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Practice Tip: Arguing Design 'Defect' Under Strict Liability or Warranty
March 31, 2004
Defect" in product liability law has two roots: from breach of warranty actions under contract law and from negligence under tort law. In early products liability cases, courts relied upon an implied warranty to permit recovery for personal injuries arising from defective goods. However, that cause of action required privity between the seller and the injured consumer, which could not always be satisfied. This led to the development of the strict liability doctrine in tort law, where privity was not required. Strict liability in tort remedies no longer needs to rely on a contractually based breach of implied warranty to compensate injured plaintiffs.
Case Notes
March 31, 2004
Highlights of the latest product liability cases from around the country.
Considerations When Disseminating Off-Label Information
March 31, 2004
How is the dissemination of information regarding an unapproved indication for an approved drug or medical device like speeding on the highway? You might not get caught, but it can be dangerous and it might land you in court.
Online: Finding Information on Self-Propelled Vehicles
March 31, 2004
If you are pursuing litigation involving any "self-propelled vehicle," you can find useful information on the Web site of The Society of Automotive Engineers (SAE) www.sae.org.
Leasing Industry Closes 2003 with Positive Signs
March 31, 2004
After three consecutive quarters of failing to show any portfolio growth, the equipment leasing industry came through at year's end to close 2003 with only a slight net loss in portfolio size. According to the Equipment Leasing Association's Quarterly Performance Indicators Report (PIR), total net portfolio growth decreased by a total of only 0.4% in 2003. While 2003 marked the second consecutive year in which the leasing industry failed to recognize any net portfolio growth for a calendar year, based on how 2003 was shaping up after the third quarter, the modest overall drop-off was not such bad news. In fact, 2003 was not as bad a year for the leasing industry as one might have expected given the many challenges that have been presented over the past few years. New business volume and credit approvals were up, and charge-offs and actual delinquencies were down. Employment remains a concern, but overall, it appears that the leasing industry is weathering the storm.
Spring Leasing Seminars and Conferences
March 31, 2004
A listing of upcoming events.
Know When to Hold Them, Know When to Fold Them: Determining Whether the Equipment is Worth the Cost of Litigation
March 31, 2004
Is the equipment really worth the cost of litigation? Before advising clients to pursue problem accounts legally, it pays to determine the true market value of the equipment in question.
In The Marketplace
March 31, 2004
Highlights of the lastest equipment leasing news from around the country.
True Lease or Secured Financing: Recovering Meaningful Residual Value
March 31, 2004
Equipment lessors bargain for a very different set of legal rights than secured creditors. These bargained-for rights are often subject to attack, particularly in the Chapter 11 context where it is common for interested parties to challenge the characterization of a Chapter 11 debtor's obligations under an agreement styled as a lease. <i>See In re APB Online, Inc.</i>, 259 B.R. 812, 815 (Bankr. S.D.N.Y. 2001). As the recent decision by the Third Circuit in <i>Duke Energy Royal, LLC v. Pillowtex Corp. (In re Pillowtex, Inc.)</i>, 349 F.3d 711 (3d Cir. 2003) illustrates, when faced with the question of whether a transaction constitutes a "true" lease or a secured financing, Bankruptcy Courts will look through the cosmetics of the deal to its substance. To avoid the re-characterization of an equipment lease by a Bankruptcy Court, an equipment lessor must structure its transactions to retain an economically meaningful "residual value" in the leased property.
Doctors' Corporations Given FTCA Coverage
March 31, 2004
Earlier this year, the federal government lost an attempt to deny insurance coverage to doctors who -- in their capacity as sole owners of their own corporations -- signed contracts with the United States to provide health care to patients at a non-profit clinic. When the government attempted to tell the doctors -- after the doctors had been sued for malpractice -- that they were not eligible for coverage, the doctors fought back in the U.S. District Court for the District of Columbia.

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