• Article | 6.14.21
    In celebration of the evolution of women's empowerment in the legal and medical professions, partner Constance Endelicato brings us her latest article "A Double Dose of Power," published in the Best Lawyers Sixth Annual "Women in the Law" Business Edition. This poised and insightful article details the historic struggle and rise of women in the legal and medical professions and encourages them to work together to dismantle gender inequality. A shining example of female leadership in the legal field, Ms. Endelicato encourages other women to reach their full potential in industries that only a few decades ago were dominated by men and difficult for women to access.
  • Coronavirus Resources | 12.31.20
    On December 21, 2020, Congress approved the Consolidated Appropriations Act, 2021 ("CAA"). The CAA was signed into law on December 27, 2020, effectively extending certain pandemic stimulus benefits into 2021, four days before benefits were set to expire. However, the CAA does not extend all pandemic benefits. This article highlights the CAA provision extending benefits under the Families First Coronavirus Response Act ("FFCRA") at the federal and select state levels.
  • Case Updates | 6.17.20
    On June 15, 2020, the Supreme Court in Bostock v. Clayton County, Georgia, Justice Neil Gorsuch delivered the opinion of the Court (split 6-3) resolving a split of authority among Circuit Courts by holding that Title VII of the Civil Rights Acts prohibits employers from discriminating against employees on the basis of their sexual orientation or gender identity. The Court concluded, "an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
  • Media Mention | 6.9.20

    WSHB Partner Constance Endelicato was quoted in the June 8, 2020 Skilled Nursing News article, "Nursing Homes Face Fines, Lawsuits Unless They Test for Covid-19 — But Access Often Out of Their Hands"

    In this article, Ms. Endelicato wrote: 

    “Testing capability is riddled with a number of factors that often are out of the hands of the nursing facility,” Constance Endelicato, a partner at the law firm Wood, Smith Henning & Berman who represents health care providers that include SNFs, wrote to Skilled Nursing News in an e-mail on June 3. “The facilities face the daunting task of attempting to abide by the governing recommendations, keeping in mind that with the exception of New York, recommendations will not necessarily define the standard of care under the pandemic crisis. We need to remember that the entire medical community was not prepared for this unknown and eerily unpredictable virus.”

  • Coronavirus Resources | 5.27.20
    Covid-19 forces employers to make difficult and often times unprecedented decisions as businesses in nearly all industries face falling revenue and inconsistent governmental restrictions. The resulting decisions regarding human resources practices and policies exposes thousands of employers to existing and emerging liabilities, adding to the impact of the pandemic.
  • Coronavirus Resources | 5.27.20
    The Covid-19 pandemic has impacted every corporation in every sector of the economy. Hard decisions must be made in regard to workplace safety, layoffs and furloughs, investments, financing and business planning. Challenges to corporate governance will follow. These suits may be retrospective, focusing on alleged failures in regard to disaster preparedness, insurance coverage and contingency planning or prospective, challenging ongoing management, financial and operational decisions. As the economic crisis caused by shelter-in-place and social distancing orders grows, corporations will be faced with selling assets, entering into mergers or financing agreements that would have been unthinkable prior to the pandemic. Shareholder suits are sure to follow.
  • Media Mention | 5.6.20

    WSHB Partner Constance Endelicato was quoted in the May 4, 2020 Insurance Journal article, "Nursing Home Insurance Market In Need of Care."

    In the article, Ms. Endelicato described the COVID-19 exposures as “endless,” and said the facilities’ vulnerability to exposure has been “riddled with various complicating factors.”

    “The lack of testing capability, the delayed symptoms, the ongoing admission of new residents, and the residents’ fundamental rights to have family and friends as visitors, may also play a role in exposure as these factors are thought to be ways in which the virus can spread,” said Ms. Endelicato.

