Talc Lawsuit

New Ruling Against Johnson & Johnson Puts Thousands of Asbestos Cases Back in Motion

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For those following the J&J asbestos cases and associated bankruptcy, a recent new development has changed the playing field in significant ways.

To catch up readers who may not be familiar with the case, here are the basics:

Asbestos Contamination and Initial Lawsuits

  • J&J produced asbestos-contaminated talcum powder products for many decades—and were allegedly aware of the contamination. Johnson & Johnson’s talcum powder products, including baby powder and Shower-to-Shower powder, consistently tested positive for asbestos contamination since at least the 1950s. Internal J&J documents indicated that the company was aware of this and continued manufacturing the products regardless, even after the dangers of asbestos became abundantly clear around the late 1970s.
  • Many tens of thousands of people who were exposed to asbestos via Johnson & Johnson products have developed ovarian cancer or mesothelioma.  Medical research has causally linked the use of asbestos-contaminated talcum powder to both conditions.
  • Thousands of lawsuits have been filed against J&J for damages by cancer patients and their families. Many victims who were exposed (or had their loved one exposed) to asbestos via a J&J product have filed lawsuits against the company for damages. Approximately 50 of these lawsuits have gone to trial so far, resulting in billions of dollars in jury verdicts against J&J. There are nearly 40,000 similar suits currently pending.

J&J’s Bankruptcy Scheme

  • To avoid liability, J&J utilized a scheme called the “Texas Two-Step”. While some believe that J&J went bankrupt from their lawsuits, the truth is much more complicated—and much more unfair to the people who have been harmed. In fact, Johnson & Johnson never went bankrupt, and continues to operate as a very lucrative company worth hundreds of billions of dollars, if not more, to this day.

To avoid having to fairly compensate their victims and creditors, J&J utilized a procedure called a “divisive merger” (also known as the “Texas Two-Step”) in 2021. This involved forming two new companies: one with all of the assets, the product line, and nearly all business J&J is involved with, which would continue  operating as usual, and the other, LTL Management, with all of the talc liability.

LTL Management was immediately moved to North Carolina, a jurisdiction considered more favorable to corporate interests, and then declared bankruptcy a few days later. The North Carolina bankruptcy court ultimately moved the case to New Jersey, where Johnson & Johnson is headquartered.

  • As a part of the ensuing “bankruptcy” proceedings, all of the lawsuits against Johnson & Johnson were frozen as of October 2021. When a company declares bankruptcy, all lawsuits against it are immediately paused (or “stayed”). As a result of the legal maneuvering involved in the “Texas two-step”, when LTL Management declared bankruptcy, all of the nearly 40,000 asbestos lawsuits filed against Johnson & Johnson were effectively frozen.
  • Johnson & Johnson submitted a bankruptcy plan, which was granted preliminary approval. This “bankruptcy” plan would not involve J&J functionally going bankrupt at all. Rather, it would involve funding LTL Management only a certain amount, which would be divided amongst its creditors (i.e., the people with asbestos lawsuits against J&J), thereby getting rid of the lawsuits and all future lawsuits and allowing J&J to continue operating as usual without suffering any of the normal consequences of declaring bankruptcy.

The Update

  • In January of 2023, Johnson & Johnson’s bankruptcy plan was rejected by the U.S. Court of Appeals for the Third Circuit. A group of asbestos claimants asked the bankruptcy court handling the case to dismiss the bankruptcy or lift the stay on lawsuits against J&J, so that people pursuing those lawsuits could have their day in court.

The bankruptcy judge handling the case in New Jersey rejected that request, with the reasoning that claimants would get a much more expedient resolution in bankruptcy court. He argued that since there were so many lawsuits and only 50 had gone to trial so far, it would take far too long to do it any other way.

However, the claimants disagreed with this ruling, and went straight to the Third Court of Appeals to appeal it. After hearing their appeal, the Third Court of Appeals ruled in the claimants’ favor, saying the bankruptcy should be dismissed. The Court of Appeals further found that the bankruptcy was not filed in good faith, since the company was not actually in financial distress (in part because the actual parent company, J&J, was not in financial distress).

