The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

Kudos to Crain’s Chicago Business – Lumps of Coal to the Wall Street Journal

Posted in Offtopic

Some (many) businesses make changes to online systems, and produce all kinds of problems for customers. But instead of being upfront, they stonewall their customers, leading to both failed service and wasted time. A recent example of this arises from my online subscription to the Wall Street Journal. After years of working very well, suddenly my password is rejected on a random day to day basis, with the latest denial occurring on Tuesday, December 25.  The Journal’s “online chat help” staff  proclaims nothing changed, but that cannot possibly be true – machines do not include gremlins as components. Therefore, lumps of coal should grace the offices and/or kiosks of the decision makers at the Journal.

In contrast, Crain’s Chicago Business did the right thing. It made changes to its systems and warned its customers with an email in advance of putting the changes into action, as shown below.  In a perfect world, Crain’s would ensure a seamless change, but at least it’s owning up to change, in advance.  Kudos to Crain’s for at least making that effort.  It is sad and telling that the most service providers today are so very sloppy that Crain’s actions are noteworthy.


We are always looking for ways to deliver the news you want when you expect it. To that end, we are upgrading our technology and this means that our email address is changing. Since you’ve signed up to receive email newsletters or other correspondence from us, we want to make sure you continue to get those messages after the switch, which will take place next week. Please let us know if you suddenly stop receiving emails from us so we can work to get any issues fixed as quickly as possible to make sure you don’t miss a bit of valuable information.To better ensure you continue receiving email from Crain’s Chicago Business, please add our email address to your contacts list or follow these simple instructions.If you have any questions or concerns, please email us at [Xs inserted by blogger to protect Crain's].  Thank you.
David Snyder

“Unsealed Garlock documents could be ‘double-edged sword’”

Posted in Asbestos, Asbestos Bankruptcy, Asbestos Trusts

There are many double-edged swords in mass tort litigation. Some people see them, and some do not, too often because of a propensity for consuming kool-aid as instructed by others. Sometimes the double-edged swords are mentioned in public, and other times, not so much. It’s refreshing to read David Christian’s comments on double-edged swords in Garlock, as reported in a November  20, 2014, article in Legal Newsline.

Exponential Change: “U.S. to Build Two Flagship Supercomputers for National Labs Expected to Be 3X Faster Than Current Top Supercomputer”

Posted in Litigation Industry, Science

Exponential change continues to arrive in computing, and even more will arrive in 2017. For an example, consider the facts set out in last week’s press release from Nvidia, a maker of GPUs that are key parts of faster super-computing. The bottom line is the announcement of 2017 delivery and installation of supercomputers 3x faster than today’s crazy fast machines. Not 30% faster, but rather 3x! Exponential change is hard for humans to grasp, but it’s very helpful to appreciate the scale and pace of change. Consider Ray Kurzweil’s writing  back in 2003:

“We’re entering an age of acceleration. The models underlying society at every level, which are largely based on a linear model of change, are going to have to be redefined. Because of the explosive power of exponential growth, the 21st century will be equivalent to 20,000 years of progress at today’s rate of progress; organizations have to be able to redefine themselves at a faster and faster pace.” 


SANTA CLARA, CA–(Marketwired – Nov 14, 2014) – The U.S. Department of Energy today unveiled plans to build two GPU-accelerated supercomputers — expected to deliver at least three-times greater performance than today’s most powerful system — which will move the world closer to the long-held goal of exascale computing.

The supercomputers, to be installed in 2017, will be based on next-generation IBM POWER servers with NVIDIA® Tesla® GPU accelerators and NVIDIA NVLink™ high-speed GPU interconnect technology.

The “Summit” system at Oak Ridge National Laboratory will be capable of delivering 150 to 300 peak petaflops, and be used for open science. Delivering performance well in excess of 100 peak petaflops, the “Sierra” system will be a key element of Lawrence Livermore National Laboratory’s national nuclear security mission.

