Gershom K. Koomson Jr.

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.

Joshua Cash (Partner-New York, NY) and Antony Lembersky (Of Counsel-New York, NY) secured a unanimous defense verdict in Queens County Supreme Court in a liability matter involving a patron who allegedly tripped, but did not fall, at their casino client’s facility – the first in New York City with live table games. The plaintiff, a 43-year-old male casino regular, alleged that while he was exiting the casino, he tripped over a raised metal floor saddle serving as the transition between the casino floor’s indoor carpeting and the cement MTA Skybridge leading to the A-Train. He alleged that because his right big toe struck the metal, his open-toed sandal, or slide, violently ripped open. Fortunately for the casino, the incident was captured on surveillance video and was played for the jury multiple times. Even the plaintiff’s counsel acknowledged, in both his opening and closing remarks to the jury, that after seeing the video, you may ask yourself, “That’s it?” Joshua and Antony emphasized that the plaintiff merely stubbed his toe, and that the jury should focus on the credible evidence and the more likely scenario: his slide ripped first, causing his right toe to fall out and hit the metal floor saddle. They used approximately 35 minutes of video recorded before the incident to show the jury that as many as 167 people walked over the same metal floor saddle where the plaintiff stubbed his toe without issue. The 11-minute video filmed post-incident also showed dozens of additional patrons traversing the area, many wearing similar open-toe sandals. In addition, the responding security officer testified on behalf of the casino that his inspection of the metal floor saddle immediately after the incident revealed no signs that it was raised or bent, and that it was flush with the surrounding floor. The jury deliberated for less than 20 minutes before unanimously deciding that the area where the plaintiff fell was reasonably safe. Although the matter never got to damages, the plaintiff underwent bunion surgery on his right toe/foot, which he claimed was traumatically induced, and formally demanded $495,000 to settle the case. Prior to jury selection, the plaintiff’s counsel reduced the demand to $80,000, but the client chose to have the Wilson Elser team make its case in the courtroom. 

Jonathan Meer (Partner-New York, NY) will present on the webinar panel “Ethics 101” on May 13, 2026, as part of the CLM Insurance 101 Series. Jonathan, who will be joined by insurer representatives, will address ethical issues facing insurers and coverage counsel throughout the lifespan of a claim. The session examines the ethical responsibilities of claims professionals and the standards that guide fair and compliant claim handling, the differences between legal obligations and ethical responsibilities, and issues related to conflicts of interest. Attendees will explore common ethical dilemmas, decision-making frameworks, and receive guidance on best practices for maintaining integrity throughout the claims process. This foundational discussion reinforces the importance of transparency, accountability, and professionalism in every stage of a claim.

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Otis Felder (Partner-Los Angeles, CA) has been selected by the State Bar of California to serve as a content validation panelist for the development and review of future California Bar Examination questions. This appointment reflects Otis’s extensive experience in legal education as an Adjunct Professor of Legal Writing at USC Gould School of Law, where his teaching and research focus on legal communication, pedagogy, and innovation, including the integration of AI-supported formative feedback in legal writing instruction and its impact on clarity, equity, and student learning outcomes. In this role with the bar, Otis will collaborate with assessment specialists and psychometricians to evaluate drafted multiple-choice and essay questions. The panel’s work ensures that examination content meets rigorous standards, including testing for minimum competence to practice law, maintaining clarity and cohesion, and eliminating bias. Panelists also assess whether essay prompts provide sufficient factual detail and appropriately target intended legal issues. Otis brings a distinctive combination of academic and regulatory leadership to the position. He previously served as both Commissioner and Commission Chair for the State Bar, where he played a key role in developing the certification examination for maritime law specialists. His work contributed to advancing professional standards and specialized competency within the legal field. Content validation panelists conduct independent review and collaborative sessions with others, assisting in the State Bar’s broader evaluation of the future structure of the California Bar Examination. Otis’ appointment underscores an ongoing commitment to ensuring that bar examination materials are not only psychometrically sound but also reflective of contemporary legal practice and pedagogy.

