Mild Traumatic Brain Injury and the Pupillary Light Reflex

According to a recent review study of Pubmed Central/National Library of Medicine databases, the pupillary light reflex provides an optimal opportunity to investigate mild traumatic brain injury (mTBI).

Based on the findings of the review, the pupillary system may provide a noninvasive “window” to mTBI, in terms of documenting its existence and the often-accompanying symptom of photosensitivity. When an individual experiences mTBI, visual dysfunction may occur, and the pupillary light reflex may be affected. Pupils are routinely assessed for abnormal size and responsivity to determine the neural integrity of the visual system. Investigating pupillary light reflex in the mTBI population, researchers found that pupillary response was significantly delayed, slowed, and reduced, symmetrically, with a smaller baseline diameter. These findings may indicate dysfunction of the pupillary pathway.

Several objective biomarkers for the presence of mTBI and photosensitivity provide further insight into neurological dysfunction. In mTBI, photosensitivity may be due to dysfunction in the baseline neural sensor. Photosensitivity as a perceptual phenomenon can be confirmed through objective, noninvasive, rapid, vision-based, pupillary biomarkers.

Pupillary light reflex in mTBI may be investigated with pupillometers to assess subtle abnormalities in pupil size as well as pupillary responses. The resulting information can provide diagnostic or prognostic indicators relating to the extent of the injury, and neurophysiological linkages. Pupillometers offer precise and extensive pupillary testing for the mTBI population, especially those individuals who experience photosensitivity. The major drawback is cost. Development of a more inexpensive hand-held pupillometer would help with diagnosis of mTBI and improve patient care.

With such instrumentation, pupillary light reflex could be used to investigate the possibility of a very early, acute-stage mTBI/concussion in emergency rooms, in the workplace, and even on the sideline of sports games. Such information can be relevant to a worker’s compensation determinations, social security disability determinations, and return-to-play/work/learn standards for both adults and children.

This post was written by Bruce H. Stern of STARK & STARK., COPYRIGHT © 2017
For more Biotech legal analysis, go to The National Law Review 

Baker-Polito Administration Awards $3.7 Million in Grants for Clean Energy Technology

On November 1, the Baker-Polito Administration awarded $3.7 million in grants to increase the adoption of cost-saving clean energy technologies by Massachusetts low-income residents as part of the Commonwealth’s Affordable Clean Residential Energy Program (ACRE).

Launched in April of this year, the ACRE program evolved out of the Administration’s $15 million Affordable Access to Clean and Efficient Energy (AACEE) Initiative, which focuses on coordinating the agencies that serve the energy and housing needs of Massachusetts’ low- and moderate-income residents. The Initiative’s goal is to increase the number of renewable technologies employed by low-income, single-family homes throughout the Commonwealth. To that end, an AACEE working group published a report last year highlighting recommendations to address barriers to clean energy investment by the state’s low-income residents. These recommendations, which included maximizing clean energy market growth in the low-income housing community and structuring clean energy incentives to better serve low-income residents, have served as a guidepost for the Initiative and its suite of programs.

Through ACRE, the Massachusetts Clean Energy Center (MassCEC) is awarding $2 million to Action for Boston Community Development (ABCD), a non-profit human services organization helping low-income residents in the greater Boston region transition from poverty to stability. ABCD will assist in the installation of air-source heat pumps and solar photovoltaic systems, weatherization, and energy efficient lighting as well as appliance replacement for qualifying single-family homes with reported incomes below 60 percent of the State Median Income.

Energy Futures Group, an expert consulting services organization focused on the design and evaluation of energy efficiency and renewable energy programs, will receive the remaining $1.7 million of the Administration’s funding and will focus their efforts on Western Massachusetts residents living below 80 percent of the State Median Income.

The ACRE program will give low-income homeowners access to renewable technologies, allowing these households to reduce energy costs without out-of-pocket investment. In addition to helping mitigate greenhouse gas emissions, the expanded use of energy efficient appliances benefits all Massachusetts’ ratepayers. By increasing the affordability and accessibility of these technologies, Massachusetts continues to affirm its role as a leader in clean energy generation and the fight against climate change.

This post was written by Sahir Surmeli of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.,©1994-2017
For more Environmental & Energy legal analysis, go to The National Law Review 

Elder Abuse: Are Granny Cams a Solution, a Compliance Burden, or Both?

