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Archive for the ‘Government Law’ Category

Are Adult Entertainment Clubs Going To Save California’s Restaurants?

Posted on: December 22nd, 2020

By: John Moot

In what could be the beginning of a reopening for restaurants hard hit by California’s new stay at home orders, two San Diego adult entertainment clubs have come to the rescue. A San Diego Superior Court Judge on December 16th granted a preliminary injunction enjoining any governmental entity or law enforcement officer from enforcing cease and desist orders including the State’s Regional Stay at Home Order against two well-known adult entertainment venues in San Diego who also serve food. Using the United States Supreme Court’s recent decision allowing churches in New York to open for indoor services as a jumping off point, the Court applied the First Amendment rights of adult entertainment establishments to find the State’s rational to close their business that included selling food to be woefully deficient. In a careful analysis of the facts including the County’s own witnesses, the Court found there was no evidence the adult entertainment clubs or their restaurant exposed patrons, its staff or employees to COVID-19. The Court found no evidence that “businesses with restaurant services such as Plaintiffs’ establishment who have implemented protocols as directed by the County, have impacted ICU bed capacity throughout the Southern California Region (much less San Diego County).

In what could be read as rebuke to the Governor’s overly broad orders lacking in factual support, the Court after noting “essential businesses” that were allowed to stay open, quoted Supreme Court Justice Gorsuch’s concurring opinion in the Roman Catholic Diocese of Brooklyn stating, “who knew public health would so perfectly align with secular convenience.” In an ironic twist, a conservative Supreme Court majority has put adult entertainment clubs on par with churches as one of the few places Californians may be able to seek respite from the pandemic.

Restaurant owners’ glee however may have hit a roadblock. After the trial court clarified its ruling to apply to all restaurants not just ones in the adult entertainment clubs, the Appellate Court stepped in and stayed the ruling and will not consider the matter. Under the First Amendment, governmental action that infringes on First Amendment rights are subject to higher judicial security. Will the Appellate Court limit the lower court ruling to “Plaintiffs providing live adult entertainment” and businesses with “with restaurant service such as Plaintiffs?” Stay tuned. Either way a California Court has let the cat out of the bag and has questioned COVID orders where the punishment does not necessarily fit the crime.

If you have questions or would like more information, please contact John Moot at [email protected].

Philadelphia and Pennsylvania Announce New “Safer at Home” Restrictions

Posted on: November 18th, 2020

By: Justin Boron

The City of Philadelphia and the Commonwealth of Pennsylvania announced new measures this week aimed at curbing the spike in COVID cases in the region, but neither appear to be ready to initiate a broad-based shutdown like the one that began in March earlier this year.

Set to take effect Friday, the City of Philadelphia’s “Safer at Home” restrictions will have the most immediate effect on businesses and employers. Under them, the following business activities are prohibited:

  • High schools and colleges must move to online instruction only, with the exception of clinical instruction for students in health sciences. 
  • Indoor dining at restaurants and other food service businesses.
  • Theaters, including movie theaters, and other performance spaces. 
  • Bowling alleys, arcades and game spaces.
  • Museums.
  • Libraries.
  • Casinos.
  • Recreational activities and sports for youth, community groups, and schools. 
  • Gyms and indoor exercise classes. (Exercise groups and classes may continue outdoors.)
  • Senior day services (senior centers and adult day care centers) remain closed.

Additionally, the Philadelphia mayor’s order modifies restrictions on restaurants, retail, and office businesses:

  • Restaurants offering outdoor dining must reduce table sizes to four people and limited to members of the same household
  • Retail stores and indoor malls have a max density of 5 people per 1,000 square feet.
  • Offices are permitted to have only employees that cannot work remotely.

The Commonwealth is taking a more targeted approach, but has mandated mask-wearing both inside and outside. Additionally, travelers in and out of Pennsylvania are encouraged to obtain a negative COVID test or quarantine for 14 days. But Pennsylvania officials acknowledged that they do not plan to actively enforce the guideline.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Is Qualified Immunity at Risk in the Coming Supreme Court Term?

