Emerging Litigation & Risk Archives

The Future of Cyber Operations and the Government

June 7th, 2019|Categories: Corporate Compliance, HB Risk Notes, Technology Law|Tags: Compliance, Constitutional Law, Critical Infrastructure, Cybersecurity, Emerging Litigation & Risk|

In the forthcoming National Defense Authorization Act the House Armed Services Committee -- specifically the Subcommittee on Intelligence and Emerging Threat Capabilities -- seeks to amend the annual legislation to ensure that Congress is informed when the executive branch executes offensive or defensive cyber operations. The bill defines offensive or defensive cyber operations as a “sensitive military operation.” The goal of this shared information is additional oversight, especially given the newness of cyber tactics. As reported by journalist Derek B. Johnson of FWC.com, two covert cyber operations have taken place since POTUS announced the new policy. The first was in October 2018, a cyber operation with a goal of informing Russian operatives not to meddle with the midterm election. The second took place the following November in which the U.S. Cyber Command blocked access to Russian Internet Research Agency post election. While these two operations have been called “mild” in some critiques, former White House Director of Cyber Infrastructure Protection under President George W. Bush, Jason Healey, believes this highly specialized tactic is ideal since it presents the least potential for collateral damage. While Healey warns against grand and overt attacks, he states that sometimes "conflict is straightforward and you just have to stop adversaries from punching you in the mouth.” Read the complete post by Derek B. Johnson on FCW.com [...]

Top Class Actions: Vaccine Litigation Case Roundup

April 19th, 2019|Categories: Class Actions, HB Risk Notes, Mass Torts|Tags: Emerging Litigation & Risk, Personal Injury, Product Liability|

[one-half-first][/one-half-first] [one-half]There have been numerous lawsuits filed alleging injuries caused by the shingles vaccine Zostavax. Cases have stated they were not warned of the adverse side effects of the vaccine alleging it caused the diseases it is meant to prevent, among other things. Here is what the CDC says to consumers: “Your risk of shingles and postherpetic neuralgia (PHN) increases as you get older. CDC recommends that people 60 years old and older get shingles vaccine (Zostavax®) to prevent shingles and PHN. Shingrix (recombinant zoster vaccine) is the preferred vaccine, over Zostavax® (zoster vaccine live), a shingles vaccine in use since 2006. Zostavax may still be used to prevent shingles in healthy adults 60 years and older. For example, you could use Zostavax if a person is allergic to Shingrix, prefers Zostavax, or requests immediate vaccination and Shingrix is unavailable. Zostavax (zoster vaccine live) was licensed by the FDA in 2006. This vaccine reduces the risk of developing shingles by 51% and PHN by 67%. It is given in one dose as a shot, and can be given in a doctor’s office or pharmacy.“ Read more: https://www.cdc.gov/vaccines/vpd/shingles/public/zostavax/index.html The vaccine is produced by Merck & Co. Their product information can be found here: https://www.merckvaccines.com/Products/Zostavax Here is a roundup of the cases filed. [/one-half] 1.Husband and Wife File Zostavax Shingles Vaccine Lawsuit "A North Carolina husband and [...]

The Need for Real MDL Rules Will Only Grow More Acute — Drug and Device Law Blog

April 16th, 2019|Categories: Complex Business Litigation, HB Tort Notes, Mass Torts|Tags: Drugs & Devices, Emerging Litigation & Risk, Multi-District Litigation (MDL)|

By Bexis [one-half-first].[/one-half-first] [one-half]"In the ensuing procedural gamesmanship, plaintiffs are in the process of losing one of the main ways they gamed the system to keep diverse cases in state court – the so-called 'forum defendant rule' whereby even a diverse action could be kept in state court by the presence of defendant domiciled in the plaintiff’s chosen forum. The forum defendant rule applies only to parties 'properly joined and served,' and technologically-savvy defendants have discovered that, by monitoring electronic dockets, they can remove diverse cases faster than plaintiffs can serve forum defendants. We call this 'pre-service,' 'snap,' or 'wrinkle' removal, and we’ve chronicled (and advocated) its rise since 2007." Read the complete post by Bexis on Drug and Device Law Blog here. [/one-half] This is an excellent blog. One of my favorites. It's unapologetically defense-oriented, of course. A phrase like "gamed the system" is practically an invitation for rebuttal! So if you would like to respond, rebut, or rebuke, please write to us at Editor@LitigationConferences.com. --Tom Hagy, HB

Product Liability in the Internet of Things — Schiff Hardin Product Liability & Mass Torts Blog

April 14th, 2019|Categories: Complex Business Litigation, HB Risk Notes, Technology Law|Tags: Compliance, Emerging Litigation & Risk, Information Technology Law, Legal Tech, Product Liability|