  • Case Updates | 4.23.20
    On Tuesday, April 14, 2020, Governor Murphy announced that he signed S-2333/A-3910, which is effective immediately and retroactive to March 9, 2020. S-2333/A-3910 provides immunity to healthcare facilities and professionals from civil and criminal claims resulting from injury or death in treating COVID-19 patients. Under the bill, a "healthcare professional" includes physicians, physician assistants, advanced practice nurses, registered nurses, licensed practical nurses, or other healthcare professionals who are authorized to provide health care services in New Jersey, as well as, EMTs or mobile intensive care paramedics who are "certified by the Commission of Health pursuant to Title 26 of the Revised Statutes or is otherwise authorized to provide health care services in the state."
  • Article | 4.17.20
    Recent studies are now starting to show that the COVID-19 virus is, on average, trending slightly downward in the United States. It is becoming clear that the safety measures put in place throughout our country are at least starting to work. As a result, the legal world may be transitioning into a different phase of pandemic management—one focused less on the measures used to improve safety, and more on the ongoing enforcement and aftermath of these measures.
  • Article | 4.2.20
    Nevada’s Governor, Steve Sisolak, declared a state of emergency in Nevada on March 12, 2020 as a result of the COVID-19 pandemic. Since March 12, 2020 the Governor has issued a number of emergency directives. Most recently, an Emergency Directive for the State of Nevada was issued as follows: “Any specific time limit set by state statute or regulation for the commencement of any legal action is hereby tolled from the date of this Directive until 30 days from the date the state of emergency declared March 12, 2020 is terminated.”
  • Publications | 3.26.20
    As we all come to understand the impact of the FFCRA, effective April 1, 2020, the most common question I am asked is, “how are businesses supposed to pay for this?” The question comes even more frequently as our nation faces a wave of mandatory business closures and shelter-at-home orders. As noted in my earlier alert, the FFCRA provides certain payroll tax credits to help offset the cost of expanded paid sick leave and paid FMLA leave under the Act, and more help is on the way.
  • Publications | 3.19.20
    On March 18, 2020, the President signed into law H.R. 6201, Families First Coronavirus Response Act (FFCRA). Among its provisions, which include an appropriation of federal funds to enhance the WIC Assistance program, supplement State unemployment insurance benefits, and provide certain tax credits, are two new laws that require employers to provide paid sick leave of up to two weeks, and paid family leave for up to 12 weeks due to the impact of COVID-19. What follows is a summary of an employer’s obligations under the FFCRA, which is slated to take effect April 2, 2020.
  • Publications | 1.29.20
    On October 10, 2019, California Governor Gavin Newsom signed a law prohibiting employers from requiring employees to sign arbitration agreements as a condition of employment on or after January 1, 2020. The law, AB 51, expressly prohibits companies from compelling employees to waive any right, forum or procedure for a violation of any provision of the California Labor Code or Fair Employment and Housing Act, and puts employers who violate the law at risk of being found guilty of a misdemeanor.
  • Publications | 9.25.19
    On April 10, 2019, Gov. Doug Ducey signed into law legislation that will have a significant impact on construction-defect claims involving single- and multi-family homes in Arizona. Senate Bill 1271 amends the Purchaser Dwelling Act (PDA), A.R.S. 12-1361, et seq, and became effective on Aug. 26. The new changes will affect a builder's indemnification contractual rights, as well as attorney fees, notice to subcontractors, and homeowner affidavits.
  • Publications | 8.1.19
    The New York State Assembly and Senate recently passed the Securing Wages Earned Against Theft ("SWEAT") bill to enable alleged employee-victims of wage theft to recoup unpaid wages by placing a temporary lien on the real or personal property of their employer(s). The union-backed bill is currently awaiting Governor Andrew Cuomo's signature in order to become law. SWEAT amends five sections of New York State law for the purpose of increasing the likelihood that victims of wage theft can secure payment of unpaid wages for work already performed. The justification for the bill is to eliminate exploitative employers from dissipating their assets or dissolving their businesses in a systematic effort to avoid paying wages they owe to their employees during a pending court action. Thus, SWEAT was passed to provide wage theft victims with a legal remedy – a lien to freeze an employer's assets – lest being unable to enforce and collect on a judgment for unpaid wages.
  • Publications | 6.14.19

    In September 2018, we assessed the impact of the headline-grabbing $289 million verdict delivered by a San Francisco jury in DeWayne Johnson v. Monsanto Company. Johnson, a former school groundskeeper, alleged that his occupational use of the glyphosate-based herbicide Roundup caused him to develop non-Hodgkin lymphoma (NHL). We predicted that the verdict would lead to more glyphosate lawsuits and an increased focus on toxic torts, but concluded that this result would not make glyphosates the next asbestos.

