident, you can hold either parents accountable, or you can hold the venue where they were drinking, even if that was a private situation.

John: If there was maybe underage drinking involved where there were adults present or something like that.

Paul: Yeah. That’s absolutely right. I mean, we obviously have a huge public policy against drinking and driving in general. We definitely have a huge policy against drinking and driving by minors. If a minor was served alcohol by their parents or served alcohol at some other adult’s home, that’s a big problem for everybody.

You can hold the adults responsible, in addition to the kid. That’s a bit of a digression, but when we get a case like that, the first thing that we do is try to figure out where the person consumed alcohol and see where that leads. Frequently, it leads to a bar or a restaurant. Over a period of time, we’re able to conduct discovery and figure out that they were either served a lot of alcohol there, where it would’ve been obvious.

Again, I told you there’s not really a hard line as to, well, 0.08 for one person is different than for another person. 0.15, I mean, that’s almost twice the legal limit, that doesn’t establish a bright line, either. It depends on the person. A lot of it is subjective, but there certainly gets to a point where anybody could know that they likely overserved somebody.

I mean, think about your common experience everywhere in America. The Super Bowl is coming up here in a couple weeks. People sit in a bar for four hours, and they’re served by the same person for that four-hour period of time, and drink after drink after drink. They know at some point that this person probably is unfit to drive a vehicle. You don’t necessarily have to exhibit signs of slurring and stumbling and things like that. If you’ve served somebody 12 drinks in a three-hour period of time, they’re probably beyond the capacity to safely drive a vehicle, and you should know that.

Then, certainly, in the situation where the person is not being served by the same person the entire time, or again, they went to another establishment, it becomes more difficult. It’s a little bit more subjective. But all these places either have policies in place to prevent alcohol intoxication or overservice, or they should have policies in place. I mean, that’s really how we end up proving those cases. Either you’ve failed to put a policy together, period, which is a big problem because it’s a tremendous privilege that a bar or restaurant or any drinking establishment gets to be able to serve alcohol. I mean, every state, every city requires a license. You hear all the time, “Oh, this new place opened up. They got a liquor license, but it’s limited. They can only sell beer.” Or whatever the case, or that liquor license.

Responsibilities for Liquor License Holders

John: Right. Or there’s only a certain number of licenses available for that town, and one just opened up, and this new place got it. Something like that.

Paul: Absolutely. With that privilege comes tremendous responsibility, of course. Your big franchises, you know who they are. They’re all over the country. They typically have policies in place. The best ones actually follow the policies and limit alcohol consumption and monitor and implement all of the things that you would do to try to prevent overservice.

What my experience, unfortunately, has been is that the policy exists, but the policy is not followed. They want to sell as much alcohol, food, and whatever they can to a particular person. Most of the waitstaff and bartenders and whatnot are not trained properly. They’re not monitored to determine whether they’re following the policy. That’s always a big problem because it creates a standard of care.

These policies will even go so far as to give them charts that’ll say, “If you serve somebody so much alcohol over a period of time, there’s a burn-off rate.” It sounds complicated, but it’s real easy for somebody to say, “You need to cut somebody off at four drinks in an hour and a half,” or whatever the policy happens to be.

The bigger problem always is, “Well, we don’t have a policy.” That just means it’s essentially the wild west in that facility, and whatever goes. I’d say that that’s probably more common at your smaller-type venues or places that aren’t franchised and that sort of thing. But to get back to your question, typically speaking, the driver of the vehicle is always going to be primarily at fault and will never be able to avoid liability.

If they crashed into somebody and caused an injury or death, they’re on the hook. The dram shop is not automatically on the hook. We still have to prove these things. We have to prove that they either contributed, in whole or in part, to the intoxication that they knew, or should have known, that the person who ultimately caused the collision was overserved, and more likely to cause whatever ultimately occurred.

