Rising Temperatures Bring New Obligations for Maryland Employers
Maryland employers are facing the first summer under a heat-related illness prevention standard issued by Maryland Occupational Safety and Health (MOSH). MOSH joins several other Democratic-led Occupational Safety and Health Administration (OSHA) state-plan states, such as California, Nevada, Oregon, and Washington, that have promulgated similar standards in recent years.
Quick Hits
Maryland employers must comply with Maryland Occupational Safety and Health’s (MOSH) new heat-related illness prevention standard.
The MOSH standard has been criticized for its vagueness and the burden it places on employers, leading to potential confusion and inconsistent enforcement.
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo may limit MOSH’s ability to enforce its interpretation of the new standard, potentially leading to legal challenges.
The MOSH standard applies to all employers whose employees are exposed to an indoor or outdoor heat index of 80°F for more than fifteen minutes in an hour. At a heat index of 90°F or more, high-heat procedures apply. Maryland employers must:
monitor the heat index throughout the work shift;
develop and maintain a written heat-related illness prevention and management plan, made available to their employees and MOSH, that includes an extensive list of required elements, including the importance and availability of rest and drinking water, alternative cooling and control measures, symptoms of heat-related illness and how to respond, acclimatization, high-heat procedures, emergency response, and training;
acclimatize newly hired employees and those returning to the workplace after an absence of seven or more days;
provide adequate and accessible shade, or alternative cooling and control measures;
provide cool and potable drinking water throughout the workday (at least thirty-two ounces per hour per employee); and
provide training regarding heat-related illness prevention at least annually and “[i]mmediately following any incident at the worksite involving a suspected or confirmed case of heat-related illness.” The training must cover a list of specific topics, including environmental and personal factors affecting heat-related illness, acclimatization, the importance of water and rest breaks, signs and symptoms of heat-related illness, responding to heat-related illness, and how the employer will comply. Employers must retain training records for one year following the training date.
The MOSH standard is among the most onerous for employers and has been criticized for the vagueness of its acclimatization, monitoring, and training requirements. While MOSH claims the standard is intended to provide the flexibility to implement a program that considers the unique conditions present at each worksite, the standard’s breadth and ambiguity have caused confusion among employers and set the stage for inconsistent enforcement and litigation.
MOSH promised to provide guidance. It initially issued “Key Requirements” and a “Summary of Key Maryland Requirements fact sheet,” both of which simply reiterate the vague language in the standard. More recently, however, MOSH published an optional model program, itemizing specific and detailed actions that the agency stated employers should consider in developing their plan. Additionally, MOSH conducted a webinar to discuss compliance with the standard, and has now made the recording available on its website. In the webinar, MOSH offered some practical tips beyond the written guidance, including:
Employers may use the wet bulb globe temperature (WBGT) method to monitor the heat index, even though it is not specifically listed as an option in the standard.
The acclimatization schedule is specific to the individual employee—it can be less or more than the general timelines set forth in the standard.
Employers that use their own health care professional (HCP) for pre-employment physicals can direct the HCP to ask the new employee about chronic conditions or medications that pose additional risks for heat-related illness. Although the HCP should not share that specific information with the employer, the HCP can alert the employer that the employee may be more prone to heat-related illness.
Employers may not ask employees directly about their medical conditions or medications in advance of heat-related illness incidents. Employees should be trained that if they have such conditions, they must be more mindful of heat stress.
The definition of “alternative cooling and control measures” includes a variety of protective measures, such as misting equipment and cooling devices, that can alter the employer’s obligation to develop acclimatization procedures and mandatory breaks in accordance with the language in the standard.
The mandatory break periods do not necessarily require cessation of all work but instead can include light duty, paperwork, and similar activities.
Nonworking rest periods of under twenty minutes must be paid in compliance with the Fair Labor Standards Act. Longer nonworking breaks can be unpaid.
Employers must assume that day laborers and temporary employees are not acclimatized.
While the information MOSH provided in the webinar is helpful, additional written compliance guidance would be more helpful to employers developing plans. Given the ambiguous provisions in the MOSH standard, “Monday-morning quarterbacking” may be inevitable, with MOSH taking the position that the employer must be out of compliance if an employee suffers a significant heat-related illness. That position ignores the fact that heat-related illnesses often involve conditions outside of the employer’s control, such as illness, physical fitness, personal medical conditions, and age.
From a legal standpoint, MOSH’s ability to enforce its ad hoc interpretation of the standard’s provisions may be limited. In Loper Bright Enterprises v. Raimondo, the Supreme Court of the United States eliminated deference to an agency’s interpretation of its own statute. The holding will limit the ability of federal agencies to argue successfully that a court must defer to their interpretation of a standard or regulation. The effect of the Loper Bright holding on state regulatory provisions remains to be seen, but it could limit MOSH’s ability to impose its own interpretation of vague provisions on employers, particularly in the absence of written compliance guidance.
