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In every Boston personal injury case, determining who the responsible parties are is critical. But what is equally important is determining which law governed the at-fault party’s behavior.

With an experience Boston personal injury attorney, you can feel the peace of mind that comes with knowing you have a representative fighting for you.
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Feinberg v. Colgate-Palmolive Co. is a case that addresses the various intricacies involved in personal injury actions. Feinberg (“plaintiff”) used Cashmere Bouquet talcum powder made by Colgate-Palmolive’s (“defendant”) daily for thirty years. Defendants used asbestos in the production of this talcum powder. There was no dispute over the lack of warnings or labels on the powder specifying there was asbestos in the powder. Plaintiff was thus exposed to asbestos daily for thirty years and was later diagnosed with mesothelioma.

Plaintiff argues that Defendant’s failed to warn her of the toxicity of the asbestos in the talcum powder. On the other hand, Defendant looked to statute in their claim that they were protected because their obligation to warn was confused between silent federal statute and state statute which provides for a statute of limitations for claims. Because of this, Defendant filed a motion to dismiss the plaintiff’s claims.

The court here explains that this case centers on the Federal Food, Drug and Cosmetics Act (“FDCA”). The FDCA was established in 1938 to regulate the misbranding of food, drugs and cosmetics. Subsequently, this act was amended in 1997 to include a preemption provision (“Preemption Clause”) in regards to the labeling and packaging of cosmetics. See 21 U.S.C.A §379s(a). This clause was created to address the growing confusion over state and federal regulation of cosmetics.

Preemption is a legal principal based on the Supremacy Clause in the US Constitution. Basically, this principal guides states in the instruction that where federal and state law conflict on the same issue the federal law trumps the state law. States are not to adopt any state law that conflicts with a federal law.

The Preemption Clause to the FDCA provides that the FDCA is the law that governs the labeling and packaging of cosmetics. Therefore, states are prohibited from adopting any requirements that are different from those already codified federally.

It is important to understand the legislative process when interpreting statute. In the U.S. Constitution the legislative branch is given the obligation of creating statutes. Because there are so many areas to regulate, the legislature often creates administrative agencies to focus on statutes surrounding specific areas of law. In creating legislation, the individual agencies are responsible for certain things throughout the statutory construction process. This process is called rulemaking. When creating new legislation, the agency must provide a notice and comment period where the public is given access to the proposed legislation and they are allowed to provide their feedback. In order for this statute to become binding on the public, this rulemaking process must be completed and remain a public record.

In this case, the Food and Drug Administration was the administrative agency responsible for the FDCA and the Preemption Clause. Because the FDA maintained the records of this notice and comment period, the court was able to use these records to establish the statutory intent and application.

The court explains that when dealing with preemption and applicability of statute, it is important to determine what the statute controls. Thus, the issue of retroactivity was next discussed. In order to protect individuals from violation of their rights, a new adopted statute is applied from the date of adoption forward. Basically, unless the statute specifies, the law cannot be applied backwards in time to things that occurred before the statute adoption. Where the statute specifies that a law should be applied to instances that occurred before the adaptation of the law this is called express preemption.

Mesothelioma is a type of cancer that arises from exposure to asbestos. Therefore, the time of first exposure is often significantly earlier than the time of diagnosis. In Feinberg, the plaintiff was first exposed to this asbestos in her talcum powder forty five years before the Presumption Clause was adopted. But the plaintiff was not diagnosed with mesothelioma until after the Preemption Clause was adopted. Thus the question became whether the previous New York state law applied to the defendant’s duty to warn or the federal law created later.

The court in this case rejected the defendant’s motion to dismiss. The Preemption Clause was not applicable to this case because of the “genesis” of the plaintiff’s injuries. Therefore, the defendants did owe the plaintiff a duty of care which must be examined through an appropriate trial.

There are so many statues and knowing which responsibilities an at-fault party has can be very confusing. Because of this, you need an attorney helping you get the compensation you deserve.
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Not only were a property owner and contractor reportedly complicit in a Boston asbestos exposure case that may have imperiled young children, one of them is now also accused of witness intimidation.handcuffsonhands.jpg

Our Boston asbestos exposure attorneys are appalled at the news coming out of Dedham from the state attorney general’s office.