    As expected, the Johnson verdict was reduced to $78 million by a trial court and is now on appeal. But in the meantime, Monsanto, a unit of Bayer AG, was hit first with an $80 million judgment in federal court in the Northern District of California in Edwin Hardeman v. Monsanto Company, and then, more recently, with an eye-popping $2 billion verdict from the Alameda County Superior Court in Alva and Alberta Pilliod v. Monsanto Company. So the $2 billion question is, what does this mean for the future of glyphosate litigation and toxic torts in general?

  • Article | 4.19.19
    [Practices] must have policies and procedures in place that specifically address the prescription of opioid medication. The Centers for Disease Control (CDC) Guideline for Prescribing Opiods for Chronic Pain should be used as the model. A Quality Assurance program, including stand-up meetings among providers to discuss opioid patients, and a care coordinator specifically aimed at conducting monthly audits should be employed to monitor the prescriptions written by each of its members. ... The group must also carefully screen its members with ongoing checks as to disciplinary status, criminal and civil background, status of hospital staff privileges and personal health.
  • Publications | 9.20.18
    For the last two decades, toxic tort litigation has involved slowly diminishing battles in the last great war (asbestos). New skirmishes have included silica, benzene, and welding rod fume exposure claims, but none of them have ever matched asbestos in size or importance.
  • Publications | 8.17.18
    In June 2015, the national media was abuzz after an apartment complex deck collapsed in Berkeley, California tragically killing six people. As part of the subsequent investigation by the California Contractors State License Board, it was determined that the cause of the deck collapse was a failure to properly lap the deck to wall flashing over the building paper and deck membrane. As a result, the structural support joists were severally rotted and ultimately failed. Further, reasonable maintenance efforts were deferred by the apartment property manager despite readily apparent indications of water damage.
  • Publications | 7.18.18
    In Maman v. Marx Realty & Improvement Co. Inc., the plaintiff, an ornamental ironworker, and a coworker were retrieving a piece of steel Q-decking for installation when the plaintiff slipped and/or tripped, lost his balance, and fell through an opening located between two steel beams. The plaintiff was wearing a harness with a lanyard at the time of the accident, but was not tied off.
  • Publications | 6.25.18
    In today’s litigious society, it is becoming common practice for attorneys to reach out to plaintiffs’ or claimants’ treating physicians, including their psychiatrists, and request their assistance in litigation. This request may be as simple as asking a practitioner to discuss the treatment rendered to a patient, or as involved as having a practitioner act as a medical expert on a patient’s behalf. Irrespective of the extent of the contribution, the participation is never as simple as the attorney will lead a practitioner to believe. As healers devoted to assisting patients, practitioners’ initial instincts are to help. However, while their intentions may be noble and admirable, practitioners may be setting themselves up for unintended legal ramifications.
  • Publications | 6.25.18
    By the time you read this, the most comprehensive and sweeping data security regulation will have just gone into effect. With a May 25, 2018 effective date, the European Union’s Global Data Protection Regulation (GDPR) reaches around the globe, including to entities in the U.S. Noncompliance can lead to significant fines of up to four percent of annual global revenue or 20 million euros, as well as civil and even criminal liability. It is critical for U.S. entities and legal and insurance professionals advising those entities to be aware of the scope of this regulation to determine whether they are subject to it, and to take the necessary steps towards compliance. Even if it is determined that the GDPR is not applicable to your organization, there are a number of practical steps you can take to better your overall cyber hygiene.
  • Publications | 6.25.18

    Technological advancements in medical uses of robots, drones, and 3D printing continue at an impressive pace. Devices leveraging these advancements will enter mainstream medicine over the next five years, by some estimates.

    The increasing use of advanced medical devices will reduce the need for certain staff, and will likely decrease available jobs for health care providers. The advent of new technology also poses new liability concerns due to a shift in the delivery of care.

