United States: Pinnacle Hip – Fifth Circuit Legal Rulings

Last Updated: May 9 2018
Article by James Beck

Sure, it was enjoyable to read In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Product Liability Litigation, ___ F.3d ___, 2018 WL 1954759 (5th Cir. April 25, 2018) ("Pinnacle Hip"), to see plaintiffs' counsel hoisted on their own petard of improper and prejudicial evidence and arguments. But there's more to Pinnacle Hip than "Lanier-on-a-spit," as it has been described in these parts. Indeed, blogging plaintiffs' attorney Max Kennerly, dropped a comment to our first Pinnacle Hip post (which we published – we scrub only spam, not opposing views) asserting that "the rest of the opinion was a huge win for plaintiffs."

We largely disagree with Max's comment, and this post explains why.

Initially, we note that the defendant in Pinnacle Hip was swimming decidedly upstream in all of its legal arguments, since it was opposing a jury verdict entered against it and seeking entry of judgment as a matter of law in its favor. 2018 WL 1954759, at *2. That means all the trial evidence is construed in the plaintiffs' favor. Id. at *3 ("JMOL is warranted only if a reasonable jury would not have a legally sufficient evidentiary basis to find for the nonmovant.") (citations and quotation marks omitted).

Design Claims

The first claim addressed in Pinnacle Hip was design defect. See 2018 WL 1954759, at *3-9. The defendant raised several arguments, all unsuccessfully. First, the defendant argued that plaintiff had failed to satisfy the Texas alternative design requirement because that alternative that the plaintiffs offered – a "metal on plastic" ("MoP") hip implant – was really a "different product" from the defendants' metal-on-metal design ("MoM"), and thus cannot serve as a design alternative. This is an argument we have featured several times on the blog. In Pinnacle Hip, the conclusion was that "based on the record, that MoP is a viable alternative design to MoM." Id. at *4.

While we would have liked to win this, on the facts, this distinction between alternative product and design is more difficult for the defense than in the cases we've discussed in our prior posts, which usually involve not using the product at all, or using some other product that is much less suited for the use in question. Our classic example of alternative cause abuse is Theriot v. Danek Medical, Inc., 168 F.3d 253 (5th Cir. 1999), a Bone Screw case in which the supposed "alternative" was a different type of surgery not using the product at all. That's distinct from redesigning one part of a device system to use a different material, as indeed, Pinnacle Hip pointed out. 2018 WL 1954759, at *9. Pinnacle Hip reaffirmed that similar-use products that "fail[] to perform the discrete kinds of functions for which the alleged defective was designed" or with a "wide disparity in price" cannot be considered alternative designs. Id. at *4, *7. However , the risk/utility defect test "contemplates that a proposed alternative design might reduce a product's utility . . . without rendering the alternative an entirely different product." Id. at *5. That means some variation has to exist without "moot[ing] the entire defect test." Id.

Construing the record to favor plaintiffs, Pinnacle Hip resulted in another point on the uncertain, "practically impossible to settle in the abstract," id., at *4, line between different design and different product. While we'd like to have won, Pinnacle Hip does not move the line itself in any lasting fashion prejudicial to the defense. The ultimate holding was that a "cross-linked" MoP is not sufficiently different from the defendant's MoP design to be considered a different product. 2018 WL 1954759, at *6 & n.13. The underlying principle that the distinction between product and design seeks to protect is preventing automatic liability against whole classes of products – cigarettes, motorcycles, birth control pills, or pedicle screw fixation devices – for simply being what they are and having certain inherent risks. That principle remains intact after Pinnacle Hip.

The defendants also lost a preemption argument – that design defect claims "'stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives' reflected in the MoM-related regulations of the FDA." 2018 WL 1954759, at *7. According to the defendants, because the plaintiffs were seeking "categorical" liability, that all MoMs should be "banned outright," there should be preemption. Id. at *8. But that's not what the Fifth Circuit found was what happened:

[I]t is not the case that plaintiffs' theory reached all possible MoMs. All would agree that, despite the sweeping language with which plaintiffs presented their case, their claims were impliedly limited to presently available technologies and the adverse health effects they allegedly engender.

