Thomas C. O'Connor

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.

Kadeem Wolliaston (Associate-Albany, NY) and Lori Semlies (Partner-White Plains, NY) successfully collaborated in defending a wrongful death action against a nursing home involving claims for negligence, gross negligence, conscious pain and suffering, and alleged failures relating to staffing, resident care, dignity, comfort, and COVID-19 protocols. The estate claimed that the facility failed to properly care for a resident during his admission and that those alleged failures contributed to his death. Following discovery, the plaintiff voluntarily dismissed the action. The medical records reflected that the resident tested positive for COVID-19, was unvaccinated, and repeatedly declined available treatment, including monoclonal antibodies, antivirals, and transfer to the hospital. The records further showed that the resident wanted comfort care and was making his own treatment decisions. At deposition, the plaintiff confirmed that the resident was alert, oriented, and capable of making his own decisions. She also acknowledged that he had longstanding personal views regarding medical treatment, was unlikely to change his mind, and that no one would have been able to convince him to accept additional COVID-19 treatment. The deposition also revealed that the plaintiff had maintained handwritten notes during the resident’s admission. A further deposition was pursued to address those notes directly. That testimony confirmed that the notes did not document complaints regarding the facility’s care but instead contained general questions for staff regarding food intake, comfort care medication, and the resident’s condition. The notes also confirmed that the resident declined additional treatment and that this was consistent with his wishes. Importantly, the plaintiff ultimately testified that the lawsuit was not based on the facility’s handling of COVID-19. Rather, her concerns related to the resident’s surroundings, including cleanliness, hydration, and therapy delays. That admission, combined with the medical records and prior testimony, confirmed that there was no evidence that the resident’s death was caused by any failure to provide COVID-19 treatment or prevention measures. The plaintiff voluntarily dismissed the action rather than proceed toward summary judgment. The result reinforces an important lesson in litigation: favorable records are only part of the defense. The testimony must be developed in a way that confirms the record, narrows the issues, and prevents generalized allegations from surviving discovery. A well-prepared deposition can be the difference between defending a claim through motion practice and positioning the case for dismissal.

Bryce Adams (Partner-Portland, OR), Lisa Wilson (Partner-Dallas, TX), and Jane Young (Denver, CO) will present the Wilson Elser Forum webinar “Bad Faith Across the Badlands” on May 19, 2026. This presentation explores extra-contractual claims made in Colorado, Oregon, Texas, and Washington. The presenters focus their discussion on the current trends and potential pitfalls in these jurisdictions, including those that exist before the lawsuit is even filed. Also addressed are the standards for bad faith in these states, the exposure these claims create, and particularly dangerous types of damages unique to these jurisdictions.

BTI Consulting Group recently named Wilson Elser among the top firms for associate satisfaction in its “BTI Associate Satisfaction A-Listers 2026” report. Based on more than 5,000 associate responses, BTI recognized 189 law firms for fostering strong associate job satisfaction, with Wilson Elser ranking among the top 36 firms consistently recognized for creating a positive and supportive work environment. The report found that associates increasingly value factors beyond compensation, including meaningful training, mentorship, clear career development opportunities, strong job satisfaction, and active partner investment in associate success. BTI also highlighted the importance of targeted support for women associates and firms’ demonstrated commitment to long-term career growth. The recognition underscores Wilson Elser’s continued focus on cultivating a workplace where associates feel supported, engaged, and positioned for professional success in an increasingly demanding legal industry.

Tommy Spitaletto (Partner-Dallas, TX), and Siobhán Mueller (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “Navigating Related Claims in Directors and Officers (D&O) Insurance Policies” on May 21, 2026. This presentation provides a comprehensive overview of related claims and interrelated wrongful acts provisions in Directors and Officers (D&O) policies. The presenters will explain how these provisions operate to aggregate multiple claims, such as multiple lawsuits, into a single claim, often deemed first made at the earliest date among them. The session explores how courts interpret “relatedness,” and how those interpretations can affect how multiple claims are grouped, which policy period applies, and the extent of coverage available to the insured. The presenters also address key variables, including the specific D&O policy language, the underlying facts that potentially relate the matters, and the governing jurisdiction’s interpretive approach. The session also examines recent case law on the litigation of these D&O provisions, the implications for coverage, and offers practical guidance and key takeaways to help insurers and underwriters navigate them.

