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Toxic Train Wreck Sparks Litigation

Legal News: Ohio AG Sues Norfolk Southern Over East Palestine Train Spill.

Photo by Raymond Eichelberger on Unsplash

Legal News

On March 14, 2023, Ohio filed a lawsuit against Norfolk Southern Railway Company, a multi-billion dollar entity, in the U.S. District Court for the Northern District of Ohio. The lawsuit stems from the East Palestine train derailment (the “Derailment”), which took place on February 3, 2023. The lawsuit seeks to “recover response costs, redress damages to natural resources, and receive an order for injunctive relief, civil penalties, and damages.”

The Derailment

The Derailment of train 32N occurred at approximately 9 PM in East Palestine, Ohio—roughly fifty miles northwest of Pittsburgh, Pennsylvania. The accident is believed to have been caused by the overheating and failure of at least one wheel bearing. Twenty of the derailed cars contained hazardous materials, including vinyl chloride, butyl acrylate, ethylhexyl, acrylate, and ethylene glycol monobutyl ether.

Chief among the substance concerns was vinyl chloride, which emits toxic substances when it burns. The Environmental Protection Agency (EPA) states that it was notified of the Derailment about two hours after it occurred, and personnel were on site five hours after the accident. The surrounding downwind area was evacuated. Reports were made of health and safety hazards to people and animals in the affected region. Three days after the crash, emergency responders intitiated a controlled release and burn of the remaining vinyl chloride. All the while, the EPA was overseeing air monitoring, water sampling, and other safety controls.

On February 10, 2023, EPA Region Five sent a notice of potential liability to Norfolk Southern’s Deputy General Counsel, Matt Gernand. The letter conveyed that the company was a potentially responsible party that might be responsible for cleaning up the Derailment site, or reimbursing the EPA for the cleanup costs incurred by the Agency, under Sections 106(a) and 107 the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), colloquially known as the “Superfund Act.”

Ohio’s Lawsuit

About a month and a half after the Derailment, Dave Yost, the Attorney General (AG) of Ohio, filed a 106-paged complaint in federal court against Norfolk Southern. The complaint consists of 58 counts alleging violations of Ohio state laws, the federal CERCLA, and common law. In an announcement released the day of the filing, AG Yost stated, “Ohio shouldn’t have to bear the tremendous financial burden of Norfolk Southern’s glaring negligence.”

Ohio’s lawsuit points out that this Derailment is only the latest in a series of recent Norfolk Southern accidents. In fact, the company’s “accident rate has nearly doubled in the past 10 years, and at least 20 of those derailments since 2015 have involved chemical releases.” Ohio alleges that the entity’s increasingly common incidents are a result of putting its bottom line above health and safety. The instant filing details how this particular disaster was “foreseeable and preventable.” Prior to the Derailment, Norfolk Southern received real-time warnings and reports of malfunctions occurring with the train’s wheel bearings.

Ohio seeks to hold the transporter accountable for its “release of over one million gallons of hazardous materials, hazardous substances, hazardous wastes, and/or other harmful pollutants into Ohio’s air, streams, rivers, soil, and groundwater, killing tens of thousands of fish and other animals, and recklessly endangering the health of Ohioans throughout the region.” Sought-after compensatory and punitive relief for the harm caused by the Derailment includes the cost of emergency response and cleanup efforts, as well as compensation for the physical and economic harm suffered by local residents. The complaint also requests that the court issue a series of injunctions and declarations that would prohibit Norfolk Southern from further violating the law and negligently injuring.

What To Watch For

Ohio’s lawsuit is just one of many that Norfolk Southern is facing in the aftermath of the Derailment. Norfolk Southern has yet to answer the Ohio complaint. However, the company has previously stated that it is committed to safety and has invested in new technologies and training programs to prevent incidents like the East Palestine train derailment from occurring.

The Derailment suits against Norfolk Southern are expected to be closely watched by other transportation companies and industry experts, as they could set a precedent for future cases involving train derailments and hazardous materials. The outcome of this particular lawsuit could have a significant impact on the federal and state safety standards and regulations governing the transportation of hazardous materials by rail in the United States.

