Latest from HeplerBroom Blog - Page 2

by Audra Zobrist

Regardless of the type of case being tried, it is a longstanding tenet of evidence practice that hearsay statements are inadmissible at trial. The problem with admitting such evidence is that the maker cannot be cross-examined to scrutinize the accuracy, context, and other aspects of the statement. Recently, courts in California, Kentucky, and Pennsylvania, reviewing cases based on exposure to talcum powder allegedly contaminated with asbestos, have held that certain evidence presented to establish proof of contamination was inadmissible as hearsay.
Pennsylvania Court Rules Quoting Another Expert’s Report is Hearsay
In Brandt v. Bon-Ton Stores, Inc., 2020
Continue Reading Courts Deny Evidence of Asbestos Contamination of Talcum Powder as Hearsay

by Weston T. Stoddard
On November 1, 2021, the United States District Court for the District of Puerto Rico denied Plaintiffs’ request for a preliminary injunction to block an Executive Order requiring COVID-19 vaccination and dismissed the case. Rodriguez-Velez v. Pierluisi-Urrutia, No. 21-CV-1366 PAD, 2021 WL 5072017, at *1 (D.P.R. Nov. 1, 2021).  (A copy of the District Court’s opinion is available here.)
Case Background
On July 28, 2021, Puerto Rican Governor Pedro Pierluisi-Urrutia issued Executive Order 21-058, requiring public employees of the Executive Branch that work in person to be fully vaccinated by September 30, 2021. Id.
Continue Reading District Court of Puerto Rico Denies Preliminary Injunction and Dismisses Case Seeking to Halt Vaccine Mandate for Executive Branch Employees

by Julieta A. Kosiba

On November 4, 2021, in a consolidated appeal, the U.S. Court of Appeals for the Second Circuit upheld New York Department of Health’s rule requiring healthcare facilities to ensure that certain employees are vaccinated against COVID-19. We the Patriots USA, Inc. v. Hochul, Nos. 21-2179 and 21-2566, 2021 WL 5121983, *1-2 (2nd Cir. Nov. 4, 2021). (The appellate opinion can be accessed here.)

In upholding the mandate, the Second Circuit reversed the U.S. District Court for the Northern District of New York and affirmed the U.S. District Court for the Eastern District of New
Continue Reading Second Circuit Upholds Vaccine Mandate for New York’s Healthcare Workers

by Michael P. Murphy

The Illinois Pollution Control Board issued a ruling on November 4, 2021, which, if approved by the United States Environmental Protection Agency (USEPA), will become the first time-limited water quality standard (TLWQS) in Illinois. The TLWQS represents a variance from the applicable water quality standard for chloride and only applies to two watersheds in the Chicago area: the Chicago Area Waterway System (CAWS) and the Lower Des Plaines River (LDPR). (The Opinion and Order, which was entered on November 4, 2021, is available here.)
Summary of Ruling
The TLWQS is granted for a 15-year
Continue Reading Illinois Pollution Control Board Adopts First Time-Limited Water Quality Standard

by Joseph H. Neill
The Missouri legislature recently passed SB 295 – the “Missouri Statutory Thresholds for Settlements Involving Minors Act” – easing requirements for finalizing settlements of personal injury and other claims involving minor children.[1] The bill (now codified as Section 436.700, RSMo) was effective August 28, 2021. With the newly enacted statute, claimants and adverse parties can expect to save a lot of time and expense on attorneys’ fees and court costs. The key point is that if certain conditions are met,[2] court approval is no longer required to settle a claim on behalf
Continue Reading New Missouri Statute Eases Requirements for Finalizing Settlements for Minors

by Weston T. Stoddard
On October 15, 2021, the United States District Court for the District of Massachusetts denied plaintiffs’ motion for a preliminary injunction to prevent the enforcement of Massachusetts’ COVID-19 vaccine mandate for state employees. Mass. Corr. Officers Fed. Union v. Baker, No. 21-CV-11599 TSH, 2021 WL 4822154 at *1 (D. Mass. Oct. 15, 2021). (The district court’s opinion is available here.)
Case Background
On August 19, 2021, the Governor of Massachusetts issued an executive order requiring all executive agencies to implement a policy requiring COVID-19 vaccination as a condition of continuing employment. Id. at *2.
Continue Reading Correcting COVID: District of Massachusetts Denies Correction Officers’ and Union’s Request for Injunctive Relief against Massachusetts’ Vaccine Mandate

The U.S. District Court for the Eastern District of Washington recently denied a request for a temporary restraining order and preliminary injunction in a pending challenge to Washington’s COVD-19 vaccine mandates, Wise v. Inslee, No. 2:21-CV-0288-TOR, 2021 WL 4951571, at *7 (D. Wa. Oct. 25, 2021). (A copy of the Court’s order can be accessed here.)
Case Background
The Wise plaintiffs are challenging Governor Jay Inslee’s series of proclamations that mandate COVID-19 vaccination for educators, health care workers, and various state employees and contractors except for those who may be entitled to an accommodation under the Americans with
Continue Reading Eastern District of Washington Finds COVID-19 Vaccine Mandates Reasonable

On October 21, 2021, the U.S. District Court for the District of South Carolina denied plaintiffs’ requests for a temporary restraining order against various municipal COVID-19 vaccine mandates. Bauer v. Summey, No. 2:21-CV-02952-DCN, 2021 WL 4900922, at *1 (D.S.C. Oct. 21, 2021). The district court’s opinion is available here.
Case Background
In September 2021, the City of North Charleston, the City of Charleston, the County of Charleston, and the St. John Fire District announced personnel policies that required their employees and affiliated personnel be fully vaccinated. Id. at *1-2. Each of the respective policies provided a process for requesting
Continue Reading No Southern Hospitality: The District of South Carolina Denies Plaintiffs’ Requests to Enjoin Local Governments’ Vaccine Mandates