Id. But the record showed that "[t]he FDA effectively withdrew all MoMs from the market . . . and left open a single door in the form of PMA." Id. On this set of facts, it could not be said that banning something that the FDA had already essentially removed from the market, save for an alternative that has not yet produced an FDA-approved product, was an interference with "the FDA's regulatory objectives." Id.

While losing a preemption argument is not something we would recommend, this particular type of preemption argument has never been successful that we are aware of, so it's no great loss. We've advocated at some length that the Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), decision be overturned. But that argument is predicated on changes to 510(k) clearance created by Congress in 1990. In Pinnacle Hip, "MoMs were sold before 1976 and have traditionally been treated as pre-amendment class III devices." 2018 WL 1954759, at *8. So Pinnacle Hip doesn't affect even the distinctions that we draw from Lohr. The preemption argument rejected in Pinnacle Hip would require the complete reversal of Lohr, even on Lohr's facts, to succeed.

By far the better preemption argument, based on current law, with respect to 510(k) design defect claims, is that they amount to "major changes" that require prior FDA review, and probably an entirely new supplemental submission, before they could be implemented. That should put design defect claims at odds with the " independence principle" in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472 (2013), resulting in preemption of all design claims that could make a difference in a product liability action. That argument, which does not depend on Lohr either way, was not addressed at all in Pinnacle Hip.

Finally, the defendants in Pinnacle Hip also lost on their Restatement (Second) of Torts §402A, comment k (1965), argument, which was that Texas law holds all prescription medical products, including medical devices, to be "unavoidably unsafe" within the meaning of comment k, so that those "unavoidable" risks can only be warned about and not treated as design defects. Pinnacle Hip was unwilling to expand Texas' application of comment k from prescription drugs to include prescription medical devices. 2018 WL 1954759, at *9. That places Pinnacle Hip in a distinct minority position, since literally hundreds of cases, and the Third Restatement, apply limits on design defect claims equally to all types of prescription medical products. Bexis' book collects these cases. Drug & Medical Device Product Liability Deskbook §2.02[2] at pp. 2.02-13 to -16 n.14 (for the proposition that "almost all courts have extended the unavoidably unsafe product exception to medical devices"). However, as the Fifth Circuit correctly pointed out, not many of those opinions are under Texas law.

The further discussion of case-by-case versus across-the-board comment k application in Texas, 2018 WL 1954759, at *9, is more troubling, as the trend in Texas courts (in drug and vaccine prescription product cases) has favored the "blanket" approach. Pinnacle Hip complained, in a footnote, that "Texas caselaw offers almost no guidance on how to go about that case-by-case inquiry." Id. at *9 n.22. There is good reason for that lack of precedent – because Texas law has not employed tests that require such inquiry. See Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273 (5th Cir. 1974) (applying comment k without case-by-case analysis to a vaccine; holding that the only viable claim was inadequate warning); Gonzalez v. Bayer Healthcare Pharmaceuticals, Inc., 930 F. Supp.2d 808, 817-18 (S.D. Tex. 2013) (applying comment k to prescription drug without case-by-case analysis); Woodhouse v. Sanofi-Aventis United States LLC, 2011 WL 3666595, at *3-4 (W.D. Tex. June 23, 2011) (holding, without further analysis, that "comment k applies to products such as [defendant's prescription drug]); Holland v. Hoffman-La Roche, Inc., 2007 WL 4042757, at *3 (N.D. Tex. Nov. 15, 2007) ("Prescription drugs are not susceptible to a design defect claim where, as here, the drug is 'accompanied by proper directions and warning.'") (quoting comment k); Carter v. Tap Pharmaceuticals, Inc., 2004 WL 2550593, at *2 (W.D. Tex. Nov. 2, 2004) ("Under Texas law, all FDA-approved prescription drugs are unavoidably unsafe as a matter of law"); Hackett v. G.D. Searle & Co., 246 F. Supp.2d 591, 595 (W.D. Tex. 2002) ("under Texas law and comment k of the Restatement, Defendants can only be held strictly liable if the drug was not properly prepared or marketed or accompanied by proper warnings"). Contra: Adams v. Boston Scientific Corp., 177 F. Supp.3d 959, 965 (S.D.W. Va. 2016) (refusing to apply comment k across-the-board in medical device case) (applying Texas law). The comment k portion of Pinnacle Hip is where we think that Max is on the firmest ground. The decision made Texas law worse. This issue will ultimately be won in Texas appellate courts or perhaps before the Texas legislature, where it would be quite simple to extend the warning related presumption of §82.007 to all medical devices approved or cleared by the FDA.

