Background Facts of Case
The most common case implicating an alleged statutory employer as liable for workers’ compensation benefits for an individual, typically involves a construction worker whose direct employer, namely, a subcontractor on a large construction project, has failed to provide workers’ compensation insurance coverage for that individual. In that instance, the subcontractor has failed to purchase or maintain an active or valid workers’ compensation policy to cover its own employee. The question then arises as to whether the general contractor becomes the statutory employer liable for workers’ compensation damages to that individual if he is injured on-the-job.
However, in this case, Six L’s Packing Company grew, processed, and distributed tomatoes and other produce. The company owned various farms, processing, and distribution facilities. Six L’s contracted with F. Garcia and Sons to perform certain services, including transporting tomatoes by truck between a warehouse in Pennsylvania and a processing facility in Maryland. Claimant was employed by Garcia as a truck driver, and sustained injuries from a vehicular accident incurred on a highway in Pennsylvania while hauling tomatoes between the two locations. Claimant filed workers’ compensation Claim Petitions against Garcia and against Six L’s. It turned out that Garcia had not maintained workers’ compensation insurance for its employees. This case was therefore focused on the theory of whether Six L’s then became claimant’s statutory employer, under Section 302 of the Pennsylvania Workers’ Compensation Act, as amended, and whether Six L’s consequently became liable for payment of workers’ compensation benefits to claimant.
Under Section 302,
(a) A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Read More
On May 23, 2012, the Pennsylvania Supreme Court in a unanimous 53-page decision in Betz v. Pneumo Abex,[1] which reversed the 2010 en banc panel of the Superior Court that overturned an Allegheny County trial court’s ruling on a Frye[2] motion in an asbestos product liability action.
At the trial court, the plaintiff alleged that Charles Simikian’s exposure to asbestos-containing friction products, such as brake linings, throughout his 44-year career as an auto mechanic caused his development of and eventual death from, mesothelioma. The action was selected by plaintiffs among several pending asbestos-related lawsuits as a test case to consider challenges brought by defendants to the opinions and methodology supporting the plaintiffs’ theory that exposure to friction products was a proximate cause of asbestos-related disease.
In a new opinion, the Supreme Court of Pennsylvania in Betz v. Pneumo Abex has clarified the standards and procedure for trial judges to follow when acting as gatekeeper for novel expert testimony. The Betz case was designated by Judge Robert J. Colville and plaintiffs’ and defense counsel from a pool of similar asbestos cases pending in the Court of Common Pleas of Allegheny County. Two of the defendants in those cases had filed global motions to exclude expert testimony on the “single breath” theory of causation of asbestos related disease espoused by the plaintiffs’ experts. That theory, based on extrapolation, holds that the inhalation of just one asbestos fiber from an asbestos containing product, no matter what other asbestos exposure and extent of exposure the plaintiff may have had, causes asbestos related disease. The defendants argued that the theory was novel and not based on accepted scientific principles. Judge Colville instructed the parties to designate a case as a test case for the Frye challenge raised by the defendants. [A Frye challenge is the Pennsylvania state courts’ method of challenging expert testimony, as opposed to the federal courts which are governed by the U.S. Read More
Joseph D. Mancano, partner in the Philadelphia office of Pietragallo Gordon Alfano Bosick & Raspanti, LLP, is the recipient of the Nora Barry Fischer Award for 2012. The Nora Barry Fischer Award serves to recognize an attorney within the Firm who has given back to the legal profession and the community at large.
Mr. Mancano has shown great commitment to both the legal profession and the community through his involvement in numerous organizations. For twenty years, he has served as a member of the Criminal Justice Act Panel in the U.S. District Court for the Eastern District of Pennsylvania, representing indigent individuals charged with serious federal crimes. He is also a member of the Board of Governors for the Civil War Museum of Philadelphia where he serves on the fundraising and site selection committees.