The New York Avoiding Vexatious Overuse of Impleading to Delay (AVOID) Act became effective on April 18, 2026, establishing new deadlines for third-party complaints. Under this Act, a third-party plaintiff must file their complaint within 90 days of serving the initial answer pursuant to CPLR § 1007(b).1 Any third-party complaint against a plaintiff’s employer, however, must be filed within 90 days of the later of (1) discovering the employer’s identity; or (2) determining that the plaintiff sustained a “grave injury” as defined by Section 11 of the Workers’ Compensation Law. CPLR § 1007(e).2 The Act prohibits filing a third-party complaint after the note of issue unless upon good cause shown or in the interest of justice. CPLR § 1007(c).3 A third-party action filed in violation of this subdivision shall be severed or dismissed without prejudice. CPLR § 1007(d).4 Any severed actions that are initiated as new actions cannot then be consolidated. CPLR § 1007(f).5 Regarding retroactivity: an amendment clarifies that the Act applies to all cases commenced on or after the April 18, 2026 effective date.6 Be advised that as of April 16, 2026, the New York State website has not yet integrated this amendment into the statutory text.7 Lexis captures this update in the editor’s notes,8 and Westlaw includes it within the proposed legislation section.9 ____________________________________________________________________________________ 1 https://www.nysenate.gov/legislation/laws/CVP/1007  2 https://www.nysenate.gov/legislation/laws/CVP/1007  3 https://www.nysenate.gov/legislation/laws/CVP/1007  4 https://www.nysenate.gov/legislation/laws/CVP/1007  5 https://www.nysenate.gov/legislation/laws/CVP/1007  6 https://www.nysenate.gov/legislation/bills/2025/S8809  7 https://www.nysenate.gov/legislation/laws/CVP/1007  8 2026 N.Y. ALS 79 ; 2026 N.Y. Laws 79 ; 2026 N.Y. Ch. 79 ; 2026 N.Y. SB 8809 9 https://1.next.westlaw.com/Document/NFE11DA10E4E211F0AA39CB673CF36EC6/View/FullText.html?navigationPath=Search/v1/results/navigation/i0a93b86c0000019d9c1ba0e5c3a0e723?ppcid=44f5a950322a4255ae42b3e5a5e57b22&Nav=MULTIPLECITATIONS&fragmentIdentifier=NFE11DA10E4E211F0AA39CB673CF36EC6&parentRank=0&startIndex=1&contextData=%28sc.Search%29&transitionType=UniqueDocItem&listSource=Search&listPageSource=781efccd7c647a1b5673e671cb33d842&list=MULTIPLECITATIONS&sessionScopeId=a4a94ca7e43970d7bb6b9036b5ab4e414796eb2f36e0a800dc47d1459a582deb&ppcid=44f5a950322a4255ae42b3e5a5e57b22&originationContext=NonUniqueFindSelected&transitionType=UniqueDocItem&contextData=(sc.Search)

Michael Lowry (Partner-Las Vegas) will present “But Why? Because That’s the Way It’s Always Been Done” at the 2026 Annual Meeting of Las Vegas Defense Lawyers (LVDL), to be held on May 8, 2026, at M Resort in Henderson, Nevada. Michael, the current president of LVDL, will discuss routine civil defense arguments and tactics that should be reconsidered and revised to create better defenses. The thrust of his session is to prompt defense attorneys to analyze all aspects of their defense strategies and strongly consider does “this is how it’s always been done” mean it’s the best approach?

