When Drug and Device Company Reps Enter the Room
September 27, 2006
It is becoming increasingly common for medical company representatives to be present in examination rooms, procedure rooms and even in operating rooms. Because of this trend, it is important not only for medical companies, but also for hospitals and physicians to be aware of the potential liability related to having these representatives present during examinations or procedures.
The Federal Stored Communications Act: Third-Party Subpoena to E-mail Service Provider of Anonymous Party Ruled Invalid
September 18, 2006
Are electronic records maintained by an electronic communications service provider fair game for discovery in civil litigation? <i>In O'Grady v. The Superior Court of Santa Clara County (Apple Computer, Inc.)</i>, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Ct. App, 6th Dist. 2006), a California state appeals court quashed a civil subpoena seeking e-mail records from an e-mail service provider, citing provisions of the federal Stored Communications Act ('SCA'), 18 U.S.C. §§2701-2712, that prohibit service providers from disclosing the contents of stored electronic communications. The ruling is controversial because it appears to be the first time, in the 20 years since the enactment of the SCA in 1986, that a court has held that the Act prohibits civil litigants from obtaining discovery of electronic communications from providers of e-mail and other electronic communications services, even when a court has reviewed and approved the subpoena.
Listening Your Way to New Business
September 01, 2006
According to a German proverb: 'A man has two ears and one mouth so that he hears much and speaks little.' Mark Twain followed up the thought by saying: 'If we were meant to talk more than listen, we would have two mouths and one ear.' And I'll add: We were given two ears and one mouth, and they should be used in that proportion in a sales call.
Internet Voting Waiting to Bloom
September 01, 2006
Two years ago, the Pentagon was poised to have 100,000 members of the military stationed overseas vote in federal elections over the Internet. The government canceled the plan, however, after it grew concerned it would not be possible to prevent hackers from affecting the results, that it could not examine the privately owned proprietary software that was to be used, and that there would not be a database of those who voted that it could check after the election. Nonetheless, online voting seems to be slowly gaining in popularity.
When Should Records Be Retained or Destroyed ' or Not?
September 01, 2006
Numerous courts have imposed sanctions on companies for negligent spoliation of documents under records-retention/destruction policies as punishment for violation of the common-law duty to preserve records when litigation is reasonably anticipated. In the aftermath of these cases, many companies have implemented litigation-hold policies to preserve potentially relevant documents.
Beware the 'Cat's Paw'
August 31, 2006
Corporate officials, including CEOs, general counsel and human resource personnel, are often asked to determine whether to terminate the employment of an individual who is working for a company. In making that determination, the official frequently relies on information and/or recommendations provided by subordinates without conducting an independent investigation regarding the merits of the decision. A recent decision from the United States Court of Appeals for the Tenth Circuit highlights the risks that may accompany such a course of conduct.
Claims for Breach of Implied Covenant of Good Faith and Fair Dealing: Viability Typically Depends on Success of Breach of Contract Claim
August 31, 2006
In many insurance coverage disputes, an insured that brings a claim for breach of the insurance contract also claims breach of the implied covenant of good faith and fair dealing. The carrier then must determine how to successfully defend both claims. The strategy employed in defending those claims must take into consideration the nuances of a claim for breach of the implied covenant of good faith and fair dealing. In most jurisdictions, the best strategy may be to focus on defeating the contract claim, because the dismissal of the contract claim typically extinguishes any claim of breach of the implied covenant of good faith and fair dealing.
The Scope of Absolute and Total Pollution Exclusions
August 31, 2006
Insurance carriers and policyholders continue to engage in an ongoing debate with respect to the meaning and application of 'absolute' or 'total' pollution exclusions ' clauses that are contained in most general liability insurance policies sold since 1986. Absolute and total pollution exclusions generally preclude coverage for bodily injury or property damage 'arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants,' and define 'pollutant' to mean 'any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.'
Case Notes
August 31, 2006
Highlights of the latest product liability cases from around the country.
No Sanctions Against Plaintiffs' Law Firm in Silicosis Litigation
August 31, 2006
A federal judge's findings about suspect diagnoses in thousands of silicosis cases in multidistrict litigation in Corpus Christi, TX, did not convince a state judge in Mississippi to sanction a Houston firm representing some plaintiffs in those cases.
