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Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.

Wilson Elser has compiled information on the state laws in all 50 states and the District of Columbia with respect to certain key issues that employers must or may need to address in terminating or reducing their workforce during the COVID-19 pandemic.

On August 26, 2017, Hurricane Harvey made its second landfall in Texas after having decimated Rockport and other areas of the south Texas coast. Over a three-day period, Harvey dumped a record-level rainfall on Houston, Beaumont and surrounding areas, equaling typical annual totals in some locations. According to conservative estimates, more than 203,000 homes were damaged by the storm, of which 12,700 were completely destroyed, and more than 70 percent of them were not covered by flood insurance. In the final analysis, storm-related damages from Harvey are expected to have a hefty price tag of about $190 billion, making it the costliest storm in U.S. history.

State notification requirements for insurers in the aftermath of catastrophic storms highlight the need for prompt detection of compromised electrical wiring and prompt reporting of such a condition to the insured. If sufficient notice is not given, coverage may remain in effect, leaving the insurer exposed to potentially huge losses from ensuing fires.

Nearly two weeks out from first landfall, Hurricane Harvey continues to punish communities along the Gulf Coast. This article offers a round-up of the important information you need now along with the storm-related insurance and legal issues that will guide carriers, businesses and other organizations through the uncertain days ahead. 

The Fifth Circuit affirmed in a recent case that ERISA plan administrators facing broad requests for production under ERISA section 104(b)(4) may limit their production to formal legal documents governing the plan. The Fifth Circuit’s conclusion is consistent with the majority rule followed by the First, Second, Fourth, Seventh, and Eight Circuits, all of which have defined “instrument” as a formal or legal document that establishes or governs a plan.

The Emmites alleged that exposures to asbestos at Union Carbide caused Mr. Emmite to develop asbestosis, which was a cause of his death. When Mr. Emmite died in 2005, it was before Chapter 90 took effect. When his family filed their wrongful death lawsuit in 2007, Chapter 90 was the law in Texas. The Texas Supreme Court majority held that the Emmites failed to comply with Chapter 90’s safety valve provisions, to the medical criteria requirements and rejected their argument that Chapter 90 as applied was unconstitutionally retroactive.

The Texas Supreme Court confirmed that the requirement to provide evidence of “approximate dose” applies in mesothelioma cases, not just asbestosis cases. Although the Texas Supreme Court expressly rejected the Court of Appeals statement that plaintiffs have the burden of proving that exposure to the defendant’s product was a “but for” cause of his mesothelioma, the Court held that proof of causation in multiple-source exposure cases still requires comparison of the causal role played by each source of exposure.

Foreseeability alone may not be sufficient to trigger a duty to warn, especially in cases involving manufacturers and suppliers of asbestos-containing products. Now, courts will need to consider the feasibility and burden of providing warnings to household members.

On May 14, the U.S. District Court for the District of Columbia rejected the plaintiff’s attempt to reconfigure experts’ substantial factor testimony to satisfy the sufficiency standard for causation recently adopted by the Virginia Supreme Court in Ford Motor Co. v. Boomer.  

June 8, 2012, the Texas Supreme Court formally adopted the learned intermediary doctrine and reaffirmed the principle that a physician (the “learned intermediary”) is in the best position to evaluate a treatment and weigh the potential risks and benefits of a drug.

The January 20, 2012, opinion issued by the U.S. District Court, Southern District of Texas enforces the recent trend by Texas courts to support the right of insurance carriers to select defense counsel and control the defense of the case, absent the existence of a “disqualifying conflict,” which must be based on more than the simple issuance of a reservation of rights.

The Texas Court of Appeals held that the statutory medical requirements for asbestos claims enacted by the 2005 Texas Legislature (Chapter 90) cannot be constitutionally applied to a claim that existed but was not filed before the statute took effect.

In a case governed by Texas law, the judge presiding over the federal asbestos multidistrict litigation ("MDL") recently granted a motion by Wilson Elser to dismiss 85 claims against two of the firm's clients. The plaintiffs had failed to comply with Chapter 90 of the Texas Civil Practice & Remedies Code, which requires asbestos claimants to file medical reports establishing that they satisfy criteria for impairment and causation. The court held, contrary to the plaintiffs' argument, that these criteria constitute a substantive legal rule that must be applied in a federal action governed by Texas law. This ruling carries significance beyond Chapter 90 and the federal asbestos MDL. For example, it will be useful in urging the federal MDL Court to apply similar criteria enacted by other states.

After the frenzy of the holiday season, January is the perfect time to reassess employment policies.  This includes making modifications to comply with changes in the laws and implementing any updates appropriate for the ever-changing needs of the workplace.