Case Notes
July 31, 2007
Highlights of the latest product liability cases from around the country.
Walking the Line: Sharing Work Product with Testifying Witnesses
July 31, 2007
Attorneys have an ethical obligation to represent their clients zealously. Deposition preparation is key to that obligation. Preparing testifying witnesses educates and focuses them on important issues and facts of a case. This aside, the law regarding disclosure of work product provided to testifying witnesses is not well settled, and 'there is considerable room within which thoughtful judges can reach different conclusions.' <i>Intermedics, Inc. v. Ventritex, Inc.</i>, 139 F.R.D. 384, 387 (N.D. Cal. 1991). Zealous representation, therefore, requires counsel to walk a line between witness preparation on one side and work product disclosure on the other. In so doing, counsel must also remain mindful of the line that exists between acceptable witness preparation and impermissible influencing of a witness. <i>State v. Earp</i>, 571 A.2d 1227, 1235 (Md. 1990). One misstep may lead to disclosure of counsel's mental impressions and strategy and, possibly, to serious sanctions.
Designer Liability: A Trap for the Unsuspecting Manufacturer Or Former Manufacturer
July 31, 2007
In order to hold a defendant liable in a product liability case, tort law traditionally has required an injured plaintiff to show that the named defendant manufactured, sold, or distributed the product that allegedly caused the plaintiff's injury. Over the years, however, courts have established exceptions to this general rule. <i>See, e.g., Thomas v. Mallett</i>, 701 N.W.2d 523 (Wis. 2005) (lead paint manufacturers held liable under a market share liability theory even though the plaintiff could not prove which defendant manufactured injury-causing product). Recently, several courts have further eased plaintiffs' burden of proof by using theories of designer liability to hold companies responsible for injuries to consumers, even though the plaintiff could not show that the defendant manufactured, sold, or distributed the product that caused the plaintiff's injuries.
Practice Tip: One Trick Against Getting Stuck in 'Magic Jurisdictions'
July 31, 2007
South Florida. Rio Grand Valley and Gulf Coast, TX. West Virginia. Cook County, Madison County, and St. Clair County, IL. Ask most Americans what the connection is between those disparate places and you will probably get quizzical looks. Ask most product liability defense attorneys (or their multinational clients), however, and you may get looks of frustration, anger, possibly even apprehension. According to a 2006 report by the American Tort Reform Foundation, those jurisdictions are so-called 'Judicial Hellholes',' which are 'places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil litigations.' <i>See www.atra.org/reports/hellholes</i> at 1.
The Second British Invasion: Foreign Nationals in U.S. Courts
July 31, 2007
When the British invaded in the 1960s, they came as rock and roll bands. Today, the British ' joined by the Italians, the French, and other foreign nationals ' are storming America's shores as plaintiffs in pharmaceutical personal-injury class action and other complex litigation matters. These plaintiffs sue domestic U.S. corporations here for alleged injuries caused abroad by their international subsidiaries. In doing so, the foreign plaintiffs are attempting to circumvent favorable foreign law that protects the corporate defendant. As shown below, the <i>forum non conveniens</i> doctrine is a viable defense to these suits in certain situations.
In the Marketplace
July 31, 2007
Highlights of the latest equipment leasing news from around the country.
The Case for Expert Testimony
July 31, 2007
In equipment leasing industry court cases, one of the challenges lawyers and judges face is simply understanding the nuances and contractual language of the business. That makes credible expert testimony in such legal matters especially critical to winning a case, whether it involves a bank, captive finance company, or independent leasing firm.
Corporate President May Avoid a Personal Guaranty
July 31, 2007
In a recent decision, <i>Cummings Properties, Inc. v. Aspeon Solutions, Inc., et al.</i> (Lawyers Weekly No. 13-019-07), the Massachusetts District Court/Boston Municipal Court Appellate Division affirmed the District Court judge's findings at trial that a defendant could not be held personally liable on a guaranty contained in a commercial real estate lease that the defendant quickly signed in two places before rushing off to the airport to make a flight. This decision was affirmed by the appellate division based on the defense of fraud in the factum.
Movers & Shakers
July 31, 2007
Information about the advancement of lawyers in the patent profession.
The Technical Professional's Role in IP Strategy
July 31, 2007
Engineers, scientists, and other technical professionals 'make or break' the development of IP strategy in industry. It is not uncommon to develop IP strategy by drawing in a number of technical experts to work with decision makers and an IP agent or attorney to develop a strategy that others will implement. For example, sometimes an IP strategy for a new invention or new technology is to be developed, or the business wishes to develop an IP strategy to support the growth of new products. In such instances, it is helpful to consider how to select the technical experts to assist this strategic effort.
