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New Associate Jennifer Gardner Joins Gallagher Sharp LLP

 

 

 

 

(NOVEMBER 17, 2020) – The law firm of Gallagher Sharp LLP is pleased to announce that Jennifer L. Gardner has joined the firm as an Associate.

Ms. Gardner defends businesses, insurance carriers, and individuals against claims for breach of contract, personal injury, property damage, and wrongful death. She also has experience with contract drafting and review, compliance with federal employment regulations, and complex environmental litigation.

Ms. Gardner received her law degree from American University, Washington College of Law, and her undergraduate degree from John Carroll University.  She is a member of the Ohio State and Cleveland Metropolitan Bar Associations, and serves as an OBEST Lecturer for Cleveland-Marshall College of Law and on the Board of Directors of the John Carroll University Alumni Association. 

Gallagher Sharp is a trial and business practice firm focused on the defense of civil claims and lawsuits for corporations, insurance companies and their policyholders. The firm's areas of experience include general litigation, business and employment, insurance, transportation, professional liability, product liability, mass torts, and appellate law.  Founded in 1912, the firm’s main office is located at 1215 Superior Avenue, 17th Floor, and has offices in Columbus, Toledo, and Detroit, Michigan. 

For further information, please contact Jeanne Kostelnik, Director of Client Services, at 216-522-1082. - (Gallagher Sharp LLP)

 

 

Folluo Elected to Board of Regents of the American College of Trial Lawyers

Dan Folluo, Partner
Rhodes, Hieronymus, Jones,
Tucker & Gable, PLLC

 

(OCTOBER 5, 2020) - Dan Folluo, a Partner of Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC was recently elected to a four year term as a member of the Board of Regents of the American College of Trial Lawyers. He will be the Regent for Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. The Board of Regents is the governing body of the College.  John H. Tucker of Rhodes, Hieronymus, Jones, Tucker & Gable is very proud of Dan for this distinguished recognition. (Rhodes, Hieronmyus, Jones, Tucker & Gable, PLLC)

 

Maryland Abandons the Frye-Reed Standard for Admissibility of Expert Testimony and Adopts Daubert

(SEPTEMBER 25, 2020) -  Over 40 years ago, in the case of Reed v. State, Maryland adopted the general acceptance standard for admitting expert testimony rooted in novel scientific principles.  283 Md. 374 (1978).  Under this standard, expert testimony rooted in novel scientific principles was admissible only if the basis of the opinion was generally accepted as reliable within the relevant scientific community.  This standard was commonly called the Frye-Reed standard.  In the years that followed, and with the adoption of Maryland Rule 5-702, this standard morphed into what was known as the “Frye-Reed Plus” standard.  Under this morphed standard, the trial court was tasked with: (1) determining whether the expert’s principles and methods were generally accepted, and then (2) assessing whether the expert’s testimony had an adequate supply of data and applied a reliable methodology.        

In Rochkind v. Stevenson, the Maryland Court of Appeals abandoned the Frye-Reed standard in favor of the Daubert standard for admissibility of expert testimony. 2020 Md. LEXIS 414 (August 28, 2020).  Under the Daubert standard, an expert’s testimony is admissible only if it is sufficiently reliable. To assist the trial courts in assessing the reliability of expert testimony, the Court adopted ten non-exhaustive factors:

(1) Tested/testable—whether the theory or technique can be (and has been) tested;
(2) Peer review—whether the theory or technique has been subjected to peer review and publication;
(3) Error rate—whether the technique has a known or potential rate of error;
(4) Controls—the existence and maintenance of standards and controls;
(5) General acceptance—whether the theory or technique is generally accepted;
(6) Independence—whether the experts are testifying related to research conducted independent of litigation, or whether they developed their opinions expressly for purposes of testifying;
(7) Analytical gap—whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(8) Differential diagnoses—whether the expert has adequately accounted for obvious alternative explanations;
(9) Diligence—whether the expert is being as careful as he or she would be in his or her regular professional work outside of paid litigation consulting;
(10) Reliable field—whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.
Id. at *48.

The extent to which this change in jurisprudence will have a practical impact on the admissibility of expert testimony is widely debated and remains to be seen.  The Court of Appeals was “[not] convinced that adopting this standard in Maryland will upend Maryland evidence law.” Id. at *46.  Regardless, the Rochkind opinion provides clear guidance as to what factors litigants, attorneys, and experts, should consider in assessing the admissibility of expert testimony. - (DeCaro, Doran, Siciliano, Gallagher & DeBlasis)

 

New Jersey Judge Denies Insurer's Motion to Dismiss COVID-19 Bi Claim

(SEPTEMBER 29, 2020) - Since the outbreak of the COVID-19 pandemic, most insurers throughout the country have denied business interruption (BI) claims received from their policy holders based on the economic losses they have suffered as a result of the virus. Many insurers rely on specific language contained in their policies that exclude claims arising from losses due to viruses, bacteria or "contamination". Even when such precise language is not included in the policies, insurance carriers throughout the industry have denied the claims based on their contentions that the claimed losses did not result from "property damage" because there was no physical damage to the structures or covered property.