Danielle Tauber (Partner-White Plains, NY) and Christin Brown (Partner-White Plains, NY) secured a summary judgment on liability on behalf of a building tenant & grocery store in the New York State Supreme Court, New York County, before the Honorable James Cylnes. Plaintiff asserted a personal injury action sounding in New York Labor Law 200, 240(1) and 241(6); he alleged that he sustained injuries when his section ladder malfunctioned, and he fell approximately 25 feet to the ground. Plaintiff alleged to have sustained injuries to the right shoulder, cervical and lumbar spine. Plaintiff underwent a right shoulder surgery and alleged a need for a future cervical fusion. Plaintiffs demanded $3 million dollars.   The team filed a motion for summary judgment, arguing that Plaintiff’s work on the date of the accident was routine maintenance, not construction work. In support of their argument, they established that this routine maintenance – cleaning of a water tower – did not require specialized tools or equipment, and there was no ongoing construction project at the location. Therefore, Plaintiff’s work is not a protected activity and does not constitute a repair under the statute. Further, the team argued that even if the statute applies, Plaintiff’s actions were the sole proximate cause of the alleged accident because the plaintiff was warned of the unsafe condition of using a section ladder. Further, Plaintiff was offered the use of an A-frame ladder. Finally, the defendants had no supervisory control over the work Plaintiff was performing.   In opposition, Plaintiff argued that the work he was engaged in required specialized equipment (a power washer); the work involved an elevation of approximately 20-25 feet; and the cooling tower was defective because it had no built-in ladder hooks or other means to secure a ladder.    After oral argument, the court agreed with defendants’ argument that Plaintiff was engaged in routine maintenance and, therefore, not entitled to the protections of New York Labor Law. The Court granted the defendants’ motion in its entirety and denied plaintiff’s partial motion for summary judgment under NY Labor Law 240(1). Further, the court found no evidence of any defective condition for the subject water cooler, which had never received any violations or citations from any state or local municipality.    This result eliminated our client from a high-exposure case with a special trial preference. This represents a significant victory considering NY Labor Law 240(1) presents strict liability exposure.

Q: Can a one-size-fits-all separation agreement expose a company to risk? A: Yes, using a uniform separation agreement may be efficient, but it can create legal exposure if not carefully tailored. Below are key considerations that will help employers ensure their separation agreements are legally compliant.  1. Individuals Aged 40-plus Trigger Additional Requirements If the impacted individual is 40 years or older, the Older Workers Benefit Protection Act of 1990 (“the OWBPA”), which amended the Age Discrimination in Employment Act of 1967, applies. The OWBPA requires that a waiver be “knowing and voluntary,” which requires, at a minimum:  Clear, written, plain language Geared to the individual’s level of understanding, accounting for their level of comprehension and education No technical jargon or long, complex sentences No misleading statements or misinformation Explicit reference to the Age Discrimination in Employment Act in connection with rights or claims being waived No waiver of future rights or claims Recommendation to consult with an attorney before executing the agreement At least 21 days to consider (or 45 days if a group layoff) 7-day revocation period after signing the agreement Additional consideration (e.g., something of value) beyond what the individual is already owed Tips: The 7-day revocation period cannot be shortened. The employer should pay consideration until after the revocation period expires. The individual may sign before the 21 or 45-day time period but only if voluntary and without inducement. Final compensation, business expenses the employer owes the individual, or accrued paid time off benefits legally owed to the individual do not count as consideration. 2. Group Layoffs Involving At Least One  Employee Aged 40-plus Require Additional Disclosures For company layoffs through “an exit incentive program” or “other termination layoff program” consisting of two or more employees (where at least one is 40-plus), the OWBPA imposes additional requirements: The review period increases to 45 days. Employers must provide detailed disclosures containing: the decisional unit; eligibility factors and selection criteria; job titles and ages of all individuals in the decisional unit selected for layoff; job titles and ages of all individuals in the decisional unit not selected for layoff. Tips: These disclosure requirements are in addition to the OWBPA requirements for a knowing and voluntary waiver in No. 1. The decisional unit is the class, unit, or group of employees from which the employer chose who was or was not selected for the program. Careful consideration should be given to the OWBPA notice to ensure compliance with the applicable federal law.  3. State and Local Laws Where Employees Work Varies State laws and local ordinances have varying protected classifications in addition to those protected by federal law (e.g., sex, pregnancy, age, race, color, national origin, ancestry, religion, disability, genetic information).  