A Financial Expert's View on e-Discovery and Financial Expert Challenges
In this edition, we offer you the first of a two-part article on the challenge of financial experts as witnesses in cases in which e-discovery is relevant. This month, our expert author from PricewaterhouseCoopers provides an overview of how a financial expert can help counsel in e-discovery and litigation strategy.
Blogging Do's and Don'ts
With the rush to create content, it's easy to forget that all business communications directed to the public are subject to a variety of laws, regulations and other legal concerns. This article provides a high-level overview of the key points to keep in mind as you assess whether your company-related blog is legally compliant.
Jury Trials in Patent Cases: Practical and Legal Considerations
One of the most important questions facing a party going to trial in a patent action is whether a jury will help or hurt the party's chance of winning. Recent Federal Circuit and Supreme Court decisions confirm that patentees actually have considerable control over whether a judge or a jury decides the disputed facts. These decisions hold that the Seventh Amendment does not require a jury trial in patent cases where the relief sought is purely equitable, and the right to a jury trial can be lost if damages claims are dismissed. This article explores some of the legal and tactical considerations behind deciding whether to seek a jury trial.
Multi-Year and Stub Policies: The Expectations and Economics of Providing Full Limits of Liability
When an insurance policy is written for a single year, little controversy exists regarding the limits of liability. Multi-year policies, those written for more than one annual period, and stub policies, those in effect for less than a year, are, however, becoming a source of disagreement. Particularly with long-tail claims such as asbestos, chemical exposures, and welding rod litigation triggering historic policies from the 1960s and 1970s, litigation on these issues is becoming ever more important. There is no established general rule regarding the available limits for these types of policies. Rather, courts apply a case-specific analysis of the evidence and policy language to determine the parties' intent regarding the policy's limits. Based on the policy language, or lack thereof, courts have, with limited exceptions, found full aggregate limits during each annual period for multi-year policies and an additional set of limits for stub policies. Such findings are supported by policy language, general legal principles, the economics of the parties' transactions, and industry practice.
Replacement Cost Insurance and the Issue of Matching
The typical homeowner's property insurance policy 'loss settlement' provision provides that in the event of a covered loss to a dwelling, the insurer will pay the cost to repair or to replace without deduction for depreciation, but not exceeding the lesser of the following three amounts: (a) the limit of liability applicable to the dwelling; (b) the replacement cost of that part of the dwelling damaged (for like construction and use, or equivalent construction and use, or with comparable material and quality for the same use, or using materials of like kind and quality) on the same premises; or (c) the necessary amount actually spent to repair or to replace the damaged dwelling.
<b>Practice Tip: </b> A Balanced Approach to Evidence Collection
The plethora of tools designed to make quick work of searching digital files appear to make most data collection tasks trivial. Products such as Google Desktop Search, DTSearch, Microsoft's Lookout and X1's eponymous set of search tools index digital files and e-mail, while providing fast and accurate search results. Of course, the promise of these tools stands in direct contrast to the warnings that litter industry trade publications, admonishing that anything less than a 'forensic' collection could be considered indefensible ' at best leading to a ruling for adverse inference, and at worst resulting in sanctions.
Case Notes
Highlights of the latest product liability cases from around the country.
The Michigan Dioxin Study: Help for Defendants in Toxic Tort Litigation
In August 2006, the University of Michigan's School of Public Health released the initial report in its ongoing study of dioxin exposure in central Michigan. <i>Measuring People's Exposure to Dioxin Contamination Along the Tittabawassee River and Surrounding Areas</i> (August, 2006) ('Report') (<i>www.umdioxin.org</i>). The University study was prompted by concerns among the population of Midland and Saginaw Counties that dioxin-like compounds from Dow Chemical Company facilities in Midland had contaminated parts of the city of Midland and sediments in the Tittabawassee River (Report, p. 5). The study was not designed to evaluate health effects, but rather to determine whether there was a relationship between levels of dioxin in residential soils and household dust and levels of dioxin in people's blood. <i>Id.</i> It also evaluated other factors that could influence blood dioxin levels such as age, diet, hobbies, and employment. <i>Id.</i>
Prescription Drug Litigation Pre-emption: A Continuing Status Report From the Defense Perspective
Since the Food and Drug Administration ('FDA') set forth its pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule, there has been a flood of judicial opinions analyzing the scope and applicability of the pre-emption defense in prescription drug litigation. The cases have been sharply divided, and the defense now appears likely to be a key issue that will be addressed in all cases going forward. In this continuing coverage, I summarize the pre-emption opinions that have been handed down since my last article in the November 2006 issue of this newsletter. For an analysis of the legal arguments in support of pre-emption and the FDA preamble, <i>see</i> Eric G. Lasker, <i>Prescription Drug Litigation Pre-emption Following the FDA Preamble</i>, LJN's Product Liability Law & Strategy, Vol. 25, No. 4 (October 2006).