In December 2020, the United States Environmental Protection Agency (EPA) issued its “Risk Evaluation for Asbestos, Part I: Chrysotile Asbestos” (“Report”). The EPA concluded that chrysotile asbestos presents an “unreasonable risk of injury to health or the environment.” (see Report, pg. 229).  The Report addresses two common uses of chrysotile: (1) removing and replacing sheet gaskets, and (2) removing and replacing brake linings.
On its face, the report seems difficult to navigate. However, a closer look raises challenges to both the science of the report and how its information could be used by defense if a plaintiff relies on it.
Continue Reading Challenging the Science Behind EPA’s Risk Evaluation for Chrysotile Asbestos

On October 19, 2021, the U.S. District Court for the District of Oregon denied plaintiffs’ request for a temporary restraining order against Oregon’s COVD-19 vaccine mandates. Williams v. Brown, No. 6:21-CV-01332-AA, 2021 WL 4894264, at *1 (D. Or. Oct. 19, 2021). (The district court’s opinion is available here.) The day before, another Court in the district denied a similar request for injunctive relief. Johnson v. Brown, No. 3:21-CV-1494-SI, 2021 WL 4846060, at *1 (D. Or. Oct. 18, 2021).  (That opinion is available here.)
Case Background
On August 13, 2021, Oregon Governor Kate Brown issued an Executive Order
Continue Reading Not Ducking the Issue: The District of Oregon Denies Requests to Enjoin State’s Vaccine Mandates

On October 19, 2021, the U.S. Court of Appeals for the First Circuit affirmed the denial of a motion for preliminary injunction that sought to prevent enforcement of Maine’s COVID-19 vaccination mandate.  Does 1-6 v. Mills, No. 21-1826, 2021 WL 4860328, at *1 (1st Cir. Oct. 19, 2021).  The First Circuit opinion is available here.

The state of Maine has long required that healthcare workers be vaccinated against infectious diseases.  Id.  And in doing so, Maine “has not allowed religious or philosophical exemptions to any of its vaccination requirements since an amendment to state law in May 2019 (which
Continue Reading First Circuit Affirms Maine’s COVID-19 Vaccination Mandate

by Christin E. Doyle
When defending a client, it is critical to gather information about the plaintiff’s
experts in order to identify weaknesses in the case and determine a winning strategy. This is especially true in medical malpractice lawsuits, where many outcomes are driven by expert opinion and testimony. With this in mind, defense counsel should become familiar with a 2020 Illinois Supreme Court decision dealing with an issue of first impression that allowed a plaintiff to redesignate a Rule 213(f)(3) controlled expert to a Rule 201(b)(3) consultant. In this particular case, the redesignation caused a physician’s report and opinions
Continue Reading Illinois Supreme Court Allows Plaintiff to Redesignate a 213(f)(3) Controlled Expert to 201(b)(3) Consultant During Discovery

In Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 930 (1st Dist. 2002), the Appellate Court held that a plaintiff injured in a motor vehicle accident cannot maintain an action for negligent hiring, negligent retention, or negligent entrustment against the defendant’s employer if the employer accepts responsibility for the employee’s conduct. In other words, once an employer admits responsibility for any negligence of its employee, liability under alternate theories of negligent entrustment, hiring, or retention should be dismissed as irrelevant. Id. at 927-28, 930. Relying upon Gant, employers have successfully sought dismissal of alternate theories of negligent hiring,
Continue Reading Illinois Supreme Court to Decide Viability and Scope of Gant: Negligent Training Claims Against Employers for Employee’s Motor Vehicle Accident

Arbitration clauses have become ubiquitous in modern commerce.  The legal services industry is not immune from this trend.  Today, many law firms include arbitration provisions in their client engagement letters.   This trend raises the important question: are such arbitration provisions enforceable in the face of a legal malpractice claim? If so, under what circumstances are such arbitration provisions enforceable?
Judicial and Advisory Ethics Opinions
Recent court decisions on the subject have made clear that arbitration provisions may indeed be enforceable in the context of legal malpractice claims brought by clients.  See e.g., Delaney v. Dickey, 244 N.J. 466 (2020).  However,
Continue Reading Are Arbitration Clauses in Attorney Engagement Letters Enforceable?

In 2013, Missouri enacted Section § 303.390 also known as the “No Pay, No Play” law. This law prohibits uninsured motorists from collecting damages for non-economic losses when involved in a motor vehicle accident. In other words, an uninsured driver can still recover damages for property losses, medical bills, and lost wages against the at-fault party but is otherwise barred from obtaining damages for pain and suffering. Under the law, those damages are “waived” by the Plaintiff for failing to have liability insurance while operating a motor vehicle. This law can be all the more painful to a Plaintiff at
Continue Reading Missouri’s “No Pay, No Play” Law Provides Severe Consequences for Motorists Without Auto Liability Insurance

The spread of the Delta variant in the United States is creating another spike in COVID-19 cases and deaths. This in turn has caused an increased push to get people vaccinated.[1]
Although private employers generally may mandate vaccination in most jurisdictions, this is not without limitation. The following are some important issues for private employers to consider before implementing a vaccine mandate.
Discrimination and Reasonable Accommodations
Employers must ensure that any policy mandating vaccination is compliant with applicable federal, state, and/or local laws or regulations that prohibit discrimination against protected classes. That means policies should be applied in a
Continue Reading Employers, Consider These Legal Issues Before Mandating COVID-19 Vaccinations