In addition, Mr. Mancano serves as President of the Saint Thomas More Society of Philadelphia. The Saint Thomas More Society of Philadelphia seeks to promote and foster high ethical principles in the legal profession generally and, in particular, in the community of Catholic lawyers; it provides a Catholic voice on issues of relevance to judges, lawyers, public officials, and law students; and, above all, the Society encourages its members to apply the ideals of Saint Thomas More in both their personal and professional lives.
Mr. Mancano focuses his legal practice on representing clients in a wide- range of complex criminal and civil cases including antitrust, RICO, bank fraud, securities, health care, income taxes, and qui tam/whistleblower claims. He is an accomplished trial attorney and has tried over 100 criminal and civil cases to verdict in state and federal courts throughout the United States. In addition to his active trial practice, Mr. Mancano also handles appeals in federal and state courts.
Mr. Mancano received his law degree from the Temple University School of Law, where he was on the Dean’s Honor Roll. Read More
Louis C. Long will participate on the panel, “Ethics in Tort Litigation: Expert Communications after Barrick v. Holy Spirit Hospital, Expert Discovery after Cooper v. Schofstall, Uninsured/Underinsured Litigation after IFP v. Koken, etc…” at the Pennsylvania Defense Institute’s West Region regional CLE program on June 28, 2012 in Pittsburgh, PA.
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Please note: This is the second article in a two-part series discussing North Carolina’s False Claims Act. The first article discussed the Federal False Claims Act and its state counterpart as passed by the legislature in North Carolina.
North Carolina’s False Claims Act has a more stringent “first-to-file” provision than its federal counterpart. The federal False Claims Act’s first-to-file provision is intended to prevent potential relators from filing parasitic suits based on the same allegations that underlie an already pending qui tam suit. Thus, under the federal FCA, when a relator brings a qui tam action, only the government may intervene or bring a related action on facts underlying that qui tam action.
The N.C. FCA is stricter than the federal FCA, however, and prohibits persons other than the state from intervening or bringing a related action based on the facts underlying a pending N.C. FCA action, federal FCA action or an action based on any similar provision of law in any state. Thus, the first-to-file bar could be more of a hindrance to potential relators under the N.C. FCA than under the federal FCA.
Public Employee Limitation
The N.C. FCA also includes a major departure from the federal FCA because it limits the scope of qui tam matters that can be brought by public employees. Specifically, the N.C. FCA bars public employees or officials from filing FCA suits if the allegations of the suit are based substantially upon allegations of wrongdoing or misconduct that (1) such person had a duty or obligation to report or investigate within the scope of his or her public employment; or (2) information or records to which the person had access to as a result of his or her public employment or office.
In contrast, the federal FCA does not prevent public employees from being relators, even if those employees had a duty or obligation to report misconduct to their employer. Read More
Please note: This is the first of two articles about North Carolina’s False Claims Act.
Since the passage of the North Carolina False Claims Act in 2009, which became effective Jan. 1, 2010, North Carolinians have had a powerful weapon to combat fraud against their tax dollars and to return these funds to the state coffers. At the time it was passed, North Carolina joined 25 other states and the District of Columbia by enacting its own False Claims Act.
The North Carolina Medical Assistance Provider False Claims Act, a narrower predecessor to the N.C. FCA that specifically applies to the presentation of false claims by providers of medical assistance under the North Carolina Medical Assistance Program, is still in effect.
Like the Federal False Claims Act upon which it is modeled, the North Carolina False Claims Act is designed to deter and punish those who make false or fraudulent claims for payment by the state and to provide powerful incentives for whistleblowers. In addition to imposing penalties of $5,500 to $11,000 for each false claim submitted to the state and treble damages against wrongdoers, the N.C. FCA contains a qui tam provision allowing private citizens with knowledge of fraud against the state to file suit on behalf of the state and to receive between 15 and 30 percent of the amount recovered from the fraudster as a reward.
The federal FCA has been the federal government’s single most powerful tool to combat fraud and waste against the public fisc. Since the federal FCA was amended in 1986, more than $30 billion has been recovered from those who sought to fraudulently profit from taxpayer dollars. It has been used to expose every type of scheme affecting federal funds, including health care, contracting, defense, disaster relief and education fraud.
