John T. Donovan

J. Peter Greco (Partner-Orlando, FL) has been appointed by the president-elect of the Florida Bar to serve on the Aviation Law Committee, with his term commencing July 1, 2026. The Aviation Law Committee monitors and analyzes recent developments in aviation law, including legislative and regulatory matters, and keeps bar members informed of significant developments in the field. The committee also maintains liaisons with agencies and various local, state, and federal government authorities involved in aerospace matters, and reviews legislation, regulations, and related policy issues. A significant portion of Pete’s practice focuses on complex aviation litigation. Prior to his legal career, he worked in airfield operations at several commercial service airports, including Orlando (MCO), where he was responsible for safety, security, and regulatory compliance of one of the nation’s busiest airports. Pete is an instrument-rated private pilot and a graduate of Embry-Riddle Aeronautical University; his practical aviation background and industry experience make him a valuable addition to the Aviation Law Committee.

Philadelphia partners Dylan M. Marck and Salvatore A. Clemente secured a decision by the Third Circuit Court of Appeals affirming summary judgment by the U.S. District Court, Middle District of Pennsylvania, in favor of Wilson Elser’s client, a Canadian trucking broker. The case involved a collision that occurred when a tractor-trailer struck a vehicle that was disabled by a collision with a deer, ultimately resulting in the deaths of two minors. In addition to the firm’s broker client, the plaintiff also brought claims against a Canadian motor carrier and an American shipper. The plaintiff implemented an escalating settlement demand strategy under which a demand of $17.5 million automatically increased by $250,0000 per month, bringing the demand to $25.5 million at the time of the Third Circuit’s decision. Rather than relying on the tenuous Federal Aviation Administration Authorization Act preemption theory recently rejected by the U.S. Supreme Court in Montgomery v. Caribe Transport II, LLC et al., Dylan and Sal argued that the record contained no evidence supporting the plaintiff’s claims that our broker client functioned as a motor carrier, participated in a joint venture with the motor carrier and shipper, was vicariously liable for the acts of the actual motor carrier and driver, or that it negligently selected, hired, retained, and/or entrusted the motor carrier and driver. The plaintiff also filed competing partial motions for summary judgment. After extensive and protracted briefing, Chief Judge Matthew W. Brann granted partial summary judgment in favor of the broker, reserving decision on the remaining negligent entrustment claim pending resolution of Daubert motions. Following the Daubert briefing, Chief Judge Brann excluded a substantial majority of the plaintiff’s direct negligence expert’s opinions and, on February 1, 2024, entered full summary judgment in favor of Wilson Elser’s broker client. Following the plaintiff’s appeal to the Third Circuit, Senior Judge McKee authored the panel’s May 26, 2026, opinion, unanimously affirming the District Court’s grant of full summary judgment.

Nevada’s Supreme Court decided in Powers v. Dist. Ct. that NRS 629.620 violated Nevada’s separation of powers and is unconstitutional. This has immediate implications for clients defending traumatic brain injury cases in Nevada. The Decision The statute was sponsored by the local plaintiffs' bar and purported to regulate physical and mental examinations, replacing Nevada Rule of Civil Procedure 35(NRCP). This was a second attempt, as the Supreme Court also deemed an earlier statute, NRS 52.380, unconstitutional for the same reasons. Both statutes upset the balance in tort litigation, violated separation of powers, and negatively affected defendants' ability to defend themselves. Powers also addressed recurring questions concerning neuropsychological examinations. These examinations generate raw data. In practice, courts had ruled this raw data could be exchanged only between the parties’ neuropsychologists. Here, the plaintiff wanted his counsel to have access to the raw data generated from the examination but without the expense of hiring his own neuropsychologist. The Supreme Court concluded “the district court did not abuse its discretion by permitting disclosure of the raw data to Bueno’s counsel, subject to a protective order.” The Court concluded “the generalized fears of some neuropsychologists that nonpsychologists, if they are provided raw data, will violate protective orders, misuse the tests and irreparably compromise the validity of future testing, is not sufficient” to support further, narrower restrictions. Finally, Powers addressed the plaintiff’s request to audio record the examination. Applying NRCP 35, “generally, recording is only proper when the court finds special circumstances amounting to good cause for the requests.” These special circumstances “are rare and typically include extreme situations….” The plaintiff’s “generalized fear that the neuropsychologist might distort the test results in front of the jury” was not sufficient. Michael Lowry (Partner-Las Vegas) submitted an amicus brief for Las Vegas Defense Lawyers asserting that NRS 629.620 was unconstitutional. The brief also addressed problems with the district court’s order implementing neuropsychological testing requirements. Implications for Pending Cases First, NRS 629.620 is inapplicable to litigated cases. This restores balance and discretion to the district courts. Removing NRS 629.620 also helps defendants in brain injury cases because the statute made it nearly impossible to obtain a neuropsychological examination. These requests are instead governed by NRCP 35. The Court, however, ruled narrowly and did not address whether NRS 629.620 may be applicable in other scenarios, such as pre-litigation examinations, UM/UIM claims, worker’s compensation claims, and other settings. This may not be the end of this years-long dispute, though. Like after the Supreme Court’s Lyft v. Dist. Ct. decision, NRS 629.620’s supporters might return to the legislature in the coming session and attempt to modify the statute in some way to achieve their goals but not violate separation of powers. Secondarily, though, defendants may still have a difficult time finding neuropsychologists willing to perform examinations. As a result of years of research, the neuropsychological community restricts the raw data generated from testing. It can be provided only to other neuropsychologists for their review. Powers, however, ruled that a party cannot be forced to hire an expert, and the district court adequately addressed the community’s confidentiality concerns by entering a protective order. Powers did not discuss NAC 641.234(3) and (4), which have the effect of expressly prohibiting such disclosure. The result is conflict between the neuropsychologist’s regulatory obligations and the terms of a court’s order. It seems likely this conflict will generate more motion work and writ petitions in future cases.