  • This means that all previously frozen asbestos liability lawsuits against Johnson & Johnson are back in motion. As a result of this massive win for claimants, the cases will be returned to the court system, and those harmed by Johnson & Johnson will be able to pursue their claims individually, as had been done in the past.

Barring further legal interference by Johnson & Johnson, it is expected that by spring or early summer of 2023, all those who filed lawsuits against Johnson & Johnson for asbestos exposure damages will be able to have their day in court.

The attorneys working hard on behalf of those who have been harmed by asbestos exposure via Johnson and Johnson talcum powder products are thrilled with this development. They look forward to helping their clients get the justice they deserve and are entitled to by our tort system and the Seventh Amendment of the Constitution.

Have you or a loved one been damaged by exposure to asbestos-contaminated Johnson & Johnson products? Let us fight for you.

Contact the Law Firm of Satterley and Kelley PLLC at (855) 385-9532 to learn more.

Social Security Disability Benefits

I Have Mesothelioma. Do I Qualify for Social Security Disability Benefits?

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Applicants with the most debilitating conditions, including mesothelioma, are typically awarded benefits without going through the process that usually determines eligibility. If you have sufficient documentation of your diagnosis, it shouldn’t be a problem. You should bypass the process used for most applicants and be awarded expedited benefits.

What are Social Security Disability (SSDI) and Supplemental Security Income (SSI) Programs?

SSDI and Supplemental Security Income (SSI) programs help those meeting benefit requirements.

  • SSDI pays benefits to you and certain family members if you are considered “insured.” This requires that you worked long and recently enough while paying Social Security taxes on your earnings
  • SSI pays benefits to those considered disabled and who have limited incomes and resources. It allows people who have been unemployed long term or who “worked under the table” and didn’t pay Social Security taxes on their wages to receive disability benefits

There are different qualifications, but the medical requirements are the same. If you pass them, you should receive monthly benefits if your medical condition’s expected to last at least one year or cause your death.

What is the Compassionate Compliance Listing?

The Social Security Administration (SSA) gets more applications for disability benefits than it can comfortably handle. Severely disabled applicants waited for extended periods for their application to be decided while those less afflicted filled the system.

The agency created the Compassionate Compliance Listing to cut some of the backlog and provide benefits to those most deserving. If an applicant’s condition is on the list, the application gets a shortcut to approval. Decisions would be made in weeks, not months or years. This listing includes pleural, peritoneal, and pericardial mesothelioma.

Typically applicants need to establish their diagnosis and how it prevents them from performing any paid work for at least a year to get benefits. That’s not the case if you have mesothelioma.

How Do I File for Benefits?

Satterley & Kelley, PLLC, can help you through the process. You’ll get benefits faster if you take your time and provide the necessary information and documentation with the first application instead of re-filing applications and filling in gaps. A complete application has a better chance of approval.

You can apply online, on the telephone, or at the local SSA office. You can start the online application, stop, and start again later. The SSA provides this Starter Kit so you can learn what information is needed. Part of it is a medical and job worksheet to fill out.

No matter how you file for benefits:

  • Thoroughly answer all of the questions
  • Make detailed explanations and avoid general answers
  • Submit any relevant medical evidence. Your oncologist should be familiar with what the SSA is looking for both in the types of documents and the information on them

Though the SSA will want a lot of information, don’t be intimidated by filing for benefits. If you have mesothelioma and take a systematic approach to the application, the information, and the documents being sought, you should be awarded benefits. If not, we can solve problems with the application, and the decision can be appealed.

Get Boots on The Ground Working For You

At Satterley & Kelley PLLC, we aim to take action in asbestos exposure cases. We help victims and their families in whatever way we can. You may have a valid compensation claim if you’ve been diagnosed with an asbestos-related disease. Don’t hesitate to contact us to discuss your case in a free initial consultation.

To schedule an appointment with the experienced mesothelioma attorneys at our firm, call 855-385-9532 or contact us online.

Train Collision and Train Derailment

Train Collision and Train Derailment Injury Cases (Podcast)

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Paul Kelley from the Satterley and Kelley personal injury law firm talks about train-related injuries. He explains the types of injuries that can be caused by derailments and collisions. Then, he outlines who’s liable and what to do if you’ve been injured.

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 Kelly, which has over 30 years of collective experience in handling personal injury and wrongful death claims. Today we’re talking about train collision and train derailment injury cases. Welcome Paul.

