New York’s Governor Cuomo Criticized for Handling of Nursing Homes During Pandemic

This week, New York State reported almost 5,000 nursing home residents in the state have died from COVID-19 since March 1. New figures released reported that more than 2,300 nursing home residents have died and another 2,500 are presumed to have died from the virus. The data regarding COVID-19 fatalities from New York State is available here. The amount of deaths is reportedly five times the number deaths related to the virus in all of Washington State. As expected, Governor Cuomo, who has been…
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Legal Immunity and COVID-19 Recovery: Thorny Issues Abound

Want to start an argument? Start talking about COVID-19 immunity for people and companies. Anywhere in the nation. In Congress. In state legislatures and governor’s chambers. In hospitals and nursing homes. Indeed, even perhaps in your home. My goodness, people start talking past each other. Heartless companies who do not care about their customers or workers, they say. What? Greedy trial lawyers, they retort (no pun intended). Obviously, we are not talking here about viral (or herd) immunity, but legal immunity. Baby steps of limited…
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Liability Immunity Now Extended to Manufacturers of Any NIOSH-Approved Respirator Used as a COVID-19 Countermeasure, Including Those Not Intended for Medical Applications

As the COVID-19 pandemic stresses the U.S. health care system, personal protective equipment such as personal respirators are in desperately short supply. Healthcare providers are repurposing respirators originally designed for non-medical use to combat the COVID-19 pandemic. This practice raises the question as to whether manufacturers of non-medical respirators qualify for liability immunity under the Public Readiness and Emergency Preparedness Act (PREPA). We previously wrote about PREPA and the March 17, 2020 declaration by the Secretary of Health and Human Services providing liability immunity to…
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COVID-19, Duty to Warn, and Potential Product Misuse

Under the law of most, if not all, U.S. jurisdictions, product manufacturers are required to provide product-related warnings associated with foreseeable uses of their products. The law in most of these jurisdictions also extends the duty to warn to reasonably foreseeable misuses of a company’s products. But, generally speaking, misuses that are not reasonably foreseeable do not require a warning – product manufacturers are not required to dream up and warn against every theoretical possible misuse of their products. While the duty to warn with…
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Are We Going to Clean Ourselves Sick?

It wouldn’t be going out on the proverbial limb to say that people are using all sorts of cleaning and disinfecting products with significantly greater frequency and regularity than they have at any other time in history. The Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report for April 20, 2020 contains the article, “Cleaning and Disinfectant Chemical Exposures and Temporal Associations with COVID-19.” This article describes an analysis of data from exposures reported to the National Poison Data System and…
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New York’s Emergency Disaster Treatment Protection Act Provides Broad Immunity for Hospitals and Nursing Homes Related to Treatment of COVID-19 Patients and Other Residents

On March 25, 2020, New York’s Department of Health issued an Advisory to nursing home administrators, hospital discharge planners and others regarding nursing homes pertaining to the expedited receipt of residents returning to nursing homes from hospitals. The Advisory prohibited nursing homes in New York from denying admission or re-admission to a resident based upon a confirmed or suspected positive COVID-19 diagnosis. The full text of the Advisory is available here. The Advisory was of great concern to nursing home administrators and owners, who were…
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Medical and Scientific Literature is Crucial in COVID-19 Crisis

COVID-19 issues dominate the world.  This post is being prepared remotely, and read by you remotely, because science dictated that to stop the spread of this terrible disease we needed to become isolated from each other. The tools to fight the virus, prevent its spread and treat the disease it causes for the most part will come from the life science sector.  The tools have and will come from intuition, innovation and inspiration, and are based on quality science and medicine.  We write from the…
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Liability for Medical Clinics in New Jersey Who Prohibit Medical Cannabis Use on Site – Not So Fast

Under federal law, marijuana is a Schedule I controlled substance.[1]The Controlled Substances Act (CSA), placed marijuana in is most restrictive category, Schedule I.  It further defined marijuana as a drug with a high potential for abuse, no currently accepted medical use for treatment, and lacking acceptable safety uses even under medical supervision. 21 U.S.C. Section 812(b)(1). In 2010, New Jersey enacted the Compassionate Use Medical Marijuana Act which decriminalized the possession of a certain amount of marijuana for medical use by qualifying patients.…
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Using Old Legislative Frameworks to Regulate Alternative Meat Product Labeling

aFor  variety of reasons–among them, economic efficiencies, environmental concerns, dietary health, and expanding access–the plant-based and cellular-grown foods industry is growing at a rapid rate. This fast expansion of a new kind of alternative food, however, has triggered concerns about how it is marketed and labeled for consumption. By the end of 2019, at least half of U.S. states introduced legislation addressing labeling of plant-based or cell-grown foods, with a particular focus on meat. Two states with the most recent legislative developments demonstrating the hesitation…
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The Shifting Landscape of Marijuana Law

Trial attorneys are somewhat like first responders, meaning that it is frequently only after a lawsuit has been filed and litigated that lawmakers step in to enact statutes and regulations governing the subject activity or conduct. This is apparent in the nascent cannabis industry. A prime example is the recent line of cases dealing with competing land use rights of marijuana growers and their neighbors. In Momtazi Family, LLC v. Wagner, Et Al.[i],  pending in the Eastern District of Oregon, the parties are…
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