, Author at Goldenberg Heller & Antognoli, P.C.

Naturally Occurring Asbestos Found in Nevada

It’s been roughly 13 million years since asbestos fibers formed in the roots of volcanoes (also known as “plutons”). For roughly 12 million years, the fibers have been breaking free and spreading out. Now, a team of geologists from the University of Nevada, Las Vegas (UNLV) say the small town of Boulder City, NV (pop.… Continue reading →

The main type of asbestos emitting into the ground and air from the pluton is called actinolite–one of the six types of asbestos deemed toxic by the Environmental Protection Agency (EPA). Actinolite asbestos, along with amosite, crocidolite, anthophyllite, and tremolite are collectively called “amphibole asbestos.”

Amphibole asbestos is characterized by needlelike fibers. These fibers cannot be seen, smelled, felt, or absorbed through the skin. The fibers can make their way into the lungs and other parts of the body by simply breathing them in or swallowing them. This can lead to a number of debilitating asbestos-related diseases such as mesothelioma, lung cancer, or cancer of the larynx or ovaries. It is now believed that asbestos exposure can also lead to weakened immune function and other disorders.

Back in Boulder City (which is located just 30 miles southeast of Las Vegas and a few miles from majestic Hoover Dam), researchers performed a number of tests to assess the danger levels of the newly discovered asbestos. During one test, UNLV geology professor Brenda Buck (whose expertise includes dust and its effects on human health, and soil science of arid environments – modern & ancient) traveled along a dirt road in Boulder City, her horse in tow. At the end of the 3-hour trek, she discovered ample amounts of asbestos fibers on her shoes and pants.

Other tests showed that although the asbestos was not found everywhere, researchers had a very easy time locating samples. Buck, along with the other team members, concluded that although more tests need to be done, “We can’t in good conscience say there’s no problem.”

According to the EPA, “there is no safe level of exposure known; therefore, exposure to friable asbestos should be avoided.”

The UNLV research team agreed, and so did the U.S. Bureau of Land Management.

The U.S. Department of the Interior, Bureau of Land Management (BLM) has awarded the team a three-year grant for the study. As such, further testing is now underway to help determine just how carcinogenic the fibers found in Nevada might be. The testing, which will be conducted by researchers at the University of Hawaii, will include a health assessment to help uncover any possible mesothelioma cases in the study area. In addition, the UNLV team has expanded the study area to Clark County–which has a population of over 2 million.

According to a report by the Las Vegas Review Journal, most of the study area will be “contained within the roughly 1,200 square miles of desert between U.S. Highway 95 and the Colorado River from Boulder City to the southern tip of the state.” As such, the Nevada Department of Transportation is also conducting its own analysis and testing, with plans by the state transportation board to invest up to $400,000 in the study.

Protecting Yourself from Asbestos Exposure

If you live in an area with naturally occurring asbestos, the U.S. Department of Health and Human Services offers the following safety tips to protect yourself from asbestos exposure:

Avoid riding dirt bikes and other off-road vehicles in areas where asbestos is known to occur.
Drive slowly over unpaved roads.
Keep windows and doors closed on windy days and during nearby construction activity.
Pave over asbestos-laden rock or soil or cover it with asbestos-free soil or landscape covering.
Use a wet rag to dust and a wet mop to clean non-carpeted floors. Vacuum carpets often using a vacuum with a high-efficiency HEPA filter. Use washable area rugs and wash them regularly.
Use doormats. Remove shoes before entering your home to avoid tracking in dirt. Try to keep pets from carrying dust and dirt in on their fur or feet.
Wet down garden areas before digging and shoveling.

For more information about the dangers of asbestos, please visit the Agency for Toxic Substances & Disease Registry (ATSDR).

If you or someone you love has been diagnosed with mesothelioma, the attorneys at Goldenberg Heller & Antognoli, P.C. can help. Contact us today to schedule a free, no-obligation case evaluation at 800-782-8492 (toll-free) or email us. We look forward to discussing your case.