John Donovan (Partner-Philadelphia, PA) and Joseph Gallo (Associate-Philadelphia, PA) obtained a favorable defense verdict in a product liability case following a six-day federal jury trial in the U.S. District Court, Middle District of Pennsylvania (Williamsport Division) on behalf of Wilson Elser’s client, a net and rope manufacturer. The plaintiffs, an assistant high school baseball coach and his wife, alleged that the coach permanently lost the use of his right eye and suffered psychological injuries after being struck by a batted ball during a baseball practice. The plaintiff claimed the L-screen batting net failed, allowing the ball to pass through it. John and Joe argued that the plaintiff knowingly used the net despite prior visible damage. While the jury found our client’s product defective under strict liability, it also assigned the plaintiff 40% comparative negligence on the negligence claims. The damages ultimately awarded to the plaintiff were just $242,634, an amount significantly less than prior offers made during negotiations and less than 10 percent of the plaintiff’s lowest demand during litigation. The damages award was also significantly less than the outstanding workers’ compensation lien and outstanding and future medical bills. The plaintiff’s counsel filed post-trial motions on a variety of issues, including the low damage award. However, by Order, the court denied all the post-trial motions and ordered a hearing on the plaintiff’s counsel’s use of citations generated by “AI” in his post-trial brief.

A prior analysis examined the Virginia legislature’s rejection of a sweeping proposal to overhaul the state’s medical malpractice damages cap. That proposal would have doubled the cap from $3 million to $6 million, allowed prejudgment interest, expanded the statute of limitations, and imposed new insurance requirements on nursing homes. Instead, the legislature passed a narrower, reconciled version of Senate Bill 536 that left the existing damages cap schedule under Virginia Code § 8.01-581.15 untouched but created a new reporting framework requiring commercial insurers and self-insured hospitals to disclose detailed malpractice claims data to legislative leaders. At the time of publication, the reconciled bill had been sent to Governor Spanberger, who had until April 13 to sign, veto, or propose amendments.  Rather than sign or veto the reconciled bill, Governor Spanberger returned it to the legislature on April 12, 2026, with a set of proposed amendments that reshaped several key aspects of the reporting framework. On April 22, the amended reconciled bill was enacted, with an effective date of July 1, 2026. Bottom Line for Virginia Healthcare Entities The medical malpractice damages cap remains unchanged, but a new reporting law takes effect on July 1, 2026, with an initial disclosure deadline of October 1, 2026. The governor’s amendments broadened who must report, redirected all disclosures through the Bureau of Insurance (the “Bureau”), strengthened confidentiality protections, and eliminated the most sensitive reporting metric. However, it also expanded the scope of the law beyond hospitals to reach a wider range of healthcare entities.  Key Changes Under the Enacted Law Expanded Scope of Reporting Entities Unlike the original bill that applied to only hospitals or health systems licensed under Virginia Code § 32.1-123 that self insure or maintain retained-risk arrangements, the enacted law applies to every “medical care facility, as defined in § 32.1-3, or other health care provider” that maintains self insurance, captive insurance, risk retention arrangements, or other retained financial risk. As a result, Virginia healthcare entities that did not consider themselves subject to the original bill should assess whether they now fall within the enacted law’s broader reach. Elimination of the Revenue-Percentage Metric The original bill required self-insured hospitals to disclose total malpractice liability expenditures expressed as a percentage of the hospital’s total patient service revenue. The enacted law eliminates this requirement, leaving three categories of disclosure: (1) the number of covered physicians and providers, (2) claims activity, and (3) malpractice expenditures. This is a meaningful change. The revenue-percentage metric would have provided a uniquely revealing window into each hospital’s financial exposure relative to its operations. Anti-Duplication Provision The enacted law adds a practical provision to prevent duplicative reporting: a healthcare provider is not required to report information that has already been included in a report submitted by the entity providing its self insurance, captive insurance, or risk retention coverage. In other words, if a hospital system’s captive insurer files the required disclosures, individual hospitals covered by that program need not file separate, duplicative reports. Hospitals should confirm with their insurers or risk retention groups whether coverage-level reporting will satisfy their individual obligations. New Insurer Disclosure Requirement For commercial insurers, the enacted law adds a requirement not found in the original bill: insurers must now disclose the identity of the named insureds under their medical malpractice policies. Hospitals insured by commercial carriers should be aware that their identity as a named insured will be part of the insurer’s disclosure to the Bureau. Centralization Through the Bureau of Insurance Perhaps the most structurally significant change involves where disclosures are submitted and how they are processed. The original bill directed all reporting to the chairs and ranking minority members of the House and Senate Committees for Courts of Justice, with the Clerks of each chamber making the information publicly available on the General Assembly’s website. The enacted law redirects this entire process through the State Corporation Commission’s Bureau. Disclosures must now be submitted to the Bureau in a uniform format that it prescribes that is consistent with the format of claim-reporting requirements already established under Virginia Code § 38.2-2228.2. The Bureau is responsible for compiling and analyzing the data, preparing an aggregate summary report, and submitting that report to the legislative committee leaders. Importantly, the Bureau’s aggregate report (not the raw disclosures) is what will be made publicly available on the General Assembly’s website. This is a significant structural improvement and reduces the risk of raw data being taken out of context or used selectively in public debate. Comparison by Size, Region, and Facility Type The enacted law directs the Bureau to present data, to the extent practicable, “in a manner that allows comparison among healthcare providers by size, region, or type of facility,” using anonymized or de-identified formats. While the law prohibits identifying any individual provider, hospitals should be aware that comparisons by size, region, or facility type could narrow the field enough to make identification possible as a practical matter. This provision warrants careful attention when preparing disclosures. Strengthened Confidentiality Protections The original bill stated broadly that disclosures would be confidential and exempt from the Virginia Freedom of Information Act except in aggregate form. The enacted law replaces this with a more detailed and protective mechanism. Reporting entities may designate specific data as confidential proprietary information upon submission, provided they: (i) invoke the exclusion in writing, (ii) identify the protected material, and (iii) state the reason protection is necessary. Information properly designated as confidential will be protected from subpoena responses and public inspection. Officer Certification Requirement Disclosures must be “certified as accurate and complete by an officer of the reporting entity.” This places personal responsibility on a hospital officer for the accuracy of the filing.  Extended Initial Deadline The original bill set the first disclosure deadline as September 1, 2026. The enacted law extends this to October 1, 2026. Subsequent annual disclosures remain due on or before March 31 of each year for the preceding calendar year. Verdicts Exceeding the Cap Both the original and enacted versions require all reporting entities to submit a list of verdicts exceeding the statutory cap. Each entry must include the verdict amount, the amount recoverable after application of the cap, and the year the cause of action accrued. No personally-identifiable information may be disclosed. This provision is clearly designed to build a public record demonstrating the gap between what juries award and what plaintiffs can recover. Automatic Sunset Both versions contain the same expiration mechanism: the reporting requirements expire upon the effective date of any future legislation establishing a new limitation on recovery for medical malpractice actions. This confirms the legislative intent that the reporting framework is a temporary, data-gathering tool designed to inform future changes to the cap. Strategic Implications Virginia’s medical malpractice damages cap is intact but is under active review, and the data collected under this new law will fuel the next round of legislative efforts to increase it. With the October 1, 2026 initial deadline approaching, Virginia hospitals and healthcare entities should consider taking the following steps: 1) determine whether an institution falls within the enacted law’s expanded definition of “medical care facility” or “other healthcare provider;” 2) coordinate the production of the required materials with insurers or risk retention groups; 3) compile the necessary information for disclosure; 4) identify and designate confidential proprietary information; 5) designate a certifying officer; 6) monitor the Bureau’s prescribed format; and 7) prepare for future debates on raising the medical malpractice damages cap.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).