Despite billions of dollars in losses claimed by businesses, the public sentiment supporting coverage and the outcry of private citizens, insurance regulators and many politicians, the demands that the government intercede to mandate that insurers cover these claims have largely been unsuccessful. Moreover, although litigation has been threatened throughout the nation, relatively few lawsuits have been filed in proportion to the number of potential claims. In the suits that have been filed, the presiding judges in all but a couple of cases have granted the defendant insurers' motions to dismiss these legal actions. Most of the decisions support the insurers' position that the claims are not covered because of the absence of some physical damage to the covered property.

In a suit pending in the Superior Court of New Jersey, Bergen County, the Hon. Michael N. Beukas recently denied Franklin Mutual Insurance Company's motion to dismiss a lawsuit filed by Optical Services USA. In that case, Optical conceded that its business did not suffer "physical" damage i.e. a material alteration or damage but asserted that it suffered business income losses as a result of the state's coronavirus quarantine and stay at home orders. During telephonic oral argument of Franklin Mutual's motion to dismiss conducted on August 13, 2020, Judge Beukas stated that "the term "physical" can mean more than material alteration or damage." Judge Beukas was receptive to Optical's claim that it suffered a covered physical loss due to Governor Murphy's Executive Orders and permitted the case to proceed. Significantly, Judge Beukas ruled that it is the insurer's burden to prove that the claim is not covered.

Judge Beukas' ruling is inconsistent with the rulings of many state and federal judges in other jurisdictions including Michigan, Texas, California, New York and the District of Columbia. In those cases, the jurists ruled that coverage is excluded unless the policy holder's losses derived from some tangible physical damage to property. Judge Beukas' decision is, however, consistent with another by the Hon. Stephen R. Bough of the United States District Court, Western District of Missouri issued in the class action suit, Studio 417 v. Cincinnati Ins. Co. Judge Bough denied Cincinnati's motion to dismiss filed pursuant to FRCP 12(b)(6). A motion under this statute seeks a dismissal based upon the defendant's claim that the complaint failed to state a cause of action upon which relief may be granted. In deciding such motions, the court is constrained to accept all allegations set forth in the complaint as true. In the Studio 417 case, Judge Bough gave policy holders hope when he ruled that the complaint, on its face, sufficiently stated a claim that may have merit. Significantly, Judge Bough emphasized that the policy by Cincinnati Insurance Co. did not include a virus or bacteria exclusion. He noted that the policy holders contend that the subject policies were "all risk" policies that provided coverage for economic losses due to a covered "physical loss or physical damage" and that the policies did not define the terms "physical loss" or "physical damage". The Court was clearly receptive to the claimants' arguments that a physical loss may be different than physical damage. He also was receptive to the viability of a claim that the coronavirus was physically present on the covered property. Although Judge Bough did not rule Cincinnati is required to cover the claimed losses in that case, he permitted the case to proceed.

Although Judge Beukas' ruling provides hope and optimism for policy holders who have suffered business interruption losses as a result of executive orders, business owners should appreciate that his ruling may not have the precedential effect they hope for. In the Optical case, Franklin Mutual Insurance Company's counsel apparently conceded that the virus exclusion in its policy does not apply. This contention is seemingly in contrast with the positions taken by most other insurers who have successfully argued that the unambiguous language of their policy exclusions must be strictly interpreted and enforced. That fact notwithstanding, discovery in the suit will proceed and the case will continue with discovery and possibly a trial. These facts potentially open the door for millions of business owners to seek recovery for their losses.

Questions concerning this publication, or the handling of COVID-19 claims should be directed to Kenneth S. Merber, Esq. who is a partner of Gallo Vitucci Klar, LLP and who is leading GVK's COVID-19 Response Team at 201-683-7100 ext. 106 or [email protected] - (Gallo Vitucci Klar LLP)

 

Newsflash: New FMCSA Hours of Service Regulations Go Into Effect On September 29, 2020

(SEPTEMBER 29, 2020) - The long awaited final Federal Motor Carrier Safety Administration (FMCSA) rule revising hours of service (HOS) regulations to provide greater flexibility for drivers subject to those rules, without adversely affecting safety, was published recently in the Federal Register. The final ruling can be found here, but below is a summary of what is involved.

FMCSA Hours Of Service Regulations


The FMCSA:

  1. Expands the short-haul exception to 150 air-miles (from 100 air-miles) and allows a 14-hour work shift (from a 12-hour work shift). The remaining requirements of the exception remain in effect. The exception relieves drivers from filling out logs and allows the use of time sheets.
  2. Expands the driving window during adverse driving conditions by up to an additional 2 hours;
  3. Requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving (in addition to off duty and sleeper berth) period to qualify as the required break; and
  4. Modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8, hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside of the berth, provided the two periods total at least 10 hours, and that neither qualifying period counts against the 14-hour driving window.

The new regulations go into effect on September 29, 2020.

As always, we will continue to monitor this update and provide additional information as it is disseminated. If you have questions, feel free to contact Gallagher Sharp LLP.

 
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