In Minnesota, 97% of the 25,226 allegations of elder abuse (neglect, physical abuse, unexplained serious injuries and thefts) in state-licensed senior facilities in 2016 were never investigated. This prompted Minnesota Governor, Mark Dayton, to announce plans last week to form a task force to find out why. As one might expect, Minnesota is not alone. A studypublished in 2011 found that an estimated 260,000 (1 in 13) older adults in New York had been victims of one form of abuse or another during a 12-month period between 2008 and 2009, with “a dramatic gap” between elder abuse events reported and the number of cases referred to formal elder abuse services. Clearly, states are struggling to protect a vulnerable and growing group of residents from abuse. Technologies such as hidden cameras may help to address the problem, but their use raises privacy, security, compliance, and other concerns.

With governmental agencies apparently lacking the resources to identify, investigate, and respond to mounting cases of elder abuse in the long-term care services industry, and the number of persons in need of long-term care services on the rise, this problem is likely to get worse before it gets better. According to a 2016 CDC report concerning users of long-term care services, more than 9 million people in the United States receive regulated long-term care services. These numbers are only expected to increase. The Family Caregiver Alliance reports that

by 2050, the number of individuals using paid long-term care services in any setting (e.g., at home, residential care such as assisted living, or skilled nursing facilities) will likely double from the 13 million using services in 2000, to 27 million people.

However, technologies such as hidden cameras are making it easier for families and others to step in and help protect their loved ones. In fact, some states are implementing measures to leverage these technologies to help address the problem of elder abuse. For example, New Jersey’s Attorney General recently expanded the “Safe Care Cam” program which lends cameras and memory cards to Garden State residents who suspect their loved ones may be victims of abuse by an in-home caregiver.

Common known as “granny cams,” these easy-to-hide devices which can record video and sometimes audio are being strategically placed in nursing homes, long-term care, and residential care facilities. For example, the “Charge Cam” (pictured above) is designed to look like and actually function as a plug used to charge smartphone devices. Once plugged in, it is able to record eight hours of video and sound. For a nursing home resident’s family concerned about the treatment of the resident, use of a “Charge Cam” or similar device could be a very helpful way of getting answers to their suspicions of abuse. However, for the unsuspecting nursing home or other residential or long-term care facility, as well as for the well-meaning family members, the use of these devices can pose a number of issues and potential risks. Here are just some questions that should be considered:

  • Is there a state law that specifically addresses “granny cams”? Note that at least five states (Illinois, New Mexico, Oklahoma, Texas, and Washington) have laws specifically addressing the use of cameras in this context. In Illinois, for example, the resident and the resident’s roommate must consent to the camera, and notice must be posted outside the resident’s room to alert those entering the room about the recording.
  • Is consent required from all of the parties to conversations that are recorded by the device?
  • Do the HIPAA privacy and security regulations apply to the video and audio recordings that contain individually identifiable health information of the resident or other residents whose information is captured in the video or audio recorded?
  • How do the features of the device, such as camera placement and zoom capabilities, affect the analysis of the issues raised above?
  • How can the validity of a recording be confirmed?
  • What effects will there be on employee recruiting and employee retention?
  • If the organization permits the device to be installed, what rights and obligations does it have with respect to the scope, content, security, preservation, and other aspects of the recording?

Just as body cameras for police are viewed by some as a way to help address concerns over police brutality allegations, some believe granny cams can serve as a deterrent to abuse of residents at long-term care and similar facilities. However, families and facilities have to consider these technologies carefully.

This post was written by Joseph J. Lazzarotti  of Jackson Lewis P.C. © 2017
For more legal analysis, go to The National Law Review 

3 Steps to Network Your Law Firm on LinkedIn

LinkedIn is all about making business connections and luckily for you, there are several great tools on the site that makes networking on this platform a breeze. Once you have your profile in place and have made sure all the information is up to date, that you have some blog posts connected to it, and have added a video or two, you are set to network. Here are the three key steps you need to take:

Step 1: Have LinkedIn import your address book and search your email account.

The site will then suggest some connections based on who you already know. Send those suggested connections a connection request and you are on your way.

Step 2: Find and connect with potential clients.

  • Search by industry first to see if you already have any connections at companies you are targeting for potential new business.