Federal Court Nullifies EEOC Guidance on LGBTQ+ Protections
On May 15, 2025, a federal court vacated portions of the U.S. Equal Employment Opportunity Commission’s (EEOC) workplace harassment guidance, specifically, guidance on harassment based on sexual orientation and gender identity. The court vacated portions of the EEOC’s enforcement guidance because the EEOC allegedly “exceeded its statutory authority by issuing” it and by “requiring bathroom, dress, and pronoun accommodations inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”
Quick Hits
A federal district court recently vacated parts of the EEOC’s guidance related to workplace harassment of LGBTQ+ employees.
Despite the Supreme Court’s holding in Bostock that discrimination based on sex in hiring or firing decisions violates Title VII’s prohibition on sex discrimination, the district court vacated the guidance based on the guidance’s “expanded” definition of sex discrimination to include sexual orientation and gender identity.
The court ruled that the EEOC exceeded its statutory authority by requiring accommodations related to bathrooms, dress, and pronouns, which it found inconsistent with Title VII of the Civil Rights Act of 1964 and recent Supreme Court precedent.
This decision follows President Trump’s executive order recognizing sex as binary and immutable, which has created uncertainty for employers regarding compliance with federal, state, and local antidiscrimination laws.
Background
In vacating the EEOC’s guidance related to LGBTQ+ workplace harassment, the U.S. District Court for the Northern District of Texas held that the EEOC’s April 2024 “Enforcement Guidance on Harassment in the Workplace” overstepped by stating Title VII’s prohibition on sex discrimination also prohibits discrimination based on sexual orientation or gender identity. The EEOC guidance flowed from the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, where the Court ruled Title VII prohibits employers from firing workers for being “homosexual” or transgender. The Court specifically held: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The Court’s key holding in Bostock went on to clearly state that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Following the Bostock decision, the EEOC published guidance in 2021 stating employers may not deny employees access to bathrooms, locker rooms, or showers aligning with gender identity. The 2021 guidance also stated an employer intentionally and repeatedly using an incorrect name or pronoun to refer to a transgender worker constituted unlawful harassment under Title VII. As noted in the district court’s memorandum opinion and order, the 2021 guidance was enjoined, but the EEOC issued new guidance in 2024, which the parties challenged.
On January 20, 2025, President Donald Trump released Executive Order 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”), which established that the federal government recognizes only two genders, male and female. This executive order instructed the EEOC to rescind portions of its harassment guidance that were inconsistent with the order.
On January 28, 2025, EEOC Acting Chair Andrea R. Lucas rolled back much of the Biden-era technical assistance related to discrimination and harassment against LGBTQ+ individuals. However, the April 2024 enforcement guidance has not been officially rescinded because the EEOC currently lacks a quorum.
The Court Order
The U.S. District Court for the Northern District of Texas granted summary judgment to the State of Texas and the Heritage Foundation, which had sued to block the EEOC’s 2024 guidance. The court concluded the EEOC may not legally:
define “sex” to include sexual orientation and gender identity; and
define “sexual orientation” and “gender identity” as a protected class under federal law; and
prohibit employers from repeatedly and intentionally using the wrong pronouns for transgender employees.
The court’s reasoning was based on its conclusion that the EEOC’s guidance is “final agency action” and that it “produces legal consequences and determines rights and obligations of covered employers.” According to the order, “the Guidance determines the legal obligations of employers in navigating accommodation requests from transgender employees.”
According to the court, the EEOC’s “Enforcement Guidance contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary. Second, the Enforcement Guidance contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”
Next Steps
Employers will want to note that it is still unclear whether the court’s order—which states the guidance is “vacated”—has nationwide impact, making next steps unclear at this time. Moreover, the vacating of this guidance does not necessarily mean that employers are not required to abide by the EEOC’s enforcement guidance.
Despite the court’s order, employers should note that Bostock continues to be good law. Nevertheless, courts across the country have differed on whether the Bostock decision extends to bathrooms, locker rooms, showers, or similar facilities for employees to use, as well as pronoun and name usage. Various state and local laws and guidance both protect single-sex facility usage based on gender identity, and, alternatively (in government buildings), require usage of single-sex facilities based on birth sex. Indeed, many states and localities protect both gender identity as well as sexual orientation under relevant state and local antidiscrimination laws. Employers should carefully assess how to create and maintain workplaces free of harassment, discrimination, and retaliation under all applicable laws, including with regard to using employees’ names and pronouns.
Acting Chair Lucas and the Trump administration have indicated their opposition to the EEOC guidance at issue, so it is unlikely that they would appeal this case to a federal circuit court. Employers in all states may wish to review their policies and practices to ensure compliance with state and federal laws banning discrimination based on sex.
Police Officer on Traffic Duty Assignment is Joint Employee of Their Police Department and the Contractor
When a police officer was seriously injured while working an extra traffic duty assignment, the question wasn’t whether he should get help – it was who should help pay for it.