Hillary Arrow Booth (Partner- Los Angeles, CA) was recently honored with the Transportation Lawyers Association’s Lifetime Achievement Award, presented on behalf of the Association by transportation attorney Kathleen C. Jeffries at the closing banquet of the Association’s Annual Conference on May 1, 2026. The award recognizes members for their longstanding dedication and service to the Association and the legal profession. Following her service on the officer ladder and as President during the 2018 – 2019 term, Hillary established the Association’s New and Young Lawyers Committee and later founded its DEI Committee, which she currently chairs. Hillary is also a past recipient of the Association’s Distinguished Service Award and continues to serve on the Executive Committee as a Voting Past President.   

Angela Sekerka (Of Counsel-Chicago/New York, NY) and Jonathan Meer (Partner-New York, NY) secured dismissal of a claim alleging national origin discrimination in housing before the U.S. Department of Housing and Urban Development (HUD). In this matter, HUD found no probable cause that national origin was considered in the respondents’ handling of the claimant’s maintenance requests or his concerns regarding unauthorized vehicles in his assigned parking space. HUD noted that even if the comment “go back to your country” was made, this single isolated comment did not rise to the level of harassment or discriminatory intent in connection with the respondents’ processing of the claimant’s maintenance requests. HUD also noted that additional maintenance requests could not be completed because the complainant refused to grant access to his unit. With respect to the parking issue, HUD found insufficient evidence of discriminatory motive based on national origin, observing that the respondents attempted to locate the vehicle owner parked in the complainant’s spot and, when unsuccessful, offered the claimant’s monetary compensation for the inconvenience.

Richard Boone (Partner-New York, NY), and Daniel Tranen (Partner-St. Louis, MO) will present the Wilson Elser Forum webinar “Generative AI and the Future of Coverage Litigation” on May 12, 2026. This presentation explores how the rapid rise of generative AI is creating new and complex challenges for the insurance industry, both as a source of novel claims and as a powerful tool insurers are increasingly adopting in their claims-handling processes, and what that means for the future of coverage litigation. The session examines real-world AI-related lawsuits, from claims accusing companies of overstating their AI capabilities to those alleging discrimination tied to automated hiring tools, and considers how existing policies may or may not address them. The presenters explore the growing trend of AI-specific coverage and policy exclusions, offering practical steps insurers can take to proactively prepare for discovery challenges related to their AI use, as well as guidance for policyholders, brokers, underwriters, and claims professionals seeking to identify and close gaps in coverage. Whether you work in insurance, practice law, or simply want to understand how AI is reshaping risk and liability on both sides of the coverage equation, this presentation offers a clear, accessible overview of the issues that matter most today.

Jonathan Meer (Partner-New York, NY) will present on the webinar panel “Ethics 101” on May 13, 2026, as part of the CLM Insurance 101 Series. Jonathan, who will be joined by insurer representatives, will address ethical issues facing insurers and coverage counsel throughout the lifespan of a claim. The session examines the ethical responsibilities of claims professionals and the standards that guide fair and compliant claim handling, the differences between legal obligations and ethical responsibilities, and issues related to conflicts of interest. Attendees will explore common ethical dilemmas, decision-making frameworks, and receive guidance on best practices for maintaining integrity throughout the claims process. This foundational discussion reinforces the importance of transparency, accountability, and professionalism in every stage of a claim.