They will be considerably faster than the U.S.’s current speed champ, Oak Ridge’s “Titan,” which delivers 27 peak petaflops, as well as the world’s fastest, Tianhe-2 at China’s National Super Computer Center, in Guangzhou, which delivers 55 peak petaflops.

Visit the NVIDIA website for more information and a video about these new systems.

“Today’s science is tomorrow’s technology,” said Jen-Hsun Huang, CEO and co-founder of NVIDIA. “Scientists are tackling massive challenges from quantum to global to galactic scales. Their work relies on increasingly more powerful supercomputers. Through the invention of GPU acceleration, we have paved the path to exascale supercomputing — giving scientists a tool for unimaginable discoveries.”

The U.S. is investing in Summit and Sierra to achieve breakthroughs that lead to greater U.S. energy independence, new approaches to curbing climate change, dramatic improvements in fuel efficiency, natural disaster prediction, safer nuclear material storage, economic competitiveness, and more.

The systems represent the first major milestone in the ongoing partnership between IBM and NVIDIA. They build upon the work of the OpenPOWER Foundation, an open development community formed to develop next-generation computing solutions for high performance computing and enterprise data center customers.

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New Technologies Hasten Exascale Computing
The supercomputing community has for many years worked toward building exascale systems, which can perform a quintillion — a billion billion or 1018 — floating point calculations per second, known as FLOPS. A FLOP is equivalent to a single mathematical calculation, like multiplying two numbers together.

Summit and Sierra will be the next major step on the path to reaching exascale computing levels by virtue of a number of breakthrough technologies.

One is the NVIDIA NVLink high-speed GPU interconnect, which will be integrated into NVIDIA GPUs and IBM POWER CPUs powering the new systems. NVLink allows GPUs and CPUs to share data five to 12 times faster than today, and is designed to ultimately enable supercomputers that are 50 to 100 times faster than today’s fastest systems.

The systems will also feature NVIDIA’s future generation GPU architecture, Volta™, which will deliver considerably higher performance than the company’s current Maxwell™ architecture and subsequent Pascal™ design. Delivering significantly higher levels of computational performance than anything available today, NVIDIA GPUs will provide Summit and Sierra with more than 90 percent of the peak floating point processing capability.

“Our users have the most complex scientific problems and need exceptionally powerful computers to meet national goals,” said Buddy Bland, project director of the Oak Ridge Leadership Computing Facility at Oak Ridge National Laboratory. “The projected performance of Summit would not have been possible without the combination of these technologies, which will give our users an exceptionally powerful tool to accomplish these goals.”

Summit to Accelerate Open Science Computing
Summit, like Titan, will be dedicated to open science, meaning that researchers worldwide will have the opportunity to apply for time on the system. It will also raise the bar for energy-efficient computing, providing five to 10 times higher performance than Titan, while using only 10 percent more power.

Sierra to Bolster National Security
Sierra will deliver five to 10 times higher compute performance than Lawrence Livermore’s current fastest system, “Sequoia,” which delivers 20 petaflops. It will be used for the National Nuclear Security Administration’s program to ensure the safety, security and effectiveness of the nation’s nuclear deterrent without testing, and nonproliferation efforts to prevent the spread of weapons of mass destruction worldwide.

Exascale Computing’s Potential and Challenge
Exascale supercomputers are anticipated to further discovery into broad areas of science, engineering and industry, such as enabling work on cures for disease, providing insights into the human brain, helping to mitigate the effects of climate change, and increasing our understanding of the origins of the universe.

However, a fundamental challenge in attaining exascale systems is achieving higher levels of performance while minimizing energy consumption, a task GPU accelerators are particularly well suited for. An exascale system built with NVIDIA’s latest GPU accelerators would consume five times less power than an x86 CPU-based system, enabling system designers to deliver extremely higher levels of energy-efficient performance.