That question has now been answered by the New Jersey courts in an unreported decision on May 14, 2025. The decision upholds the trial court’s decision that the private company the officer was helping that day must share the cost of his workers’ compensation benefits – even though the officer wasn’t technically their employee.
The ruling was based on the “special mission” doctrine. Normally, if you’re commuting to work and get into an accident, it’s not covered by workers’ comp. But the “special mission” rule says if you’re doing something outside your normal routine because your job requires it – especially in service of both public and private interests – it may still count as work.
The court found that from the moment the officer left the station in a marked patrol car, they were on duty for both the city and the private company. He was heading to a location specifically to provide traffic safety while the contractor worked, which is a service the company had paid the city to provide.
Because the city and the contractor had an agreement in place – including insurance, payment arrangements, and a clause about who’s responsible if something goes wrong – the court said it was only fair that they contribute.
This decision is important because it reaffirms that private companies that benefit from public officers’ services – especially under formal agreements – can be held financially responsible when things go wrong.
For workers, this case reinforces the protections of workers’ compensation – even when your job takes you outside the office or police station.
Supreme Court Scrutinizes Nationwide Injunctions and Birthright Citizenship
The U.S. Supreme Court heard oral arguments this week in Trump v. CASA, a case that could limit the ability of lower federal courts to issue nationwide injunctions, within the context of a challenge to a 2025 executive order issued by President Trump that would deny automatic citizenship to children born in the U.S. to undocumented immigrants and individuals with temporary legal status. Lower courts had blocked the policy from taking effect nationwide. The government challenged both the scope of that relief and the underlying interpretation of the Fourteenth Amendment.
Judicial Power Questioned
The Court is now considering whether federal district courts can continue issuing injunctions that halt enforcement of federal policies across the country and beyond the specific plaintiffs of a given case. District courts have relied on nationwide or universal injunctions for at least the last fifty years to suspend executive action in policy realms that include topics such as immigration, vaccine mandates, Title IX, and “Don’t Ask, Don’t Tell.”
Critics of nationwide injunctions argue that they exceed the scope of judicial power granted in Article III of the U.S. Constitution, encourage forum shopping, and force judges to make quick decisions on difficult and high-stakes legal questions. Proponents of nationwide injunctions state that they are often necessary to protect civil liberties, avoid confusion, and prevent proliferation of litigation.
While the Justices’ views on the constitutionality of President Trump’s Executive Order are expected to fall down party lines and appeared discernable from their questions and comments at oral argument, their views on the remedy—nationwide injunctions—are less predictable. During oral argument, the Justices almost universally expressed concerns about the practicality of eliminating nationwide injunctions while still providing litigants with expeditious avenues of relief. Some of the concerns raised by the Justices were: the hurdles of pursuing remedies through a class action, the Solicitor General’s reluctance to commit to abiding by a Court of Appeals’ precedent, and the burden on individual litigants.
The advocates before the Court offered a range of options that the Court might consider in deciding this issue. The United States’s position is that there should be a bright-line rule against nationwide injunctions. The state and city respondents encouraged the Court to reject a bright-line rule barring nationwide injunctions. Instead, New Jersey’s Solicitor General, representing a coalition of states opposing the Executive Order, offered three circumstances in which nationwide injunctions should be available: First, in circumstances in which a nationwide injunction is the only practical or legal workable way to remedy the harm for the parties (i.e. in the context of birthright citizen; Second, where Congress has so authorized; and Third, in cases where alternative forms of nonparty relief are not legally or practically available. The private party respondents alternatively suggested that the Court could limit universal injunctions to cases that challenge the constitutionality of a statute or policy involving fundamental constitutional rights.
Although the Court may sidestep the substantive issue here—how to interpret the Fourteenth Amendment’s Citizenship Clause—the unique challenges of citizenship highlighted the parties arguments on benefits and challenges of nationwide injunctions. For example, the Justices questioned how a patchwork of U.S. citizenship rules could be applied in practice if a nationwide injunction were not available.
Preparing for a Shift in Litigation Strategy
Organizations engaged in multi-state litigation, or that rely on early-stage injunctions to pause new federal rules, may see their options narrowed. A ruling that limits the availability of nationwide injunctions could require more targeted relief and could lead to inconsistent enforcement across jurisdictions.
This is a case to watch for companies, advocacy organizations, and public institutions navigating federal compliance and regulatory uncertainty. Those with exposure to immigration enforcement, benefits eligibility, or federal grant conditions should be particularly attentive to how the Court rules—and what it signals for executive authority going forward.
Next Steps
Given the potential for far-reaching change, it’s important for affected organizations to:
Monitor the Court’s decision, expected by the end of the Term, expected in late June or early July 2025.
Evaluate any reliance on nationwide injunctions in pending or anticipated litigation.
Review internal policies involving citizenship status, particularly where eligibility for services or programs depends on current federal interpretation.
Engaging experienced counsel early in the process can help clarify potential exposure and ensure flexibility in response to a decision that may reset the rules on both litigation remedies and immigration rights.
