It is a basic tenet of policy and politics that there is a difference between having power and being willing to use it. The FSMA appears caught in the midst of just such a difference. The FSMA legislation (which surprisingly was passed with broad bipartisan support just last December) gave the FDA broad new powers, but it now appears that current Congress is unwilling to let those powers be used. The evidence for this claim can be found in the fact that a proposed Republican 2012 budget suggests on cutting the FDA’s budget by 11.5%. Such a cut is inconsistent with the staffing growth necessary to implement the legislation’s goals. Something will have to give if the FDA is actually going to be able to use the powers it has been given.

For more information about this post, please contact Bob Cosgrove at .

There have been a lot of news reports about escaped exotic animals lately –- an escaped flamingo in Westchester the other week; the Ohio zoo owner who released all of his animals before killing himself last month; the Central Park Zoo peacock found sitting on a window ledge on Fifth Avenue in Manhattan earlier this summer; and of course, the poisonous Bronx Zoo cobra that slithered its way around NYC for an entire week back in April of this year. All of these stories got us thinking about the insurance implications of wild animal escapes and apparently we were not the only ones. New York Magazine’s [i]Daily Intel[/i] blog recently published an interesting article about the unique world of zoo and wildlife preserve insurance.

Typically, this type of insurance policy is not issued by a major insurance company, but by niche underwriters who specialize in these types of exotic risks. The insurers can issue a large policy covering the entire wildlife operation, or they can issue per-animal coverage based upon the type of animal, whether it is poisonous, its natural intelligence, its likelihood of causing damage or the type of injury the animal might inflict upon a human if it escaped. Quite naturally, the insurer that Daily Intel interviewed for the article owns a personal Noah’s ark of 26 tigers, leopards, cougars, emus, yaks, and Watusi cattle!

Another interesting point – in light of last month’s animal escape in Ohio, that state’s legislature has proposed a law requiring exotic animal owners to carry a minimum of $250,000 liability insurance and to implant electronic tracking devices in their animals

Thanks to Alex Niederman for his contribution to this post.

http://nymag.com/daily/intel/2011/10/so_what_kind_of_insurance_poli.html
http://www.officer.com/news/10441128/ohio-draft-law-would-limit-exotic-animals

How discoverable is a Facebook account? The courts have been all over the map as the posts from this blawg have made clear. In the case of [i]Patterson v. Turner Construction[/i], NY’s First Department grappled with this issue.

In [i]Patterson[/i], the plaintiff claimed physical injuries. Defendant demanded access. Motion practice ensued. After an in camera review, the trial court granted defendant access on the basis that disclosure would “result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” The First Department has now reversed. It has demanded that the trial court (or defendant — it is unclear from the order who has the responsibility) provide “a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

The moral of this story is that it if overworked (and underpaid?) trial court judges are required to perform in camera Facebook reviews, it is likely to become infinitely more difficult to obtain Facebook access. In the meantime, the best advice for defense attorneys seems to be to modify their Facebook demands to only seek access to records that “contradict or conflict with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Of course, the resulting self-selection will be performed by plaintiff’s counsel, so…

If you have any questions about this post, please contact Bob Cosgrove at .

A recent article in the Insurance Journal discussed how companies are beginning to focus on cutting health care costs with regards to group health plans. The article explains that a growing number of companies have begun to encourage workers to voluntarily improve their health and well being to control rising insurance costs. The need for such increase in premiums is highlighted by the statistic that tobacco users consume about 25% percent more healthcare services than non-tobacco users.

With such clear evidence that bad health habits cost companies money, Wal-Mart for example states that in 2012 they will charge tobacco users higher premiums for their health coverage.

The programs designed to charge unhealthy members higher premiums so far have met little resistance in Court. However, companies are still bound by the 1996 Health Insurance Portability and Accountability Act (HIPAA) which prevents workers from being discriminated on the basis of health. While employers do have the right to alter premiums based on the health of members, they do need to provide alternatives to workers who cannot make health changes.

While some argue that wellness programs and company intervention in the health of their members is unlikely to work, considering the cost of health insurance, some changes are certainly needed to maintain revenues through these tough economic times.

http://www.insurancejournal.com/news/national/2011/10/31/222111.htm

Thanks to Andrew Marra for his contribution to this post

In Wilinski v. 334 E. 92nd Housing Development Fund, the Court of Appeals up-ended an evolving body of case law that precluded a plaintiff from recovering under Labor Law § 240(1) when the plaintiff and the base of the object that fell on him stood on the same level.

There, the plaintiff was demolishing brick walls at a vacant warehouse owned by defendant. Previous demolition of the ceiling and walls left metal, vertical pipes measuring four inches in diameter and standing ten feet tall, exposed and unsecured. Before plaintiff began work, he voiced concern to his supervisor about the pipes. Nonetheless, they were not secured. Later that day, debris from a nearby wall knocked the pipes down, injuring plaintiff.

The Supreme Court granted plaintiff summary judgment, but the Appellate Division reversed and awarded defendant summary judgment. In doing so, it held that plaintiff’s accident was not the type of accident § 240(1) was meant to guard against since both the pipes and plaintiff were at the same level. Thus, the incident was not sufficiently attributable to elevation differentials to warrant imposition of liability.

In rejecting the “same level” rule applied by the Appellate Division, the Court of Appeals, quoting Runner v. New York Stock Exch., 13 NY3d 599 (2009), stated that, “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” Applying this rule, the Court found an issue of fact as to whether the defendant violated § 240.

The Court focused on the fact that plaintiff stood 5’6″ tall, that the pipes fell at least 4 feet before striking plaintiff, and that since they were 4″ in diameter, the height differential could not be described as de minimis given the amount of force the pipes were able to generate over their descent. Given these factors, the Court found that plaintiff suffered harm that flowed directly from the application of the force of gravity to the pipes.

However, although injuries arose the risk arose from a physically significant elevation differential, there was an issue of fact as to whether plaintiff’s injury was the direct consequence of a failure to provide adequate protection against that risk. In that regard, neither the plaintiff nor the defendant submitted sufficient evidence to establish that a protective device prescribed by the statute would have been applicable or inapplicable.

Thanks to Gabriel Darwick for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07477.htm

In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith’s bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury.

Defendant moved for summary judgment, citing that she had “no knowledge of her dog’s alleged propensity to interfere with traffic.” At trial, the Court denied defendant’s motion, because the court ruled that the prior instances of the dog of escaping defendant’s control and running towards the road constituted triable issues of material fact.

The Court of Appeals disagreed and reversed, because the dog’s prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog’s propensity.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07478.htm