Can You? Should You? Must You?
April 01, 2004
As general counsel of a small public company, you discover that, for 2 years, a department head approved sending false invoices to customers, resulting in profits of at least $2 million. Although it stopped a year ago and is well concealed, the practice was intentional, and a half-dozen current employees were involved. You fear that the false invoices constitute at least mail and wire fraud. Moreover, if the victims find out, they might sue. What do you do?
Civil Litigation Implications of Corporate Employees' Criminal Acts
April 01, 2004
When corporate employees engage in criminal wrongdoing, the result is often civil litigation against their employer. The criminal conviction of such employees, whether by trial or plea, or their invocation of the privilege against self-incrimination, can have serious adverse consequences in related civil litigations against their employer, even if the employee (or former employee) is not a party. This article discusses the use of such evidence against corporations.
What the SAFETY Act of 2002 Means for Your Company
April 01, 2004
We all know that since 9/11, the American public has a heightened sense of anxiety about their personal safety. Our legislative body, sensing America's anxiety, created a new agency, the Department of Homeland Security ostensibly to protect us from terrorist threats. But, while doing so, Congress snuck in a compelling tort reform program. Hidden beneath the folds of the legislative verbiage creating the DHS, situated immediately before the miscellaneous provisions, lies a new program to incentivize and protect individuals and companies engaged in developing anti-terrorist technologies: the SAFETY Act of 2002. Surprisingly, the private sector, so far, has not voiced much enthusiasm for it.
Changes in International Civil Justice Law: The Gathering Storm
March 31, 2004
Europe's approach to civil liability law and litigation is changing. As part of the European Union's (EU) move toward a common economic culture, virtually every aspect of EU civil justice law and procedure is under review. Thus far, the laws governing product safety and commercial dealings between businesses and consumers have begun tilting toward greater liability for businesses. Whether it is strict product liability, class actions, lawyer advertising, or variations on the contingent fee, many of these changes have been seen in the United States and are starting to migrate across the Atlantic.
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.
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.
Case Notes
March 31, 2004
Highlights of the latest product liability cases from around the country.
A Sample of Effective <i>Voir Dire</i>
March 31, 2004
In Parts One and Two of this article, we discussed the strategies involved in deciding when to question the opposing party's expert; during preliminary <i>voir dire</i> or during cross examination. We noted that, in a jury trial, it is usually prudent to wait until cross-examination to attack the expert, so that the jury can see where the holes in the witness's qualifications and conclusions are. But sometimes, questioning during <i>voir dire</i> is preferable, especially when the result is likely to be the witness disqualification to testify as an expert.
A Call for Continued State Law Tort Reform
March 03, 2004
The recent federal trial court decision in <i>Dusek v. Pfizer Inc.</i>, Civil Action No. H-02-3559 (S.D. Tex. 2/20/04) dismissing plaintiffs' products liability claims against Pfizer in connection with the prescription drug Zoloft' on the ground of conflict preemption has given the pharmaceutical industry some hope that compliance with Food and Drug Administration (FDA) regulations will afford protection from common law failure-to-warn claims. The court granted summary judgment on the ground that a cause of action based on the plaintiff's proposed additional warning to the product label that Zoloft can cause suicidal ideation would conflict with the FDA's decision not to add such a warning because no causal link had in fact been established and it would in effect be false and misleading in violation of federal law. This should not deter continued efforts to obtain tort reform at the state level, however, where the continued influx of pharmaceutical product liability claims continues to burden courts and the pharmaceutical industry.