Victoria KlineGuest Writer

Victoria is a third-year student at the University of Miami School of Law, Juris Doctorate Candidate 2023, Law Review Staff Editor, and soon-to-be associate at Jones Day.

April 7, 2023
European Court of Human Rights to Hear Case on Climate Change by Victoria Kline

Guest Writer

Victoria Kline

Victoria is a third-year student at the University of Miami School of Law, Juris Doctorate Candidate 2023, Law Review Staff Editor, and soon-to-be associate at Jones Day.

European Court of Human Rights to Hear Case on Climate Change

By Victoria Kline

https://en.wikipedia.org/wiki/User:CherryX

The European Court of Human Rights (ECHR) is hearing a landmark case brought forward by the Senior Women for Climate Protection Switzerland, who are suing the Swiss government (the “State”) for human rights violations related to climate change. Verein KlimaSeniorinnen Schweiz and others v. Switzerland (“KlimaSeniorinnen”) is one of the first climate change matters the court has taken up. On Wednesday, March 29, 2023, the ECHR held a public hearing.

History of the Case

KlimaSeniorinnen began back in 2016, ignited by a group of women called KlimaSeniorinnen Schweiz, the Senior Women for Climate Protection Switzerland. The group filed suit in Swiss court against a variety of Swiss federal government bodies alleging violations of obligations set forth in the Swiss Constitution and the European Convention on Human Rights (the “Convention”).

The heart of the suit is the State’s shortcomings in progress being made towards the adopted Paris Agreement’s goal to keep “the increase in the global average temperature to well below 2°C above pre-industrial levels.” The elderly plaintiffs purport that their demographic is especially vulnerable to the “temperature-related morbidity and mortality” caused by “climate change-induced excessive heat.”

On April 25, 2017, the suit was dismissed by the Federal Department of the Environment Transport, Energy and Communications for lack of standing on the prongs of injury and remedy. Over a year later, the Swiss Federal Administrative Court rejected the plaintiffs’ appeal. Subsequently, on May 20, 2020, the Swiss Supreme Court also rejected the plaintiffs’ filed appeal, holding that plaintiffs should seek their desired government greenhouse gas reduction politically instead of judicially.

After exhausting their judicial remedies at their national level, the instant plaintiffs then applied for their case to be heard by the ECHR on November 26, 2020.

International Appeal

Plaintiff’s application to the ECHR, No. 53600/20, was granted to be heard with priority pursuant to Rule 41 of the Rules of Court. The ECHR, which is based in Strasbourg, France, is a court of last resort for individuals who claim that their rights under the Convention have been violated by a member state. Because Switzerland has ratified the Convention, it will be bound to the holding of the ECHR.

The hearing for the case, which was held on March 29, 2023, was the first climate change matter taken up by the ECHR. Parties argued in front of a 17-member Grand Chamber led by Síofra O’Leary of Ireland. A webcast of the proceeding was published online by the ECHR and can be found here.

The hearing, which lasted less than three hours, opened with arguments from both the State and plaintiffs, before two third parties spoke, and the panel of judges asked questions. Then, both the plaintiffs and the State were given the opportunity to reply before the close of the hearing.

During the hearing, the senior plaintiffs argued that Switzerland’s failure to take adequate measures to reduce greenhouse gas emissions was a violation of their right to life and their right to respect for private and family life, as guaranteed by Articles 2 and 8 of the Convention. Their arguments are backed by scientific research showing the increasingly dire health and safety effects that global warming is having on European senior citizens.

In contrast, the Swiss government argued that it is taking steps to address climate change, such as implementing a carbon tax and increasing the share of renewable energy in the country’s energy mix. However, it can only do so much as one state amongst many that are contributing to the emitted greenhouse gasses that are exacerbating climate change.

