Now That Vaccine Distribution Has Begun, What Issues Do Employers Face?

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Over the course of 2020, American employers have been diligently working to navigate through many workplace issues caused by COVID-19. With the pandemic’s end finally in sight thanks to the recent FDA approval of the Pfizer and ModernaCOVID-19 vaccines, those same employers now must start preparing for critical questions that come with the availability of a vaccine.

Can Employers Require Employee Vaccination?

Generally, private employers can mandate employee vaccination for the benefit of the business, other employees, or customers.[1] A private employer may have a duty to require vaccinations depending upon several factors, including employee/customer interaction, vulnerability of employees and customers, and the workplace environment. More »

Immunity From Liability For Healthcare Facilities and Healthcare Professionals in the Continuing Battle Against the Covid-19 Pandemic

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Since the beginning of the COVID-19 pandemic in March 2020, local, state and federal authorities have sought out ways to address the many issues presented by the pandemic. One such issue is how to address the legal issues facing healthcare workers, who place themselves at risk of contracting the disease every day, and whether these workers and medical facilities should be shielded from criminal or civil liability based on difficult treatment decisions.

As the number of COVID-19 patients continues to rise in the US and worldwide, hospitals and doctors are faced with the decision of how to allocate scarce resources, such as ICU beds, ventilators, and time spent by staff treating an individual patient. An example of one such allocation decision is whether a healthcare worker should administer CPR for a patient who is crashing. More »

A National Approach to Biometric Privacy

In August, Senators Bernie Sanders (I-VT.) and Jeff Merkley (D-OR.) introduced the National Biometric Information Privacy Act of 2020 (NBIPA), which serves to regulate the collection, retention, disclosure and destruction of biometric information. While NBIPA is awaiting Congressional consideration, its potential effects and nationwide extension make it noteworthy.

As currently drafted, NBIPA limits the collection of personal information to valid business purposes, prohibits the inclusion of written releases in employment contracts, and builds on the Illinois Biometric Information Privacy Act in two major ways. First, NBIPA requires all businesses, regardless of size, to obtain consumers’ opt-in consent before collecting, sharing or using their biometric data, inform consumers of the use and length of term of biometric data, develop and publish a data retention schedule and guidelines for destroying biometric data, and obligates businesses to store, transmit, and protect biometric data in the same or in a more stringent manner as is done for other confidential and sensitive information. Second, NBIPA not only creates enforcement by state attorneys but also creates a private right of action for individuals even if the injury is only a technical violation that does not result in actual damages.[1] More »

Illinois Appellate Court Says the Learned Intermediary Doctrine Does Not Shield a Device Manufacturer from Liability When a Doctor is Deceived About a Device’s Prior Testing and Suitability

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On Friday, October 30, the Appellate Court of Illinois, Second District, held that the Learned Intermediary Doctrine, which protects medical device manufacturers from liability if they provide physicians with proper warnings, does not shield product manufacturers from liability in situations where the physician is deceived about the subject device’s history of testing and suitability. 

The facts of the case are bizarre, to say the least. The Plaintiff allegedly suffered injuries to her left eye during a relatively routine cataract lens replacement procedure. Prior to the procedure, a sales representative for Defendant/Appellee Johnson & Johnson Surgical Vision, Inc. (“JJSVI”) allegedly brought a prototype lens injector device manufactured by another device company and showed it to the doctor prior to a day of surgical procedures. The Plaintiff alleged that the JJSVI sales rep knowingly misrepresented to the doctor that this prototype device had been approved by the Federal Food and Drug Administration and was being used by other physicians with great success. The doctor allegedly believed the JJSVI sales representative and used the prototype device on the Plaintiff that same day causing injury.  More »

Remote Jury Selection by Video Conferencing

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On October 27, 2020, recognizing the need for video conferencing jury selection in civil trials, the Illinois Supreme Court set out general guidelines for remote jury selection. Some of the operative sections are:

D. Remote jury selection by video conference (herein “remote jury selection”) in civil cases is permissible to reduce the risk of COVID-19 exposure so that litigants can access justice in a timely fashion while keeping all jurors, court personnel, litigants, and the public safe.