The fact is, asbestos is the cause of mesothelioma, a dangerous cancer that can take years to detect. Once it’s diagnosed, it’s a death sentence and patients are given about a year to live. The diagnosis is devastating to families, who are often blindsided and had no idea, as the exposure may have happened years earlier.

According to a recent press release, the property owner, 58, is from Weston and the heating and cooling contractor, 41, is from Plainville. Each of the two were arraigned on criminal charges – four altogether – for violating the Clean Air Act. Specifically, the two are accused of failing to notify the state’s department of environmental protection about the presence and removal of the asbestos at a residence where a family with small children lived. They also didn’t hire a company specializing in safe asbestos removal.

The state’s Department of Labor Standards is very strict on its requirement that whenever an individual or company is removing asbestos, the work has to be completed by a licensed contractor, trained in asbestos removal. That removal has to follow very specific standards in terms of how the materials are handled, how they must be stored and how they should be disposed of. Throughout this whole process, the department of environmental protection needs to be informed – and its the contractor’s responsibility to do that.

Court records indicate that in December of 2010, the property owner hired the heating and cooling contractor – who was not licensed to perform asbestos removal – to replace a boiler in the basement of the residence. It’s alleged that the contractor did not seal off the basement when he did this work, which would have helped to ensure that exposure to that family and their small children would have at least been limited.

It’s not clear exactly how environmental authorities learned of this alleged violation, but once they did, they immediately conducted an investigation, with the assistance of the Massachusetts Environmental Strike Force – a multi-agency coalition that works together to investigate and prosecute individuals who have committed crimes that potentially threaten the land, air or water or could otherwise pose a significant health risk.

When the contractor learned he was being investigated for potential criminal violations, authorities say he went to the home where he did the work and threatened the tenants – the ones with the small children who had been exposed to asbestos – saying he would inflict some harm if they testified against him.

As of right now, both defendants have pleaded not guilty in the case, and have been released on their own recognizance, although the contractor was ordered to have no contact whatsoever with the tenant/witness.

A pretrial conference for the pair is expected to be held the first of May.
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For their role in a Boston asbestos exposure case, four companies could be required to pony up an estimated $80,000 in penalties. lungs.jpg

As our Boston asbestos exposure attorneys understand it, Massachusetts Attorney General Martha Coakley has announced that the companies were each involved in work being conducted at the Lowell Sun Newspaper near Kearney Square. They are accused of failing to properly remove and dispose of asbestos on the property.

Coakley released a statement saying her office would aggressively go after those who violate the laws regarding asbestos removal, as such regulations are laid out by numerous entities, including the Occupational Safety and Health Administration, the U.S. Department of Transportation, the Environmental Protection Agency and the Massachusetts Department of Environmental Protection, as spelled out in Court Orders Up to $80,000 in Civil Penalties for Four Companies after Improper Asbestos Removal, Press Release, The Office of Massachusetts Attorney General

Those suffering from mesothelioma in Boston should be encouraged by news that has just come out of London, where thousands of families will now be able to file insurance claims for their conditions. thumbsup.jpg

Our Boston mesothelioma attorneys have been closely following the news from across the pond, where the nation’s supreme court ruled that the insurance liability was induced at the time that the individual was exposed – not when the disease was first discovered.

This is crucial in mesothelioma cases because, as we’ve discussed on our Boston Mesothelioma Lawyer’s Blog, this is a cancer that often doesn’t reveal itself for years – usually decades – after the initial exposure. By that time, it is often too late for individuals to seek any kind of effective treatment. In fact, patients usually have less than a year to live.

In our daily lives we can be oblivious to the potential harms around us. If you have been diagnosed with mesothelioma you might wonder how you were exposed to asbestos and not have know the potential harms.
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Having a Boston mesothelioma attorney is critical to getting the award you deserve. Our attorneys have the experience and tenacity to identify the proper arguments and parties in your Boston mesothelioma case.