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

Do You Have a Case If You’re Injured as a Result of a Train Derailment?

John: Good, thanks. Paul, you know a significant train derailment has been in the news lately in Ohio. If you’re injured as a result of a train derailment, do you have a potential case?

Paul: The answer is possibly. Facts of the derailment or the collision always have an impact on whether or not there’s a case. When we’re talking about a derailment, you’ve got two typical situations that occur.

One, you’ve got human error on the part of the engineer who’s operating the train, or you have equipment problems. Maybe there’s a problem with the track, maybe there’s a problem with the train itself. Maybe there’s a problem with some of the switch material or mechanisms that switch tracks. There’s all kinds of potential possibilities for what causes a derailment.

Typically speaking, if a train derails and it somehow causes an injury, whether in some way the train came into contact with a person or a vehicle that a person was riding in or there was a chemical exposure, which I think is what’s occurred more recently and people get sick as a result of that, absolutely there is a potential claim there.

Railroads are not exempted or immune from liability as a result of their stature in this country. If they do something and their negligence or a defective product associated with the train or any of those things that I mentioned, cause an injury, you absolutely have a case. How good that case is, of course, is always going to depend on the injury and the facts of the case and how the derailment occurred, but it’s certainly something that’s worth pursuing.

Who Is Liable?

John: All right. Who do you have a case against? Who could you recover from as if you’re injured as a result of a train derailment?

Paul: Most likely you’ll have a potential recovery from the train company itself. I won’t name any names because that’s not appropriate for what we’re doing today, but there’s numerous train companies that are out there in the country and if it happens to be from human error because the engineer or the conductor didn’t do what they were supposed to do, then you’d have a case against the train company itself.

You could potentially have a case against the operator of the train so the individual in charge. They’re an employee of the company and so that liability is kind of intertwined a little bit, but certainly you have a case against both of them.

As I mentioned before, sometimes train collisions or train derailments can be caused by a defective product. It could be a brake failure, it could be a defect with the rails, it could be a defect of warning lights, it could be broken handrails, it could be the result of communication equipment that failed. In those instances, it’s not just the train company that could be held responsible. It could be the manufacturers of those companies that could also be held responsible if it can be proven that those defects or that there was a defect of those products that caused or contributed to the collision or to the derailment. That just has to come from investigation.

I mean, when a derailment occurs, all we know is that it happened. We know something went drastically wrong. I would contend that the derailment occurs, it’s not just some odd accident that we look the other way and say, okay, well hopefully it’ll turn out better next time. I mean, something went wrong, somebody was negligent. It was the result of a defective product and so when these things happen, we have to investigate.

That comes in the form of interviews of the parties that were involved, witnesses who saw the derailment occur. There’s something called the black box on these trains and I’m sure everybody knows what the black box is, but it’s electronic data that can provide some information. Maybe the train inexplicably sped up at a time when it wasn’t supposed to do that and the black box can give us that information. It can be a complicated investigation for sure, but certainly the people involved in the collision, the railroad company involved in the derailment, and a lot of product manufacturers who provided equipment that may have failed can all be held responsible for causing the derailment in any injuries that occur as a result.

When Outside Contractors May Be Liable

John: Could it be like maintenance workers as well? If maybe there was a part that was failing and the maintenance workers didn’t pick up on that failure in time or something like that?

Paul: Absolutely, or it could be a contractor that provided maintenance to the trucks or maintenance to the equipment and didn’t do such a good job in any of that. Yeah, there’s a lot of potential parties that could be responsible for causing these injuries. The railroads typically do have their own staff to perform maintenance, but that’s not going to be universal. There are plenty of outside contractors that come in and will do all kinds of work for railroads. That’s why the investigation’s so important.

Collisions at Railroad Crossings

John: We’re talking about train derailments in part because of this derailment, this high profile one that happened in Ohio recently. Other than train derailments, are there other types of situations where a railroad could be held responsible for maybe a collision with a car or with a person?

Paul: Absolutely. Probably an even more common occurrence is going to be a collision at a railroad crossing. Now, frequently, John, those are not the railroad’s fault or any railroad employees fault. Sometimes unfortunately, for a variety of reasons, people will negligently go onto a railroad track themselves.

