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ATTORNEY BLOG: What you need to know about OSHA’s intensifying focus on fracking operations

By: Cressinda “Chris” D. Schlag, Esq.

Over the past couple of years, OSHA has intensified its focus on the oil and gas industry, leading to several proposals for new regulations and the publication of multiple bulletins specific to perceived hazards in oil and gas operations. OSHA’s most recent publication comes in the form of a guideline, titled Hydraulic Fracturing and Flowback Hazards Other than Respirable Silica, which was drafted in the form of an educational bulletin.

The guideline and its appendices emphasize that OSHA has shifted its focus to oil and gas operations for the primary purpose of reducing reportable injuries and fatalities, which are believed by OSHA to occur in the oil and gas extraction industry at a higher rate than most of the U.S. general industry. While the guideline clearly states that its purpose is informational and is not a standard or regulation, the guideline then proceeds to warn employers that they can be cited under the General Duty Clause for failing to adequately protect against known industry hazards. An employer could therefore be cited for failing to protect against one of the hazards identified by the guideline under the General Duty Clause, if the employer failed to take reasonable steps to prevent or abate the hazard.

After identifying primary tasks and issues associated with hydraulic fracturing and flowback operations, the guide emphasizes hazards OSHA has identified as being present during on-site transportation of materials, rigging up and rigging down procedures, mixing and injecting fracking fluids, flowback operations, and operations involving hydrogen sulfide and volatile organic compounds. The guideline then proceeds to suggest “prevention strategies” or methods for controlling OSHA’s identified hazards.

Although the guideline is advisory in nature and does not constitute a regulatory standard, it clearly identifies the hazards that OSHA will be looking for during oil and gas site inspections. OSHA inspectors may also point to the publication as a form of notice of oil and gas industry recognized hazards, such that employers will be expected to have sufficiently protected their employees against these hazards during oil and gas operations. Employers in the oil and gas industry should therefore take time to review OSHA’s guideline as well as their own workplace policies, practices, and training to ensure that any potential liabilities related to oil and gas operations are minimized.

For more information on OSHA’s guideline or regulatory requirements specific to your business, contact any member of the Burns White Occupational Safety and Health or Energy teams.

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Transportation lawyers secure favorable verdicts for railroad clients in four consecutive cases

In the last four cases, Burns White Transportation lawyers have secured three defense verdicts and one favorable verdict for railroad clients in occupational injury claims. Following are some highlights of each case.

  1. Member and Co-Chair of the Transportation Group T.H. Lyda and Member Daniel J. Hampton obtained a favorable verdict for two major railroad clients in a two-week long jury trial in the Court of Common Pleas of Philadelphia County. The claim, brought under the Federal Employers Liability Act (FELA), involved a bridge and building worker claiming that our clients’ negligence caused him to develop a torn rotator cuff, which led to surgery, and to his alleged disability. The jury found the plaintiff to be 50% at fault, and awarded him damages amounting to half of the railroads’ final offer of settlement, and less than a third of the plaintiff’s final demand.
  2. Mr. Lyda and Associate Christine Hardy successfully obtained a defense verdict for a major Class I railroad client in a week-long jury trial held in Philadelphia. The claim, brought under FELA, involved a machinist welder plaintiff claiming that our client’s negligence caused the onset of arthritis in his lumbar spine and left hand which led to surgery and his ultimate disability. The jury, which only took about an hour to deliberate, dismissed all claims concluding that the railroad provided the plaintiff with a reasonably safe place to work.
  3. Mr. Lyda and Associate Candace G. Ragin represented two Class I railroads in a seven-day trial in the Court of Common Pleas of Philadelphia County. Plaintiff, a 63-year-old machinist, claimed that he developed degenerative disk disease in his low back, bilateral knee and elbow arthritis due to his work at a car shop and locomotive shops while working with the railroads. Mr. Lyda and his team argued that the plaintiff had a preexisting genetic arthritis which was supported by medical testimony and pre-employment x-rays demonstrating moderate degenerative changes in the plaintiff’s lumbar spine at the age of 24. After only two hours of deliberation, the jury found that both railroad clients provided the plaintiff with a reasonably safe place to work.
  4. Mr. Lyda and Member Edwin B. Palmer obtained a defense verdict for two Class I railroad clients in a three-day trial held in the Blair County Court of Common Pleas. The plaintiff, a 62-year-old former conductor, alleged that he developed occupational hearing loss and repetitive stress injuries to his spine and upper and lower extremities over the course and scope of his employment with both railroads. He ultimately stipulated to the dismissal of his repetitive stress claims, and the trial proceeded with his occupational hearing loss claim. At trial, Burns White attorneys established that the plaintiff failed to follow safety rules and would not wear hearing protection that was provided to him and as such proved that he was contributorily negligent. They also argued that his hearing loss was a function of the natural aging process. After less than a 30-minute deliberation, the jury returned a verdict in favor of our railroad clients.