Simpkins v. CSX is a case where the plaintiff’s husband was exposed to asbestos daily while working for the defendant. Upon returning home from work each night, there was asbestos residue on his clothing. This caused his wife to inhale this asbestos and subsequently suffer from mesothelioma. Plaintiff sued her husband’s former employer claiming negligence, wanton and willful conduct and strict liability.

In a case for negligence, the plaintiff has the burden of proving by a preponderance of the evidence all of the elements of negligence. Plaintiff has to prove that the defendant had a duty to the plaintiff, the defendant breached that duty, the breach of duty was the direct and proximate cause of the plaintiff’s injuries, and the plaintiff suffered damages. Simpkins argues that as to her negligence claim, the defendants failed to take the proper precautions to protect plaintiff’s husband and their family from the potential “take-home asbestos exposure.”

Strict liability is an imposition of liability where the defendant is engaged in ultrahazardous activity. Plaintiff argued that the defendants should be held liable because they were engaged in activities with products containing asbestos.

On the other hand, CSX claimed that no liability can be imposed on them because they did not owe any duty to a third party non-employee who was exposed to asbestos, like the plaintiff. Furthermore, plaintiff was not an employee of the defendant and had never been on the work premises. Because of this lack of a direct relationship between the plaintiff and defendant, defendant argues they had no duty to plaintiff.

This conflict over whether there was a duty involved in this case led the court to analyze the entire concept of duty. In order to do this, the court looked to public policy in their consideration of the relationship between the plaintiff and the defendant. The court cites prior case law where this relationship is further analyzed and divided into four separate components. These components are: the reasonable foreseeability of the plaintiff’s injury, the likelihood of the injury, the amount effort needed to protect from injury, and the consequences of placing this burden of prevention on the defendant.

What is crucial in this case is the general rule that states that there is no duty to rescue a stranger. However, where there is a special relationship a duty to take these affirmative actions can be created. But the court here explains that the relationship between the plaintiff and the defendant does not constitute as one of these four special relationships.

Plaintiff in this case proved that her husband worked for defendants and that plaintiff’s husband was exposed to asbestos. Plaintiff also showed that it was reasonable to find that her husband carried this asbestos home on his clothing. However, she failed to prove that the defendant knew or should have known that there was an unreasonably high risk of harm to the plaintiff. To prove this, plaintiff would have had to show specific facts that would prove that the defendant had actual or constructive knowledge of this risk of harm to plaintiff.

Illinois Supreme Court in this case found that in this cause of action for negligence the main issue was whether the defendants could have reasonably foreseen that their actions could cause the plaintiff’s injuries. Basically, the defendant’s owe a duty of care to foreseeable victims.

In analysis, the plaintiff did prove that the defendant’s acts or omissions contributed to the risk of harm to the plaintiff. However the second part of the duty analysis rests on the four components of the relationship discussed above. Because plaintiff did not prove that her injuries were foreseeable this court found her pleadings insufficient and they remanded it to the lower court for further proceedings.

There are so many components to every theory in every area of law. Having an experienced attorney guiding you can give you the peace of mind you need to concentrate on your health.
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When you are involved in a Boston mesothelioma case, questions may arise regarding what your employer’s duty was in protecting you from unsafe products. It is often hard to think that you were working with fatal substances and no one warned you. Having an experienced Boston mesothelioma attorney to help investigate the facts and recognize the legal issues in your case is essential to recovering the award you deserve.
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In O’Neil v. Crane, the court discusses the issue surrounding the duty employers owe to their employees. The issue is specifically whether a manufacturer has a duty to protect employees from foreseeable harm associated with the products used in the production of their items.

Defendants are manufacturers of valves and pumps used in Navy warships. They would buy external insulation and internal gaskets and packing from a third party in order to produce these pumps and valves. These components used by the manufacturers contained asbestos that harmed the plaintiff in this case. Plaintiff was exposed to these items containing asbestos in her capacity as an employee for the defendants. Plaintiff suffered harm associated with this asbestos and subsequently died.

Plaintiff’s estate filed a lawsuit against her former employers for wrongful death, claiming that the defendants should be held strictly liable in addition to negligence because it was foreseeable that their workers would be exposed to and harmed by the asbestos in the components they used in manufacturing the pumps and valves.

