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Expert Analysis

• Developers Are Testing Defenses In Generative AI Litigation

  

  In the rapidly growing field of generative artificial intelligence law in the U.S., there are a few possible defenses that have already been effectively asserted by defendants in litigation, including lack of standing, reliance on the fair use doctrine, and the legality of so-called data scraping, say attorneys at K&L Gates.

• How Calif. Ruling Extends Worker Bias Liability To 3rd Parties

  

  The California Supreme Court's recent significant decision in Raines v. U.S. Healthworks Medical Group means businesses that provide employment-related services to California employers can potentially be held liable for California’s Fair Employment and Housing Act violations, says Ryan Larocca at CDF Labor.

• Laws Based On Rapid Drug Tests Are Unscientific And Unfair

  

  Given the widespread legalization of marijuana, states are increasingly implementing laws to penalize drivers under the influence of drugs, but the laws do more harm than good as the rapid tests they rely on do not accurately measure impairment, say Josh Bloom and Henry Miller at the American Council on Science and Health.

• 9th Circ.'s Latest UBH Ruling Ignores Case's Core Issue

  

  The Ninth Circuit’s recent decision to vacate its earlier opinion in Wit v. United Behavioral Health frustratingly disregards the case’s key issue of benefits coverage for mental health treatment, and illogically elevates an insurer's discretionary authority over the medically necessary needs of patients, says Mark DeBofsky at DeBofsky Law.

• A New Strategy For Defending Spine Injury Claims

  

  With spinal injury claims proliferating — often with verdicts in the seven-figure range — defense counsel can expand their current trial playbook by retaining experts to prepare and publish peer-reviewed scientific studies that can then be used in the courtroom to help juries understand the issues, says Nicholas Hurzeler at Lewis Brisbois.

• Purdue Ch. 11 Case Exemplifies Need For 3rd-Party Releases

  

  In the Purdue Pharma Chapter 11 case, the U.S. Supreme Court will eventually decide whether the Bankruptcy Code authorizes a court to approve third-party releases, but removing this powerful tool would be a significant blow to the likelihood of future victims being made whole, says Isaac Marcushamer at DGIM Law.

• 2023 Farm Bill Could Follow Md., Minn. Or NY's Lead On Hemp

  

  As potential changes to federal hemp policy are hammered out in the 2023 Farm Bill, lawmakers may look to recent regulations promulgated in Maryland, Minnesota and New York, which provide several possible regulatory frameworks for hemp and synthetic cannabinoids, say Seth Gitner and Jonathan Havens at Saul Ewing.

• What Cos. Should Know About Software Development Kits

  

  Tracking technologies such as software development kits have recently become the focus of regulatory action and litigation, and companies should consider taking steps to reduce associated risks, such as evaluating services and establishing a governance framework, say Daniel Goldberg and Rick Borden at Frankfurt Kurnit.

• Conn. Ruling Highlights Keys To Certificate-Of-Need Appeals

  

  The Connecticut Supreme Court's recent decision in High Watch Recovery Center v. Department of Public Health, rejecting rigid application of statutes concerning certificate-of-need procedure, provides important guidance on building an administrative record to support a finding that a case is contested, say attorneys at Robinson & Cole.

• A 'Deliberate Indifference' Circ. Split For Prison Medical Cases

  

  Allison Becker and Kendra Stark at Gordon & Rees examine the circuit split over how a patient's incarceration status affects the applicable standard for “deliberate indifference” in correctional medical lawsuits, noting an uptick in cases related to outbreaks and staffing shortages at correctional facilities during the pandemic.

• Prepping For OSHA Standard On Violence Risk In Health Care

  

  Though the Occupational Safety and Health Administration has yet to create a new standard to address violence against health care workers, employers can prepare for coming federal regulatory changes by studying existing state rules and past OSHA citations, then taking steps to improve their safety programs, say attorneys at Ogletree.

• Sales Reps In The Operating Room: How To Manage The Risks

  

  While having a medical device sales representative providing advice during a surgery can be helpful, especially as medical technology continues to advance, their presence can also create exposure to tort claims and litigation alleging unauthorized practice of medicine, say attorneys at Sidley.

• DC Circ. Ruling Puts Issue Class Cert. Under Microscope

  

  The D.C. Circuit's recent Harris v. Medical Transportation Management decision, which pushed back against lax application of Rule 23(c)(4) to certify issue classes as an end-run around the predominance requirement, provides potentially persuasive fodder for seeking to limit the scope of issue classes in other circuits, say attorneys at Skadden.