What to Watch For

Now that the hearing of the case is complete, the Grand Chamber has begun private deliberations on the matter. It is unknown exactly when the ECHR will issue its ruling.

The ECHR’s decision could provide insight on how to establish standing for particularized injuries suffered as a result of climate change, which by nature affect the world’s population. Further, while the court’s holding will not be legally binding on non-member states, if the ECHR finds in favor of the seniors, it could set a precedent for other climate change lawsuits in Europe and beyond.

Two other climate change cases are also being heard by the Grand Chamber—Carême v. France (no. 7189/21), and Duarte Agostinho and Others v. Portugal and Others (no. 39371/20). The ECHR’s handling of all three cases is expected to be closely watched by policymakers, industry members, and activists alike.

April 7, 2023
AI Image Generators and Copyright: Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability
AI Image Generators and Copyright:

Eligibility in the U.S., UK, EU, and More; Fair Use, Derivative Works, Liability

Photo by Hitesh Choudhary on Unsplash

AI programs are now readily available for all. Stability AI, Lensa, and other AI image creation tools create original works of art, raising the question of IP protection for such art. The United States requires human authorship in order to obtain copyright protection, and so far, the U.S. Copyright Office has declined to grant copyright registrations for AI-created works of art based on a lack of human authorship (one of these decisions is being challenged in Thaler v. Perlmutter (D.D.C. filed June 2, 2022)). While some countries take a similar approach to the US, others treat the issue of copyright eligibility for AI-generated art quite differently and provide at least some protection of computer generated works.

Questions have also been raised as to whether AI-generated images constitute derivative works and whether such images and the AI generation tools used to create them infringe third-party copyrights, or whether the fair use doctrine or other defenses may apply. The first lawsuits involving image generators have now been filed raising copyright claims in addition to other claims.

Listen as our authoritative panel of IP attorneys examines AI image generators and the associated copyright issues. The panel will discuss eligibility in the U.S. and the recent actions by the Copyright Office and contrast this with the approaches used in other countries. The panel will also address the recent cases that have been filed and the potential liability for copyright infringement in the U.S. and other countries.

Speakers

Michael R. Graif
Member
Mintz Levin Cohn Ferris Glovsky and Popeo

Lisa T. Oratz
Senior Counsel
Perkins Coie

Scott J. Sholder
Partner
Cowan DeBaets Abrahams & Sheppard

CLE On-Demand Webinar

This Strafford production has been specially selected for HB audiences.

Topics
- What hurdles confront counsel when demonstrating authorship of AI-generated works?
- How does copyright apply to AI-generated works? How does it differ across jurisdictions?
- What steps can counsel take to increase the likelihood of success when seeking copyright protection for AI-generated works?
Outline
1. AI-generated works of art and copyrightability
  1. Eligibility in the U.S.
  2. Eligibility in other countries
2. AI image generators and copyright infringement
  1. Derivative works
  2. Fair use and other defenses
  3. Liability in other jurisdictions
  4. Best practices
April 6, 2023
Greenhouse Gases Cited in Suit to Invalidate Drilling Leases
Environmentalists Argue Federal Government Failed to Analyze Social Costs of Fossil Fuel Emissions from Drilling Leases

Photo by Marcin Jozwiak on Unsplash

“Federal public lands used for fossil fuel extraction contribute 24% of the United States’ Greenhouse Emissions,” according to 10 environmental groups in their ongoing lawsuit against the U.S. Department of the Interior, Secretary of the Interior Debra Haaland, the Bureau of Land Management (BoLM), and BoLM Director Tracy Stone-Manning (Dakota Resource or Council, et al, v. U.S. Department of the Interior, et al., D. D.C., No. 1:22-cv-1853 ).

Their lawsuit seeks to invalidate 173 oil and gas leases approved in June 2022 across eight states: Colorado, Montana, Nevada, New Mexico, North Dakota, Oklahoma, and Utah, and Wyoming.