About the NVIDIA Tesla Accelerated Computing Platform
The Tesla Accelerated Computing Platform is designed from the ground up for power-efficient, high performance computing, computational science, supercomputing, enterprise, complex data analytics and machine learning applications. It delivers dramatically higher performance and energy efficiency than a CPU-only approach. The platform deeply integrates the world’s fastest GPU accelerators, advanced system management features, accelerated communication technology and NVIDIA CUDA®, the world’s most pervasive parallel computing model.

To Keep Current on NVIDIA:

Keep up with the NVIDIA Blog, and follow us on Facebook, Google+, Twitter, LinkedIn and Instagram.
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Use the Pulse news reader to subscribe to the NVIDIA Daily News feed.
Since 1993, NVIDIA (NASDAQ: NVDA) has pioneered the art and science of visual computing. The company’s technologies are transforming a world of displays into a world of interactive discovery — for everyone from gamers to scientists, and consumers to enterprise customers. More information at and

Certain statements in this press release including, but not limited to, statements as to: the performance, effect and benefits of NVIDIA Tesla GPU accelerators, NVLink and NVIDIA GPUs are forward-looking statements that are subject to risks and uncertainties that could cause results to be materially different than expectations. Important factors that could cause actual results to differ materially include: global economic conditions; our reliance on third parties to manufacture, assemble, package and test our products; the impact of technological development and competition; development of new products and technologies or enhancements to our existing product and technologies; market acceptance of our products or our partners’ products; design, manufacturing or software defects; changes in consumer preferences or demands; changes in industry standards and interfaces; unexpected loss of performance of our products or technologies when integrated into systems; as well as other factors detailed from time to time in the reports NVIDIA files with the Securities and Exchange Commission, or SEC, including its Form 10-Q for the quarterly period ended July 27, 2014. Copies of reports filed with the SEC are posted on the company’s website and are available from NVIDIA without charge. These forward-looking statements are not guarantees of future performance and speak only as of the date hereof, and, except as required by law, NVIDIA disclaims any obligation to update these forward-looking statements to reflect future events or circumstances.

© 2014 NVIDIA Corporation. All rights reserved. NVIDIA, the NVIDIA logo, Tesla, CUDA, NVLink, Maxwell, Pascal and Volta are trademarks and/or registered trademarks of NVIDIA Corporation in the U.S. and other countries. Other company and product names may be trademarks of the respective companies with which they are associated. Features, pricing, availability and specifications are subject to change without notice.

Some Logistics of Testing for Germline Mutations of the BAP1 Gene

Posted in Asbestos, Cancer, Science

BAP1 testing is a relatively straightforward process for trained persons using good equipment. Indeed, that’s true for most tests seeking to identify a mutation in a particular gene. Testing for the BAP1 germline mutation is simply one of many examples of testing for an inherited cancer syndrome, as described here at

In short, biologic material – such as blood – is needed to access DNA.   An animation from the University of Utah illustrates the process of extracting DNA from a collection of cells. The animation is based on obtaining cells by swabbing the inside of a cheek. (By the way, sending in a cheek swab is all it takes to join the pool of potential stem cell (bone marrow) donors – see Be the

Testing for a germline BAP1 mutation can be performed by commercial labs, although one can also hire experts on BAP1.  For example, Prevention Genetics in Wisconsin offers single purpose testing specific to the BAP1 mutation.  According to a page of its website, the price runs from $250 up to $970.  The price variation depends on the precise level and type of testing used. The options shown are as follows; the variations relate to the “depth” of the sequencing done to further minimize the chances of an error:


Test Number Test Price CPT Code
1176 BAP1 Sanger Sequencing $970 81479
100 BAP1 Targeted Familial Mutations – Single Exon Sequencing $250 81479
200 BAP1 Targeted Familial Mutations – Double Exon Sequencing $370 81479
300 BAP1 Targeted Familial Mutations – Triple Exon Sequencing $440 81479


New Rules for Product Liability Litigation in Pennsylvania – Third Restatement Not Accepted

Posted in Liability Standards

New rules for product liability litigation are now on the books in Pennsylvania due to the opinions in Tincher v. Omega Flex Inc.. By a 4-2 vote, the Court declined to adopt the Third Restatement of Torts but did knock out a past ruling (Azzarello) on the line between strict liability and negligence, and the related jury instructions.  The vote was 4-2 because of the recent resignation of former Judge McCaffery after political and ethical brawls among members of the Court and various other senior state officials.

