As Temperatures Heat Up, Remember Litigation Will, Too

For many litigators, including those of us who handle pharmaceutical and medical device litigation, the past several months have seen various departures from how we might otherwise have pursued our pending cases. While effects varied in different parts of the country, and courts in different jurisdictions have adopted different plans for reopening and allowing cases to continue, everyone has likely seen at least some changes. Some attorneys have embraced virtual/remote depositions, while others have opted to wait to schedule and depose witnesses in the hopes…
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New York Governor Releases Report to Show His Nursing Home Admissions Policy Not Linked to Increased Nursing Homes Deaths

We have previously discussed the heightened criticism of New York Gov. Andrew Cuomo’s handling of the nursing homes during the COVID-19 pandemic. In response to that criticism, on, New York Commissioner of Health Dr. Howard Zucker released a report on July 6, 2020 by the New York State Department of Health entitled, “Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis.” The full report is available here. The report states the March 25 admission policy…
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FDA Authorizes First COVID-19 At-Home Sample Collection Kit Authorized For Use With Multiple Tests

Diagnostic testing for SARS-CoV-2 is a key tool in the combat against the COVID-19 pandemic. Since the Secretary of Health and Human Services declared a public emergency on January 31, 2020, calling for the entire country to aid in response to the COVID-19 outbreak, the U.S. has had low diagnostic testing rates due to a lack of testing capabilities. In order to improve access to testing, the U.S. Food and Drug Administration (FDA) recently granted an emergency use authorization to Everlywell, Inc. for an at-home…
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Remember to Explore a Plaintiff’s Pandemic Actions

Recently, we offered some thoughts about the heeding presumption in light of recent news reports of Americans acting in ways that are contrary to public health recommendations. Since then, the CDC published a report of a survey conducted of approximately 500 U.S. adults regarding their understanding and use of some chemical cleaning products and practices. Some of the reported results are shocking – even to those who profess to no longer be surprised by any unwise behaviors that people might engage in. For example, the…
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Will the National Vaccine Injury Compensation Program Be Busy in 2021 (and Beyond)?

The recent withdrawal of emergency use authorization for hydroxychloroquine and chloroquine got us thinking about the implications of rushing Covid-19 remedies—and more specifically, vaccines. “Vaccine development is a long, complex process, often lasting 10-15 years and involving a combination of public and private involvement.” Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, recently said that by the beginning of 2021 the United States hopes 100 million doses of a Covid-19 vaccine will be available. Depending on when the coronavirus…
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New York Reduces Testing Requirement for Many Nursing Homes to Once a Week

We recently wrote about how there has been criticism of Gov. Andrew Cuomo’s Administration’s handling of nursing homes during the COVID-19 pandemic. On May 10, 2020, in response to that criticism, Gov. Cuomo issued executive Order EO202.30 which required all nursing homes in the state to test all of its staff twice a week and report any positive results to the Commissioner of Health. The May 10 Executive Order is available to view here. The Administration is now partially reversing that order after new…
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Mobile Medical Apps: To Be or Not to Be (Wellness or Medical)? That is the Question

The size of the mobile medical app market is massive. One report shows in 2017 the global market was $2.4 billion, with a forecast of $11 billion by 2025. The Apple App Store alone has more than 45,000 health apps. We believe that the COVID-19 crisis will accelerate that growth as the world has now become acclimated to the use of mobile technology for the provision and facilitation of health care and wellness. For years, FDA and industry grappled with the extent to which the…
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Will Lawmakers Provide Immunity to Businesses from COVID-19 Lawsuits?

As state and local governments take steps toward reopening the economy, business owners are rallying around the issue of liability immunity from COVID-19 lawsuits and organizing efforts aimed at pressuring federal and state lawmakers to enact legislation limiting liability from lawsuits filed by workers and customers infected by COVID-19. The stakes are high. Because the complete clinical picture regarding COVID-19 is not fully understood, big and small businesses alike are targets for opportunistic lawsuits. When symptoms may not develop for days after the fact, just…
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Reasonably Prudent and COVID-19

Hyperbole aside, the impacts from COVID-19 have been pervasive, touching all aspects of our society. Commentators continue to identify just how far and wide these impacts have been, and it will likely take a number of years for us all to truly understand the breadth of the changes being wrought, including in the legal industry generally, and in litigation specifically. As life science companies and their counsel know full-well, a critical component of tort law in many jurisdictions is the concept of the “reasonable person”…
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New York Lawmakers Seek to Repeal Statute Granting Immunity to Nursing Homes

In a previous post, we wrote about New York’s Emergency Disaster Treatment Protection Act (EDTPA), which was enacted on April 6, 2020 as part of the state budget. EDTPA provides immunity to hospitals, nursing homes, administrators, nursing aides, nursing attendants, EMTs, home health care workers, physicians, and other health care professionals that arises from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from Governor Cuomo’s initial emergency declaration on March 7, 2020 through its expiration. The statute creates a new…
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