The federal FCA was strengthened in 2009 by the Fraud Enforcement and Recovery Act (FERA) and again in 2010 by the Patient Protection and Affordable Care Act (PPACA). Read More
Janet K. Meub will present “Trying a Case in State Court: From Start to Finish” at a CLE hosted by the Pennsylvania Bar Institute on June 26, 2012 in Pittsburgh, PA.
Location:
PBI Professional Development Conference Center
Heinz 57 Center, 339 Sixth Ave., 7th Floor, Pittsburgh, PA
Time:
9:00 a.m. – 4:15 p.m.
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In CSX v. Smith, the West Virginia Supreme Court affirmed a seven figure verdict in a sexual harassment hostile work environment and retaliatory discharge case. Plaintiff, Smith, claimed that a co-worker, Knick, made disparaging comments regarding her sexual orientation. Mr. Knick was disciplined and removed from management, but was not fired. After his demotion, he was transferred and, due to his union seniority, he was under Smith’s supervision. Smith advised CSX that she was frightened of Knick because of violent and retaliatory comments. Due to apparent concern for Plaintiff’s safety, CSX placed Plaintiff on administrative and then medical leave. While on leave, Plaintiff alleged that an unidentified male came to her house and made threats. She also experienced threatening phone calls, and car tampering.
CSX offered to transfer Plaintiff to Tennessee or Kentucky where she would not have to supervise Mr. Knick. She refused these proposed transfers and when she returned to work, she accepted a position at a prior work location with a $35,000 cut in pay. She filed a complaint in the Circuit Court of Boone County alleging sexual harassment, hostile work environment, constructive discharge, retaliation for her complaints of sexual harassment, and negligent retention of Mr. Knick. Thereafter, CSX terminated Plaintiff for using work taxis improperly, for which Plaintiff claimed she had express permission. As a result, she added a claim against CSX for retaliatory discharge.
As to the liability phase of the trial, the jury concluded: (1) Plaintiff was subjected to a hostile work environment; (2) CSX did not investigate and adequately respond to the misconduct alleged by Plaintiff; (3) CSX retaliated against Plaintiff as a result of her complaints of sexual harassment and/or her filing of a lawsuit against it; and (4) CSX negligently retained Mr. Knick as an employee and that such negligence proximately caused the damages suffered by Plaintiff. Read More
Joseph D. Mancano will present on “Fraud Trends in the Health Care Industry” at the 2012 PICPA Health Care Conference on June 11-13 in Lancaster, PA.
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Recently, the EEOC issued an updated Enforcement Guidance on Employer Use of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. This new Guidance places a heavy burden on employers who wish to continue to use prior criminal information in employment decisions. The EEOC will analyze whether a criminal record exclusion policy violates Title VII under two analytical frameworks: “disparate treatment” and “disparate impact.” Under the disparate treatment analysis, the employer may be liable for violating Title VII when a plaintiff can demonstrate that the employer treated him differently because of his race, national origin or other protected basis. For instance, disparate treatment analysis would be applicable where there is evidence that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated white applicant with a comparable criminal record. Under the disparate impact analysis, an employer has violated Title VII through its use of criminal records where the employer’s neutral policy or practice has an effect of disproportionately screening out a Title VII-protected group and the employer cannot demonstrate that the policy is job related for the position in question and consistent with a business necessity.
In investigating a claim relating to a criminal exclusion policy under a disparate impact analysis, the EEOC will require an employer to show that its criminal conduct exclusion policy does not cause a disparate impact on the protected groups. The employer may present regional or local data, for instance, showing that African American or Hispanic men are not arrested or convicted at a disproportionately higher rate in that employer’s particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact. However, an employer’s evidence of a racially balanced workforce is not sufficient to dispute disparate impact because an employer’s application process may itself be found to not adequately reflect the actual potential applicant pools since otherwise qualified people may be discouraged from applying because of the alleged discriminatory policy or practice. Read More
