Defense counsel journal最新文献

{"title":"IADC Amicus Brief Program","authors":"R. Owen","doi":"10.12690/0895-0016-83.1.106","DOIUrl":"https://doi.org/10.12690/0895-0016-83.1.106","url":null,"abstract":"II. THE DISTRICT COURT MISAPPREHENDED THE NATURE, SCOPE, AND TRIGGER OF THE DUTY TO PRESERVE. A. The District Court Held That Takeda's 2002 Litigation Hold Created a Duty to the Allen Plaintiffs to Preserve All ESI Relevant to Any Potential Actos Claim. This action, commenced by the Allen plaintiffs in 2011, was the first lawsuit to make a claim against defendants stemming from the onset of bladder cancer by users of Actos. In re Actos, 2014 WL 2872299, at *17. (8) Some 8,000 such lawsuits are now pending in federal and state courts, In re Actos, 2014 WL 5461859, at *37, and the federal cases have been given MDL treatment. During discovery, it was learned that Takeda had instituted a broadly-worded litigation hold requiring retention of all materials relating to Actos in 2002. The event spurring the 2002 litigation hold was a lawsuit by a party claiming damages from use of Actos resulting in liver cancer. In re Actos, 2014 WL 2872299, at *7. Takeda custodians were \"instructed to preserve any and all documents and electronic data which discuss, mention, or relate to Actos.\" Id. Even though the liver cancer claims were soon resolved, In re Actos, 2014 WL 2921653, at * 21, the litigation hold was \"refreshed\" in 2003, 2006, 2007, 2008 and 2011, In re Actos, 2014 WL 2872299, at *17, 20. Compliance with the very broad 2002 hold was less than perfect, resulting in the routine destruction of custodial files of 46 individuals after they had departed their Takeda employment. Id., at *15-16. Plaintiffs moved for sanctions based on the loss of these files, and in resolving the motion, the district court concluded that at the time the 2002 hold issued, Takeda had a \"reasonable anticipation of litigation for personal injury and death\" arising from use of Actos. In re Actos, 2014 WL 2921653, at *25. The court rejected the argument that Takeda did not reasonably anticipate suits involving bladder cancer until the first such suit was filed in 2011, because the litigation hold issued in 2002 was not restricted to a specific \"malady.\" In re Actos, 2014 WL 2872299, at *22; see also id. (\"This Court finds it need not determine when Takeda should have implemented a hold because Takeda, in fact, did implement a hold in 2002 and 'refreshed' it thereafter.\") (emphases omitted). Thus, the district court concluded that, irrespective of what the law on preservation trigger might have required, Takeda's issuance of the broad hold in 2002 imposed a duty on itself to preserve any and all Actos information relevant to any potential legal claim made at any time in the future regarding the product. B. The Common Law Duty To Preserve Evidence Is Triggered by the Reasonable Anticipation of Litigation Over the Claims Asserted In the Case at Bar. The district court's holding is contrary to this Court's precedent, which makes clear that the duty to preserve extends only to documents relevant to a claim of which the party has notice. In King v. Illinois Central Railroad, 337 F.3d 550 (","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"460"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"President-Elect's Page: Responsibility That Goes Beyond Our Practice","authors":"Joseph E. O'Neil","doi":"10.12690/0895-0016-82.4.367","DOIUrl":"https://doi.org/10.12690/0895-0016-82.4.367","url":null,"abstract":"","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"24 1","pages":"367"},"PeriodicalIF":0.0,"publicationDate":"2015-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"President-Elect's Page the IADC 20/20 Vision","authors":"Joseph E. O'Neil","doi":"10.12690/0895-0016-82.3.235","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.235","url":null,"abstract":"A year ago, Dick Neumeier, after serving as Editor of the Defense Counsel Journal for 22 years, handed the reins of the LADC's signature legal journal to M.C. Sungaila. In his farewell remarks, Dick borrowed from the inaugural inspiration of President John F. Kennedy when he challenged our membership to \"Ask not what the Defense Counsel Journal can do you for you. Ask what you can do for the Defense Counsel Journall.\" Well, thanks to M.C. Sungaila, her editorial team, and our members, the DCJ has not missed a beat. Our members have embraced Dick Neumeier's challenge! In this, our 82nd volume, the DCJ has memorialized the keynote address of Prime Minister George Papandreou at our Midyear Meeting on Marco Island and continued to offer enhanced visibility to the IADC's growing amicus program by publishing briefs in support of issues critical to our corporate clients. Our July issue also includes \"must read\" articles analyzing employee class actions in the wake of Wal-Mart v. Dukes, the impact of the Supreme Court's recent jurisdictional decision in Daimler v. Bauman, risks and implications of innovator and co-promoter liability for pharmaceutical companies, and the expanding