Wendy D. Testa

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.

Isaac Netzer (Associate-New York, NY) will present multiple sessions at the National Business Institute’s live CLE program, New York Bridge the Gap: Skills and Ethics for Real-World Practice, in Long Island, New York, on May 6, 2026. Isaac’s session, “AI-Powered Legal Research and Writing,” discusses AI’s practical use in identifying and assessing legal authorities, extracting key information from court opinions, searching docket filings, and best practices for protecting and redacting sensitive content. The “Communications Do's and Don'ts for Legal Professionals” session covers client onboarding, managing client expectations, navigating generational differences in communication, and effective communication with supervising attorneys, peers, and legal staff. “Organization Tips and Tricks: Save Time, Boost Productivity” offers strategies for organization and productivity, including time management, delegation, and workflow optimization. Lastly, Isaac’s “Evidence Foundations” session examines document integrity, metadata, AI-generated evidence, and the requirements attorneys must satisfy when documents are challenged in litigation.

Joshua Bachrach (Partner-Philadelphia, PA) obtained summary judgment in the U.S. District Court, District of Montana, for a national insurer client providing group long-term disability insurance to employers and unions. The plaintiff became disabled, and her claim for benefits was approved. The dispute centered on whether those benefits were correctly calculated. The policy our client delivered reduces the monthly benefit by the amount of certain other income benefits a claimant receives. One such category is retirement benefits, except for those in an IRA. Here, the claimant argued that no offset applied because she directed the employer to deposit the retirement benefit directly into an IRA. Therefore, she argued it was not an offset.  Siding with our client, the court held that the offset applied because the policy referred to retirement benefits that a claimant “is eligible to receive.” The court also rejected the claimant’s argument that the offset did not apply because the policyholder was the union, not the employer. 

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

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.

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

Justin Boes (Associate-Madison, NJ) obtained summary judgment in the U.S. District Court for the Southern District of New York, in a declaratory judgment action brought by a commercial co-op corporation and one of its board members against the primary insurer and our client, a first-layer excess insurer on a $200 million umbrella policy. The coverage dispute arose from underlying litigation in which an ophthalmological surgeon sued the co-op board and a board member for denying him access to the rooftop terrace adjacent to his leased unit. The surgeon alleged that this restriction caused years of delay in the construction of an ambulatory surgical center and reduced available space for surgical rooms by requiring HVAC and other equipment to be installed inside the leased unit rather than on the roof. The lawsuit lasted for seven years and resulted in a liability verdict in favor of the plaintiff surgeon regarding his right to access the adjacent rooftop. The damages trial, with claimed damages exceeding $20 million against the co-op, is scheduled for July. Notably, in a prior 1999 lawsuit involving the same co-op board and a previous occupant of the same leased space, the court determined that the tenant was entitled to access the rooftop terrace. On a joint motion for summary judgment, the primary insurer and our client argued that both the prior and pending litigation exclusion and the property damage exclusion of the applicable policies unambiguously applied to bar coverage. The court agreed and granted summary judgment in their favor.  

New York, NY — National law firm Wilson Elser today announced the recipient of the 2026–2027 Thomas W. Wilson Sr. Scholarship, named for the firm’s Chair Emeritus, a founding member of the firm.  This year’s recipient is Amaya Lester, daughter of Weinstock St Fleur, IT Regional Supervisor for the firm’s New York office. The scholarship consists of $10,000 per year for up to four years or upon graduation, whichever occurs first, at an accredited college or university. “We are pleased to continue the firm’s scholarship in honor of Thomas W. Wilson Sr. for the 2026–2027 year,” said Danial McMahon, the firm’s chairman. “Amaya truly embodies the values that the Thomas W. Wilson Sr. Scholarship was established to honor. We are delighted to recognize her exceptional achievements and commitment to making a positive impact in her community. It is my pleasure to congratulate Weinstock, Amaya, and their family.” Amaya is a senior at Mercer County Technical Schools Health Sciences Academy in Trenton, New Jersey. She is a member of the National Honor Society and the National Technical Honor Society and has dedicated four years to her school's swim team while remaining actively involved in various school clubs. Deeply committed to community service, Amaya volunteers through her school's Red Cross Chapter and serves as a Student Ambassador at Mercer County Technical Schools. She is also a member of Glamour Girls, a group that visits nursing homes to build meaningful connections with elderly individuals, and she regularly volunteers at her church. Demonstrating both initiative and leadership, Amaya founded the Green Paws: Veterinary and Environmental Club at her school, inspiring her peers to make a meaningful impact on animal welfare and environmental stewardship. This initiative reflects her passion for these causes – interests she will continue to pursue as she begins her studies in Veterinary Science at Rowan University this fall. About the Thomas W. Wilson Sr. Scholarship Program In 2010, the firm's partnership established the Thomas W. Wilson Sr. Scholarship Program to support the college education of selected award recipients who are children of current, full-time Wilson Elser employees. The scholarship consists of $10,000 per year for up to four years or graduation, whichever occurs first, at an accredited college or university.