Kimberly Blair (Partner-Chicago, IL), Peter Catalanotti (Partner-San Francisco), Joseph Francoeur (Partner-New York, NY), and Alexandra Skarka (Associate-Philadelphia, PA) will present the Wilson Elser Forum webinar “Scope of Services: Cross-Disciplinary Perspectives for Claims Professionals” on June 8, 2026. The session provides a cross-disciplinary overview of how scope of services issues arise across design and construction, legal, brokerage, and real estate professions. Presenters will address how engagement agreements define and limit the scope of professional services, the risks of scope creep and undocumented service expansion, defenses available based on scope limitations, and evidentiary sources and trial strategies for scope disputes. Also covered are deposition tactics specific to scope of services claims, underwriting red flags and claims investigation best practices, third-party liability exposure when non-clients rely on an insured’s work product, and potential subrogation opportunities.

Richard W. Boone Jr. (Partner-New York, NY) will offer a practical roadmap for drafting coverage letters that clearly articulate the insurer's position, comply with regulatory requirements, preserve defenses, and withstand judicial scrutiny. Designed for both insurance professionals and coverage attorneys, Richard’s presentation will draw on real-world claims-handling experience and case law from multiple jurisdictions to address common pitfalls that lead to waiver, estoppel, and bad-faith exposure. Attendees will learn how to conduct a thorough coverage analysis, from insuring agreements through exclusions, conditions, and endorsements, and how to produce clear, persuasive, and defensible coverage correspondence that serves both the insurer's interests and the insured's right to a good-faith coverage determination.

Philadelphia, Pennsylvania, Senior Counsel Kathleen D. Wilkinson has been named to the 2026 Pennsylvania Super Lawyers® list in the Construction Litigation category. Kathleen was also named to this list in 2006 ‒ 2007, and again from 2009 through 2025. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. This prestigious recognition is published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. No more than 2.5 percent of the lawyers in the state are named to the Super Lawyers lists.

Denise Motta (Of Counsel-Louisville) will be a panelist at the 2026 AAA-ICDR Construction Conference in Marina Del Rey on June 4, 2026. She will join an expert panel of arbitrators/mediators and in-house counsel to discuss the implications of labor and supply chain issues increasingly impacting the construction industry. Denise and her fellow panelists will offer insights into navigating these claims and examine how early mediation, arbitration, and dispute review boards may help parties reach resolutions before disputes escalate.