They are trying to beat the train. Hopefully, it’s not a lot of times where people have some bad intentions for themselves, but there’s certainly a lot of situations where people will impermissibly be on railroad tracks when they shouldn’t be.

Then there’s going to be a whole category of collisions that occur that the railroads can be held accountable for. I’ll focus on Kentucky law because that’s where I am but in Kentucky law, at a public railroad crossing, the railroad has several duties. It has to give a warning. Their folks have to give a lookout. If there is an ability for them to stop a train when somebody’s on the tracks and they have sufficient opportunity to do so, they can’t just not act and say, well, that’s that person’s fault, they’re on the tracks.

Probably the most common situation that we see is a poorly maintained crossing. Everybody’s probably encountered one in the past where you have to inch up a little bit because there’s some trees or bushes or some sort of foliage that’s blocking your view down the track. The gate’s up, so you don’t know for sure that anything’s coming. The signal hasn’t rung, and people are trying to progress across the track, and they get hit. And so, railroads have a duty at a public crossing.

What’s a public crossing? To be as simplistic as possible, a public crossing’s one that’s on a state road, county road, a publicly maintained road. They have duties to maintain those crossings in a safe fashion. Again, that includes signals, gates, warnings and making sure that vision’s not obstructed down the track. When those situations occur under the right circumstances, a railroad can be held accountable for causing a collision.

Now, there’s also something called private railroad crossings. Private railroad crossings are a little bit different. Keep in mind the history of this country. I mean, railroads were the way of travel. They were the way of transporting goods across the country for many years before other forms of transportation really existed and became prevalent and so we have a lot of tracks going through this country.

We have a lot of tracks that now go through people’s properties that they’ve been given some access to. The railroad’s responsibility at those crossings are a little bit different. They don’t have the gate requirements, they don’t have the signal requirements and the only time that they can really be held accountable is if a crossing at a private crossing is categorized as something called ultra hazardous.

Ultra hazardous is kind of a nebulous term. It doesn’t have a great definition, but certainly a crossing that has a poor grade. You’ve crossed them before. Have to go up a steep hill a little bit and there’s a lot of gravel associated with it and it’s sometimes difficult to get over real easily, particularly in a normal passenger car. Under some circumstances, that’s been considered an ultra hazardous crossing.

Again, overgrown foliage around the crossing, particularly in conjunction with the poor grade can make a crossing that would ordinarily be safe and the railroad ordinarily had no duties, it can make it an ultra hazardous crossing that now requires the railroad to take certain precautions.

Railroads can assume duties of those crossings as well. If you’ve got a crossing that doesn’t really require a warning or require a gate or require a signal, but the railroad provides all those things and people get to rely upon them and then one day they don’t do those things, somebody gets hurt, an argument can be made that they’ve assumed the duty and now they’ve breached that duty by failing to do it under that particular circumstance.

The answer to the question may be there is no liability for the particular injury or event that happens to some people, but it’s always worth inquiring and asking because it could very well be that the railroad at issue failed lots of responsibilities, which directly led to a collision at a crossing.

Rail Companies’ Responsibilities at Crossings

John: Could the train’s responsibility or the train company’s responsibility in certain crossing cases, especially with the private land, just be that the train has to blow its horn a certain time before, half a mile before it gets to that crossing or something like that?

Then like you said, maybe there would be a case where, oh, the engineer forgot to blow the horn that one time and warn people that it was coming, something like that.

Paul: At a private crossing, they really don’t have to do those things unless they’ve assumed responsibility that they didn’t necessarily have to do. Really, their responsibility at a private crossing is to understand the lay of the land when they’re crossing, when their trains are passing through and if there is some reason to know that a particular crossing’s dangerous, this ultra hazardous type of crossing that we’ve talked about, then they have responsibilities at that point.

Nobody’s going to come up to them one day, no governmental agency, railroads are governed by the Federal Railroad Administration, nobody’s going to come up to them, more than likely, and say, okay, we’ve decided that this crossing right here is ultra hazardous so now you have to do all the things that you have to do at a public crossing. Usually, unfortunately, it takes one event to occur before a railroad’s really reasonably put on notice that a private crossing is particularly dangerous now.