For civil matters, circuits may choose to utilize remote jury selection consistent with the guidelines established by the Court Operations During Covid-19 Task Force, and adopted by the court (herein “Guidelines”) on October 27, 2020. More »

Illinois Appellate Court Eliminates Key Defense to BIPA Claims

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On September 18, 2020, the Fifth District Appellate Court in Illinois unanimously held that the exclusivity provision of Illinois’ Workers Compensation Act does not bar employees’ statutory damages claims for violation of Illinois’ biometric privacy law.[1]  The Fifth District’s ruling has eliminated a key defense advanced by employers defending against alleged violations of the Illinois Biometric Information Privacy Act (“BIPA”).[2]

In 2017, plaintiff Marquita McDonald filed a class action lawsuit against her employer Symphony Bronzeville, Park, LLC.  Plaintiff alleged that the defendant-employer required its employees to provide biometric information by scanning fingerprints into a fingerprint-based time clock system.  The lawsuit alleged that the employer violated BIPA by: (1) failing to inform employees in advance and in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used; (2) failing to provide a publicly available retention schedule and guidelines for permanently destroying the scanned fingerprints; and (3) failing to obtain a written release from employers prior to collecting their fingerprints.  More »

What is Amy Coney Barrett’s Record on Federal Preemption and What Does it Mean for Future SCOTUS Rulings in Drug and Medical Device Litigation?

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Federal preemption has been the subject of numerous SCOTUS drug and medical device decisions in the past decade.  Several recent decisions have had a profound impact on liability in drug and device litigation cases.  With Amy Coney Barrett confirmed by the Senate and sworn on to the Court on Monday night, it is important to look at her record on federal preemption and how her addition to the Court might impact future rulings in this critical area of life sciences law.

I. Federal Preemption

The doctrine of federal preemption of state laws is rooted in the Supremacy Clause of the United States Constitution, which states that federal law is “the supreme Law of the Land...anything in the Constitution or Laws of any State to the Contrary notwithstanding.”  Essentially, preemption means that if state and federal law directly conflict, then state law must give way.  In making a determination on preemption, courts are to consider whether federal intent is to completely regulate the subject matter.  More »

COVID Delivers Fraud to the Trucking Industry

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The trucking industry and its insurers were already vulnerable to predatory schemes in a pre-COVID-19 society. The current economic uncertainty and anxiety caused by the virus is unfortunately exacerbating that problem.

Last month, the Justice Department issued new indictments against several individuals in Louisiana, alleging a conspiracy to defraud the trucking industry. The defendants allegedly staged accidents in order to recover money from the trucking company’s carrier. That one case has now led to the indictment of a staggering number of 28 individuals who defrauded insurance companies out of hundreds of thousands of dollars. More »

The Application of the Doctrine of Collateral Estoppel to Bar Legal Malpractice Claims Following Allegations of Ineffective Assistance of Counsel

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In a recent unpublished decision, Miles v. Dickstein, unpub op, Docket No. 350136 (Sep. 10, 2020), the Michigan Court of Appeals addressed the application of the doctrine of collateral estoppel (sometimes referred to as “issue preclusion”) in a legal malpractice case arising out of an underlying criminal lawsuit. The Miles Court held that because the standards for evaluating an attorney for ineffective assistance of counsel in a criminal setting and legal malpractice in a civil suit were “equivalent” and “virtually identical,” that collateral estoppel bars a subsequent legal malpractice claim if the trial court evaluated an ineffective counsel claim in the underlying criminal matter. Miles, unpub op, at 1. More »

Prefabricated Construction Liability

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Introduction

Prefabricated residential and commercial construction brings both new building opportunities and new legal concerns. Building with prefabricated components provides for greater efficiency in cost, development, and installation than traditional building methods – allowing entire commercial and residential structures to be assembled at a worksite like building blocks consisting of prefabricated “units” or “modules.” However, this shift from field construction to field assembly also shifts the scope of potential liability for all parties involves – from engineers designing prefabricated components through component manufacturers and down to contractors completing installation and assembly. Below, we consider how changes to construction from prefabricated components affect liability and coverage in the realm of construction liability. More »

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