What Are the Damages for Breach of a Real Estate Sales Contract?

Whether you were in a residential or business contract for a real estate purchase, there are certain damages that could apply if there is a breach of contract. Then, you can rest assured that you won’t have a total loss on your hands and you’ll be able to recoup at least some of your money.

Here are the damages you may be able to expect if you hire a real estate contract lawyer to help you out.

Loss of Bargain Damages

General loss of bargain damages are for a total breach of contract. The damages are the difference between the agreed contract price and the market value of the property on the date in which the breach occurred.

Here’s an example to make this a bit clearer: Let’s say that the seller sold you a property for $200,000 at the time of the total breach. The property was worth $140,000. You, the buyer, who was not responsible for the breach, would be able to potentially recoup $60,000 in losses. If the value of the property had gone up to $250,000 on the date of the breach, if the seller is in total breach, then you could be entitled to $50,000.

Things to Keep in Mind With Bargain Damages

Loss of bargain damages are not always so straightforward. You’ll also need to take into consideration the following:

  • Future market fluctuations are irrelevant when it comes to loss of bargain damages. The person who was not responsible for the breach of contract would only be entitled to the difference between the contract price and the market value of the property on the date that the breach occurred.
  • A seller’s good faith but lack of conveying good title could affect the recovery of loss of bargain damages. If a seller acted in good faith but could not convey satisfactory title, then the courts may differ in their opinion over how to settle the loss of bargain damages. Nearly half of the cases in these circumstances limit the buyer’s recovery to return of earnest money. Plus, the buyer’s other payments with interest and incidental damages like loan application costs, abstract and title examination could be limited as well.

Special Damages

Along with loss of bargain damages, you may be able to recover special damages if there is a breach of contract with the selling or buying of a property. Each of these special types of damages needs to satisfy a foreseeability test, which illustrates that damages were within the contemplation of the contract when the contract was created.

These special damages include:

  • Loss of profit. You may have been looking to purchase a property with the intent of flipping it, selling it or renting it out to make money. You may be able to obtain loss of bargain damages and expenses and loss of profit in some situations. However, it can be very difficult to also receive loss of profit damages, as there are many obstacles you’ll have to overcome. They include foreseeability and reasonable certainty.

The loss of profit must be foreseeable, which means the parties could have contemplated it. This is hotly debated and must be argued in the right way. Reasonable certainty means that the loss of profit needs to be proven with reasonable, and not total certainty. Recovery may be an option if the proof is there, but the courts typically see claiming a total loss of profit as being unreasonable.

  • Expenses in reliance on the contract. If you started spending money to prepare for the real estate purchase or sale when you assumed the contract was in order, then you may be able to recoup some of your expenses. These expenses include, but are not limited to: Appraisals, the cost to travel to and from the property, surveys, document drafting fees, the seller’s eviction of a tenant, title search, expenses for setting up financing, moving in and out of a property, broker’s commissions and refurbishment of the property according to the contract’s requirements.

How a Breach of Contract May Occur

There are different situations in which a breach of contract could occur. For instance, the buyer may not be able to acquire the financing they need by the time of the closing date, and they need to pull out of the sale.

Additionally, a buyer would be in breach of the contract if they do not pay on time; they might not be able to close escrow on the specified and agreed-upon date. There may be a failure to deliver the deed of property in the correct fashion, too.

If you don’t see your situation listed, it could still qualify as a breach of contract. Make sure you get in touch with a real estate contract lawyer to determine the best course of action for your case.

Should Your Injury Lawyer Have Trial Experience?

You were recently injured in an accident, and now you’re wondering where you can turn for help. Thankfully, a personal injury lawyer can represent you in your time of need and get you the settlement you deserve.

The only thing is that you aren’t sure what to look for in an injury lawyer. For instance, should they have trial experience?

Here are the facts about hiring an injury lawyer with trial experience so you can find the right representation to fit your needs.

Trial Experience Isn’t Always Totally Necessary

The truth is that most personal injury cases never reach the trial level. Parties will typically settle prior to going to trial because a court case is costly and time-consuming. Nobody wants to spend all that time or energy in the courtroom. Plus, a trial can delay your settlement – or rob you out of a settlement altogether.

If your personal injury lawyer doesn’t have a lot of trial experience, it doesn’t mean they aren’t qualified to represent you. In fact, it could just mean that they are an expert negotiator, and they settle for clients before ever going to trial. One of the most important factors when deciding to hire a lawyer is whether or not they were able to negotiate fair settlements for their clients in the past. If they were, then you could see their case results and decide if this lawyer is right for you.

When Trial Experience Comes in Handy

While your injury lawyer doesn’t need ample experience in the courtroom, some experience could be helpful for your case. In situations where the responsible party is not willing to settle for a reasonable amount to cover your damages, then you’re going to need a representative who is willing to take your case to trial.

They should have pre-trial experience at the very least, because during the pre-trial process, the responsible party may then decide to settle as it gets closer and closer to the court date.

In an extreme case, where the responsible party doesn’t come around, then you’ll need a lawyer who has worked on injury cases that have gone to trial. You should ask your potential lawyer about their case results when they went to trial to see how it turned out for previous clients.