Joshua Cash (Partner-New York, NY) and Antony Lembersky (Of Counsel-New York, NY) secured a unanimous defense verdict in Queens County Supreme Court in a liability matter involving a patron who allegedly tripped, but did not fall, at their casino client’s facility – the first in New York City with live table games. The plaintiff, a 43-year-old male casino regular, alleged that while he was exiting the casino, he tripped over a raised metal floor saddle serving as the transition between the casino floor’s indoor carpeting and the cement MTA Skybridge leading to the A-Train. He alleged that because his right big toe struck the metal, his open-toed sandal, or slide, violently ripped open. Fortunately for the casino, the incident was captured on surveillance video and was played for the jury multiple times. Even the plaintiff’s counsel acknowledged, in both his opening and closing remarks to the jury, that after seeing the video, you may ask yourself, “That’s it?” Joshua and Antony emphasized that the plaintiff merely stubbed his toe, and that the jury should focus on the credible evidence and the more likely scenario: his slide ripped first, causing his right toe to fall out and hit the metal floor saddle. They used approximately 35 minutes of video recorded before the incident to show the jury that as many as 167 people walked over the same metal floor saddle where the plaintiff stubbed his toe without issue. The 11-minute video filmed post-incident also showed dozens of additional patrons traversing the area, many wearing similar open-toe sandals. In addition, the responding security officer testified on behalf of the casino that his inspection of the metal floor saddle immediately after the incident revealed no signs that it was raised or bent, and that it was flush with the surrounding floor. The jury deliberated for less than 20 minutes before unanimously deciding that the area where the plaintiff fell was reasonably safe. Although the matter never got to damages, the plaintiff underwent bunion surgery on his right toe/foot, which he claimed was traumatically induced, and formally demanded $495,000 to settle the case. Prior to jury selection, the plaintiff’s counsel reduced the demand to $80,000, but the client chose to have the Wilson Elser team make its case in the courtroom. 

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Otis Felder (Partner-Los Angeles, CA) has been selected by the State Bar of California to serve as a content validation panelist for the development and review of future California Bar Examination questions. This appointment reflects Otis’s extensive experience in legal education as an Adjunct Professor of Legal Writing at USC Gould School of Law, where his teaching and research focus on legal communication, pedagogy, and innovation, including the integration of AI-supported formative feedback in legal writing instruction and its impact on clarity, equity, and student learning outcomes. In this role with the bar, Otis will collaborate with assessment specialists and psychometricians to evaluate drafted multiple-choice and essay questions. The panel’s work ensures that examination content meets rigorous standards, including testing for minimum competence to practice law, maintaining clarity and cohesion, and eliminating bias. Panelists also assess whether essay prompts provide sufficient factual detail and appropriately target intended legal issues. Otis brings a distinctive combination of academic and regulatory leadership to the position. He previously served as both Commissioner and Commission Chair for the State Bar, where he played a key role in developing the certification examination for maritime law specialists. His work contributed to advancing professional standards and specialized competency within the legal field. Content validation panelists conduct independent review and collaborative sessions with others, assisting in the State Bar’s broader evaluation of the future structure of the California Bar Examination. Otis’ appointment underscores an ongoing commitment to ensuring that bar examination materials are not only psychometrically sound but also reflective of contemporary legal practice and pedagogy.