Note: The results obtained in a particular case are heavily dependent on the facts and the law specific to that case.

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Burns White promotes eight attorneys to membership status

PITTSBURGH, Dec. 17, 2014 — Burns White LLC is pleased to announce the promotion of eight attorneys to Member in its Pittsburgh and Philadelphia offices, effective Jan. 1, 2015.

Pittsburgh

Nicole E. Bazzy, who joined Burns White in 2004,is Co-Chair of the Estate Planning and Administration Group and practices in the areas of civil litigation and estate planning and administration. More specifically, she handles a variety of matters for Class I and short line railroads including occupational disease, toxic tort and railroad crossing litigation. Ms. Bazzy also focuses on the creation, funding and administration of special needs trusts. She received a J.D. from Duquesne University.

Matthew G. Brouse started at the firm as a law clerk/summer associate in 2009 before becoming an associate in 2010. He is experienced in a wide range of litigation and transactional matters affecting clients in the oil and gas, transportation and financial services industries. Mr. Brouse was recently named Co-Chair of the Energy Group at Burns White, where he handles contract and lease disputes and personal injury claims, and manages a transactional team that provides due diligence review, title curative measures and certified title opinions in oil and gas land acquisitions. Mr. Brouse graduated from Duquesne University School of Law.

Tony A. Comas, who was named to the 2008 Pennsylvania Super Lawyers® “Rising Stars” list, joined Burns White in 2005. He concentrates his practice in Medicare compliance, with a background in workers’ compensation defense. Prior to joining Burns White, Mr. Comas served as an associate attorney settling cases both at the federal and state levels regarding employment discrimination and consumer protection laws. He received a J.D. from Duquesne University.

Nina W. Gusmar started at the firm in 2006. She focuses her practice on occupational illness defense, healthcare law and compliance, and general corporate and intellectual property matters. Ms. Gusmar has a comprehensive background in the law, including experience in mergers and acquisitions, contracts, real estate, tax issues, healthcare and litigation. She graduated from the University of Pittsburgh School of Law.

Richard S. Sigurdson, II joined the law firm of Burns White in 2002. Mr. Sigurdson’s practice focuses on cases involving the Federal Employers’ Liability Act, defending Class I railroads in complex litigation matters involving occupational-related claims throughout the Northeast. In addition, he also handles commercial financial transactions for institutions such as banks and business capital investors in all facets of commercial transaction matters, with a focus on asset-based and cash flow lending and commercial transactions. Mr. Sigurdson received a J.D. from Duquesne University.

Kimberly W. Young concentrates her practice in the area of Medicare compliance in the settlement of workers’ compensation claims and general liability claims and is a frequent requested speaker on the Medicare Secondary Payer Statute. She joined the firm in 2008. Prior to joining Burns White, Ms. Young served as a judicial law clerk to the president judge of the Washington County Court of Common Pleas. Ms. Young graduated from Duquesne University School of Law.

Philadelphia

Angela A. Cronk joined Burns White in 2000 as an Associate and concentrates her practice in litigation, including commercial litigation, creditors’ rights, financial institution litigation, insurance defense and landlord remedies. Ms. Cronk, who was selected by her peers for inclusion on the 2011 and 2013 Pennsylvania Super Lawyers® “Rising Stars” lists, also handles general business and transactional matters for banks and companies of all sizes. Ms. Cronk received a J.D. from Duquesne University.

