A few weeks ago, the global economy rolled forward under its own immense inertia. While concerns of an economic downturn were growing, few suspected the preceding years of expansion would end overnight . . . yet here we are. It wasn’t the business cycle; it wasn’t an overheated housing market; it wasn’t irresponsible financial products. The behemoth was struck down where it stood because workers stopped working. Over the last five weeks, over 26 million people in the United States filed for unemployment assistance. In addition to those who lost their jobs, many employees were sent home to work or are temporarily laid off. What sort of protection do these employees have when restrictions are lifted and companies call them back to the workplace?
Lawmakers are debating when and how to reopen the larger economy—some arguing for a rapid reopening designed to minimize the length of time commerce remains stagnant, while others plea for a cautious reopening focused on minimizing infection rates. Although much depends on the way government loosens the current restrictions, tension between employee safety and the desire to resume normal operations is certain to grow.
Employees may feel powerless when their employers ask them to return to work. Can an employer fire employees who are reluctant to perform certain tasks? Should an employee that suffers from a medical condition that increases the danger of the virus be forced to return upon the employer’s demand? What if a worker has been exposed to the virus during the shutdown? Can employees be required to test in order to return to work?
Neumann Law Group is accepting new clients who were sexually assaulted by Dr. Robert E. Anderson, university physician at the University of Michigan. Our firm successfully sued Michigan State University on behalf of survivors of the shockingly similar predator, Dr. Larry Nassar. Our firm is committed to advancing the rights of individuals who suffered because the two of the most vaunted educational institutions in America failed to protect the students charged to their care.
Dr. Robert E. Anderson (deceased, 2008), who worked as a physician for the University of Michigan from 1968 through 2003, is at the center of numerous allegations of sexual assault. The university is now the subject of a federal lawsuit, brought by a survivor of his abuse, alleging the school had knowledge of the doctor’s predilections, and rather than protecting the vulnerable students, U-M protected him. The university allowed him to continue his pattern of assaults for several decades.
Survivors describe Anderson’s behavior began during the draft era of the Vietnam War. The first step in being drafted was receiving a physical. Anderson offered to write students a letter stating that the potential draftee was homosexual, a declaration that at the time disqualified an otherwise suitable candidate for compelled military service. However, he demanded sexual favors in return—something that was well known in the Ann Arbor gay community at the time.
In the 1990s, the use of a neurovascular stent for a procedure call “stent-assisted coiling” was considered a breakthrough treatment for treating brain aneurysms. The medical device offered a non-surgical method to address weak spots in blood vessels in the brain. An aneurysm occurs when a weak point in a vessel allows blood to bulge out the vessel wall. If the aneurysm bursts, it can cause traumatic consequences, particularly when the aneurysm is located in the brain.
A non-stent assisted coiling treatment for an aneurysm involved running a stint from a patient’s leg up into the location of the aneurysm in the brain. The catheter would then inject a string of soft platinum into the aneurysm, which coils upon itself within the “bubble” of the aneurysm. After the platinum was fully deployed, the blood in the aneurysm clots along the coil and eventually fills the either aneurysm, such that is no longer poses the threat of rupture.
The procedure described above worked well, unless the aneurism had a “wide neck.” Where a normal aneurysm looks like a bubble stuck on the side of the vessel, a wide neck aneurysm looks more like a semi-circle. Instead of having a small weak spot in the vessel bulge out into a bubble, the wide neck variety involves a larger weak spot that expands the vessel in a distorted manner. Introducing the platinum coil into the aneurysm is not feasible, as the coil is too exposed to the blood flow and will not remain in place.
The trust. For many people, trusts are an intimidating legal construct they don’t want to be bothered with, perhaps feeling as though it is a needless complication created by lawyers to make money. Although having a trust may not be appropriate for some families, it can be a stable platform with which to address a number of problems outside of a courtroom, ultimately saving money and heartache. Consequently, it has become central to most. Below, I touch on several common trusts, but please note, these descriptions are far from exhaustive on the subject.