The New York Avoiding Vexatious Overuse of Impleading to Delay (AVOID) Act became effective on April 18, 2026, establishing new deadlines for third-party complaints. Under this Act, a third-party plaintiff must file their complaint within 90 days of serving the initial answer pursuant to CPLR § 1007(b).1 Any third-party complaint against a plaintiff’s employer, however, must be filed within 90 days of the later of (1) discovering the employer’s identity; or (2) determining that the plaintiff sustained a “grave injury” as defined by Section 11 of the Workers’ Compensation Law. CPLR § 1007(e).2 The Act prohibits filing a third-party complaint after the note of issue unless upon good cause shown or in the interest of justice. CPLR § 1007(c).3 A third-party action filed in violation of this subdivision shall be severed or dismissed without prejudice. CPLR § 1007(d).4 Any severed actions that are initiated as new actions cannot then be consolidated. CPLR § 1007(f).5 Regarding retroactivity: an amendment clarifies that the Act applies to all cases commenced on or after the April 18, 2026 effective date.6 Be advised that as of April 16, 2026, the New York State website has not yet integrated this amendment into the statutory text.7 Lexis captures this update in the editor’s notes,8 and Westlaw includes it within the proposed legislation section.9 ____________________________________________________________________________________ 1 https://www.nysenate.gov/legislation/laws/CVP/1007  2 https://www.nysenate.gov/legislation/laws/CVP/1007  3 https://www.nysenate.gov/legislation/laws/CVP/1007  4 https://www.nysenate.gov/legislation/laws/CVP/1007  5 https://www.nysenate.gov/legislation/laws/CVP/1007  6 https://www.nysenate.gov/legislation/bills/2025/S8809  7 https://www.nysenate.gov/legislation/laws/CVP/1007  8 2026 N.Y. ALS 79 ; 2026 N.Y. Laws 79 ; 2026 N.Y. Ch. 79 ; 2026 N.Y. SB 8809 9 https://1.next.westlaw.com/Document/NFE11DA10E4E211F0AA39CB673CF36EC6/View/FullText.html?navigationPath=Search/v1/results/navigation/i0a93b86c0000019d9c1ba0e5c3a0e723?ppcid=44f5a950322a4255ae42b3e5a5e57b22&Nav=MULTIPLECITATIONS&fragmentIdentifier=NFE11DA10E4E211F0AA39CB673CF36EC6&parentRank=0&startIndex=1&contextData=%28sc.Search%29&transitionType=UniqueDocItem&listSource=Search&listPageSource=781efccd7c647a1b5673e671cb33d842&list=MULTIPLECITATIONS&sessionScopeId=a4a94ca7e43970d7bb6b9036b5ab4e414796eb2f36e0a800dc47d1459a582deb&ppcid=44f5a950322a4255ae42b3e5a5e57b22&originationContext=NonUniqueFindSelected&transitionType=UniqueDocItem&contextData=(sc.Search)

Michael Lowry (Partner-Las Vegas) will present “But Why? Because That’s the Way It’s Always Been Done” at the 2026 Annual Meeting of Las Vegas Defense Lawyers (LVDL), to be held on May 8, 2026, at M Resort in Henderson, Nevada. Michael, the current president of LVDL, will discuss routine civil defense arguments and tactics that should be reconsidered and revised to create better defenses. The thrust of his session is to prompt defense attorneys to analyze all aspects of their defense strategies and strongly consider does “this is how it’s always been done” mean it’s the best approach?

Hillary Arrow Booth (Partner- Los Angeles, CA) was recently honored with the Transportation Lawyers Association’s Lifetime Achievement Award, presented on behalf of the Association by transportation attorney Kathleen C. Jeffries at the closing banquet of the Association’s Annual Conference on May 1, 2026. The award recognizes members for their longstanding dedication and service to the Association and the legal profession. Following her service on the officer ladder and as President during the 2018 – 2019 term, Hillary established the Association’s New and Young Lawyers Committee and later founded its DEI Committee, which she currently chairs. Hillary is also a past recipient of the Association’s Distinguished Service Award and continues to serve on the Executive Committee as a Voting Past President.   

Angela Sekerka (Of Counsel-Chicago/New York, NY) and Jonathan Meer (Partner-New York, NY) secured dismissal of a claim alleging national origin discrimination in housing before the U.S. Department of Housing and Urban Development (HUD). In this matter, HUD found no probable cause that national origin was considered in the respondents’ handling of the claimant’s maintenance requests or his concerns regarding unauthorized vehicles in his assigned parking space. HUD noted that even if the comment “go back to your country” was made, this single isolated comment did not rise to the level of harassment or discriminatory intent in connection with the respondents’ processing of the claimant’s maintenance requests. HUD also noted that additional maintenance requests could not be completed because the complainant refused to grant access to his unit. With respect to the parking issue, HUD found insufficient evidence of discriminatory motive based on national origin, observing that the respondents attempted to locate the vehicle owner parked in the complainant’s spot and, when unsuccessful, offered the claimant’s monetary compensation for the inconvenience.

