Force Majeure Clauses in Commercial Leases

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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

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As of July of 2021, Johnson & Johnson continues to insist 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

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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.

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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/

stay-at-home mom divorce

Surviving Financially for a Stay at Home Mom After Divorce

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Getting a divorce can be incredibly painful for you and your family. Your whole world is going to change, which can have both ups and downs. Even if you’re looking forward to being divorced, if you were a stay at home mom in your marriage, you’re worried about how you’re going to financially support yourself and your children.

Here are some tips on how to make money matters easier, as well as why it’s important to contact a divorce lawyer to represent you.

Prepare for Your Divorce

If you know you’re going to file for divorce, make sure you can access all of your bank accounts and other assets. Look into your credit score and fully assess where you stand financially.

Apply for Alimony and Child Support

You could be eligible for both alimony, also called spousal support, and child support. It’s possible that you’ll receive alimony since you took care of the children instead of worked throughout the course of your marriage. You could receive the money you need through alimony and child support to pay for your basic needs and cover expenses for your children.

Consider Downsizing

Even if you get your house in the divorce, you could be stuck with expensive mortgage payments that you realistically won’t be able to afford. You may want to sell it and then move into a cheaper place. If you don’t get the house, you should look into downsizing to an apartment or something more affordable until you start making money. You might have to cut back on other expenses like eating out and vacations for now. Though it could be difficult, in the end it’s going to be worth it because you’ll come out ahead.

Use a Budget

A budget can keep your spending on track and help you save for the future. A basic budget entails spending 50% of your money on needs, 30% on wants, and 20% on debts and savings. You can use apps like Mint or YNAB to automatically link up your bank accounts, track your spending, and receive financial tips.

Increase Your Credit Score

After your divorce, you may find that your credit score is low because nothing was put in your name or you and your partner had debts and other credit issues. First, check your credit report and score through places like Experian, Equifax, and TransUnion. You can see if there are any discrepancies or fraud on your report that you need to dispute. Then, you can take out a credit card with a small limit that you will use and pay off in full every month. Gradually, overtime, you should start to increase your score. If you can’t afford to do that right now, then don’t. Getting into debt could set you back with your score and make it harder for you to access credit and loans when you need them.

Build Your Emergency Fund

It’s always a good idea to work on creating your emergency fund. Typically, you’ll want to have at least several months’ worth of funds in there in case you lose your source of income. But if that seems too daunting, just start with a basic $1,000 emergency fund. You can do automatic transfers whenever you receive a deposit into your account, which means you won’t even have to think about saving.

Update Your Estate Plan

If you have a will, trust, beneficiary designations, or other aspects of an estate plan, you’ll need to update them following a divorce. You might need to take your spouse off of your documents, for instance. Get in touch with a lawyer in order to make these changes to ensure that they are legally binding.

Go Back to Work

Jumping back into the workforce can be tough, especially once you’ve been away for so long. But in the gig economy, you can ease in by doing a part-time or contract job. You may be able to find flexible employment online. If you need to go back to school to pursue a degree or get additional training, then scholarships and financial aid could be available to you. All you need to do is apply for them through Free Application for Federal Student Aid (FAFSA®). You could also keep costs down by attending a local community college or city or state school.

Hire a Divorce Lawyer

Though it will cost you in the short term, in the long term having an experienced divorce lawyer represent you can pay off big time. They may be able to show that you deserve alimony and child support and advocate to the judge for your needs. In a time when you feel alone, they’ll help and support you to ensure you will have a bright future ahead.

Right now you’re going through many different challenges with your divorce, but with strong representation on your side, you’ll likely experience a much more positive outcome. Get in touch with a skilled and compassionate divorce attorney in your local area.

 

 

Seresto Flea and Tick Collars Linked to 1,700 Pet Deaths

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You’ve seen the ads of cute family pets running through the fields. They are protected from fleas and ticks because of their Seresto collars, so says Elanco, the manufacturer.

But instead of eight months of protection from fleas and ticks, thousands of pets have turned up injured or dead, according to a nonprofit group, far more when compared to other flea collars.

Pet owners have been harmed too, yet the U.S. Environmental Protection Agency (EPA) has done nothing to inform the public or remove the danger from store shelves.

That may change now that CBS News, the Midwest Center for Investigative Reporting, and USA Today have broken the story on the national news.

Now two pet owners have filed a class-action lawsuit against Elanco Animal Health, alleging the company misrepresented the safety of their product. In one case, a dog died suddenly. In the other, the Siberian Husky developed cancer in the area near the collar.

Dozens more lawsuits are expected to be filed around the country.

A Top Seller

Seresto has been on the market since 2012. The popular pet and flea collar was developed by Bayer and is now marketed and sold by Elanco.

