Practice Tip: Expert Testimony Quantifying Hedonic Damages
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
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.
Green Issues in Commercial Office Leases
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.
Equipment Finance in Canada: Changes to the Income Tax Act May Have an Impact
Canada's conservative minority government recently passed its 2007 Financial Budget (the 'Budget'), which will likely impact the equipment finance industry and particularly cross-border (U.S./Canada) transactions. Central to the Budget was the proposal to eliminate withholding tax on interest payments on loan transactions. As will be discussed below, the likely impact will be that traditional cross-border transactions will be restructured to: 1) provide for quicker repayment of the principal portion of the loan, and 2) provide a means for a greater number of less internationally focused commercial banks and finance companies to undertake cross-border transactions which, prior to the enactment of the new legislation, would have be seen as too complex. This second impact may cause a more competitive environment and further add liquidity to any already liquid market. It is not clear, however, that the proposed legislation will have a significant impact on larger transactions or the activities of internationally focused lenders. While there will likely be enhanced competition for smaller straightforward transactions than currently exists, the market for complex large transactions, while restructured, will have the same level of competition as currently exists.
Negotiating a Medicaid Lien
Last year, the U.S. Supreme Court limited reimbursement of Medicaid liens to the fraction of the total recovery that corresponds to medical expenses. <i>Arkansas Department of Health and Human Services et al. v. Ahlborn</i>, 547 U.S. 268 (2006). Measures can be taken, however, that dramatically limit government liens, preserving recoveries to enrich the quality of life of a severely disabled individual.
When Products Liability Intersects with Malpractice Strategy
Medical device products liability litigation and medical malpractice litigation have intersected for as long as physicians have been prescribing and implanting medical devices, but that overlap continues to increase and become even more intricate as medical devices become more sophisticated and more widely utilized by physicians and the public, and as plaintiffs increasingly seek to keep their cases in state court by including local diversity-destroying defendants in suits.
An Overview of FIN 48: Accounting for Uncertain Income Tax Positions
In an effort to increase comparability and consistency in how companies report income tax positions on financial statements, the Financial Accounting Standards Board ('FASB') issued on July 13, 2006 FASB Interpretation Number 48 ('FIN 48'), <i>Accounting for Uncertainty in Income Taxes.</i> FIN 48 changes the way companies must account for uncertain tax positions taken on federal, state and local, and international income tax returns for financial reporting purposes. Despite the requests for delay by numerous companies and trade and lobbying groups, the provisions of FIN 48 became effective for fiscal years beginning on or after Dec. 15, 2006. The provisions of FIN 48 apply broadly to all companies that issue financial statements in accordance with generally accepted accounting principles ('GAAP') and that are potentially subject to federal, state and local, or foreign income taxes.
Today's Approach to Distressed Situations: A Lessor's Guide
Back in 1985, one of us contributed to an industry publication an article titled <i>Strategies for Recovery in Lessee Bankruptcy</i>. Twenty-two years later, the landscape of bankruptcy law and the leasing industry have changed dramatically, and issues and problems faced by the equipment lessor today have much different priorities. As the equipment leasing community contemplates the landscape today, some new approaches and decision drivers face the leasing executive when his lessee files Chapter 11, or threatens to do so.
