Tools for Challenging Settlements
A policyholder, claiming that its insurer is engaging in improper foot dragging while the policyholder faces huge liability exposure, enters into a settlement. It does so without the insurer's consent. Then the policyholder de-mands that the insurer fund the settlement. The insurer objects. In the litigation that is sure to follow, the insurer need not be on the defensive ' even if it breached its contractual obligations. Instead, several legal tools are available to an insurer to effectively challenge coverage for the settlement.
The Magnuson-Moss Warranty Act: A Recent Split of Opinions Regarding Protection of Lessees
In recent months, a number of leasing-related issues have arisen with respect to motor vehicle finance transactions. Specifically, the matter of vicarious liability for lessors still appears to be an active and openly debated concern, despite Congress' attempt to pre-empt various troublesome state laws. In addition, other motor vehicle finance issues, such as certain sublease arrangements, insurance issues, and compliance with the International Fuel Tax Agreement, have all become topics of discussion in this leasing sector. In the last few months, however, another auto leasing issue has quietly joined the ranks: whether a motor vehicle lessee may invoke the provisions of a manufacturer's warranty under the Magnuson-Moss Warranty Federal Trade Commission Improvement Act. The answer to this question has been complicated by the recent decisions of two state supreme courts (New Jersey and Arizona), which have come down on opposite sides of this issue within weeks of each other.
Case Notes
Highlights of the latest product liability cases from around the country.
Fosamax and the Public Hazards Discovery Doctrine
An observation can be made about the typical method through which mass pharmaceutical litigation begins. Initially, the plaintiff files a lawsuit and serves the manufacturer with written discovery requests, seeking information pertaining to adverse events, clinical trials, direct-to-consumer marketing, and the like. The manufacturer objects to each and every request and does not provide one document. The manufacturer then delays, and the plaintiff frets and finally a compromise is worked out whereby limited production will be obtained; attached to that production will be a manufacturer-imposed presumption of confidentiality. At the same time, while the manufacturer strives to keep secret the internal documents showing what it knew and when it knew it, it will issue a press release talking about the wonderful medicine, claiming it is being wrongfully sued and saying that it has never had a reason to think the medicine was unsafe.
Two Recent Decisions Advance Post-Buckley Trend Rejecting Medical Monitoring
In January 2006, a federal court in Texas and a state court in New Jersey issued significant decisions contributing to the developing trend, which was triggered by the U.S. Supreme Court's decision in <i>Metro-North Commuter Railroad v. Buckley</i>, 521 U.S. 424 (1997), rejecting medical monitoring as a cause of action. In <i>Bund zur Untersttzung Radargesch'digter e. V., et al., v. Raytheon, Co.</i>, No. EP-04-CA-127-PRM, 2006 WL 267335 (W.D. Tex. Jan. 17, 2006), U.S. District Judge Philip R. Martinez predicted that the Texas Supreme Court would not recognize a cause of action for medical monitoring based primarily on that court's prior decision declining to recognize a claim for mental anguish in the absence of a physical injury. One week later, New Jersey Superior Court Judge Carol E. Higbee, in <i>Vitanza v. Wyeth, Inc.</i>, Case No. ATL-2093-04-MT (N.J. Super. Ct. Law Div. Jan. 24, 2006), dismissed a medical monitoring claim involving the prescription medication Prempro, ruling that the cause of action for medical monitoring previously recognized by the New Jersey Supreme Court is not available for plaintiffs asserting product liability or consumer fraud claims.
Practice Tip: Will the Real Drug Manufacturer Please Stand Up?
You are defending a manufacturer in a pharmaceutical product liability action. The plaintiff has testified that she obtained a prescription from her doctor for your client's medication and filled it at a reputable, national chain pharmacy. The doctor's records confirm that the prescription was written and the pharmacy records confirm that it was filled with your client's product. Normally, that scenario would dispel any doubts concerning the adequacy of product identification and you would identify other fronts on which to defend.
The Class Action Fairness Act: The Meaning of 'Commenced' After 1 Year
The Class Action Fairness Act ('CAFA') was enacted almost a year and a half ago, signed into law by President Bush on Feb. 18, 2005. 28 U.S.C. §1332(d)(2). CAFA was enacted to help control the 'explosion' in the number of class actions while still allowing the right of access to the courts. As stated by one of the act's proponents, Sen. Orin Hatch, during his keynote address to the American Bar Association conference on class actions, 'truly national class actions should not be heard in remote state courts with little tie to any of the parties involved.' CAFA attempts to rectify this situation by allowing national class actions to be heard in federal courts.