For example, the Illinois Human Rights Act affords protection to individuals based on their marital status, arrest record, unfavorable military discharge, family responsibilities, and reproductive health decisions. In Michigan, individuals are afforded protection based on their marital status, height, and weight. Indeed, many states, such as California, Colorado, New York, and North Dakota offer protection for lawful, off-duty conduct. Other states afford protection for off-duty cannabis use, off-duty tobacco use, and political activity/speech. Employers should ensure the waiver/release addresses all applicable protected classes, which may be accomplished by a general catchall statement such as “all other classes protected under applicable state or local laws.” Certain states have enacted legislation governing separation agreements. The Illinois Workplace Transparency Act (the IWTA) requires valid, bargained-for consideration in exchange for a confidentiality provision separate from consideration supporting a waiver/release of claims. Under the IWTA, an employer may not unilaterally include a statement that confidentiality is the employee’s preference or include confidentiality provisions related to “future or prospective concerted activity related to workplace conditions.” The IWTA also requires safeguards for confidentiality provisions, including written agreements, voluntary preferences, notice of the right to consult counsel, and 21-day review/7-day revocation periods. New York has enacted similar legislation. States, such as Illinois, California, Colorado, Washington, New York, Maine, and Oregon limit the use of confidentiality and non-disparagement provisions to prevent individuals from concealing unlawful employment practices.  Consideration may be given to naming state and local laws to be included in the release/waiver, in addition to the typical anti-discrimination laws, which can be implicated in an employment relationship. These may include biometric information privacy laws, data breach laws, fair debt and credit reporting acts, and leave laws. Several states (e.g., California, Colorado, Illinois) have enacted legislation restricting or regulating choice of law and forum selection provisions to ensure employees are protected by the laws of the state where they work and not required to travel to a forum where they have no connection to litigate a dispute. Washington state has enacted such protections in the context of adjudicating noncompetition covenants and nondisclosure or nondisparagement provisions. 4.  Restrictive Covenants Must Be Carefully Tailored An employer may desire to include more robust provisions, such as non-competition, nondisparagement, and confidentiality provisions (drafted in accordance with applicable state and federal law) based on the individual’s position or access to confidential information. Tip: In addition to state laws enacted to prevent overreaching confidentiality and non-disparagement provisions, the National Labor Relations Act (NLRA) also restricts these provisions insofar as they interfere with individuals' ability to engage in protected concerted activity. The NLRA’s protections in this regard apply to both unionized and non-unionized, non-supervisory employees and applicants.      5. Existing Agreements Can Affect the Separation Agreement  Prior agreements between the employee and the company may impact the separation agreement. Prior agreements may include an employment agreement, equity agreement, work-for-hire agreement, non-competition agreement, or arbitration agreement.   Tips: The “complete agreement” (or integration provision) of the separation agreement may need to address prior agreements, and if appropriate, confirm the prior agreements remain in effect. Ensure the agreements have consistent provisions (e.g., arbitration provisions, forum selection clauses, choice of law, etc.). Use the separation agreement to update or amend prior agreements that may contain unenforceable provisions. 6. The Circumstances of Separation Shape the Agreement A separation agreement for a current employee:  should clarify the employee’s last day worked include the requirement that the employee not sign the agreement until after the last day worked  should distinguish between the employee’s final compensation and accrued paid time off (if required to be paid by state law) versus the consideration, along with a statement confirming the employee will be paid the former even if the employee chooses not to sign the separation agreement If a separation agreement is negotiated after the individual engaged in protected activity or asserted a claim, the employer likely wants to address that in the agreement. 7. Severance Practices Should Remain Consistent Employers should refer to existing policies and practices in place regarding the amount of severance pay (or consideration) offered to impacted individuals. In the absence of such policies, employers should ensure that the amount of severance offered is tied to legitimate, non-discriminatory reasons, such as tenure, position, proximity in time of multiple layoffs/terminations, and perhaps even litigation risk. Tip: Payment of varying amounts of benefits, such as severance (e.g., consideration for a waiver agreement), may provide a basis for a discrimination claim when certain protected classes are paid more generously. This is true even when the employer is not legally required to provide severance.  8. Special Rules Apply for Union Employees Offering a separation agreement to a union member requires careful review of, inter alia, the governing collective bargaining agreement and the NLRA. Offering severance to a union member may first require negotiating with the union to avoid a claim of unfair labor practices. Also, the collective bargaining agreement may include agreed-upon selection for layoff, progressive discipline, conduct that constitutes a terminable offense, or formulas for determining severance. Of course, ensuring nondisparagement, confidentiality, and arbitration provisions do not run afoul of the NLRA are also imperative. It is always best practice to have legal counsel review separation agreements to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on implementing individual terminations or layoffs of any size. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.    

