HB Litigation News

Category: Journal

Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

The Author

Griffen ThorneHarris Bricken

Griffen Thorne (griffen@harrisbricken.com) is an attorney in the Los Angeles office of Harris Bricken Sliwoski LLP, an international emerging markets law firm. He represents clients in highly regulated emerging industries, such as cannabis, in corporate and commercial transactions.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Unarmed or Unwell:
How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

As Justice Amy Coney Barrett noted while on the Seventh Circuit, “legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.” In the coming years, the government’s ability to write off all medical marijuana users as dangerous is likely to be curtailed, even if the Controlled Substances Act continues to make marijuana use a federal crime.

Abstract: In the wake of the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, federal courts have reached opposite outcomes on whether federal prohibitions on marijuana users’ rights to own or possess firearms are constitutional. As a result, there is a high likelihood of a circuit split that results in the overturning of those federal laws. The author discusses Bruen and several other cases at the intersection of drug laws and gun laws.

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June 14, 2023
Digital Health Care Companies, Beware: Federal Agencies Are Tracking Your Use of Online Tracking Technologies

The Authors

Patricia MarkusNelson Mullins

Patricia A. Markus (trish.markus@nelsonmullins.com) represents health care providers and health technology companies across the country on wide-ranging regulatory compliance, reimbursement, licensure, and operational matters, with a special focus on issues surrounding health information privacy, security, and technology.

Shane DuerNelson Mullins

Shane Duer (shane.duer@nelsonmullins.com) focuses his practice on healthcare regulatory and corporate matters, with an emphasis on data privacy, cyber security, and information management concerns within and beyond the health care industry.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Digital Health Care Companies, Beware

Federal Agencies Are Tracking Your Use of Online Tracking Technologies.

Abstract: Health care industry stakeholders have regularly used online tracking technologies to help improve patient experience. However, growing scrutiny by the Office for Civil Rights, which enforces the Health Insurance Portability and Accountability Act of 1996 (HIPAA), requires covered entities and business associates to proceed cautiously in their use of such technologies. In addition, recent enforcement actions by the Federal Trade Commission make clear that a wide range of digital health companies, whether or not regulated by HIPAA, must tread carefully when collecting and disclosing personal information related to health, especially where consumers’ location data is to be used for a company’s advertising purposes, as they may be held accountable for failing to maintain the privacy and security of individuals’ protected and individually identifiable health information.

The increasing number of lawsuits and news articles regarding use of these technologies demonstrates that third-party technology tracking vendors who receive PHI often are not operating under Business Associate Agreements (BAAs). The vendors in most instances disavow any need to collect PHI and accordingly instruct users to avoid sending PHI or other personally identifiable information. Under HIPAA, covered entities and business associates generally may not disclose PHI to third parties for health care operations purposes, unless such disclosure is to a business associate pursuant to a BAA, or the disclosure is made pursuant to an individual’s HIPAA-compliant authorization.

Not only does sharing PHI through third-party tracking technologies without individuals’ authorizations violate HIPAA, but the FTC has asserted in two recent enforcement actions that the collection and sharing of individuals’ IIHI through these technologies without individuals’ “affirmative express consent” constitutes unfair and deceptive trade practices.

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June 1, 2023
Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease: How Far Is Too Far? by Bryce McColskey and Sandra M. Cianflone

The Authors

Bryce McColskeyHall Booth Smith

Bryce McColskey (bmccolskey@hallboothsmith.com) is an attorney with Hall Booth Smith, P.C., based in Jacksonville, Florida, where he focuses on medical malpractice and professional liability law.

Sandra CianfloneHall Booth Smith

Sandra M. Cianflone (scianflone@hallboothsmith.com) is a partner in the Atlanta office of Hall Booth Smith, where she concentrates on a variety of aspects of healthcare defense and chairs the firm’s Coronavirus Task Force. She is also a member of the Editorial Board of Advisors of the Journal of Emerging Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease:

How Far Is Too Far?

“Breakthroughs in technologies, our knowledge of diseases and mutations, and advances in treatment options have been remarkable and have drastically reduced fatality rates from disease outbreaks. However, regardless of medical achievements, rapid changes in any field open the door to renewed debates over different laws and individual rights.”

Abstract: The coronavirus pandemic is the latest health issue to raise the question of government’s involvement (or interference) with an individual’s control over their own healthcare and medical treatment. In this article, the authors, two health care and professional liability attorneys, discuss the intersection of law and medicine with a review of medical mandates, the impact of advances in science and medicine, and where role of government to protect public health intersects (or collides) with personal healthcare choices. Their focus is on governmental response to the coronavirus pandemic, and not the recent landmark case dealing with choice. But add to the equation the Supreme Court’s ruling on abortion in Dobbs v. Jackson Women’s Health, the “government as healthcare decision maker” is an issue that will be on the front burner for courts, policymakers, healthcare providers, patients, and attorneys for years to come.

