Thursday, April 30, 2020

Workers' Compensation: A Federal Heroes Compensation Fund

Workers' Compensation: A Federal Heroes Compensation Fund

by Jon Gelman

The COVID-19 pandemic has the potential of generating an enormous number of occupational illness claims from health care workers [HCW] and first responders [FR]. Several governmental leaders have called for a nationalized workers’ compensation benefit program to handle the surge of claims. 

The ability of the patchwork of individualized state programs to handle the potential monumental surge of claims has come into question. The efficiency and effectiveness of a multitude of non-integrated and stand-alone schemes of workers’ compensation will be challenging. The fractionalized handling by multiple jurisdictions will produce an inconsistent and erratic benefit delivery solution that will impact the strategy to provide the best public health initiative nationally to cope with the COVID pandemic.

Federal Government Will Provide a Uniform Program

Typical federal benefits provide a uniform national solution. Issues as to exposure and casual relationship can be standardized across all claims. Fiscal stability of the states and insurance companies can be obtained through federal administration and financing of both administration and delivery, without regard to state budgets and insurance carrier premium dollars. Integration with collateral benefit programs such as Medicare and Medicaid can be fashioned in an integrated solution. State unemployment, pension and supplemental benefits can be applied, setoff and recovered on a common basis thorough a nationalized central Federal agency management.

State Programs Stressed

The state workers compensation structure will be seriously stressed to handle the growing number of potential claims. HCW and FR are experiencing increased rates of COVID-19 illness and fatalities. The workers are fulfilling their heroic frontline roll in the battle against the disease and enduring enhanced risk that threaten: themselves, their families, health care facilities and the community at large.

Workers’ compensation insurance carriers are not prepared for these unanticipated catastrophic losses. Premium coverage for this type of “once in an 100 year event” has not been calculated into the rates. The losses are not backstopped by other revenue sources. The economic consequences to the already monetarily and administratively challenged state budgets could be severe and could result in state and local public and private entity bankruptcy. States are already overwhelmed in processing unemployment benefits.

The fractionalized state programs are not equipped to handle the adjudication and administration of the exponential volume of potential claims and multitude of complicated legal issues. Legal jurisdictional issues over state-wide partnerships alone will lead to complicated and prolonged litigation. 

Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal

Geography of New York–New Jersey Harbor Estuary - Wikipedia
Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal

In 1969 Hess Oil spilled 8 million gallons of crude oil into the tidal Smith Creek and the Arthur Kill which runs between New Jersey and Staten Island, New York.  Other "discharges" of waste occurred in 1990 and 1992.  In an action filed in 2018 [!?] the state sought damages on multiple theories.
Common law trespass is not available to the State in an action against a polluter of rivers and streams, the Appellate Division of Superior Court held in New Jersey Department of Environmental Protection v. Hess Corporation.  As two environmental practitioners note the implications are not fully developed.  They report that "the State  filed a complaint seeking damages, injunctive relief and declaratory relief under the Spill Act, along with common law claims sounding in public nuisance, trespass and strict liability. These claims arose out of the environmental contamination of property formerly operated as an oil refinery and terminal."

Reversing the trial court's dismissal in the main the panel's most interesting conclusion is not that common law nuisance and strict liability survive the State's Spill Act.  But that trespass is unavailable because the State holds the rivers and streams in trust and therefore does not have the exclusive possession that underlies  common law trespass.

The plaintiff DEP argued that the State holds "water resources as trustees of the State, that they have a parens patriae responsibility to protect its resources, and any pollution of public waters constitutes a trespass".  The panel rejected that argument. Parens patriae is the doctrine under which public access to ocean front beaches has been preserved in New Jersey law.  But the court, saying the issue had not been raised below, took another tack.  It explained:

Under New Jersey law, "[a]n action for trespass arises upon the unauthorized entry onto another's property, real or personal." Pinkowski v. Township of Montclair, 299 N.J. Super. 557, 571 (App. Div. 1997). A trespass requires that the invasion be to land that is in the exclusive possession of the plaintiff. [State DEP v.] Ventron, 94 N.J. at 488-89 [1980]. Land in the public trust is held by the State on behalf of a second party, the people. Such land cannot be in "exclusive possession" of the State as the interest created by the doctrine is intended to ensure that others have use of the same land. It does
not grant to the State the exclusive possession of property.
Because it was decided by a two judge panel the opinion is unpublished [2020 N.J. Super. Unpub. LEXIS 622] and therefore of limited precedential weight.  But the discussion of remedies is thorough.  Because nuisance and New Jersey's strong strict liability for environmental torts doctrines stand its impact is limited.  But the implications that the common law trespass doctrine is unavailable to a public trustee is noteworthy and the sort of thing that students looking for a Note topic could seize upon.  Teachers too.  - GWC