Sources

100 Questions & Answers About Mesothelioma, Second Edition
Harvey I. Pass, MD, NYU School of Medicine and Clinical Cancer Center
Agency for Toxic Substances & Disease Registry (ATSDR)
ATSDR.cdc.gov
American Cancer Society (ACS)
Cancer.org
Centers for Disease Control and Prevention (CDC)
CDC.gov
City of Boulder City
BCNV.org
Environmental Protection Agency (EPA)
EPA.gov
KLAS-TV Las Vegas
8newsnow.com
Las Vegas Review Journal Reviewjournal.com National Toxicology Program of the U.S. Department of Health and Human Services
NTP.niehs.nih.gov
University of Nevada, Las Vegas (UNLV) – Department of GeoscienceÂ Geoscience.unlv.edu
U.S. Department of Labor, Bureau of Land Management
BLM.gov

Estate Planning for Young Families

Young couples are constantly bombarded with a series of questions about getting married, buying a home, and having a baby. One incredibly important question missing from that progression is “Have you planned your estate?” Being a new mother and an attorney, it’s my favorite question to ask new families because I know estate planning is the furthest… Continue reading →

Being a new mother and an attorney, it’s my favorite question to ask new families because I know estate planning is the furthest thing from their minds. If you’re anything like me you’re probably slightly obsessed with finding new ways to wear your baby, making your own baby food, finding the best deals on Zulily and signing up for infant swim classes. Don’t forget to add in long work weeks, sleepless nights, countless hours of pumping, and diaper duty!

I find that most families neglect to discuss estate planning because they think they are too young and healthy, do not have an estate to plan, or simply cannot afford the expense. I completely understand. Now that your bundle of joy is here, who wants to think about death? Why do you need an estate plan when you have a house with a mortgage, school loan debt and life insurance with beneficiary designations? How can you afford it with the cost of raising a child nearing a quarter of a million dollars?

I have one simple answer: because accidents, illnesses, and disabilities happen. Estate planning for young families is more than just deciding what happens to your property and it does not have to be expensive. It’s imperative to discuss who will make sure your child is sheltered, clothed, fed and safe if something would happen to you and your spouse. Plus, you can start simple and update your documents as your family and estate planning needs change.

At a minimum, your estate plan should: (1) name a guardian for your children; (2) name a trustee to handle the financial affairs of minor children; (3) name an executor to handle the affairs of the estate; (4) provide instructions for distribution of assets; and (5) plan for disability. This can all be accomplished by a simple will with a testamentary trust and powers of attorney for health care and property.

Without an estate plan, a court will decide for you without knowing your wishes, children or family situation. Give your family some peace of mind, save yourself some “mommy guilt” and responsibly discuss the tough questions to create your estate plan today.

Should you have any questions or would like to discuss your estate plan, please contact Holly Marcum.

Automobile Accident? Information you must know

Car accidents always seem to happen at the worst time. They are usually a frightening and painful experience emotionally and physically. If an unfortunate event like this occurs, the details that you have to deal with after the accident can be difficult because it all happens so fast. There are a few basic things that… Continue reading →

The first is to notify authorities. That will usually be the police. If you experience any pain, seek medical attention as soon as possible.
It is also important to get insurance information and contact information from the other driver.
If you do go to a hospital or see a doctor, it is important to know who is paying the bills.

After representing people involved in car accidents, this is one of the main reasons I felt like I needed to share this information.

Most people think the other, at-fault driver’s insurance company, will automatically pay for their medical treatment. This is not true. Insurance companies usually put up a fight, and offer you a small amount of money that will not cover all of your possible medical bills. Even if they are responsive, they will usually not pay until your medical treatment concludes, which could be months. In the meantime, the medical providers are stuck with medical bills that are not paid and you are ultimately responsible. This means those bills could end up in collections.

To avoid this:

Make sure the hospital or doctor’s office bill your health insurance. If you have something called medical payment coverage as a part of your own car insurance, this may kick in as well, but you have to be proactive. Every time you visit your doctor or the hospital, make sure they have your health insurance information and they are actually billing your health insurance. If you don’t do this initially, your insurance company may then reject any payment on a bill that was not submitted to them in a timely manner, at the time of your treatment. The at-fault driver’s insurance company does not care about you and usually will not pay unless they are forced to at some point by your attorney.

No one wants to be in a car accident and it’s a serious inconvenience, if not a truly painful experience. However, by using the information above, you can make sure that you receive proper medical care and have a head start on getting your bills paid.