    To utilize this technology effectively, mitigate risk, and reduce job security fears, it is important to understand both the benefits of these advancements and the liabilities associated with their use, based upon current evidence.

  • Publications | 6.15.18
    In Epic Systems Corp. v. Lewis (— S. Ct. —, May 21, 2018, J. Gorsuch) (J. Ginsburg, dissenting), the United States Supreme Court issued a decision significant for all employers seeking strategies to avoid protracted and potentially business-ending class and collective action litigation under the Fair Labor Standards Act (FLSA), and associated state laws. In part, the decision holds that the presumption in favor of enforcing arbitration agreements under the Federal Arbitration Act (FAA) applies to terms within those agreements requiring individualized, as opposed to class or collective, proceedings and that neither Section 7 of the National Labor Relations Act (NLRA), permitting employees to engage in concerted activities, or the savings clause under the FAA overcome the presumption of enforceability.
  • Publications | 6.15.18
    What California decisions say about extrapolation evidence in construction defect cases.
  • Article | 11.13.17
    There are hundreds if not thousands of articles out there on tips for dealing with difficult opposing counsel. But what if it’s not opposing counsel who is being difficult? What do you do when your client’s personal counsel is the one creating unnecessary strife? Whether you are the assigned defense counsel or the claims professional, you can’t just tell the insured client or their counsel to take a long walk off a short pier, so you have to find a way to make it work. If you are personal counsel, have you examined your own behavior and asked yourself why you are making things more difficult than necessary?
  • Publications | 8.30.17
    Michelle Arbitrio (Partner – New York) was quoted extensively in the August 22, 2017 issue of Insurance Business regarding an article titled “Bundle Packages Are Potential Landmines for Brokers.” Michelle provided her thoughts regarding potential new liability issues that brokers may face when offering bundle coverages for sale to clients.
  • Publications | 8.9.17
    From text messages concerning real estate deals to the use to electronic signatures in binding transactions, real estate professionals are waist-deep in digital communications. But are these "smart" shortcuts exposing agents and brokers to professional liability allegations that tech-effected contracts are not valid?
  • Publications | 8.9.17

    Employers rely on bullies. Bullies push innovation, motivate co-workers and generate business. However, bullying in the workplace creates risks, and employers are facing new liabilities for failing to address bullying.

    Bullying is prevalent and comes from all directions. According to the Workplace Bullying Institute, an estimated 27% of Americans report experiencing abusive conduct at work, and 72% report being aware of workplace bullying. Similarly, a survey commissioned by CareerBuilder of full-time employed private sector employees indicated that 28% of employees reported having experienced or were currently experiencing bullying in the workplace.

  • Publications | 6.27.17
    The phone rings and on the other end is a reporter asking about an incident that just happened involving your company. Would you know how to respond? A crisis or unexpected event that focuses media attention on your firm can be disruptive to your normal business operations and have a real or perceived negative impact upon your company. A detailed crisis communications plan will help you evaluate the scope and level of a crisis, while establishing a uniform communications system and procedures and protocols to help your company deal effectively with an unexpected emergency situation.
  • Publications | 4.11.17
    The recent Oregon Supreme Court ruling in Yeatts v. Polygon Northwest Co. emphasizes the importance of carefully drafting subcontracts to limit general contractor liability under Oregon’s Employer Liability Law. The court found, in part, that a GC that retains a right to control safety in a subcontractor agreement—even if that right is minimal— opens itself up to liability under the Employer Liability Law.
  • Publications | 3.27.17
    How has increased reliance on and use of technology affected the legality of real estate transactions? The pervasiveness of technology in the context of real estate transactions, specifically with regard to the distinction between the existence or non-existence of a binding contractual agreement, has increased dramatically over the past few years. From communications concerning purchase and sale of real property via text message to the use of electronic signatures in entering into binding transactions, the influence of technology in this industry cannot be understated. In effect, it has become pertinent to analyze the use of technology in a legal context in order to ensure a comprehensive understanding of the effect these tools can have in many types of transactions.
  • Publications | 3.26.17

    On August 30, 2018, revised Proposition 65 regulations will take effect impacting many business selling consumer goods and offering services in California. The revisions affect the warnings that manufacturers, distributors and sellers must provide to any California consumer who may be exposed by a business to one or more of the 900 chemicals listed by the State as being "known to cause cancer or reproductive toxicity."