Richard Boone (Partner-New York, NY), and Daniel Tranen (Partner-St. Louis, MO) will present the Wilson Elser Forum webinar “Generative AI and the Future of Coverage Litigation” on May 12, 2026. This presentation explores how the rapid rise of generative AI is creating new and complex challenges for the insurance industry, both as a source of novel claims and as a powerful tool insurers are increasingly adopting in their claims-handling processes, and what that means for the future of coverage litigation. The session examines real-world AI-related lawsuits, from claims accusing companies of overstating their AI capabilities to those alleging discrimination tied to automated hiring tools, and considers how existing policies may or may not address them. The presenters explore the growing trend of AI-specific coverage and policy exclusions, offering practical steps insurers can take to proactively prepare for discovery challenges related to their AI use, as well as guidance for policyholders, brokers, underwriters, and claims professionals seeking to identify and close gaps in coverage. Whether you work in insurance, practice law, or simply want to understand how AI is reshaping risk and liability on both sides of the coverage equation, this presentation offers a clear, accessible overview of the issues that matter most today.

Jonathan Meer (Partner-New York, NY) will present on the webinar panel “Ethics 101” on May 13, 2026, as part of the CLM Insurance 101 Series. Jonathan, who will be joined by insurer representatives, will address ethical issues facing insurers and coverage counsel throughout the lifespan of a claim. The session examines the ethical responsibilities of claims professionals and the standards that guide fair and compliant claim handling, the differences between legal obligations and ethical responsibilities, and issues related to conflicts of interest. Attendees will explore common ethical dilemmas, decision-making frameworks, and receive guidance on best practices for maintaining integrity throughout the claims process. This foundational discussion reinforces the importance of transparency, accountability, and professionalism in every stage of a claim.

Joshua Cash (Partner-New York, NY) and Antony Lembersky (Of Counsel-New York, NY) secured a unanimous defense verdict in Queens County Supreme Court in a liability matter involving a patron who allegedly tripped, but did not fall, at their casino client’s facility – the first in New York City with live table games. The plaintiff, a 43-year-old male casino regular, alleged that while he was exiting the casino, he tripped over a raised metal floor saddle serving as the transition between the casino floor’s indoor carpeting and the cement MTA Skybridge leading to the A-Train. He alleged that because his right big toe struck the metal, his open-toed sandal, or slide, violently ripped open. Fortunately for the casino, the incident was captured on surveillance video and was played for the jury multiple times. Even the plaintiff’s counsel acknowledged, in both his opening and closing remarks to the jury, that after seeing the video, you may ask yourself, “That’s it?” Joshua and Antony emphasized that the plaintiff merely stubbed his toe, and that the jury should focus on the credible evidence and the more likely scenario: his slide ripped first, causing his right toe to fall out and hit the metal floor saddle. They used approximately 35 minutes of video recorded before the incident to show the jury that as many as 167 people walked over the same metal floor saddle where the plaintiff stubbed his toe without issue. The 11-minute video filmed post-incident also showed dozens of additional patrons traversing the area, many wearing similar open-toe sandals. In addition, the responding security officer testified on behalf of the casino that his inspection of the metal floor saddle immediately after the incident revealed no signs that it was raised or bent, and that it was flush with the surrounding floor. The jury deliberated for less than 20 minutes before unanimously deciding that the area where the plaintiff fell was reasonably safe. Although the matter never got to damages, the plaintiff underwent bunion surgery on his right toe/foot, which he claimed was traumatically induced, and formally demanded $495,000 to settle the case. Prior to jury selection, the plaintiff’s counsel reduced the demand to $80,000, but the client chose to have the Wilson Elser team make its case in the courtroom. 