What to Look for in an Injury Lawyer

Along with asking an injury lawyer about cases they’ve worked on inside and outside of the courtroom and the results of those cases, there are some other questions you should ask them during your initial consultation.

For instance, you should inquire about their fees. The way personal injury lawyers work is they won’t charge you any fees unless they recover damages for you. Then, they will take a percentage of those wins to pay themselves. Learn about the fees upfront so you aren’t surprised when they’re taken out of your settlement.

You can also ask how long a case like yours will typically take. An experienced injury lawyer has likely dealt with cases similar to yours in the past and will be able to give you a rough timeline of how it’ll go. However, keep in mind that you’ll need to be flexible. If some other medical issues come up during your treatment, for example, then your case may take longer. You should never rush trying to get a settlement, because you might not get as much as you deserve.

Along with the time frame, ask about the normal settlement amount for a case like yours. Ask about the damages you could potentially receive, such as compensation for your medical bills, repair to your personal belongings, a loss of wages, loss of enjoyment of life, pain and suffering, and more. Your lawyer should be realistic with you, and not provide you with some high number just to get you to sign on with them.

You’ll want to ask about what your relationship is going to look like as well. Ask your injury lawyer what they need from you and whether or not you have to collect evidence that proves fault in your accident.

Figure out how often they will be available to you; typically, a good injury lawyer will get back to you within 24 hours. Also, inquire whether or not you’ll be working with the lawyer directly, or with an associate or paralegal, or both. You’ll want to know whom you should reach out to in case you need anything.

Finding the Ideal Injury Lawyer for Your Case

While trial experience is a huge plus, it’s not necessarily a deal breaker if your injury lawyer hasn’t gone to trial with most of their cases. As long as they have a list of satisfied clients and the results to back it up, then you know you’re in good hands with your personal injury case.

Evidence Needed to Prove Your Right to Compensation After a Car Accident

After you get into a car accident, you’re understandably disoriented, especially if you got injured. However, unless your injuries are so serious that you need medical attention right away, you should stick around the scene of the accident to collect evidence that it was not your fault. Then, you’ll have a much better chance of retrieving compensation for your damages.

Here is the evidence you should seek out following an accident.

The Other Driver’s Information

First, ask the other driver for their name, phone number, address, and other contact information. Then, gather their insurance information, including the name of their provider and their policy number, and their license plate number as well.

Photographs of the Scene

It’s important to snap photographs of the accident, along with your car and the other driver’s car and license plate. Also, take pictures of any damage to your belongings and visible injuries. If you see surveillance or traffic cameras around, take photos of them so you know their locations and can possibly collect that footage later on to prove your case.

Witness Statements

If there were people who saw what happened, then ask them if they will give you a witness statement. Take down their contact information as well just in case you need to get in touch later on.

Police Record

After your accident, you should call the police right away. You can file a police report, which will serve as strong proof of what happened.

Medical Record

As soon as you’ve wrapped up collecting evidence at the scene, it’s crucial to go to the hospital right away and ask for a full check-up, including X-rays. Let the doctor know about any pain you’re experiencing, even if it’s minor. This is because even a minor injury like whiplash or back pain could end up becoming much worse over time.

It’s important to follow your doctor’s treatment plan, taking medicine they prescribe and going to additional appointments as needed. That’ll show that you are injured and you’re taking your injuries seriously.

What to Do if the Insurance Company Calls

The other driver’s insurance company is likely going to call you very soon after the accident occurs. They’re going to ask you what happened and want you to make a recorded statement. You should decline to do this and not speak about the accident. You also shouldn’t tell them about any injuries.

This is because the insurance company is trying to get information out of you that will make it easier for them to offer you a low settlement. Even if it seems like the settlement that they are providing you is enough, you never know how your injuries will play out.

They could get much worse. And once you are given a settlement, you can’t go back and ask for more. You could get stuck with thousands of dollars in medical expenses with nowhere to turn.

Instead of talking to the insurance company, call up a personal injury lawyer instead.

Why Work with a Personal Injury Lawyer?

A personal injury lawyer will work for you for free, and then if they can get you a settlement, they’ll take a commission from that. The lawyer should tell you ahead of time what their commission is going to be.

An experienced lawyer will know how to deal with insurance companies, who are often aggressive and hard to negotiate with. Your lawyer will know what kind of reasonable settlement to go after, so you have the best chance possible of getting compensation.

Additionally, they will do the legwork in a time when you need to be focused on your healing. They’ll not only negotiate with the insurance company; they will also figure out the damages you are owed and help you collect evidence of the accident. For instance, they’ll call up the hospital to get your medical records and gather footage of the accident if it’s available and they believe it’s crucial to your case.

Some damages you may be eligible for include your medical expenses, loss of wages if you had to take time off work because of your injuries, pain and suffering, damage to your belongings, loss of enjoyment of life, and future medical care, if your injuries were severe.

Will I Have to Go to Court?

Typically, most personal injury cases do not end up in the courtroom. Instead, insurance companies will settle with lawyers, who will then pass on the compensation to their clients. The compensation you receive is going to depend on the extent of your injuries and the damages you can claim.

Conclusion

After an accident, make sure you stick around to gather evidence and seek medical treatment immediately. And at your earliest possible convenience, contact an experienced car accident attorney in your area to discuss your case and become informed of your legal rights and options.