Sunday, April 26, 2020

Remedies - BP Oil Spill - Deepwater Horizon

SLIDES BP Deepwater Horizon Class Action
Economic and Property Damage Claims
Deepwater Horizon - film 2012 TRAILER
NOAA explainer - Deepwater Horizon
Oil Pollution Act of 1990 - (OPA) key provisions
Prof. John Goldberg  Memo to BP claims administrator Kenneth Feinberg  re extent of BP's civil liability for damages

Saturday, April 25, 2020

Remedies: Punitive Damages Spring 2020

SLIDES Mass Torts and the Troubled Rise of Punitive Damages
Video embedded below and link HERE

Deadly Dust: Silicosis and the politics of industrial disease - Conk, Rutgers Law Review 2017
Asbestos Timeline - ADAO - Asbestos Disease Awareness Organization
The Tobacco Institute
The Ford Pinto - Grimshaw v. Ford Motor Company
Black Lng Act of 1973
Eric Weinberg: Blood on their Hands - podcast 
BLOOD: An Epic History of Medicine and Commerce - Douglas Starr (1998)
Vioxx - McDarby v. Merck (2007)
Merck Agrees to pay $950 million  in false claims settlement with DOJ
Oregon - Distribution of punitive damage awards 
2017 ORS 31.735 70/30 split state/plaintiff

62 Minutes

Thursday, April 23, 2020

SCOTUS - TM plaintiff need not prove willfulness - Romag Fasteners, Inc. v. Fossil, Inc. (04/23/2020)

18-1233 Romag Fasteners, Inc. v. Fossil, Inc. (04/23/2020)

Trademark infringement plaintiff need not prove willfulness to recover lost profits.

Remedies Ch. 6 Part 3 Personal injury damages and loss of use of money

Chapter 6, Part 3 Personal Injury Damages, Loss of use of money
New Jersey Model Civil Jury Instructions - 8.10, et seq. for Damages instructions
Video is 37:06

Johnson & Johnson seeks new punitive damages trial in talc case - NJ Law Journal

Johnson & Johnson seeks new punitive damages trial in Talc case - NJ Law Journal

by Charles Toutant - New Jersey Law Journal

After a New Jersey jury handed it a $750 million punitive damages verdict in a suit alleging its baby powder caused four people to develop mesothelioma, Johnson & Johnson is seeking a new trial or a reduced verdict.
Counsel for the plaintiffs in court papers filed Monday defended their questioning of company CEO Alex Gorsky, calling its questions about his rate of pay relevant to his credibility and potential bias. That comes after Johnson & Johnson’s lawyers, in motions filed in February for a new trial on punitive damages, for judgment notwithstanding the verdict, and for remittitur, took issue with the plaintiffs’ subpoena of Gorsky at trial. Jurors, Johnson & Johnson said, were exposed to inflammatory and inadmissible evidence, yielding an award that “breaches the outer limit of constitutional propriety.”
Superior Court Judge Ana Viscomi, in Middlesex County, is weighing the motions by Johnson & Johnson and opposition papers from lawyers for the four plaintiffs in the case.
The punitive damages verdict was returned Feb. 6 after Gorsky was called to testify for the company at trial. Much of the company’s motion for a new punitive damages trial deals with Gorsky’s testimony and the questions asked of him by the plaintiffs’ lawyers.

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The $750 million punitive damages was reduced to $186.5 million by Viscomi under a state law limiting punitive damages to five times the compensatory award—in this case, $37 million, awarded in September 2019 after another trial.
In its motion for a new punitives trial, Johnson & Johnson argued that the trial judge should not have allowed the plaintiffs’ lawyers to admit evidence concerning the timing of Gorsky’s sale of stock in November 2018, just after a reporter from Reuters contacted the company about an upcoming article accusing it of suppressing information about asbestos contamination in talc. Johnson & Johnson claims in court papers that the stock sale is not relevant, and that questions during trial about Gorsky’s compensation were improper and were raised by the plaintiffs to inflate the punitive damages award.