use of technology in the discovery process. The LADC is now in its 95th year, and the organization is better than ever. Our 2,500 members hail from more than 40 countries and five continents, and we continue to grow and expand throughout the world. The LADC stands alone, and our new logo captures the essence of our preeminent association and its members--Superior Advocates. Global Perspective. President Tripp Hasten has worked tirelessly to BUILD on the achievements and momentum the LADC has experienced over the past 20 years and, more recently, The Global Connection initiative our Immediate Past President, Molly Craig, launched in 2013. In the past two years, the LADC and its valued members have attended successful Regional Meetings and substantive programs in Paris, Milan, Vienna, London, Stuttgart, Lisbon, Singapore, Sydney, Hong Kong, Sao Paolo, and throughout the United States and Canada. Tripp's global leadership of the LADC is unprecedented and the For Law. For Life, theme of his tenure has truly enhanced the value of relationships, business development and education for our members. 20/20 Vision The LADC is in the home stretch toward its Centennial celebration in 2020. In the coming year, the leadership of the organization will continue its ongoing efforts to add greater value and increased visibility to the LADC and its members throughout the world. In April, the Board of Directors and the IADC staff began to work on a strategic plan that will ultimately define the association in its 100th year. …","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"235"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Employee Class Actions Four Years After Wal-Mart v. Dukes","authors":"T. Reed, J. Harding, William J. Kelly","doi":"10.12690/0895-0016-82.3.255","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.255","url":null,"abstract":"LAWSUITS arising out of the workplace are one of the fastest growing areas of litigation in the country today. The U.S. Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes1 was anticipated bring the growth of class actions in the employment context under control. In the immediate aftermath of Dukes, commentators predicted that the decision would result in a significant, drastic reduction in employee driven class-action claims,2 and Dukes unquestionably \" raise[d] the bar for plaintiffs seeking class certification and, accord- ingly, constitute [d] a win for employers,\" because plaintiffs' attorneys now face, \"much greater obstacles when pursuing class actions.\"3The limitations to class action claims of discrimination provided in Dukes have had far-reaching implications for Title VII claims and class action lawsuits brought under Federal Rule of Civil Procedure 23. But the landmark decision \"has not led to the demise of the class action, or even a reduction in employment class actions.\"4 Instead, the employment class action case has merely taken on a new face. Following Dukes, employment class actions are now comprised of a smaller, regional class and are framed more narrowly, \"in terms of a single policy or practice that applies to the entire class.\"5This article reviews Dukes and the circuit court employment class certification decisions that have evolved from it and other landmark Supreme Court decisions impacting employment related class actions. While the trend remains favorable to employers, four years after Dukes, plaintiffs attorneys have begun to have success with new tactics. As a result, the ultimate legacy of Dukes in the employment law context remains uncertain.I. Dukes and its PredecessorsA. General Telephone Co. of Southwest v. Falcon6In the post -Dukes era of class-action jurisprudence and analysis, it is nearly impossible to find an opinion or article that does not use the phrase \"rigorous analysis,\" a phrase many lawyers associate with Dukes. Despite the spike in popularity of the phrase post -Dukes, it was not introduced by the Court in that decision, but was first coined more than twenty years earlier in General Telephone Co. of Southwest v. Falcon. In Falcon, the Court held, \"a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.\"7In Falcon, like Dukes, the trial court certified an employment discrimination class action. The class included some members who were denied promotion allegedly because they were MexicanAmerican. Other members of the class were denied being hired altogether allegedly because of their race. All members were included in the same class based on an \"across the board\" rule that a named plaintiff employee complaining of one allegedly discriminatory practice could represent class members complaining of a different practice.8 This across the board rule was based on","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"255"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587707","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Are You Defending Your Clients Where They Don't Belong? Corporate Defendants' New Potent Defense Is Personal (Jurisdiction, That Is)","authors":"Phillip S. Sykes, Laura