Case Notes
November 29, 2004
Highlights of the latest product liability cases from around the country.
Online
November 29, 2004
A visit to <i>www.nlm.nih.gov</i> (National Library of Medicine) provides a wealth of information on health-related topics. This column will review various sections of the Web site over the next few issues. If you click on Health Information, you can access MedlinePlus, which contains more than 600 health topics searchable in alphabetical order, a medical encyclopedia with images, drug information, including names of hospitals and doctors and the latest health news. There are links to ClinicalTrials.gov, which was reviewed in last month's Online column, as well as NIHSeniorHealth, Tox Town, Household Products Database, Genetics Home Reference, Medline/PubMed (Biomedical Journal Literature), Aidsinfo and Office of the Surgeon General.
The Costly Road
November 29, 2004
The voluntary winding-up (<i>liquidation volontaire</i>) of a corporation is one of the many, though expensive, options available to shareholders wishing to withdraw from a corporation facing financial difficulties. Other options include the sale of their stake or of the corporation itself, possibly following a restructuring. The corporation may be sold as a whole or, where these exist, through the divestment of one or more branches of activity. The transaction may then be effected through various share deals for the different subsidiaries, or through the sale of assets, subsequent to which the corporation will still have to be wound up. A lease of business (<i>location g'rance</i>) followed by the sale of the business may also be an option.
How Safe Is The Store?
November 29, 2004
Given the now-common nature of e-commerce, new challenges face traditional firms and e-only businesses regarding adequate protection of the companies' computer systems, data and Web sites. These challenges are somewhat similar to those faced by a traditional retail business, but extend beyond those boundaries because of the Internet. For an e-business, a comprehensive disaster-recovery plan, including proper protection of computer systems and data, is critical to the success of the enterprise, and essential for daily operation.
Problems Proving Infringement of Method Claims
November 09, 2004
The patent applicant can act pre-emptively, even pending further development of legal doctrines specific to infringement of business and network-related methods, to draft and prosecute claims that will "catch" infringing activity at as many conceivable loci along the network as possible, and thwart competitors' ability to readily avoid infringement by parsing method steps creatively.
An Analysis of Knorr-Bremse
November 09, 2004
It has long been held that a good faith reliance on timely and competent advice of counsel can negate a charge of willful patent infringement. Such advice of counsel can be used to potentially shield an infringer from having to pay enhanced damages of up to three times the damages under 35 U.S.C. §284 and/or the patentee's attorneys' fees under 35 U.S.C. §285. Similarly, a defendant's failure to obtain advice of counsel until after the company commenced its infringing activities would be evidence of willful infringement. <i>Underwater Devices Incorporated v. Morrison-Knudsen Company,</i> 717 F.2d 1380, 1390 (Fed. Cir. 1983). The practical application of this rule has been fraught with difficulty, however, since assertion of an opinion of counsel as a defense to a charge of willfulness typically involves a waiver of attorney-client privilege as to communications surrounding the opinion. The tension created by this dynamic was exacerbated by an adverse inference that an opinion of counsel was unfavorable if an accused infringer refused to waive privilege and disclose an opinion of counsel in defense of a willfulness charge. <i>Kloster Speedsteel AB v. Crucible, Inc.,</i> 793 F.2d 1565, 1580 (Fed. Cir. 1986). The Court of Appeals for the Federal Circuit in <i>Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp.,</i> 2004 U.S. App. LEXIS 19185 (Fed. Cir. 2004) (<i>en banc</i>) abolished the adverse inference rule, but also reaffirmed that one is under a duty of care to avoid infringement.
A Case for Why Silica Litigation Is Not the 'Next Asbestos'
November 08, 2004
One year ago, newspaper headlines in publications such as <i>The Wall Street Journal</i> and <i>The New York Times</i> sounded the alarm that litigation involving injury or disease attributed to silica could be the "Next Asbestos." (Jonathan D. Glater, <i>Suits on Silica Being Compared to Asbestos Cases,</i> N.Y. Times, Sept. 6, 2003 at C1; Susan Warren, <i>Silicosis Suits Rise Like Dust,</i> Wall St. J., Sept. 4, 2003.) Since then, many legal and insurance industry commentators have tracked the growing number of silica claims. At the same time, the business and investment communities have taken a closer look to determine whether silica liabilities will present financial risk profiles similar to that experienced in the asbestos mass tort arena.
Forecasting Claims in an Era of Tort Reform
November 08, 2004
Forecasting mass tort claims is often based on sophisticated models applied to large, complicated databases. These models can account for such causal factors as the size of the exposed population, the dose-response rates between defendant's product and disease, and actuarial mortality rates of the exposed population. Too often, though, there is one variable that is simply extrapolated into the future at historical levels with no attempt to understand its causal influences — the filing rate (also called the propensity to sue).
Six Months of Mass Torts
November 08, 2004
It is becoming almost impossible to stay on top of all the significant developments affecting mass torts, class actions and environmental injury cases. Every week the combination of multiple court decisions, settlements, verdicts and government action affect the complexion of this constantly changing practice. The following summary, synthesized from multiple sources that include published court decisions, newspapers, government publications, journals and reports from lawyers across the country, highlights some of the most important events affecting mass torts during the last 6 months.