But first, what is a trust? Well, imagine that the concept of ownership isn’t one right, it is a bundle of rights. If I own a piece of real estate, I have the right to sell it, to develop it, to live on it. These rights can be split from one another. For instance, I can rent the property to someone, so I no longer have the right to live on the property, but I still own it. I can transfer my right to sell the property by selling someone an exclusive option to purchase it, but still maintain possession of the property. This concept of fractured ownership rights is important to a trust.
The trust itself can be viewed as a separate, individual person. It can open a bank account, purchase land, invest in the stock market, etc. But of course, someone must direct it to do so. This person is the trustee. The trustee has the authority to direct the trust and to act on its behalf, which is the “ownership interest.” However, unless the trustee is also a beneficiary, he or she cannot use any of the trust assets for his or her personal benefit.
On May 23, 2017, Dr. Amy J. Reed, an anesthesiologist and mother of six children, passed away in her home at the age of 44. Her life was cut short by an aggressive form of uterine cancer, leiomyosarcoma. For her husband, the tragedy of her early death is entwined with regret and anger, as the two of them fought not only Stage IV leiomyosarcoma, but an intractable profession and the industry which profits from its practice.
At the age of 40, Dr. Reed was diagnosed with uterine fibroids. Fibroids are masses of the smooth muscle cells lining the inside of the uterus. Although fibroids are generally considered benign, their presence can cause serious discomfort and pain in the pelvic area. To treat her condition, Dr. Reed underwent a hysterectomy. She chose to have the procedure performed at Brigham and Women’s Hospital in Boston—the hospital is affiliated with the Harvard Medical School, where both Dr. Reed and her husband, Dr. Hooman Noorchashm both held teaching positions.
After her surgery, the tissue was removed, and a biopsy was performed. The tissue contained leiomyosarcoma cells, an extremely aggressive form of uterine cancer. Although the biopsy revealed that the cancer cells had been confined to a very small area within a fibroid, the procedure through which the fibroids were removed seeded malignant cells throughout her abdomen. The dissemination of cancer cells caused her cancer to accelerate to Stage IV. The five-year survival rate for patients diagnosed with Stage IV leiomyosarcoma is only 14%.
As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.
PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.
Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).
One of the most horrific mass shootings in the nation’s history occurred at Sandy Hook Elementary in Newtown, Connecticut. The shooter killed 20 children, all between the ages of 6 and 7, as well as 6 adults before killing himself. The families of those killed have brought a number of legal actions in response to the devastating losses they sustained on November 30, 2012.
Parents of children killed have brought several legal actions under various legal theories. One of the successful suits was against the shooter’s mother’s estate. Since she was also killed in the rampage, her estate was liable for injuries resulting from her negligent acts that contributed to the killing. The plaintiff’s claimed she negligently kept a Bushmaster AR-15 unsecured, allowing her troubled son access to the weapon. The parties settled for $1.5 million to be divided among the plaintiffs.
One family brought suit against the town and school district, alleging the school was unprepared and the response was insufficient. The trial court dismissed the case in 2018, ruling that the situation was so unexpected, intense, and wildly dangerous that hindsight regarding safety protocols could not be deemed negligent.
One out of five girls and one out of twenty boys are sexually assaulted. This figure may be much higher, as child sexual assault is frequently not reported, only revealed later in life when the adult can express what the child could not. Other times, the abuse is never reported. Whether or not reported, sexual assault causes grievous injury to the child. Children are among the most vulnerable of victims, but until recently, many states’ statutes of limitation were ill suited to redress survivors of childhood sexual assault.
In New York, prior to August 14, 2019, a child survivor of sexual assault had to file a civil suit for damages before his or her 23rd birthday. That window was as short as one year for certain types of claims. Claims against public institutions were even more restrictive, requiring the victim file a notice of claim within 90 days of the injury. Fortunately, on August 14, 2019 the New York Child Victims Act went into effect.
Going forward, a civil suit may be filed at any time until the survivor of sexual assault turns 55. This portion of the Act applies to claims that have not yet been extinguished under the old statute of limitations. In other words, individuals under the age of 23 (or younger, depending of the specific claim) will have until they turn 55 to file a claim. Essentially, young persons that are not ready to discuss their sexual abuse, have until their 55th birthday to bring suit.