Establishing Injury Presents Challenge In Lawsuits over Right of Publicity
The right of publicity ' the right of individuals to protect the commercial uses of their names and images ' is now a familiar concept. Given CKX Inc.'s purchase for a reported $50 million of rights to Muhammad Ali's name and the company's $100 million acquisition of Elvis Presley's publicity rights, there can be no question that the right not only can have great value, but has achieved a certain settled status. And yet, the metes and bounds of the right remain elusive at best.
Maximizing Coverage Under the 'Cause Test'
The determination of the number of occurrences that arise under an insurance policy can have a profound effect on the availability of coverage, from the perspective of the policyholder, or upon the limitation of coverage, from the perspective of the insurer. Although the stakes can be enormous, the math is fairly simple. Consider a policyholder that faces a large liability arising from a substantial number of small claims. If the policyholder has a coverage program that provides a low per-occurrence deductible or self-insured retention, or no per-occurrence deductible or self-insured retention, a judicial determination that there are many occurrences likely will have the effect of maximizing the policyholder's recovery. On the other hand, if that same policyholder has a coverage program with a high per-occurrence deductible or self-insured retention, which may exceed the amount of most if not all of the single claims, a judicial determination that the claims constitute a single occurrence likely will maximize the policyholder's recovery.
Is Defective Workmanship an 'Occurrence'?
Last month, we discussed the fact that under the terms of a standard Commercial General Liability ('CGL') policy, an insurance company must defend and indemnify its insured for claims of property damage resulting from an 'occurrence' subject to certain enumerated policy exclusions. We went on to enumerate differences in various states' jurisdictions, from California to Florida to Illinois. This Part continues the examination of various states' case law.
Anti-SLAPP Statutes and Peer Review
Hospitals trying to assemble a peer review committee to review another practitioner's record and perhaps impose sanctions for substandard performance have their jobs cut out for them because physicians are often reluctant to pass judgment on a colleague. In addition to this natural reticence, those who sit on or testify at a peer review proceeding have another reason to want to avoid it: the threat of lawsuits brought by the medical practitioner facing discipline. The scope of the problem is obvious: without willing and honest participants, the peer-review system that helps keep patients safe is compromised.
Case Notes
Highlights of the latest product liability cases from around the country.
Excluding Unreliable Expert Testimony in Fire Cases
Fire cases, especially those involving appliances, present unique challenges because the lack of compelling physical evidence often permits ex-perts to give unreliable opinions concerning causation. Fire usually destroys evidence showing its cause, and many fire scenes contain multiple possible causes in the area of origin. Moreover, the area of origin can only be defined in the most general sense in most significant cases because there are no fire patterns indicating a specific point of origin. Many times, the likely area of origin is no smaller than a large portion of a particular room. Moreover, property owners are reluctant to reveal that they negligently started a fire, so they provide misleading information in some cases. In many fires, certain or even likely identification of any particular cause is simply not possible.
Prescription Drug Litigation Pre-emption: A Status Report from the Defense Perspective
The Food and Drug Administration's ('FDA') pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule has resulted in a significant shift in judicial recognition of pre-emption in prescription drug litigation. While only a handful of courts had upheld prescription drug pre-emption arguments prior to the FDA preamble, a solid majority of courts informed by the FDA's preamble analysis have found state law claims pre-empted. Part One of this series discussed key battlegrounds upon which future FDA pre-emption arguments will be fought. This second installment reviews recent case law and also discusses two new FDA <i>amicus</i> briefs in which the FDA provides further guidance on the proper scope of pre-emption in prescription drug litigation.
Minimizing Internet Risk
The Internet has revolutionized how companies conduct business. Utilizing Internet technologies, people now instantly share ideas with individuals around the globe, and companies can now reach previously inaccessible markets through their Web sites. Along with these advantages, however, the Internet and related technologies have added unique risks to today's businesses. As discussed in Part One of this article, these dangers include threats to a company's electronic information through viruses and worms as well as new legal liabilities stemming from a business' Internet usage. In addition, the Internet provides numerous threats to a business's intellectual property and makes unwary companies susceptible to suit for treading on the intellectual property rights of others. This part of the article reviews some of these hazards and summarizes steps that companies can take to minimize their exposure to these risks.
Colacicco v. Apotex: A New Era in Prescription Drug Pre-emption
Prescription drug manufacturers have unsuccessfully asserted pre-emption as a defense to product liability claims for decades. A new FDA final rule and the first federal case interpreting that rule indicate that the tide may be turning. On May 25, 2006, Judge Baylson of the U.S. District Court for the Eastern District of Pennsylvania issued his opinion in <i>Colacicco v. Apotex, Inc.</i>, 432 F. Supp. 2d 514 (E.D. Pa. 2006). The decision is the first federal court opinion discussing the pre-emptive effect of the preamble to the FDA's final rule on prescription drug labeling (the 'preamble'). <i>See</i> 71 Fed. Reg. 3922, 3934 (Jan. 24, 2006).
