Case Notes
August 31, 2007
Highlights of the latest commercial leasing cases from around the country.
Home Depot Faces Multiple Suits: Allegations of Health Hazards from Grout Sealer
August 31, 2007
When Gwinnett County, GA, resident James Flynn bought a spray can of grout sealer from his neighborhood Home Depot in July 2005, he could not have imagined that his purchase would land him in the hospital and cost him the use of a lung. However, Flynn's attorney, Frank Ilardi, said that when his client bought Tile Perfect Stand 'N Seal Spray-On Grout Sealer, its manufacturer had been fielding complaints for more than a month about potentially devastating effects associated with its use.
Deference to the FDA's Preamble
August 31, 2007
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.
Bucking the Tort Reform Trend? Manufacturer of Non-Asbestos Product Has Duty to Warn About Asbestos Dangers
August 31, 2007
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.
Practice Tip: Expert Testimony Quantifying Hedonic Damages
August 31, 2007
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>.
Building a Fire Wall: Missouri and New Jersey Hold the Line Against Plaintiffs' Efforts to Expand the Law of Public Nuisance
August 31, 2007
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.
Movers & Shakers
August 30, 2007
News about lawyers and law firms in the commercial leasing industry.
The Leasing Hotline
August 30, 2007
Highlights of the latest commercial leasing cases from around the country.
Be the Quarterback
August 30, 2007
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.
In the Spotlight: Beware of 'Lite' Indemnification
August 30, 2007
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.