Warning Claims

As to warning claims (which Texas law calls "marketing defects"), the defendants lost on adequacy as a matter of law. Pinnacle Hip, 2018 WL 1954759, at *10. Unfortunately, defendants usually lose on this ground, so it's big news – and trumpeted on this blog – when a defendant wins a judicial holding that its warning is adequate as a matter of law. No surprise there. In Pinnacle Hip, that discussion ended:

Not until after the FDA issued its proposed rule in 2013 did defendants specifically warn about the metallosis, pseudotumors, and tissue necrosis − the sorts of conditions that plaintiffs maintained caused their revision surgery.

Id. at 11. As defense counsel, we interpret the Fifth Circuit's observation as an invitation to seek an adequacy as a matter of law ruling as to post-2013 claims (if there are any) in the litigation.

In the causation discussion pertaining to the warning claims, Pinnacle Hip of course followed the learned intermediary rule. It discussed the role of "objective" evidence of causation:

At the threshold, the parties debate the relevance, under Texas law, of "objective evidence" − that is, evidence "that a different warning would have affected the decision of a reasonable doctor." . . . Here, plaintiffs proffered objective evidence in [expert] testimony that, if the full risks of MoM were known to physicians, "they would run to [a different product]."

2018 WL 1954759, at *11 (citations omitted). As we've discussed before, "objective" expert testimony about what "reasonable physicians" would have done is usually disallowed in learned intermediary cases.

On this point, however, Fifth Circuit law, has not been as favorable as other courts. In Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 812 (5th Cir. 1992), the court actually allowed expert testimony on what a "reasonable" physician might have done – but that case was under Mississippi law. See Ackermann v. Wyeth Pharmaceuticals, Inc., 526 F.3d 203, 212 (5th Cir. 2008) (suggesting that Thomas would not apply to Texas law). We've been aware of the brief Texas Supreme Court passing reference to "objective" evidence in Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 171 (Tex. 2012) (plaintiffs "presented no objective evidence"), but felt no reason to let the other side know it was there.

Now it's been discovered, however. The Fifth Circuit allowed such evidence to be admissible, 2018 WL 1954759, at *12 ("objective evidence is at least relevant"), but did not find it decisive in situations where the plaintiff would otherwise have suffered dismissal. Critically, Pinnacle Hip did not allow unsupported "expert" testimony about what an objectively "reasonable physician" would have done be enough to let plaintiffs survive when they didn't have prescriber testimony – which would have been the equivalent of allowing a heeding presumption in Texas, something the Fifth Circuit rejected outright in Ackerman, 526 F.3d at 212-13.

Relevance, however, does not imply sufficiency. In the [learned intermediary] context, causation entails two distinct factual predicates: first, that the doctor would have read or encountered the adequate warning; and second that the adequate warning would have altered his treatment decision for, or risk-related disclosures to, the patient. Centocor addressed only the latter, suggesting a jury might be allowed to presume a particular physician would respond "reasonably" to fuller disclosure. But that presumption must yield to contrary subjective testimony by the treating physician, and Centocor fails to explain how objective evidence would apply to whether that doctor would have read or encountered the warning in the first instance. When considered for the limited purpose intimated in Centocor, objective evidence would have little bearing on any of [these] plaintiffs' claims.