McCarthy","doi":"10.12690/0895-0016-82.3.282","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.282","url":null,"abstract":"PENNOYER v. Neff (1) may be just a vague memory from Civil Procedure class in law school, but no doubt every lawyer remembers learning the same fundamentals of personal jurisdiction. To sue a defendant in a particular forum, a plaintiff must show personal jurisdiction over the defendant in compliance with that forum's long-arm statute and the Constitution's Due Process Clause. Personal jurisdiction comes in two forms--specific jurisdiction and general jurisdiction. While specific jurisdiction likely got ample airtime on the intricacies of \"minimum contacts\" and \"stream-of-commerce,\" general jurisdiction typically was reduced to a single sound bite: \"continuous and systematic\" activities by a corporation in a particular state were sufficient to subject that corporate defendant to general jurisdiction in that forum. Civil Procedure professors were not the only ones, however, to give short shrift to general jurisdiction. In a nearly 70 year period, the Supreme Court issued scores of opinions featuring specific jurisdiction to a mere three opinions on general jurisdiction. Thus, general jurisdiction played little or no role in the defense strategy of large companies conducting business on a national scale. Unless the plaintiff named the wrong corporate entity as a defendant, most companies conceded personal jurisdiction in every state because they were doing business in every state; companies (and courts) usually accepted the prevailing general jurisdiction mantra of \"continuous and systematic\" to be sufficient. In January 2014, however, the United States Supreme Court catapulted general jurisdiction into the spotlight and turned conventional wisdom on its head about the reach of general personal jurisdiction with its eight-Justice majority decision in Daimler AG v. Bauman. (2) The Supreme Court eliminated the \"continuous and systematic\" test and gave Civil Procedure professors, district courts, and most importantly, corporate defense counsel a new sound bite with powerful teeth: a corporation may be subject to general jurisdiction only where it is \"at home.\" (3) The two paradigm places a corporation is \"at home\" are its state of incorporation and its principal place of business. Consequently, general jurisdiction now should be an essential element of corporate defense strategy in any case in which specific jurisdiction is lacking as to one or more plaintiffs. I. The Beginning: International Shoe and Its (Sparse) Progeny The Supreme Court's 1945 decision in International Shoe Co. v. Washington (4) laid the foundation for general personal jurisdiction over corporate defendants. The Supreme Court adopted a broad interpretation of personal jurisdiction and the limits placed on it by the Due Process Clause. The Supreme Court issued the often-quoted rule of specific jurisdiction that the defendant need only have certain \"minimum contacts\" with the forum state \"such that the maintenance of the suit does not offend 'traditional notions of fair play and subs","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"254 1","pages":"282"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking the \"Product\" out of Product Liability: Litigation Risks and Business Implications of Innovator and Co-Promoter Liability","authors":"Eric Lasker, S. A. Klein, Tamara Fishman Barago","doi":"10.12690/0895-0016-82.3.295","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.295","url":null,"abstract":"PLAINTIFF files a lawsuit claiming that her use of a prescription medication caused her to sustain injuries. Brand Pharmaceuticals did not manufacture the drug and therefore cannot be liable to Plaintiff, right? Not necessarily. Two emerging theories of liability, so-called \"innovator liability\" and \"co-promoter liability,\" aim to hold a non-manufacturer responsible for injuries caused by another company's pharmaceutical product. Under innovator liability, a pharmaceutical manufacturer may be liable for injuries caused by a competitor's generic version of its brand drug based on its supposed responsibility for the drug's prescribing information. Under co-promoter liability, a company that contracts to market another manufacturer's pharmaceutical product may be liable based solely on its marketing activities. This article explores the theories underlying these novel sources of liability and proposes business strategies to consider that could help mitigate these emerging risks. I. Traditional Tort Doctrine Limits Product Liability to the Manufacturer of the Product. By asserting innovator and co-promoter liability, plaintiffs are attempting to circumvent well-established tort law principles. It is axiomatic that \"[a] fundamental principle of traditional products liability law is that the plaintiff must prove that the defendant supplied the product which caused the injury.