Okay, public crossings, yeah, they have everything that you mentioned. They have all those duties. They have a duty of lookout. They have a duty of warning. Of course, they put the gates up, they put the lights up. I mean, all those things. If they didn’t do those things and somebody got hurt, well then they’ve failed a lot of responsibilities but at a private crossing, it’s really, do they have a reason to know or should know that there’s something unusual or unique about that crossing that is going to lead to injuries that they don’t do something.

Statute of Limitations on Train Collision and Derailment Injury Claims

John: Right, okay. Is there a statute of limitations for filing a claim for personal injury or death caused by a train derailment or a collision?

Paul: Sure. In Kentucky, it’s the same for any other personal injury case. You have a year from the date of the collision or the derailment to file a claim. Now, there’s some circumstances, if we use the chemical exposure example, some people may not realize that they’ve been injured from an exposure to a harmful chemical so they would have a year from the date they know or should know who they’ve been harmed by the chemical release from the derailment and know or should know what caused it.

To file a claim for wrongful death, they have a year to pursue a claim. That year really begins to run from when somebody’s been appointed, the personal representative, over their estate. The bottom line is that in most instances, people who have been injured as a result of either derailment or collision, they know immediately what caused the injury and they have a year to get that claim filed.

Then they need to move quickly because that year goes by fast and because of what I told you about a moment ago, that sometimes it’s not obvious as to exactly what caused the collision. It doesn’t matter whether it’s the railroad company, the operator of the train, or a product manufacturer who caused the derailment or the collision, it’s still a year, and we have got to have time to figure out who it is. Time is of the essence and it’s best to start investigating immediately.

What Should You Do If You’ve Been Injured by a Train Derailment or Collision?

John: What should someone do if they or a loved one or are injured from a train derailment or collision? Why would it be important that they speak with an attorney like yourself?

Paul: Well, again, sometimes it’s not easy to determine whether or not someone else was at fault for causing either the derailment or the collision. The derailment is an easier determination for sure. I mean, these trains aren’t supposed to derail, but they do. I’m not sure what the statistics are, but I’m confident that there’s hundreds, if not thousands of derailments every year.

Most of them are small and what’s considered a derailment is just a slight movement off of a track. Some are catastrophic where they leave the air and topple over and cause all kinds of problems.

Train collisions, sometimes a lot of people would say, well, guys, you’re on the tracks. I mean that you deserve, or don’t deserve, but you don’t deserve to recover from anybody for being somewhere where maybe you shouldn’t have been. Again, there’s so many facts that are associated with how it happened, and everything is bang bang so it’s critical to contact a lawyer. Contact a lawyer that has experience with litigating cases against railroad companies, handling train collisions, handling train derailments, and investigating as quickly as possible to try to uncover everything.

Then of course, as I mentioned just a moment ago, the statute of limitations, it runs fast. It runs very fast. Just waiting three months to talk to a lawyer now impedes that lawyer’s ability to conduct a full investigation because believe you me, the railroad company, as soon as the event happens, within minutes, they have somebody there and they’re conducting their investigation so they can determine what caused the collision. Frequently they come to conclusions that are contrary to the ones that we might come to had we been given all those facts because their mission is to avoid responsibility for these kinds of things. Every collision, every derailment, derailments in particular.

I mean, if you’ve released harmful chemicals into the air or harmful chemicals into the water, I mean, thousands of people are potentially impacted by that, I mean thousands. Most of these chemicals are not going to cause injury that’s going to immediately be noticeable in the next week or month even. I mean, it may be years before people really start to suffer the adverse consequences. The railroad’s going to have all that in their back pocket maybe before people even get sick.

It’s critical to reach out to someone, and the answer may be, we have to wait. Good news is, it doesn’t appear that you’ve been injured right now. Hopefully that’ll always be the case. Hopefully you’ll never get sick. Hopefully you’ll never have to talk to me or anybody else ever again about this. If the reality is that you do, memories aren’t better 10 years from now, they’re great today. The good news is with respect to derailments, a lot of people are collecting a lot of information right away and so it’s a little bit different from other types of things that I do.

John: Right, because of the investigations being done and things like that.

