Negotiating the Software Contract
Attorneys live and work in a world of contracts. Usually, however, this expertise involves optimizing legal agreements for the firm's clients. But when a law firm enters into its own software contracts, it is presented with the unique opportunity to optimize a negotiation for its own benefit. Attorneys, more than most software buyers, are aware of the legal issues involved in an IT contract such as indemnity, limitation of liability, confidential information and warranties. However, there are a number of business issues for any software buyer to consider. The key is to anticipate which of these a software company might deem negotiable.
Horn v. Thoratec: FDA's Bold New Position on the Pre-emptive Effect of Product Approvals
By and large, the FDA has confined its participation to cases where it had specifically considered — and rejected — the plaintiffs' claims that a product's labeling or advertising should have included different language from that which was used. <i>See</i> Daniel E. Troy, <i>FDA Involvement in Product Liability Lawsuits,</i> Update: Food & Drug. L., Reg. & Educ. (Food & Drug Law Inst., Wash., D.C.), Jan./Feb. 2003, at 1. In 2004, however, the FDA submitted a brief in a state products liability action that signals the agency's willingness to be much more aggressive in protecting its jurisdiction from lay judge and jury determinations concerning a product's risk-benefit balance that conflict with the FDA's own determination of where that balance lies. <i>See Br. of Amicus Curiae U.S. Dep't of Justice, Horn v. Thoratec Corp.</i>, 376 F.3d 163 (3d Cir. 2004) (No. 02-4597) ("FDA Br.").
Practice Tip: How to Send Learned Treatises to the Jury Room
In product liability, toxic tort, and even medical malpractice litigation, the science in the relevant field is often a crucial battleground, and expert witnesses will do battle over treatises, journal articles, and the like. As every law student knows, scientific publications are inadmissible hearsay. Under the learned treatise rule, an expert witness may testify about scientific publications that have been qualified as learned treatises, but they do not come into evidence and so may not be published to the jury.
Case Notes
Highlights of the latest product liability cases from around the country.
Reductions in Punitive Damages Awards: Practice Tips
Our previous article in the March issue reviewed punitive damages awards since the U.S. Supreme Court's decision in <i>State Farm Mutual Automobile Insurance Co. v. Campbell,</i> 538 U.S. 408 (2003). This month we will look at the way the Court's directives impact pretrial activities, evidentiary issues, and jury instructions in our cases.
Statistics and 'Substantial Certainty'
An interesting case in New Jersey might provide an answer to a significant question on employers' liability under workers' compensation statutes and, by association, manufacturers' liability under defective-design theories. The issue: How does a plaintiff prove "substantial certainty" of injury in order to proceed under common law standards against the employer, as opposed to recovering under workers' compensation?
Online: Valuable Information for Lawyers As Well As Pharmacists
The Web site <i>www.pharmacist.com</i> is the single-source site for the continuous professional development needs of pharmacists, pharmacy students, and pharmacy technicians. The site is a joint project of the American Pharmacists Association and the National Association of Boards of Pharmacy.
The Debtor's 'Insolvency' for Avoidance Actions
This article focuses on the uses of the term "insolvency" in the avoidance context, including the impact of the 2004 case, <i>Heilig-Meyers Co. v. Wachovia Bank N.A. (In re Heilig-Meyers Co.)</i>, 319 B.R. 447 (Bankr. E.D. Va. 2004), which, while limiting its analysis to a preference context, sheds some light on judicial gloss on the term "insolvency" as it is used both explicitly and implicitly throughout the Code. In addition, it examines definitions of "insolvent" and the presumption of insolvency in preference actions, discusses fair valuation and going-concern valuation methodology, and looks at the standard of proof and types of evidence to establish insolvency (including retrojection and projection).
Extraterritorial Application of U.S. Patent Laws: NTP, Inc. v. Research in Motion
Members of Congress rely on them, and many lawyers compulsively check them, but until recently, most users did not realize that every e-mail message sent to or from their BlackBerry handheld device is routed through a Relay station in Canada, which Research in Motion, Ltd. ("RIM"), the maker of the BlackBerry, calls home. The location of this Relay was a central issue in a patent infringement dispute between NTP, Inc., the holder of patents related to mobile electronic e-mail, and RIM, with RIM claiming it did not infringe NTP's patents because a key component of its BlackBerry system, and a necessary element of NTP's patent claims, resides outside the United States. But the courts have sided with NTP. (Editor's note: The case was recently settled. See IP News for details.)