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.

Jacqueline Hattar (Partner-White Plains, NY) will co-host the Pace Women's Justice Center (PWJC) "Cocktails for a Cause" fundraiser on May 28, 2026, at the Barley Beach House in Rye, New York. The event supports the PWJC's commitment to increasing access to justice by providing free legal services to victims of domestic violence, sexual assault, and elder abuse. The funds raised will support the PWJC’s critical services for survivors of abuse. Jackie is a long-time PWJC Advisory Board member and a past recipient of the Center's “Making A Difference” award. She also serves on the Board of Visitors at the Elisabeth Haub School of Law at Pace University. The PWJC, housed at the Elisabeth Haub School of Law in White Plains, New York, is a self-funded, nonprofit legal center that falls under Pace University's 501(c)(3) status. The Center conducts or participates in more than 140 training and outreach events annually, providing free legal services to some 3,500 survivors of domestic violence, sexual assault, and elder abuse. Serving Westchester and Putnam Counties, the PWJC's mission is to pursue justice for victims and prevent abuse by offering quality legal services, fostering community partnerships, and promoting education and awareness. 

Wilson Elser trial attorneys from across the firm – from accomplished first chairs to emerging litigators – gathered in the firm’s New York City office on March 12 and 13 for the 2026 Wilson Elser Mock Trial Invitational. In this latest installment of the firm’s mock trial competitions, the Invitational brought together members of the firm’s National Trial Team (NTT), with cochairs Eugene Boulé and Mat Ross at the helm, to serve as judges and mentors. This year’s judges included Robin Gregory, Tim Sheehan, Michael Gallay, Tom Comer, Phil Quaranta, and Paul Karp. In recognition of the program’s value and impact, 62 participants – including the firm’s attorneys, paralegals, and professional staff – took part in the intensive courtroom simulation, which was designed to replicate the pace, pressure, and unpredictability of actual trial proceedings. Participants assumed a range of roles, serving as trial lawyers, witnesses, jurors, and observers.  Conducted live and in person, the Invitational challenged the 24 attorney finalists representing 18 offices from across the firm to think strategically, adapt in real time, and respond effectively to unexpected developments introduced throughout the trial exercises. From witness examinations and evidentiary disputes to shifting trial dynamics, participants were tested on the same skills demanded in high-stakes litigation nationwide. As with all Wilson Elser NTT training initiatives, attorneys benefited from direct feedback and insight from the firm’s seasoned trial lawyers, whose collective experience spans countless jury trials and appearances in state and federal courts. The Competition The Invitational opened with mock trials conducted simultaneously, with teams of plaintiff and defense counsel presenting their cases in a format designed to closely track real courtroom proceedings. Participants delivered opening statements, conducted direct and cross-examinations, presented closing arguments, and received mock jury verdicts following deliberations. After the trial sessions concluded, Boulé, Ross, and the program judges conferred to evaluate the performances and, along with attorney observers, provided participants with detailed feedback in the days that followed. The critiques reflected the realities of trial practice and were direct, thoughtful, and focused on helping attorneys sharpen their courtroom skills and strategic decision-making. Developed entirely in-house, the Mock Trial Invitational is structured specifically to meet the demands of Wilson Elser’s litigation practice and the firm’s longstanding commitment to trial excellence. The program provides attorneys with practical, experience-driven training in a setting that mirrors the challenges of active litigation while fostering mentorship and professional growth. The Invitational remains a central component of the firm’s broader trial training initiatives, which are designed to ensure that Wilson Elser attorneys are prepared to advocate effectively for clients in the courtroom.

Bryce Adams (Partner-Portland, OR), Lisa Wilson (Partner-Dallas, TX), and Jane Young (Denver, CO) will present the Wilson Elser Forum webinar “Bad Faith Across the Badlands” on May 19, 2026. This presentation explores extra-contractual claims made in Colorado, Oregon, Texas, and Washington. The presenters focus their discussion on the current trends and potential pitfalls in these jurisdictions, including those that exist before the lawsuit is even filed. Also addressed are the standards for bad faith in these states, the exposure these claims create, and particularly dangerous types of damages unique to these jurisdictions.

Kadeem Wolliaston (Associate-Albany, NY) and Lori Semlies (Partner-White Plains, NY) successfully collaborated in defending a wrongful death action against a nursing home involving claims for negligence, gross negligence, conscious pain and suffering, and alleged failures relating to staffing, resident care, dignity, comfort, and COVID-19 protocols. The estate claimed that the facility failed to properly care for a resident during his admission and that those alleged failures contributed to his death. Following discovery, the plaintiff voluntarily dismissed the action. The medical records reflected that the resident tested positive for COVID-19, was unvaccinated, and repeatedly declined available treatment, including monoclonal antibodies, antivirals, and transfer to the hospital. The records further showed that the resident wanted comfort care and was making his own treatment decisions. At deposition, the plaintiff confirmed that the resident was alert, oriented, and capable of making his own decisions. She also acknowledged that he had longstanding personal views regarding medical treatment, was unlikely to change his mind, and that no one would have been able to convince him to accept additional COVID-19 treatment. The deposition also revealed that the plaintiff had maintained handwritten notes during the resident’s admission. A further deposition was pursued to address those notes directly. That testimony confirmed that the notes did not document complaints regarding the facility’s care but instead contained general questions for staff regarding food intake, comfort care medication, and the resident’s condition. The notes also confirmed that the resident declined additional treatment and that this was consistent with his wishes. Importantly, the plaintiff ultimately testified that the lawsuit was not based on the facility’s handling of COVID-19. Rather, her concerns related to the resident’s surroundings, including cleanliness, hydration, and therapy delays. That admission, combined with the medical records and prior testimony, confirmed that there was no evidence that the resident’s death was caused by any failure to provide COVID-19 treatment or prevention measures. The plaintiff voluntarily dismissed the action rather than proceed toward summary judgment. The result reinforces an important lesson in litigation: favorable records are only part of the defense. The testimony must be developed in a way that confirms the record, narrows the issues, and prevents generalized allegations from surviving discovery. A well-prepared deposition can be the difference between defending a claim through motion practice and positioning the case for dismissal.

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.

BTI Consulting Group recently named Wilson Elser among the top firms for associate satisfaction in its “BTI Associate Satisfaction A-Listers 2026” report. Based on more than 5,000 associate responses, BTI recognized 189 law firms for fostering strong associate job satisfaction, with Wilson Elser ranking among the top 36 firms consistently recognized for creating a positive and supportive work environment. The report found that associates increasingly value factors beyond compensation, including meaningful training, mentorship, clear career development opportunities, strong job satisfaction, and active partner investment in associate success. BTI also highlighted the importance of targeted support for women associates and firms’ demonstrated commitment to long-term career growth. The recognition underscores Wilson Elser’s continued focus on cultivating a workplace where associates feel supported, engaged, and positioned for professional success in an increasingly demanding legal industry.