Establishing Dram Shop Negligence

John: How do you end up showing negligence of a dram shop in a liquor liability case? Again, you go back to the policy. You could point to the bar or restaurant maybe exceeding the limit of what they had set up in their policy, or if they don’t have a policy to begin with, that’s an issue.

Are there other ways that you can show negligence? Do you end up having to do interviews with the owner or the servers at the bar to try to figure out exactly what happened? How does that all work?

Paul: Sure. Again, it all depends on the access that you have to various people, but the driver of the vehicle who caused the collision frequently can be the best source of information. It’s an unspoken issue out there. I mean, if they’ve caused a collision like that, they want the bar to be on the hook as much as them. I mean, they’re in big trouble no matter what.

John: Right. It doesn’t eliminate their responsibility, but at least it puts some of the onus on the bar instead.

Paul: We’ve certainly seen this happen. Sometimes the at-fault driver dies in the collision, and you have no access to that person. Sometimes they are so intoxicated, they black out, and all they can tell you is, “I don’t remember anything.” Or they’re so injured that they don’t remember anything. We go through the process. It takes a long time to try to figure it out out because sometimes we’re starting at ground zero.

We have no clue as to who could have been involved. Ultimately, you want to talk to anyone that was consuming or present when the driver consumed alcohol. I mean, that’s a big factor. You want to get information concerning this person’s demeanor before and after entering the bar, how long they’d been there, what they drank, as much as you can recall, quickly, they drank the alcohol. You want to get information like that. That can certainly be key.

Then, yes, you absolutely have to talk to the bartenders and the waitstaff, the people that actually serve the alcohol. Now, typically, we wouldn’t be able to interview those people. I mean, you have to file a lawsuit against the entity. You have to take a deposition and get their testimony under oath. Lots of times, as you can probably imagine, the waitstaff and bartenders, they just can’t recall what happened. It could be intentional. It could be that they work for such a place that there’s so many people coming through that they couldn’t possibly remember.

You want to find out how people pay. I mean, we’ve almost gotten to the point today where hardly anybody takes cash. I mean, you can’t go to a ballgame. You can’t go to any event anymore. It’s irritating. It’s irritating to me when I have to use a credit card for a $5 purchase. But credit cards are great for creating histories. Most of these places have electronic systems now. They maintain those systems for a period of time, and they can access what they served or what they sold to somebody. Obviously, somebody could have paid for 12 people, and it looks more than what it was. But you get the point. That is a way to objectively recreate the alcohol consumption by finding out what they bought.

A lot of these places have video surveillance systems. We’ve seen that before. It takes time and effort to do, but you can literally track a person when they walk into a bar, and you can cover every minute that they’re there and at least get some idea what they’re drinking during the period of time.

John: Right. How many times they went up to the bar and got another drink or something like that. Yeah.

Paul: That’s right. Maybe they just sat at the bar, and we got to see them the entire time that they were there. But it can be a challenge. It can be a challenge for sure, and it requires a lot of time, effort, energy, sometimes a lot of money to do. It doesn’t always work out. If you’re able to establish that the at-fault driver was intoxicated, and everybody should have known that person was intoxicated, and they got behind the wheel of the car, and they injured somebody, or they did something else that’s terrible, typically speaking, you’ve got a pretty good case.

Obviously, whenever there’s a DUI-type accident or collision, I mean, the injuries are almost always terrible and catastrophic, and the damages are high. This gives people an opportunity to be properly compensated for their injuries as opposed to those little insurance limits that, for some reason, most of the people who get involved in these kinds of things tend to have the lower limits.

It’s another way for people to get proper recovery. It’s also another way to hold these businesses accountable and make sure that they understand and appreciate the responsibility that they have that comes with this privilege that they’ve been granted.

Contact Satterley and Kelley for Personal Injury Law Needs

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

Paul: Thanks, John, I appreciate it.

John: For more information about dram shop liability or mesothelioma and asbestos exposure, visit the law firm of Satterley and Kelley at satterleylaw.com, or call 855-385-9532.