Pinnacle Hip, 2018 WL 1954759, at *12 (footnotes omitted) (emphasis original). Thus, where the plaintiffs had no testimony from their prescribing physicians, those claims continue to fail, and some "expert" claiming otherwise cannot change the result. Id. (granting JMOL in no-prescriber testimony cases). Likewise, any "objective" testimony "must yield to contrary subjective testimony by the treating physician." Id. So plaintiffs cannot create questions of fact with expert testimony where the prescriber has affirmatively testified that a different warning would not have changed what s/he did.

Only what the Fifth Circuit described as "mixed bag" prescriber testimony (the prescriber said different things in different parts of his testimony) cases got to the jury in Pinnacle Hip, id. at *13, and those have always been harder cases for the defense anyway. At best, for plaintiffs, paying some expert to opine that a "reasonable" physician would have heeded a warning won't save any plaintiff who lacked a plausible warning causation case in the first place. At worst, Pinnacle Hip means more plaintiff-side noise at trial in cases already going to trial on warning causation. All in all, the defense side is better off after Pinnacle Hip than where it had been in the Fifth Circuit with only the Thomas precedent. We definitely don't agree with Max here.

Personal Jurisdiction

In Pinnacle Hip, the manufacturer's parent corporation was held potentially liable because of the amount of guidance and control permitted by an inference from the facts (based on a "clear error" standard). 2018 WL 1954759, at *15. Those facts allowed the court to conclude that more than a "passive parent-subsidiary relationship" existed as to this product. Id. at *16. To us that's "big whoop" for two reasons. First, the "clear error" standard does not apply at the district court level where jurisdictional motions are initially decided. Second, and more important going forward, the plaintiffs proceeded under a "stream of commerce" theory where the Fifth Circuit had previously "embraced [the] more expansive" (Brennan) side of the 4-4 split in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987). Pinnacle Hip, 2018 WL 1954759, at *15. As we've discussed, that broad "stream of commerce" jurisdictional theory is probably toast after Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). Pinnacle Hip did not even cite BMS in its discussion of personal jurisdiction, so we guess that this argument wasn't raised. In light of the BMS precedent, the Pinnacle Hip jurisdictional holding should be treated as something of a "one-off" applicable to this MDL, but not to future litigation where BMS will stand front and center.

Miscellaneous Claims

Pinnacle Hip includes the Fifth Circuit's full-throated reaffirmance of our favorite Erie principle:

[T]hat debate [about what a Texas court might do] is beside the point. When sitting in diversity, a federal court exceeds the bounds of its legitimacy in fashioning novel causes of action not yet recognized by the state courts. Here, despite ample warning, the district court exceeded its circumscribed institutional role and expanded Texas law beyond its presently existing boundary.

2018 WL 1954759, at *17 (footnote, citations, and quotation marks omitted) (emphasis added). The court therefore threw out the spurious invention of an "aiding and abetting" cause of action that had no reasonable predicate in Texas law. Id.

The court did allow two arguably weird theories against the parent corporation – all product liability theories imposing liability against a non-manufacturing parent under a theory not also cognizable against the manufacturing subsidiary are likely to be weird − to survive. One of those, so-called "nonmanufacturer seller" was tied to statutory exceptions to immunity for nonmanufacturers. Id. at*18. The court held, instead, that the parent was only held liable for old-fashioned design or warning liability, after the record (again, construed in favor of plaintiffs as verdict winners) established one of statutory exceptions from nonmanufacturer immunity. Id. That's a little peculiar to non-Texas lawyers, but since Texas has this statute, it must mean something.

The other oddball claim that survived is one of those "last refuge of a scoundrel" theories, negligent undertaking" (a/k/a "Good Samaritan") liability.

Texas caselaw reveals no precise control threshold a parent must cross before undertaking a duty to its subsidiary's customers. Texas courts have made clear that mere possession of "the authority to compel" a subsidiary is not enough − the parent "must actually" exercise that authority in a manner relevant to the undertaking inquiry.