An Associate of the firm since 2011, Andrew J. Fuga practices construction law and litigation at Burns White. Selected for inclusion on the 2014 Pennsylvania Super Lawyers® “Rising Stars” list, Mr. Fuga represents architects, engineers and other design professionals in the handling of claims for delay, design-related claims, contractual disputes and payment claims. Mr. Fuga also defends construction industry clients and property owners against a wide range of personal injury claims arising from both general and professional liability. He graduated from Duquesne University School of Law.

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GROUP BLOG: Compensable activities under FLSA still unclear after unanimous U.S. Supreme Court ruling in Integrity Staffing Solutions v. Busk

Federal law requires an employer to pay an employee for any activity that is integral and indispensable to the job they were hired to do. But what is an integral and indispensable activity? A recent U.S. Supreme Court decision that has been making headlines — Integrity Staffing Solutions v. Busk — tries to answer that question.

Click here to read more about compensable activities under the FLSA.

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Burns White welcomes seven Associates to its Pittsburgh and Philadelphia offices

PITTSBURGH, Nov. 21, 2014 — Burns White LLC welcomes seven associates with practices spanning employment, energy, general litigation, healthcare and long-term care, and Medicare compliance to its offices in Pittsburgh and Philadelphia.

Pittsburgh

Energy Litigation
Cressinda “Chris” D. Schlag assists clients in the energy industry with a wide range of litigation issues, including contract interpretation, environmental impact claims, property disputes, royalty payments, personal injury claims, compliance and employment law matters. Ms. Schlag also assists financial institutions, manufacturing companies and corporate entities with regulatory and transactional matters related to cybersecurity, technology and social media. She graduated cum laude from the University of Pittsburgh School of Law.

General Litigation
Casey P. Mullen concentrates his practice in commercial litigation impacting a wide range of industries. He also defends clients in personal injury and professional liability cases. Prior to joining Burns White, Mr. Mullen was employed as a solo practitioner, representing clients in domestic relations matters, criminal matters, civil litigation, wills and estates and personal injury. He received a J.D. from Duquesne University.

Medicare Compliance
Autumn L. Pividori’s practice focuses on resolving Medicare compliance issues that arise in workers’ compensation and general liability settlements. Prior to joining the firm, Ms. Pividori held law clerk positions at a workers’ compensation firm in Philadelphia and an insurance defense firm in Pittsburgh. She received a J.D. from Duquesne University, where she served as chapter marshal of the Phi Alpha Delta Law Fraternity, and secretary and chairman of the Graduation Committee of the Student Bar Association.

Philadelphia

Employment Litigation
Joshua A. Brand practices employment and commercial litigation. A former assistant city solicitor for the City of Philadelphia, he defended the City and its agencies in employment litigation. Mr. Brand also represented the City in matters before the American Arbitration Association, the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission, and the Philadelphia Commission on Human Relations. He graduated from the James E. Beasley School of Law at Temple University.

Healthcare and Long-Term Care
Nicholas F. Ciccone defends nursing homes, healthcare facilities and medical professionals in nursing home and medical malpractice claims. Prior to his current position, he worked as a law clerk at Burns White, an intern and assistant administrator at the Scranton Healthcare Center and a certified legal intern at the Villanova Health Law Clinic representing the interests of clients in a wide range of civil matters. Mr. Ciccone graduated from Villanova University School of Law.

Anthony S. Cottone primarily defends individual professionals and healthcare facilities in medical malpractice matters. He also maintains an active trial practice handling commercial disputes. A former assistant district attorney serving Chester County, Mr. Cottone successfully tried multiple jury and bench trials to verdict in the Chester County Court of Common Pleas. He graduated cum laude from Widener University School of Law.

Jacqueline Sabol Roe’s practice involves defending physicians and hospitals against professional and general liability claims. A seasoned litigator and trial attorney serving the healthcare industry, Ms. Roe has nearly ten years of experience handling medical malpractice and general liability claims on behalf of physicians and hospitals throughout Pennsylvania. She mostly recently was employed at Obermayer Rebmann Maxwell & Hippel LLP as an associate. Ms. Roe received a J.D. from Villanova University.

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LEGAL UPDATE: Pennsylvania remains a Second Restatement jurisdiction: The impact of the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc.

By: Stephanie Solomon, Esq. and Nichole Humes, Esq.