Paul: Absolutely. Some people are going to suffer, like this latest one that’s been in the news, some people are going to suffer more immediate consequences. It may just be property damage, maybe having to move from their home for a period of time while water is examined for harmful contaminants. Some people will be doing more investigation early than later.

Regardless, you can’t hurt to have a conversation. If the answer is there’s really nothing for you to do right now under the circumstances, then that’s fine. The answer could very well be, yeah, we need to get our ducks in a row. Even if you don’t have the case now, the work that we do now can help you later.

Contact Satterley and Kelley to Learn More

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 personal injury and wrongful death claims, visit the law firm of Satterley and Kelley at satterleylaw.com or call (855)385-9532.

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5 crucial safety tips when driving in construction zones

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Highway drivers in the Louisville area will continue to experience slowdowns and congestion attributed to a number of construction projects. With this disruption comes the critical reminder to drive safely in work zones.

Several minor wrecks already have worsened traffic in these areas. Future incidents have the potential to cause harm to drivers, passengers and construction workers. Please take the time to follow traffic rules and be extra cautious when driving in construction areas.

According to the National Safety Council, 898 people died and 40,170 sustained injuries in work zone crashes in the U.S. in 2023.

Here are some important tips to follow when driving in construction or work zones:

Stay alert and slow down

Obey the posted speed limit and look out for road workers. Remember that fines typically double for moving violations in construction zones.

This is especially not the time for distractions behind the wheel such as eating, fiddling with a smartphone or changing radio stations. Pay extra attention to the road. And expect the unexpected as work vehicles and equipment may abruptly enter your lane and other cars may slow or make unexpected stops and lane changes.

Keep your distance

Unexpected things happen in construction zones which is why you need to increase your following distance. While other cars may crowd together and tailgate, keep in mind that this behavior will not get you through a construction zone any faster. Instead, keep your distance so that you have the additional seconds you might need to avoid a wreck.

Make sure a safe distance exists between you and other vehicles. Rear-end crashes commonly occur in work zones.

Always assume that workers are present

Even though a construction zone may not look active, never assume that workers are not on site. Reduce your speed and stay alert for the men and women who could be working, even at night.

Obeying the speed limit in construction zones will not only increase your and the workers’ safety, it could help you avoid other potential collisions.

Obey the flaggers

Construction zones often include flaggers who direct and stop traffic. Any poor decision on a driver’s part may lead to tragedy.

Flaggers are present at construction zones in order to alert drivers of dangers. Some might force you to come to a stop because a piece of heavy machinery needs the lane ahead and others might be indicating that you need to merge into one lane. Follow their instructions in order to avoid an accident with construction zone workers, equipment or other drivers.

Follow traffic rules and stay safe

Safety should always be top of mind whenever you get behind the wheel. This especially holds true when driving in construction work zones, which Louisville-area drivers have seen plenty of recently. By remaining alert and following traffic rules, you minimize the chances of a crash in these areas.

While the above tips can help you stay safe in construction zones, other drivers may not exercise the same amount of caution and you may not be able to avoid a wreck with a reckless driver. If you have suffered an injury due to a car wreck in a construction zone, you might be able to take legal action to recoup your medical expenses, the cost of the repairs or replacement of your car and other damages.

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.

Kentucky Dram Shop Act

How Does the Kentucky Dram Shop Act Work?

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If you or a loved one is injured by someone intoxicated, you may have a cause of action against the business serving them alcohol. The state’s dram shop law has limits, but under the right circumstances, it may provide you with another party who can compensate you for your injuries.

The Basics

Kentucky law states if someone who’s drunk injures you, they are primarily responsible. If that person is under the legal drinking age and a person or business holding a liquor license serves them alcohol, the license holder may also be liable for the harm done.

If the person is 21 years old or older, the license holder may be liable if they knew, or had reason to know, the person was intoxicated before they were served. Whether or not this customer was drunk isn’t the issue.

The issue is whether the person’s actions, speech, words, or behavior put the license holder (or their employees or agents) on notice they are intoxicated. If so, and they were served anyway, they may face liability for your injuries (along with the drunk person who injured you). If they stopped serving them, they wouldn’t be held liable.