279 CLASS MEMBERS- $479,000 SETTLEMENT: The Pisa Group to Pay Over $1,600.00 Per Class Member In TCPA Settlement– But This One Is Interesting
Usually I would gripe about a TCPA settlement resulting in a payment of over $1,600.00 a class member. But in this case I kind of get it.
The Pisa Group has been trapped in a TCPA case since 2018.
That’s seven years of litigation in one case.
According to the amended complaint the defendant called Plaintiff repeatedly for marketing purposes without consent and kept calling after stop requests.
Well Pisa Group did not roll over in the case and fought it for years.
But all good things must come to an end *cough* so it elected to settle the claims of 279 people for nearly half a million dollars.
To be clear– they paid way too much for the class they settled. Then again holding plaintiffs counsel to a recovery of just ~$150k in fees for 7 years of work is pretty savage. Those guys have to be in a six figure hole on this. So nicely done!
Still you have to feel for Pisa Group who undoubtedly spent a half million in fees litigating only to pay another half million on top of that. This is not a large company that is out over a million bucks–and seven years of wasted time–on one TCPA case.
This did end up being a remarkable settlement for the class members– they will recover about $800.00 each! Not a bad recovery for someone who didn’t do anything but walk to the mailbox.
Case is Williams v. Pisa Group, 2025 WL 1410665 (E.D. Pa May 12, 2025).
Chat soon.
Is This Harvard Magazine Article Incorrect?
There have been numerous news reports about the discovery of an original Magna Carta at the Harvard Law School Library, including this article in Harvard Magazine. According to these reports, a document previously categorized as a “copy” of the famous charter has recently been determined to be the seventh known original of King Edward I’s 1300 Magna Carta.
Over the years, I have published several posts about Magna Carta, including Section 11 Class Actions And The Magna Carta, Non-Disparagement, The Magna Carta And Yelp, You Might Be Surprised By These Words In Magna Carta, andWhy The Wall Street Journal Is Wrong About The Magna Carta.
I do have two cavils regarding Harvard Magazine’s article. The article asserts:
A group of rebellious barons forced King John to sign it, establishing fundamental rights such as due process and habeas corpus, a legal concept that guarantees freedom from illegal imprisonment.
Not true. King John, aka John Lackland, did not actually sign the charter. He authenticated the charter by affixing his seal.
Second, the article uses the definite article “the” when referring to the charter. The charter was written in Latin, which does not use articles. This mistake can even be found in the California Education Code Section 33540 which requires that the Instructional Quality Commission “consider” incorporating “The Magna Carta” into the history-social science framework developed by the History-Social Science Curriculum Framework and Criteria Committee.
SHOW CAUSE: Verizon’s Choice to Blow Off TCPA Subpoena May Cost It
Quick on for you this AM.
So a guy named Jason Crews brought a TCPA suit in Arizona.
He issued a subpoena to Verizon back in December to obtain records of allegedly illegal calls made to this number.
According to Crews Verizon received the subpoena and simply refused to respond to it– its employees told him “Verizon would not comply because the subpoena was not a court order.”
Hmmmm.
Crews asked the Court to hold Verizon in contempt for failure to respond to the subpoena and also asked the Court to require Verizon to better train it employees.
Well in Crews v. Bermudez, 2025 WL 1411900 (D. AZ May 15, 2025) the Court granted the Plaintiff’s request in part– it ordered Verizon to show up and explain why it had not responded to the subpoena and why it should not be held in contempt.
Eesh.
On the other hand the Court did refuse to issue an order requiring further training of Verizon employees.
Generally speaking it is not a good idea to fail to respond to a subpoena in TCPA cases– or any case really. Federal judges have tremendous power to make your life miserable!
Ex Professor Accuses Penn State of Reverse Discrimination and Retaliation
Former Penn State writing professor Zack De Piero has filed a lawsuit against the university, alleging reverse discrimination and retaliation following his opposition to social justice and antiracist initiatives on campus.
Background
De Piero, a 40-year-old professor who identifies as white, claimed that his supervisors subjected him to embarrassment, harassment, and discrimination through various social justice and antiracism programs. He specifically objected to workshops and training sessions that required him to acknowledge “white privilege” and identify manifestations of “white supremacy” in culture and writing.
After lodging an internal complaint with the university, De Piero began to challenge the discourse on race during an online training session. Subsequently, other participants in the training filed a complaint against him, accusing him of bullying and harassment. The university’s investigation concluded that no bias or discrimination had been directed at De Piero or similarly situated individuals. However, it found that De Piero had engaged in aggressive and disruptive behavior. He received a written notice advising that his behavior was unacceptable and warning that future similar conduct could result in disciplinary action. His subsequent performance review reflected a decrease in two areas due to his disruptive behavior, although he received high marks for overall performance. Two months after receiving the review and shortly before the new school year began, De Piero resigned, later claiming constructive discharge.
