Insights

Across the country, the integration of artificial intelligence (AI) into everyday life—both in our private lives and across corporate sectors—has accelerated rapidly. In response, state legislatures have introduced a growing body of bills aimed at regulating the multifaceted applications of AI. These legislative efforts cover a variety of key areas such as healthcare, employment, criminal and civil law, housing, and the overall protection of consumers. The bills which were introduced during the beginning of the legislative session reflect a nationwide recognition of AI’s broad societal impact. Healthcare Connecticut has addressed AI use in healthcare with HB05590, where the proposed bill...

The Hon. Sabrina Krauss of the Supreme Court, New York County issued a decision and order from the bench after oral arguments that the Firm’s client, a non-party and former representative of the estate of a clergy member who was accused of sexual misconduct occurring decades earlier, should not be substituted in place of a deceased, octogenarian clergy member and plead into the matter. The Plaintiff’s allegations related to claims of sexual misconduct in the early 1970’s in New York City and under provision of New York’s look-back window statutes, such civil lawsuits are permitted to proceed decades after the...

A federal judge in the Southern District of New York has granted summary judgment in a Jones Act case involving multiple etiologies of Plaintiff’s injuries in favor of an oil shipping defendant.  This ruling stands to have far-reaching impact in lung cancer cases when there are other viable causes of the plaintiff’s cancer. Factual Background The case, Scott K. Keller v. ExxonMobil Oil Corporation, involved a non-smoking Plaintiff who alleged he developed lung cancer due to exposure to toxic substances during his service as a cadet in the U.S. Merchant Marine Academy and as a merchant mariner on private commercial...

By Dino Haloulos (As published in Law360 on January 31, 2025)   The 1970s red M&Ms controversy, although centered on Red No. 2, foreshadowed the eventual decline of its relative, Red No. 3. For decades, this synthetic dye, known chemically as erythrosine, lent its bright cherry hue to countless products from strawberry Pop-Tarts, maraschino cherries and candy canes to Lucky Charms marshmallows. Beyond food, Red No. 3 was used in medications, pet foods and cosmetics — until the U.S. Food and Drug Administration banned its use in cosmetics in 1990 after studies linked it to thyroid cancer in male lab...

Mandated by the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), the U.S. Food and Drug Administration (FDA) announced a proposed rule—yet to be finalized—to establish standardized testing methodologies to detect the presence of asbestos fibers within talc used in cosmetic products. The FDA determined that the current non-regulatory methods for testing cosmetic talc for the presence of asbestos were inadequate because they lacked unambiguous, standardized guidelines for analytical laboratories to consistently adhere to without modification. Even utilizing the most sensitive methodologies, laboratories testing the same products have reached differing conclusions about the presence of asbestos. Due to the lack...

With lawsuits concerning Ozempic and similar weight-loss drugs potentially becoming the next major mass tort in the U.S., companies should consider key defense strategies ranging from alternate dispute resolution to enhanced drug safety.   By C. Dino Haloulos and Jarif Khan, as published in Law360, July 26, 2024   What can manufacturers of glucagon-like peptide 1 receptor (GLP-1) weight-loss drugs learn from our unique mass tort litigation history and how they can successfully defend themselves in future litigation? Our analysis indicates there is a significant likelihood that GLP-1 may become the next major mass tort in the U.S. This prediction...

The Minnesota legislature recently wrapped up its latest session with a bevy of revised laws (and some new ones too) impacting employers. This article examines some of the biggest changes that employers should know about. Amendments to Earned Sick and Safe Time Law (“ESST”) ESST is paid leave that an employee may use when they or a family member are sick, need to see a doctor or medical professional, need help due to domestic abuse, or various other related reasons. Employers must provide employees with a minimum of one hour of ESST for every thirty hours worked. As I wrote...

The Florida Supreme Court has upended a longstanding common law understanding of spousal recovery in wrongful death cases. In a recent decision, the Florida Supreme Court held that a spouse who married a decedent after the onset of the injury that caused decedent’s death is in fact a “surviving spouse” under Florida’s Wrongful Death Act. The common law “marriage before injury” rule no longer bars recovery by a surviving spouse who married the decedent after the date of injury under the wrongful death statute. The Florida Supreme Court recognized that the Florida Wrongful Death Act does not define the term...

Marathon Strategies published a study regarding the rise in the number of “nuclear verdicts”—those with verdicts surpassing $10 million in damages—in the United States in 2023 and termed a new phrase– “thermonuclear verdicts.” The number of cases with nuclear verdicts has increased in 2023 by 27% from 2022, a 15-year high. The median nuclear verdict in 2023 rose to $44 million from a low of $21 million in 2020. These verdicts covered 47 unique industries, encompassing 89 lawsuits. These 89 cases are the most in any year since the Great Recession. Twenty-seven of these lawsuits went “thermonuclear”–verdicts over $100 million,...

