Business Interruption Lawsuits

Business Interruption Lawsuits and COVID-19

While many small businesses carry property insurance coverage, which includes a coverage provision for business interruption and profits lost, insurance carriers are largely denying claims for losses related to COVID-19. Carriers are often arguing COVID-19 did not cause physical damage to trigger coverage. However, the definition of physical damage is not always clear, and insureds are arguing loss of ability to use a property constitutes physical damage. Small business owners pay for property insurance to cover losses to their business. Now insurers across the country are denying responsibility to cover these losses.

What is at stake here is enormous, and the American economy will no doubt be impacted by whether carriers are required to cover their insureds for COVID-19 related losses. Business owners are now forced to go to the courts to get determinations on their denied claims.

Business Interruption Statistics

Researchers at Harvard estimated that nearly 110,000 small businesses across the country had decided to shut down permanently between early March and early May, based on data collected in weekly surveys by Alignable, a social media network for small-business owners.

Small businesses account for 44 percent of all U.S. economic activity, according to the Small Business Administration (S.B.A).

Litigation Update

Due to the large quantity of COVID-19-related business interruption lawsuits, plaintiffs filed a motion with the Judicial Panel of Multidistrict Litigation to consolidate the cases into a multidistrict litigation (MDL) for discovery purposes. This would allow each litigant to have their own separate case but the cases would band together to share resources (such as case costs and efforts) to pursue the defendants who have denied the business interruption insurance claims. However, the JPML denied the request for consolidation.

In August 2020, the JPML denied the request for industry wide business COVID-19-related business interruption claims by concluding that the differences amongst the insurance providers would overwhelm any common factual questions between the cases in addition to hindering the efficient management of the litigation.

In October 2020, the JPML denied the request for consolidation for specific insurance carrier consolidated litigations including claims against major national insurers Travelers, The Hartford, Cincinnati Insurance and Lloyd’s.

The panel was chaired by Justice Karen K. Caldwell who concluded that centralization of the lawsuits would “not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation.”

Although the panel noted that consolidating the cases “presents a close question”, the judges ultimately decided that “efficiency here is best obtained outside the MDL context.” This means that the panel determined that it would be best to allow the various courts where the lawsuits have been filed to decide these questions.

At this time, insureds continue to file lawsuits across the country to recover insurance coverage for their business losses. Courts have begun to issue orders on the matter, with some denying coverage and others finding that the definition of physical damage is ambiguous enough to warrant further litigation to determine meaning. At least a few courts have determined loss of use of the property constitutes physical damage to trigger insurance coverage under the policy.

These claims will continue to be litigated for some time, and the law will develop further as courts continue to issue orders. We are hopeful that the positive decisions upholding coverage continue to come out to support small business owners during these unprecedented times.

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ParaGard IUD Lawsuit

What Is a ParaGard IUD?

A ParaGard intrauterine device (IUD) is a medical product that can provide birth control to women for up to 10 years after being inserted. Intrauterine devices are often referred to as a non-hormonal IUD option. The ParaGard device is comprised of a T-shaped plastic frame with copper wire coiled around it. The device is then inserted into the uterus and the copper wire creates an inflammatory reaction that is toxic to the sperm and eggs (ova)—preventing pregnancy.

Although the ParaGard IUD is intended to be easily removable and allow for women to conceive after the device has been removed, there can be painful complications if the device fractures or breaks. Now dozens of lawsuits are being filed by women who claim that the ParaGard broke during the removal procedure.

Injuries from ParaGard IUDs

Since 2010, the Food and Drug Administration (FDA) has received more than 1,600 reports of ParaGard breakage, with more than 700 reports classified as ‘serious.’ A study published by the American Journal of Obstetrics & Gynecology found that ParaGard users may experience higher expulsion rates and unwanted pregnancies compared to other IUDs.

Other injuries from ParaGard IUDs include:

  • ParaGard device becomes embedded in the uterus
  • ParaGard device becoming “stuck” in the uterus
  • Perforation of the uterine wall
  • Movement or migration of the device which can lead to organ damage
  • Device breakage during surgery
  • Inflammation and other injuries from the copper left in the body
  • Scarring inside of the uterus
  • Possible hysterectomy or uterus removal required
  • Infections
  • Ectopic pregnancy
  • Pelvic pain
  • Expulsion

State Court Cases in Pennsylvania

Currently 21 ParaGard lawsuits have been filed in Philadelphia in the Court of Common Pleas. The lawsuits are currently overseen by Judge Daniel Anders.