Strict liability is a form of liability common in torts, which is classified as a civil wrong. This type of liability is very common in product liability cases because there is no need to prove negligence or intent. In order to prove that the defendant is guilty under strict liability, the plaintiff must prove that the defendant is responsible for the civil wrong that occurred which harmed the plaintiff.

On the other hand, negligence requires the plaintiff to prove that the defendant owed a duty of care to the plaintiff, that the defendants breached that duty, that the breach of duty was the direct and proximate cause of the plaintiff’s injury, and there were damages.

The question presented to this court was whether the product manufacturer breached their duty to their employees where there were injuries to these employees caused by the products and parts that were made by a third party, but used by the defendant to produce their products.

The Supreme Court of California held that where the employee of a product manufacturer was harmed because of the products of a third-party manufacturer that was used in the manufacturing of the product by the employer manufacturer, the employer was not liable for harm caused to the employee unless the defendant’s own products contributed substantially to the harm or the defendant participated in creating a substantially harmful combined use of the products.

The court here indicates that this motion for strict liability would expand on the construction of the concept of strict liability, and they refused to do this. The current law in California imposes this strict liability on manufacturers whose products are defective and cause injury. However, the court distinguishes imposing liability in those cases from the plaintiff’s contention in this case where the plaintiff contends that the defendant is liable for not foreseeing the injuries caused by products manufactured by another company.

As to the question of negligence, this court indicated that the manufacturer had no duty to warn of potential hazards in third-party parts used in their manufacturing when the hazards were not integral to the products design. It is considered unlikely that manufacturers would be able to ensure that there were no unknowable risks or hazards lurking in every item they used in the manufacturing of their products.

Therefore, plaintiff lost the case as to the two proposed theories of imposition of liability.

Each state has different laws regarding liability in mesothelioma cases. Having an experienced attorney to make the arguments for you can give you the peace of mind you need to concentrate on getting better.
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If you were diagnosed with mesothelioma in Boston as a result of asbestos in the workplace you may be thinking that suing a large company will be no easy feat. Do not get discouraged. Our Boston mesothelioma attorneys have the knowledge and experience to take on the big companies to get you the award you deserve.
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Cancer runs rampant in our country but mesothelioma is very unique. Mesothelioma is cancer, usually in the respiratory system that results from exposure to asbestos. Asbestos is a dangerous substance that has been linked to usage in the manufacturing and building industries.

Daley v. A.W. Chesterton is a case that arose because a laborer who was working in the manufacturing sector became ill because of his exposure to asbestos. He was diagnosed with two malignant diseases over a span of 16 years, and he sought compensatory and punitive damages from several parties who were responsible for this exposure.

Compensatory damages are the quantifiable damages that are measured monetarily to replace strictly the financial loss to the plaintiff. In instances where there is injury or disease that resulted because of the defendant’s negligence, compensatory damages would be awarded to compensate the plaintiff for the medical bills incurred for treatments resulting from that defendant’s negligence. Punitive damages have the intention of punishing the defendant and deterring the negligent behavior, and are awarded for things like pain and suffering.

In Daley, the Supreme Court of Pennsylvania was charged with the question of whether a plaintiff could bring more than one separate lawsuit where the plaintiff was diagnosed with more than one malignant disease that was the result of the same asbestos exposure.

Pennsylvania has a state statute called the two disease rule. This rule allows individuals to bring separate lawsuits where the plaintiff can prove that he or she was diagnosed with more than one malignant disease that was the result of defendant’s negligence.

The plaintiff in this case was first diagnosed with pulmonary asbestosis and squamous-cell carcinoma in his right lung. These diseases can be directly attributed to exposure to asbestos. He sued several parties and obtained a settlement in the mid 1990s.

More than 10 years later, the plaintiff was diagnosed with malignant pleural mesothelioma. This cancer can be directly linked to the same asbestos exposure that gave the plaintiff the original diagnosis. Plaintiff then sued several different parties for negligence and cited this two-disease rule.

