Marriage and the Transgendered Person
April 28, 2005
Recently, the Associated Press reported the story of a New Hampshire couple with an unusual problem. After being married for a few years, the husband, with his wife's assent, underwent a sex-change operation. The husband, a naturalized U.S. citizen with a foreign birth certificate, is now seeking to have the name on that birth certificate changed from Michael to Mikayla, something the federal government is not necessarily going to allow.
Interest on a Distributive Award
April 28, 2005
Although banks and financial institutions are currently paying interest on savings at about 4% per year, the statutory rate of interest on judgments is 9% per year, except where otherwise provided by statute. Civil Practice Law and Rules (CPLR) ' 5004. In today's economy, with financial institutions paying low interest rates, the 9% statutory rate on the payment of a distributive award is a good investment for the recipient spouse, if he or she can get it, and an incentive for the obligor spouse to pay the award promptly.
Limiting Med Mal Actions When a Foreign Body Is Left in the Patient
April 28, 2005
Many states make an exception to the time limitation in which a medical malpractice action may be brought if the cause of action is based on a foreign object left behind in the plaintiff's body. But what if the defendant was not the one who placed the foreign object in the patient? Will the foreign-object exception leave the doctor, nurse or hospital vulnerable to suit years after the patient was treated?
Clinical Trial Injuries
April 28, 2005
Clinical trial agreements can almost always be negotiated. Most part-time investigators, however, do not have the necessary legal expertise or time to interpret the agreement and conduct an effective negotiation. Proper legal representation at present requires an attorney who is expert in this very specialized field. Because sponsor negotiators often have huge backlogs of contracts in process, and over half of part-time investigators do not negotiate (or even read) the clinical trial agreement, an investigator who opens a negotiation may never emerge from the queue.
Verdicts
April 28, 2005
Recent rulings you need to know.
Can You Get an Impartial Jury in the Age of Tort Reform?
April 28, 2005
In recent years, during <i>voir dire</i>, plaintiffs in medical malpractice cases have sought to ask jurors about their attitudes regarding "tort reform" and the so-called "medical malpractice crisis." These efforts have increased as those issues have moved to the political front burner, receiving considerable media coverage. Only a few courts have considered the validity of such questions, but of those that have, plaintiffs generally have been permitted to inquire as to a potential juror's views on those issues, though some courts have limited the line of questioning.
Statistics and 'Substantial Certainty'
April 28, 2005
An interesting case in New Jersey might provide an answer to a significant question on employers' liability under workers' compensation statutes and, by association, manufacturers' liability under defective-design theories. The issue: How does a plaintiff prove "substantial certainty" of injury in order to proceed under common law standards against the employer, as opposed to recovering under workers' compensation?
Horn v. Thoratec: FDA's Bold New Position on the Pre-emptive Effect of Product Approvals
April 28, 2005
By and large, the FDA has confined its participation to cases where it had specifically considered — and rejected — the plaintiffs' claims that a product's labeling or advertising should have included different language from that which was used. <i>See</i> Daniel E. Troy, <i>FDA Involvement in Product Liability Lawsuits,</i> Update: Food & Drug. L., Reg. & Educ. (Food & Drug Law Inst., Wash., D.C.), Jan./Feb. 2003, at 1. In 2004, however, the FDA submitted a brief in a state products liability action that signals the agency's willingness to be much more aggressive in protecting its jurisdiction from lay judge and jury determinations concerning a product's risk-benefit balance that conflict with the FDA's own determination of where that balance lies. <i>See Br. of Amicus Curiae U.S. Dep't of Justice, Horn v. Thoratec Corp.</i>, 376 F.3d 163 (3d Cir. 2004) (No. 02-4597) ("FDA Br.").
Reductions in Punitive Damages Awards: Practice Tips
April 28, 2005
Our previous article in the March issue reviewed punitive damages awards since the U.S. Supreme Court's decision in <i>State Farm Mutual Automobile Insurance Co. v. Campbell,</i> 538 U.S. 408 (2003). This month we will look at the way the Court's directives impact pretrial activities, evidentiary issues, and jury instructions in our cases.
