Reduced Qui Tam Exposure for Firms That Fail to Self-Report?
August 30, 2006
A recent decision of the U.S. District Court for the District of Columbia limited the reach of the 'reverse false claims' provision of the civil False Claims Act, 31 U.S.C. ' 3730(a)(7). This opinion, if followed by other courts, will reduce the risk of civil False Claims Act liability for companies accused of failing to self-report regulatory violations in settings where self-disclosure is required.
What Jurors Think Of American Corporations ' And What You Can Do About It
August 01, 2006
These are challenging times for those of us who represent and defend corporations in litigation. The recent criminal convictions of Enron's Ken Lay and Jeffrey Skilling only confirm what we have known for quite some time ' jurors are skeptical of, and even hostile toward, corporations and corporate executives. '
Case Notes
August 01, 2006
Highlights of the latest product liability cases from around the country.
Increased Scrutiny of Pharmaceutical Company Clinical Trials: The Plaintiff Responds
August 01, 2006
<i>'Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened.'</i> In this author's opinion, Winston Churchill's keen observation of human nature is an apt description for how the pharmaceutical industry deals with dangers revealed or at least signaled in clinical trials. For years, plaintiffs' lawyers have honed in on clinical trials conducted by pharmaceutical companies when preparing for and trying cases. These studies, often the banner touted by defendants as evidence of their innocence, are a natural place to begin the search for what went wrong when a drug is subsequently pulled from the market despite the supposed 'rigors' of clinical testing. While there is nothing new about plaintiffs' lawyers reviewing clinical trials with a fine-toothed comb, there has been a radical and bold step taken in the world of medical/science academia. Specifically, major publications such as the New England Journal of Medicine ('NEJM') and the Journal of the American Medical Association ('JAMA') are ensuring that industry-sponsored studies do not merely contain partial truths.
Increased Scrutiny of Pharmaceutical Company Clinical Trials: The Defense Perspective
August 01, 2006
In recent large-scale pharmaceutical litigation, plaintiffs' counsel have concentrated significant resources seeking the details of how individual patients in pre- and post-marketing company clinical trials were assessed, characterized, and reported to the Food and Drug Administration ('FDA'). The reason is clear: They are seeking to develop (in the author's opinion unfairly) a story that the pharmaceutical company hid risks and overstated benefits. The efficacy and safety data generated by industry-sponsored studies, and the manner in which the data are analyzed and reported, have therefore become the focus of large-scale pharmaceutical litigation.
Products Liability and the Illegal Acts Doctrine
August 01, 2006
In products liability cases in most states, a plaintiff's conduct that contributes to his or her harm does not bar a claim, but instead may be considered by the jury in weighing the comparative fault of the parties. But should a case even have to go to a jury when the very harm that the plaintiff is suing for resulted from the plaintiff's own criminal misconduct?
Coverage Disputes Involving Multiple Insureds or Claimants
July 31, 2006
Coverage disputes may become more complicated when multiple co-insureds or claimants assert rights to coverage under the same finite set of policy limits. For instance, some policyholders have argued that when co-insureds are seeking coverage under the same policy, the insurer must reserve a portion of the available policy limits for each insured so as to ratably distribute the available funds ' even while presently pending claims remain outstanding against one of those insureds. If this were correct, however, the insurer would be placed in an untenable position. If the insurer is required to forego the reasonable settlement of presently pending claims in order to preserve shared limits for co-insureds, the insured facing outstanding claims could argue that the insurer violated its good faith duty to settle on its behalf when the opportunity arose. On the other hand, other co-insureds might later argue that the insurer violated the duty of good faith by failing to preserve adequate limits for future claims ' leaving the insurer in what is essentially a no-win situation.
Occurrence Limits Under Multi-Year Policies: NJ Courts Are Changing Their Approach
July 31, 2006
In complex coverage cases involving 'long-tail' claims (such as asbestos bodily injury claims or property damage claims related to environmental pollution), decades of insurance policies can be put at issue. In many states, the policyholder's losses will be spread across the years in which the injury or property damage occurred on a proportionate basis, typically referred to as 'time on the risk' or pro rata allocation. <i>E.g., Security Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co.</i>, 826 A.2d 107, 116 (Conn. 2003); <i>Sharon Steel Corp. v. Aetna Cas. & Sur. Co.</i>, 931 P.2d 127, 141 (Utah 1997); <i>Insurance Co. of N. Am. v. Forty-Eight Insulations, Inc.</i>, 633 F.2d 1212, 1224-25 (6th Cir. 1980).
Court Watch
July 31, 2006
Highlights of the latest franchising cases from around the country.