    This article summarizes the new requirements and provides guidance to companies seeking to comply with the revised regulations, with the goal of avoiding costly enforcement litigation brought by the State, or by private Attorney General "bounty hunter" enforcers.

  • Publications | 3.24.17
    What are construction defects, exactly? It depends. In layman’s terms, construction defects are those unexpected conditions of or damages to a property that cause the owners’ additional expense to repair or cause the property to lose value. Common examples include cracked concrete, electrical malfunctions, or plumbing leaks. Severe cases include water intrusion or movement of the property.
  • Publications | 2.13.17
    California's Office of Environmental Health Hazard Assessment has recently issued further updated regulations related specifically to the chemical, Bisphenol A ("BPA"). OEHHA added BPA in the list of chemicals required under California's Safe Drinking Water and Toxic Enforcement Act of 1986 (referred to as "Proposition 65") in May 2015, and adopted specific warnings for exposures to BPA from canned and bottled foods and beverages on November 30, 2016. BPA is found in the containers of various food and beverage products, including can linings, jars, and bottle seals. Due to the connectivity to food and the potential hazards of ingestion and dermal exposure, OEHHA has established some specific regulations for BPA.
  • Publications | 12.27.16
    The changing social, technological, environmental and economic landscape has led to increased legal exposure for contractors and real estate developers in California. However, developers can manage the risk and continue to build and develop successful projects with some foresight and careful planning.
  • Publications | 11.4.16
    Recently, the Supreme Court of Oregon handed down a decision in Goodwin v. Kingsmen Plastering, Inc. with massive procedural implications for all construction defect cases. The decision clarified the often confused and misunderstood question of what statute of limitations period applies to negligence-based construction defect claims in the state of Oregon.
  • Article | 9.27.16
  • Publications | 8.11.16

    A single construction defect claim often implicates a multitude of defendants. With numerous parties making cross-complaints, the defense of a construction defect claim is often costly, time consuming and, at times, chaotic.

    Defendants named in a construction defect claim try to seek indemnity and defense costs from the parties and their insurers, while developer and general contractor defendants often spend much of their time and expense simultaneously focusing on defeating or minimizing the plaintiff ’s claim and attempting to deflect liability and/or
    transfer the risk.

  • Article | 12.28.15
    Most physicians believe that their prescribing practices will not be investigated. However, a recent article published in the Annals of Internal Medicine highlights consideration of the evolving landscape of pain management with opioid analgesics by practitioners both treating and following patients complaining of chronic non-cancer pain. Taken in conjunction with the recently revised Federation of State Medical Boards (FSMB) Model Policy, physicians who treat patients with analgesic opioids may be more vulnerable than ever to medical malpractice litigation and licensing board actions.
  • Publications | 12.22.15
    In today's day and age of internet retail shopping, companies and consumers alike rely heavily on search engines and keyword advertising to aid a consumer's search in finding products to purchase. However, on July 6, 2015, the United States Court of Appeals for the Ninth Circuit held that Amazon may have created a likelihood of confusion to customers who were searching for Multi Time Machine Inc.'s manufactured military-style "MTM Special Ops" watches. With this holding, the United States Court of Appeals may have expanded trademark owners' rights in the search engine context.
  • Article | 10.29.15
  • Publications | 9.23.15
    The Americans with Disabilities Act (ADA) is touted as one of America’s most comprehensive pieces of civil rights legislation. The Act prohibits discrimination and guarantees that people with disabilities have the same opportunities to participate in mainstream American life.
  • Publications | 8.5.15
    The situation is commonplace: Plaintiffs in a toxic tort case name a score of manufacturers as defendants and list 34 chemical products in their complaint.
  • Case Updates | 4.20.15
  • Publications | 2.25.15
  • Case Updates | 2.11.15
  • Publications | 1.29.15
  • Case Updates | 1.27.15
  • Publications | 10.6.14

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