Tommy Spitaletto (Partner-Dallas, TX), and Siobhán Mueller (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “Navigating Related Claims in Directors and Officers (D&O) Insurance Policies” on May 21, 2026. This presentation provides a comprehensive overview of related claims and interrelated wrongful acts provisions in Directors and Officers (D&O) policies. The presenters will explain how these provisions operate to aggregate multiple claims, such as multiple lawsuits, into a single claim, often deemed first made at the earliest date among them. The session explores how courts interpret “relatedness,” and how those interpretations can affect how multiple claims are grouped, which policy period applies, and the extent of coverage available to the insured. The presenters also address key variables, including the specific D&O policy language, the underlying facts that potentially relate the matters, and the governing jurisdiction’s interpretive approach. The session also examines recent case law on the litigation of these D&O provisions, the implications for coverage, and offers practical guidance and key takeaways to help insurers and underwriters navigate them.

Danielle Tauber (Partner-White Plains, NY) and Christin Brown (Partner-White Plains, NY) secured a summary judgment on liability on behalf of a building tenant & grocery store in the New York State Supreme Court, New York County, before the Honorable James Cylnes. Plaintiff asserted a personal injury action sounding in New York Labor Law 200, 240(1) and 241(6); he alleged that he sustained injuries when his section ladder malfunctioned, and he fell approximately 25 feet to the ground. Plaintiff alleged to have sustained injuries to the right shoulder, cervical and lumbar spine. Plaintiff underwent a right shoulder surgery and alleged a need for a future cervical fusion. Plaintiffs demanded $3 million dollars.   The team filed a motion for summary judgment, arguing that Plaintiff’s work on the date of the accident was routine maintenance, not construction work. In support of their argument, they established that this routine maintenance – cleaning of a water tower – did not require specialized tools or equipment, and there was no ongoing construction project at the location. Therefore, Plaintiff’s work is not a protected activity and does not constitute a repair under the statute. Further, the team argued that even if the statute applies, Plaintiff’s actions were the sole proximate cause of the alleged accident because the plaintiff was warned of the unsafe condition of using a section ladder. Further, Plaintiff was offered the use of an A-frame ladder. Finally, the defendants had no supervisory control over the work Plaintiff was performing.   In opposition, Plaintiff argued that the work he was engaged in required specialized equipment (a power washer); the work involved an elevation of approximately 20-25 feet; and the cooling tower was defective because it had no built-in ladder hooks or other means to secure a ladder.    After oral argument, the court agreed with defendants’ argument that Plaintiff was engaged in routine maintenance and, therefore, not entitled to the protections of New York Labor Law. The Court granted the defendants’ motion in its entirety and denied plaintiff’s partial motion for summary judgment under NY Labor Law 240(1). Further, the court found no evidence of any defective condition for the subject water cooler, which had never received any violations or citations from any state or local municipality.    This result eliminated our client from a high-exposure case with a special trial preference. This represents a significant victory considering NY Labor Law 240(1) presents strict liability exposure.

Q: Can a one-size-fits-all separation agreement expose a company to risk? A: Yes, using a uniform separation agreement may be efficient, but it can create legal exposure if not carefully tailored. Below are key considerations that will help employers ensure their separation agreements are legally compliant.  1. Individuals Aged 40-plus Trigger Additional Requirements If the impacted individual is 40 years or older, the Older Workers Benefit Protection Act of 1990 (“the OWBPA”), which amended the Age Discrimination in Employment Act of 1967, applies. The OWBPA requires that a waiver be “knowing and voluntary,” which requires, at a minimum:  Clear, written, plain language Geared to the individual’s level of understanding, accounting for their level of comprehension and education No technical jargon or long, complex sentences No misleading statements or misinformation Explicit reference to the Age Discrimination in Employment Act in connection with rights or claims being waived No waiver of future rights or claims Recommendation to consult with an attorney before executing the agreement At least 21 days to consider (or 45 days if a group layoff) 7-day revocation period after signing the agreement Additional consideration (e.g., something of value) beyond what the individual is already owed Tips: The 7-day revocation period cannot be shortened. The employer should pay consideration until after the revocation period expires. The individual may sign before the 21 or 45-day time period but only if voluntary and without inducement. Final compensation, business expenses the employer owes the individual, or accrued paid time off benefits legally owed to the individual do not count as consideration. 2. Group Layoffs Involving At Least One  Employee Aged 40-plus Require Additional Disclosures For company layoffs through “an exit incentive program” or “other termination layoff program” consisting of two or more employees (where at least one is 40-plus), the OWBPA imposes additional requirements: The review period increases to 45 days. Employers must provide detailed disclosures containing: the decisional unit; eligibility factors and selection criteria; job titles and ages of all individuals in the decisional unit selected for layoff; job titles and ages of all individuals in the decisional unit not selected for layoff. Tips: These disclosure requirements are in addition to the OWBPA requirements for a knowing and voluntary waiver in No. 1. The decisional unit is the class, unit, or group of employees from which the employer chose who was or was not selected for the program. Careful consideration should be given to the OWBPA notice to ensure compliance with the applicable federal law.  3. State and Local Laws Where Employees Work Varies State laws and local ordinances have varying protected classifications in addition to those protected by federal law (e.g., sex, pregnancy, age, race, color, national origin, ancestry, religion, disability, genetic information).  For example, the Illinois Human Rights Act affords protection to individuals based on their marital status, arrest record, unfavorable military discharge, family responsibilities, and reproductive health decisions. In Michigan, individuals are afforded protection based on their marital status, height, and weight. Indeed, many states, such as California, Colorado, New York, and North Dakota offer protection for lawful, off-duty conduct. Other states afford protection for off-duty cannabis use, off-duty tobacco use, and political activity/speech. Employers should ensure the waiver/release addresses all applicable protected classes, which may be accomplished by a general catchall statement such as “all other classes protected under applicable state or local laws.” Certain states have enacted legislation governing separation agreements. The Illinois Workplace Transparency Act (the IWTA) requires valid, bargained-for consideration in exchange for a confidentiality provision separate from consideration supporting a waiver/release of claims. Under the IWTA, an employer may not unilaterally include a statement that confidentiality is the employee’s preference or include confidentiality provisions related to “future or prospective concerted activity related to workplace conditions.” The IWTA also requires safeguards for confidentiality provisions, including written agreements, voluntary preferences, notice of the right to consult counsel, and 21-day review/7-day revocation periods. New York has enacted similar legislation. States, such as Illinois, California, Colorado, Washington, New York, Maine, and Oregon limit the use of confidentiality and non-disparagement provisions to prevent individuals from concealing unlawful employment practices.  Consideration may be given to naming state and local laws to be included in the release/waiver, in addition to the typical anti-discrimination laws, which can be implicated in an employment relationship. These may include biometric information privacy laws, data breach laws, fair debt and credit reporting acts, and leave laws. Several states (e.g., California, Colorado, Illinois) have enacted legislation restricting or regulating choice of law and forum selection provisions to ensure employees are protected by the laws of the state where they work and not required to travel to a forum where they have no connection to litigate a dispute. Washington state has enacted such protections in the context of adjudicating noncompetition covenants and nondisclosure or nondisparagement provisions. 4.  Restrictive Covenants Must Be Carefully Tailored An employer may desire to include more robust provisions, such as non-competition, nondisparagement, and confidentiality provisions (drafted in accordance with applicable state and federal law) based on the individual’s position or access to confidential information. Tip: In addition to state laws enacted to prevent overreaching confidentiality and non-disparagement provisions, the National Labor Relations Act (NLRA) also restricts these provisions insofar as they interfere with individuals' ability to engage in protected concerted activity. The NLRA’s protections in this regard apply to both unionized and non-unionized, non-supervisory employees and applicants.      5. Existing Agreements Can Affect the Separation Agreement  Prior agreements between the employee and the company may impact the separation agreement. Prior agreements may include an employment agreement, equity agreement, work-for-hire agreement, non-competition agreement, or arbitration agreement.   Tips: The “complete agreement” (or integration provision) of the separation agreement may need to address prior agreements, and if appropriate, confirm the prior agreements remain in effect. Ensure the agreements have consistent provisions (e.g., arbitration provisions, forum selection clauses, choice of law, etc.). Use the separation agreement to update or amend prior agreements that may contain unenforceable provisions. 6. The Circumstances of Separation Shape the Agreement A separation agreement for a current employee:  should clarify the employee’s last day worked include the requirement that the employee not sign the agreement until after the last day worked  should distinguish between the employee’s final compensation and accrued paid time off (if required to be paid by state law) versus the consideration, along with a statement confirming the employee will be paid the former even if the employee chooses not to sign the separation agreement If a separation agreement is negotiated after the individual engaged in protected activity or asserted a claim, the employer likely wants to address that in the agreement. 7. Severance Practices Should Remain Consistent Employers should refer to existing policies and practices in place regarding the amount of severance pay (or consideration) offered to impacted individuals. In the absence of such policies, employers should ensure that the amount of severance offered is tied to legitimate, non-discriminatory reasons, such as tenure, position, proximity in time of multiple layoffs/terminations, and perhaps even litigation risk. Tip: Payment of varying amounts of benefits, such as severance (e.g., consideration for a waiver agreement), may provide a basis for a discrimination claim when certain protected classes are paid more generously. This is true even when the employer is not legally required to provide severance.  8. Special Rules Apply for Union Employees Offering a separation agreement to a union member requires careful review of, inter alia, the governing collective bargaining agreement and the NLRA. Offering severance to a union member may first require negotiating with the union to avoid a claim of unfair labor practices. Also, the collective bargaining agreement may include agreed-upon selection for layoff, progressive discipline, conduct that constitutes a terminable offense, or formulas for determining severance. Of course, ensuring nondisparagement, confidentiality, and arbitration provisions do not run afoul of the NLRA are also imperative. It is always best practice to have legal counsel review separation agreements to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on implementing individual terminations or layoffs of any size. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.    