How much authority do government agencies or even the judiciary have over the healthcare decisions of individuals? This question has been hotly contested in recent years, specifically with the emergence of COVID-19. Individuals often assume the practice of medicine and the enactment and enforcement of laws are separate and independent enterprises; that they remain fixed in their respective corners.

However, when we dive deeper into this issue and look at history and precedent, it is evident that the rights of individuals versus mandates of government in respect to healthcare has been going on for some time, and will continue for years to come.

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March 23, 2023
How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It

The Authors

Robert D. CheslerAnderson Kill

Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill’s Newark office. Bob represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Bob is also a member of Anderson Kill’s Cyber Insurance Recovery group.

Bob has served as the attorney of record in more than 30 reported insurance decisions, representing clients including General Electric, Ingersoll-Rand, Westinghouse, Schering, Chrysler, and Unilever, as well as many small businesses including gas stations and dry cleaners. He has received numerous professional accolades, including a top-tier ranking for Insurance Litigation: New Jersey in Chambers USA: American’s Leading Lawyers for Business, which dubs him a “dominant force in coverage disputes” and cites a client who calls him “a dean of the insurance Bar; one of the brightest in writing about and analyzing insurance coverage.”

Amy WeissAnderson Kill

Amy Weiss (aweiss@andersonkill.com) is a law clerk pending admission in Anderson Kill’s New York office. She focuses her practice on insurance recovery, exclusively on behalf of policyholders.

While attending the Benjamin N. Cardozo School of Law, Amy worked as a Summer Associate at Anderson Kill and a Judicial Intern for the Honorable Nicholas G. Garaufis at the United States District Court for the Eastern District of New York.

She served as Senior Articles Editor for the Cardozo Arts and Entertainment Law Journal, participated in the Cardozo Visual & Performing Arts Law Field Clinic, was a teaching assistant for the Lawyering & Legal writing course, and was a research assistant for Professor Stewart E. Sterk. Amy received the Dean’s Merit Scholarship and graduated with Honors.

Jade SobhAnderson Kill

Jade W. Sobh (jsobh@andersonkill.com) is an attorney in Anderson Kill’s New York office. Jade focuses his practice on both insurance recovery, exclusively on behalf of policyholders, as well as Government Enforcement, Internal Investigations, and White Collar Defense. Jade’s practice also encompasses regulatory and complex commercial litigation matters.

Prior to joining Anderson Kill, Jade was an associate at a leading New Jersey law firm, where he concentrated his practice in commercial litigation and criminal defense. His work there focused on corporate disputes, complex commercial litigation, real estate litigation, and appellate litigation. In his previous role, Jade also assisted in representing clients facing federal drug possession charges, and healthcare fraud allegations, among other criminal matters.

Previously, Jade was a law clerk to The Honorable Robert C. Wilson in the Superior Court of New Jersey, Civil Division. Jade worked with Judge Wilson on cases in Bergen County’s Complex Business Litigation Program including insurance recovery disputes, construction litigation, corporate ownership issues, breach of contract, arbitration agreements, and franchise agreements.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

How Insurance Companies Defraud Their Policyholders

What Courts and Legislators Should Do About It

“By its very nature, fraud involves concealment and is difficult to detect. The overwhelming majority of victims of fraud do not even know that they have been defrauded when an insurance company denies their claim or cancels their policy, and have no recourse.”

Abstract: Insurance companies have legitimate reasons for denying claims, but sometimes denials or significant delays are the result of unfair practices or even fraud. Such actions may be systemic or undertaken by an individual. What rights do policyholders have? What can they do to combat illegitimate denials? What are the barriers individuals face when they are wrongfully denied coverage? Should there be a private right of action under the Unfair Trade Practices Act? Should policyholders’ attorneys’ fees be covered? What should courts and legislatures do to protect insurance consumers? In this article the authors answer these questions and more.

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Explore More from Anderson Kill!

Journal on Emerging Issues, Editorial Board of Advisors

The Use and Abuse of the Pollution Exclusion. By Dennis Artese, Jamie O’Neil, Robert Chesler

The Environmental, Social, and Governance Police Have Arrived: Is your Insurance Ready. Authors: Dennis Artese, Bob Chesler.