[one-half-first] Photo by Markus Spiske on Unsplash [/one-half-first] [one-half]"Combining a physical object and an intangible technology also creates a novel issue when it comes to strict product liability principles, which typically hold that a product manufacturer may be strictly liable for a product’s defect. The first task in a strict product liability case is to identify the product. In the context of a device that has no internet connectivity, the answer is straightforward. If a ladder is defective and causes an injury, the ladder’s manufacturer may be held strictly liable because a ladder is the product. But when it comes to IoT devices, the line may be blurred. Almost always, the software part of the IoT device is 'manufactured' by a separate entity from the entity that manufactures the physical object. If the IoT device proves to be defective, the question becomes which entity may be held strictly liable." Read the complete post by Schiff Hardin's Gregory Dickinson & Jeffrey D. Skinner here. [/one-half]

A Generic Drug Failure to Warn Claim? –Michelle Hart Yeary

April 14th, 2019|Categories: Complex Business Litigation, HB Tort Notes, Mass Torts|Tags: Drugs & Devices, Emerging Litigation & Risk, Litigation & appeals, Product Liability|

[one-half-first][/one-half-first] [one-half] "Rather than focusing on what plaintiff’s off-label marketing claim really was – a claim that defendant’s label should have contained different information or warnings about off-label uses – an impliedly preempted claim, the court got distracted trying to fit the case in under Bausch and started talking about parallel violation claims. "The court found that because plaintiff was alleging a violation of federal regulations, his claims “run parallel to [defendant’s] state law duties,” and thus were not preempted. The problem with this is that Mensing is not an express preemption case. It was an implied preemption case, and the district court had no business applying 'parallel claim' analysis to implied preemption, where a 'parallel claim' exception does not exist. It makes no difference whether plaintiff’s off-label promotion claim is 'parallel' to federal regulations, defendant could not have offered any different warning so any claim that the warning or information it provided was inadequate is preempted under Mensing. The court was trying to fit a square peg into a round whole – and the only way that works is to cut off the corners." Read the complete post by Dechert's Michelle Hart Yeary here! [/one-half]

One Stock for the Coming Marijuana Boom, Says The Motley Fool

April 12th, 2019|Categories: Complex Business Litigation, Corporate Compliance, HB Risk Notes|Tags: Banking & Finance, Cannabis, Compliance, Emerging Litigation & Risk, Fintech|

"This legal pot stock could be like buying Amazon for $3.19." "Cannabis legalization is sweeping over North America – 10 states plus Washington, D.C., have all legalized recreational marijuana over the last few years, and full legalization arrived in Canada in October 2018. Legal marijuana is worth an estimated $50 billion for the U.S. today. And since experts have projected the U.S. industry to skyrocket to $80 billion by 2030, it’s time for investors to start paying attention. Because whether or not you’re planning on ingesting any THC, you can’t deny the monumental investing opportunity that a potentially $80 billion industry represents." --Grace Phillips, in an article for The Motley Fool

Private Calif. Plaintiffs Seemingly Enforcing FDCA, Drug & Device Law Blog Says

April 12th, 2019|Categories: Complex Business Litigation, HB Tort Notes, Mass Torts|Tags: Emerging Litigation & Risk, Medical Malpractice, Personal Injury, Product Liability|

"Doctors treated two plaintiffs for severe psychological problems, ultimately employing defendant’s Thymatron System IV to perform electroconvulsive therapy. Plaintiffs claimed that, as a result, they suffered brain trauma, memory loss and other brain-related injuries. They filed product liability claims based, in the main, on the manufacturer’s alleged failure to report adverse events. The decision in Riera addressed summary judgment motions, ones filed by both the plaintiffs and the defendant. You don’t ordinarily see summary judgment motions by plaintiffs, and Riera is an example of why." Read the complete post by John J. Sullivan of Cozen O'Connor.

Two Judges Find Florida Medical Marijuana Law Unconstitutional

January 4th, 2019|Categories: Complex Business Litigation, Corporate Compliance, HB Risk Notes, HB Tort Notes|Tags: Cannabis, Compliance, Corporate & Securities, Emerging Litigation & Risk, Regulations|

The Program is 'Absolutely Broken' -- Now What? Edited by Tom Hagy Florida Circuit Judge Karen Gievers just held that the Florida medical marijuana law is unconstitutional. Reporting on the judge's Trulieve decision for the Florida Politics news service, journalist Jim Rosica called it "a rebuke to lawmakers and the Rick Scott Administration" that was "stunning even for" Judge Gievers. "In the spirit of boxing legend Muhammad Ali, known for his pre-fight rhymes, Gievers opined that in Florida 'the medical marijuana system was broken. Now, in the Constitution, the people have spoken.'" Rosica reported that while Gov. Scott is appealing the major marijuana decisions against the state Department of Health, the transition team of Republican Governor-elect Ron DeSantis, including Lt. Gov.-elect Jeanette Nuñez, has suggested that he will not continue to defend the law in court. Rosica continued: "Gievers, who retires in April, said her decision striking down the law 'includ(ed), but (is) not limited to, replacement of the voter-selected registry plan with an arbitrary, inconsistent licensing scheme … throttling access of qualifying patients to … safe use of medical marijuana from (providers that) the Department has a clear, undisputed duty to register.' In fact, just passing the law was itself unconstitutional, Gievers suggested: 'Voters made clear in 2016 that the Legislature was to have no role in implementing access to and [...]