Pinnacle Hip, 2018 WL 1954759, at *19 (footnote omitted). Based on the stringent standard for interpreting record evidence, the court let this one slide. Id. Not good, but not likely to arise very often.

But there's more afoot than just these three theories. Two years ago, we awarded In re DePuy Orthopaedics, Inc., 2016 WL 6268090 (N.D. Tex. Jan. 5, 2016), our ranking as the number six worst decision of that year, chiefly because of the large number of unprecedented theories under Texas law that this opinion permitted:

  1. extending negligent misrepresentation beyond "business transactions" to product liability, unprecedented in Texas; (2) ignoring multiple US Supreme Court decisions that express and implied preemption operate independently (as discussed here) to dismiss implied preemption with nothing more than a cite to the Medtronic v. Lohr express preemption decision; (3) inventing some sort of state-law tort to second-guess the defendant following one FDA marketing approach (§510k clearance) over another (pre-market approval), unprecedented anywhere; (4) holding that the learned intermediary rule does not apply whenever a defendant "compensates" or "incentivizes" physicians to use its products, absent any Texas state or appellate authority; (5) imposing strict liability on an entity not in the product's chain of sale, contrary to Texas statute (§82.001(2)); (6) creating a claim for "tortious interference" with the physician-patient relationship, again utterly unprecedented; (7) creating "vicarious" breach of fiduciary duty for engaging doctors to serve as expert witnesses in mass tort litigation also involving their patients, ditto; and (8) construing a consulting agreement with a physician as "commercial bribery" to avoid the Texas cap on punitive damages, jaw-droppingly unprecedented.

While only item (5) was at issue in Pinnacle Hip, the Fifth Circuit's invocation of Erie conservatism bears ill for all of the other judicial flights of fancy that have been allowed during the course of the Pinnacle Hip litigation.

Constitutionality of Punitive Damages Cap

For completeness, plaintiffs also lost their constitutional challenge to the Texas statute capping punitive damages at twice compensatory damages. "Plaintiffs' cross-appeal is meritless, and we dispose of it by footnote." Pinnacle Hip, 2018 WL 1954759, at *1 n.4. That footnote went further, and characterized those constitutional claims as "frivolous." Id. at *23 n.72. No matter what the constitutional challenge, a punitive damages cap "need only survive rational-basis review," which it did in Pinnacle Hip "by injecting predictability into exemplary damages awards and preempting potentially unconstitutional awards." Id. (citations omitted).

Conclusion

When all is said and done, we view Max's characterization of Pinnacle Hip as a "huge win for plaintiffs" as mostly overblown hyperbole, perhaps worthy of inclusion in the closing arguments that the Fifth Circuit held warranted a new trial. The Fifth Circuit did some damage to comment k, but all the rest of the legal holdings were trivial, fact-bound, not likely to be useful in future cases, or some combination of those. The forceful reiteration of conservative principles of Erie predictions of state law leave us hopeful that the Pinnacle Hip MDL will see some Fifth Circuit-mandated clean up – or, if not, perhaps the appellate court's not-so-veiled Parthian, parting shot may have to be fired in earnest:

[D]efendants, despite their serious critiques of the district judge's actions in this case and related MDL proceedings, see In re DePuy Orthopaedics, Inc., 870 F.3d 345, 351 (5th Cir. 2017) (finding "grave error"), have not asked us to require these cases to be reassigned to a different judge under "this court's supervisory power to reassign," United States v. Stanford, 883 F.3d 500, 516 (5th Cir. 2018). We express no view on the issue but note that reassignment is both "extraordinary" and "rarely invoked." Id. (citation and internal quotation marks omitted).

Pinnacle Hip, 2018 WL 1954759, at *27, n.83. Obviously, the Fifth Circuit in Pinnacle Hip was uncomfortable with the prospect of overruling the JPMDL's assignment of this MDL, but this final footnote stands as a clear warning that, if further provoked (such as by continuing consolidated trials, or resort to other prejudicial evidence that the court noted but did not rule on), it will consider doing so.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
James Beck
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions