Expert Witness Liability: An Expanding Field
March 03, 2004
Expert witnesses have become a necessity in virtually all litigation, from medical malpractice to products liability to family law cases. Technical understanding of disputes is required for juror determination in this increasingly technical world. Damages need to be calculated using expert data; professional standards and their application to any medical malpractice action require expert opinion. But what happens when the side hiring the expert loses, or the independent evaluation doesn't come up with the hoped-for answer? Increasingly, what happens is the disappointed party sues the expert. In some cases, the experts have immunity to lawsuit, but in an increasing number of instances, they simply do not.
When to Conduct Voir Dire of Expert Witnesses
March 03, 2004
Last month, we discussed tactical considerations when challenging expert witnesses' qualifications. This month, we focus on the optimal time to conduct <i>voir dire</i>.
What Should You Know About the Rules of Evidence?
March 02, 2004
In last month's issue, we discussed the fact that bankruptcy lawyers may think they do not have to worry about the rules of evidence ' and we then went on to prove otherwise. The Federal Rules of Evidence apply to most issues that arise in bankruptcy cases, according to Rule 9017 of the Federal rules of Bankruptcy Procedure. We discussed two of the four useful subjects under these rules: attorney-client privilege, and attorney work-product doctrine. Part Two of this article, below, discusses settlement offers and affidavits.
The Final Pieces of the Trigger and Allocation Puzzle in New York
March 01, 2004
With the flurry of major insurance decisions pertaining to long-tail tort claims in the early 1990s, practitioners appear to take New York law largely for granted when assessing trigger and allocation issues. True enough, the basics are now "well settled": an "injury in fact" trigger (<i>American Home Products Corp. v. Liberty Mut. Ins. Co.</i>, 748 F.2d 760 (2nd Cir. 1984) ("<i>AHP</i>")); an emphatic rejection of the so-called "all sums" approach to allocation (<i>Consolidated Edison Co. v. Allstate Ins. Co.</i>, 746 N.Y.S.2d 622 (N.Y. 2002)); and adoption of a <i>pro rata</i> methodology, (<i>Stonewall Insurance Company v. Asbestos Claims Management Corporation</i> 73 F.3d 1178, 1192 n.5 (2nd Cir. 1995) (citing <i>Owens-Illinois v. United Ins. Co.</i>, 138 N.J. 437 (N.J. 1994)); <i>Con Ed</i>, 746 N.Y.S.2d 622). All that said, we expect to see highly significant elaborations or refinements of the real world meaning of "injury in fact," and these open issues may have consequences for a wide range of major claims.
News Briefs
March 01, 2004
Highlights of the latest franchising news from around the country.
China's IP Is Not Entirely Out of the Haze Yet
March 01, 2004
When China first bid for WTO membership, its intellectual property-related laws were one of the main obstacles to its joining the organization, as WTO membership required China to comply with the Agreement on Trade-Related Intellectual Property Rights (TRIPS). In its WTO accession documents, China declared its commitment to bringing its legal system in conformity with the TRIPS Agreement. Since then, China has come a long way. Nevertheless, not all problems have been resolved.
Buyer Beware IP Issues in Corporate Purchasing
March 01, 2004
Every year, large multinational corporations purchase billions of dollars of goods and services for both internal use and for resale. While seemingly unrelated to traditional disciplines of patent, trademark, trade secret and copyright law, corporate purchasing is surprisingly replete with a myriad of intellectual property related issues. Such purchasing can include a combination of goods and services. For example, computer hardware and software may be purchased/licensed in conjunction with professional services, such as software consulting. While corporate purchasing has been relegated traditionally to the back burner, especially when considering issues related to intellectual property, the purchasing of goods and services does involve significant issues in all the major intellectual property law disciplines.
IP News
March 01, 2004
Highlights of the latest intellectual property news and cases from around the country.
When to Seek Opinion Counsel in Patent Litigation
March 01, 2004
Your company is vigorously developing new devices and methods in a promising technical area. The head of the development team calls you, as general counsel, for advice. Two U.S. patents were just issued that may impact a device your company is prepared to market and the method your company uses to make the device. You also have received a letter from your most vigorous competitor — one who has a well-funded technology program and a history of pursuing infringement actions. The letter advises that there is reason to believe that your company is infringing. Your company believes that it has the right to proceed to market, but wants your guidance on what to do.