In November 2021, pursuant to the Biden Administration’s “U.S. Methane Emissions Reduction Plan” and under the terms of the Inflation Reduction Act, the Environmental Protection Agency (“EPA”) published a proposed rule intended to mitigate climate-destabilizing pollution and protect human health by reducing greenhouse gases, including methane, and volatile organic compound (“VOC”) emissions from the oil and natural gas industry. Methane, a climate “super pollutant,” is many times more potent than carbon dioxide and is responsible for approximately one third of the warming from greenhouse gases occurring today. Purpose and Intent of the Final Rule The Final Rule, 89 Fed. Reg....

The New Jersey Supreme Court (4-3 split decision) held on March 25, 2024, that while a retailer may violate the Consumer Fraud Act, if there is no ascertainable loss, there are no real consequences (except potentially being court ordered to cease such practices). In Robey v. SPARC Grp. LLC, (2024 N.J. LEXIS 255) the use of a fictitious former price in violation of N.J.A.C. 13:45A-9.6 (deemed to be a violation of the Consumer Fraud Act), was not sufficient, in and of itself, to establish a compensable loss for plaintiffs. The main issue before the Court was whether or not plaintiffs...

On April 12, 2024, the U.S. Supreme Court issued a unanimous decision in the Bissonnette v. Lepage Bakeries Park St., LLC case, finding that plaintiffs may qualify for an exemption from the Federal Arbitration Act (FAA) to allow their wage-and-hour suit to proceed federal court. Facts and Procedural History The defendant, Flowers Foods, Inc., is the “second-largest producer and marketer of packaged bakery foods” in the United States, including products such as Wonder Bread. The plaintiffs were franchisees/distributors who purchase baked goods from defendant, and market, sell, and deliver the products to retailers in particular geographic territories. The plaintiffs signed...

UPDATE (5/7/24): The final rule has been published in the Federal Register and is effective as of September 4, 2024. You may have seen the headlines announcing that the Federal Trade Commission (FTC) is banning noncompete clauses, but what actually happened, and what does it mean for your business? On Tuesday, April 23, 2024, the FTC voted to issue the Noncompete Clause Rule (the “final rule” or the “rule”), which will ban most noncompete clauses nationwide. The final rule is set to become effective 120 days after it is published in the Federal Register, giving you time to evaluate whether...

The New York State Bar Association Task Force on Artificial Intelligence recently issued a report to the NYSBA House of Delegates regarding artificial intelligence. The report provides recommendations and guidelines regarding the legal, social, and ethical implications of artificial intelligence and generative AI on the legal profession (“AI”). The report is a thorough read regarding the history and evolution of AI. From the advent of the term “artificial intelligence” in 1956; the first “AI Winter” in the 1970s, which ultimately lasted until the mid-1990s; to AI Judges and Robo Courts. Next, there is a focus on the benefits of AI...

In a recent legal decision, the Fifth Circuit Court of Appeals addressed the application of Section 5 of the Toxic Substances Control Act (TSCA) to Inhance Technologies’ long-standing fluorination process, a process deployed for over four decades. The court ruled that Section 5 does not extend to Inhance Technology, LLC’s (Inhance) process, despite its recent finding of inadvertently generating per- and polyfluoroalkyl substances (PFAS). Immediate Impact The decision clarifies that the EPA cannot place restrictions on the Inhance’s PFAS-creating fluorination process under Section 5 of the TSCA. As such, this case essentially refines and limits the scope of the term...

New regulations from the Environmental Protection Agency and the White House will not be watering down toxic tort litigation any time soon. On April 10, 2024, the Biden-Harris administration issued a national first —a federal standard that seeks to regulate per-and polyfluoroalkyl substances (PFAS), also known as “forever chemicals”, in drinking water supplies across the United States. These new regulations arise as part of the EPA’s “PFAS Strategic Roadmap,” that was adopted in October of 2021. This new standard will require all public water systems to complete initial monitoring for PFAS and provide a public report within three years, and...

On March 11, 2024, the U.S. Department of Labor’s much anticipated rule under the Fair Labor Standards Act regarding the classification of workers as either employees or independent contractors officially came into effect. However, there are several pending lawsuits in different states seeking to prohibit the implementation of the new DOL rule. Nonetheless, companies should stay informed on the new rule and reassess their worker classification policies. What Is Different About This Rule? Prior to 2021, the DOL utilized a “totality-of-the-circumstances" test, consisting of six factors, which was focused on the “economic realities” of the worker’s situation to determine employee...