Remedies - Damages Part 2 Property Damages

Image result for actual cash valueNearly half of Indiana Superfund sites threatened by climate ...

CERCLA - Comprehensive Environmental Response Cleanup and Liability Act (1982) [The Superfund law]
State of New Jersey DEP v. Ventron Corp. (1987)
Public Nuisance Among the Statutes - ABA -James Sevinsky 1990
SLIDES - Ch. 6 Damages Part 2  Property damage and applying market measures
Video: 49:26

Tuesday, April 21, 2020

Judge Delivers Blow To Kansas Gov’s Church Gathering Ban

Kansas coronavirus update: U.S. judge finds merit in challenge of ...

Judge Delivers Blow To Kansas Gov’s Church Gathering Ban: Talking Points Memo

In First Baptist Church v. Kelly federal judge John W. Broomes delivered a blow to Kansas Governor Laura Kelly’s (D) ban on church gathering Saturday, allowing two local churches to conduct in-person, though socially-distanced, services.

“Plaintiffs are likely to suffer irreparable harm in the form of denial of their constitutional right to the free exercise of their religion,” wrote former oil & gas lawyer U.S. District Judge John Broomes in his ruling, adding that the restrictions on religious gatherings “are more severe than restrictions on some comparable non-religious activities.”

He granted the plaintiffs, the First Baptist Church in Dodge City, Calvary Baptist Church in Junction City and their pastors, a temporary restraining order set to expire May 2. A preliminary injunction hearing will be held on Thursday.

 The two churches will be allowed to continue holding church services as long as they follow CDC guidelines to prevent the spread of COVID-19, like ensuring six feet of space between worshippers and setting out hand sanitizer.

In a statement, Kelly indicated that the court battle is far from over.

“This is not about religion. This is about a public health crisis,” Kelly said. “This ruling was just a preliminary step. There is still a  long way to go in this case, and we will continue to be proactive and err on the side of caution where Kansans’ health and safety is at stake.

Remedies - Damages - Part 1 General Principles, Fraud

SLIDES Damages Part 1
New York Uniform Commercial Code
Prejudgment interest - NY CPLR 5001
Fraud - Burden of proof - NY Pattern Jury Instruction
Fraud elements and burden of proof - comparing NY and Delaware
Video 28:39
Video 43:16

Monday, April 20, 2020

MDL Mass Tort Product Liability Settlements

DePuy ASR Settlement & Recall | Pope McGlamry

The ASR Hip Implant Settlements - DePuy/Johnson & Johnson

Background - Class actions and consolidated tort litigation
Rule 23 Class Actions - Federal Rules of Civil Procedure
28 USC 1407 - Multi-district Litigation MDLs
Manual for Complex Litigation - Federal Judicial Center
Pinnacle settlement: Common benefit fund Magistrate's Report

Sunday, April 19, 2020

Opinion | The America We Need - The New York Times

OTHERWISE: Opinion | The America We Need - The New York Times

The pandemic has exposed two deep truths: the fifty year Republican assault on the public sector has left us unprepared for this crisis, and the moral deficiency which that drive expressed has left us in the hands of an incompetent President incapable of empathy.

The New York Time Editorial Board begins today a long series of essays by addressing the roots of our failure. 

If you click through to the Times story you will find a 24 minute audio.

Friday, April 17, 2020

OTHERWISE: Message to SCOTUS: Maximize voting and public health - Wisconsin teaches us

OTHERWISE: Message to SCOTUS: Maximize voting and public health - Wisconsin teaches us: Message to SCOTUS from Wisconsin: Maximize voting and public health by GeorgeW. Conk

When the United States Supreme Court, split along the familiar lines, reversing the courts below, ordered “Per Curiam” that Wisconsin voters who chose mail ballots must have them post-marked by midnight of election day, Tuesday, April 7, the usual alarms rang.  Defenders saw a ruling to maintain regular order and ballot integrity; critics saw a partisan effort to reduce voting and aid a Republican seeking to retain a state Supreme Court seat. Of course, neither an effort to save or gain a court seat should motivate the decision on how to conduct an election.

Opinion | On the Wisconsin Primary, the Supreme Court Failed Us - The New York Times

Opinion | On the Wisconsin Primary, the Supreme Court Failed Us - The New York Times: The five conservative justices refused to extend the deadline for absentee ballots in Wisconsin in the middle of the pandemic.