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.

Jacqueline Hattar (Partner-White Plains, NY) will co-host the Pace Women's Justice Center (PWJC) "Cocktails for a Cause" fundraiser on May 28, 2026, at the Barley Beach House in Rye, New York. The event supports the PWJC's commitment to increasing access to justice by providing free legal services to victims of domestic violence, sexual assault, and elder abuse. The funds raised will support the PWJC’s critical services for survivors of abuse. Jackie is a long-time PWJC Advisory Board member and a past recipient of the Center's “Making A Difference” award. She also serves on the Board of Visitors at the Elisabeth Haub School of Law at Pace University. The PWJC, housed at the Elisabeth Haub School of Law in White Plains, New York, is a self-funded, nonprofit legal center that falls under Pace University's 501(c)(3) status. The Center conducts or participates in more than 140 training and outreach events annually, providing free legal services to some 3,500 survivors of domestic violence, sexual assault, and elder abuse. Serving Westchester and Putnam Counties, the PWJC's mission is to pursue justice for victims and prevent abuse by offering quality legal services, fostering community partnerships, and promoting education and awareness. 

Wilson Elser trial attorneys from across the firm – from accomplished first chairs to emerging litigators – gathered in the firm’s New York City office on March 12 and 13 for the 2026 Wilson Elser Mock Trial Invitational. In this latest installment of the firm’s mock trial competitions, the Invitational brought together members of the firm’s National Trial Team (NTT), with cochairs Eugene Boulé and Mat Ross at the helm, to serve as judges and mentors. This year’s judges included Robin Gregory, Tim Sheehan, Michael Gallay, Tom Comer, Phil Quaranta, and Paul Karp. In recognition of the program’s value and impact, 62 participants – including the firm’s attorneys, paralegals, and professional staff – took part in the intensive courtroom simulation, which was designed to replicate the pace, pressure, and unpredictability of actual trial proceedings. Participants assumed a range of roles, serving as trial lawyers, witnesses, jurors, and observers.  Conducted live and in person, the Invitational challenged the 24 attorney finalists representing 18 offices from across the firm to think strategically, adapt in real time, and respond effectively to unexpected developments introduced throughout the trial exercises. From witness examinations and evidentiary disputes to shifting trial dynamics, participants were tested on the same skills demanded in high-stakes litigation nationwide. As with all Wilson Elser NTT training initiatives, attorneys benefited from direct feedback and insight from the firm’s seasoned trial lawyers, whose collective experience spans countless jury trials and appearances in state and federal courts. The Competition The Invitational opened with mock trials conducted simultaneously, with teams of plaintiff and defense counsel presenting their cases in a format designed to closely track real courtroom proceedings. Participants delivered opening statements, conducted direct and cross-examinations, presented closing arguments, and received mock jury verdicts following deliberations. After the trial sessions concluded, Boulé, Ross, and the program judges conferred to evaluate the performances and, along with attorney observers, provided participants with detailed feedback in the days that followed. The critiques reflected the realities of trial practice and were direct, thoughtful, and focused on helping attorneys sharpen their courtroom skills and strategic decision-making. Developed entirely in-house, the Mock Trial Invitational is structured specifically to meet the demands of Wilson Elser’s litigation practice and the firm’s longstanding commitment to trial excellence. The program provides attorneys with practical, experience-driven training in a setting that mirrors the challenges of active litigation while fostering mentorship and professional growth. The Invitational remains a central component of the firm’s broader trial training initiatives, which are designed to ensure that Wilson Elser attorneys are prepared to advocate effectively for clients in the courtroom.

Bryce Adams (Partner-Portland, OR), Lisa Wilson (Partner-Dallas, TX), and Jane Young (Denver, CO) will present the Wilson Elser Forum webinar “Bad Faith Across the Badlands” on May 19, 2026. This presentation explores extra-contractual claims made in Colorado, Oregon, Texas, and Washington. The presenters focus their discussion on the current trends and potential pitfalls in these jurisdictions, including those that exist before the lawsuit is even filed. Also addressed are the standards for bad faith in these states, the exposure these claims create, and particularly dangerous types of damages unique to these jurisdictions.

