Articles of Interest

Some interesting facts “by the numbers” to give you further insight into Berkman, Gordon, Murray & DeVan

What we do for a living is a large part of how we define ourselves. But sometimes, despite giving years of dedicated service to an employer, an experienced, seasoned worker finds him or herself being treated unfairly, or fired and replaced by someone younger. Fortunately, federal and state laws forbid employers from discriminating against employees because of certain characteristics. One of those characteristics is age.

There can be no doubt that as our population is aging, claims of age discrimination are growing. According to statistics published by the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating age discrimination claims as well as claims of sex discrimination, race discrimination and disability discrimination, between 1997 and 2010, the number of claims of age discrimination filed with it rose from 15,785 to 23,264.
Ohio civil rights laws and the federal Age Discrimination in Employment Act offer protection to employees who are over 40 years old. Generally speaking, these laws make it unlawful for employers to discriminate against older workers in the context of promotions, demotions, firing or in setting the terms and conditions or privileges of employment because of their age. It also prohibits discrimination in employee benefit plans such as health coverage and pensions.
The interplay between the federal age discrimination law and Ohio´s age discrimination laws can be complicated. For example, under the federal age discrimination law, an aggrieved employee can´t immediately file a lawsuit. Instead, a charge of age discrimination has to be filed with the Equal Employment Opportunity Commission, which will conduct an investigation into the complaint.
Ohio has several statutes that deal with age discrimination. And while an aggrieved worker is not required to file a charge of age discrimination with the Ohio Civil Rights Commission to bring a lawsuit, actions taken under one of Ohio´s anti-discrimination statutes can affect the availability of a remedy, including money damages, under a different age discrimination statute.
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One area of concern unique to the care of frail, older persons who have bed rails installed on their beds is the risk that their heads, necks, chests, or other body parts will become entrapped in spaces between their mattresses and the bed rails or between spaces in the bed rails themselves. Because of their compromised physical or mental health, frail elderly persons may be unable to free themselves and are thus at risk of being strangled to death as a result of their entrapment.

Between 1985 and 2010, 493 people died when they became entrapped by the rail on their hospital, nursing home, or home health care bed and strangled to death. Another 141 people were injured–some sustaining amputations–as a result of the same problem. The vast majority of victims were frail, confused elderly patients. Their deaths and injuries were both senseless and preventable.

The danger of bed rail strangulation has been recognized for quite some time, but the effort to address the problem has moved slowly. In 1999, a "workgroup" formed with the guidance of the FDA, was created to study the issue.

As a result of the workgroup´s review, the FDA has identified seven zones that pose a particular risk of entrapment and subsequent strangulation. Those seven areas are:

  1. The space within the bed rail;
  2. The space under the bed rail (between rail supports or next to a single rail support);
  3. The space between the bed rail and the mattress;
  4. The space between the bed rail, at the end of the bed rail;
  5. The space between the two bed rails when two bed rails are placed on the same side of the bed with a space between the two bed rails;
  6. The space between the end of the bed rail and the side edge of the head or foot board of the bed;
  7. The space between the head or foot board and the mattress end (this area should be evaluated not only on beds with bed rails, but on any bed since the dangerous gaps are not created by the bed rail but by the mattress).

There are various measures that can be taken to keep our elderly relatives and friends safe from this danger and to reduce the risk of entrapment and strangulation by eliminating or reducing the size of these spaces.

Berkman, Gordon, Murray & DeVan, 55 Public Square, Ste. 2200, Cleveland, Ohio 44113 has represented families of persons who have been the victims of bed rail strangulation.


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Driving while intoxicated or under the influence of drugs, or as it is known in Ohio, operating a vehicle under the influence (OVI), is a criminal offense. Although usually prosecuted as misdemeanors, these offenses may be charged as felonies in some repeat offender situations. When an accident occurs and the responsible driver is under the influence, felony charges of aggravated vehicular assault or aggravated vehicular homicide may be filed.

Most OVI cases begin when a police officer observes someone driving at a speed above the posted limits or operating his or her vehicle in an unsafe or erratic manner. If an officer observes objective factors which lead him to suspect that the driver of the vehicle is, in fact, driving while impaired, he can stop the vehicle.

After stopping a driver on suspicion of operating a vehicle under the influence of alcohol or drugs, the officer will evaluate the driver´s condition for evidence of intoxication like slurred speech, red or glassy eyes, and the odor of alcohol. If the officer finds the existence of factors suggestive of intoxication, he will ask the driver to get out of his or her car. The officer will then conduct field sobriety tests at road side which may include recitation of the alphabet, balance tests, or an HGN test (horizontal gaze nystagmus) in which the driver must follow a pen or the tip of a penlight with his or her eyes. If the officer detects a certain number of "clues" indicating that the driver is impaired, he will arrest the driver and transport him or her to the station house.