The Suit
The lawsuit, initially filed in June 2023, alleges racial discrimination, a hostile work environment, and retaliation for exercising his First Amendment rights, in violation of the Civil Rights Act Title VII, 42 U.S.C. § 2000; 42 U.S.C. § 1983; 42 U.S.C. § 1981, and Pennsylvania’s Human Relations Act. The university responded with a motion to dismiss, arguing that engaging in uncomfortable discussions about race does not equate to race discrimination.
Ruling
On January 1, 2024, the Court partially granted and partially denied the defendants’ motion to dismiss. The Court reiterated the standards for each count alleged, noting that a claim of disparate treatment under Title VII, Section 1981, and the PHRA requires the plaintiff to demonstrate (1) membership in a protected class; (2) qualification for the position; (3) suffering an adverse employment action; and (4) circumstances suggesting intentional discrimination. The Court determined that the warning issued to De Piero was not disciplinary and that the negative performance rating did not materially alter his job conditions, as his contract was renewed and he received a raise.
On April 16, 2025, the Court dismissed the remainder of the case, granting Penn State’s motion for summary judgment. The Court rejected De Piero’s argument that institutional bias against his views on race created a hostile work environment, finding no evidence that his treatment deviated from legitimate workplace standards. The Court concluded that no reasonable jury could determine that De Piero was reprimanded or terminated due to his complaints.
The Legal Landscape
Given the recent ruling by the Supreme Court, which eliminated affirmative action in college admissions, the Trump Administration’s dismantling of DEI programs, and the current position of the Equal Employment Opportunity Commission’s (EEOC) focus on rooting out illegal DEI initiatives, claims such as these are expected to rise.
Tenth Circuit Affirms Dismissal of Trade Secret Claims for Lack of Particularity and Secrecy
On April 22, 2025, the Tenth Circuit affirmed summary judgment in favor of a sales manager and his new employer on claims under the Defend Trade Secrets Act (“DTSA”), the Oklahoma Uniform Trade Secrets Act (“OUTSA”), and common law claims for misappropriation of confidential business information and civil conspiracy, which were brought by his former employer, Double Eagle Alloys, Inc. (“Plaintiff”). Double Eagle Alloys, Inc. v. Hooper, 24-5089 (10th Cir. Apr 22, 2025).
Plaintiff alleged that the former employee misappropriated files containing pump shaft quality (“PSQ”) specifications (internal standards for specialty metal products), along with pricing data and customer drawings. The district court granted summary judgment in favor of Defendants, dismissing Plaintiff’s DTSA and OUTSA claims for failing to identify the alleged trade secrets with sufficient particularity and for not differentiating protected trade secrets from unprotected information. The court also dismissed Plaintiff’s common law misappropriation claim due to insufficient evidence of secrecy and consequently dismissed the civil conspiracy claim for lack of an underlying tort.
On appeal, the Tenth Circuit agreed with the district court, finding there was insufficient evidence that the allegedly stolen information qualified as a trade secret under the DTSA. The Tenth Circuit held that Plaintiff had failed to establish these elements, noting that much of the information had been publicly disclosed or shared with third parties, and that Plaintiff had not demonstrated what efforts it took to maintain the secrecy of the information.
The Tenth Circuit rejected the OUTSA claim for the same reason. Plaintiff grouped the allegedly misappropriated files into broad categories—namely, PSQ, pricing information, and customer drawings—but offered little detail to distinguish what, if anything, qualified for protection. Some documents were sourced from customers, some were shared online, and others reflected information available from competitors. According to the court, Plaintiff relied on affidavits containing conclusory statements asserting confidentiality, but provided no evidence identifying specific trade secrets or explaining how the information was secured or economically valuable.
This ruling illustrates how courts approach trade secret claims built on broadly described information and minimal factual support.
Georgia’s Tort Reform Legislation: Key Procedural Changes
Georgia’s tort reform legislation comes at an opportune time, as jury verdicts in recent years have been the stuff of records. Georgia was rated the #1 Judicial Hellhole in 2022 and 2023, and #4 in 2024. The new statutes, signed into law on April 21, 2025, aim to promote fairness in civil litigation procedure in the Georgia state courts, reality in consideration of damages, and commonsense fairness in trials and in liability standards for property owners, managers, and security personnel when crimes occur at their property. Key procedural changes are detailed below.
Motions to Dismiss
If a defendant files a motion to dismiss, then it shall no longer be required to file an answer until 15 days after the court either denies the motion or announces it will postpone deciding the motion until trial. Discovery will be stayed until the court rules on the motion, and the court is required to rule on the motion within 90 days after the conclusion of briefing on the motion. (Amendment to O.C.G.A. § 9-11-12).
Voluntary Dismissals
Plaintiffs are no longer permitted to voluntarily dismiss the complaint at any time before the first witness is sworn at trial. Now, unless all parties stipulate to the voluntary dismissal, a plaintiff must first obtain a court order to dismiss the complaint more than 60 days after the opposing party filed an answer. (Amendment to O.C.G.A. § 9-11-41).
