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CLM National: April 2022

News and verdicts that affect you from across the country

April 20, 2022 Photo

A new consumer data privacy act is signed in Utah, an Ohio district court grants in part, and denies in part, class certification in PFAS litigation, and, in New York, the Supreme Court’s failure to give proper instructions in relation to a substitute juror results in an invalid verdict. 

Colorado

$14 Million Awarded to Floyd Protesters

Associated Press reports that jurors awarded $14 million in damages after finding Denver police used excessive force in 2020 against people who were protesting the killing of George Floyd. The damages were awarded to a group of 12 plaintiffs. AP says Zach Packard, who ended up in the intensive care unit after allegedly being struck in the head by a projectile fired by police, received the largest amount at $3 million. A statement by ACLU Colorado in advance of the trial stated that it would run from March 7 to March 25, and would be the first trial in the nation on behalf of protesters injured by police during the George Floyd protests. The statement alleged Denver police used violent crowd control tactics and violated protesters’ constitutional rights. AP states that one of the plaintiffs’ lawyers, Timothy Macdonald, urged jurors, in closing arguments, to “send a message” to police in Denver and elsewhere by finding the city liable.—From Senior Managing Editor Phil Gusman

Utah

Consumer Privacy Act Signed

Gov. Spencer Cox signed the Utah Consumer Privacy Act (UCPA) into law March 24. The law takes effect Dec. 31, 2023 and provides consumers with broad protections and rights concerning the collection, use, processing, sharing, and sale of their personal information. Businesses that fail to comply may be subject to significant fines and penalties. Organizations should revisit consumer data collection policies, including: the nature of consumer data collected; the purpose of collecting consumer data; where consumer data is stored; how long consumer data is stored; how consumer data is protected from compromise, including unauthorized access; third parties that receive consumer data for the purpose of processing this information; contracts in place with such third parties regarding the processing of consumer data; disclosures to consumers regarding the collection, use, sharing and sale of their data; methods by which consumers can request information concerning their data; and procedures in place to respond to consumer requests.—From CLM Member Anjali C. Das, Wilson Elser

Louisiana

Insurer Prevails in COVID-19 BI Case

The Fifth Circuit Court of Appeals issued another ruling finding that losses related to COVID-19 shutdown orders are not covered under business interruption if there is not a direct physical loss. In Q Clothier New Orleans, LLC v. Twin City Fire Insurance Co., plaintiff Q Clothier submitted claims to its insurer under two types of provisions: one covering “direct physical loss of or damage to property,” and the other covering the loss of business income when access to the store was prohibited by a civil authority order “as a direct result of” a covered loss of property. The court referenced its earlier decision in Terry Black’s Barbecue, LLC v. State Automobile Mutual Insurance Co., noting, “Consistent with our decision in Terry Black’s, and the decisions of the unanimous circuit courts, we conclude, pursuant to Louisiana law, that losses caused by civil authority orders closing nonessential businesses in response to the COVID-19 pandemic do not fall within the meaning of ‘direct physical loss of or damage to property.’”—From Senior Managing Editor Phil Gusman

Ohio

Motion for PFAS Class Certification Granted, Denied in Part

Kevin Hardwick, a firefighter and alleged user of PFAS-containing firefighting foams, filed a class-action lawsuit in the U.S. District Court for the Southern District of Ohio in 2018 asserting claims for negligence, battery, declaratory judgment, and conspiracy—all related to the manufacture and use of PFAS products. The suit asked for equitable relief in the form of a panel of scientists to study the effects of PFAS, and for medical monitoring of a nationwide class of people with detectable levels of PFAS in their blood serum. The plaintiff later filed a motion for class certification, seeking to have an expansive nationwide class certified as follows: “[A]ny individual residing within the United States at the time of class certification for one year or more since 1977 with 0.05 parts per trillion (ppt) or more of PFOA and at least 0.05 ppt or more of any other PFAS in their blood serum.” On March 7, the court rejected a nationwide class, but certified for Individuals subject to the laws of Ohio.—From CLM Member Oliver E. Twaddell, Goldberg Segalla

Rhode Island

AG Announces $100 Million Opioid Settlement

Attorney General Peter F. Neronha announced opioid crisis-related settlements that he values at more than $100 million with drugmakers Teva and Allergan. The settlement includes $28.5 million in cash as well as medications, free of charge, such as Naloxone that Neronha says will play a key role in the state’s efforts to end the opioid crisis. “While no amount of money will ever be enough to undo the harm suffered by Rhode Islanders throughout the ongoing opioid epidemic, these additional recoveries will further support public health efforts to respond to the challenges brought on by this epidemic, which have grown much worse during the COVID-19 pandemic,” Neronha said in a statement. Among other related settlements for the state, Neronha announced in January that Rhode Island joined a national opioid settlement with three major opioid distributors that provided over $90 million in funding for state and local efforts to address the state’s opioid crisis.—From Senior Managing Editor Phil Gusman

New York

Substitute Juror Must Engage in Full Deliberation

The New York State Supreme Court’s failure to give proper jury instructions regarding the substitution of an alternate juror resulted in an invalid verdict. Plaintiff was a passenger injured on a New York City Transit Authority bus. The controversy emerged during the damages phase of the trial when it became clear Juror Six would not be able to complete the deliberations. The court substituted a juror, but did not require that the jurors begin their deliberations from the beginning. The court did not err in allowing the alternate juror to substitute for Juror Six, but it failed to follow the law in its instructions regarding the method of deliberation once the substitution was made. The court should have instructed the jurors to begin deliberations from the beginning when the alternate juror was seated so that all jurors had the opportunity to review the evidence and discuss and deliberate the facts of the case together. The judgment was reversed and remitted to the Supreme Court, Kings County for a new trial on the damages claims.—From CLM Members Maggy Mazlin and James P. Tyrie, Wood Smith Henning & Berman

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About The Authors
Phil Gusman

Phil Gusman is senior managing editor of CLM magazine, a publication of the CLM.  phil.gusman@theclm.org

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