Medical marijuana growers, labs file lawsuit against 2-lab rule

A new rule in Pennsylvania requiring cannabis growers to use different labs to test their products at the harvesting and final stages is on hold as the case is litigated in Commonwealth Court.

In early March, a group of cannabis growers and labs went to court to block the rule, saying its immediate implementation would have the result of voiding existing contracts and creating other problems.

The plaintiffs in the case are Green Analytics North LLC, doing business as Steep Hill PA; Hanging Gardens LLC; Pennsylvania Medical Solutions LLC; Curaleaf PA LLC; AES Compassionate Care LLC; Standard Farms LLC; and Parea BioSciences LLC.

Harrisburg attorney Judith Cassel, who is among those representing the plaintiffs, explained in an email that the state Department of Health developed temporary regulations for the medical marijuana program in 2017, permitting “each grower/processor to contract with a lab of their choice for testing at both of these stages.”

On March 4, the department released new, permanent regulations, mandating that one laboratory be used to test at the harvest stage and another at the final stage.

In their filing to block the two-lab rule, the plaintiffs argued that it throws a spanner into the existing system, effectively freezing the production and sale of medical cannabis, creating shortages and increased prices.

The permanent rules had been voted on and approved last October by the body that regulates the medical marijuana program in Pennsylvania. One of the reasons given by the state to defend the two-lab rule is it would better protect the public from contaminants.

Asked for a response from the Health Department, a spokesman from its press office released the following statement: “The department does not comment on pending litigation.” Its website did note that the two-lab reg is not being enforced as court action plays out.

The requirement strips “50% of the business away from a lab that previously performed testing for a grower/processor at both stages,” Cassel said. “And grower/processors lose the continuity and cost savings they achieve with using a single lab for both testing stages.”

The extra costs incurred will at least partly be passed on to patients, she said.

“The other potential harm is that production on products could be halted or less safe, which will also lead to negative impacts on patients.”

Cassel, of the firm Hawke McKeon & Sniscak LP, said the Department of Health “admits that there is no problem in Pennsylvania for which this regulation is aimed. And DOH has not justified its implementation of this regulation. In addition to not providing any rationale for the promulgation of this regulation, DOH has not provided any guidance as to its use. In other words, what if these two laboratories get two different results, which is likely since the two laboratories use different processes, different equipment, and different personnel and are testing two completely different products? … DOH doesn’t bother explaining what will happen when the inevitable discrepancies occur.”

She asked: “Will there be a third test required and would all three laboratories get different results? Does the product get destroyed? If the product is getting stalled or destroyed, that will mean less product in the market, which translates to higher prices again.”

The plaintiffs are challenging the rule legally on three counts, Cassel explained: that it is beyond DOH’s enabling statute, the regulation is an abdication of DOH regulatory responsibility, and the regulation violates the Constitution’s (state and federal) contract clause.

Both parties have been ordered by Commonwealth Court to file applications for summary relief. If neither wins, she said, “then the issues will go to full litigation.”

Oral arguments before the full court (en banc) are scheduled for May 10.

Paula Wolf is a freelance writer

Central Pa. social services agency brings lawsuit against Mid Penn Bank

The Center for Independent Living of Central PA (CILCP) announced Monday that it filed a complaint against Mid Penn Bank for allegedly breaching their contract and acting in bad faith. 

Filed in Harrisburg last Friday, the lawsuit seeks to hold Mid Penn Bank accountable for its actions, or lack of actions, and to obtain compensation for the damages CILCP endured. 

Based in Harrisburg, CILCP is a non-profit social services agency that aids people with disabilities, CILCP charges that for more than 10 years Mid Penn Bank allowed ACH withdrawals to occur in excess of $249,000 from an account that had no prior record of ACH transactions.

In a statement to the Central Penn Business Journal, the bank said it values its relationship with the nonprofit.

“We have always valued our relationship with The Center for Independent Living of Central PA (CILCP). While Mid Penn Bank cannot comment on pending litigation, we take the security of our customers seriously and will respond appropriately in court.”

CILCP states that Mid Penn Bank did not attempt to resolve, investigate, or assist CILCP in recovering the funds, and that Mid Penn Bank’s security procedures did not protect CILCP. 

“It is unprofessional and disappointing that a bank, who holds all the company’s funds, says they are sorry for your almost $250,000 loss, but there is nothing they can do to help get the money back,” CILCP CEO Janetta W. Green said in a statement. 

“As a small non-profit, we depend on our banks to protect our money and when the bank’s security measures fail, the bank should be held accountable.” 

The lawsuit looks to obtain compensation for the damages suffered by CILCP because of Mid Penn Bank’s actions. It also seeks to hold Mid Penn Bank responsible for its alleged lack of effective security procedures. 

Mid Penn Bank has headquarters in Millersburg and mid-state locations in Lehigh, Berks, Cumberland, Dauphin, and Lancaster counties. At time of writing, Mid Penn Bank had not yet responded to an email seeking comment.