At the station house, the officer must advise the arrested driver of his or her rights, including the right to the advice of counsel and the right to refuse a chemical test such as a breathalyzer, with a warning of the consequences of a refusal to submit to the testing.

The question in most OVI cases is whether the driver of a motor vehicle was "impaired" at the time the vehicle was being operated. In addition to the observations of the officer, certain chemical tests have been devised to determine impairment. Breathalyzers are one form of testing but have been the subject of considerable controversy for many years. Ohio has now begun using the Intoxilizer 8000, which uses infrared absorption to analyze breath samples. However, its reliability has been successfully challenged in several courts throughout Ohio.

As mentioned above, the arresting officer is obligated to advise the arrested driver of his or her right to contact an attorney before deciding whether or not to submit to a chemical test. Refusal to take the test, or submitting to a test that produces a blood alcohol level in excess of the permitted level (.08 breathalyzer), will result in suspension of the arrested driver´s license, in addition to a charge of OVI. A driver may be charged with the separate and additional offense of breath alcohol content (BAC) if a test is "over the limit."

The driver may then be released on bond; occasionally, an OVI defendant is held in jail until his or her initial court appearance. Suspension of his or her driver´s license, as well as the limitation of driving privileges, may be addressed in subsequent court proceedings. In addition, an administrative license suspension of the operator´s license may occur. The OVI defendant also faces stiff fines, court costs, and increased premiums or non-renewal of automobile insurance.


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Federal Criminal investigations, into white collar offenses, tax offenses, mail fraud, medicaid fraud, drug cases and numerous other federal crimes are often initiated with a visit to the target´s business, or residence. The investigators, usually FBI, IRS, postal inspectors or other federal agents, hope to obtain statements useful to the investigation. Additional federal investigative methods include executing search warrants and Title III electronic surveillance (wire taps), among others. After gathering the evidence a federal prosecutor then submits the case to a grand jury and obtains indictments.

Following indictment, the indicted defendants are either arrested or summoned to appear in the district court for an arraignment. The arraignment is a critical juncture of the proceedings. At the arraignment a plea of not guilty is usually entered and bond is set. However, upon motion of the government, even a white collar business defendant can be held pending a pretrial detention hearing at which the court may, under specific circumstances, deny bond and hold him or her in custody until the case is resolved.

After arraignment one or more pre-trials are held during which the court will want to know about the progress of discovery and whether the defendant will enter a plea of guilty or go to trial.

The discovery process is important–especially so in complex white collar, tax, mail fraud, and conspiracy prosecutions. The government is required to provide or notify defense counsel about the existence of certain evidence. However, the government is not required to provide everything in its possession. Discovery rules are fairly specific about what the government must provide and that which is not discoverable.

Although courts usually schedule trial quickly in complex cases, the court may continue the trial to provide sufficient opportunity for the government and defendant to complete discovery. If the matter cannot be settled through a negotiated result (plea bargain), the case will go to trial, usually before a jury. However, with the agreement of the government, a defendant may waive trial to a jury and try the case to the court for resolution by the judge assigned to the case. In either event, certain constitutional rights apply at trial: the right to counsel; the right to have the government carry the burden of producing evidence; the right to confront and cross-examine witnesses; the right to subpoena witnesses on the defendant´s behalf; the right to testify or not, as the defendant may choose; and the right to force the government to produce evidence that convinces the jury, or the court in a bench trial, of guilt beyond a reasonable doubt.

Although the defense of a federal case may appear to be very technical, and it is, protection of targets of federal prosecutions is paramount for experienced defense counsel. The federal government possesses awesome power to investigate all federal offenses, and will bring it to bear on the white collar, fraud or drug defendant in federal court. Anyone who learns that he or she may be the subject of a federal investigation is urged to seek the advice of an attorney experienced in the defense of federal cases.

BERKMAN, GORDON, MURRAY & DeVAN, 55 Public Square, Ste. 2200, Cleveland, Ohio 44113, has represented persons accused of federal crimes at all stages of criminal prosecution, including at trial and on appeal.


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We all learned in elementary school that one of the rights that we have, as citizens of the United States, that is envied by others around the world is our right to free speech. Our teachers taught us that the First Amendment protects our right to say what we want without fear of punishment or reprisal by the government.

We also learned (sometimes the hard way) that the First Amendment does not protect us from being punished by our parents for our "free speech" when we lob a smart alecky remark in their direction or from rebuffs from our friends or peers when they disagree with or are hurt by what we say. And so just as a group of friends can refuse to associate with us because they disagree with our endorsement of a political candidate or because of an opinion expressed in a letter to the editor of our local newspaper, a private employer likewise can decide that it no longer wants to employ us because it disagrees with something we´ve written or said.