  • If you find that you have a first-degree connection to a prospective client, call or email your first-degree connection and ask them to make an introduction.

  • If the connections you find are further down the scale (2nd or 3rd tier connections), use the InMail feature to invite those people to connect with you. Customize your request to provide context for the connection.

  • Be sure you have opted in to LinkedIn alerts for all your connections. Once you receive an alert that someone you’re connected with has published an article or has a new job, send them an email to reconnect and rekindle the relationship.

  • If you receive an alert that someone has viewed your profile who could be a potential new client, send that person an InMail message asking if you can help.

Step 3: Cultivate new referral sources.

  • Find LinkedIn groups that match up with your practice area and join them. Participating in these groups helps drive traffic to your LinkedIn profile page.

  • Showcase your expertise by starting your own LinkedIn group and inviting your connections to join.

  • Post blogs, articles, firm announcements, press releases, videos on your profile page and in your groups.

  • Examine your client’s networks to see if there are any potential prospects you’d like to be introduced to and then ask your current or former client if they would be a referral source for you.

Once you get the hang of how things work on LinkedIn — and how easy it is to connect — you will find that it is ripe for networking successfully. And you don’t even have to leave home or the office to do it!

This post was written by Stephen Fairley of The Rainmaker Institute, All Rights Reserved ©
For more legal analysis, go to The National Law Review

Yoga and Massage Therapist Fired for Being “Too Cute” Sees Gender Discrimination Revived on Grounds of Unjustified Spousal Jealousy

A New York appeals court recently ruled in Edwards v. Nicolai (153 A.D.3d 440 (N.Y. App. Div. 1st Dep’t 2017)) that an employment termination motivated by the sexual jealousy of an employer’s spouse may support a claim for gender discrimination under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

Defendants Charles Nicolai and his wife Stephanie Adams – a former Playboy model – were co-owners of a chiropractic center located in New York City. In 2011, Nicolai hired plaintiff Dilek Edwards, a female yoga and massage therapist, and was her direct supervisor. Edwards’s complaint alleged that during the course of her employment, her relationship with Nicolai was “purely professional” and that Nicolai “regularly praised [her] work performance.”

However, in June 2013, Nicolai purportedly told Edwards “that his wife might become jealous of [her], because [Edwards] was too cute.” Several months later, Adams sent plaintiff a text message saying, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” A few hours later, Edwards allegedly received an email from Nicolai stating, “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.” One day later, Adams filed an allegedly false complaint with the New York City Police Department claiming that Edwards placed “threatening” phone calls to Adams which caused Adams to change the locks at her home and business. Edwards’s complaint alleges that she has “no idea what sparked . . . Adams’ [sic] suspicions.”

Edwards’s NYSHRL and NYCHRL gender discrimination claims were dismissed at the trial court level. However, that decision was overturned on appeal, with the court holding that “adverse employment actions motivated by sexual attraction are gender-based, and therefore, constitute unlawful gender discrimination.” The court explained that while Edwards does not allege that she was subjected to sexual harassment, it can be inferred that Nicolai was motivated to terminate Edwards “by his desire to appease his wife’s unjustified jealousy.” Further, it can also be inferred that Adams was motivated to terminate Edwards based on Adams’s own jealousy. Accordingly, the court found it plausible that each defendant’s motivation to terminate Adams was sexual in nature and therefore unlawful.

In reaching its decision the court observed that, “while it is not necessarily unlawful for an employer to terminate an at-will employee at the urging of the employer’s spouse,” a plaintiff may find relief for such a discharge if the spouse requested the termination for unlawful, gender-related reasons. Here, assuming Edwards’s allegations are true, her termination was unlawful not because Adams asked Nicolai to fire Edwards, but because she did so for no other reason than her belief that Nicolai was sexually attracted to Edwards.

Laura Doyle contributed to this post.

This post was written by Jonathan Sokolowski of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more Labor & Employment legal analysis, go to The National Law Review

Automotive Supplier Industry Experts Convene in Detroit and Share 2018 Outlook

The Original Equipment Suppliers Association (OESA) held its 19th Annual Conference this week in suburban Detroit under the theme:  “The Industry’s New Landscape.”  And while much of the day was devoted to autonomous vehicle developments and the potential negative impacts on the industry’s North American competitiveness that would result from substantial changes to NAFTA, the afternoon session included a robust discussion of today’s strong market in North America and the more guarded outlook for 2018 and beyond.