Should employers have ‘Safe Harbor’ against COVID-19 lawsuits?

As businesses begin to return to operations, recalling employees, the Pennsylvania Chamber of Commerce is pushing for what it calls Safe Harbor protections for businesses against COVID-19 related lawsuits.

A coalition of 80 chambers of commerce in the state, including the Greater Lehigh Valley Chamber of Commerce and the Greater Reading Chamber alliance, are supporting the call, which they say will protect the state’s small businesses from “nuisance lawsuits.”

Gene Barr, president and CEO of the Pa. Chamber, said the concern is that a small business can be sued by someone claiming that business is responsible for contracting the COVID-19 virus, even if that business followed all of the CDC guidelines and put forth their best effort to maintain a safe environment.

“Pennsylvania employers have faced unimaginable challenges during this pandemic, the mandatory business shutdown and resulting economic fallout,” he said. “Many now face the threat of unwarranted, opportunistic lawsuits, including hospitals and many healthcare professionals bravely treating patients, companies who have been working to keep our critical supply chains intact, manufacturers producing personal protective equipment and others on the front lines.”

Franck Facchiano, COO and executive vice president of the Greater Lehigh Valley Chamber and one of the supporters of the protections, said the idea is to protect a business that is struggling to get back on its feet from unwarranted lawsuits.

“There is no business plan that involves closing for three months and then coming back at half capacity,” he said.

He said businesses right now are very vulnerable and a lawsuit could break a small business that has done everything possible to offer a safe environment.

“We’re not trying to cover up for any irresponsibility by employers,” Facchiano said. “This is to cover the good employers,” he said.

Jacob Sitman, chair of the employment law and labor relations practice at Fitzpatrick Lentz and Bubba in Allentown, said the proposal does pose some interesting questions.

“Employers do have a duty under OSHA to maintain a workplace from known health and safety risks,” Sitman said.

However, the General Duty clause that would cover such issues as preventing the spread of COVID-19 is vague.

“It is a bit ambiguous. There isn’t a specific list of things an employer can and can’t do,” Sitman said.

He pointed out that even the CDC guidelines are guidelines and not requirements.

Sitman said there are already protections in place for employees. The workers’ compensation system is set up to handle claims against an employer that was negligent.

For a lawsuit an employee would have to prove that an employer was grossly negligent in creating a safe environment.

But, that doesn’t mean an individual couldn’t file a lawsuit, and it’s the chambers’ concern that the cost of fighting such a lawsuit could break a business even if they ultimately win.

Sitman said such a case would be extremely hard to prove.

“You don’t know in most case, or it’s difficult to determine where the virus was contracted,” Sitman said. “You have to be able to assess where you got sick. Even medical professionals are having a difficult time determining how the virus is spread. If we know how this was spread we would be out of the pandemic right now.”

Overall, he said he agrees that small businesses don’t need the added exposure of COVID-19 related lawsuits, especially when they are doing everything they can.

Workers’ Compensation will cover most employees should they contract COVID-19 on the job.

“You’re going to have a small number of employers who won’t do the basic minimum. Existing laws are enough to protect those workers and you don’t want to overburden employers,” he said.

The Pennsylvania Chamber has sent a letter to all of the state’s federal and state representatives making the request to create Safe Harbor protections. To date there has no legislative action on the proposal

Complaint: B.Braun exposed neighbors to cancer risk

A class-action lawsuit alleges people living near Allentown’s B.Braun Medical Inc., plant were exposed to large amounts of harmful ethylene oxide gas, putting them at a higher risk of cancer than average.


The suit, filed on behalf of Mourad Abdelaziz and others by Morgan & Morgan, a Philadelphia-based law firm, accuses the medical equipment manufacturer of releasing the colorless, odorless gas from its plant at 901 Marcon Blvd. over several decades. The complaint says those exposed to the gas could be 18 times more likely to develop cancer than the average American.

The U.S. Environmental Protection Agency classifies ethylene oxide as a carcinogen.

B.Braun’s plant uses large volumes of the gas to sterilize medical equipment, according to the complaint. The gas is then released into the air.

B.Braun could not be reached for comment.

The plaintiffs, who are demanding a jury trial, are seeking compensatory damages, including the cost of a program for medical monitoring and health screenings.

Montco DA files suit against e-cigarette company

The Montgomery County District Attorney’s office is going after one of the leaders in the vaping industry.

District Attorney Kevin Steele was joined by special outside counsel, Saltz, Mongeluzzi, Barret & Bendesky, P.C. of Philadelphia in filing a civil complaint in the Court of Common Pleas against California-based Juul Inc.

Steele said studies have indicated that one-third of Montgomery County teens are vaping and/or using Juul products.

Also named as defendants were local retailers Guru KOP, Inc. (operator of Pantry 1 Food Mart), King of Prussia, and Market 24, of Norristown.

