Dubyak Connick Sammon Thompson & Bloom - Lawyers serving Cleveland Ohio

Jim Sammon Reaches Settlement In Wrongful Death Claim

jsammon — Fri, 07 Jun 2013 12:58:57 +0000

A young Marine reservist was tragically killed when a contractor cut a propane line on the property of his rental home. DCSTB Principal Jim Sammon filed suit and after almost a year of litigation was able to successfully craft a significant Confidential Settlement on behalf of the Estate.

Andrew Thompson interviewed on “Buckeye Surgeon Blog”

athompson — Thu, 02 May 2013 13:40:15 +0000

I was interviewed by local General Surgeon Jeffrey Parks, M.D. yesterday on his widely-followed Buckeye Surgeon Blog on the topic of medical malpractice cases. Although it was a hostile environment, it was a good opportunity to dispel some myths about the judicial system. Thank you to Dr. Parks for the opportunity.

You can check out the full post here.

Third Circuit Court of Appeals Interprets FRSA

athompson — Wed, 20 Feb 2013 14:01:27 +0000

The Third Circuit Court of Appeals reversed a lower court’s decision in favor of the railroad in a claim brought pursuant to the Federal Rail Safety Act (FRSA). The case, Araujo v. New Jersey Transit Rail Operations, Inc., was decided on February 19, 2013, and is the first interpretation of the FRSA by a federal court of appeals. Included in the decision is the affirmation of Congress’ intent that the FRSA be protective of plaintiff-employees. The burden of proof is much lower on an employee claiming retaliation than the burden on the railroad to establish a defense. The inequities built into the statute are intentional, and are meant to address the long history in the railroad industry of harassing employees who engage in protected activity. The court stated in its opinion that “the rail industry has a long history of underreporting incidents and accidents in compliance with Federal regulations. The underreporting of railroad employee injuries has long been a particular problem, and railroad labor organizations have frequently complained that harassment of employees who reported injuries is a common railroad management practice.”

As I’ve previously written on this blog, it is a common practice by some railroads to use a system of employee rules testing as a form of harassment. Within this system, railroad management and supervisors selectively enforce rules, which are typically overlooked or ignored, against employees who have recently engaged in protected activity. The Araujo decision makes clear that even if an employee violates a railroad’s written rules, it is not a valid defense to an FRSA claim if the employee can show that the rule was never previously enforced. (“While the facts in the record may show that Araujo was technically in violation of written rules, they do not shed any light on whether NJT’s decision to file disciplinary charges was retaliatory.”)

The Third Circuit’s decision was the first step in establishing the full extent to which the FRSA can provide protection to railroad employees who engage in protected activities. Hopefully the railroads are paying attention.

Wrongful Death Damages Available Under the FELA

athompson — Sun, 17 Feb 2013 18:21:22 +0000

A tragic accident occurred yesterday at the ArcelorMittal steel plant in Cleveland, Ohio when a 50 year old railroad employee was killed after falling from a train car.

The incident raises the question of what damages are available to the individual’s family under the Federal Employers’ Liability Act (FELA). When a railroad employee is killed at work, a lawsuit can be filed by the surviving spouse or other representative of the worker’s estate. Like other injury claims under the FELA, the first step in such a case is to prove that the employee’s death was caused or contributed to by the railroad’s negligence or violation of a railroad safety statute. Once liability to established, the surviving spouse, children and next of kin are entitled to recover damages for (1) the conscious pain and suffering of the employee before his or her death; (2) the pecuniary damages of the surviving family members, which includes the value of wages, money, benefits, goods and services the employee would have contributed to those family members during his worklife; (3) his or her medical expenses; and (4) funeral expenses.

What is notably missing is the mental and emotional distress of the deceased employee’s loved ones. Although this is the largest element of loss in such a case, the statute does not require the railroad to pay such damages under the FELA.

Although the railroad industry is much safer than it used to be, the accident that occurred yesterday is a somber reminder of how dangerous railroading can be. Make sure that your spouse or loved ones know who to call and where to turn if something happens to you at work.

Administrative Law Judge Rejects Railroad’s Argument In Case Under FRSA

athompson — Mon, 11 Feb 2013 13:03:03 +0000

I previously wrote a post about how railroads can use a system of operational rules testing as a form of harassment and retaliation after workers report safety concerns or injuries on duty. In one such case where those allegations have been made against CSX, an Administrative Law Judge recently rejected the railroad’s argument that the case should be dismissed because the railroad had a legitimate justification (the alleged rules violations) for suspending my client. The ALJ found that there was “ample evidence” to question whether the employee’s injury reports contributed to the railroad’s decision to suspend him. The ALJ noted that my client was subjected to 20 different rules tests on the date of the subject occurrence, whereas the engineer on the crew (who did not previously report an injury) was only tested on six rules. Other employees subjected to a higher number of tests on a given day had also previously reported injuries. The case will proceed to a full hearing in the spring for a determination of whether this disparate treatment, and subsequent suspension, was a violation of the FRSA. A copy of the full decision, Case No. 2012-FRS-00010, will be posted here by the Department of Labor.