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

Peter Moore (Partner-McLean, VA) and Kirsten Curtis (Partner-Portland, OR) will present the Wilson Elser Forum webinar “First Party Claims: Effectively Dealing with and Using Claims Consultants” on May 7, 2026. This presentation will provide an overview of good first-party claims handling, and drill down on when to retain, and how to effectively use independent adjusters, engineers, meteorologists, and other experts and consultants to investigate claims and push back on questionable ones. The presenters will also discuss the effective use of the appraisal process and provide practical examples from real claims in which consultants played a significant role in their resolution, along with lessons gleaned from those cases.

Joshua Bachrach (Partner-Philadelphia, PA) obtained summary judgment in the U.S. District Court, District of Montana, for a national insurer client providing group long-term disability insurance to employers and unions. The plaintiff became disabled, and her claim for benefits was approved. The dispute centered on whether those benefits were correctly calculated. The policy our client delivered reduces the monthly benefit by the amount of certain other income benefits a claimant receives. One such category is retirement benefits, except for those in an IRA. Here, the claimant argued that no offset applied because she directed the employer to deposit the retirement benefit directly into an IRA. Therefore, she argued it was not an offset.  Siding with our client, the court held that the offset applied because the policy referred to retirement benefits that a claimant “is eligible to receive.” The court also rejected the claimant’s argument that the offset did not apply because the policyholder was the union, not the employer. 

Isaac Netzer (Associate-New York, NY) will present multiple sessions at the National Business Institute’s live CLE program, New York Bridge the Gap: Skills and Ethics for Real-World Practice, in Long Island, New York, on May 6, 2026. Isaac’s session, “AI-Powered Legal Research and Writing,” discusses AI’s practical use in identifying and assessing legal authorities, extracting key information from court opinions, searching docket filings, and best practices for protecting and redacting sensitive content. The “Communications Do's and Don'ts for Legal Professionals” session covers client onboarding, managing client expectations, navigating generational differences in communication, and effective communication with supervising attorneys, peers, and legal staff. “Organization Tips and Tricks: Save Time, Boost Productivity” offers strategies for organization and productivity, including time management, delegation, and workflow optimization. Lastly, Isaac’s “Evidence Foundations” session examines document integrity, metadata, AI-generated evidence, and the requirements attorneys must satisfy when documents are challenged in litigation.

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.

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

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.

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

Justin Boes (Associate-Madison, NJ) obtained summary judgment in the U.S. District Court for the Southern District of New York, in a declaratory judgment action brought by a commercial co-op corporation and one of its board members against the primary insurer and our client, a first-layer excess insurer on a $200 million umbrella policy. The coverage dispute arose from underlying litigation in which an ophthalmological surgeon sued the co-op board and a board member for denying him access to the rooftop terrace adjacent to his leased unit. The surgeon alleged that this restriction caused years of delay in the construction of an ambulatory surgical center and reduced available space for surgical rooms by requiring HVAC and other equipment to be installed inside the leased unit rather than on the roof. The lawsuit lasted for seven years and resulted in a liability verdict in favor of the plaintiff surgeon regarding his right to access the adjacent rooftop. The damages trial, with claimed damages exceeding $20 million against the co-op, is scheduled for July. Notably, in a prior 1999 lawsuit involving the same co-op board and a previous occupant of the same leased space, the court determined that the tenant was entitled to access the rooftop terrace. On a joint motion for summary judgment, the primary insurer and our client argued that both the prior and pending litigation exclusion and the property damage exclusion of the applicable policies unambiguously applied to bar coverage. The court agreed and granted summary judgment in their favor.  