The Pennsylvania Supreme Court has politely declined an invitation to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq., opting instead to “appreciate certain principles” contained in that Restatement in a new standard of proof which allows a plaintiff pursuing a cause upon a theory of strict liability an “either” approach to sustain its burden. Releasing its much anticipated products liability decision in Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.), the Court concluded that a plaintiff may prove a defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer (via the consumer expectations test), or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions (via the risk utility test). Tincher, No. 17 MAP 2013 at 2. In an attempt to “maintain the integrity and fairness of the strict products liability cause of action,” the Court held that proof must be offered as to either the ordinary consumer expectations test or the risk-utility test. Id.at 119.

Why did the Court refuse to adopt the Third Restatement? The Court’s main reason for concluding that the “adoption” of the Third Restatement’s approach is problematic is a product may be deemed in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available. Id.

Does the Court’s decision change the duty owed by a seller? No. The Court noted that its prescribed change is not a change in the duties owed by “sellers,” rather it answers the question “what evidence is relevant to prove a ‘defective condition’ and how should that evidence be weighed.” Id. at 90.

What is the consumer expectations test? The consumer expectations standard defines a “defective condition” as a “condition upon normal use, dangerous beyond the reasonable consumer’s contemplations.” Id. at 94. The danger must be unknowable and unacceptable to the average consumer. Id. at 95. “The nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other seller are among considerations relevant to assessing the reasonable consumer’s expectations.” Id. This test has been described as reflecting the “surprise element of danger.” Id. A product under this test is not defective if an ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product. Id.

What is the risk-utility test? Noting the practical limitations of the consumer expectations standard, the Court felt it necessary to posit an alternative standard, the risk utility standard (or stated in economic terms, a cost-benefit analysis). Id. at 98. “This test offers a standard which, in typical common law terms, states that: a product is in a defective condition if a “reasonable person” would conclude that the probability and seriousness of harm caused by the product would outweigh the burden or costs of taking precautions.” Id. The focus under the risk-utility test is on the manufacturer’s conduct in manufacturing or designing the product.

  1. The factors noted by the Court, as pronounced by other jurisdictions, are:
  2. The usefulness and desirability of the product—its utility to the user and to the public as a whole;
  3. The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury
  4. The availability of a substitute product which would meet the need for the same need and not be as unsafe;
  5. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;
  6. The user’s ability to avoid danger by the exercise of care in the use of the product;
  7. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
  8. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Id. at 99.

How are strict liability claims now to be plead? The Court noted that the plaintiff’s strict liability claim must allege sufficient facts to make a prima facie case premised upon either the consumer expectations test or risk-utility test or both. Id. at 130. The calculus will account for the nature of the product, the available evidence, the theoretical limitations associated with each standard of proof, and whether pursuing both theories is likely to confuse the finder of fact. Id.

Can a plaintiff proceed to trial under both theories? According to the Court, yes. A plaintiff may choose to pursue or abandon either theory, or to pursue both, if the evidence so warrants. Id. A defendant may also seek to have dismissed any overreaching by the plaintiff via appropriate motion and objection. Id.

Has the role of the jury (or the finder of fact) changed? Yes. Under the long-standing case law set forth by the Court in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), whether a product was “unreasonably dangerous” was a question for the trial court, based upon social policy considerations. The jury would then simply resolve any dispute as to the “condition of the product,” as a separate question. The Tincher case explicitly overrules Azzarello. Now, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risk and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product.

How is the jury to be charged? Under the new standards, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that harm was suffered due to the defective condition of the product. The jury is to be instructed on the credibility of witnesses and testimony offered, the weight of the evidence relevant to the risk-utility calculus, and whether a party has met the burden to provide the elements of the cause of action. Id. at 131-132.

What questions are left unanswered? The Court noted that other courts have also concluded that it was appropriate, when proceeding upon a risk-utility theory, to shift to the defendant the burden of production and persuasion to demonstrate that an injury-producing product is not defective in design. The Court briefly touched upon the concerns with each party bearing this burden, stating that “the ultimate answer to the question best awaits balancing in an appropriate case.” Id. at 135. That being said, the Court noted that “Pennsylvania does not presume a product to be defective until proven otherwise” and currently assigns the burden of proof in a strict liability case to the plaintiff. Id. at 135. The Court continued stating that “proving a negative is generally not desirable as a jurisprudential matter because of fairness concerns related to anticipating and rebutting allegations and because of the encumbrances placed upon the judicial system by an open-ended approach to pleading and trying a case.” Id.