Damages Model
The special damages model in Georgia personal injury cases is amended to remove the collateral source rule. Thus,
Truth in special damages. Special damages shall be limited to the reasonable value of medically necessary care. Juries can now consider amounts paid by health insurance or workers’ compensation. Letters of protection are relevant and discoverable. (New O.C.G.A. § 51-12-1.1).
The general damages (e.g., pain and suffering) available to a plaintiff are subject to these new regulations:
General damages guidelines:
Plaintiffs may not argue or suggest a specific amount of general damages until closing argument.
If the plaintiff elects to open and close the closing arguments, then he/she must make his/her specific amount known during the opening phase of his/her closing argument.
The argument for general damages must be rationally related to the evidence and shall not refer to values having no rational connection to the facts of the case. (Amendment to O.C.G.A. § 9-10-184).
Other Provisions
The playing field at trial is leveled to provide the following:
Seatbelt evidence is admissible.In cases involving motor vehicle accidents, evidence that the plaintiff was not wearing his/her seatbelt is admissible and relevant to the issues of negligence, comparative negligence, proximate causation, assumption of the risk, and apportionment of fault. (Amendment to O.C.G.A. § 40-8-76.1).
Trial bifurcation/trifurcation available upon request.In any personal injury or wrongful death case, any party may elect to have trial bifurcated or trifurcated into separate phases: fault – damages – punitive damages/attorney’s fees.o Exceptions may be made to the right to bifurcation/trifurcation upon motion for cases involving alleged sexual offenses and those involving less than $150,000 in dispute. (New O.C.G.A. § 51-12-15).
Finally,
A new series of statutes provides governance and guidance for negligent security cases.
The new laws provide stricter standards for imposing liability in negligent security cases and clarify the expectations on premises owners in the state.
Now, in order for a premises owner/occupier to be held liable by an injured invitee for negligent security, the plaintiff must prove:
(a) The third person’s wrongful conduct was reasonably foreseeable;
a. “Reasonably foreseeable” may be established by showing that the owner/occupier:
i. Had particularized warning of imminent wrongful conduct by a third person; or
ii. Reasonably should have known that a third person was reasonably likely to engage in such wrongful conduct on the premises based on one of the following:
Substantially similar prior incidents on the premises of which the owner/occupier had actual knowledge;
Substantially similar prior incidents on adjoining premises or otherwise occurring within 500 yards of the premises of which the owner/occupier had actual knowledge; or
Substantially similar prior incidents by the same third person that the owner/occupier had actual knowledge about and the owner/occupier knew or should have known that the third person would be on the premises.
(b) The injury sustained was a reasonably foreseeable consequence of the third person’s wrongful conduct;
(c) The third person’s wrongful conduct was a reasonably foreseeable consequence of the third person exploiting a specific physical condition of the premises known to the owner/occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises;
(d) The owner/occupier failed to exercise ordinary care to remedy or mitigate the specific and known physical conduction and to otherwise keep the premises safe from the third person’s wrongful conduct; and
(e) The owner/occupier’s failure to exercise ordinary care was a proximate cause of the injury sustained.
For a premises owner/occupier to be held liable to an injured licensee (e.g., a tenant’s social guest) for negligent security, the plaintiff must prove:
(a) The third person’s wrongful conduct was reasonably foreseeable because the owner/occupier had particularized warning of imminent wrongful conduct by a third person;
(b) The injury sustained was a reasonably foreseeable consequence of the third person’s wrongful conduct;
(c) The third person’s wrongful conduct was a reasonably foreseeable consequence of the third person exploiting a specific physical condition of the premises known to the owner/occupier, which created a reasonably foreseeable risk of wrongful conduct on the premises that was substantially greater than the general risk of wrongful conduct in the vicinity of the premises;
(d) The owner/occupier willfully and wantonly failed to exercise any care to remedy or mitigate the specific and known physical condition and to otherwise keep the premises safe from the third person’s wrongful conduct; and
(e) The owner/occupier’s failure to exercise any care was a proximate cause of the injury sustained.
Moving forward, in no case will a premises owner/occupier be held liable for negligent security where:
The injured party was a trespasser
The injury was sustained on premises not owned/occupied by the owner/occupier
The wrongful conduct complained of did not occur on the premises and in a place from which the owner/occupier had the authority to exclude the third person
The third-party wrongdoer was either a tenant under eviction or the guest of a tenant under eviction
The injured person came to the premises for the purpose of, or was engaged in committing a felony or theft
The injury occurred at a single-family residence or
The owner/occupier made any reasonable effort to provide information to law enforcement about a particularized warning of imminent wrongful conduct by a third person.
In order to assess whether the owner/occupier breached a duty to exercise ordinary care to keep persons on or around their premises safe from a third party’s wrongful conduct, courts and juries shall consider any relevant circumstances, including but not limited to:
The security measures employed at the premises at the time the injury occurred
The need for any additional or other security measures
The practicality of additional or other security measures
Whether additional or other security measures would have prevented the injuries
The respective responsibilities of owners/occupiers with respect to the premises and government with respect to law enforcement and public safety.