Podcast 1 of 2 series: PFAS Insurance Coverage with Jaana Pietari and Jim Fenstermacher and Litigation with Bob Chesler

Poscast 2 of 2 series: Insurance Coverage for PFAS Claims

How Insurance Companies Defraud Their Policyholders, and What Courts and Legislators Should Do About It. Authors: Robert Chesler, Amy Weiss, and Jade Sobh

Climate Change, ESG, D&O Insurance: Collision or Cooperation? By Robert D. Chesler, Dennis J. Artese and Joseph Villa

Remediating, Insuring, and Litigating PFAS Claims. By Dr. Jaana Pietari, PhD, MBA, PE, Jim Fenstermacher, PE, Dr. Michael Bock, PhD, MS, Robert D. Chesler and Nicholas M. Insua, Sheila Mulrennan, Robin Kelliher, Jason R. Waters

March 14, 2023
Potential Pitfalls with Adult-Use Cannabis: What Both Employers and Employees Should Know

The Authors

Adam R. DolanGfeller Laurie LLP

Adam R. Dolan (adolan@gllawgroup.com) is a partner with Gfeller Laurie LLP, a tested litigator with a multifaceted practice, he has extensive experience handling catastrophic transportation, general liability, and products liability matters. He is a frequent writer and speaker on topics related to the cannabis industry.

Kaylee NavarraGfeller Laurie LLP

Kaylee E. Navarra (knavarra@gllawgroup.com) is an associate with Gfeller Laurie LLP where she works on matters involving commercial disputes, bad faith/
extracontractual liability, and insurance coverage.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Potential Pitfalls with Adult-Use Cannabis:
What Both Employers and Employees Should Know

“Employers may also take action when the employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties and/or the employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.”

Abstract: Recreational cannabis use for adults is legal in 21 states, having made its way eastward from Western jurisdictions that first addressed the issue. But these laws govern personal use during personal time. While they generally prohibit discrimination based on such use, these laws do not greenlight consumption at work or going to work under the influence. But with so many jurisdictions and job types, and variance among state laws, there aren’t simple answers. This is especially true for employers who conduct business nationwide, and because cannabis continues to be a Schedule I substance on the federal Controlled Substances Act. What rights and remedies do companies and workers have to resolve disputes? Are employers permitted to conduct drug tests? What about low-THC products and CBD? In this article the authors will address these and several other important questions.

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March 5, 2023
New Year, New Rules: FTC Proposes Sweeping Ban on Noncompete Agreements

The Author

Andreya DiMarcoHatfield Schwartz Law Group LLC

Andreya DiMarco (adimarco@hatfieldschwartzlaw.com) is counsel with Hatfield Schwartz Law Group LLC where she focuses on employment law and transactional matters.

She has defended clients in state and federal courts and before administrative agencies, including the EEOC and DCR.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

New Year, New Rules:
FTC Proposes Sweeping Ban on Noncompetes

“This is the FTC’s first attempt to ban non-compete agreements and strong opposition to the Proposed Rule as well as challenges regarding the scope of the FTC’s rule-making authority are likely to arise especially given the tremendous impact a retroactive and absolute non-compete ban would have. …. [P]otential litigation over the FTC’s authority to issue and enforce such a rule may cause further delays…. Moreover, the Proposed Rule is full of ambiguity which will likely be challenged.”

Abstract: On January 5, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking that would ban the use of noncompete agreements between employers and workers and would create an affirmative obligation for employers to void existing noncompete agreements. The Proposed Rule would also prohibit contractual clauses in other agreements or employment policies that have a similar effect. The Proposed Rule applies categorically to all workers, including independent contractors, without regard to a worker’s earnings or job function. This article discusses the nuances of the Proposed Rule as well as the legal and practical impact it will have if it is adopted.

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February 24, 2023
Supplier Beware: The DOJ & FTC Investigating Manufacturing & Supply Chains

The Author

Jennifer DriscollRobinson + Cole

Jennifer M. Driscoll (jdriscoll@rc.com) is counsel with Robinson+Cole in New York where she focuses on investigations, litigation, arbitration, mergers, and counseling. She has extensive experience in the medical devices, pharmaceuticals, electronics, and automotive industries.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Supplier Beware:
DOJ & FTC Investigating Manufacturing & Supply Chain Issues

“Although competitors may attend trade association meetings, the company representative in attendance should be well versed on the line between lawful discussions and ruses to disguise unlawful collusion in violation of the Sherman Act.”

Abstract: Challenged by the pandemic, the global supply chain has generated a heightened amount of scrutiny for its impact on the economy, the labor market, the delivery of goods and services, and national security. Attention from the Biden administration portends an era when the federal government will shine a spotlight on the supply chain to root out misconduct. In this article, the author reviews recent supply chain disruptions and reactions from the DOJ and FTC, as well as the government’s efforts to support competition in the labor markets by eliminating noncompete agreements in employment contracts. Finally, she discusses proactive steps companies can take to mitigate the risk that they will find themselves the subject of a government investigation.