\" (1) A plaintiff suing for alleged injuries from a pharmaceutical product (or medical device) must identify the actual defendant that manufactured the product she alleges injured her. (2) When advancing theories of innovator and co-promoter liability, plaintiffs target defendants they acknowledge played no role in manufacturing or supplying the drug that allegedly caused their injury. These theories require courts to suspend traditional tort law doctrines of causation and duty and have, for that reason, largely been rejected. However, as discussed below, a handful of jurisdictions have viewed these theories more favorably. II. Innovator Liability Against Brand Manufacturers for Generic Drugs A. Background: Hatch-Waxman Act, Wyeth v. Levine, and PLIVA v. Mensing The roots of innovator liability can be found in the Drug Price Competition and Patent Term Restoration Act of 1984, commonly referred to as the \"Hatch-Waxman Act.\" (3) Designed to facilitate the entrance of generic drugs into the pharmaceuticals market, the Hatch-Waxman Act relaxed the requirements for U.S. Food and Drug Administration (FDA) approval for those drugs. Instead of having to leap the same clinical hurdles as the original drug sponsor, generic manufacturers need only demonstrate that their product is \"the same as\" an existing brand drug, meaning that it is bioequivalent to its brand counterpart and has the same active ingredient(s), route of administration, dosage form, and strength. (4) Other than routine information reflecting the different manufacturer or distributor, the generic drug also must have \"the sam","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"295"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66588049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Synthesis of Judicial Perspectives on Technology-Assisted Review","authors":"Julia L. Brickell, Peter J. Pizzi","doi":"10.12690/0895-0016-82.3.309","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.309","url":null,"abstract":"DOCUMENT review accounts for an estimated 70% of all e-discovery costs. This means that document review also represents the greatest area of potential cost savings in e-discovery. Over the past ten years, the number of technological approaches to document review for litigation has increased, with the application of methods long in the domain of information retrieval. These advances call upon lawyers practicing civil litigation to gain a familiarity with the various technological options available, lest an opportunity is missed or the opponent, court, or client catches the unwary lawyer by surprise. Technology-assisted review (\"TAR\") is not a luxury available only to large firms handling very large cases. Properly chosen and deployed, technological methods can enable a smaller firm to handle larger cases, and thereby compete with larger firms. In the end, the goal is to make litigation more cost-effective, allowing more cases to stay in the judicial system rather than having litigants settle because the discovery costs outweigh the value of the matter. In addition to gaining an understanding of the technology behind the available techniques, lawyers should appreciate that the match (or mismatch) between the problem to be solved, the technology chosen, and the expertise of the user are as important as the technology in determining whether the results will be both satisfactory and defensible. Part I of this article explains TAR and the variety of approaches available. Part II synthesizes the meaning of the various judicial decisions dealing with TAR in a substantive fashion. Consideration of the judicial opinions proves the importance of understanding available technology. If there is an overall theme from the cases on this topic, it is that courts increasingly expect counsel to consider technological approaches and be competent to discuss what is warranted for a case. While the producing party still has the power to decide how to handle its production, if parties do reach agreement on an approach, they will be held to it, no matter how ill-advised it might turn out to be. Counsel must bring to the conversation sufficient expertise to understand the nuances and import of any proposed discovery protocol applying technology. I. Technology Assisted Review Before 2000, review was done with large teams of document reviewers. Between 2000 and 2010, online review platforms entered the market, hosting whole cases on a single platform and reducing the transactional costs involved in having to manually pull or deliver documents. As court rules and courtroom lawyers began to focus on discovery of electronic information, research turned to understanding how search could be applied to the review process. Research conducted from 2006-2011 under the auspices of the National Institute of Standards and Technology showed that TAR could significantly outperform or significantly underperform human review, depending on the tools used and the expertise of the users. An a","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"309"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Confronting the Meta-problems of