A “drug and device” view of the opinion (and some apparently deserved gloating) can be found in a November 21, 2014 post at Drug and Device Law blog. A November 20, 2014 post at the TortsProf blog highlighted some key points.  I’ve not yet waded through the opinion, which is said to include a lengthy review of the history of product liability law.


SCOTUS and a Well Told Fish Story – Kudos to Brian Murray and Meghan Sweeney

Posted in Humor

It’s great when lawyers mix humor into tight legal analysis. Therefore, I’ve taken the liberty of posting below an article that otherwise is caught behind a paywall that guards the November 20, 2014 issue of the Chicago Daily Law Bulletin.


Top court reels in Sarbanes-Oxley fish case

By Brian J. Murray

Brian J. Murray is a partner at Jones, Day, where he leads the Chicago office’s issues and appeals practice. He also teaches complex litigation at The University of Chicago Law School. He can be reached at On Nov. 5, the U.S. Supreme Court heard arguments in Yates v. U.S., which asks the court to decide a momentous legal question of our times — whether a fish called a red grouper is a “tangible object” under an obstruction statute passed as part of the Sarbanes-Oxley Act in the wake of the Enron scandal in 2002.What does a red grouper have to do with Sarbanes-Oxley, you ask? Though it sounds fishy, the answer lies in the lower courts’ broad interpretation of the particular statute at issue.The facts of the case, as set out by the 11th U.S. Circuit Court of Appeals, are straightforward. John L. Yates was the captain of the Miss Katie, a fishing vessel operating off the coast of Florida. On Aug. 23, 2007, Officer John Jones, a federally deputized Florida Fish and Wildlife Conservation Commission officer, boarded Yates’ boat and noticed red grouper that appeared to be less than the 20-inch minimum.Jones measured the fish and placed those that were clearly under the legal size limit into wooden crates. He issued Yates a civil citation for catching undersized red grouper in federal waters and instructed him not to disturb the undersized fish, which would be seized by federal officials when the Miss Katie returned to port.Though Jones told Yates to bring the undersized fish to the dock, Yates instead instructed his crew to throw them overboard.At trial, Yates was found guilty of knowingly disposing of undersized fish to prevent the government from taking lawful custody and control of them, in violation of 18 U.S.C. Section 2232(a), and destroying or concealing a “tangible object with the intent to impede, obstruct or influence” a federal investigation, in violation of 18 U.S.C. Section 1519. He was sentenced to, and served, 30 days in jail.Only the second count is at issue before the Supreme Court, where the parties disagree whether a fish should be considered a “tangible object” for purposes of 18 U.S.C. Section 1519.The entire statute states: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies or makes a false entry in any record, document or tangible object with the intent to impede, obstruct or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”The 11th Circuit held that under the plain language of the statute, a fish qualifies as a tangible object, since the Black’s Law Dictionary definition of “tangible” is “[h]aving or possessing physical form.” Thus, the court refused to consider any contrary statutory purpose and declined to apply the rule of lenity.The key to the outcome of this case will be the method of statutory interpretation that the Supreme Court uses. Yates argues that “tangible object” should be read in light of its surrounding terms, “record” and “document” to mean “a thing used to preserve information, such as a computer, server or similar storage device.”In addition, Yates argues that Congress’ purpose in enacting Sarbanes-Oxley, to prevent any “systematic campaign” like that taken by “Enron and its auditor, Arthur Andersen, to purge records and documents in anticipation of a federal investigation” informs the meaning of “tangible object” to exclude fish.

The government, on the other hand, argues that “tangible object” is unambiguous and should be interpreted based on its plain meaning. The government also claims that this Sarbanes-Oxley provision was an attempt by Congress to “close loopholes in the existing destruction-of-evidence regime,” and its clear language reflects that purpose — to “prohibit the destruction of all physical evidence.”