Nevada’s Supreme Court decided in Powers v. Dist. Ct. that NRS 629.620 violated Nevada’s separation of powers and is unconstitutional. This has immediate implications for clients defending traumatic brain injury cases in Nevada. The Decision The statute was sponsored by the local plaintiffs' bar and purported to regulate physical and mental examinations, replacing Nevada Rule of Civil Procedure 35(NRCP). This was a second attempt, as the Supreme Court also deemed an earlier statute, NRS 52.380, unconstitutional for the same reasons. Both statutes upset the balance in tort litigation, violated separation of powers, and negatively affected defendants' ability to defend themselves. Powers also addressed recurring questions concerning neuropsychological examinations. These examinations generate raw data. In practice, courts had ruled this raw data could be exchanged only between the parties’ neuropsychologists. Here, the plaintiff wanted his counsel to have access to the raw data generated from the examination but without the expense of hiring his own neuropsychologist. The Supreme Court concluded “the district court did not abuse its discretion by permitting disclosure of the raw data to Bueno’s counsel, subject to a protective order.” The Court concluded “the generalized fears of some neuropsychologists that nonpsychologists, if they are provided raw data, will violate protective orders, misuse the tests and irreparably compromise the validity of future testing, is not sufficient” to support further, narrower restrictions. Finally, Powers addressed the plaintiff’s request to audio record the examination. Applying NRCP 35, “generally, recording is only proper when the court finds special circumstances amounting to good cause for the requests.” These special circumstances “are rare and typically include extreme situations….” The plaintiff’s “generalized fear that the neuropsychologist might distort the test results in front of the jury” was not sufficient. Michael Lowry (Partner-Las Vegas) submitted an amicus brief for Las Vegas Defense Lawyers asserting that NRS 629.620 was unconstitutional. The brief also addressed problems with the district court’s order implementing neuropsychological testing requirements. Implications for Pending Cases First, NRS 629.620 is inapplicable to litigated cases. This restores balance and discretion to the district courts. Removing NRS 629.620 also helps defendants in brain injury cases because the statute made it nearly impossible to obtain a neuropsychological examination. These requests are instead governed by NRCP 35. The Court, however, ruled narrowly and did not address whether NRS 629.620 may be applicable in other scenarios, such as pre-litigation examinations, UM/UIM claims, worker’s compensation claims, and other settings. This may not be the end of this years-long dispute, though. Like after the Supreme Court’s Lyft v. Dist. Ct. decision, NRS 629.620’s supporters might return to the legislature in the coming session and attempt to modify the statute in some way to achieve their goals but not violate separation of powers. Secondarily, though, defendants may still have a difficult time finding neuropsychologists willing to perform examinations. As a result of years of research, the neuropsychological community restricts the raw data generated from testing. It can be provided only to other neuropsychologists for their review. Powers, however, ruled that a party cannot be forced to hire an expert, and the district court adequately addressed the community’s confidentiality concerns by entering a protective order. Powers did not discuss NAC 641.234(3) and (4), which have the effect of expressly prohibiting such disclosure. The result is conflict between the neuropsychologist’s regulatory obligations and the terms of a court’s order. It seems likely this conflict will generate more motion work and writ petitions in future cases.

Philadelphia partners Dylan M. Marck and Salvatore A. Clemente secured a decision by the Third Circuit Court of Appeals affirming summary judgment by the U.S. District Court, Middle District of Pennsylvania, in favor of Wilson Elser’s client, a Canadian trucking broker. The case involved a collision that occurred when a tractor-trailer struck a vehicle that was disabled by a collision with a deer, ultimately resulting in the deaths of two minors. In addition to the firm’s broker client, the plaintiff also brought claims against a Canadian motor carrier and an American shipper. The plaintiff implemented an escalating settlement demand strategy under which a demand of $17.5 million automatically increased by $250,0000 per month, bringing the demand to $25.5 million at the time of the Third Circuit’s decision. Rather than relying on the tenuous Federal Aviation Administration Authorization Act preemption theory recently rejected by the U.S. Supreme Court in Montgomery v. Caribe Transport II, LLC et al., Dylan and Sal argued that the record contained no evidence supporting the plaintiff’s claims that our broker client functioned as a motor carrier, participated in a joint venture with the motor carrier and shipper, was vicariously liable for the acts of the actual motor carrier and driver, or that it negligently selected, hired, retained, and/or entrusted the motor carrier and driver. The plaintiff also filed competing partial motions for summary judgment. After extensive and protracted briefing, Chief Judge Matthew W. Brann granted partial summary judgment in favor of the broker, reserving decision on the remaining negligent entrustment claim pending resolution of Daubert motions. Following the Daubert briefing, Chief Judge Brann excluded a substantial majority of the plaintiff’s direct negligence expert’s opinions and, on February 1, 2024, entered full summary judgment in favor of Wilson Elser’s broker client. Following the plaintiff’s appeal to the Third Circuit, Senior Judge McKee authored the panel’s May 26, 2026, opinion, unanimously affirming the District Court’s grant of full summary judgment.

J. Peter Greco (Partner-Orlando, FL) has been appointed by the president-elect of the Florida Bar to serve on the Aviation Law Committee, with his term commencing July 1, 2026. The Aviation Law Committee monitors and analyzes recent developments in aviation law, including legislative and regulatory matters, and keeps bar members informed of significant developments in the field. The committee also maintains liaisons with agencies and various local, state, and federal government authorities involved in aerospace matters, and reviews legislation, regulations, and related policy issues. A significant portion of Pete’s practice focuses on complex aviation litigation. Prior to his legal career, he worked in airfield operations at several commercial service airports, including Orlando (MCO), where he was responsible for safety, security, and regulatory compliance of one of the nation’s busiest airports. Pete is an instrument-rated private pilot and a graduate of Embry-Riddle Aeronautical University; his practical aviation background and industry experience make him a valuable addition to the Aviation Law Committee.

John Donovan (Partner-Philadelphia, PA) and Joseph Gallo (Associate-Philadelphia, PA) obtained a favorable defense verdict in a product liability case following a six-day federal jury trial in the U.S. District Court, Middle District of Pennsylvania (Williamsport Division) on behalf of Wilson Elser’s client, a net and rope manufacturer. The plaintiffs, an assistant high school baseball coach and his wife, alleged that the coach permanently lost the use of his right eye and suffered psychological injuries after being struck by a batted ball during a baseball practice. The plaintiff claimed the L-screen batting net failed, allowing the ball to pass through it. John and Joe argued that the plaintiff knowingly used the net despite prior visible damage. While the jury found our client’s product defective under strict liability, it also assigned the plaintiff 40% comparative negligence on the negligence claims. The damages ultimately awarded to the plaintiff were just $242,634, an amount significantly less than prior offers made during negotiations and less than 10 percent of the plaintiff’s lowest demand during litigation. The damages award was also significantly less than the outstanding workers’ compensation lien and outstanding and future medical bills. The plaintiff’s counsel filed post-trial motions on a variety of issues, including the low damage award. However, by Order, the court denied all the post-trial motions and ordered a hearing on the plaintiff’s counsel’s use of citations generated by “AI” in his post-trial brief.