Plaintiffs include: Dakota Resource Center, Center for Biological Diversity, Citizens for a Healthy Community, Living Rivers & Colorado Riverkeeper, Montana Environmental Information Center, Rio Grande Waterkeeper, Sierra Club, Waterkeeper Alliance, Western Waterheads Project, and WildEarth Guardians.

The environmental groups argue the BoLM is in violation of the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321, for failing to make efforts to prevent or eliminate damage to the environment and biosphere. The groups also argue that Secretary Haaland failed to follow the instructions of the Federal Land Policy and Management Act (FLPMA) 43 U.S.C. § 1701, which requires her office to “take any action necessary to prevent unnecessary or undue degradations of the land.”

Five states have intervened for the defendants: Montana, North Dakota, Oklahoma, Utah, and Wyoming. Defendants, through Montana Attorney General Austin Knudsen, argued in their answer filed Oct. 21, 2022, the complaint failed to state a claim upon which relief could be granted, the plaintiffs lacked standing, that plaintiffs failed to exhaust their administrative remedies, and that the intervening states reserve the right to further amend pleadings throughout the course of litigation.

In January 2021 the newly-transitioned Biden Administration issued Executive Order 14008 requiring the Interior Department to place a “pause” on all new oil and gas leases and required the BoLM produce a report containing a review and reconsiderations of Interior’s leasing program. Louisiana challenged the order’s “pause” in Louisiana v. Biden, 543 F. Suppl. 3d 388, 410 (W.D. La. 2021) and won, reversing the order’s policy on oil and gas leases but kept the order’s requirement for the Interior Department to produce its report on leasing practices.

Interior published a 14-page report on Nov. 27, 2021, that highlighted recommendations for fiscal reforms but contained no analysis of the leasing program’s climate impacts. This report failed to acknowledge the BoLM’s recent acknowledgments of collaborative scientific research conducted by the federal multiagency Council of Environmental Quality in 2012, 2015, and in 2020, that revealed significant social costs incurred by greenhouse gas emissions. The BoLM acknowledged that lands under their management contained 96,100 actively producing oil or gas wells. This makes the BoLM responsible for managing lands producing as much as 7% of the country’s oil needs and 8% of its gas needs.

The coalition filed a motion for summary judgment on March 9, 2023, asking the judge to conclude the matter before greenhouse gas emissions from these lease sites curtail efforts by the United States to reduce greenhouse gas emissions by 2030. The coalition also addressed the defendants’ affirmative defense that plaintiffs lacked standing to allege injury for damage to aesthetic and recreational values of the land. The groups argued that “actual environmental harm from complained-of activity need not be shown,” citing Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-81 (2000).

The environmental groups argued that the BoLM failed to follow NEPA by filing six separate Environmental Assessments that did not take into account the project’s at-large social costs. The BoLM failed to produce an impact report to the public about estimated greenhouse gas emissions generated throughout various stages of managing land containing active gas and oil production. Under Conner v. Burford, 848 F.2d 1441, 1451 (9th Cir. 1998), the groups argue the BoLM failed to comply with NEPA by streamlining the sale process and not properly conducting an environmental impact study for the 162 lease sites as an entire project rather than on a state-by-state basis. Under Conner, “[a] sale of an oil and gas lease represents an irreversible and irretrievable commitment of resources.” The environmental groups also point blame at Secretary Haaland for failing to follow instructions provided by the FLPMA regarding the management of federal lands.

FLPMA instructs the Secretary of the Interior to consider multiple federal land management principles, including: the combination of balanced and diverse resources; needs of future generations for renewable and nonrenewable resources, recreation, range, timber, minerals, watershed, wildlife and fish; and the mutual, scientific, and historical value of the lands. The environmentalists insinuate that Haaland should have directed Interior to invalidate the lease sales and ordered the BoLM to restart the oil and gas lease assessment process in order to be NEPA compliant. The defendants’ answer to this motion is expected in the coming days.