Posted on: October 22nd, 2020

By: Phil Savrin

The year 2020 has been tumultuous and unpredictable in many ways.  Momentarily lost in the shuffle between the ongoing pandemic and the upcoming presidential election are the cries from some sectors of the community to “defund” police departments or alternatively shift funding priorities from law enforcement to more community-oriented programs. These calls grew to a crescendo in the aftermath of the high-profile deaths of George Floyd in Minnesota and Breonna Taylor in Kentucky.

In the midst of the emotionally laden protests, some rational voices called once again for the abolition of qualified immunity, the legal doctrine that protects public officials from being sued for damages unless they violated clearly established law. The main purpose of the immunity is to allow government employees to use their discretion reasonably in discharging their public duties without fear of civil liability. In the law enforcement context, for example, we would not want police officers to weigh whether they will be sued for damages when swift action is necessary to protect the public from harm. This means that police officers can be immune from civil suits even if they used excessive force, provided that the unlawfulness of the force was not clearly established in the law.

The recent calls to abolish qualified immunity have come from different sectors of society based on a belief that members of the public need to be compensated whenever unnecessary force is used by the police whether or not it was clearly unlawful. They argue that allowing compensation through damages, no matter the circumstances involved, would operate as a disincentive for unlawful conduct instead of operating with virtual impunity. The counterargument is that egregious uses of force are not protected by qualified immunity and removing the defense would result in reduced police interactions across the board thereby increasing the risk of harm to the public. After all, there is generally no requirement that police use any force at all even in the face of an immediate need to protect others from criminal activities.

Because qualified immunity is a doctrine created by the courts, it can be abolished in one of two ways:  reversal of precedent by the Supreme Court or by Congressional legislation. Early efforts to introduce bills in Congress to abolish the doctrine have appeared to peter out but there is at least one justice on the Supreme Court who has voiced a concern about the existence of qualified immunity. Periodically, Justice Thomas has written separate opinions noting his “growing concern” with the doctrine because it has evolved beyond the immunities that were in place in 1871 when Congress passed 42 U.S.C. § 1983 that allowed civil suits to be brought for constitutional violations. Court watchers were expecting there to be a landmark decision during the 2019 Term when multiple petitions for review of qualified immunity decisions were the subject of multiple court conferences only to have them all denied toward the end of the term. The lone dissenter was none other than Justice Thomas who reviewed the history of immunities and opined that the Supreme Court should take a closer look at the continuation of the qualified immunity defense. Baxter v. Bracey, 140 S. Ct. 1862 (2020).

Because no other justices joined Justice Thomas’ dissent in Baxter, it can be inferred that they have little interest in overturning the firmly-established precedent and that it will take legislation from Congress to alter the course of the doctrine. These circumstances can change with vacancies opening up on the Supreme Court and changes in the office of the President and congressional leaders. For the time being, however, the doctrine lives on.

If you have questions or would like more information, please contact Phil Savrin at [email protected].

Southern District Weighs in on Discoverability of Litigation Funding Agreements under the Federal Rules

Posted on: October 6th, 2020

By: Wayne Melnick and Christopher Lee

One of the currently hottest areas of general liability law is the effect of medical-legal funding companies on litigation and the admissibility of evidence of this funding to undercut a plaintiff’s claims. Recently, the defense side of the “v” got a big win on this issue that may help allow juries to consider whether the amounts billed are even remotely reasonable.

On September 21, 2020, Judge Benjamin Cheesbro of the United States District Court for the Southern District of Georgia entered a ruling granting the defenses motion to compel discovery from non-party cherokee funding in the case of Misty Spears v. Wal-Mart Stores East, LP, Civil Action No.: 2:18-CV-152. While the 11th Circuit’s ruling in ML Healthcare Servs., LLC v. Publix Super Markets, Inc. opened the door for parties to question the boundaries of the discoverability of documents and agreements maintained by litigation funding agreements related to a plaintiff’s medical treatment, the Court’s ruling in Spears marked the first time that a court in Georgia determined that the amount billed and the amount ultimately paid are both relevant and possibly admissible at trial to determine the reasonableness and necessity of a plaintiff’s medical treatment.