A prior analysis examined the Virginia legislature’s rejection of a sweeping proposal to overhaul the state’s medical malpractice damages cap. That proposal would have doubled the cap from $3 million to $6 million, allowed prejudgment interest, expanded the statute of limitations, and imposed new insurance requirements on nursing homes. Instead, the legislature passed a narrower, reconciled version of Senate Bill 536 that left the existing damages cap schedule under Virginia Code § 8.01-581.15 untouched but created a new reporting framework requiring commercial insurers and self-insured hospitals to disclose detailed malpractice claims data to legislative leaders. At the time of publication, the reconciled bill had been sent to Governor Spanberger, who had until April 13 to sign, veto, or propose amendments.  Rather than sign or veto the reconciled bill, Governor Spanberger returned it to the legislature on April 12, 2026, with a set of proposed amendments that reshaped several key aspects of the reporting framework. On April 22, the amended reconciled bill was enacted, with an effective date of July 1, 2026. Bottom Line for Virginia Healthcare Entities The medical malpractice damages cap remains unchanged, but a new reporting law takes effect on July 1, 2026, with an initial disclosure deadline of October 1, 2026. The governor’s amendments broadened who must report, redirected all disclosures through the Bureau of Insurance (the “Bureau”), strengthened confidentiality protections, and eliminated the most sensitive reporting metric. However, it also expanded the scope of the law beyond hospitals to reach a wider range of healthcare entities.  Key Changes Under the Enacted Law Expanded Scope of Reporting Entities Unlike the original bill that applied to only hospitals or health systems licensed under Virginia Code § 32.1-123 that self insure or maintain retained-risk arrangements, the enacted law applies to every “medical care facility, as defined in § 32.1-3, or other health care provider” that maintains self insurance, captive insurance, risk retention arrangements, or other retained financial risk. As a result, Virginia healthcare entities that did not consider themselves subject to the original bill should assess whether they now fall within the enacted law’s broader reach. Elimination of the Revenue-Percentage Metric The original bill required self-insured hospitals to disclose total malpractice liability expenditures expressed as a percentage of the hospital’s total patient service revenue. The enacted law eliminates this requirement, leaving three categories of disclosure: (1) the number of covered physicians and providers, (2) claims activity, and (3) malpractice expenditures. This is a meaningful change. The revenue-percentage metric would have provided a uniquely revealing window into each hospital’s financial exposure relative to its operations. Anti-Duplication Provision The enacted law adds a practical provision to prevent duplicative reporting: a healthcare provider is not required to report information that has already been included in a report submitted by the entity providing its self insurance, captive insurance, or risk retention coverage. In other words, if a hospital system’s captive insurer files the required disclosures, individual hospitals covered by that program need not file separate, duplicative reports. Hospitals should confirm with their insurers or risk retention groups whether coverage-level reporting will satisfy their individual obligations. New Insurer Disclosure Requirement For commercial insurers, the enacted law adds a requirement not found in the original bill: insurers must now disclose the identity of the named insureds under their medical malpractice policies. Hospitals insured by commercial carriers should be aware that their identity as a named insured will be part of the insurer’s disclosure to the Bureau. Centralization Through the Bureau of Insurance Perhaps the most structurally significant change involves where disclosures are submitted and how they are processed. The original bill directed all reporting to the chairs and ranking minority members of the House and Senate Committees for Courts of Justice, with the Clerks of each chamber making the information publicly available on the General Assembly’s website. The enacted law redirects this entire process through the State Corporation Commission’s Bureau. Disclosures must now be submitted to the Bureau in a uniform format that it prescribes that is consistent with the format of claim-reporting requirements already established under Virginia Code § 38.2-2228.2. The Bureau is responsible for compiling and analyzing the data, preparing an aggregate summary report, and submitting that report to the legislative committee leaders. Importantly, the Bureau’s aggregate report (not the raw disclosures) is what will be made publicly available on the General Assembly’s website. This is a significant structural improvement and reduces the risk of raw data being taken out of context or used selectively in public debate. Comparison by Size, Region, and Facility Type The enacted law directs the Bureau to present data, to the extent practicable, “in a manner that allows comparison among healthcare providers by size, region, or type of facility,” using anonymized or de-identified formats. While the law prohibits identifying any individual provider, hospitals should be aware that comparisons by size, region, or facility type could narrow the field enough to make identification possible as a practical matter. This provision warrants careful attention when preparing disclosures. Strengthened Confidentiality Protections The original bill stated broadly that disclosures would be confidential and exempt from the Virginia Freedom of Information Act except in aggregate form. The enacted law replaces this with a more detailed and protective mechanism. Reporting entities may designate specific data as confidential proprietary information upon submission, provided they: (i) invoke the exclusion in writing, (ii) identify the protected material, and (iii) state the reason protection is necessary. Information properly designated as confidential will be protected from subpoena responses and public inspection. Officer Certification Requirement Disclosures must be “certified as accurate and complete by an officer of the reporting entity.” This places personal responsibility on a hospital officer for the accuracy of the filing.  Extended Initial Deadline The original bill set the first disclosure deadline as September 1, 2026. The enacted law extends this to October 1, 2026. Subsequent annual disclosures remain due on or before March 31 of each year for the preceding calendar year. Verdicts Exceeding the Cap Both the original and enacted versions require all reporting entities to submit a list of verdicts exceeding the statutory cap. Each entry must include the verdict amount, the amount recoverable after application of the cap, and the year the cause of action accrued. No personally-identifiable information may be disclosed. This provision is clearly designed to build a public record demonstrating the gap between what juries award and what plaintiffs can recover. Automatic Sunset Both versions contain the same expiration mechanism: the reporting requirements expire upon the effective date of any future legislation establishing a new limitation on recovery for medical malpractice actions. This confirms the legislative intent that the reporting framework is a temporary, data-gathering tool designed to inform future changes to the cap. Strategic Implications Virginia’s medical malpractice damages cap is intact but is under active review, and the data collected under this new law will fuel the next round of legislative efforts to increase it. With the October 1, 2026 initial deadline approaching, Virginia hospitals and healthcare entities should consider taking the following steps: 1) determine whether an institution falls within the enacted law’s expanded definition of “medical care facility” or “other healthcare provider;” 2) coordinate the production of the required materials with insurers or risk retention groups; 3) compile the necessary information for disclosure; 4) identify and designate confidential proprietary information; 5) designate a certifying officer; 6) monitor the Bureau’s prescribed format; and 7) prepare for future debates on raising the medical malpractice damages cap.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).