Fiduciary Duties Under Illinois Power of Attorney

In an apparent case of first impression, the Illinois Appellate Court concluded that executing a power of attorney does not necessarily impose fiduciary duties on the agent. Estate of Martin Stahling, Sr., 2013 IL App (4th) 120271. Stahling provides a fascinating case study of the interplay between the presumption of undue influence and powers of attorney. The decedent… Continue reading →

In an apparent case of first impression, the Illinois Appellate Court concluded that executing a power of attorney does not necessarily impose fiduciary duties on the agent. Estate of Martin Stahling, Sr., 2013 IL App (4th) 120271. Stahling provides a fascinating case study of the interplay between the presumption of undue influence and powers of attorney. The decedent named his son as agent under a health care power. Eleven days later the decedent signed a deed conveying his farm to himself and his son as joint tenants. Title to the farm vested in the son when his father died soon thereafter. Decedent’s daughter sought to set aside the conveyance, arguing that the health care power created a fiduciary relationship between decedent his son and raised a corresponding presumption of undue influence.

The Appellate Court rejected the daughter’s argument, noting that the son never exercised any authority under the health care power of attorney. Indeed, he was unaware that decedent even executed the power. According to the Court, “an agent must accept the powers delegated by the principal” to create a fiduciary relationship. Id. at ¶ 22. The Court explained that a power of attorney, alone and without evidence of acceptance by the named agent, means nothing.

Even if the son knew of and accepted the power, the court would have reached the same result. The Court observed that “even when a health care power of attorney creates a fiduciary relationship … that relationship does not extend to matters outside the scope of the power of attorney. Moreover, a health care power of attorney, by itself, does not create a presumption of undue influence in property or financial transactions between the power’s principal and agent.” Id.at ¶ 23.

The Court’s decision reminds us of the corollary proposition that a power of attorney for property, if accepted by the agent, will create a fiduciary duty that extends to property transfers, will and trusts. In other words, the decision highlights the importance of a proper planning and execution of estate planning documents to avoid the presumption of undue influence and costly-and often bitter-will contests.

Please consult the estate planning attorneys at Goldenberg Heller & Antognoli, P.C. if you have questions about powers of attorney or any other estate planning matters.

Citation to Discover Assets – A Vital Creditor’s Remedy

The 7th Circuit’s recent decision, In re Porayko, No. 12-2777 (7th Cir. 2013), reminds us that the citation to discover assets remains a powerful weapon in the creditor’s arsenal. Porayko holds that service of a citation on the debtor creates a lien on his bank accounts under Illinois law. A judgment creditor in Illinois may… Continue reading →

The 7th Circuit’s recent decision, In re Porayko, No. 12-2777 (7th Cir. 2013), reminds us that the citation to discover assets remains a powerful weapon in the creditor’s arsenal. Porayko holds that service of a citation on the debtor creates a lien on his bank accounts under Illinois law.

A judgment creditor in Illinois may serve a citation to discover assets on either the judgment debtor or a third party who holds property of-or owes money to-the debtor. Service of a citation on the debtor automatically creates a lien on all of his nonexempt personal property, including bank accounts and other intangible assets. The lien thus attaches to everything for automobiles to shares of stock. The citation lien also reaches the debtor’s after acquired personal property, including money which becomes payable to the debtor after the citation is served.

Similarly, a citation served on a third party creates a lien on all non-exempt personal property of the debtor held or controlled by the third party and on any money due from the third party to the debtor. Once again, the lien extends to assets that the third party receives at any time after service until disposition of the citation.

Porayko reminds creditors that the value of a checking account is personal property of the debtor. So it is subject to a citation lien under Illinois law. The creditor in Porayko prevailed over the debtor’s trustee in bankruptcy, who sought to avoid a lien created when the creditor served a citation on the debtor’s bank. The citation served on the bank froze the account prior to bankruptcy. Since the lien arose during the preference period, the trustee claimed he could avoid the lien. But the creditor had also served a citation on the debtor outside the preference period. As Judge Easterbrook noted, the initial citation created a lien on all of the debtor’s personal property, including funds in his bank account. The trustee could not avoid this lien because it antedated the preference period. Thus, money remaining in the account when the debtor filed bankruptcy remained subject to a valid citation.

What about funds withdrawn from the account between the time the creditor served the citation on the debtor and time the bank was served? In Porayko, the debtor withdrew funds after he was served but before the bank was. The creditor’s lien on those funds lapsed; the bank was free to honor drafts on the account until the bank itself was served with a citation. So Porayko also illustrates the importance of serving the bank as soon as the account is discovered-otherwise, the bank will continue paying the judgment debtor’s checks, and the account may be depleted.