The Big Picture

Personal injury cases are based on negligence law. Those cases require several questions to be answered:

  • Did the defendant (the party sued) owe the plaintiff (the party filing the lawsuit) a legal duty of care? In these cases, did the defendant have a legal duty not to serve people who appeared intoxicated? As long as you’re a person the legislature intended to protect with the law (a fellow patron, another driver), the answer is yes
  • If so, was that duty breached? Do the facts show those serving drinks saw or should’ve seen, signs that the person was intoxicated?
  • Was that breach the factual and proximate (or legal) cause of the accident that caused your injuries? Did the drinks the person consume after they appeared drunk play a role in causing the accident? There may be situations where the answer is no. If there’s a multi-vehicle pile-up caused by someone else, and, although intoxicated, the person drove normally, the fact he struck your vehicle may not be the basis of a lawsuit
  • If so, did you suffer damages (injuries and harm measured in dollars) as a result? If the accident was so minor you weren’t injured, and your vehicle wasn’t damaged, you have no case. If the other person is driving on the wrong side of the road, but you pull over in time to avoid a crash, you don’t have a case.
  • Under Kentucky law, must the defendant compensate you? If the facts line up on your side, and we can prove that it’s more likely than not the dram shop law violations at least played a role in causing your accident, you should be awarded damages.

This is the basic framework we work with to build your case. If we can prove each element, you have a good case.

Facts Drive Dram Shop Cases

Evidence fuels personal injury cases. If there’s no evidence, or not enough, the claim, like a car without gas, won’t go anywhere. It may look nice, but it won’t do you any good. We find that evidence by investigating what happened, why, and who was involved.

If there are enough facts to justify filing an insurance claim against a liquor license holder, we’ll do so. If we can’t negotiate a reasonable settlement, we’ll file a lawsuit against the liable parties. An essential part of the post-filing litigation process is discovery.

That’s when both parties discover more facts. It involves:

  • Written questions (interrogatories)
  • Requests for documents and information stored electronically (requests for production)
  • Requests that the other party admit or deny submitted factual statements (request for admissions)
  • Depositions where the parties and witnesses are asked questions that they must answer (unless there are grounds to object), under oath, by attorneys for both sides

Facts found during discovery could significantly weaken or strengthen a case. Depositions can give you valuable information and insight into how well a person may do as a witness at trial (if there is one). If the person’s answers, how they talk, and how they physically respond to questions may make them appear to be a strong, credible witness or one who’s not telling the truth.

Many of these cases boil down to: What did the defendant know, or should’ve known, when, and what did they do about it? Did the customer show signs they were intoxicated and should not be served? If so, were they served anyway?

The more substantial the evidence the customer appeared drunk but was sold drinks, the better your case. Before being served, how did they talk, act, and behave? Did they:

  • Slur their speech?
  • Talk too loudly or softly?
  • Take a long time to answer questions or respond to a conversation?
  • Appear depressed or to be having too good a time?
  • Were they abusive, obnoxious, or mean?
  • Could they walk normally, or did they lose their balance and stumble?
  • Smell like alcohol?
  • Overly emotional or affectionate?

If, given the circumstances, a reasonable person would believe the customer is intoxicated, were they served? Employees, fellow patrons, and the person accused of injuring you should be able to answer that question. If a credit or debit card paid for the drinks, there should be a receipt showing what the person bought and when.

Although each dram shop case is unique, these are usually the key disputed factual issues in a dram shop case.

Speak With An Experienced Dram Shop Act Lawyer

Our attorneys have decades of experience handling dram shop cases and can help you with this often complex legal matter. To discuss your possible dram shop liability claim with a knowledgeable Louisville lawyer, contact our law offices online or call us at 502-589-5600 or toll-free at 855-385-9532.

Dram Shop Cases

Dram Shop Cases are Common Across the US

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Dram shop laws in 31 states, including Kentucky, hold establishments liable when visibly drunk patrons are served alcohol and they cause harm. Mainly these cases involve vehicle accidents but can also include injuries caused by fights that the customer starts and damage done to property.

Here are some dram shop cases from courts around the US. The places, injuries, and people involved are different, but they have some things in common – someone intoxicated is sold more drinks, they leave and cause harm.

Florida Jury Verdict Third Highest in Vehicle Accident History

A Miami-Dade jury awarded $95 million in damages plus attorneys’ fees to a South Florida family in 2022. Noel Criales’ and Elisa Diaz’ daughter Carmen was killed, and their son Brian suffered severe traumatic brain injuries in an accident caused by a drunk driver, Franklin Chavez, in 2015.