 During this session, Mike Jackson, Executive Director of Strategy and Research for the OESA moderated a panel called “Cycle Dynamics:  The Industry Outlook Panel,” comprised of a leading automotive forecaster, a leading Wall Street analyst and the lead economist for one of the world’s largest OEMs.  While the panel remained fairly optimistic about the near term, the longer term theme was that the automotive industry is cyclical and the next down cycle is SOMEWHERE OUT THERE …

The panelists included Dr. G. Mustafa Mohatarem, Chief Economist, General Motors; John Murphy, Managing Director, U.S. Autos Equity Research, Bank of America Merrill Lynch; and Michael Robinet, Managing Director, Automotive Advisory Services, IHS Markit.

Dr. Mohatarem began with a very optimistic evaluation of the global economy, referring to our current condition as a “global synchronous expansion.”  Not only is the U.S. economy strong, but China’s growth has exceeded recent expectations, the EU has experienced a mini-boom after dodging a debt crisis, India continues to grow steadily and Russia and Brazil’s recessions have ended.  He noted that the current U.S. production rate is 17.4 -17.5 million units for 2017, a healthy market if not quite as healthy as last year.  On the cautionary side, he noted a potentially more hawkish bent to Fed policy and a significant labor shortage that will continue to dog the U.S. automotive industry.  On the whole though, he noted: “this is a very favorable time for the global automotive industry.”

Mike Robinet summed up current supplier sentiment as follows:  suppliers see the demand and the market opportunities out there, but there will be a lot of disruptors that can derail them.  These disruptors include the impact of “ACES” (AutonomousConnectedElectrifiedand Shared), the emergence of “Super Tier 1’s” who may dominate the future landscape with their integration capabilities (leaving other suppliers behind potentially), shifting trade winds, indecision about U.S. regulatory policy including CAFÉ standards, and an acceleration of the planning cycle that creates execution risk.  He noted that the cadence of model changes has kept the supply base on its toes this year, as has the adjustment to the continuing decline in sedan sales (which was viewed by the panel as a continuing trend into the future).  Will the internal combustion engine disappear soon?  According to Robinet, 95% of the vehicles in North America will have an engine on board by 2025.  Places like China will see a faster adoption of EVs during this period, he noted, including as a result of government policies promoting them. He ended by cautioning suppliers not to focus too much on the “nirvana” of Level 5 autonomy, but rather to focus on the movement to Level 3 and 4 in the shorter term and try to find there place in those realms.

John Murphy, more bullish in recent times, conceded that he has “moderated his outlook a bit.”  Murphy noted that leasing is helping support current demand, but worries about the upcoming impacts on the used car market as those vehicles come off lease (which he referred to as a “tsunami” that will hit in 2018 and beyond).  He noted that vehicle pricing is also starting to moderate (unrelated to just mix), and that the CUV market is getting very crowded.  He described three “Big Bangs” that will shape the industry in the future:  The increase in the Efficiency of Travel (cost per mile), the impact of Autonomous Mobility On Demand on the ease and cost of travel, and the increase in Speed of Travel.  Only the latter will provide a material economic stimulus – the first two will provide only a marginal or moderate stimulus – but all three Big Bangs will significantly impact the automotive industry.   But, before these Big Bangs reach their full impact, Murphy sees a downturn within the next two years taking U.S. volume down below the 14 million unit level (compared to the miserable 9 million level reached during the Great Recession).  During the Q&A session that followed, Murphy noted that he expects EV penetration in the U.S. to reach 10% by 2025 (slightly more optimistic than Mike Robinet’s prediction).  He also noted his perception that we are not experiencing an auto technology valuation bubble despite the recent eye-popping valuations in this space (no irrational exuberance here!).

On the whole, the panel’s 2018 and beyond outlook is for an automotive supply industry in North America that continues to be good, with significant challenges and disruptors that must be overcome by those automotive suppliers who will flourish in the long term.

This post was written by Steven H. Hilfinger of Foley & Lardner LLP., © 2017

Aglets, Who Knew?

SneakRTech Corp. wants you to defend their patent and challenge BadGuys, Incorporated’s patent at the U.S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB). The subject matter: aglets.