Moreover, juries are now required to apportion fault among all parties, including the criminal wrongdoer. If a jury assigns more fault to the property owner than to the criminal wrongdoer, then the court is required to order a new trial. There shall be a rebuttable presumption that an apportionment of fault is unreasonable if the percentage of fault assigned to the criminal wrongdoer(s) is less than the total percentage of fault assigned to all property owners, occupiers, managers, and security contractors. (New O.C.G.A. §§ 51-3-50 – 51-3-57).
Practical Implications of the Negligent Security Legislation
Given the new guidelines, it is critical that property owners and managers ensure that regular inspections are taking place. If there are fences, the fences should be checked and documented monthly. The same goes for gates, warning/no trespassing signs, locks, cameras, lighting, or other physical conditions or installments on the property.
Property owners and managers should consider current security measures and whether additional or different measures might be appropriate. If multiple reports of similar crimes are received, then property owners and/or managers should consider asking a security consultant to perform a premises security assessment and to make any recommendations for additional or different security measures at the premises.
The process for tenants to communicate with the property manager about any security concerns or reports should be seamless and explained to all current and new tenants. The tenants should be encouraged to provide as much detail as possible, including about the specific location of the property where the crime or other security issue occurred. All such reports should be maintained for at least three years, and a line of communication should be started with local police about tenant security complaints.
Staff should be trained to recognize when a tenant reports concerns about an immediate threat to the tenant by another person and to notify the police immediately by calling 9-1-1. The staff should record such reports to the police and maintain the records for no less than three years.
When Do These Changes Apply?
Thankfully, the majority of changes apply immediately and take effect even in existing cases. There are two exceptions for cases accruing on or after April 21 2025:
New code section O.C.G.A. § 51-12-1.1, limiting recoverable special damages to the reasonable value of medically necessary care, allowing juries to consider the actual costs paid, and making letters of protection relevant and discoverable
The negligent security legislation.
“Accruing” means that the underlying incident giving rise to the claim occurred on or after the effective date.
Justices Reject “Moment of Threat” Rule in Police Shooting Case – SCOTUS Today
The most anticipated event at the U.S. Supreme Court today was the oral argument in the birthright citizenship case.
While the question of birthright citizenship, which the Romans called jus soli, is important both in terms of constitutional law and American customs and mores, the underlying question in the case raises a procedural issue that will affect the litigators who follow this blog the most.
That is the question of whether cases involving injunctive or declaratory relief should be resolved by the issuance of nationwide injunctions and orders or just be limited to the actual parties and the district in which the case is at bar. The consolidated cases currently before the Court could be decided expeditiously. In any event, we shall follow developments closely and report promptly when a decision is issued.
For today, only one decision was forthcoming, with Justice Kagan writing for a unanimous Court in Barnes v. Felix, a not-insignificant case that reads like a law school exercise, but a very vivid and immediate one. Law enforcement officer Roberto Felix, Jr., pulled Ashtian Barnes over for suspected toll violations. Barnes ignored the officer’s order to exit the vehicle and began to drive away. Felix immediately jumped onto the doorsill and fired two shots into the car, fatally wounding Barnes, who was able to stop the car before he died. The entire encounter took five seconds, and only two seconds elapsed from the time the officer stepped onto the doorsill of the car until he fired.
On her son’s behalf, Barnes’s mother sued Felix, alleging that Felix had used excessive force in violation of the Fourth Amendment. In granting and upholding summary judgment in favor of Felix, the trial court and the U.S. Court of Appeals for the Fifth Circuit applied the “moment of threat” rule, which asks only if the officer was “in danger at the moment of the threat that resulted in [his] use of deadly force.” That rule renders irrelevant the examination of the events preceding the shooting. Because Felix reasonably could have believed that his life was in danger at the critical moment, the shooting was held to be lawful.
However, the Supreme Court unanimously vacated the Fifth Circuit’s judgment and remanded the case for further proceedings in what, I respectfully suggest, was a reasonable, thoughtful, and well-written opinion by Justice Kagan, whose writing is generally down-to-earth and direct.
The Court’s opinion begins with the recognition that there is no “easy-to-apply legal test” or “on/off switch” in this analysis. “Rather, the Fourth Amendment requires . . . that a court ‘slosh [its] way through’ a ‘factbound morass.’” Having done considerable sloshing, the Court held that a claim of excessive force during a stop or arrest is analyzed under the Fourth Amendment to establish whether the force applied was objectively reasonable from “the perspective of a reasonable officer at the scene.” In turn, this requires analyzing the “totality of the circumstances.”
But, contrary to the lower courts, the Supreme Court noted that the “totality of the circumstances” inquiry has no time limit. “While the situation at the precise time of the shooting will often matter most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones. Prior events”—such as the nature of the crime or warnings given to the suspect— “may show why a reasonable officer would perceive otherwise ambiguous conduct as threatening, or instead as innocuous.”