New York, NY — National law firm Wilson Elser today announced the recipient of the 2026–2027 Thomas W. Wilson Sr. Scholarship, named for the firm’s Chair Emeritus, a founding member of the firm.  This year’s recipient is Amaya Lester, daughter of Weinstock St Fleur, IT Regional Supervisor for the firm’s New York office. The scholarship consists of $10,000 per year for up to four years or upon graduation, whichever occurs first, at an accredited college or university. “We are pleased to continue the firm’s scholarship in honor of Thomas W. Wilson Sr. for the 2026–2027 year,” said Danial McMahon, the firm’s chairman. “Amaya truly embodies the values that the Thomas W. Wilson Sr. Scholarship was established to honor. We are delighted to recognize her exceptional achievements and commitment to making a positive impact in her community. It is my pleasure to congratulate Weinstock, Amaya, and their family.” Amaya is a senior at Mercer County Technical Schools Health Sciences Academy in Trenton, New Jersey. She is a member of the National Honor Society and the National Technical Honor Society and has dedicated four years to her school's swim team while remaining actively involved in various school clubs. Deeply committed to community service, Amaya volunteers through her school's Red Cross Chapter and serves as a Student Ambassador at Mercer County Technical Schools. She is also a member of Glamour Girls, a group that visits nursing homes to build meaningful connections with elderly individuals, and she regularly volunteers at her church. Demonstrating both initiative and leadership, Amaya founded the Green Paws: Veterinary and Environmental Club at her school, inspiring her peers to make a meaningful impact on animal welfare and environmental stewardship. This initiative reflects her passion for these causes – interests she will continue to pursue as she begins her studies in Veterinary Science at Rowan University this fall. About the Thomas W. Wilson Sr. Scholarship Program In 2010, the firm's partnership established the Thomas W. Wilson Sr. Scholarship Program to support the college education of selected award recipients who are children of current, full-time Wilson Elser employees. The scholarship consists of $10,000 per year for up to four years or graduation, whichever occurs first, at an accredited college or university.

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

Peter Moore (Partner-McLean, VA) and Kirsten Curtis (Partner-Portland, OR) will present the Wilson Elser Forum webinar “First Party Claims: Effectively Dealing with and Using Claims Consultants” on May 7, 2026. This presentation will provide an overview of good first-party claims handling, and drill down on when to retain, and how to effectively use independent adjusters, engineers, meteorologists, and other experts and consultants to investigate claims and push back on questionable ones. The presenters will also discuss the effective use of the appraisal process and provide practical examples from real claims in which consultants played a significant role in their resolution, along with lessons gleaned from those cases.

Joshua Bachrach (Partner-Philadelphia, PA) obtained summary judgment in the U.S. District Court, District of Montana, for a national insurer client providing group long-term disability insurance to employers and unions. The plaintiff became disabled, and her claim for benefits was approved. The dispute centered on whether those benefits were correctly calculated. The policy our client delivered reduces the monthly benefit by the amount of certain other income benefits a claimant receives. One such category is retirement benefits, except for those in an IRA. Here, the claimant argued that no offset applied because she directed the employer to deposit the retirement benefit directly into an IRA. Therefore, she argued it was not an offset.  Siding with our client, the court held that the offset applied because the policy referred to retirement benefits that a claimant “is eligible to receive.” The court also rejected the claimant’s argument that the offset did not apply because the policyholder was the union, not the employer. 

Isaac Netzer (Associate-New York, NY) will present multiple sessions at the National Business Institute’s live CLE program, New York Bridge the Gap: Skills and Ethics for Real-World Practice, in Long Island, New York, on May 6, 2026. Isaac’s session, “AI-Powered Legal Research and Writing,” discusses AI’s practical use in identifying and assessing legal authorities, extracting key information from court opinions, searching docket filings, and best practices for protecting and redacting sensitive content. The “Communications Do's and Don'ts for Legal Professionals” session covers client onboarding, managing client expectations, navigating generational differences in communication, and effective communication with supervising attorneys, peers, and legal staff. “Organization Tips and Tricks: Save Time, Boost Productivity” offers strategies for organization and productivity, including time management, delegation, and workflow optimization. Lastly, Isaac’s “Evidence Foundations” session examines document integrity, metadata, AI-generated evidence, and the requirements attorneys must satisfy when documents are challenged in litigation.

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.

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

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.

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