You run to the internet and find that “aglets” are the metal or plastic component on the end of a shoelace. Even more, you are surprised to find that the science of aglets is varied and deep. There is technology behind the manufacturing of the aglets themselves, the assembly of the aglets to the laces, and the design of the aglets such that they easily insert into the eyelets of the shoe. Chemistry and material science play a role in the technology related to aglets – both metallurgy and polymer science. Some of these disciplines are relatively old (e.g., at least 15 years ago they were well developed), while some disciplines are rapidly evolving (e.g., nanocoatings to provide a color-change depending on the temperature of the environment).

To complicate things further, the patents being defended and challenged have very different applications—one is an aglet for a desert rock climbing shoe, known to be exposed to high heat, low humidity, and abrasive conditions. The other is directed to a snowboarding boot aglet.

So now you face important questions. Do you need two experts? And how do you choose an expert? There are a least four considerations associated with finding the right expert. 

1. Make a wish-list

The first step in selecting an expert is simple – make a wish-list of the ideal traits you want in your expert. This requires answering, or at least thinking about, several questions.

What, and how many, technology spaces are claimed? Consider whether you need multiple experts, based on the variation in technology, including between claims of the same patent. Although Daubert seems to come up less at the PTAB, consider how to position yourself so that any expert you choose will survive a Daubert challenge.

For our example, think about desired attributes of the eventual selected expert. Are we looking for an expert in aglet design, or perhaps manufacturing processes related to attaching the aglets to the lace themselves? Are we looking for industry or academic expertise, or both? Are we looking for a focused specialist in aglets or a broader expertise in understanding the chemistry, material science, and nanotechnology of aglets. Where is the eyelet going to be (e.g., dress shoe, trail runner, hockey skates, etc.)? Does it matter?

What level of education is required to helpfully explain the technology, and relatedly, how are we planning to define the person-of-ordinary-skill-in-the-art? If the technology is relatively developed, how will our expert opine on the state-of-the-art at a time where she may not have even been out of undergraduate school?

Do you need an experienced expert with deposition and court appearances, or will a more novice expert work?

2. Identify potential expert types and sources

Once you have a wish-list of what you want in an expert, you need to determine where to look to find it. A good start can be to research publications, patents, and industry groups in the claimed technology space.

For example, one aglet patent may relate to electroplating processes of aglets specifically designed to be applied after the aglet is attached to the lace, involving complex chemistry and manufacturing concerns. The other aglet patent could be focused on shape design for ease of entry into an eyelet on a shoe.

For the first aglet, the complex chemistry may require a high level of education. The latter aglet may be better suited to a manufacturing engineer having hands on experience in a final assembly plant, or an industrial designer focused on customer experience. These experts may travel in vastly different circles, and may lend themselves to different types of searching. Additionally, consider whether you’re looking for a generalist or a specialist. For specialist experts, several databases are available to search theses/dissertations. This may provide a list of potential experts to consider that have studied your issue deeply.

3. Consider using an expert service – or two

A helpful shortcut to finding your expert and getting them retained early can be utilizing an expert search service. As a practical matter, it can be helpful to use such a service to ensure quick turnaround, especially if you have a good relationship with the headhunter. You can take steps to make the search consultant’s job easier, which will net better results. This includes providing them a list of experts already disqualified, for example based on conflicts, co-counsel or client preference, etc. Coordination with the client and co-counsel is key, and evaluating potential experts and developing the definition of a person of ordinary skill in the art can quickly narrow the list of available experts.

Additionally, provide the expert service your anticipated timeline—it is critical that the expert is available when you need them (e.g., to prepare a declaration, at deposition(s), etc.).

4. Nail the expert interview – gain knowledge and assess quickly

The interview phase needs to include at least three considerations: experience as an expert, substantive background in the technology, and availability now and throughout trial. If an expert has never been deposed before, try to determine whether they have the soft skills needed to be effectively cross-examined. Push them to see how they react to hard questions both substantively and temperamentally. Ask them for some strategy advice for your case to see how they think. Research them – look for skeletons before hiring them. Ask for references.

You now have two experts: Ms. Boot and Dr. Slipper, PhD., to assist on two separate aglet patent cases.

This post was written by Jason D. Eisenberg of  Sterne Kessler., © 2017
For more Intellectual Property legal analysis, go to The National Law Review