Hunter SchmitzGuest Writer

Hunter Schmitz is a freelance legal writer and paralegal with Focus on Property Law and Civil Litigation.
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April 2, 2023
Conservationists Try Again to Block Drilling in Alaska’s Western Arctic

Willow II:
Conservation Groups Sue Again to Stop Oil Project in Alaska’s Western Arctic

Photo by Yuval Zukerman on Unsplash

Several conservation groups filed a lawsuit in the U.S. District Court for the District of Alaska against the federal government in another effort to halt the Willow Master Development Plan (Willow Oil Project), a proposed oil and gas development in Alaska’s Western Arctic. Spearheading the development is ConocoPhillips Alaska Incorporated. The project was approved for a second time by the Biden Administration only a day before the filing of the plaintiffs’ complaint.

The Willow Oil Project

The Willow Oil Project is a multi-billion dollar project that would involve the construction of drilling pads, pipelines, and other infrastructure in the National Petroleum Reserve-Alaska (Reserve). The project involves drilling up to 250 wells for the purpose of generating 586 million barrels of oil within its 30-year lifespan. As a direct result of the activity, roughly 258 million metric tons of greenhouse gas emissions would be released into the atmosphere. The project has been controversial due to concerns over its potential impacts on the environment and wildlife in the area.

Willow II Case History

ConocoPhillips first proposed the Willow Oil Project to the Bureau of Land Management (BoLM) in May of 2018. After determining that the project was a major federally-involved action that would significantly affect the quality of the human environment, the BoLM knew it had to prepare an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).

After studying the Willow Oil Project and comparing it to three action-alternatives and one no-action alternative, as well as seeking public comment, the BLM published a final EIS for the Willow Oil Project on Aug. 14, 2020. The BLM’s approval was immediately contested in the Alaskan District Court by conservation and Alaska-native groups.

About a year later, on August 18, 2021, the plaintiffs were successful in obtaining a court order vacating the first project approval due to NEPA and Endangered Species Act (ESA) violations. Regarding the NEPA, the BLM “fail[ed] to adequately disclose and analyze the project’s downstream greenhouse gas emissions and by restricting the project alternatives it considered based on the mistaken view that ConocoPhillips had a right to extract all of the oil and gas on its leases.” And, the U.S. Fish and Wildlife Service (FWS) “violated the ESA by relying on unspecified Marine Mammal Protection Act . . . mitigation measures to support the no jeopardy and adverse modification determinations in its biological opinion for the polar bear, and by issuing an arbitrary and capricious incidental take statement for the bear.” The court then remanded to the BoLM for actions not inconsistent with its ruling.

On remand, the BoLM prepared a draft Supplemental EIS (SEIS) in July of 2022. The draft SEIS contained the same three alternative actions and one non-action alternative from the initial EIS, plus a new action alternative. After receiving public comment, including from the instant plaintiffs, the BoLM published its final SEIS for the Willow Oil Project on Feb. 3, 2023. Subsequently, the BoLM published a record of decision approving the Willow Project on March 13, 2023.

Plaintiffs’ Complaint

On March 14, 2023, Earthjustice, a non-profit environmental law organization, filed a complaint on behalf of several plaintiffs. Included in the group of plaintiffs are the Natural Resources Defense Council, Center for Biological Diversity, Defenders of Wildlife, Friends of the Earth, and Greenpeace, Inc.

In their complaint, the plaintiffs allege that the BoLM failed to adequately assess the Willow Oil Project’s impacts on the region’s wildlife and its contributions to climate change before issuing its ROD, allowing the project to move forward, thus violating the NEPA, ESA, and Administrative Procedure Act (APA). The complaint consists of five claims for relief.

Count I: NEPA

In the first count, plaintiffs assert that the BoLM’s final SEIS violated the NEPA by failing to consider any project-alternative “that would meaningfully reduce the climate impacts of the Willow Project by reducing total downstream greenhouse gas emissions, or any alternative that would prohibit infrastructure in the Teshekpuk Lake Special Area and the Colville River Special Area.” Plaintiffs take issue with the fact that although BLM considered action alternatives as required by NEPA, all of the alternatives were based on BoLM fully developing the entirety of its oil and gas leases. Plaintiffs disagree with the BLM’s assertion that this was proper and necessary to avoid “strand[ing] an economically viable quantity of recoverable oil.”