 

The Ins and Outs of Legally Adopting an Older Child

When a family is looking to adopt a child, they may start with looking for mothers who are about to give birth. Then, they can raise a child from the time it’s born.

However, others would rather adopt an older child. Perhaps they believe there is more of a need to adopt an older child or having an older child in the home would be more conducive to their lifestyle. No matter what the reason, there are challenges parents are going to deal with – as well as a multitude of rewards they will experience as well.

Here are some things to know about legally adopting an older child so you can decide if it’s the right decision for you and your family.

The Challenges and Rewards of Adopting an Older Child

An older child might have been in and out of foster homes where an adoption just didn’t work out. Perhaps they are scarred by their experiences because they’ve been let down so many times before. They might also be abuse survivors and/or contending with the fact that their parents gave them up for adoption in the first place.

It could be more difficult to communicate to an older child that you’re going to love them and care for them, no matter what. If the older child is a teenager, they are coming of age, and dealing with all the normal issues teens face, too.

Additionally, it could be hard for you and the older child to adjust to them coming into your home. Perhaps you have other children or a routine, and they are not having the easiest time fitting into it.

You might have to adjust your expectations as the child gets used to how things work in your home. Remember to be flexible, and don’t hesitate to reach out to professionals like mental health counselors and social workers to help make the transition easier.

All children have love to give and deserve to be loved as well. It doesn’t matter what age your adopted child is; what they want is to feel safe and secure and that they can freely express themselves. They seek out validation from you and want to know you love and respect them.

An older child may have gone through more trauma than an infant, but that doesn’t mean they are incapable of opening up their heart to you and your family. In fact, it may end up being much more rewarding adopting an older child because you know you are truly making a difference in their lives. You are taking them out of a system they felt rejected them and showing them what a warm, loving home looks like. That alone could be worth all the challenges.

Legally Adopting an Older Child

The process for adopting an older child is the same as it would be for adopting a younger child. You will need to go to training, undergo a home study, find a match with the older child and navigate the legal process. Keep in mind that the child’s wishes are going to factor into the decision on whether or not you can adopt them, since they are older.

Each state has different requirements for adopting a child. You’ll need to meet with social workers and fill out various court forms in order to complete the adoption. You could also hire an adoption lawyer to guarantee that you are fulfilling all the legal requirements. Adoption is expensive and time-consuming, and you want to make sure that you aren’t wasting your energy or money. With a lawyer on your side, you can do it the right way the first time around.

Conclusion

While adopting an older child comes with its fair share of challenges, there are so many rewarding upsides as well. This isn’t a decision you take lightly, but when you do decide to do it, make sure you go about it the correct way by following all the legal steps for your state and hiring a lawyer who can help. Then, you can make sure that everything will go as smoothly as possible with your adoption, and you can welcome an older child into your loving home.

If you are considering adoption, the process can be complicated and confusing. Contact an experienced family law attorney in your area to discuss your situation and to get started.

Chevy Bolt Fires

General Motors has recalled the Chevrolet Bolt electric vehicles for a second time after two more battery fires erupted in the owner’s cars.

These were vehicles that had allegedly received a fix last November.

Bolt owners are now being warned to park their vehicles outside, limit charging to 90 percent of the battery, and avoid charging them unattended.

The Second Recall

The National Highway Traffic Safety Administration (NHTSA), along with General Motors, has issued the latest consumer warning.

The Chevy Bolt model years 2017, 2018, and part of 2019 is the exact vehicle recalled initially in November 2020 after a fire erupted in the high-voltage battery pack under a backseat cushion. Almost 51,000 vehicles were affected, and owners were warned any fire could spread throughout the car and possibly cause a structure fire.

Two recent fires sparked this second recall in vehicles that had already received the November fix.

In early July, one of the Chevy Bolt electric vehicles that caught fire belonged to state Rep. Timothy Briglin from Vermont. The vehicle’s interior and some of the exterior were burned in the chemical fire as the battery cells can smoke and ignite internally. In this case, the electrical fire started within the area of the back seat. It is a similar fire to other Bolt EV fires reported to federal regulators.

Briglin had serviced the vehicle during the first recall, an indication the fix didn’t work. The fear is the combustion can cause a structure fire if the car is parked inside.  The other fire occurred in a Chevy Bolt in New Jersey.

In total, there have been nine battery-related fires in GM Bolts in the U.S., according to General Motors.

The first recall for Bolt involved diagnostic software monitoring for the defect and alerting the owners.

With this second recall, GM says it will replace the defective lithium-ion battery modules made by LG Chem. Both companies discovered a “rare manufacturing defect” in some battery modules that had the potential to cause a short and spark a battery fire.

The fix will be free to owners. It affects all BOLT 2017-2019 vehicles, whether or not they received the current software update. Consumers are encouraged to bring their vehicles to the nearest Chevrolet electric vehicle (EV) dealer to obtain the software update, the subject of the first recall.

An estimated 69,000 vehicles are affected globally. GM says it will notify customers when the replacement parts are ready.

GM Recommends

In the meantime, the automakers issued recommendations to Bolt owners.