While the government argues that Yates’ “illogical” reading “prohibits a murderer from destroying his victim’s diary, but not the murder weapon,” the National Association of Criminal Defense Lawyers and the American Fuel & Petrochemical Manufacturers, who filed a friend-of-the-court brief in support of Yates, argue that his conviction under a broad reading of what they call an “anti-shredding provision,” is “but one more example of the overcriminalization epidemic.”

This epidemic, they argue, is a result of imprecisely drafted legislation resulting in individuals being subject to “penalties far in excess of those penalties set by Congress for the underlying crime.”

Thus, Yates, like last term’s Bond v. U.S. (see my column “Vengeance, poison and the treaty power — all in one high court case,” July 3), poses an interesting statutory construction question about whether the plain meaning of statutory language should control when such an interpretation poses constitutional and other policy concerns.

Those interested in issues of statutory construction must wait with … eh … bated breath to see which school of statutory interpretation wins out in Yates — a broad construction, or one motivated by a search for the true porpoise.

Sincere thanks to Jones, Day associate Meghan E. Sweeney for her contributions to this column.

Asbestos Litigation Goes More Molecular – Germline BAP1 Mutation Issues Are Said to Exist in 5 Cases

Posted in Asbestos, Cancer, Causation - Cancer, Mass Tort Issues

Some say that change is the predominant theme in asbestos litigation. For 2014, some of the change arrives in the form of at least five mesothelioma cases where the presence or absence of a germline  BAP1 mutation is becoming an issue. As it happens, the five cases are scattered around the country: California (3), Missouri, and New York. Thus, 2014 becomes the year mesothelioma litigation undeniably entered the age of precision scientific analysis aimed at a particular person’s genomics, and related molecular characteristics. The five cases are listed in an August 18, 2014 declaration of Ms. Andrea Huston – online here. Ms. Huston is an experienced lawyer with an Oakland based asbestos plaintiff’s firm – Kazan McClain et al.

Ms. Huston’s declaration indicates the five cases are the only known cases in which germline BAP1 issues are known to have emerged. The declaration of course is limited to Ms. Huston’s best knowledge, after some unspecified amount of communication among some members of the asbestos plaintiff’s bar. So, it is of course possible there are germline BAP1 issues emerging in some other cases. The cases identified by Ms. Huston are:

  • Ortwein v. CertainTeed Corp., et al., Alameda County Superior Court No. RG13701633
  • Perez v. ArvinMeritor, Inc., et al. , Alameda County Superior Court No. RG13689541
  • McCarthy v. Baltimore Aircoil Co., et al., Los Angeles County Superior Court No. BC464985
  • Bergstrom v. 84 Lumber, et al., Missouri Circuit Court (22nd Cir.) No. 1322-CC09325
  • Bernard v. Colgate-Palmolive Co., New York Supreme Ct., New York County, No. 107211/08

More ahead this week and next week on further specifics about the germline BAAP1 issues in these cases.


A Soon to Arrive End to Some Causation Questions for Food Illnesses – Spraying DNA Bar Codes onto Food

Posted in Litigation Industry, Science

Causation questions generate lots and lots of issues and fees in litigation regarding contaminated food. One can foresee an end to many of the factual questions with soon to arrive (next year) DNA bar codes sprayed on to food. The creator of this new product? A federal lab working on defense issues. Really. For all the specifics, see this Nov. 19, 2014 article from


Delaware’s Fee Shifting Debate

Posted in Uncategorized

Various litigation industry interests are involved in ongoing Delaware law debates about rules for shifting fees for litigation.  Also at stake are the interests of transactional lawyers. Oh yes, companies also may care too, and at least some say they care. Some uber business lobbying groups also say these are critical issues. The diverse interests – and the views of Professor Bainbridge – are highlighted and linked in an interesting November 19, 2014 post at the Conglomerate.