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April 2016

This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.

Explosion at Gas Pipeline in Salem Township, Westmoreland County, Pennsylvania

According to reports from news outlets in the Pittsburgh, Pennsylvania area, there was an explosion at a gas pipeline in Salem Township, Westmoreland County, Pennsylvania, around 8:30 a.m. this morning.  The explosion occurred near Route 22 and Route 819 in Salem Township.

Photographs from folks close to the site show flames shooting above the treetops.  Witnesses are also reporting that there was a shock wave from the explosion.  One person is reported as having been badly burned.  (Let’s hope that the burn victim is okay.).  Although the gas has allegedly been shut off, the flames will apparently continue as the remaining gas is allowed to burn off.  Here is a link to a news story:  Report from WTAE News regarding the Gas Pipeline Explosion in Westmoreland County

I grew up in North Bethlehem Township, Washington County, Pennsylvania, before the Marcellus Shale boom hit the area.  Back then, I did not see a single oil and gas drilling rig.  In only a decade, that all changed.  Now, seeing the oil and gas companies dotting the landscape of Washington County with drilling rigs is commonplace–just as it is in a lot of other counties in Pennsylvania, Ohio, and West Virginia.  In fact, there is a well site  not far from the house where I was raised.  Over the past several years, the oil and gas companies have started to tap into the gas found in the Marcellus Shale and Utica Shale. The Marcellus Shale is found in states such as Maryland, New York, Ohio, Pennsylvania, and West Virginia. (Along with the oil and gas companies came the workers.  It’s now very common to see  roughnecks, roustabouts, drillers, toolpushers, rig managers, company men, mud loggers, rig hands, oilfield service company employees, etc. in the area.).


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Talcum Powder Verdict in Ovarian Cancer Death

I grew up in a house with my maternal grandparents and regularly recall my grandmother using a lot of talcum powder (baby powder).  When I would walk into the bathroom, the powder would be on the sink and on the floor.  I never thought that powder that most people regularly use could be harmful.  In a recent trial in St. Louis, Missouri, a jury found that same talcum powder caused ovarian cancer in a woman.  See J&J Must Pay $72 Million Over Talc Tied to Woman’s Cancer

The jury concluded that Johnson & Johnson’s talcum powder played a role in causing the ovarian cancer of Jackie Fox, who regularly used talcum powder for years and who died before her case against Johnson & Johnson went to trial. Since Fox passed away before trial, her family pursued the wrongful death case.

The jury awarded the family of Fox $10 million in compensatory damages and $62 million in punitive damages.  In most jurisdictions, compensatory damages can cover such things as medical expenses, lost wages, pain and suffering, etc.  Juries can also award punitive damages in certain cases.  Punitive damages are awarded in addition to compensatory damages and are meant to punish or deter the defendant from engaging in similar conduct that led to the award of punitive damages.

Johnson & Johnson will have the ability to appeal the verdict.

In addition to Fox’s case, there are numerous lawsuits that have been filed across the United States making similar allegations that talcum powder use increases the risk of ovarian cancer in women when using the powder as a feminine hygiene product.


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Wrongful Death and Survival Action as to a Seaman’s Employer

Our law firm focuses its practice on helping injured people and families that have lost a loved one, including regularly handling transportation related matters such as maritime and admiralty cases involving seamen and individuals injured or killed on the rivers (the Ohio, Monongahela, Allegheny, Kanawha, and Mississippi) and railroad cases involving railroad workers like conductors, engineers, maintenance of way workers etc.  injured or killed in Pennsylvania and West Virginia.

This post will focus on wrongful death and survival actions involving seamen and their employers.  When a seaman is accidentally killed within the scope of his or her employment, his or her personal representative may bring a wrongful death and survival action against the employer (or other parties that caused the death).

Congress enacted the Jones Act, 46 U.S.C. § 30104, in 1920.  By enacting the Jones Act, Congress gave the personal representative of a killed seaman the right to bring a wrongful death action and survival action against the deceased seaman’s employer for negligence.  The Jones Act incorporated the same negligence standard and right to bring a wrongful death action and survival action afforded to railway employees in the Federal Employers’ Liability Act, 45 U.S.C. § 51 et al. (“FELA”).