  • Owners should park their electric vehicles away from their homes due to the fire risk. NHTSA also warned against leaving a vehicle charging overnight.
  • Chevrolet urges Bolt owners to use Hilltop Reserve mode or Target Charge Level to keep the charge under 90 percent. It is recommended you recharge the vehicle after a trip, although owners should not charge their vehicles overnight. Instead, after a charge, unplug the car and park it outside overnight. Leave at least 70 miles in the battery.
  • Bolt owners should visit NHTSA.gov/recalls. Enter your 17-digit vehicle identification number to determine if your vehicle is recalled. Call the closest dealership to schedule a free repair. Consumers can also visit www.chevy.com/boltevrecall or call the helpline at 1-833-EVCHEVY.

If there are additional fires, GM could buy back some of the vehicles to avoid litigation and triggering of state lemon laws.

The Future of EV

Expect a wave of electric vehicles to hit the market soon. Environmentally, an EV lessens our dependence on oil, thereby benefitting the environment. However, the problems linked to lithium-ion batteries and chemical fires remain unresolved.

The infrastructure bill, once it passes, will mark the most significant investment in transit in the history of the country as well as an investment in climate change.

Part of the infrastructure bill will include federal electric vehicles and 500,000 charging stations placed in communities and rural areas. The changes include electric transit busses and school busses resulting in cleaner air.

Tesla has reported the greatest number of fires related to the lithium-ion battery. In one case, a Tesla Model S Plaid reportedly caught fire in Pennsylvania with the driver behind the wheel. The locks malfunctioned, and the driver couldn’t escape the burning vehicle.

That particular Tesla had not been involved in a previous crash, as can happen after an accident when the lithium-ion battery is punctured.

It’s still uncertain whether there are more reports of fires with EVs simply because there are more on the road or if there is a greater risk of fire with EVs than with cars with internal combustion engines.

Also on the drawing board are lithium metal batteries which are beginning to show promise for commercial application.  Its anode is made of pure lithium, which increases energy density and charges much faster. The cathode is positively charged with the electrolyte in the middle. The challenge is to find a stable electrolyte for the new battery. Flammability tests of a novel fluoride electrolyte indicate its less likely to catch fire.

Competitors are joining the estimated $70 billion battery arena, searching for a longer-lasting and safer battery for the upcoming fleet of electric vehicles poised to overtake combustion engines in the U.S.

Sources:

Chevrolet https://my.chevrolet.com/how-to-support/safety/boltevrecall

NHTSA https://www.nhtsa.gov/press-releases/consumer-alert-important-chevrolet-bolt-recall-fire-risk

CNBC https://www.nhtsa.gov/press-releases/consumer-alert-important-chevrolet-bolt-recall-fire-risk

https://www.cnbc.com/2021/07/07/the-chevy-bolt-ev-belonging-to-vermont-lawmaker-who-backed-industry-catches-fire.html

Washington Post https://www.washingtonpost.com/business/gm-issues-2nd-bolt-recall-faulty-batteries-can-cause-fires/2021/07/23/ef6f4694-ebb5-11eb-a2ba-3be31d349258_story.html

Energy Post.eu https://energypost.eu/new-lithium-metal-battery-electrolyte-can-lengthen-range-of-evs/

Springer https://link.springer.com/article/10.1007/s10694-019-00944-3

What Is the Difference Between a Will and a Trust?

Estate planning is an important part of life. If you have a plan in place, you can ensure that your assets will go where you want them to, there will be less of a chance of dispute amongst your loved ones, and you’ll receive the care you need if you get sick.

There are different documents involved, and you may not know the difference between each one. Let’s take a look at the definitions of a will and trust, and what makes them unique.

What Is a Will?

A will is a document you can use to stipulate who will receive your assets when you pass away. It also includes information on who you want to look after your minor children should you die as well as what you want for your funeral. Usually, it is called a testamentary will. With a will, you could ensure that your estate saves money on taxes. It’s best to get an estate planning attorney to help you write your will so that it’s completely legal. If you do it on your own, you could get some information wrong and your heirs will be left scrambling to figure out what course of action to take.

What Is a Trust?

A trust is a document that allows you to transfer your estate to a party authority to oversee your assets for a third party, your beneficiaries. You could create a living trust, which is revocable, because you can change it while you’re alive. As long as you’re alive, you will have ownership over the property in the trust. When you die, your property can immediately go to your beneficiaries.

The Difference Between a Will and a Trust

If you only have a will, your loved ones could have to go through probate, which is a lengthy, time-consuming, and costly court process to make sure that your will is carried out. The probate process is public, which means that anyone can access your will.

You could potentially avoid probate with just a will if you have a small estate; the cutoff to qualify for avoiding probate depends on your state’s laws. On the other hand, a revocable living trust does not need to go through the court system, so it will be private.

A will can be challenged in a court of law, but usually, a trust cannot be. A trust becomes active when you sign it, while a will does not.

Keep in mind that since these are two separate documents, one will not usually override the other. However, if a problem does arise, the living trust will typically override a will.

What Happens if You Don’t Have a Will or a Trust?

If you die without a will or a trust, then the state can come in and determine what will happen to your assets like your bank accounts, properties, assets, and securities. If you have minor children, the state will handle their guardianship as well. Your family could be in court for several months and spend thousands of dollars on legal fees to sort out the situation.