Kimberly Blair (Partner-Chicago, IL), Peter Catalanotti (Partner-San Francisco), Joseph Francoeur (Partner-New York, NY), and Alexandra Skarka (Associate-Philadelphia, PA) will present the Wilson Elser Forum webinar “Scope of Services: Cross-Disciplinary Perspectives for Claims Professionals” on June 8, 2026. The session provides a cross-disciplinary overview of how scope of services issues arise across design and construction, legal, brokerage, and real estate professions. Presenters will address how engagement agreements define and limit the scope of professional services, the risks of scope creep and undocumented service expansion, defenses available based on scope limitations, and evidentiary sources and trial strategies for scope disputes. Also covered are deposition tactics specific to scope of services claims, underwriting red flags and claims investigation best practices, third-party liability exposure when non-clients rely on an insured’s work product, and potential subrogation opportunities.

Richard W. Boone Jr. (Partner-New York, NY) will offer a practical roadmap for drafting coverage letters that clearly articulate the insurer's position, comply with regulatory requirements, preserve defenses, and withstand judicial scrutiny. Designed for both insurance professionals and coverage attorneys, Richard’s presentation will draw on real-world claims-handling experience and case law from multiple jurisdictions to address common pitfalls that lead to waiver, estoppel, and bad-faith exposure. Attendees will learn how to conduct a thorough coverage analysis, from insuring agreements through exclusions, conditions, and endorsements, and how to produce clear, persuasive, and defensible coverage correspondence that serves both the insurer's interests and the insured's right to a good-faith coverage determination.

Philadelphia, Pennsylvania, Senior Counsel Kathleen D. Wilkinson has been named to the 2026 Pennsylvania Super Lawyers® list in the Construction Litigation category. Kathleen was also named to this list in 2006 ‒ 2007, and again from 2009 through 2025. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. This prestigious recognition is published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. No more than 2.5 percent of the lawyers in the state are named to the Super Lawyers lists.

Denise Motta (Of Counsel-Louisville) will be a panelist at the 2026 AAA-ICDR Construction Conference in Marina Del Rey on June 4, 2026. She will join an expert panel of arbitrators/mediators and in-house counsel to discuss the implications of labor and supply chain issues increasingly impacting the construction industry. Denise and her fellow panelists will offer insights into navigating these claims and examine how early mediation, arbitration, and dispute review boards may help parties reach resolutions before disputes escalate.

Nevada’s Supreme Court decided in Powers v. Dist. Ct. that NRS 629.620 violated Nevada’s separation of powers and is unconstitutional. This has immediate implications for clients defending traumatic brain injury cases in Nevada. The Decision The statute was sponsored by the local plaintiffs' bar and purported to regulate physical and mental examinations, replacing Nevada Rule of Civil Procedure 35(NRCP). This was a second attempt, as the Supreme Court also deemed an earlier statute, NRS 52.380, unconstitutional for the same reasons. Both statutes upset the balance in tort litigation, violated separation of powers, and negatively affected defendants' ability to defend themselves. Powers also addressed recurring questions concerning neuropsychological examinations. These examinations generate raw data. In practice, courts had ruled this raw data could be exchanged only between the parties’ neuropsychologists. Here, the plaintiff wanted his counsel to have access to the raw data generated from the examination but without the expense of hiring his own neuropsychologist. The Supreme Court concluded “the district court did not abuse its discretion by permitting disclosure of the raw data to Bueno’s counsel, subject to a protective order.” The Court concluded “the generalized fears of some neuropsychologists that nonpsychologists, if they are provided raw data, will violate protective orders, misuse the tests and irreparably compromise the validity of future testing, is not sufficient” to support further, narrower restrictions. Finally, Powers addressed the plaintiff’s request to audio record the examination. Applying NRCP 35, “generally, recording is only proper when the court finds special circumstances amounting to good cause for the requests.” These special circumstances “are rare and typically include extreme situations….” The plaintiff’s “generalized fear that the neuropsychologist might distort the test results in front of the jury” was not sufficient. Michael Lowry (Partner-Las Vegas) submitted an amicus brief for Las Vegas Defense Lawyers asserting that NRS 629.620 was unconstitutional. The brief also addressed problems with the district court’s order implementing neuropsychological testing requirements. Implications for Pending Cases First, NRS 629.620 is inapplicable to litigated cases. This restores balance and discretion to the district courts. Removing NRS 629.620 also helps defendants in brain injury cases because the statute made it nearly impossible to obtain a neuropsychological examination. These requests are instead governed by NRCP 35. The Court, however, ruled narrowly and did not address whether NRS 629.620 may be applicable in other scenarios, such as pre-litigation examinations, UM/UIM claims, worker’s compensation claims, and other settings. This may not be the end of this years-long dispute, though. Like after the Supreme Court’s Lyft v. Dist. Ct. decision, NRS 629.620’s supporters might return to the legislature in the coming session and attempt to modify the statute in some way to achieve their goals but not violate separation of powers. Secondarily, though, defendants may still have a difficult time finding neuropsychologists willing to perform examinations. As a result of years of research, the neuropsychological community restricts the raw data generated from testing. It can be provided only to other neuropsychologists for their review. Powers, however, ruled that a party cannot be forced to hire an expert, and the district court adequately addressed the community’s confidentiality concerns by entering a protective order. Powers did not discuss NAC 641.234(3) and (4), which have the effect of expressly prohibiting such disclosure. The result is conflict between the neuropsychologist’s regulatory obligations and the terms of a court’s order. It seems likely this conflict will generate more motion work and writ petitions in future cases.