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Otis Felder (Partner-Los Angeles, CA) has been selected by the State Bar of California to serve as a content validation panelist for the development and review of future California Bar Examination questions. This appointment reflects Otis’s extensive experience in legal education as an Adjunct Professor of Legal Writing at USC Gould School of Law, where his teaching and research focus on legal communication, pedagogy, and innovation, including the integration of AI-supported formative feedback in legal writing instruction and its impact on clarity, equity, and student learning outcomes. In this role with the bar, Otis will collaborate with assessment specialists and psychometricians to evaluate drafted multiple-choice and essay questions. The panel’s work ensures that examination content meets rigorous standards, including testing for minimum competence to practice law, maintaining clarity and cohesion, and eliminating bias. Panelists also assess whether essay prompts provide sufficient factual detail and appropriately target intended legal issues. Otis brings a distinctive combination of academic and regulatory leadership to the position. He previously served as both Commissioner and Commission Chair for the State Bar, where he played a key role in developing the certification examination for maritime law specialists. His work contributed to advancing professional standards and specialized competency within the legal field. Content validation panelists conduct independent review and collaborative sessions with others, assisting in the State Bar’s broader evaluation of the future structure of the California Bar Examination. Otis’ appointment underscores an ongoing commitment to ensuring that bar examination materials are not only psychometrically sound but also reflective of contemporary legal practice and pedagogy.

The New York Avoiding Vexatious Overuse of Impleading to Delay (AVOID) Act became effective on April 18, 2026, establishing new deadlines for third-party complaints. Under this Act, a third-party plaintiff must file their complaint within 90 days of serving the initial answer pursuant to CPLR § 1007(b).1 Any third-party complaint against a plaintiff’s employer, however, must be filed within 90 days of the later of (1) discovering the employer’s identity; or (2) determining that the plaintiff sustained a “grave injury” as defined by Section 11 of the Workers’ Compensation Law. CPLR § 1007(e).2 The Act prohibits filing a third-party complaint after the note of issue unless upon good cause shown or in the interest of justice. CPLR § 1007(c).3 A third-party action filed in violation of this subdivision shall be severed or dismissed without prejudice. CPLR § 1007(d).4 Any severed actions that are initiated as new actions cannot then be consolidated. CPLR § 1007(f).5 Regarding retroactivity: an amendment clarifies that the Act applies to all cases commenced on or after the April 18, 2026 effective date.6 Be advised that as of April 16, 2026, the New York State website has not yet integrated this amendment into the statutory text.7 Lexis captures this update in the editor’s notes,8 and Westlaw includes it within the proposed legislation section.9 ____________________________________________________________________________________ 1 https://www.nysenate.gov/legislation/laws/CVP/1007  2 https://www.nysenate.gov/legislation/laws/CVP/1007  3 https://www.nysenate.gov/legislation/laws/CVP/1007  4 https://www.nysenate.gov/legislation/laws/CVP/1007  5 https://www.nysenate.gov/legislation/laws/CVP/1007  6 https://www.nysenate.gov/legislation/bills/2025/S8809  7 https://www.nysenate.gov/legislation/laws/CVP/1007  8 2026 N.Y. ALS 79 ; 2026 N.Y. Laws 79 ; 2026 N.Y. Ch. 79 ; 2026 N.Y. SB 8809 9 https://1.next.westlaw.com/Document/NFE11DA10E4E211F0AA39CB673CF36EC6/View/FullText.html?navigationPath=Search/v1/results/navigation/i0a93b86c0000019d9c1ba0e5c3a0e723?ppcid=44f5a950322a4255ae42b3e5a5e57b22&Nav=MULTIPLECITATIONS&fragmentIdentifier=NFE11DA10E4E211F0AA39CB673CF36EC6&parentRank=0&startIndex=1&contextData=%28sc.Search%29&transitionType=UniqueDocItem&listSource=Search&listPageSource=781efccd7c647a1b5673e671cb33d842&list=MULTIPLECITATIONS&sessionScopeId=a4a94ca7e43970d7bb6b9036b5ab4e414796eb2f36e0a800dc47d1459a582deb&ppcid=44f5a950322a4255ae42b3e5a5e57b22&originationContext=NonUniqueFindSelected&transitionType=UniqueDocItem&contextData=(sc.Search)