This is why it’s critical to create a will and/or a trust as soon as possible, even if you aren’t a senior citizen. It’s especially important to do this if you have children. Otherwise, your loved one’s lives could become very difficult once you pass away, and your wishes may not be fulfilled.

You should update your will and trust any time there has been a major change in your life. For instance, if you get remarried, you’ll likely want to make sure that your assets go to your children from your first marriage as opposed to your stepchildren. You may also want to remove your ex-spouse from your documents so that they aren’t a beneficiary anymore.

Reviewing your documents periodically, even if you haven’t experienced major life changes, is always a good idea just to make sure everything is correct.

How to Choose Your Heirs and Beneficiaries

Many people will name their spouse and/or children as their heirs and beneficiaries. If your children are under 18 years of age, then they may not be able to gain control of the assets until they turn 18. You could create a trust for them so that they can receive their distributions.

Additionally, you can leave money to a beloved pet so that they will be cared for after you’re gone. You can even stipulate that your money should be donated to a charity or given to a business when you die. It’s up to you.

If you have not set up a will or a trust yet, consult with an estate planning attorney in your local area. An experienced attorney can guide you on what the best move is for you and your loved ones as you plan for the future.

bankruptcy foreclosure

Saving Your Home from Foreclosure During Bankruptcy

The decision to file bankruptcy is a difficult one that often comes after long periods of discussion, tears, and debate. For many people, the toughest part of filing bankruptcy is knowing that they risk losing their family home. This may put you in a position where you need to buy a new home or try to get an apartment, neither of which is easy when you have a fresh new bankruptcy on your record.

If you’re interested in saving your home while still going through the bankruptcy process, it’s time to talk to an experienced bankruptcy attorney. Use our listings to find a good fit in your area.

Using the Automatic Stay to Get Some Breathing Room

When you file bankruptcy, the automatic stay goes into effect. This prevents lenders from continuing to try to collect debt payments from you. This is often a huge relief for debtors who have been hit with dozens of calls every week for past-due debts. Rather than trying to figure out which debts to pay this week and which ones to ignore for another couple weeks, you can focus on getting your bankruptcy paperwork together and moving forward to a fresh start.

This also prevents lenders from attempting to collect on your mortgage debt. If you are already in foreclosure proceedings, this should give you a break from the constant letters and phone calls trying to get you up to date on your mortgage.

However, the automatic stay is only a temporary solution. It will not save your home unless you take further steps. It’s important to consult with a bankruptcy attorney to find out if Chapter 7 or Chapter 13 bankruptcy is a better option for you.

Keeping Your Home in Chapter 7 Bankruptcy

To start, you’ll have to figure out how much home equity you have. The more equity you have, the less likely it is that it will be protected under a bankruptcy exemption. This may allow you to save your home if you are a recent buyer or you still owe a considerable amount on it. However, exemptions vary between states, so it’s important to consult with an attorney in your area.

If the exemption covers your entire equity in a Chapter 7 bankruptcy, you may be able to keep your home. However, if it does not, the home will be sold, and the proceeds will be used to pay off unsecured debt.

To keep your home in this situation, you must be current on house payments and be able to continue making your payments in the future. If you are already in foreclosure proceedings, this may not be an option for you.

Chapter 13 Bankruptcy as an Option to Keep Your Home

Chapter 13 bankruptcy has a few more options for homeowners who are behind on house payments or who have too much equity. If you have too much equity in your home, you aren’t automatically forced to sell it and use the proceeds to pay other debts. The trustee will take the nonexempt portion of your equity and require you to pay it back in your repayment plan.

In Chapter 13 bankruptcy, you must create a repayment plan that is practical for your income level and ability to pay. You can pay back the amount past due on your home over three to five years, which makes this a more viable option for those who are already in foreclosure. Keep in mind, though, that arrears payments are separate from your mortgage. Your payment plan must allow you to make mortgage payments going forward and your past due payments.

Keep in mind that this gives you a fairly narrow path to keeping your home. Should you fall behind on arrears payments or mortgage payments, the mortgage holder may move to restart foreclosure proceedings. Make sure that your payment plan is manageable for your financial situation.

Bankruptcy is a big decision, and it’s not one to tackle on your own. With the assistance of a bankruptcy attorney in your area, you can learn more about state laws regarding exemptions and explore options for keeping your home.

Force Majeure Clauses in Commercial Leases

When people go into business, they do so after lots of research. They likely know who their target market is, how much business they can expect, and how much wiggle room they have between what they expect to bring in and their monthly expenses. But when something completely unforeseen and uncontrollable happens, all of these plans mean nothing. That’s why so many commercial leases have force majeure clauses.

If an unpredictable event outside your control has left your business floundering, you may want to investigate your legal options. Use the listings at Legal Chat Now to find a commercial real estate attorney near you.

What Force Majeure Means

“Force majeure” is a French term that means “superior force.” It generally refers to an act of God, or a natural hazard that is uncontrollable and that cannot be pinned on one person. Depending on your lease, you may or may not have a list of specific occurrences that are considered acts of God. Commonly listed events include earthquakes, floods, tsunamis, wars, and catastrophic storms. In the past, force majeure clauses have been used to help commercial tenants delay payment of rent when unforeseen natural disasters have left their business destroyed or inaccessible.