Kadeem Wolliaston (Associate-Albany, NY) and Lori Semlies (Partner-White Plains, NY) successfully collaborated in defending a wrongful death action against a nursing home involving claims for negligence, gross negligence, conscious pain and suffering, and alleged failures relating to staffing, resident care, dignity, comfort, and COVID-19 protocols. The estate claimed that the facility failed to properly care for a resident during his admission and that those alleged failures contributed to his death. Following discovery, the plaintiff voluntarily dismissed the action. The medical records reflected that the resident tested positive for COVID-19, was unvaccinated, and repeatedly declined available treatment, including monoclonal antibodies, antivirals, and transfer to the hospital. The records further showed that the resident wanted comfort care and was making his own treatment decisions. At deposition, the plaintiff confirmed that the resident was alert, oriented, and capable of making his own decisions. She also acknowledged that he had longstanding personal views regarding medical treatment, was unlikely to change his mind, and that no one would have been able to convince him to accept additional COVID-19 treatment. The deposition also revealed that the plaintiff had maintained handwritten notes during the resident’s admission. A further deposition was pursued to address those notes directly. That testimony confirmed that the notes did not document complaints regarding the facility’s care but instead contained general questions for staff regarding food intake, comfort care medication, and the resident’s condition. The notes also confirmed that the resident declined additional treatment and that this was consistent with his wishes. Importantly, the plaintiff ultimately testified that the lawsuit was not based on the facility’s handling of COVID-19. Rather, her concerns related to the resident’s surroundings, including cleanliness, hydration, and therapy delays. That admission, combined with the medical records and prior testimony, confirmed that there was no evidence that the resident’s death was caused by any failure to provide COVID-19 treatment or prevention measures. The plaintiff voluntarily dismissed the action rather than proceed toward summary judgment. The result reinforces an important lesson in litigation: favorable records are only part of the defense. The testimony must be developed in a way that confirms the record, narrows the issues, and prevents generalized allegations from surviving discovery. A well-prepared deposition can be the difference between defending a claim through motion practice and positioning the case for dismissal.

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.

BTI Consulting Group recently named Wilson Elser among the top firms for associate satisfaction in its “BTI Associate Satisfaction A-Listers 2026” report. Based on more than 5,000 associate responses, BTI recognized 189 law firms for fostering strong associate job satisfaction, with Wilson Elser ranking among the top 36 firms consistently recognized for creating a positive and supportive work environment. The report found that associates increasingly value factors beyond compensation, including meaningful training, mentorship, clear career development opportunities, strong job satisfaction, and active partner investment in associate success. BTI also highlighted the importance of targeted support for women associates and firms’ demonstrated commitment to long-term career growth. The recognition underscores Wilson Elser’s continued focus on cultivating a workplace where associates feel supported, engaged, and positioned for professional success in an increasingly demanding legal industry.

Tommy Spitaletto (Partner-Dallas, TX), and Siobhán Mueller (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “Navigating Related Claims in Directors and Officers (D&O) Insurance Policies” on May 21, 2026. This presentation provides a comprehensive overview of related claims and interrelated wrongful acts provisions in Directors and Officers (D&O) policies. The presenters will explain how these provisions operate to aggregate multiple claims, such as multiple lawsuits, into a single claim, often deemed first made at the earliest date among them. The session explores how courts interpret “relatedness,” and how those interpretations can affect how multiple claims are grouped, which policy period applies, and the extent of coverage available to the insured. The presenters also address key variables, including the specific D&O policy language, the underlying facts that potentially relate the matters, and the governing jurisdiction’s interpretive approach. The session also examines recent case law on the litigation of these D&O provisions, the implications for coverage, and offers practical guidance and key takeaways to help insurers and underwriters navigate them.

Danielle Tauber (Partner-White Plains, NY) and Christin Brown (Partner-White Plains, NY) secured a summary judgment on liability on behalf of a building tenant & grocery store in the New York State Supreme Court, New York County, before the Honorable James Cylnes. Plaintiff asserted a personal injury action sounding in New York Labor Law 200, 240(1) and 241(6); he alleged that he sustained injuries when his section ladder malfunctioned, and he fell approximately 25 feet to the ground. Plaintiff alleged to have sustained injuries to the right shoulder, cervical and lumbar spine. Plaintiff underwent a right shoulder surgery and alleged a need for a future cervical fusion. Plaintiffs demanded $3 million dollars.   The team filed a motion for summary judgment, arguing that Plaintiff’s work on the date of the accident was routine maintenance, not construction work. In support of their argument, they established that this routine maintenance – cleaning of a water tower – did not require specialized tools or equipment, and there was no ongoing construction project at the location. Therefore, Plaintiff’s work is not a protected activity and does not constitute a repair under the statute. Further, the team argued that even if the statute applies, Plaintiff’s actions were the sole proximate cause of the alleged accident because the plaintiff was warned of the unsafe condition of using a section ladder. Further, Plaintiff was offered the use of an A-frame ladder. Finally, the defendants had no supervisory control over the work Plaintiff was performing.   In opposition, Plaintiff argued that the work he was engaged in required specialized equipment (a power washer); the work involved an elevation of approximately 20-25 feet; and the cooling tower was defective because it had no built-in ladder hooks or other means to secure a ladder.    After oral argument, the court agreed with defendants’ argument that Plaintiff was engaged in routine maintenance and, therefore, not entitled to the protections of New York Labor Law. The Court granted the defendants’ motion in its entirety and denied plaintiff’s partial motion for summary judgment under NY Labor Law 240(1). Further, the court found no evidence of any defective condition for the subject water cooler, which had never received any violations or citations from any state or local municipality.    This result eliminated our client from a high-exposure case with a special trial preference. This represents a significant victory considering NY Labor Law 240(1) presents strict liability exposure.