Things change, however, when our employer is the government. We do not give up our right to free speech just because we are employed by a city, school board, or other governmental entity. But our free speech rights as governmental employees are not unlimited.

A potential violation of a public employee´s rights occurs when his or her employer takes an "adverse action" (firing or demotion, for example) in retaliation for an employee´s speech on an issue of public interest relating to political, social, or other concerns of the community, outside of his or her employment duties. In contrast, First Amendment protection is not extended to a government employee´s speech that involves internal office politics, concerns matters of only personal interest, or was made in the course of performing his or her employment duties.

So, a teacher who, in her spare time, authors a blog devoted to the unfair treatment of the homeless and is disciplined because of the opinions expressed in her blog, may have a federal claim against her employer, while her colleague who writes a letter to the editor complaining about his personality conflict with the principal of his school and is disciplined because of his letter, probably does not. The same is true for an employee who is disciplined for expression made in the performance of his job duties.

If an employee can demonstrate that he or she was disciplined or otherwise suffered an adverse employment action because of his or her speech on a matter of public concern, a court will balance the employee´s interest in publishing his or her speech against the governmental employer´s interest in the effective and efficient fulfillment of its responsibilities to the public, which includes the efficient and successful operation of its office. In doing so, it must account for a range of interests.

For example, the First Amendment rights of a teacher were found to be violated when he was fired because he sent a letter to the editor of a local newspaper criticizing the school district´s past proposals for raising revenues for the schools. On the other hand, the First Amendment rights of a teacher, who claimed he was fired because of a four-page essay he emailed to his fellow faculty and staff members criticizing the school´s dog therapy program and berating an unnamed staff member, were not. A police officer, who was fired because he made anonymous posts to the internet opposing the views of borough council members who had criticized the purchase of two high-velocity weapons for the police department, had a claim for violation of his First Amendment rights. Police officers, who were fired because they reported misconduct in their department "up the chain of command," did not. In many cases, the line between what is a matter of public interest and what is not, is blurred. The outcome of the claim, thus, depends largely on the facts developed on the record before the court.

Berkman, Gordon, Murray & DeVan, 55 Public Square, Ste. 2200, Cleveland, Ohio 44113, has successfully represented a number of public employees, including police officers, court staff and others, who have been retaliated against for exercising their free speech rights.


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Although it is not a common occurrence, sometimes people, especially young children, experience adverse reactions to vaccinations that result in serious and permanent injuries or even death.

If you, your child, or another loved one has had an adverse reaction as a result of a vaccine, compensation may be available to you, at no cost, from the National Vaccine Injury Compensation Program.

The National Vaccine Injury Compensation Program (the NVICP) was established in 1988 for the purpose of compensating individuals who have been injured as a result of the administration of a vaccine. The NVICP may pay for the medical and other expenses associated with the injury, and may also award compensation for the pain and suffering endured as a result of a bad reaction to a vaccination.

To receive compensation from the NVIC Program, several things must occur:

  1. First, it must be established that the injury was caused by a vaccine. This can be established in one of two ways: by presumption or by proof. If the injury is identified on the Vaccine Injury Compensation Table as one of the types of injuries recognized as being potentially caused by the administration of a particular vaccine, and if the injury occurred within the time frame identified on the Table, then there is a presumption that the injury was caused by the vaccine. If the injury is not identified on the Table or has not occurred within the time frame identified on the Table, it still may be possible to prove the vaccine caused the injury by offering the opinion of a qualified expert witness who has concluded that there is a connection between the vaccine and the injury
  2. If a presumption exists or an expert opines that an injury was caused by the administration of a vaccine, a Petition for compensation may be filed with the United States Court of Federal Claims. This court is the only court that hears vaccine claims, and it will determine whether the claim is one for which compensation will be allowed.
  3. There are specific procedures which must be followed in filing a claim under the National Vaccine Injury Compensation Program. Specifically, the claim must be filed within a certain time frame; it must have all of the required medical records included with the filing, and it must be either a presumed vaccine injury or be supported by the affidavit of an expert witness who has opined that the injury was caused by a vaccine.
  4. If your claim is not challenged, i.e., if the government concedes the injury was caused by the vaccine, or if, as a result of the litigation process, the court determines the vaccine did cause the injury, the court will deem the claim to be meritorious, and the next step is to determine the damages to be awarded.
  5. Damages that may be awarded through the Vaccine Injury Compensation Program include:
    • Past medical expenses;
    • Future medical expenses, including the cost of physicians, medications, medical equipment, therapies, etc.;
    • Other out-of-pocket expenses necessitated by the injury, such as equipment to modify a home, etc.;
    • Lost wages;
    • Pain and suffering;
    • Funeral and related expenses in the case of a wrongful death; and
    • Attorney fees and expenses to pursue the claim.

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