Is COVID-19 a “Force Majeure” Event?

This term has come up a lot in the news recently, due to the COVID-19 pandemic. This situation, completely novel to everyone in the world, required swift action to prevent crowds and events that would draw lots of people in. In turn, many businesses either shut down voluntarily for the good of public health or shut down when forced to by state governments.

Many state governments enacted stay-at-home, shelter-in-place, or safer-at-home orders that required non-essential businesses to close. These orders often allowed gas stations, medical facilities, and grocery stores to remain open while shutting restaurants, non-essential retail, and entertainment facilities.

As you can imagine, this situation left many business owners in dire straits. The COVID-19 pandemic took over swiftly and decimated many businesses’ profits in a matter of weeks. This led many business owners to comb through their commercial leases, looking for any clauses that would allow them to delay or stop paying rent.

The question remains: is COVID-19 an act of God or a superior force? A pandemic cannot be placed squarely on one person’s shoulders, and it is both uncontrollable and unforeseen. However, as these cases have come before the courts, outcomes vary between states.

In Illinois, one restaurant owner was able to seek relief under a force majeure clause because of the governor’s stay-at-home order that forced the restaurant to close. However, this ruling did not provide relief for the time between the onset of the pandemic and the stay-at-home order. While the unprecedented drop in business was due to COVID-19, it wasn’t considered a force majeure until the government imposed a stay-at-home order.

In other states, efforts to seek relief under force majeure clauses have had mixed results. COVID-19 has essentially become a legal battleground where attorneys on both sides have pull out all the stops to try to protect their clients’ best interests.

Relief Sought Under This Clause

Many people misunderstand the type of relief sought and provided under force majeure clauses. Basically, it all depends on the specific terms of your contract. Under some contracts, an act of God allows for the cessation of rent payments and even the termination of the contract if the event is severe enough. Other contracts have less leeway for commercial tenants, simply allowing them to postpone their rent obligations until such a time that the act of God has passed, and they are able tiresome normal business operations.

Discuss Your Commercial Real Estate Needs with an Attorney Now

Commercial real estate is a complicated area of law, and if you’re struggling with a force majeure clause in your contract, you need to talk to an experienced attorney. The COVID-19 pandemic has presented unforeseen legal challenges, and you want an attorney who can navigate these issues with confidence. Search for commercial real estate attorneys in your area and contact a lawyer that suits your needs.

talcum powder lawsuit

Gold Bond Talcum Powder Joins Cancer-Link Litigation

Johnson & Johnson continues to insist to this day that its baby powder is safe, despite pulling the original powder from the market, replacing the talc with cornstarch, a $417 million jury award, and nearly $4.7 billion awarded to a group of women who developed ovarian cancer.

For decades, the problem has been known even before tens of thousands of women filed personal injury lawsuits. Talc, the active ingredient in talcum powder, is mined near a naturally occurring mineral, asbestos, a known carcinogen with no known safe exposure level.

J&J’s internal documents show the company debated labeling the powder and warning against using it in the genital area as a deodorant, on sanitary napkins, or condoms.

Talcum powder is intended to be used externally. Still, researchers found when it’s used near the genitals, talc particles travel up the reproductive system landing dangerously close to the ovaries.

Instead of warning women, J&J kept quiet, the very act that has enraged juries who then awarded millions to the injured plaintiffs.

J&J took its talcum-based baby powder off the market in May of last year, replacing it with a cornstarch-based baby powder. Retailers were allowed to continue to sell their remaining products on store shelves. Meanwhile, J&J continues to distribute its talc-based powder outside of the U.S. and Canada.

You can also still find the original talc-containing J&J Baby Powder on Amazon.

Gold Bond

Like J&J’s Baby Powder, Gold Bond Medicated Body Powder, and Medicated Extra Strength Body Powder, are used to relieve an itch, rash, and absorb moisture. They both also contain talc.

Shopping on Amazon, you can now find some other Gold Bond options that have a prominent display on the top of the label that says on the front “Talc-Free.”

Gold Bond is a subsidiary of the French pharmaceutical company Sanofi. Besides menthol and zinc oxide, Gold Bond Baby Powder is now made with cornstarch.

Chattem is facing many lawsuits filed by women who have developed ovarian cancer.

Unlike the J&J cases where company documents confirm J&J knew asbestos could be contained in its baby powder, Gold Bond may not have the exact roadmap to litigation. Then there is the question of whether asbestos causes cancer. The International Agency for Research on Cancer does not believe that powders that contain talcum are inherently dangerous; the European Union has banned talc in health and beauty products.

Meanwhile, the U.S. Food and Drug Administration (FDA) has not stated its opinion on the risks that talc poses in health and beauty products. When J&J removed its talcum-containing baby powder last year, it did so of its own accord voluntarily and not as the result of an FDA ban. The FDA rarely orders pharmaceutical companies to remove products for fear of litigation.

Consumers Be Warned

In 2014, the estate of a woman who died of ovarian cancer filed a lawsuit against the maker of Gold Bond and J&J and Imerys Talc America, the talc supplier.