Judge Cheesbro reiterated the finding in Houston v. Publix Supermarkets, Inc. determining that a medical lien funding company “is not … a traditional collateral source [as it] serves as an investor in the lawsuit and receives no payment from the Plaintiff until after the lawsuit.” No. 1:13-CV-206, 2015 WL 4581541, at *1 (N.D. Ga. July 28, 2015). Furthermore, the Order emphasized the purpose of the collateral source rule and its intent on excluding the admissibility of evidence, not its discovery, and left the door open as to the possibility for even the admissibility of these documents/information from Cherokee Funding at trial, showing the amount billed versus the amount ultimately paid to medical providers for a plaintiff’s treatment. In furthering the holding in Houston and other federal precedent, Spears highlighted the intimate involvement that is inherently present in a medical funding company and the underlying litigation which creates financial motivation for treating physicians and the potential future referral of patients based on favorably testimony.

Despite Cherokee’s arguments that it did not pre-approve any medical procedure or expenses and did not refer plaintiff to any care provider, Spears conceded this distilled the weight of the evidence but still declined to find that this distinction rendered the requested information undiscoverable. In its ruling, the Court noted that Cherokee’s advertisement to purchase receivables at “the highest prices” for plaintiff’s attorneys could incentivize and “inure” participating healthcare providers to provide services not normally rendered, or at higher than normal costs considering the potential for non-payment from the plaintiff. Thus, Spears determined this scheme created a situation in which Cherokee’s involvement may be relevant to the issue of treating physicians’ potential bias, intent, or motives.

As it pertains specifically to the discoverability of amounts actually paid for a plaintiff’s medical treatment, the Court held succinctly, “the difference between what a healthcare provider charged Plaintiff for a service and what Cherokee Funding paid the provider for the receivable may be relevant to the reasonableness of the charge … for the purposes of discovery, this information is potentially relevant, and therefore discoverable.” The Court further rejected any notion that the information sought was proprietary, confidential business information.

Spears is of utmost importance to the defense bar and provides yet another way to peer into the veiled world of personal injury litigation funding. While the first of its kind in several ways, this order falls within the trend of recent cases in this regard in the 11th Circuit and we anticipate it will not be the last.  

If you would like a copy of the opinion, please contact Wayne Melnick ([email protected]) or Christopher Lee ([email protected]) directly. 

Georgia Enacts Immunity for COVID-19 Claims

Posted on: August 17th, 2020

By: Jake Daly

As described in my previous post, the Georgia General Assembly passed a bill in the waning minutes of the 2020 session to provide immunity from civil damages for healthcare facilities and providers, other businesses, and individuals that are sued by employees, customers, visitors, and patients who are infected with COVID-19. The new law, known as the Georgia COVID-19 Pandemic Business Safety Act, became effective on August 5, 2020, when Governor Brian Kemp signed the bill. The Act is codified at O.C.G.A. §§ 51-16-1 to -5.

My previous post contains a detailed summary of the Act’s provisions.  Most importantly, the Act confers immunity on healthcare facilities and providers, other businesses, and individuals from “COVID-19 liability claims” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. The Act also creates a rebuttable presumption of assumption of the risk by the claimant under certain circumstances.

For claims against a business or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the business’s or the individual’s premises, other than the premises of a healthcare facility, the claimant is presumed to have assumed the risk if the business or the individual issued a receipt or proof of purchase for entry that includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

Alternatively, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the premises that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

For claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, the claimant is presumed to have assumed the risk if there is a sign posted at the point of entry of the facility or the premises that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

These rebuttable presumptions do not apply if the actions of the business, the individual, or the healthcare facility/provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Before discussing how the Act affects healthcare facilities and providers, other businesses, and individuals, it bears noting that it seems difficult to reconcile the provision that creates immunity with the provisions that create a rebuttable presumption of assumption of the risk. Both the immunity and the rebuttable presumption are defeated by a showing of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, and so both or neither will be available to a defendant. If the immunity is available, a rebuttable presumption is meaningless. Thus, the provisions that create a rebuttable presumption of assumption of the risk seem to be superfluous.