In the post-George Floyd times of fractious controversies over police confrontations with citizens, today’s decision demonstrates that all the Justices recognize the difficulty in recreating the conditions that have led to a police shooting and the mindsets and actions of both officers and suspects. The resolution of this case sensibly requires that analyzing “facts and circumstances” means considering all the facts and circumstances, beyond just the moment in which deadly force is employed.
Seventh Circuit Certifies Question Regarding the Impact of Regulatory Permits on CGL Pollution Exclusions to the Illinois Supreme Court
In the recent case Sterigenics U.S., LLC v. National Union Fire Insurance Company of Pittsburgh, No. 24-1223 (7th Cir. 2025), the Seventh Circuit court has asked the Illinois Supreme Court to clarify a key issue of state law regarding pollution exclusions in commercial general liability (CGL) insurance policies. The question presented before the court is whether industrial emissions of toxic chemicals authorized by a regulatory permit constitute traditional environmental pollution excluded from coverage or whether the permit alters the analysis. This answer could have significant implications for insurers and insureds facing liability for bodily injuries caused by environmental contamination.
Background
This case involves Sterigenics U.S. and Griffith Foods International, two companies that operated a medical supply sterilization plant in Willowbrook, Illinois, from 1984 to 2019. The plant used ethylene oxide (EtO), an allegedly carcinogenic gas, to sterilize medical equipment and devices. The companies emitted EtO into the air pursuant to a permit issued by the Illinois Environmental Protection Agency (IEPA) in 1984 – a permit that failed to limit the amount of emissions. In 2018, a federal report suggested that Willowbrook residents were experiencing “staggering and disproportionate” rates of cancer, allegedly due to exposure to EtO. Over 800 people filed lawsuits against Sterigenics and Griffith, claiming that they suffered various illnesses, including cancer, as a result of inhaling EtO emitted by the plant.
Sterigenics and Griffith sought insurance coverage for the lawsuits under their CGL policies issued by National Union Fire Insurance Company. The policies covered bodily injuries caused by an occurrence during the policy period but excluded injuries arising from the discharge of pollutants into the atmosphere, unless the discharge was sudden and accidental.
National Union denied coverage and refused to defend the companies, arguing that the policies’ pollution exclusions applied. In 2021, Sterigenics and Griffith sued National Union in federal court in Chicago, seeking a declaration that the insurer had a duty to defend them against the underlying claims.
The U.S. District Court for the Northern District of Illinois ruled in favor of Sterigenics and Griffith, finding that the pollution exclusion did not apply because the companies emitted EtO pursuant to a permit issued by the IEPA. The court relied on a 2011 Illinois Appellate Court decision, Erie Insurance Exchange v. Imperial Marble Corp., which held that ambiguity existed within that policy’s language as to whether emissions authorized by a regulatory permit constituted traditional environmental pollution and were excluded by a standard pollution exclusion in a CGL policy.
The Decision
National Union appealed to the Seventh Circuit, which decided to certify the question to the Illinois Supreme Court, the definitive authority on Illinois law. The Seventh Circuit noted that the Illinois Supreme Court, in its 1997 decision in American States Insurance Co. v. Koloms, 687 N.E.2d 72 (Ill. 1997), interpreted the pollution exclusion in CGL policies to apply only to injuries caused by traditional environmental pollution, and not routine emissions such as carbon monoxide from a furnace. However, the Court in Koloms did not address the relevance of a permit or regulation authorizing emissions. The Seventh Circuit also observed that its decision in Scottsdale Indemnity Co. v. Village of Crestwood, 673 F.3d 715, 716 (7th Cir. 2012), which held that permitted emissions were not exempt from exclusion, conflicted with the Imperial Marble decision, and that the question was important and likely to recur in future cases.
Implications of the Case
The Illinois Supreme Court’s answer to the certified question could have far-reaching consequences for insurance coverage of environmental claims in Illinois and beyond. If the court agrees with the district court and the Imperial Marble decision and finds that a permit or regulation authorizing emissions makes the pollution exclusion inapplicable, then insurers could face increased exposure for bodily injuries caused by industrial emissions that comply with permits but may nonetheless violate environmental standards, which could create liability for the emitter. This also could incentivize insureds to obtain permits or comply with regulations to avoid the pollution exclusion, regardless of the actual environmental impact of their emissions.
On the other hand, if the court agrees with National Union and the Scottsdale decisions and finds that a permit or regulation authorizing emissions does not affect the pollution exclusion, then insurers could avoid coverage for bodily injuries caused by a wide range of industrial emissions allegedly harming third parties, even those permitted by regulatory authorities. For example, this decision will likely significantly impact coverage for PFAS liability.
The pollution exclusion is a common and controversial provision in CGL policies, and courts across the country have reached different and sometimes conflicting results on its meaning and scope. The Illinois Supreme Court’s answer could provide clarity and guidance for future cases involving environmental contamination and insurance coverage nationwide.