Steel said the two named defendant-retailers in Montgomery County were both cited by federal authorities following a national sting operation in 2018 for illegal sales to minors of Juul and other e-cigarette products.

The outside law firm working with the county will only receive compensation if the litigation is successful. The funds would come from the plaintiff and not taxpayers, Steele said.

The civil penalties and abatement costs sought would be applied, in part, to paying the costs of programs for:

  • Health care services and those associated with the early detection, ongoing testing, monitoring for detection of illness, disease process, or disease, diagnosis and treatment of resulting injuries and adverse health consequences of Juul’s conduct;
  • Combatting the abuse and diversion of the use of e-cigarettes by minors including tobacco education programs, cessation programs for users and public information campaigns to warn users of health effects and the addictive nature of the product;
  • Studying the effects of e-cigarette use in minors and the possible cures and treatments for the detrimental effects of using it.

According to the company’s website, in September, Juul Labs announced that its new CEO, K.C. Crosthwaite, is leading a broad review of the company’s practices and policies. As part of that process, the company suspended all broadcast, print, and digital product advertising in the U.S.

The company has also suspended the sale of its non-tobacco, non-menthol-based flavors in the U.S., including mango, creme, fruit, and cucumber, pending FDA review.

Juul has not yet returned a request for comment.

Allentown suing to recover opioid epidemic costs

The City of Allentown has filed a federal complaint in the Eastern District of Pennsylvania seeking to recover costs from what the city alleges was false, deceptive, and unfair marketing of prescription opioids by 20 defendants.

The 264-page complaint, filed August 27, alleges that the city has incurred costs related to opioid emergencies requiring the use of EMS teams, police, the city health bureau and more.

Purdue Pharma and Teva Pharmaceuticals are two of the 20 pharmaceutical companies listed as defendants.

The City of Allentown is represented in this litigation by attorneys Joe Khan and John Grogan of Langer Grogan & Diver P.C., a Philadelphia-based law firm.

The firm has been retained on a contingent basis. The City will not be indebted to the firm for any legal fees unless and until a recovery is made.

“The defendants have made huge profits on the manufacture, distribution, marketing and sale of opioids,” Mayor Ray O’Connell said in a news release. “While the city of Allentown and its residents have paid the high costs of providing services directly related to opioid-related emergencies and addictions. This suit is a way to battle back.”

In Lehigh County, 308 people died of drug overdoses between 2016 and 2017, with most of those deaths being related to opioids, according to the city of Allentown. More than a third of these people died within the city limits of Allentown.  Not counting deaths that occurred at hospitals, 72 Allentown residents died of an overdose in 2017.

Opioid addiction has also led to a number of robberies in Allentown according to the city, with more than 1,500 occuring in the last 10 years.

The full complaint can be read here-http://-https://www.allentownpa.gov/Portals/0/files/Mayors-office/Allentown%20Opiod%20Complaint%20Final%20.pdf?ver=2019-08-27-162952-753

Top court allows UPMC-Shapiro fight to continue

UPMC and Pennsylvania Attorney General Josh Shapiro are heading back to court in their battle over a consent decree requiring the Pittsburgh-based health network to take patients insured by Highmark Health.

The Pennsylvania Supreme Court on Tuesday reversed a lower court’s decision that would have ended the consent decree on schedule on June 30. Shapiro is fighting to have it extended indefinitely.

But the decision was not unanimous. The court ruled 4-3 in favor of Shapiro, finding fault with the reasoning of the Commonwealth Court. The ruling does not mean the decree will be extended, only that Commonwealth Court will have to rehear the case.

A date for a hearing has not been announced.

“As directed by the Supreme Court, my office will now make our case in Commonwealth Court on an expedited basis that modification of the end date is not just permitted — but necessary to ensure UPMC fulfills its role as a public charity and isn’t able to shun the very taxpayers whose tax dollars built their business,” Shapiro said in a statement.

UPMC was not immediately available to comment on the ruling.

The Supreme Court justices split over whether and to what extent the decree between UPMC and Highmark could be modified. The majority agreed it could and that, based on the decree’s language, there were no limits on how.

“Given the unbounded language of the Modification Provision, seasoned counsel likely foresaw, or should have foreseen, the possibility that significant alterations might be requested,” Justice David N. Wecht wrote for the majority.

In a dissenting opinion, Justice Max Baer said he agreed with the majority that Commonwealth Court ruled incorrectly, but that the decree’s modification clause should be limited. He wrote that changing the end date from June 30 to “indefinite” is not a modification.

“I conclude that the ‘modification’ sought by the Office of Attorney General is not a modification at all but, rather, an attempt to seek judicial intervention to eliminate the termination date and impose upon UPMC a permanent injunction requiring that it remain tethered to Highmark indefinitely,” Baer wrote.

The consent decree was reached in 2014 after UPMC and Highmark fell out over Highmark’s purchase of Allegheny Health System, a rival health system to UPMC. UPMC said it would stop accepting patients insured by Highmark. The consent decree created a five-year transition period.