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Indemnification in Drug and Device Cases: Avoiding Future Problems
Contractual indemnification arises in products liability litigation in many contexts other than insurance contracts. Agreements between companies and agreements between product manufacturers and physicians and pharmacies are among the most commonly encountered indemnifications in drug and device product liability litigation. Each situation raises practical concerns for counsel representing a pharmaceutical or device manufacturer. How the indemnification provisions are drafted can be important to the client's bottom line and ability to manage litigation. This article discusses some of the practical and litigation strategy considerations that can arise when contemplating entering an agreement for indemnification.
Agreements Between Pharmaceutical Drug and Device Makers
Indemnification agreements between drug and device makers are no longer a rarity. Co-promotion agreements, licensing and marketing agreements, supply agreements, component parts agreements, intellectual property rights agreements and sales of product lines from one company to another all can raise issues in personal injury product liability litigation. When drafting such agreements, it is easy to use standard boilerplate indemnification language from form agreements, but doing so without regard to whether the form fits all potential circumstances can cause major headaches in the event of third-party litigation involving the products at issue. Practical considerations should play a role in how the indemnification is drafted, and it is important to remember that with respect to indemnification, one size really does not fit all. Unless the indemnification agreement is tailored to eliminate future points of discord or uncertainty, the parties may find themselves in extensive negotiations or even litigation between themselves when a product liability lawsuit is filed. The following factors should be considered when drafting an indemnification agreement between a drug and device manufacturer.
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