As such, when a seaman is accidentally killed and his or her employer negligently caused the accidental death, the Jones Act applies rather than a state’s wrongful death or survival statutes.  Nevertheless, this does not mean the personal representative cannot file the lawsuit in a state court.  The Jones Act, through the FELA, 45 U.S.C. § 56, permits the personal representative of the decedent to file the wrongful death and/or survival action in either a state court or a federal court (a U.S. District Court).  Therefore, a personal representative can elect to file a lawsuit for wrongful death in a Pennsylvania state court, such as Allegheny County, Beaver County, Butler County, Erie County, Greene County, Fayette County, Lawrence County, Washington County, Westmoreland County, etc., or a West Virginia state court, such as Brooke County, Cabell County, Hancock County, Harrison County, Kanawha County, Marshall County, Mason County, Monongalia County, Ohio County, Putnam County, Tyler County, Wetzel County, etc.  Once filed in state court, the defendant employer cannot remove the Jones Act wrongful death action and/or survival action to a federal court.  In other words, once the Jones Act wrongful death and/or survival action is filed in state court, the employer cannot then try to have the case moved to a federal court.  However, if the personal representative wants, he or she is permitted to initially file the wrongful death and/or survival action under the Jones Act in federal court.

In addition to a wrongful death action and/or survival action under the Jones Act, the personal representative of the seaman may also within the same lawsuit make a claim for wrongful death and/or survival under the general maritime law of the United States.  The basis for such a claim is unseaworthiness of a vessel, which has caused the accidental death.   Under the general maritime law, a vessel owner has a duty to provide and maintain a seaworthy vessel, which means that the vessel and all of its parts and equipment are reasonably fit for their intended purpose and that the vessel is crewed by a sufficient number of seamen who are competent to perform the work assigned.



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U.S. Government Data on Work Deaths for 2014

While doing research, I recently ran across U.S. government data on fatal work injuries for 2014 and found some alarming numbers.  The data came from the “Census of Fatal Occupational Injuries Summary, 2014,” which was conducted by the U.S. Bureau of Labor Statistics and released on September 17, 2015.  The data is a preliminary summary.  Below is some of the data for accidental and wrongful deaths at work for 2014:

  •  There were a total of 4,679 work injuries resulting in death, which was an increase of 2% over 2013.
  • There was a 17% increase in mining deaths, which is troubling, especially since my father, maternal grandfather, and many great-uncles were coal miners in Washington County, Pennsylvania.
  • There were 142 worker deaths in oil and gas extraction, which would include deaths while working in the nearby Marcellus Shale and Utica Shale.
  • There was a 17% increase in work-related construction deaths in 2014 as compared to 2013.  The number of deaths in the construction industry was 874, which was the highest total since 2008.
  •  The number of deaths from falls, slips, and trips increased to 793 in 2014.  There were 724 deaths from falls, slips, and trips in 2013.  Falls to lower level accounted for 647 of the deaths.  The summary does not specify whether the falls were the result of a failure of fall protection.
  • There were 1,891 transportation deaths in 2014, which accounted for 40% of all fatal workplace injuries.  Further, 57% of of the transportation deaths pertained to roadway incidents.  There were 725 heavy truck and tractor-trailer drivers who died in 2014.

Let’s hope the data for 2015 shows a different trend for accidental and wrongful deaths at work.


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Motorhome Wrongful Death Case Will Proceed to Trial

Like many people in Pennsylvania, on September 11, 2011, John Borzik decided to perform maintenance work on a motorhome he owned.  While trying to find the source of an antifreeze leak, Mr. Borzik positioned himself under his motorhome on his back near the right side rear axle.  During the maintenance work, the frame of the motorhome dropped onto Mr. Borzik’s head and chest.  He tried using his cellphone to call for help but tragically died from asphyxiation.  A Pennsylvania State Trooper performed an investigation and found that the motorhome “had a faulty pressure release valve that serviced the air suspension system.”

Later, Mr. Borzik’s sister, who served as the personal representative and plaintiff, filed a wrongful death and survival action lawsuit against several defendants.  Rapchak v. Haldex Brake Products Corp., U.S. Dist. Ct. W.D. of Pa.; Civil Action No. 2:13-cv-1307.  After discovery, the only claim that remained was a products liability claim against the manufacturer (Haldex Brake Products Corp.) of the height control valve, which had been used in the air suspension system of the motorhome.  The manufacturer recently filed a motion to exclude the opinion of plaintiff’s expert that a screen filter would have prevented debris from entering into the height control valve and thereby would have prevented the valve from sticking open and releasing air.  The manufacturer also asked the court to find in its favor on a motion for summary judgment, which would result in the claims against the manufacturer being dismissed and the case being closed.

On March 16, 2016, the United States District Court for the Western District of Pennsylvania, denied both motions filed by the manufacturer.  Rapchak v. Haldex Brake Products Corp., 2016 WL 1019534 (W.D. Pa. Mar. 15, 2016).  The court found that the expert used a reliable methodology in reaching his opinion regarding the height control valve in causing the accidental death.  The court also found that there were issues of material fact regarding whether the height control valve was in a defective condition.  Therefore, the court concluded a jury must decide whether the height control valve was defective and caused the wrongful death of Mr. Borzik.



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