The Court went on to note that the decision to explicitly overrule Azzarello may have impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from Azzarello, “such as the availability of negligence-derived defenses, bystander compensation, [and] the proper application of the intended use doctrine.” Id.

Takeaways:

  1. Azzarello is no longer good law.
  2. In order to prove a product is in a “defective condition,” the plaintiff may utilize either the consumer expectations test or the risk-utility test, or both.
  3. Whether the product is in a defective condition is a question of fact to be submitted for determination to the jury unless it is clear that reasonable minds could not differ on the issue.
  4. The Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq
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GROUP BLOG: Intermittent Family Medical Leave — A delicate balance of rights

The Family Medical Leave Act of 1993 (FMLA) has been in effect for more than 20 years. It has undergone several updates in recent years including an extension of additional benefits to military families, airline flight crews and in certain instances equivalent benefits to same-sex spouses. However, the concept of intermittent FMLA still remains a mystery to most employees and even many employers. Both parties have obligations under the statute and finding the right balance may be the key to preventing misunderstandings that could lead to unnecessary litigation.

Click here to learn more about intermittent FMLA.

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GROUP BLOG: West Virginia Wage Payment Collection Act — Class actions can apply to out-of-state employers

As a follow up to a previous post, Ryan Mick provides a brief primer on class action claims brought under the West Virginia Wage Payment Collection Act (WPCA), which governs the manner and method in which West Virginia employers provide wages to their employees. Click here to read how this act and its class action implications apply not only to West Virginia employers, but to out-of-state employers providing employment services in the state as well.

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Emily Morales and Shirley Hampton urge for greater efficiency in NJ workers’ compensation practice

Workers’ Compensation Associates Emily P. Morales and Shirley A. Hampton relayed some challenges that they face as respondent attorneys in New Jersey for the Nov. 3, 2014 issue of the New Jersey Law Journal. Ms. Morales and Ms. Hampton urged all members of the New Jersey Bar to strive for greater levels of efficiency and equity in their daily practice for the betterment of both injured workers and their employers. Click here to read the article.

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Burns White attains ten rankings in the 2015 U.S. News Best Law Firms Survey

PITTSBURGH, Nov. 3, 2014 — Burns White earned ten rankings in the 2015 U.S.News Media Group and Best Lawyers® “Best Law Firms” survey. Most notably, the firm received a national first-tier ranking in railroad law for the fifth year running and a national tier two ranking in mass tort litigation/class actions—defendants.

Other results included the following metropolitan rankings for Pittsburgh:

  • Tier 1: Labor & employment litigation, mass tort litigation/class actions— defendants, personal injury litigation—defendants and railroad law
  • Tier 2: Media law and workers’ compensation law—employers
  • Tier 3: Commercial litigation and medical malpractice law—defendants

Rankings are based on a rigorous evaluation process that includes a collection of client and lawyer evaluations and peer review from leading attorneys in their fields nationwide. Those surveyed provided feedback on the individual practice group’s expertise, responsiveness, understanding of business needs, cost-effectiveness, civility, integrity and likelihood of referral.

To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America© listing, which recognizes the top 4 percent of practicing attorneys in the United States. The 2015 list was based on more than 5.5 million detailed evaluations of lawyers by other lawyers and contained 52,488 attorneys in 137 practice areas. Click here for more information on the six Burns White attorneys included in The Best Lawyers in America© 2015.

A complete listing of law firm results is available online: http://bestlawfirms.usnews.com, while the national first-tier rankings will be published in the first edition of the “Best Law Firms” Legal Issue, and national and metropolitan first-tier rankings will be featured in the “Best Law Firms” General Counsel publication.

For more information on Burns White and its 20 practice areas, including Banking and Financial Services, Business Practices, Energy, Estate Planning and Administration, Healthcare and Long-Term Care, Medicare Compliance, Transportation, Litigation and White Collar and Government Enforcement, visit the firm’s website at www.burnswhite.com.

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