The defendants in this case argued that the doctrine of res judicata precluded this action. Res judicata is a doctrine surrounding claim preclusion in that a suit cannot be brought if the main issue in the second suit is exactly the same as the first and there are the same parties to the action. Basically, they argued that the plaintiff lost his right to sue these parties in the second litigation when he sued the original parties to the lawsuit because the diseases arose out of the same asbestos exposure.

The court cited that this was incorrect reasoning because none of the defendant named in the second litigation are the same as the defendants named in the first case that was settled in the late 1990s. Additionally, the court discussed this two-disease rule, which is a limited exception to the original cause of action requirements created by the state legislature to provide relief for asbestos-related diseases.

In application, the plaintiff was allowed to sue the different defendants in the second case for a different malignant asbestos related disease arising from the same asbestos exposure that led to a prior settlement for damages associated with a different malignant disease. The plaintiff was allowed to do this because at the time he brought the original claim, he had no knowledge of the existence of the second asbestos-related malignant disease.

Consequently, this court decided that the separated disease rule of Pennsylvania allowed this plaintiff to file a second cause of action for the new malignant asbestos-related disease.

Having an experienced legal team can be very beneficial in navigating your way to the award you deserve.
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The Meso Foundation, also called The Mesothelioma Applied Research Foundation, recently announced that it was dedicating another $500,000 toward research for mesothelioma in New England and nationwide.

This is good news for those who have seen how devastating mesothelioma can be to a person. This incurable form of cancer strikes in its advanced ages, years after a person has been exposed to asbestos.
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In many cases, our Boston mesothelioma lawyers have seen, people were exposed to asbestos decades earlier without feeling any symptoms. It’s not until the cancer is in its later stages that people begin feeling the common symptoms of chest pain, trouble breathing and others that indicate something is wrong.

Since other non-cancer illnesses can sometimes have similar symptoms, patients may ignore the symptoms and don’t get themselves checked out. In other cases, people go to the doctor but are unable to get a good diagnosis right away because the medical facility isn’t sure what is causing the problem. This only delays treatment.

Sadly, research has shown that once a person gets the diagnosis of mesothelioma, they usually only live another 12 months. Because these tumors can stay largely hidden inside a person’s body for so long without symptoms, the slow-moving cancer can cause a quick death.

And that’s why researchers are excited that organizations are willing to prove these funds to try to find a cure. The foundation reports that out of 46 different applications for the grant money, they chose five projects.

Officials said they hope that the money will work to find a cure. At the very least, the research may be able to find out more about how the cancer works, why it stays hidden, how it reacts to treatments, such as chemotherapy, and perhaps even how to identify the cancer more quickly.

The projects went through a peer-review process, being reviewed by member of the foundation’s board. They looked at what the proposed projects would do, what techniques and form of science they would use and what the stated goal is.

Among the projects that will be completed:

A study trying to combine genomic data of 10 mesothelioma tumors to look at molecular characteristics and defining how defective genes impact malignant cells. This project looks to study which genes are meaningful in disease treatment.

An investigation into how the immune system proteins regulate the response of chemotherapy cell death in mesothelioma cells. Previous work has shown that patients who had low or no levels of a certain protein in their tumor cells had longer time without the disease.

The foundation has now provided $7.6 million in grant money to research this form of cancer. The five new grants bring the total to 76 that have been funded by the efforts of this foundation. Everyone wants to see a cancer-free world. For those with mesothelioma and their families, this research means a lot. Mesothelioma hasn’t gotten the type of attention other cancers have, so any money available to research it is important.
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A company that for half a century provided asbestos-laden parts to the U.S. Navy recently set up a $75 million asbestos trust for veterans who may have been exposed and suffered illnesses because of it.

Many U.S. veterans were exposed to asbestos while serving aboard Navy ships when the government regularly used this natural mineral as an insulation and a protector from fire. It was used in piping, valves and other parts to resist heat and fire. The flaky mineral can easily be ingested and lead to tumors that grow on the lining of major organs on patients with mesothelioma in New England.
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Our Massachusetts mesothelioma lawyers have met many veterans who served faithfully in order to protect our country’s freedom. Yet during that service time, they were exposed to asbestos. In many cases, the companies that supplied the products laden with asbestos knew of their effects or at least had been warned that people were getting sick.

