Indemnification in Drug and Device Cases: Avoiding Future Problems
February 07, 2006
Contractual indemnification arises in products liability litigation in many contexts other than insurance contracts. Agreements between companies and agreements between product manufacturers and physicians and pharmacies are among the most commonly encountered indemnifications in drug and device product liability litigation. Each situation raises practical concerns for counsel representing a pharmaceutical or device manufacturer. How the indemnification provisions are drafted can be important to the client's bottom line and ability to manage litigation. This article discusses some of the practical and litigation strategy considerations that can arise when contemplating entering an agreement for indemnification.
Factors in the Classification of 'True Excess,' 'Excess By Coincidence,' and Primary Policies
February 06, 2006
In assessing whether a particular insurance policy is excess or primary, courts consider a number of factors including: the premium paid for the policy (<i>ie</i>, the amount of consideration); the specific language of the policy (<i>ie</i>, the presence of an "other insurance" clause); the form of the policy (<i>ie</i>, whether the policy specifically identifies itself as "excess"); and whether the policy specifically identifies the primary policies. These factors determine whether the policy will be deemed "true excess," "excess by coincidence," or primary. This determination is necessarily fact intensive and involves not only an examination of the subject policy but also an examination of any other policy to which the subject policy is purportedly excess and the interaction of such policies.
Insolvent Malpractice Insurers Leave Everyone Holding the Bag
January 27, 2006
Whether you represent the patient or physician in a medical malpractice case, there are always significant repercussions when the physician's malpractice carrier becomes insolvent. Naturally, plaintiffs in such cases are concerned as to whether and how a judgment will be paid. Physicians are just as concerned that they may be personally responsible for some portion of a judgment. With a growing number of medical malpractice insurance carriers facing difficult financial times nationwide, parties are experiencing those concerns with increasing frequency.
Causes of Action for Loss of Cryopreserved Embryos
January 27, 2006
In last month's issue, we discussed how suits seeking damages for the wrongful deaths of cryopreserved pre-embryos are, at present, generally doomed to failure. Unless state legislatures change the definitions of the word "person" in their wrongful death statutes, courts in the several states are going to remain reluctant to extend the availability of wrongful death recovery to what are, arguably, merely potential "persons." The outcome on this issue in our illustrative case, <i>Jeter v. Mayo Clinic Arizona</i>, proved no exception to the rule. However, the Jeters -- who had had their cryopreserved pre-embryos apparently lost by the clinic charged with preserving them -- did prevail in their fight to reinstate their suit on several other grounds. Although based on application of Arizona law, the Jeters' successful arguments on appeal could be used, with some tweaking, in other jurisdictions when reproductive assistance caregivers are accused of failing to act with proper care.
Med Mal News
January 27, 2006
The latest news of interest to you and your practice.
Verdicts
January 27, 2006
Recent rulings of interest.
Neurologists Revamp Testimony Guidelines
January 27, 2006
Neurologists who testify in court are coming under tighter scrutiny by medical authorities seeking to weed out unqualified witnesses from the courtroom. In a move that has irked plaintiffs' attorneys, the American Academy of Neurology (AAN) recently revamped its 16-year-old guidelines regarding expert witness testimony by neurologists. The new guidelines were formally adopted earlier this year, and went into effect Jan. 10.
The Double Blind Placebo Controlled Trial
January 27, 2006
The blind allegiance to what I call the "fool's gold standard" lives on. Anyone with even a passing interest in bioethics knows it is unethical to conduct a double blind placebo controlled trial where standard therapy exists, except under limited circumstances. The exceptions are where: 1) there is no risk of harm if the patient forgoes treatment during the placebo phase such as in a trial for a drug that seeks to cure hair loss or impotence; 2) the standard therapy carries such severe side effects that patients might choose to avoid it; or 3) the standard therapy is otherwise of questionable efficacy. Still, sponsors and researches continue to design and conduct such trials, providing the familiar excuse: "The FDA made us do it."