Count II: NEPA

Plaintiffs’ second count alleges that the BLM committed another violation of NEPA by failing to take a “hard look” at the reasonably foreseeable risk of oil spills and potential discoveries of oil production prospects resulting from the project. Thus, the agency fell short of its NEPA duties to disclose and analyze the indirect and cumulative impacts of the Willow Oil Project.

Count III: Reserves Act (APA)

The third count in the plaintiffs’ complaint alleges that the BoLM violated the APA’s arbitrary and capricious decision-making standard by failing to act in accordance with the Reserves Act. The Reserves Act requires that the Secretary of the Department of the Interior “protect[] the ‘environmental, fish and wildlife, and historical or scenic values’ within the Reserve.” Plaintiffs believe that the BoLM’s evaluation of only “full lease development” project alternatives contradicts its protection duties under the Reserves Act “to condition, restrict, or prohibit activity as it determines necessary to protect surface resources.”

Count IV: ESA – Unlawful NMFS Letter of Concurrence

Plaintiffs’ fourth claim is that the BoLM biological assessment to the National Marine Fisheries Service (NMFS) and the NMFS Willow Letter of Concurrence failed to analyze the possible taking of ringed and bearded seals, along with other listed species. Plaintiffs fear that the taking of these ESA-listed seals would occur as a result of the project’s greenhouse gas emissions affecting their critical habitats. The complaint is silent on the nexus between the emissions and the habitat effects. Still, it asserts that the NMFS conclusions failed to properly engage in ESA Section 7 formal consultation to determine the project’s effects on the listed seals and prepare the necessary incidental take statements. Thus, the letter’s analysis of the affected threatened species and their critical habitats was arbitrary and capricious.

Count V: ESA – Unlawful FWS Biological Opinion

The fifth and final claim in the complaint argues that the FWS’s biological opinion was arbitrary and capricious due to its failure to properly consider in view of the best available science the threats to polar bears brought on by climate change exacerbated by the Willow Oil Project’s greenhouse gas emissions. Polar bears, like the seals above, are a listed species under the ESA. Plaintiffs allege that the potential greenhouse gas emissions would increase sea ice melting, which will decrease the availability of ice seal prey in the polar bear’s critical hunting habitat. The agency did not prepare the necessary incidental take statement for polar bears either.

Requested Remedy

To remedy the violations asserted, plaintiffs request that the court vacate the BoLM’s project approval and supporting documents on the ground that the approval decision was arbitrary and capricious. Plaintiffs also seek a reward of costs and attorneys fees related to the action.

Defendants have not yet responded to the federal complaint, filed March 14, 2023.

Victoria KlineGuest Writer

Victoria is a third-year student at the University of Miami School of Law, Juris Doctorate Candidate 2023, Law Review Staff Editor, and soon-to-be associate at Jones Day.

April 1, 2023
Government Involvement in Medical Decisions During Outbreaks with Bryce McColskey and Sandra Cianflone

Government Involvement in Medical Decisions During Outbreaks

It’s apparently (and hopefully) on its last legs. The Covid-19 pandemic was the most recent health issue to raise questions around government’s involvement (or interference) in an individual’s control over their own medical treatment.

In their article – Government Involvement in Medical Care Decisions During Outbreaks of Disease: How Far is Too Far? – our guests wrote about the intersection of law and medicine. They reviewed medical mandates, implications brought about by the impact of advances in science and medicine, and where role of government to protect public health intersects (or collides) with personal healthcare choices. They focused is on governmental responses to the pandemic, that is, what the government can mandate in the spirit of public health, and not on the separate issue of abortion, which is a “choice” subject for another day.

How much authority do government agencies or even the courts have over a person’s healthcare decisions? People 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, they wrote, after a deeper dive into history and precedent, it’s evident that the tension between individual rights and health-related mandates has existed for some time.