Yet unsuspecting veterans were working on these U.S. Navy ships and in shipyards where asbestos was commonly found. Decades later, far after retirement, these men and women are now getting sick and being diagnosed with major illnesses, including mesothelioma, which is deadly and has no cure.

A person can be exposed to asbestos at a young age and live with the cancer for years without it showing any outward symptoms or signs. By the time a person feels those symptoms — commonly reflected as heavy coughing, chest pain, fluid build-up and others — it’s typically too late. The cancer is in its advanced stages and there are few treatment options that can help.

According to several sources, Leslie Controls Inc., as part of a bankruptcy reorganization plan, has dedicated $75 million to victims of asbestos exposure. The company provided valves and gaskets that were covered in asbestos for the Navy between the 1940s and 1980s. The company has been named in a growing number of asbestos-related and mesothelioma lawsuits. The company filed for bankruptcy in 2010.

The legal strategy of the company is to be able to handle all current and future litigation that may crop up because of the company’s use of the dangerous mineral. The fibers, research has shown, are the primary cause for mesothelioma and other respiratory ailments.

The U.S. Navy is protected from direct lawsuits under sovereign immunity and Feres Doctrine laws. However, individuals may file lawsuits against manufacturers that contracted with the government on a regular basis. Leslie has previously contended that its products didn’t contribute to asbestos exposure for veterans.

All lawsuits were halted in 2010 because of the bankruptcy filing. Once the reorganization plan is approved by the court, the lawsuits are expected to continue. The company continues to manufacture and supply valves and subsystems in the energy, industrial and aerospace markets.
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A company that manufactures cans in Minnesota is attempting to use lobbying efforts to try to shield itself from asbestos lawsuits after workers have complained of getting sick, the Star Tribune is reporting.

This can be a lesson to Massachusetts lawmakers who must deal with the problems here associated with constituents who are exposed to asbestos in New England. While there are no longer active vermiculite mines that may contain asbestos, that doesn’t mean people here couldn’t be exposed – or haven’t been already.
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Our Boston mesothelioma lawyers understand that mesothelioma doesn’t get the same time of attention that other forms of cancer may get. It is fatal, though, and there is no known cure.

Companies that have old factories or old manufacturing plants often are faced with the problem of having asbestos it the walls or in piping. This can cause employees to be exposed to asbestos, which in turn causes long-term health problems.

In Minnesota, a company that has three manufacturing plants is hoping to change state law that could limit the number of asbestos claims stemming from a merger in the 1960s. The company says current laws have caused it to have to pay $700 million in claims and lawyer fees on top of $1 billion in borrowing costs associated with the litigation.

Lawyers say the proposal, which is up for a vote in the state senate, is the company’s way of trying to skirt the rules and get the law changed so they can protect themselves from lawsuits. Experts say that if the law is changed to help this company, it could affect all companies and set a bad precedent for future lawsuits.

The company currently has about 150 asbestos cases statewide, with most being filed in the last 15 years. In the last year, only a few have been filed, lawmakers say. Company officials say they hope the law change will help their image with Wall Street.

Analysts believe that current litigation could take decades to be completed and it could go on into the future because health problems with asbestos exposure can take decades to detect. Future victims who don’t know they’re sick could end up being affected if this measure is passed.

This is a good lesson for Massachusetts lawmakers because it’s possible that Massachusetts residents could attempt to bring similar litigation here. Big companies with many employees, including past employees who may have been harmed by asbestos exposure, may file future lawsuits.

The tricky thing with mesothelioma is that workers may not find out about the cancer until years in the future, even though they were employees decades ago. Therefore, if politicians attempt to help these companies — which may have put these workers at risk by letting there be asbestos in their buildings — by changing the laws, it could mean major problems in the future.

If employees aren’t able to get the help they need to pay for major medical bills, they may have nowhere to turn. It’s important that the laws are in place to help employees who may have been harmed or killed because of company negligence.
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