ParaGard IUDs were originally manufactured by Teva Women’s Health Inc. before the company sold the product to Cooper Pharma.

Petition to Consolidate ParaGard IUD Lawsuits Into MDL

A group of plaintiff attorneys filed a petition with the Judicial Panel for Multidistrict Litigation (JPML) on September 24, 2020 to transfer the ParaGard IUD lawsuits to the United States District Court for the Central District of California for pretrial consolidation and coordination.

The petition notes that there are currently 55 lawsuits pending in 29 different judicial districts across the United States and that a multidistrict litigation (MDL) is relevant due to how similar the cases are. The lawsuits are claiming that the IUD devices were defectively designed and manufactured, and that the manufacturer Teva Pharmaceuticals failed to warn that the device could break during removal and failed to warn of the device’s potential negative side effects. The petition states that “in this instance, transfer, coordination and consolidation is appropriate because many common questions of fact and law exist, including but not limited to the following: whether ParaGard was defectively designed; whether the ParaGard lots at issue contained manufacturing defects; whether ParaGard was marketed with an adequate label; whether Defendants conducted adequate pharmacovigilance of ParaGard; and whether Defendants engaged in negligent conduct resulting in Plaintiffs’ injuries.” The JPML will consider an argument from parties involved during a hearing session scheduled for December 3, 2020 in San Antonio, Texas.

GoldenbergLaw Can Help

The Minnesota Defective Medical Device Attorneys at GoldenbergLaw have over thirty years of experience representing victims who have been harmed by a defective medical device. Contact us today and leave the sleepless nights to us.

Dangers of Exposure to PFAS ‘Forever Chemicals’

Oakdale Drinking Water Contamination

The Star Tribune reported in September 2020 that Oakdale, Minnesota residents who drank water contaminated with PFAS “forever chemicals” experienced increased rates of infertility, premature births and low birth weights. According to the findings, for the past few years, babies in Oakdale were 35% more likely to weigh less than 5.5 pounds at birth, nearly 45% were more likely to be born before 32 weeks’ gestation, and the general fertility rate was 15-25% lower compared to communities where water was not contaminated with PFAS chemicals.

What are Forever Chemicals?

PFAS is short for perfluoroalkyl and polyfluoroalkyl substances. This grouping of more than 5,000 man-made chemicals are known as ‘forever chemicals’ as a result of the substantial amount of time required for these chemicals to break down in the environment.

PFAS chemicals are identified by their fluorine and carbon bonds which are very difficult to break–leading to the extremely long amount of time it takes for these chemicals to disintegrate. PFAS chemicals have been used in multiple industries since the 1940s due to their ability to repel oil and water. They can be found in Teflon nonstick products, polishes, waxes, clothing, stain and water repellants, paints, cleaning products, food packaging, and firefighting foams.

How Did PFAS Chemicals Contaminate the Water?

The 3M- Oakdale Disposal Site (sometimes called Oakdale or Granada Dump) is located along Old Hwy 5 / County Road 14 in Oakdale–just west of Interstate 694. The disposal site consists of three old chemical waste dump sites (Abresch, Brockman, and Eberle) used during the late 1940s through 1950s for waste burial (including PFAS chemicals), drum reclamation, and the open burning of combustible materials. As a result, ground, surface water, and soil contamination occurred at this site. The Minnesota Pollution Control Agency (MPCA) first investigated the 3M- Oakdale Disposal site in 1980 and discovered a variety of hazardous substances were present there–especially volatile organic compounds (VOCs) and PFAS chemicals.

According to the Minnesota Department of Health, the waste containing PFAS chemicals that was disposed of in the 3M- Oakdale Disposal Site and former Washington County Landfill seeped into the groundwater and entered Raleigh Creek, which flows from the Oakdale Disposal Site into the city of Lake Elmo. The contaminated water was then discharged to Eagle Point Lake in the Lake Elmo Park Reserve. PFAS chemicals have now been detected in one private well in Oakdale, approximately 300 private wells in Lake Elmo, and one of Lake Elmo’s municipal wells. PFAS chemicals originating primarily from the 3M- Oakdale Disposal Site have been detected in most of the Oakdale municipal wells. In 2006, 3M funded the construction of a water treatment plant for Oakdale’s primary municipal water wells in addition to funding the installation of a new city well outside of the contaminated area in addition to continued clean-up efforts in both Lake Elmo and Oakdale.