Democracy","authors":"G. Papandreou","doi":"10.12690/0895-0016-82.3.243","DOIUrl":"https://doi.org/10.12690/0895-0016-82.3.243","url":null,"abstract":"Prime Minister Papandreou originally presented this speech as the Keynote Address to the IADC's 2015 Midyear Meeting held in Marco Island, Florida on February 18, 2015.I. Where Greece was and is today - Bond SpikesWHEN I first received your invitation - in mid-September of last year - there was an accepted view of the Greek and euro economic crisis that we were making real progress. The ten-year Greek bonds were yielding about 5%. Today, it seems we are back in crisis mode. One telltale sign is the fact that yields earlier this month were as high as 11%. (See Figure 1.)As bond markets saw that we might go - as we finally did - to a snap election in January, there was a huge spike in bond yields. What was this all about?Voters in Greece frustrated after six years of recession and five years of austerity, which has cost us a loss of 25% of our GDP, decided to change course. A new government was elected by promising completely different policies. But is it that easy? Is it a matter of simply changing a government? Or asking the people through a referendum which I attempted to push through?That would be a triumph of democracy.When I called for a referendum, I was immediately summoned to Cannes, where the G20 was to meet. Nicholas Sarkozy, then President of France, who chaired the G20, warned me, \"The markets will go haywire.\" He was dead against the referendum. No, the people could not have a say!No wonder our citizens around the world mistrust politics. They see politicians as impotent and believe that the average citizen has little influence. Most believe that little can change and that everything is futile. Politicians around the world are getting blamed. But are they to blame? Or are they getting a bad rap? Let me take you on a trip through some of my experiences.II. Personal StoriesBefore I get into the gory details of the crisis in Europe, let me introduce myself- and why I feel strongly about the future of our democracies- by way of some personal stories.I was born in St Paul, Minnesota in 1952. We soon moved to California, where I grew up. My father fled from a Greek dictatorship in the 1940s and got a PhD in economics from Harvard. The family moved to Berkeley when he became head of the economics department. As an interesting side note, my father actually became a U.S. citizen and served in the U.S. Navy in World War II. In the early 1950s, he was head of Hubert Humphrey's campaign in the state of Minnesota.But I can assure you, growing up I was well aware of my Greek identity. I heard plenty of bedtime stories from my grandmother about Greek gods. I was always reminded of my Greek heritage because every time one of my teachers called out .my last name half the class would burst out in laughter.No, I was not a Jones or a Smith. It was a time when ethnic names were not popular. So my classmates usually changed my name to GP or Pappy or even Curious George, because my protruding ears reminded them of the famous monkey. Actually, I rather liked","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"92 1","pages":"243"},"PeriodicalIF":0.0,"publicationDate":"2015-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66587585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hackers' Bazaar: The Markets for Cybercrime Tools and Stolen Data","authors":"Lillian Ablon, Martin C. Libicki","doi":"10.12690/0161-8202-82.2.143","DOIUrl":"https://doi.org/10.12690/0161-8202-82.2.143","url":null,"abstract":"MALICIOUS hackers and cyberattacks are getting more attention these days--a result of both an uptick in the number amount of attacks as well as of increased public attention and fascination. 2014 was the year the hack went viral. Notable data breaches included those at retail giants Target and Home Depot, health-care provider Community Health Systems, financial institution J.P. Morgan Chase, and entertainment giant Sony. For the retail sector in particular, the stolen data from these hacks appeared within days on black market sites. These cyber black markets offer the computer-hacking tools and services to enable and carry out cybercrime attacks, as well as the byproducts from those attacks the stolen credit cards, personally identifiable information, and intellectual property. The RAND Corporation, with support from Juniper Networks, wanted to under stand the landscape and the character of these cybercrime black markets: what the markets look like today, where they came from, as well as where we're headed in the future. To do so, we sought out and interviewed experts ranging from academics, to Different Types of Cyber Threat are distinguished by motivation and intent: * Cybercriminals: use cyber means to go after financial data * Nation-States: use cyber means to monitor, exploit, or attack * Hacktivists: use cyber means to send a message, sometimes politically motivated * Cyber-terrorists: use cyber means to recruit, spread propaganda, or instill fear security researchers, reporters, security vendors and law enforcement