The jury found one defendant, Georgetown Partnership, which owned a Miami bar, was negligent when its employees served drinks to Chavez. The business was ordered to pay almost $59 million for Brian’s medical care and $37 million in damages to the plaintiffs, according to the Insurance Journal.

After hours of drinking, Chavez drove more than 70 mph the wrong way on Interstate 95, with his lights off at night, before hitting the Criales’ vehicle head-on. Chavez was sentenced in 2017 to seven years in prison for causing the accident and driving under the influence. Carmen was on her way to medical school at the time.

Only two vehicle accident verdicts involve larger awards. There was a $1 billion verdict in 2021 against two trucking companies and a $120 million verdict in another truck accident case.

North Carolina Couple Severely Injured, Pregnant Woman Loses Her Child

While driving home in October 2010, Matt Eastridge and his pregnant wife, Meredith, were struck by a vehicle driven by David Huffman. Police state that at the time, his blood-alcohol content was nearly three times the legal limit, and he drove more than 100 mph.

Before the accident, Huffman left a bar, Eddie’s Place Restaurant and Bar, in south Charlotte. It served him at least ten drinks in over slightly more than two hours, reports USA Today.

A Charlotte jury returned a $1.7 million verdict against Eddie’s Place last year. They found the restaurant negligently served alcohol to Huffman, who they knew or should have known was intoxicated. The defendant’s attorney claimed bar employees arranged for someone else to drive him home, but he drove away in his vehicle.

The Eastridges spent more than a month in the hospital. Meredith lost 40% of her blood and the baby. They both had extensive surgeries and lengthy therapy.

Lawsuit Alleges Mississippi Man Beaten to Death By Drunk Restaurant Patron

An amended wrongful death lawsuit was filed earlier this year by K.C. Cooper’s mother, Madonna Steele, against Timothy Turner, who is accused of killing him, and a Tupelo restaurant, Steele’s Dive, which is accused of serving Turner after he was visibly intoxicated. Turner was arrested for beating Cooper in the restaurant’s parking lot and faces first-degree murder charges.

Turner was waiting outside the restaurant and bar in the early hours of April 16, 2022, according to police. Cooper walked toward the parking lot, Turner assaulted him, knocked him to the ground, and repeatedly punched him in the face. Turner drove away, returned, and continued to assault Cooper while he was on the ground, according to the Daily Journal.

The initial lawsuit filed in 2022 claimed Steele’s Dive and its security staff knew, or should have known, there was a conflict between Turner and Cooper and failed to protect Cooper. The amended complaint adds a dram shop liability claim. It alleges Steele’s Dive breached its legal duty to stop serving visibly intoxicated patrons.

Steele’s Dive is accused of serving numerous alcoholic drinks to Turner, who was obviously drunk. The plaintiff’s attorney stated the new allegations are the result of interviews conducted as a part of his investigation.

Drunk Driver Accused of Destroying Texas Business

Two business owners remodeling a building are suing an Odessa man, Dario Jesus Orona, who they claim destroyed it after driving into it while drunk. The case involves dram shop claims against two defendants accused of serving him alcohol though he was visibly intoxicated, reports the Odessa American.

The lawsuit claims Orona, and another defendant, Ariel Sandate, were drunk when they came into a Buffalo Wild Wings. It’s accused of encouraging Orona to buy drinks and allowing him to get into his vehicle despite the fact he was obviously intoxicated. Orona then allegedly went to the Agave Bar, where he continued to drink. The lawsuit states Orona was a danger to himself and others, but employees allowed him to leave.

Orona later drove halfway through the plaintiffs’ building, which was being renovated for a new business. The plaintiffs allege they couldn’t secure the building. It was later vandalized and looted. The City of Odessa later condemned and leveled it. The lawsuit seeks $1 million in damages.

Speak With An Experienced Dram Shop Lawyer

Our attorneys have decades of experience handling negligence claims and can help you with this critical legal matter. To discuss your dram shop liability, claim with a knowledgeable lawyer in Louisville, contact our law offices online or call us at 502-589-5600 (toll-free at 855-385-9532).