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A cursory review of the conflicting decisions being rendered across the country reveals that courts are fairly split over the issue of federal pre-emption of failure-to-warn strict liability claims in pharmaceutical litigation. The FDA directly addressed the issue in the Preamble to the Final Rule ('Preamble') published Jan. 24, 2006.
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Product liability plaintiffs are facing ever-growing barriers to filing suit in state and federal courts. Tort reformers have won significant victories at the state level, including restrictions on asbestos claims and caps on punitive damages. At the federal level, the Class Action Fairness Act ('CAFA') has allowed for easier removal of state class actions to federal courts. In addition to the impact of CAFA, a number of states have enacted legislation that makes it more difficult to file class actions in their courts. Several states also have initiated 'venue reform,' which limits the ability of out-of-state plaintiffs to file lawsuits in those states.
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Few subjects in the staid world of economics generate as much controversy as expert testimony quantifying hedonic damages: tort damages that attempt to compensate a plaintiff for the loss of enjoyment of life. Countless articles in forensics literature debate whether monetary value placed on a statistical life applies to a specific plaintiff. This controversy has spilled over into the courtroom. While most jurisdictions allow recovery of some form of hedonic damages, the trend, especially in the post-<i>Daubert</i> era, has been to exclude expert testimony that purports to calculate the amount of those damages. This article examines the trend against expert testimony quantifying hedonic damages and notes recent decisions that indicate the trend may be curbing, especially in jurisdictions that have refused to adopt <i>Daubert</i>.
In its 2006 report on 'Judicial Hellholes',' the American Tort Reform Association ('ATRA') identified the plaintiff bar's aggressive use of public nuisance theories in product liability litigation as one of the key 'rising flames' that is threatening traditional judicial protections for defendants in the country's most plaintiff-friendly jurisdictions. As ATRA explained, 'personal injury lawyers and some attorneys general have been trying to move public nuisance theory far beyond its traditional boundaries in order to avoid the well-defined strictures of products liability law.' American Tort Reform Association, <i>Judicial Hellholes 2006</i>, at 9. In so doing, they seek to tilt the playing field dramatically in their favor by writing out of the common law a plaintiff's obligation of establishing actual causation, proximate causation, and control.
News about lawyers and law firms in the commercial leasing industry.
Highlights of the latest commercial leasing cases from around the country.
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Last month's installment discussed how a real estate attorney should create a checklist to bring a transaction from concept to fruition. Part Two of this series addresses compliance issues, dissemination of information, and the level of detail of the checklist.
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Some commercial landlords consider indemnification clauses in leases to constitute mere 'legal boilerplate' that do not merit attention from a business perspective. Some lawyers, feeling pressure to minimize the length of lease documents, may seize upon this clause as an opportunity to save space. As a result, it is not uncommon to encounter abbreviated indemnification clauses. At first glance, the language appears suitable. However, when put to the test, these 'lite' clauses often leave landlords unsatisfied. This article demonstrates the value of 'kicking it up a notch' by including ingredients called for in the recipe but often left out of the mix.
Tenants are beginning to address green issues in leases for many reasons, including reduced operating costs over the term of the lease and increased productivity among employees. In addition to corporate green policies or shareholder green initiatives, cities and localities such as Washington, DC; Montgomery County, MD; and Boston have passed green legislation of various kinds. Other cities such as Kansas City, MO are considering similar legislation. Many public entities such as the state of California and the city of Chicago have required compliance with green standards for their public buildings and offices for some time. The difference today with the new green legislation being passed in Washington, DC; Montgomery County, MD; and Boston is that the private sector both for commercial and residential projects of a certain scale, not just the public sector, will be required to comply with green standards. This will be especially true if a private development is receiving taxpayer funds. It is very likely that lawyers, real estate brokers, contractors, and other real estate professionals may need to address green issues when looking at space options, reviewing a lease, and constructing leasehold improvements ' not only for a client but also for their own office space.