Philadelphia partners Dylan M. Marck and Salvatore A. Clemente secured a decision by the Third Circuit Court of Appeals affirming summary judgment by the U.S. District Court, Middle District of Pennsylvania, in favor of Wilson Elser’s client, a Canadian trucking broker. The case involved a collision that occurred when a tractor-trailer struck a vehicle that was disabled by a collision with a deer, ultimately resulting in the deaths of two minors. In addition to the firm’s broker client, the plaintiff also brought claims against a Canadian motor carrier and an American shipper. The plaintiff implemented an escalating settlement demand strategy under which a demand of $17.5 million automatically increased by $250,0000 per month, bringing the demand to $25.5 million at the time of the Third Circuit’s decision. Rather than relying on the tenuous Federal Aviation Administration Authorization Act preemption theory recently rejected by the U.S. Supreme Court in Montgomery v. Caribe Transport II, LLC et al., Dylan and Sal argued that the record contained no evidence supporting the plaintiff’s claims that our broker client functioned as a motor carrier, participated in a joint venture with the motor carrier and shipper, was vicariously liable for the acts of the actual motor carrier and driver, or that it negligently selected, hired, retained, and/or entrusted the motor carrier and driver. The plaintiff also filed competing partial motions for summary judgment. After extensive and protracted briefing, Chief Judge Matthew W. Brann granted partial summary judgment in favor of the broker, reserving decision on the remaining negligent entrustment claim pending resolution of Daubert motions. Following the Daubert briefing, Chief Judge Brann excluded a substantial majority of the plaintiff’s direct negligence expert’s opinions and, on February 1, 2024, entered full summary judgment in favor of Wilson Elser’s broker client. Following the plaintiff’s appeal to the Third Circuit, Senior Judge McKee authored the panel’s May 26, 2026, opinion, unanimously affirming the District Court’s grant of full summary judgment.

J. Peter Greco (Partner-Orlando, FL) has been appointed by the president-elect of the Florida Bar to serve on the Aviation Law Committee, with his term commencing July 1, 2026. The Aviation Law Committee monitors and analyzes recent developments in aviation law, including legislative and regulatory matters, and keeps bar members informed of significant developments in the field. The committee also maintains liaisons with agencies and various local, state, and federal government authorities involved in aerospace matters, and reviews legislation, regulations, and related policy issues. A significant portion of Pete’s practice focuses on complex aviation litigation. Prior to his legal career, he worked in airfield operations at several commercial service airports, including Orlando (MCO), where he was responsible for safety, security, and regulatory compliance of one of the nation’s busiest airports. Pete is an instrument-rated private pilot and a graduate of Embry-Riddle Aeronautical University; his practical aviation background and industry experience make him a valuable addition to the Aviation Law Committee.

John Donovan (Partner-Philadelphia, PA) and Joseph Gallo (Associate-Philadelphia, PA) obtained a favorable defense verdict in a product liability case following a six-day federal jury trial in the U.S. District Court, Middle District of Pennsylvania (Williamsport Division) on behalf of Wilson Elser’s client, a net and rope manufacturer. The plaintiffs, an assistant high school baseball coach and his wife, alleged that the coach permanently lost the use of his right eye and suffered psychological injuries after being struck by a batted ball during a baseball practice. The plaintiff claimed the L-screen batting net failed, allowing the ball to pass through it. John and Joe argued that the plaintiff knowingly used the net despite prior visible damage. While the jury found our client’s product defective under strict liability, it also assigned the plaintiff 40% comparative negligence on the negligence claims. The damages ultimately awarded to the plaintiff were just $242,634, an amount significantly less than prior offers made during negotiations and less than 10 percent of the plaintiff’s lowest demand during litigation. The damages award was also significantly less than the outstanding workers’ compensation lien and outstanding and future medical bills. The plaintiff’s counsel filed post-trial motions on a variety of issues, including the low damage award. However, by Order, the court denied all the post-trial motions and ordered a hearing on the plaintiff’s counsel’s use of citations generated by “AI” in his post-trial brief.

