Case Notes
February 07, 2006
Highlights of the latest product liability cases from around the country.
Practice Tip: First-of-a-Kind Accidents ' Evidentiary Considerations
February 07, 2006
Many successful trial specialists consider "other similar incidents" evidence ("OSI") to be among the most powerful weapons intended to persuade juries that the product in question is truly defective. If they are used, however, two things are necessary: evidence to support the incidents, and careful scrutiny, not only for the familiar standards of so-called "substantial similarity," but also for true relevance, probativeness and potential for prejudice.
Indemnification in Drug and Device Cases: Avoiding Future Problems
February 07, 2006
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.
New York Ruling Reveals Third-Party Liability Trend
February 07, 2006
In the emerging issue of third-party liability, recent rulings by the high courts of New York state and Georgia, and a case pending before the New Jersey Supreme Court, may provide some insight as to the direction other state supreme courts may follow.
Online: Occupation Safety Information Is Abundant Online
February 07, 2006
Visit <i>www.occupationalhazards.com</i> for everything you ever wanted to know about occupational safety, health and loss prevention. This month's column covers some of the many features offered by the site.
Case Briefs
February 06, 2006
Highlights of the latest insurance cases from around the country.
Factors in the Classification of 'True Excess,' 'Excess By Coincidence,' and Primary Policies
February 06, 2006
In assessing whether a particular insurance policy is excess or primary, courts consider a number of factors including: the premium paid for the policy (<i>ie</i>, the amount of consideration); the specific language of the policy (<i>ie</i>, the presence of an "other insurance" clause); the form of the policy (<i>ie</i>, whether the policy specifically identifies itself as "excess"); and whether the policy specifically identifies the primary policies. These factors determine whether the policy will be deemed "true excess," "excess by coincidence," or primary. This determination is necessarily fact intensive and involves not only an examination of the subject policy but also an examination of any other policy to which the subject policy is purportedly excess and the interaction of such policies.
Brillhart Abstention: Will Your Declaratory Judgment Action Stay in Federal Court?
February 06, 2006
Experienced insurance coverage lawyers know that choice of forum frequently affects choice of law, and choice of law is frequently outcome determinative. Coverage disputes, therefore, often result in a rush to the courthouse by both policyholders and insurers as they select the forum. One way insurers initiate litigation is to file a declaratory judgment action, usually in federal court.
Competitive Bidding Assistance Programs Do Not Violate Robinson-Patman Act
February 06, 2006
On Jan. 10, 2006, the U.S. Supreme Court announced its first decision in over a decade interpreting the federal price discrimination statute, known as the Robinson-Patman Act (the "RPA"). In a 7-2 decision, the Court in <i>Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.</i> (04-905), held that a heavy-duty truck manufacturer's unequal price concessions to its dealers bidding for special order jobs do not violate the RPA unless they discriminate between dealers competing for the same retail customer.
An Uncivil Code in the EU?
February 06, 2006
In the wake of the tidal wave of franchise regulation that has hit Europe, in France, Spain, Italy, Belgium, Lithuania and Estonia, there is another tidal swell rapidly approaching. Over the last 3 years, a privately financed group of European academics, working under the title, "The Study Group on a European Civil Code," have been developing a model European Civil Code. One of the Study Group's subgroups (the "Amsterdam Team") has drafted a chapter on Commercial Agency, Franchise and Distribution Contracts, the latest draft of which is dated January 2005.