The maker claims it is safe for both dogs and cats while it kills fleas and ticks. Seresto contains two pesticides – imidacloprid and flumethrin – which are supposed to be released in small doses into the skin of cats and dogs.

The pesticide will “repel and kill various harmful insects” which include ticks, flea larvae, fleas, and lice, so says Elanco.

The nonprofit, Center for Biological Diversity, has taken over informing the public where the EPA has not. Using a public records request, the center found that since 2012, the EPA has received at least 1,698 reports of pet deaths, and more than 75,000 reports of harm linked to the collars. Included in the data are nearly 1,000 reports involving harm to humans who came too close to the flea collars.

That is far more than is seen in other pet collars and the agency has known about problems for years but failed to alert the public, says Karen McCormack, a retired EPA employee.

The Environmental Protection Agency (EPA) is supposed to monitor pesticide products and inform the public. That has not happened.

In terms of human harm, a 12-year-old boy was hospitalized with seizures and vomiting after being exposed to the Seresto collar on his dog.

In another incident, a 43-year-old man slept in the bed with four of his dogs who wore the collars. He developed throat irritation and ear drainage. His doctor said he had a hole in his ear drum.  When he took the collars off the dogs, the symptoms went away.

Despite the reports, the agency took no action to address these outcomes.

The EPA proposed re-approving imidacloprid last year because its class of insecticides, neonicotinoid, is connected to the death of bees and butterflies. The pesticide is banned in the European Union for outdoor use while it is used for agriculture crops in the U.S.

Flumethrin is the active ingredient in one product only, Seresto.

In a 2012 study, Bayer uncovered that combining pesticides can increase its efficacy, known as a “synergistic effect,” meaning they are more toxic when used together.

The EPA is supposed to monitor products that contain pesticides yet has sat on this information it has known for years, according to the retired EPA employee, talking to USA Today.

Congress is Now Involved

A Congressional subcommittee is now asking for Elanco’s CEO to conduct a voluntary recall of the collars and to issue a full refund to customers.

“We believe that the actual number of deaths and injuries is much greater, since the average consumer would not know to report pet harm to EPA, an agency seemingly unrelated to consumer pet products,” Rep. Raja Krishnamoorthi wrote in a letter to Elanco.

He is chairman of the subcommittee on Economic and Consumer Policy.

Elanco says it will not consider a voluntary recall.  According to USA Today, Bayer reported an annual revenue of more than $300 million on sales of the collar.

Not only might the manufacturer be liable but Amazon.com is the top-selling seller of Seresto collars.

Some Amazon reviews warn other Seresto customers. “The collars “put us through hell,” says one when used on an Australian Shepherd and the dog “developed severe itching and became very irritable after installing this Bayer Flea and tick collar. She started running into walls in our home and became very delirious.”

Another review says the dog had “some neurological problems” after putting on the collar.

Yet another said, “Two of my dogs have developed a terrible reaction to the chemicals that resulted in a nasty rash that needed treatment with antibiotics to prevent infection.”

Litigation will center on false advertising by Bayer HealthCare, LLC along with the fact that federal regulators have failed to take action even though Seresto collars have the greatest number of reported health incidents when compared to other flea collars.

Elanco says there is no established link between exposure to Seresto and pet death and blames “misleading media coverage” for the adverse event reports about minor effects such as skin irritation.

Sources:

Elanco https://www.petbasics.com/campaign/seresto-safety/

USA Today https://www.usatoday.com/story/news/investigations/2021/03/02/seresto-dog-cat-collars-found-harm-pets-humans-epa-records-show/4574753001/

https://www.usatoday.com/story/news/investigations/2021/03/26/seresto-flea-tick-collars-lead-class-action-lawsuit-pet-owners/7011012002/

How COVID-19 Has Forever Changed the Home Sales Process

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Under normal circumstances, selling a house takes a lot of face-to-face communication with several parties. From in-person house tours and handshakes to roundtable closings, it is difficult to imagine selling (or buying) a house without these formalities. Or so the world thought.

Times have changed drastically since the world first came to know about the novel coronavirus. The Covid-19 pandemic has changed the way business is done now. Wearing personal protective gear (PPE) such as a facial mask and maintaining social distance has become the norm, and real estate sellers have had to adapt accordingly. This means changing how realtors approach personal greetings, open houses, and closings.

The Evolution of Home Sale Process during the Pandemic

Despite the significant changes, the real estate industry didn’t take long to embrace this change. Realtors across the country came together to create innovative solutions and to continue serving the needs of home sellers and buyers. These solutions include giving virtual house tours wherever possible and using technology to complete the document signing process.