We understand creditor remedies at GHAR. Contact John McCracken for effective help collecting debts.

Time is of the Essence?

The Appellate Court gave new meaning to this venerable expression in its recent decision in Asset Recovery Contracting, LLC v. Walsh Construction Co. of Illinois, 2012 Ill. App. (1st) 101226. Timing was the heart of the matter because the plaintiff, a subcontractor, claimed damages resulting from construction delays. The subcontractor raised a superficially simple question:… Continue reading →

The Appellate Court gave new meaning to this venerable expression in its recent decision in Asset Recovery Contracting, LLC v. Walsh Construction Co. of Illinois, 2012 Ill. App. (1st) 101226. Timing was the heart of the matter because the plaintiff, a subcontractor, claimed damages resulting from construction delays. The subcontractor raised a superficially simple question: what was the date of the subcontract-the date printed on the first page of contract or the date the parties signed it? This issue became a focal point for the court’s analysis because the parties didn’t bother to sign the subcontract until nine months after the printed date on the contract and nearly a year after the job commenced.

The court held the printed date, as opposed to the actual date of execution, controlled. The decision rests on the parol evidence rule, which the court articulated as follows:

“[A]ll conversations and parol agreements between the parties prior to the written agreement are so merged therein that they cannot be given in evidence for the purpose of changing a contract or showing an intention or understanding different from that expressed in the written agreement.” Id. ¶58 (citations and internal quotes omitted; emphasis added).

Because the subcontract recited a date, the court refused to consider evidence that the parties actually signed it several months later or any other “extrinsic” evidence to determine the effective date of the contract. The excluded evidence comprised, among other things, several months of negotiations and schedule changes transpiring between printed date in the subcontract and the actual date it was signed. According to the court, the parol evidence rule precludes resort to any of this evidence to contradict the date printed in the subcontract.

The court’s analysis is paradoxical in two respects. The first (ironically enough) involves timing. The parol evidence rule precludes evidence of prior or contemporaneous understandings or negotiations-as opposed to proof of facts that occur after the parties’ written contract. Nevertheless, the court barred evidence of negotiations and schedule changes occurring after the date printed in the subcontract. Evidently, the court treated the date of actual execution as the operative date to cut-off parol evidence, even though the parties didn’t sign for several months after the date printed on the subcontract. If the subcontract became effective before it was signed, why should evidence of negotiations or events occurring after the effective date be excluded? Shouldn’t such evidence be received to show a modification of the contract after the effective date?

The second paradox involves the purpose for which extrinsic evidence may be offered. The parol evidence rule does not bar extrinsic evidence offered to resolve ambiguity. Didn’t the ongoing negotiations before the parties signed the subcontract create ambiguity as to whether they truly wanted it to be effective on the earlier, printed date? According to the court, this is merely an “external ambiguity.” Unless the ambiguity appears within the four corners of the contract (i.e., an ambiguity apparent from express contract terms), extrinsic evidence cannot be used to resolve it.

Despite the court’s focus on the contract date, the outcome turned on a different point, i.e., an exculpation clause in the subcontract. The court found that the subcontractor validly waived its claim for delay damages. Nevertheless, the decision teaches two important practical lessons about timing: (1) don’t begin performing a contract until you have an agreement; and (2) pay attention to detail, even if it is as mundane as the contract date. If time really is “of the essence” and the date of execution differs from the intended effective date, make things clear by stating “this contract is effective as of” the intended date.

TODI: A New Device to Avoid Probate in Illinois

It has been a year since Illinois introduced the Illinois Residential Real Property Transfer on Death Instrument Act (755 ILCS 27/1 et seq). The Act authorizes certain owners to transfer their residential real estate located in Illinois outside of probate by using a pre-recorded document called a Transfer on Death Instrument (“TODI”). What can a… Continue reading →

What can a TODI be used for?

A TODI can be used to transfer real property with one to four residential dwelling units, or a single tract of agricultural land consisting of 40 acres or less with a single family residence. The purpose of a TODI is to transfer real property upon the death of the owner without the need to go through the probate process.

What are the requirements for a TODI?

There are three basic requirements for properly executing an TODI: 1) it must conform to the recording requirements of a typical deed, and be executed, witnessed and acknowledged as required under the Act; 2) it must state that the beneficiary is to receive the property at the owner’s death; and 3) it must be recorded in the county where the property is located prior to the owner’s death.