personnel folks who have a personal connection to these markets, from a variety of angles. We also reviewed literature and technical reports on this topic and personally observed some of the marketplace forums and websites. The markets for cybercrime tools and stolen data have become so pervasive and accessible that the malicious hacking trade today can for some people in certain aspects be more lucrative and easier to carry out than the illegal drug trade. The hacking trade has matured into specialized markets, in which those who have gained the greatest access deal freely in its tools and spoils: exploit kits (software for creating, distributing, and managing attacks), bot-nets (remotely controlled computers used for sending spam or flooding websites), \"as-a-service\" offerings (hacking for hire), compromised hosts, and a continually flooded market for stolen credit-card numbers and other personal credentials. These markets are dispersed, diverse, and segmented; constantly changing and innovating to both keep pace with consumer trends as well as to prevent law-enforcement and security vendors from understanding them. They come in many forms. Some are dedicated to one product or a specialized service. Others offer a range of goods and services for a full lifecycle of an attack--from the tools needed to exploit a system, all the way through to the cyber laundering of the stolen goods. I. The Current State of These Markets: Where ","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"143-152"},"PeriodicalIF":0.0,"publicationDate":"2015-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66586817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Recovery of Future Medical Expenses for Novel Treatment","authors":"M. Hansen, J. Thompson","doi":"10.12690/0161-8202-82.2.153","DOIUrl":"https://doi.org/10.12690/0161-8202-82.2.153","url":null,"abstract":"FUTURE medical expenses have always been an important component of personal injury jury awards. As medical technology advances, so do awards for future medical expenses. Advanced medical techniques are being utilized more frequently, which are reflected in the escalation of future medical awards. For example, cosmetic surgeries and the use of increasingly advanced prosthetic devices have become more frequent, and this has inevitably increased future medical expenses. Courts must determine whether there will be a limitation on future medical awards resulting from novel treatment. This article provides an overview of key themes that arise in a claim for future medical expenses, including: the standard for recovery, the defense's argument that future medical procedures are speculative, and the types of expert testimony that have proven most effective in claims for novel treatments. This article then addresses three types of novel treatment that have been the subject of recent litigation--experimental procedures, prostheses, and cosmetic surgery--and concludes by offering arguments that may be used by defense counsel in opposition to a claim for future medical expenses for novel treatments. Many of the strongest arguments against recovery of future medical expenses for novel treatments may be made in the pre-trial phase, and defense counsel should act early and aggressively to prevent recovery on unnecessary procedures. I. The Standards for the Recovery of Damages A. Future Medical Expenses Future medical expenses do not require the same degree of certainty as past medical expenses. (1) The amount of future medical expenses does need not to be established with mathematical certainty; (2) reasonable certainty is sufficient. (3) Claimants who require future medical attention resulting from wrongful conduct of others are generally entitled to recover future medical expenses. Recovery for future medical expenses often depends on the degree of proof and the type of evidence necessary. An award of future medical costs must be supported by competent evidence to guide the jury in arriving at a reasonable value for such expenses. (4) In many jurisdictions, awards must be supported by medical testimony establishing that the medical treatment is needed and the cost is appropriate. (5) Evidence of future medical expenses should only be considered by the jury if the testimony of an expert medical witness demonstrates that future medical expenses are reasonably certain to be incurred. (6) In some jurisdictions, such as Arizona, the judge has some discretion to determine whether the probability of such an expense is necessary. (7) B. State Standards for Future Medical Expenses Most jurisdictions have pattern jury instructions or other guidelines to establish the elements of damages for physical injuries sustained by a claimant. Recoverable damages for physical injuries may include: disfigurement, disability, loss of a normal life, increased risk of future harm, pai","PeriodicalId":81080,"journal":{"name":"Defense counsel journal","volume":"82 1","pages":"153-160"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66586879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}