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In 1998, I represented a young couple in their 40’s that emigrated from Italy.    We met under unfortunate terms as the husband was dying from leukemia. He was good man who sacrificed for his family taking whatever job he could to support them.  As a local mechanic, he was unaware that the products he used on the job were hazardous to him. He was exposed to benzene, which is a chemical proven to cause leukemia.  This exposure led to his premature death, leaving his wife to raise three young children on her own.

This week Supreme Court Justice Anthony Kennedy announced his retirement from the Supreme Court.  Justice Kennedy, a conservative, was appointed by President Ronald Reagan in 1987.  Although conservative, Kennedy’s upbringing in California is credited for his strong libertarian streak, often causing consternation to his court colleagues and petitioners alike. Kennedy often acted as the swing vote on substantial cases, and his legacy will be debated for years.  Others will no doubt write on the effect that his retirement, and the effect Trump’s appointment will have on major issues such as the right to abortion and same sex marriage. This blog is concerned with the possible effect of his retirement on environmental regulations and the role of the Supreme Court in interpreting them.

On April 30, 2018 in Lamps Plus Inc. v. Varela, the U.S. Supreme Court granted a writ of certiorari in a class arbitration case coming out of the Ninth Circuit.  The issue in Varela is whether the Federal Arbitration Act (“FAA”) precludes an interpretation of an arbitration agreement that may authorize class arbitration based solely on general language commonly used in arbitration agreements.  The Ninth Circuit held that even though the arbitration clause did not mention “class arbitration”, mutual assent to class arbitration could be inferred from the language that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” and a description of the substantive arbitral claims.  This issue is important to consumers nationwide because if the U.S. Supreme Court reverses the Ninth Circuit and disallows class arbitration in Varela, consumers subject to many other arbitration clauses from which class arbitration may be more readily inferred than the one in Varela could be precluded from seeking class arbitration and leveling the playing field against companies committing rampant consumer fraud.

Judge Arnold New of the Philadelphia Court of Common Pleas recently held that more than 100 pelvic mesh lawsuits filed against Ethicon, a Johnson & Johnson subsidiary, could remain here in Philadelphia County under an analysis for specific personal jurisdiction post Bristol Myers Squibb.

Recently obtained documents from the Environmental Protection Agency (EPA) by the New York Times reveal that the EPA is drastically reducing the ways that it monitors and assesses potential health and safety risks related to the use of scores of chemicals, especially those most dangerous. Perchloroethylene, as well as multiple other known human carcinogens* that are used in consumer products and come in contact with workers in various industries, will now be less monitored and assessed for safety risks as this document shows.  The change in procedure, a boon to the chemical industry, came as a result of intense lobbying from industry groups like the American Chemistry Council.  

On Monday, in Murphy v. National Collegiate Athletic Association, the United States Supreme Court struck down a federal law that effectively banned sports betting in most states. The Professional and Amateur Sports Protection Act, passed in 1992, prohibited states from authorizing sports gambling. Senator Bill Bradley (D) of New Jersey, a former college and professional basketball star, was one of the sponsors of the bill. The rationale for the law was the purported need to safeguard the integrity of sports. In a 6-3 decision (Justice Alito wrote the majority opinion; Justice Breyer agreed with much of it; Justices Ginsburg and Sotomayor dissented), the Court ruled that the law violated the Tenth Amendment of the U.S. Constitution, which states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. In other words, the Court found that the law violated state sovereignty and opened the door for individual states to pass statutes that would legalize gambling within their borders.

As I watch my younger sister being brought into a nursing home/long term care facility, weeks after having portions of her body amputated, I truly can empathize with so many family members as they deliver their loved ones into such facilities.  

A few years ago, I spoke on a radio show about nursing homes and one of the last questions posed was “which nursing home would you recommend?”  I thought for a brief moment and the answer came swiftly: NONE. I wasn’t trying to be cute or unduly harsh. Rather, I explained that there were too many variables and everyone who was faced with a situation such as my sister needed to do their own research into each facility.  Of course, sometimes families don’t have the luxury of choice, whether because of time-constraints or because of financial situations. But regardless, even if the decision is made because of finances or medical urgency, do your homework…and be THE watchdog for your loved one.

In recent years, there has been a lot of news about mental health issues plaguing the legal profession, including dangerously high rates of stress, anxiety, depression, and even substance abuse among lawyers.

A 2016 article published in The Journal of Addiction Medicine, detailed a collaborative study by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, which showed that in a sample of 12,825 licensed attorneys, 20.6% screened positive for hazardous, harmful and potentially alcohol dependency.  Furthermore, 28% of the attorneys surveyed in the study were experiencing symptoms of depression, 19% were experiencing symptoms of anxiety and 23% were experiencing stress. Last summer, the New York Times published the alarming article, "The Lawyer, the Addict", detailing the hidden drug abuse of a practicing attorney who ultimately died, likely due to a drug overdose.  More recently, in March 2018, the Harvard Business Review even reported that legal practice is the "loneliest" profession.  Many lawyers also report suffering from burnout, which can be avoidable and is not necessarily inevitable.

This Monday we celebrate Memorial Day.  For most, it is a time of barbeques, get-togethers, and car trips to visit family or to experience a long weekend getaway.  The official start of summer! Ahhh…

But I’d suggest that all of us must take some time to solemnly reflect on our Nation’s history, and on the sacrifices many were called to make so that we can kick back this weekend without the fear of dictators, guns and the devastation of war.

More on the “Bare Metal” Defense

Since the time I posted about the Third Circuit's favorable decision in Devries rejecting the “bare metal” defense for asbestos claims under maritime law, Defendants, CBS Corporation (Westinghouse), Air & Liquid Systems Corp. (successor by merger to Buffalo Pumps, Inc.), Foster Wheeler, LLC and Ingersoll Rand, Inc., sought review of the Third Circuit’s decision by the United States Supreme Court.  The specific question Defendants presented for review was: “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?”