A prior analysis examined the Virginia legislature’s rejection of a sweeping proposal to overhaul the state’s medical malpractice damages cap. That proposal would have doubled the cap from $3 million to $6 million, allowed prejudgment interest, expanded the statute of limitations, and imposed new insurance requirements on nursing homes. Instead, the legislature passed a narrower, reconciled version of Senate Bill 536 that left the existing damages cap schedule under Virginia Code § 8.01-581.15 untouched but created a new reporting framework requiring commercial insurers and self-insured hospitals to disclose detailed malpractice claims data to legislative leaders. At the time of publication, the reconciled bill had been sent to Governor Spanberger, who had until April 13 to sign, veto, or propose amendments.  Rather than sign or veto the reconciled bill, Governor Spanberger returned it to the legislature on April 12, 2026, with a set of proposed amendments that reshaped several key aspects of the reporting framework. On April 22, the amended reconciled bill was enacted, with an effective date of July 1, 2026. Bottom Line for Virginia Healthcare Entities The medical malpractice damages cap remains unchanged, but a new reporting law takes effect on July 1, 2026, with an initial disclosure deadline of October 1, 2026. The governor’s amendments broadened who must report, redirected all disclosures through the Bureau of Insurance (the “Bureau”), strengthened confidentiality protections, and eliminated the most sensitive reporting metric. However, it also expanded the scope of the law beyond hospitals to reach a wider range of healthcare entities.  Key Changes Under the Enacted Law Expanded Scope of Reporting Entities Unlike the original bill that applied to only hospitals or health systems licensed under Virginia Code § 32.1-123 that self insure or maintain retained-risk arrangements, the enacted law applies to every “medical care facility, as defined in § 32.1-3, or other health care provider” that maintains self insurance, captive insurance, risk retention arrangements, or other retained financial risk. As a result, Virginia healthcare entities that did not consider themselves subject to the original bill should assess whether they now fall within the enacted law’s broader reach. Elimination of the Revenue-Percentage Metric The original bill required self-insured hospitals to disclose total malpractice liability expenditures expressed as a percentage of the hospital’s total patient service revenue. The enacted law eliminates this requirement, leaving three categories of disclosure: (1) the number of covered physicians and providers, (2) claims activity, and (3) malpractice expenditures. This is a meaningful change. The revenue-percentage metric would have provided a uniquely revealing window into each hospital’s financial exposure relative to its operations. Anti-Duplication Provision The enacted law adds a practical provision to prevent duplicative reporting: a healthcare provider is not required to report information that has already been included in a report submitted by the entity providing its self insurance, captive insurance, or risk retention coverage. In other words, if a hospital system’s captive insurer files the required disclosures, individual hospitals covered by that program need not file separate, duplicative reports. Hospitals should confirm with their insurers or risk retention groups whether coverage-level reporting will satisfy their individual obligations. New Insurer Disclosure Requirement For commercial insurers, the enacted law adds a requirement not found in the original bill: insurers must now disclose the identity of the named insureds under their medical malpractice policies. Hospitals insured by commercial carriers should be aware that their identity as a named insured will be part of the insurer’s disclosure to the Bureau. Centralization Through the Bureau of Insurance Perhaps the most structurally significant change involves where disclosures are submitted and how they are processed. The original bill directed all reporting to the chairs and ranking minority members of the House and Senate Committees for Courts of Justice, with the Clerks of each chamber making the information publicly available on the General Assembly’s website. The enacted law redirects this entire process through the State Corporation Commission’s Bureau. Disclosures must now be submitted to the Bureau in a uniform format that it prescribes that is consistent with the format of claim-reporting requirements already established under Virginia Code § 38.2-2228.2. The Bureau is responsible for compiling and analyzing the data, preparing an aggregate summary report, and submitting that report to the legislative committee leaders. Importantly, the Bureau’s aggregate report (not the raw disclosures) is what will be made publicly available on the General Assembly’s website. This is a significant structural improvement and reduces the risk of raw data being taken out of context or used selectively in public debate. Comparison by Size, Region, and Facility Type The enacted law directs the Bureau to present data, to the extent practicable, “in a manner that allows comparison among healthcare providers by size, region, or type of facility,” using anonymized or de-identified formats. While the law prohibits identifying any individual provider, hospitals should be aware that comparisons by size, region, or facility type could narrow the field enough to make identification possible as a practical matter. This provision warrants careful attention when preparing disclosures. Strengthened Confidentiality Protections The original bill stated broadly that disclosures would be confidential and exempt from the Virginia Freedom of Information Act except in aggregate form. The enacted law replaces this with a more detailed and protective mechanism. Reporting entities may designate specific data as confidential proprietary information upon submission, provided they: (i) invoke the exclusion in writing, (ii) identify the protected material, and (iii) state the reason protection is necessary. Information properly designated as confidential will be protected from subpoena responses and public inspection. Officer Certification Requirement Disclosures must be “certified as accurate and complete by an officer of the reporting entity.” This places personal responsibility on a hospital officer for the accuracy of the filing.  Extended Initial Deadline The original bill set the first disclosure deadline as September 1, 2026. The enacted law extends this to October 1, 2026. Subsequent annual disclosures remain due on or before March 31 of each year for the preceding calendar year. Verdicts Exceeding the Cap Both the original and enacted versions require all reporting entities to submit a list of verdicts exceeding the statutory cap. Each entry must include the verdict amount, the amount recoverable after application of the cap, and the year the cause of action accrued. No personally-identifiable information may be disclosed. This provision is clearly designed to build a public record demonstrating the gap between what juries award and what plaintiffs can recover. Automatic Sunset Both versions contain the same expiration mechanism: the reporting requirements expire upon the effective date of any future legislation establishing a new limitation on recovery for medical malpractice actions. This confirms the legislative intent that the reporting framework is a temporary, data-gathering tool designed to inform future changes to the cap. Strategic Implications Virginia’s medical malpractice damages cap is intact but is under active review, and the data collected under this new law will fuel the next round of legislative efforts to increase it. With the October 1, 2026 initial deadline approaching, Virginia hospitals and healthcare entities should consider taking the following steps: 1) determine whether an institution falls within the enacted law’s expanded definition of “medical care facility” or “other healthcare provider;” 2) coordinate the production of the required materials with insurers or risk retention groups; 3) compile the necessary information for disclosure; 4) identify and designate confidential proprietary information; 5) designate a certifying officer; 6) monitor the Bureau’s prescribed format; and 7) prepare for future debates on raising the medical malpractice damages cap.

The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026. The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA. While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift. HUD’s New Guidance on Assistance Animals Under the FHA HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.1 The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services.  Open Issues for Housing Providers 1. Breed and Weight Restrictions The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely. 2. Private Rights of Action It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts. A. Section 504 of the Rehabilitation Act Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs. B. State and Local Law Conflicts The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position. Practical Implications The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case.  The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.2 In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis.  It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.3 In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.4 The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold. ________________________________________________________________________________________ 1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release]. 2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025). 3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024). 4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).