Less than 1% of the population suffers from the serious gluten allergy known as celiac disease. Yet every time this writer goes out to dinner at least one dining companion passes on bread and pasta, claiming a self-diagnosed “gluten sensitivity” that manifests as a collection of nondescript symptoms, the major one being “fatigue.” The odd thing is that our obsession with gluten – present in a staple food for millennia – has only recently become the bad actor in all sorts of physical and mental maladies in celiac-free individuals.
Continue Reading Electromagnetic Hypersensitivity (EHS): Fad Allergy, Debilitating Disease, or What?

New York’s Appellate Division, First Department, issued its decision yesterday on the New York City Asbestos Litigation (NYCAL) punitive damages/Case Management Order (CMO) issue. While the Appellate Court held that Judge Heitler had the authority to modify the CMO to lift the deferral on punitive damages, it also found that she exceeded that authority to the extent that the order directs applications for a jury charge on punitive damages to be made at the conclusion of the evidentiary phase of trial. As a result, the long-term viability of punitive damages in NYCAL cases is back in question.
Continue Reading NYCAL Punitive Damages in Limbo

The Supreme Court recently granted certiorari in Spokeo v. Robins, a case that has the potential to redefine standing in federal court. The Ninth Circuit’s February 2014 decision permitted plaintiff Thomas Robins to establish standing under the Fair Credit Reporting Act (“FCRA”) with nothing more than a speculative injury. This contravenes Supreme Court precedent, which finds standing when a plaintiff suffers a harm that is actual, distinct, palpable, and concrete; attenuated and hypothetical injuries do not constitute an injury-in-fact. The implications of the Ninth Circuit’s holding in Spokeo v. Robins have grabbed the attention of companies in nearly every industry. Their concern, as expressed by the U.S. Chamber of Commerce – granting standing to plaintiffs who have not suffered an injury-in-fact will open the flood gates to no-injury class actions brought under statutes that authorize a private right of action. But, in truth, the implications to businesses could extend beyond this.
Continue Reading No Injury? No Problem.

Pennsylvania employers are raising arguments that may circumvent the effect of the Pennsylvania Supreme Court’s decision stripping them of the protections of the Pennsylvania Workers’ Compensation Act (WCA) for latent occupational diseases.  In the November 2013 decision in Tooey v. AK Steel Corp. (see the related post here), the Pennsylvania Supreme Court allowed former employees with occupational diseases, like mesothelioma, to sue their employers directly for diseases that manifest more than 300 weeks after employment ends.  In the wake of Tooey, employers have focused on the Pennsylvania Occupational Disease Act (ODA) arguing that it still provides administrative remedies that must be exhausted before a former employee can sue for a latent occupational disease.
Continue Reading PA Employers Craft Arguments To Navigate Around Tooey

“The times they are a-changin” wrote Bob Dylan in 1964. Is New York City – recently dubbed by the American Tort Reform Association the Number 1 “Judicial Hellhole” in large part because of its pro-plaintiff bent in asbestos litigation – “a-changin” too? First, Assembly Speaker Sheldon Silver was indicted for various allegedly bad judgments in connection with using state money to secure asbestos referrals and whopping settlement fees. Next, the judge that supervised the New York City Asbestos Litigation (NYCAL) for almost a decade is out and a new judge takes over. And then this week, Judge Barbara Jaffe issued a potentially game-changing opinion in the NYCAL, striking an $11 million plaintiff’s verdict in a mesothelioma case.
Continue Reading NY Judge Tosses Plaintiff’s Asbestos Causation Opinion

For those of you who are fans of Michael McKean of This is Spinal Tap (lead singer David St. Hubbins…remember?), you know that he has a recurring role as Saul Goodman’s brother Chuck, on AMC’s hit show Better Call Saul.  Chuck is an x-Big Law partner who is convinced he has electromagnetic sensitivity. So he says in a dark, electricity free house wrapped in a big foil space blanket.  Art does, however, imitate fiction, as there are folks who live in communes in the US and Europe that are totally removed from any electromagnetic radiation from things like cell phones, garage door openers, and wifi.
Continue Reading Suffer From Electromagnetic Hypersensitivity? Better Call . . .

The Pennsylvania Supreme Court has dramatically increased the liability of employers for their employees’ latent occupational diseases based on its interoperation of the word “it.”  In the November 22, 2013 decision in Tooey v. AK Steel Corp.,the Pennsylvania Supreme Court stripped the protections of the Pennsylvania Worker’s Compensation Act for latent occupational diseases that manifest more than 300 weeks after employment ends.

The Pennsylvania Worker’s Compensation Act has an exclusivity provision that prohibits employees from bringing civil lawsuits against employers for injuries and diseases that are covered. According to the Act: “whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment.”
Continue Reading Pennsylvania’s Worker’s Compensation Act Does Not Apply To Latent Occupational Diseases