A recent update to the federal rules governing the use of expert testimony/evidence in federal court will widely impact how scientific and medical evidence is presented to juries in federal matters, including talcum powder litigation. With the change to Rule 702 of the Federal Rules of Evidence (“FRE 702”), defendants in talc matters have been granted the opportunity to challenge whether plaintiffs’ experts can meet the high bar set forth in the amended rule. In Johnson and Johnson Talcum Powder Litigation, U.S. District Court Judge Michael A. Shipp in Trenton, New Jersey, held that Johnson & Johnson (“J&J”) could contest...

Introduction Asbestos litigation has become a cornerstone of the American legal landscape, spanning over four decades, and involving more than a million individual personal injury claims across state and federal courts. In 2012, a commentary titled "The Philadelphia Story: Asbestos Litigation, Bankruptcy Trusts, and Changes in Exposure Allegations from 1991-2010” addressed the disparity between named defendants and exposure allegations by examining lawsuits filed between 2006 and 2010 in the Philadelphia Court of Common Pleas, after several principal asbestos defendants filed for bankruptcy. This new study provides updates to its prior analysis by examining claims filed in Philadelphia between 2017 and 2021....

By now, employers should be familiar with and implementing (if applicable) Minnesota’s Earned Safe and Sick Time law (“ESST”) that took effect on January 1, 2024. ESST is paid leave that an employee may use when they or a family member are sick, need to see a doctor or medical professional, need help due to domestic abuse, or various other related reasons. Requiring employers to provide their employees a minimum of one hour of ESST/paid leave for every thirty hours worked, this is the state’s first law requiring employers to provide employees with paid leave. Employers that already provide paid...

Effective immediately, “Limited Appearance Attorneys,” an amended rule of civil procedure, Rule 1.041 titled, takes effect. The rule provides clients with flexibility to pick and choose whether, when, and to what extent to involve appellate counsel as trial support for their chosen trial attorney. The rule will make it simpler for clients to choose trial counsel at one firm, and appellate/trial support counsel at another. The Limited Appearance Attorneys rule allows attorneys to file appearances limited to particular hearings or proceedings, or in any limited capacity, i.e., as trial support generally or trial support for a particular motion or issue. For example,...

Finally, changes have come to Florida with regard to Tort Reform.  On March 24, 2023, Governor Ron DeSantis signed HB 837 into law. The bill took effect immediately and applies to causes of action filed thereafter. Statute of Limitations With limited exceptions, Florida Statute § 95.11 (“Limitations of Actions”) provided a four year statute of limitations for actions founded on negligence.  This section has been amended to reduce the statute of limitations for negligence actions to two years. Negligence Standard: From Pure to Modified Florida previously applied a “pure comparative” fault standard.  Now, any party to a negligence action that...

On June 15, 2020,  the U.S. Supreme Court issued its Opinion on Bostock v Georgia, Zarda v Altitude, and Stephens v R.G. & G. R. Harris Funeral Home.  The Court, in a 6 to 3 opinion, found that an employer who fires an individual merely for be­ing gay or transgender violates the protections offered under Title VII of the Civil Rights Act of 1964 . All three cases ruled upon in this landmark decision involved the termination of an employee based on that employee’s LGBTQ distinctions.  Specifically, Clayton County, Georgia terminated the employment of Gerald Bostock for conduct “unbecoming” a...

To Our Valued Clients, Foley & Mansfield is dedicated to protecting the health and well-being of our employees, clients, and business partners. To that end, we have converted our 16 offices to remote status. We have initiated our Business Continuance Plan which will allow us to continue to deliver legal services to our clients without interruption, while ensuring security of all client and confidential information. In addition to operating remotely, Foley & Mansfield is taking the following measures: We have formed a COVID-19 Response Team consisting of the five members of the Firm’s Executive Committee, the CEO, and the Human Resources...

On September 16, 2019, the Minnesota Court of Appeals upheld summary judgment granted in favor of asbestos defendants based on Minnesota’s statute of limitations and corporate dissolution statutes. Palmer v. Walker Jamar Co. & Honeywell Int’l, Inc., Nos. A18-2114, A19-0155 (Minn. App. Sept. 16, 2019). Appellant Deborah Palmer challenged the summary judgment dismissal of her claims against respondent Honeywell International, Inc. (Honeywell), arguing that the district court erred in determining that appellant’s claims were barred by the six-year period of limitations set forth in Minn. Stat. § 541.05, subd. 1(5) (2018). Appellant also challenged the dismissal of her claims against...

