Tort Reform in the Courts: A Defense Attorney Challenges Outdated Legal Precedents
In 1789 and afterwards, when colonies became states, most state legislatures passed 'reception statutes.' These often forgotten parts of state law history 'received' the common law of England as of that date and, more importantly, empowered the courts to develop the common law in light of 'reason and experience.' <i>See</i> Victor E. Schwartz & Leah Lorber, <i>Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance</i>, 32 Rutgers L.J. (2001). Over the past 240 years, legislatures have retrieved the right to make law, including property law, commercial law, divorce law, and almost every other civil field. There is one vestige, however, where courts still make law ' the law of torts.
Are They Getting It?
When a jury hears an argument, how do you know if they're getting it? They may start out conscientious and alert with good intentions about performing their civic duty, but that enthusiasm may dissipate throughout the trial and adversely affect the decision-making process. Like it or not, attention spans wane, boredom creeps in and life gets in the way all the while you're trying to win your case.
Practice Tip: Providing Privileged Material to Testifying Experts Can Lead to Nasty Surprises
Consider this not unimaginable scenario: Opposing counsel calls for production of a confidential memorandum that details your impressions of the case and trial strategies. This is clearly protected as core work product, right? Not necessarily. In fact, if you shared the memo with your testifying expert in a federal court case, the answer is 'probably not.' Perhaps even more troubling is the following situation: On cross-examination, your expert is asked to reveal the content of confidential oral communications between you and your client to which he was privy in his capacity as a testifying expert. Once protected by the virtually impenetrable shroud of the attorney-client privilege, these types of communications also may now be discoverable if the testifying expert 'considered' the information in forming his opinions. <i>See</i> Fed. R. Civ. P. 26(a)(2)(B).
Should the Heeding Presumption Apply to Pharmaceutical Failure-to-Warn Claims? PA Court Says 'No'
Part One of this series discussed the rationales courts typically draw upon in deciding whether to apply a heeding presumption in failure-to-warn cases in general. This installment analyzes the application of the heeding presumption in pharmaceutical failure-to-warn cases specifically and explains why justifications for the presumption in the general product liability context do not necessarily hold true in the pharmaceutical failure-to-warn setting.
Supreme Court Ruling for eBay a Major Victory for Big Patent Holders
A Supreme Court ruling on May 15 in favor of eBay Inc. in a closely watched patent dispute made it harder for those claiming infringement to win permanent injunctions against major patent holders and manufacturers.<br>The unanimous decision was a major win for eBay and other big patent holders that frequently face crippling litigation from parties that get injunctions to protect one of thousands of patents used in a complex product.
Downhill Ride for 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 the recently reported $50 million purchase of rights to Muhammad Ali's name or the $100 million acquisition of Elvis Presley's publicity rights (hardly for a song), 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.
Does Bankruptcy Absolve Patent Infringement Liability?
Your client spends considerable time, money, and energy pursuing an individual who is infringing his patent. Just when your client is about to have his day in court, the culprit files a petition for bankruptcy, triggering the automatic stay and stopping the infringement action in its tracks. Has the infringer escaped liability for his infringement, particularly when the bankruptcy court grants him a discharge? Not necessarily.
Admissibility of Settlement Communications in Patent Infringement Rule 11 Proceedings
Plaintiffs bringing patent infringement cases should ensure that they have made an adequate pre-filing inquiry as to the viability of their claims before initiating litigation. Without such an investigation, plaintiffs and their attorneys risk sanctions under Rule 11 of the Federal Rules of Civil Procedure. In the sanctions context, Rule 408 of the Federal Rules of Evidence does not protect settlement communications from admissibility.
Personal Injury Coverage: A Historical Perspective: The Duty to Defend False, Fraudulent, and Frivolous Claims
During recent years, personal and advertising injury coverage has been the subject of many court decisions. Often those decisions have involved questions of coverage for copyright infringement under the 'advertising injury' prong of the coverage. However, there has been a wide range of cases involving issues under the 'personal injury' prong of the coverage. In many of these cases, courts have focused on the current wording of the language, without reference to the historical background of the personal injury provisions. That background demonstrates the breadth of the coverage.
FDA's New Labeling Rule
On Jan. 18, 2006, the U.S. Food and Drug Administration (FDA) issued a final rule to revise the required format of prescription drug labels so as to enable physicians to find the information they need more readily. New features include a section called 'Highlights' and a Table of Contents. According to the FDA's press release, this is the first time in 25 years that the labeling requirements have undergone a major revision.