What Is Being Done About This?

Peer-reviewed research published in April 2020 in the scientific journal Environmental Health highlighted the causal link between the chemicals and the adverse reproductive impacts. Philippe Grandjean, the leading chemicals researcher at Harvard University, explained that the Washington County suburb has become a “natural experiment” due to the fact that there have been measurable differences in health outcomes before and after the water treatment facility was installed in 2006 to remove the PFAS chemicals from the municipal water supply.

Former Minnesota Attorney General Lori Swanson believes that the scientific links between the PFAS contamination caused by 3M and the adverse health effects “will be used in litigation that has been filed and is going to be filed, not just here but in other countries as well.” Swanson successfully sued 3M in 2018, resulting in an $850 million settlement for environmental damages.

New research conducted by David Sunding, a natural resources economist at the University of California-Berkeley, was used during the 2018 3M trial in which Sunding was called as an expert witness. The findings showed that from 2001 to 2006, Oakdale mothers exposed to PFAS-contaminated drinking water were 34% more likely to deliver premature babies compared with county mothers who did not drink the contaminated water. Sunding said, “I was always confident in the result–they practically jumped off the screen from the first time we ran the model–and I swore so in my testimony for the [attorney general].”

However, the Minnesota Department of Health stands by its 2018 conclusions that there was not an unusual increase in low birth weights or premature births in Washington County. Jessie Shmool, the Department of Health epidemiologist who coordinated the state’s analysis, said the state used more detailed data over more time points than the studies cited by Swanson’s team.

Lawsuits Against 3M

In September 2020, 3M was sued over ‘forever chemicals’ pollution by the Hopatcong Borough in New Jersey. The federal lawsuit alleges that 3M concealed risks posed by the forever chemicals that were manufactured by the company and that the company had known about the dangers associated with PFAS for years but withheld that information from consumers, government entities, and the public. The lawsuit also alleges that 3M manipulated scientific research on the chemicals, which led to the borough’s drinking water becoming more contaminated. The complaint alleged: “3M marketed and sold PFAS with the knowledge that PFAS would be released into the environment and without warning users or others of the risks of PFAS to the environment and to human health.”

The contamination likely occurred when 3M manufactured and marketed the toxic chemicals for use in the Garden State and the substances ended up contaminating the groundwater that supplies the Hopatcong Borough’s wells which serve approximately 7,000 people. Seven of the wells contain perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). The levels of those PFAS in five of the wells exceed the “maximum contaminant levels” set by New Jersey regulators.

Complaint Alleges 3M Knew PFAS Chemicals are Toxic

The federal lawsuit includes counts for negligence, failure to warn, nuisance and trespassing. The borough is seeking funds for the investigation, treatment, remediation, and monitoring costs related to the contamination. The complaint claims, “3M knew or should have known that in their intended and/or common use, products containing PFAS would very likely injure and/or threaten public health and the environment in New Jersey.”

The complaint alleges that 3M concluded in the 1950s that PFAS are “toxic” based on internal studies and, by the early 1960s, 3M “understood that some PFAS are stable, persist in the environment, and that they do not degrade.” However, according to the complaint “despite the defendant’s specific knowledge of the dangers and serious harm that could result from the continued use, manufacture, marketing, and distribution of PFAS. Defendant failed to provide this information to federal or state regulators, the general public or plaintiff.”

After facing pressure from the U.S. Environmental Protection Agency, 3M started to phase out production of PFOS and PFOA products in 2000 before ceasing production in 2002. However, the Hopatcong Borough’s attorney said: “3M is responsible for contaminating the drinking water of the community served by my client, with the dangerous PFAS chemicals, for decades.”

In response, 3M stated that the company “acted responsibly in connection with products containing PFAS and will vigorously defend our record of environmental stewardship.”

How GoldenbergLaw Can Help You

Our Minnesota Cancer Attorneys have over 30 years of experience representing victims harmed by toxic exposure. Contact our team today for a free consultation, and leave the sleepless nights to us.