On May 23, 2019, “[t]he Court, according to its exclusive rulemaking authority pursuant to article V, section 2(a), of the Florida Constitution, adopts chapter 2013-107, sections 1 and 2, Law of Florida (Daubert amendments), which amended sections 90.702 (Testimony by experts) and 90.704 (Basis of opinion testimony by experts), Florida Statutes, of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard, the standard for expert testimony found in Federal Rule of Evidence 702.” “Effective immediately, upon release of this opinion we adopt the amendments to section 90.702 as procedural rules of...

Employers who find themselves sued in Illinois are probably familiar with reports of recent legislative activity dedicated to changing Illinois’ Workers’ Compensation and Illinois’ Occupational Diseases laws. More important than knowing changes are coming, though, is the need for employers to be aware of how these expected changes will impact businesses with Illinois employees, and methods employers can use to minimize negative impacts. This is not the first time that the Illinois legislature has attempted to amend, or entirely delete, a statute of limitations or a statute of repose for a cause of action. Employers need not wait to plot...

In August 2011, asbestos counsel on both sides of the bar and then Presiding Judge Sharon Armstrong met in court to discuss revisions to the  Consolidated Pre-trial Order Re Asbestos Cases. Issues regarding latency of disease and access to pathology as evidence of exposure were a part of that in-court discussion. After a lengthy discussion, the parties reached the  following agreement regarding preservation of pathology and the right to autopsy:    6.3       Autopsy and Pathology Reports. (a)        Plaintiffs’ counsel shall attempt to obtain authorizations for autopsies from each plaintiff, and autopsies should be conducted for each plaintiff who expires for...

SUMMARY On remand by the Washington Supreme Court, trial court denied plaintiff’s motion to establish personal jurisdiction over out-of-state supplier of asbestos used as component of asbestos-cement pipe. FACTS Plaintiff developed mesothelioma after exposure to a variety of asbestos-containing products throughout a lifetime of work, including a cement pipe manufactured by a California company named Certain-Teed, using asbestos supplied by a Wisconsin company named Special Electric. During the key period, Certain-Teed sold and shipped a substantial amount of its pipe into Washington. Plaintiff alleged that Washington courts could exercise specific personal jurisdiction over Special Electric purely because it had sent...

Deggs v. Asbestos Corp., Ltd., 186 Wn.2d 716, 381 P.3d 32 In Deggs, our Supreme Court was asked to revisit, and reconsider, a case-law gloss on Washington’s wrongful death statute, which had emerged out of a series of decisions starting when Woodrow Wilson was in the White House and ending with a classic judicial “summing up” handed down soon after America had decided we liked Ike so much we should make him president. The facts of Deggs were straightforward. After Gordon Sundberg was diagnosed with a battery of asbestos-related afflictions, he sued several defendants, ultimately settling with all but one...

by Margaret Johnson On June 19, 2017, the United States Supreme Court issued the third, and most important, of its corporate jurisdiction cases this term -- Bristol-Myers Squibb v. Superior Court of California, 2017 WL 2621322.  In Bristol-Myers, several hundred plaintiffs (including 86 California residents) from 33 states filed suit against Bristol-Myers for injuries related to its drug, Plavix.  A few years ago in Daimler AG v. Bauman, 571 U.S. ___, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) the Supreme Court limited general jurisdiction, for the most part, to a corporation’s state of incorporation or principal place of business.  Neither...

Florida enacted a medical criteria law in 2005, which limited the kinds of cases which could be filed. Essentially, only meso, other cancers, non-smoking lung cancers, and asbestosis with an ILO of 2/2 or higher could be filed.  This clearly had an huge impact on the filings in Florida. Recently, in a case not involving our firm, defendants filed a Motion to Dismiss based on the Act, and the Ferraro firm has filed a Motion to Declare the Act unconstitutional.  The Supreme Court of Florida has previously ruled on the constitutionality of the Act and found only that it could...

Significance The Washington State Court of Appeals narrowed the holding of Simonetta/Braaten stating that a manufacturer has a duty to warn of the hazards of asbestos-containing products that it did not produce or supply where the manufacturer knew that the asbestos-containing products were necessary to the function of its own product. Facts Woo worked as an engineer for the Navy maintaining propulsion steam equipment in the 1940s and 1950s.  The equipment required the use of asbestos-containing thermal heat insulation, gaskets, and packing to properly function.  Defendant supplied the original gaskets installed in the turbines; but, the insulation, packing, and replacement...

