COVID-19 and Expert Believability

Recently, I was speaking with a plaintiff’s lawyer whom I like and respect about the potential impacts of COVID-19 on the concept of a reasonably prudent person—something we have written about before. He suggested to me that an even bigger impact—not necessarily tied solely to COVID but certainly exacerbated by it—could be with respect to jurors’ willingness to listen to and believe scientific testimony. In many life sciences lawsuits, science and scientific evidence play important roles. Many defendants in life sciences cases—particularly product…
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GOP Introduces Bill Creating Broad Civil Immunity for COVID-19 Lawsuits

We previously discussed whether Senate Republicans would propose federal liability immunity in the next COVID-19 relief bill. On July 27, 2020, Sen. John Cornyn (R- TX), introduced the SAFE TO WORK (Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy) Act, Section 4317, which would provide broad liability immunity for businesses, health care workers and facilities, educational institutions, and local governments. Sen. Cornyn claims that this bill “would protect those acting in good faith from being sued into oblivion while…
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FDA Announces Laboratory Testing Method for Hand Sanitizers

We have written before on some of the issues relating to hand sanitizers, including troubling information about how some people misuse hand sanitizers in dangerous ways and the FDA’s efforts to publicize information about various hand sanitizers identified by the FDA as being hazardous to users. The FDA has warned consumers not to use those hand sanitizers and has warned importers, consignees, distributors, retailers, and others not to distribute or sell those hand sanitizers, even if the corresponding manufacturers have not recalled them. Earlier this…
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New York Rolls Back Immunity to Nursing Homes and Health Care Service Providers

On Monday, August 3, 2020, Governor Andrew Cuomo signed a bill (A.10840/S.8835 Kim/Sepulveda) recently enacted by the New York Legislature that revised the Emergency Disaster Treatment Protection Act (EDTPA). The EDTPA was enacted with the state budget in April and granted broad immunity to certain health care providers and facilities, including nursing homes, regarding good faith actions or omissions undertaken in response to the COVID-19 outbreak. The EDTPA applied retroactively to when Gov. Cuomo first declared a state of emergency in March 2020. The new…
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FDA Moves to Stop Subpar KN95 Respirators from Being Sold in the U.S.

The Food and Drug Administration (FDA) is warning health care workers and other medical first responders about defective KN95 respirators imported from China for failing to meet a minimum particulate filtration efficiency of 95 percent in National Institute for Occupational Safety and Health (NIOSH) testing. This move is a part of the broader effort by the FDA to combat the sale of fraudulent COVID-19 products. The FDA first allowed the import of Chinese-made KN95 respirators on April 3, 2020, by issuing an emergency use
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Hands Off for More Sanitizers

Recently we posted about the FDA’s warnings regarding various potential dangers and harmful effects from hand sanitizers. Notwithstanding FDA’s efforts, reports continue of consumers using – or misusing – hand sanitizers and being injured. For example, on August 5, CNN reported about multiple significant injuries caused by people drinking hand sanitizers. But on the same day that we posted, the FDA released a further update and warned consumers and users of hand sanitizers about a different potential problem: the use of hand sanitizers that contain…
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COVID-19 Immunity for Health Care Services and Nursing Homes May Change Soon in New York

In previous blog posts, we discussed New York’s Emergency Disaster Treatment Protection Act (EDTPA), which was enacted on April 6, 2020 as part of the state budget. The Act provides immunity to hospitals, nursing homes and other health care professionals that arises from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from the initial emergency declaration on March 7, 2020 through its expiration. The EDTPA does not provide immunity for intentional criminal conduct, recklessness or gross negligence by a facility…
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FDA Warns: Hands Off for Some Sanitizers

The COVID-19 pandemic continues to raise a multitude of legal and practical issues in the midst of a terrible health crisis. The legal issues related to potential legal liability for actions during unprecedented public health crisis will continue to grow. This space has addressed product fraud issues, product immunity issues, immunity issues for reasonable actions taken in a time of incomplete, conflicting, and shifting information, nursing home issues, as well as concerns about whether efforts to prevent or treat the disease…
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FDA’s Efforts to Monitor Manufacturers of COVID-19 Products

The Food and Drug Administration (FDA) provided an update on its efforts to combat the sale of fraudulent products during the COVID-19 pandemic through written testimony before the U.S. Senate Subcommittee on Manufacturing, Trade, and Consumer Protection on July 21, 2020. The FDA has uncovered more than 780 fraudulent COVID-19 products, including substandard personal protective equipment (PPE), diagnostic tests, and purported vaccines being offered for sale. The FDA found that the Internet is the primary mechanism for the sale of fraudulent COVID-19-related products, which presents…
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Pennsylvania Supreme Court Reaffirms Fealty to Frye Standard

Although our nation and our courts are still very much in the midst of addressing the acute aspects and effects of the COVID-19 pandemic, there will come a time when our courts return to more “normal” operations. It is likely that this will coincide with an influx of new litigation relating to COVID-19 claims of many kinds, including, of course, personal injury and, tragically, wrongful death claims. For many of those claims, the use of experts and expert testimony to address issues of causation will…
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