DCSTB Principal Tom Connick Receives Preeminent AV Rating

tconnick — Fri, 05 Oct 2012 13:40:22 +0000

Connick MH Press Release

DCSTB Partner Tom Connick Successfully Defends Real Estate Appraiser In Alleged Million Dollar Civil Conspiracy And Consumer Fraud Case

tconnick — Sat, 23 Jun 2012 18:53:24 +0000

On August 17, 2011 DCSTB Partner, Tom Connick, went to trial in a case that had been pending and litigated since 2006, wherein Tom’s client, a professional real estate appraiser, was accused of participating in a predatory lending/flipping scheme, that allegedly damaged Plaintiffs in excess of one million dollars. After approximately five (5) days in trial, Tom successfully convinced the trial court to grant his client a directed verdict, i.e. dismissal, on all claims. After hearing arguments of counsel, the trial court agreed with Tom and dismissed all counts alleged against his client. The Plaintiffs appealed. Just recently, on June 21, 2012, in the case of U.S. Bank, Etc., Et Al. v. Cynthia Amir, ET Al, Slip Copy, 2012 WL 2355620, 2012-Ohio-2772, Ohio App. 8 Dist., June 21, 2012 (97438), the Ohio Eighth District Court of Appeals affirmed the trial court’s ruling in favor of Tom’s client. This is a significant Appellate victory for Tom’s client, as Plaintiffs had made a demand and alleged damages for over One Million Dollars. And, in fact, other Defendants in this case were deemed liable for over 1.8 Million Dollars. Notably, however, both at trial and on appeal, Tom successfully presented arguments showing that his client did not participate in the alleged fraudulent real estate scheme, whatsoever. This case is also significant for outlining Ohio case law related to alleged real estate appraiser liability in the context of the Ohio Consumer Sales Practices Act, Fraud and Civil Conspiracy.

Congratulations to Tom on another job well-done!!

OSHA finds Norfolk Southern Railway in violation of FRSA, awards $800,000 in damages

athompson — Tue, 19 Jun 2012 13:57:46 +0000

The Occupational Safety and Health Administration announced yesterday that it has ordered Norfolk Southern Railway Co. to pay over $800,000 in damages on the claims of three employees who were retaliated against after reporting injuries at work. The awards include $525,000 in punitive damages and attorneys’ fees. As previously discussed in this blog, if employees are aggressive in pursuing claims under the Federal Rail Safety Act, and OSHA and other courts continue to award substantial damages, the culture of intimidation and harassment in the railroad industry will come to an end.

Kudos To Partner Tom Connick On A Job Well Done

tconnick — Fri, 27 Apr 2012 14:03:52 +0000

One of the guiding principles under which DCSTB is founded, is to always provide our clients with uncompromising, zealous and unsurpassed high quality legal services and counsel. Congrats to Tom Connick for being recognized by one our clients (see below) for doing just that in reaching a successful outcome. Nice job, Tom!!

Tom,

Thank you for getting this done. In many years of business, law enforcement and personal life I have never met a lawyer who was as solid as you. You did not not budge, you held the Defendant to the fire; and on both cases settling was a matter of economics not admitting defeat.

I would recommend you in a heartbeat to colleagues and while I hope we don’t have to work together again I would not hesitate to contact you when in need.

Best regards,

Dennis W. Matson
CEO/President

DCSTB Victorious Again in the 8th District Court of Appeals

tconnick — Fri, 23 Mar 2012 20:36:00 +0000

Congratulations to DCSTB Partner Tom Connick and Associate Anthony Trzaska in persuading the 8th District Court of Appeals to affirm the underlying Trial Court’s Order granting DCSTB Client, the City of Cleveland, Summary Judgment in a toxic tort/premises liability case. Plaintiff/Appellant, Thomas Kruzer, alleged that he contracted Legionnaire’s Disease while working at Thrifty Rent-A-Car, located on City property at the Cleveland Hopkins International Airport. Mr. Kruzer alleged that the City failed to properly maintain its HVAC system, which caused him to contract Legionnaire’s Disease. However, Tom and Anthony successfully argued that Mr. Kruzer failed to present any evidence that the alleged legionella bacterium was present at the City property, or that he contracted the disease while working at the City property. The Court further expressly held that Plaintiff/Appellant’s argument that he could rely upon the doctrine of res ipsa loquitor in order to prevail on his negligence claim, lacked merit as a matter of law. The Appellate Court Opinion in Alan E. Kruzer, et al. v. City of Cleveland, et al. (8th Dist. C.A. 97168) can be found here. Congratulations Tom an Anthony!!