Cognitive Shortcuts: Assessing Case Value & Litigation Risk with Homer Simpson and Spock

September 11th, 2018|Categories: Complex Business Litigation, Environmental Torts, HB Tort Notes|Tags: Alternative Dispute Resolution (ADR), Arbitration, Emerging Litigation & Risk, Mediation, Risk Management, Toxic Torts|

By Jeff Trueman, Esq. Mediator The central question on the minds of counsel, their clients, and insurance professionals in civil litigation is, of course, “What’s the case worth?” Although lead paint litigation may be going through some changes, it remains a mature tort where enough historical settlement and verdict data exist for counsel to argue why a particular case should or should not fit within a certain settlement range. In the midst of these discussions, the human brain plays tricks on us. For example, litigators sometimes assume that their trial experience can determine how jurors will negotiate with one another and resolve factual discrepancies after closing arguments. This assumption is a “heuristic” – a cognitive shortcut called attributional error or illusion of control. Underneath the games of litigation “chicken” that are the hallmark of settlement negotiation, heuristics lead to erroneous valuations and assessments of risk. Although more than one hundred heuristics exist, approximately 15-20 occur commonly in the context of settlement negotiations. It is easy for potential clients to employ a heuristic similar to the illusion of control by imagining a connection between something they desire, such as a favorable case outcome, and the past successes of their prospective lawyer. Representative and confirmation biases influence how we connect “model” to “outcome.” When differences over case value intensify, litigators return to threats [...]

HB Announces Alliance with Alliance of Women Trial Lawyers

August 28th, 2018|Categories: HB Tort Notes, Law Firm Operations, Mass Torts|Tags: Emerging Litigation & Risk, Law Practice Management, Trial, Trial Skills|

We are proud to announce our latest alliance with a new trial attorneys group just for women on the plaintiff side of tort litigation. Founded by plaintiff law conference veteran Nancy Holston, the Alliance of Women Trial Lawyers is committed to empowering these professionals, helping them to overcome "systematic obstacles and to realize greater self-sufficiency and wholeness through support, acknowledgement and utilization of dormant, yet innate strengths." Before founding the Alliance in July 2018, Nancy was a principal at 360 Advocacy and before that the first Executive Director of Mass Torts Made Perfect. Nancy is well-connected in the plaintiff bar and is excited by the initial reaction to her new venture. Nancy is equally inspired by the feedback she is getting for the Alliance's first national conference which will be held from Saturday, Oct. 27th through Monday, Oct. 29 at the Ritz-Carlton in New Orleans. The program features many of the leading women trial attorneys in the country and a range of topics on practice development, litigation strategy, preparing witnesses, jury selection, deposition skills, direct examination, opening arguments and ethical issues involved in settlements. "I admire anyone who takes a risk to do something they believe in, and Nancy has demonstrated both enthusiasm and commitment to improving the professional lives -- and personal lives, for that matter -- of women who represent plaintiffs in mass [...]

Artificial Intelligence in the Drug and Device Industries

August 9th, 2018|Categories: Complex Business Litigation, HB Tort Notes, Technology Law|Tags: Artificial Intelligence (AI), Data Analytics, Emerging Litigation & Risk, Healthcare, Life Sciences|

Are Data Divers and Miners Going to Lead Innovation? The big tech companies are into it. Apple, IBM and Google. Roche is into it. Medtronic, as well. Artificial intelligence has been a big part of innovation in the healthcare space for several years, and its impact is only going to get bigger. "Artificial intelligence-based healthcare technologies have contributed to improved drug discoveries, tumor identification, diagnosis, risk assessments, electronic health records (EHR), and mental health tools, among others," writes Blank Rome attorney Brian Higgins in his Artificial Intelligence and the Law Blog (it's excellent, by the way). [1] Daniel Faggella of TechEmergence.com writes that machine learning healthcare applications are getting a lot of attention in the press and from the investment community. He adds to the list of machine learning's impact things like treatment queries and suggestions, and even robotic surgery. But optimism for AI's application to drug discovery seems greater than that inspired by other healthcare sectors. One reason for that, Faggella writes, is that compared to other segments where various laws and stakeholder incentives may not align, "drug discovery stands out as a relatively straightforward economic value for machine learning healthcare application creators." He adds that this application also involves "one relatively clear customer who happens to generally have deep pockets: drug companies." [2] Also writing for TechEmergence.com, Kumba Sennaa says [...]

Crowell & Moring on Insurance for Autonomous Vehicles Accidents

July 17th, 2018|Categories: Complex Business Litigation, Corporate Compliance, HB Risk Notes, Insurance, Technology Law|Tags: Emerging Litigation & Risk, Liability Claims, Risk Management|

"As responsibility for accidents shifts away from drivers and towards the companies that design, manufacture, and maintain autonomous vehicles, the pool of companies potentially liable for accidents will deepen.Companies need to consider potential liability risk when designing autonomous vehicle-related systems and partnering with other companies." Another good piece from the team Crowell & Moring LLP