Janice Chakalos had used talcum powder for decades and died of ovarian cancer in 2012. She was 63 years old.   Her husband’s suit accused the manufacturers of failing to warn about the emerging evidence linking the powder to ovarian cancer.  It was filed in Superior Court in Somerset County, New Jersey, Case No. 3:14-cv-07079.

While litigation gets underway, consumers are warned not to use talcum powder anywhere near the body where it could travel internally. That includes baby powders and on a diaper.

In related litigation, Mesothelioma is caused by exposure to asbestos. The fatal cancer results when workers in construction come in contact with asbestos in construction, insulation, and mining talc. Anyone breathing in tiny asbestos particles, which resemble threads or tiny needles, can find them embedded in the victim’s lungs.

Mesothelioma litigation preceded talcum powder cases, and at one time, it contained the largest number of personal injury cases ever amassed in one court in the U.S.

At present, there are more than 34,000 lawsuits filed specifically against Johnson & Johnson over its talcum powder products and marketing in New Jersey, the home state of J&J.

On the issue of warning consumers, last year, a lawsuit was filed in Los Angeles accusing the suppliers and distributors of talc powder products hid the evidence that the products were dangerous to consumers. Not only J&J, but Gold Bond and Shower-to-Shower distributors were defendants, as were Dollar General, Walgreens, Walmart, Target, and CVS.

That lawsuit contents the companies violated California’s Safe Drinking Water and Toxic Enforcement Act of 1986. Also known as Proposition 65, it states that companies must tell consumers through a “clear and reasonable warning” that their products may cause cancer and other harms.

The lawsuit says those efforts to obfuscate date back to 1976 when the industry adopted “purity standards.” Under the standards, talcum powder could contain ten percent of “naturally associated minerals,” which could include arsenic, chromium, and lead, and the rest could be talc.

Consumers who have filed successful personal injury litigation have received compensation for medical costs and ongoing treatment, surgeries, hospital stays, and lost wages.

Sources: Time https://time.com/5839391/johnson-johnson-ends-talcum-baby-powder/#:~:text=Johnson’s%20baby%20powder%20on%20a,2019%20in%20San%20Anselmo%2C%20California.&text=Johnson%20%26%20Johnson%20discontinued%20its,to%20a%20decline%20in%20sales.

Asbestos.com https://www.asbestos.com/companies/gold-bond/

Euro Journal of Cancer Prevention https://journals.lww.com/eurjcancerprev/Abstract/2018/05000/Genital_use_of_talc_and_risk_of_ovarian_cancer__a.8.aspx

allow dental implants

Alloy Dental Implants

Madris Tomes Kinnard is a former Food and Drug Administration IT project manager. She left the agency because she felt its database did not deliver the adverse event reports in a usable way.

Kinnard then came up with a new database to focus on patient safety. Her business, Device Events, uses the 11 million pieces of data reported to the FDA but makes sense of the adverse events, or complications providing it to anyone who wants to understand how well the 175,000 medical devices in the market are working in the real world.

After they are on the market, tracking devices is useful to patients, doctors, hospitals, journalists, and law firms.

Watching the data is essential for several reasons. First, most medical devices, more than 90 percent, are not approved by the FDA but “cleared” under its 510(k) process. That means the devices can bypass clinical trials required of pharmaceuticals, and with an exchange of paperwork, can be put onto the market in about 90 days or less.

All the device maker has to do is claim that its device is substantially equivalent to a device already on the market, called the predicate device. It is up to the manufacturer to decide just how similar the devices are. With the emergency of new technologies and electronics added to devices, it is unlikely they are substantially equivalent to a device cleared decades ago.

This is a win-win for the manufacturers and not so much for the consumer.

Some of the most dangerous medical devices, later removed from the market or found to be defective, have been cleared through the 510(K), such as hip and knee implants.

Unlike Australia, which has a device event registry monitoring adverse events and looking for trends in complications, the U.S. relies on its MedWatch reporting system and the MAUDE database. Generally, problems are seen in the real world before the FDA notices, such as transvaginal mesh, Essure birth control device, and Metal-on-metal hip prosthesis.  Meanwhile, Australia noticed the complications reports coming in. That was the case with metal-on-metal hips (MOM), where Australia’s post-approval monitoring noted a high failure rate with the DePuy ASR implants and recalled them from the market in 2009, one year before a U.S. recall.

Device Events Notes Spikes in Injuries

Not that the FDA collects all data on devices that are harming patients.  Ten years ago, the Office of the Inspector General (OIG) estimated only 14 percent of adverse events are ever reported to the FDA.

Still, even with a fraction of the problems ever making it to the agency, Kinard and Device Events have tracked recent spikes in injuries.

For example, there has been a drastic spike in hernia mesh cases reported since 2017.  That year there were 3,149 complaints to the FDA. In 2020 that number jumped to 13,942 complaints. Hernia mesh, made of polypropylene, is used in the majority of hernia repairs.  Like the mesh used for pelvic organ surgeries, the same polypropylene can migrate, erode, and cause chronic pain and infection.

Hernia mesh has been known to erode into the colon. Often sepsis and death are seen as an outcome of a hernia mesh repair.

With one million hernia surgeries performed annually in the U.S. and doctors relying on mesh rather than an “old fashioned” suture repair, do the math to see the potential for hundreds of thousands of injuries annually.