Gerri Coogan (PR for Estate of Jerry Coogan) v. Genuine Parts Company Pierce County, Washington (Judge Rumbaugh) April 18, 2017   After 49 trial days, Jessica Dean of Omar Dean (Houston, Texas) obtained an $81.5M verdict for her client Gerri Coogan, PR and wife of Jerry Coogan. Mr. Coogan was diagnosed with peritoneal mesothelioma in April 2015 and passed away in July 2015. He claimed exposure to asbestos while working throughout the late 1970s and 1980s at the Boise Cascade lumber mill in Kettle Falls, WA; joint compound, and friction products on personal vehicles. The jury applied pre-1981 tort reform...

Last week, Missouri joined the United States federal courts, as well as the majority of other state courts, in adopting a heightened standard for the admissibility of expert opinions commonly known as the “Daubert standard.”  The Daubert standard comes from the landmark Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and is generally considered to increase the reliability of expert witness testimony by requiring the trial court serve as the gatekeeper of evidence and opinions provided by expert witnesses. Aligning with Daubert, the new Missouri standard requires that in order for an expert to...

Trial began on Monday, December 5 in the case of Eileen and Delvin Domagala v. 3M Company, et al., in St. Paul, Ramsey County, Minnesota, Before the Honorable John Guthmann.  Plaintiffs were represented by Jessica Dean of Dean, Omar, & Branham, LLP.  The three remaining Defendants in the case were Georgia Pacific, CertainTeed, and John Crane.  Opening statements began this morning, December 8.  During her opening statement, Ms. Dean made multiple statements in violation of several of Judge Guthmann’s orders on both parties’ Motions in Limine.  The judge sustained several defense objections, and allowed Ms. Dean to finish her opening...

With this year’s election only days away, businesses must work within the framework of Minnesota’s “Time Off To Vote” law. The law requires that employers give their employees, who are eligible to vote, a reasonable amount of time to vote in this year’s elections. The law states that employers may not "directly or indirectly refuse, abridge, or interfere" with an employee's rights and that doing so can result in a misdemeanor. Moreover, the employer cannot deduct wages or salary from employees who choose to partake in their right to vote, nor can employers mandate that employees use sick leave or...

The Oregon Court of Appeals - in a unanimous 3-0 decision - rejected the “bare metals” defense in McKenzie v. A.W. Chesterson, 277 Or.App 728 (2016). The Court specifically declined to follow the line of cases of our sister states, Washington (Simonetta v. Viad Corp., 165 Wash 2d 341, 197 P3d 127 (2008); Braaten v. Saberhagen Holdings, 165 Wash 2d 373, 198 P3d 493 (2008)0 and California (O’Neil v. Crane Co., 53 Cal 4th 335, 266 P3d 987 (2012). The Court held that the Oregon Product Liability Statute, ORS 30.920, relying on the Restatement (2nd) Torts, 402A, supported Plaintiff’s theories...

The Minnesota District Court issued an order on March 1, 2016, granting in part and denying in part summary judgment on the statute of repose defense. The statute of repose, Minn. Stat. § 541.051, bars any claim arising from a defective or unsafe condition more than 10 years after the installation of “an improvement to real property.” Defendants General Electric, CBS Corporation, and Fluor Daniel moved for summary judgment on the grounds that Minnesota’s statute of repose applied to turbines in power plants. The plaintiff claims the decedent was exposed to asbestos during frequent overhauls of the turbines from 1967...

Client Alert: Minnesota Supreme Court Confirms Reallocation of Damages A Minnesota Supreme Court ruling today prohibiting reallocation of uncollectable damages will affect the allocation of fault on defendants at trial in asbestos cases. The Minnesota Supreme Court issued an opinion today that will affect asbestos-related cases in the State of Minnesota. In Staab v. Diocese of St. Cloud,  the Minnesota Supreme Court held that a party who is severally liable under Minnesota’s apportionment-of-fault statute, Minn. Stat. § 604.02, subd. 1, “cannot be required to contribute more than that party’s equitable share of the total damages award through the reallocation-of-damages provision...

  U of MN Taconite Workers Health Study Interim Results Released Minnesota’s Iron Range has long been the subject of discussion and debate surrounding the potential health risks from  taconite mining and processing – from the landmark 1970’s Reserve Mining case (which ultimately banned the dumping of “asbestos-like” minerals found in taconite tailings into Lake Superior) to the state’s DOH studies earlier in this decade linking the region’s increased levels of mesothelioma to the commercial asbestos found in taconite processing plants. On April 12, 2013, the University of Minnesota School of Public Health and the Minnesota Taconite Workers Lung Health...