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Counterfeit Drugs: A New Source of Product Liability?
Drug counterfeiting robs pharmaceutical manufacturers of their investment in patents, trademarks, copyrights, and trade dress. It robs pharmacists and consumers of money, for worthless and sometimes dangerous products. It undermines the integrity of and consumer confidence in the American health care industry and in the government's ability to regulate it. More troubling than all these systemic evils, drug counterfeiting has the potential to allow controllable illnesses to ravage patients unchecked, to spread rather than stop disease, and to injure and kill.
Traditionally, however, manufacturers have at least been insulated from personal injury tort liability when counterfeit drugs cause harm: The counterfeiter alone possesses criminal intent and the manufacturer is remote to the injury. However, recently, under a number of theories, plaintiffs have alleged negligence on the part of pharmaceutical manufacturers for counterfeiting of their products. For example, a current lawsuit in St. Louis alleges that a breast cancer patient took a counterfeit form of Procrit' 20 times less potent than the genuine drug. According to a report in The San Francisco Chronicle, the attorney representing this plaintiff hopes to transform this suit into a class-action lawsuit. In another recently settled case involving the distribution of counterfeit Serostim', the only growth hormone approved by the FDA for the treatment of AIDS wasting, the lawsuit named the drug's manufacturer, along with the pharmacy and drug distributors.
The idea that a manufacturer of a pharmaceutical product could be held liable for injuries resulting from counterfeiting flies in the face of reason. After all, a counterfeiter steals sales and hard-earned goodwill from the manufacturer whose products are copied. Yet the basis for these lawsuits is simple, as explained by Professor Arthur Best of the University of Denver College of Law: If a manufacturer could have taken reasonable steps to prevent foreseeable counterfeiting but failed to, plaintiffs may argue that the manufacturer should be held liable. Best A: “Manufacturer's Responsibility for Harms Suffered by Victims of Counterfeiters: A Modern Elaboration of Causation Rules and Fundamental Tort Law,” 8 Currents Int'l Trade L.J. 43 (1999).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.