Listen to my interview with the authors, Bryce McCloskey and Sandra M. Cianflone with Hall Booth Smith, P.C. Bryce is based in Jacksonville, Fla., where he focuses on medical malpractice and professional liability law. Sandie is a partner in the firm’s Atlanta office where she concentrates on a variety of aspects of healthcare defense She chairs the firm’s Coronavirus Task Force and is a member of the firm’s National Trial Counsel team. She is also a valued member of the Editorial Board of Advisors of the Journal on Emerging Issues in Litigation.

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This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

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Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn

Bryce McColskeyHall Booth Smith P.C.

Bryce McColskey focuses his practice on medical malpractice, professional liability, and general liability matters.

Prior to joining Hall Booth Smith, Bryce was an Associate with another firm in Jacksonville where he focused his practice on workers’ compensation defense. Earlier in his career, he worked as a summer clerk for the University of North Florida’s Office of General Counsel and a local firm in Jacksonville.

Bryce earned a Juris Doctorate from the University of Florida Levin College of Law where he was a member of the University of Florida Association of Law and Business and the Chester Bedell Inn of Court. Bryce earned his Bachelor of Science degree in Business Administration from the University of North Florida.

Sandra CianfloneHall Booth Smith P.C.

Sandra Cianflone is a Partner in the Atlanta office of Hall Booth Smith. Her practice primarily focuses on medical malpractice on defending hospitals, healthcare institutions, physicians, nurses and institutional employees in medical malpractice actions from inception through trial. She is part of Hall Booth Smith’s National Trial Counsel team and has litigated cases across the country.

Sandra also provides national risk management and crisis management services across the healthcare industry. These services have guided clients through tumultuous regulatory and statutory schemes by providing efficient approaches which assist with public/community relations, litigation preparation, defense alternatives, and effective case management. Ms. Cianflone is also the Chair of our Coronavirus Taskforce.

Sandra received her Juris Doctorate from Pace University School of Law and her undergraduate degree from Fairleigh Dickinson University.

March 28, 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.

Download the article now!

March 23, 2023
The Cannabis Employment Law Patchwork with Keya Denner
The Cannabis Employment Law Patchwork with Keya Denner

Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states.

In the employment context, both recreational and medicinal uses raise questions about protections for employees who use the drug legally.
- Which states are enacting those protections?
- What do multi-state employers need to do?
- What about drug testing? As a requirement to get a job and as a requirement to keep your job?
- What about this: who is going to say whether a worker is impaired? Will there really be hall monitors trained in spotting your high?
For answers to these questions and more, listen to my interview with Keya Denner, a partner at Constangy, Brooks, Smith & Prophete LLP. Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. Few attorneys nationwide match Keya’s expertise in the area of legal cannabis and its impact on the workplace. He has counseled Fortune 500 companies in the retail, hospitality, and global logistics spaces to create compliant policies and better understand the ever-changing legal landscape brought about by the legalization of cannabis across the United States. Most recently, Keya was named co-chair along with this colleague Ashley Orler of the firm’s new practice group focused on cannabis and employee substance abuse law. Keya received his J.D., cum laude, from Seton Hall University School of Law, J.D., cum laude, and his B.A., also cum laude, from Boston University.

This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com.

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Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
Home Page
LinkedIn

Keya DennerConstangy, Brooks, Smith & Prophete, LLP

Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. He has handled every type of labor and employment matter for his clients, ranging from discrimination, disability, non-compete and trade secret protections, to wage and hour class actions. Keya also has extensive experience counseling employers on matters relating to the Family and Medical Leave Act and the Americans with Disabilities Act.

Most recently, Keya was named co-chair along with this colleague Ashley Orler of the firm’s new practice group focused on cannabis and employee substance abuse law. Keya received his J.D., cum laude, from Seton Hall University School of Law, J.D., cum laude, and his B.A., also cum laude, from Boston University.
March 22, 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.

Download the article now!

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.

Download the article now!

March 5, 2023