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February 24, 2023
Medical Monitoring and PFAS Litigation—A Significant Growing Trend

The Author

John P. GardellaCMBG3 Law

John P. Gardella (jgardella@cmbg3.com) is a shareholder with CMBG3 Law and a recognized thought leader on PFAS issues. In his environmental and toxic torts practice, he represents companies ranging in size from small shops to the Fortune 100. John is also a member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Medical Monitoring and PFAS Litigation—A Significant Growing Trend

“The arguments in favor of medical monitoring as a cause of action in lawsuits stem from the notion that having such programs funded by allegedly tortious companies promotes the public health benefit of early detection, which in turn often results in lower health care costs to plaintiffs and society at large.”

Abstract: Medical monitoring as a tort claim is a hot-button issue in toxic torts, personal injury, and product liability litigation. The ubiquity of PFAS chemical compounds and the real and potential harm to health and the environment they create make examination of the medical monitoring debate specific to this burgeoning litigation worthy of individual attention. This article provides an explanation of PFAS, a brief overview of medical monitoring claims, how PFAS medical monitoring claims have impacted the litigation thus far, and what legal cases are pending that could alter the course of traditional medical monitoring litigation in the future.

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February 24, 2023
The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)

The Author

Edgar C. GentleGentle, Turner, Sexton & Harbison LLC

Edgar C. Gentle III (egentle@gtandslaw.com) is founder and managing partner of Gentle, Turner, Sexton & Harbison LLC in Birmingham, Alabama, where he focuses on complex commercial litigation, mass torts, and class actions. He also serves as a court appointed neutral and settlement administrator.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale, and Practical Application (A Possible Dynamic Tort Remedy for Long-Term Tort Maladies)

“States that allow medical monitoring do so when a group of claimants has been exposed to a known hazardous substance, such as lead, or a dangerous product, such as football helmet concussions, or air decompression in an airplane, through the conduct of the Defendant, with the claimants therefore being at increased risk of contracting disease. Under this tort remedy, claimants are tested periodically, for an agreed or decided period, usually between 10 and 40 years, to see if they contract the disease linked to the toxic substance or dangerous product. Thus, medical monitoring recognizes the long-term harmful nature of toxins and man-made products, thereby matching a remedy with the malady.“

Abstract: The author administers six mass tort settlements with a medical component, including two with medical monitoring. This article reviews the status and history of medical monitoring, known claimant medical monitoring participation rates, the rationale for the remedy, arguments for and against its implementation, and its execution in practice. The author suggests a more holistic medical monitoring remedy, which includes not only testing/or disease but paying claimants for personal injury when they get sicker later, from a capped fund and under an agreed payment matrix, to provide closure to defendants and class members for claims resulting from toxic substances and product defects, which have long-term and often unknown effects on plaintiffs. It is suggested that this remedy is the logical long-term result of the evolution of medical monitoring, and will provide a much needed dynamic remedy for long-term maladies.

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OnDemand CLE Webinar: The Medical Monitoring Tort Remedy with Ed Gentle and Kip Benson

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February 24, 2023
Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves?

The Author

Charlie Kingdollar

Charlie Kingdollar spent his career as emerging issues officer for a major global insurance company, tracking hundreds of future risks like those discussed in this article. Charlie is also a valued member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world.

Will a New Wave of New Environmental/Toxic Tort Litigation and Claims Upend Insurance Industry Environmental Reserves?

“PFAS chemicals are commonly called “forever chemicals,” because once released into the environment they can take hundreds or even thousands of years to break down.”

“Estimates that the ultimate costs of [these and other] environmental claims will land between $45 billion and $55 billion is terribly low. Maybe I’m missing something (always a possibility). If not, the insurance industry is in for a rude awakening.”

Abstract: To remain profitable and viable, the insurance and reinsurance industry must rely on estimated forecasts of potential claims many years out to establish an appropriate level of reserves. They rely on data from rating agencies and, based on these estimates, ratchet their reserves up or down accordingly. In past years, major and once unforeseen developments like massive asbestos and environmental litigation provided urgent reasons to cast an especially critical eye on the adequacy of industry reserves. In this article, the author explains why it is that time again. In light of several potentially calamitous emerging global liabilities he reviews here, particularly if they land with the impact he fears they might, the author believes the insurance industry and its policyholders may be in for a jolt a few short years from now.

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February 24, 2023