Can a TODI be made irrevocable?

No. Even if the document states that the instrument is irrevocable, the Act states that any TODI can be revoked at any time prior to the owner’s death.

Who can be the beneficiary of a TODI?

Any legal entity that is capable of owning residential real estate can be the beneficiary of a TODI. This includes individuals, joint owners, trusts, corporations, limited liability companies and other entities. In addition, successor beneficiaries can be named in a TODI in the event that the first named beneficiary predeceases the grantor.

How does the grantor revoke a TODI?

A grantor of a TODI must have the same capacity to revoke the TODI as would be required to revoke a will. An agent of the grantor can only revoke a TODI if the power to do so is expressly authorized by a durable power of attorney, or a similar document. To revoke the TODI, the grantor may do one of two things: 1) record a new TODI that expressly revokes the prior TODI or revokes it by inconsistency; or 2) recording an instrument of revocation expressly revokes the TODI, either in whole or in part.

If you have more questions regarding the use of TODI, or any other estate planning topics, please contact us.

Missouri Supreme Court Overturns Cap on Pain and Suffering Damages

On Tuesday, July 31, 2012, the Missouri Supreme Court issued a decision holding that the previous cap of $350,000 on non-economic damages including those for pain and suffering in medical malpractice cases violates the right to a trial by jury. The Court explained that this cap interferes with the “jury’s constitutionally protected purpose” to determine the amount of damages experienced by an injured person. In this case, a young boy, Naython Watts, was born with catastrophic brain injuries after his mother allegedly did not receive appropriate care from the doctors and hospital involved, which the jury determined to be medical negligence. The jury awarded the five year old boy and his mother as his representative $1.45 million in non-economic damages or pain and suffering. This award was then reduced to $350,000 due to a law passed in 2005 which capped pain and suffering damages for any medical malpractice law suit, regardless of the injury. Chief Justice Teitelman explained that the statute which imposes the cap on medical malpractice damages violates the Missouri Constitution’s right to a trial by jury.

What is encouraging about this decision is the Missouri Court’s support of the Constitution, which created a court system with a trial by a jury of our fellow citizens in order to protect the most vulnerable people in our society: not corporations or large hospitals, but victims facing daunting challenges like Naython Watts and his parents who will care for him for the rest of his life.

For more information or questions contact our firm at 1-800-782-8492. We proudly serve Madison County, St. Clair County, St. Louis, and injured individuals nationwide.

Utilizing Employee Handbooks: A Good Business Practice

An employee handbook is one of the most important communication tools between employers and employees in all types of businesses, large or small. A well-written employee handbook creates uniform practices and policies and provides clear expectations among employees. Most importantly, a properly drafted handbook can limit an employer’s potential liability from claims such as wrongful… Continue reading →

GHA can help your business create and implement an effective employee handbook to protect both you and your employees from the potential of litigation. Even if you already have an employee handbook, it is important to have it reviewed and updated periodically to reflect changes in your business and the law. Additionally, keep in mind that an employee handbook is not a substitute for employment agreements, which we recommend you consider for key employees.

If you have any questions or would like to discuss an employee handbook, please contact us at 1-800-782-8492.

Concerns with Pradaxa Usage May Be Linked to Severe Bleeding

Individuals who have taken the blood thinner Pradaxa, may be entitled to compensation if they have suffered severe bleeding, a GI bleed, brain hemorrhage, peripheral artery clot, ischemic stroke, or heart attack. Attorneys at the Goldenberg Heller Law Firm are looking into whether injured Pradaxa users have a legal claim for monetary compensation, and would… Continue reading →

In 2011, the FDA announced that it was looking into reports of serious bleeding events by users of Pradaxa. The FDA also advised users to seek medical attention at the appearance of any signs of severe bleeding.

Approved by the FDA in 2010, Pradaxa is a blood thinning medication used to reduce the risk of a stroke in people with non-valvular atrial fibrillation. Although blood thinners like Pradaxa and Coumadin are known to have risks of severe bleeding, Coumadin has an antidote. Pradaxa does not have this antidote, and it may therefore be difficult to stop the bleeding if an unexpected injury has occurred.

The Pradaxa attorneys at our firm would like to speak with people who have taken this drug and experienced a GI bleed, brain hemorrhage, or any serious bleeding event. Please contact us at 1-800-782-8492 for a free review of your potential Pradaxa claim.