Importantly, the Act does not require the use of the warnings quoted above.  They are required only if a business, an individual, or a healthcare facility/provider wishes to avail itself of the rebuttable presumption of assumption of the risk. From a purely legal perspective, these warnings should be used because of the protection they provide from potential civil damages. However, healthcare facilities and providers, other businesses, and individuals should consider more than just legal consequences when deciding whether, and to what extent, to resume their operations. Seeing one of these warnings might be disconcerting to some people, and so using them could have a negative effect. How people react to these warnings will probably depend somewhat on the nature of the business. For example, it seems that people entering a healthcare facility would be less likely to react negatively to a warning about contracting COVID-19 than a person entering a restaurant. The point is that protection from legal liability does nothing for a business that has no customers. Thus, every business must strike its own balance between economic, health, and liability considerations.

In weighing these considerations, healthcare facilities and providers, other businesses, and individuals should be aware that evidence of their decision not to use these warnings is not admissible in a lawsuit. Further, they are entitled to immunity under the Act even if they do not use these warnings. Thus, for some, the potential negative effects of using these warnings may be worse than foregoing the rebuttable presumption of assumption of the risk.

As shown by the exception for gross negligence, etc., the Act does not provide absolute immunity from all liability relating to COVID-19. Depending on how lenient judges are in finding factual disputes as to gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, the immunity or the rebuttable presumption of assumption of the risk may not provide sufficient protection for healthcare facilities and providers, other businesses, and individuals. The Act should not be viewed as a limitation on what healthcare facilities and providers, other businesses, and individuals can do to protect themselves from liability for money damages. Regardless of whether they use the warnings prescribed in the Act, they should follow all guidelines recommended by the CDC and their state and local governments. They should also consider guidelines issued by regulatory agencies and trade organizations since those entities are more likely to have guidelines that are specifically tailored for their type of business.  Complying with industry-specific guidelines should reduce liability exposure. Equally important is documenting compliance with guidelines.

Another option is to require persons entering the premises to sign a waiver of liability. This may not be possible for certain types of businesses, but even for those for which it is possible, it may not be advisable from a customer relations perspective. For certain businesses, the very act of asking a customer to sign a waiver of liability form may be counter-productive. Again, each business will have to weigh the pros and cons based on its unique characteristics.

Finally, the Act does not limit any other immunity that may be available under state or federal law, and it does not modify or supersede other specified laws, including those in Title 16 (crimes), Title 31 (health) and related regulations, Chapter 9 of Title 34 (worker’s compensation), and Chapter 3 of Title 38 (emergency management). Also, a claimant asserting a COVID-19 liability claim still must prove causation. Because COVID-19 has an incubation period of up to 14 days, and because it can be transmitted from person to person asymptomatically, it will be very difficult for a claimant to prove where or from whom he or she was infected.  Also, even if a claimant can identify a specific person who allegedly infected him or her, it will be difficult to prove that the person’s violation of a particular guideline (e.g., wearing a mask) caused the infection. After all, a person can be infected in the total absence of negligence by another person. Thus, even if the immunity or the rebuttable presumption of assumption of the risk is not available, proving causation will be a high hurdle for claimants to overcome.

As with all things COVID-19, there is much uncertainty surrounding the viability of claims brought by people who are infected with COVID-19 on someone else’s property. Healthcare facilities and providers, other businesses, and individuals should take certain precautions to protect themselves from litigation, but the nature and extent of those precautions requires a careful balancing of various competing interests.

If you have questions or would like more information, please contact Jake Daly at [email protected].