Device Events has also noted a recent jump in injuries associated with dental implants.

Dental Implants

The FDA received over two million reports on dental implants. Primarily the complication results when the body rejects the dental implant.

The FDA wanted to have more dentists reporting to them about dental implants, and they did a video tutorial on how to report to the FDA about a year and a half ago. Since then, they’ve received 300,000 adverse event reports for dental implants.

According to The International Journal of Implant Dentistry, titanium alloy particles can deposit in surrounding tissue following corrosion and wear. This can lead to bone loss from inflammation or hypersensitive reactions that eventually lead to an implant failure in some patients.

The first step for a patient is to take a diagnostic patch test to determine any metal injuries. An alloy dental implant can be a mixture of titanium with almost any other element.  By definition, an alloy is a man-made material.

While most people get titanium, it’s an alloy and can contain other metals such as cobalt and chromium. Those are metals that have caused trouble with metal-on-metal hips.

Even an allergic reaction to titanium alone was noted in one study involving 1,500 dental implant patients.

The FDA considers if your body rejects your dental implant, it is not a malfunction of the device, but it is a severe injury.

Another metal used in the alloys is nickel, a naturally occurring metallic element. With about one-third of the population allergic or sensitive to nickel, patients need to ask what’s in the device they are about to have permanently implanted in their mouth.   If you cannot wear earrings with nickel, certainly a dental implant containing it is out of the question.

About ten to 15 percent of the population is allergic to metals, so in considering any permanent implant, it is crucial to know the composition of the implant.

Report Your Injury to the FDA

As imperfect a system as the FDA is in monitoring medical devices after they are released on the market, it is still all that we have at present to notice any spike in injuries. If you or your client has an adverse reaction to a medical device, contact the FDA MedWatch division and report the injury.

Make sure it’s reported correctly and do a follow-up if your condition changes. Keep in touch with the FDA instead of relying on the doctor to do the reporter. Neither the doctor nor the manufacturer has an incentive to report a complication with a device.

###

Sources:

Colgate https://www.colgate.com/en-us/oral-health/implants/titanium-rejection-symptoms-are-you-allergic-to-your-dental-implant

Reuters https://www.reuters.com/article/us-nobelbiocare-lawsuit/dentist-seeks-u-s-class-action-suit-vs-nobel-biocare-idUSTRE6641BV20100705

London Institute of Dentistry https://www.mdpi.com/2673-1592/2/2/11

PubMed https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5633690/

TampaSteel https://tampasteel.com/what-is-a-metal-alloy/

Implant Institute https://implante.institute/blog/can-i-be-allergic-to-titanium-dental-implants/413#:~:text=Virtually%20all%20implants%20are%20alloys,also%20found%20in%20the%20implant.

PubMed https://pubmed.ncbi.nlm.nih.gov/18705814/

https://pubmed.ncbi.nlm.nih.gov/24027897/

The International Journal of Implant Dentistry notes that due to implants‘ corrosion and wear, titanium alloy particles can get deposited in the surrounding tissues. In some people, this can cause bone loss due to inflammatory reactions or hypersensitivity reactions that cause implant failure.

Colgate https://www.colgate.com/en-us/oral-health/implants/titanium-rejection-symptoms-are-you-allergic-to-your-dental-implant

Says first step is to take a diagnostic test such as a patch test to detect metal allergy and the commercially available MELISA test.

National Institutes of health – Allergy related to dental implant and its clinical significance, 2013 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3753052/ Talks about other metals that are part of alloy and may intensify allergic reactions.

Titanium allergy: A Literature Review, 2014 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4248517/

An allergic reaction can be rationally guessed subsequent to metallic implant placement, based on clinical features linked with allergy, such as rash, urticaria, pruritus, oral erythema, swelling in the region, eczematous lesions, or hyperplastic lesions of periodontal tissue (the peri-implant mucosa).Aug 19, 2013

Allergy related to dental implant and its clinical significance

https://www.ncbi.nlm.nih.gov › articles › PMC3753052

https://www.drsirin.com/blog/having-allergic-reaction-to-dental-implants/ there are metal free options.

BioMed Research International Side effects of dental metal implants: Impact of Human Health (Metal as a Risk factor of Implantologic Treatment) 2019 https://www.hindawi.com/journals/bmri/2019/2519205/

Journal of Prosthodontic Research Allergic contact dermatitis caused by titanium screws and dental implants 2015 https://www.sciencedirect.com/science/article/pii/S1883195815001115

A critical review of dental implant materials with an emphasis on titanium versus zirconia, 2015 https://www.researchgate.net/publication/273685161_A_Critical_Review_of_Dental_Implant_Materials_with_an_Emphasis_on_Titanium_versus_Zirconia

LEGAL

THERE IS ALREADY a class action filed against Nobel Biocare of Zurich Switzerland because 8% of implants were lost after implant.  US District Court for central California, each member of the class can be reimbursed. Involving thousands of dentists involved in a $1.3 M settlement, May 2013. https://www.massdevice.com/nobel-biocare-settles-450m-class-action-13m/

Legal: Other mistakes with dental implants https://protectingpatientrights.com/blog/dental-implant-mistakes/