As 2021 has begun and the Covid-19 vaccine has arrived, industry experts predict that some of these solutions will stay in place even after the pandemic has become history. Let’s take a look at these practices.

No-touch and Curbside Closings

For all parties involved, the closing day is perhaps the most exciting part of the home-selling process. But during the pandemic, no-touch and curbside closings became necessary to comply with social distancing regulations.

In a curbside closing, the real estate agent walks out to the client’s car to get signature on documents that an attorney has prepared ahead of time. It means there is no longer any need to complete the paperwork with an attorney present in an office somewhere, which translates into reduced travel times as well.

Depending on whether the remote ink or remote online notarizations are permitted, all documents can be signed remotely through an audiovisual portal (like Microsoft Teams) or an official online notary platform (like Notarize).

Detailed Listing Descriptions and High-Quality Images 

Every experienced property seller knows that persuasive listing description and high-definition pictures of a house are extremely important in attracting buyers. This factor became even more important during the pandemic, when buyers were forced to limit in-person open house visitations.

As a result, real estate agents had to become handy with using stunning photos and creative descriptions in their listings online. Many agents went the extra mile and started to use social media by posting virtually recorded tours of homes on Facebook Live and Instagram.

Considering how well these efforts have been received by homebuyers, many agents, and sellers are going to continue using professional pictures and virtual tours even after the pandemic.

Virtual Property Showings 

Open houses have been a long-standing tradition in the sale of homes, and they will probably always be a part of the process. However, the pandemic has shown that virtual showings have become equally popular.

Virtual house tours through 3D videos have been a huge hit among homebuyers, especially because it allows them to narrow down their choices before driving for hours and visiting a property in person. Thanks to the evolving technology, gone are the days of sluggish 3D tours that won’t load properly.

3D tours today are incredibly realistic and immersive, making them the future of real estate marketing. Potential buyers can now take a virtual walk through a property and get an in-depth view from anywhere, any time. This has proven to be a boon for homebuyers who live a busy lifestyle and can’t manage to spend several hours every week house-hunting.

What’s in Store for 2021 & Beyond?

When social distancing became the new normal, it increased the need to develop and implement contact-less technology in everyday life. Business models are now being powered by technological innovations that are tailored for clients.

The real estate industry has responded positively to these changes, which is quite visible from the way many processes have been digitized.

More and more states are creating online notarization and signature policies as well.

Talk to an Experienced Real Estate Attorney

A successful real estate transaction is more than mere preparing and signing the documents. Sellers as well as buyers alike may come across any number of hiccups during the process, such as financing, disclosures, dealing with title insurance and property owner association requirements, and findings during the property inspections.

If you are looking to sell or buy real estate, it is wise to speak with a real estate attorney who can ensure your rights are being protected and you know all the necessary details when making important decisions. Contact a real estate lawyer in your local area today.

bicycle accident

CDC Reports an Increase in Bicycle Injuries and Deaths for Adults

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During our recent COVID-19 shutdown, many Americans decided they would spend more time outdoors. After all, there were no restrictions on getting exercise, and with many offices shut down, the extra time and a need to stay healthy with exercise meant more outdoor activities. But there has been a corresponding increase in the number of severe injuries and deaths among adult bicyclists.

Outside Magazine estimates 675 bicyclists died in 2020, even as there was a sharp reduction, by as much as 41 percent, in the amount of automobile traffic on our roads.

That is only a slight drop from the deadliest year for bicyclists, 2018, when 871 adult bicyclists were killed, according to the National Highway Traffic Safety Administration (NHTSA).

A cyclist is no match for an automobile, especially as many vehicles are now larger SUVs being driven recklessly by someone checking their cell phone.

Most patients treated in the emergency room for a traumatic brain injury (TBI) recover; however, some patients have ongoing symptoms of emotional, cognitive, and behavioral complications.

In a newly released report, the Centers for Disease Control and Prevention (CDC) reports that bicycling leads among sports-related injuries in the most significant number of emergency department visits for TBI. The CDC report tracked the number of emergency room visits between 2009 and 2018, collecting data on almost 600,000 ER visits.

The CDC estimates that in 2019, there were nearly 61,000 TBI-related deaths. A fall to the sidewalk, collision with the vehicle, or any impact to the skull result in a TBI. Falls lead to almost half of TBI-related hospitalizations, reports the CDC.

The rates of head injuries for adults on bikes were already of concern.

Between 2009 and 2018, there were nearly 600,000 emergency room visits for bicycle-related TBIs.  Gender was also a factor. Perhaps not surprisingly, males were three times more likely than females to end up in hospital emergency departments with traumatic brain injuries (28.8 and 9.2, respectively).

Most bicycle crashes with a motor vehicle occur within one mile of the biker’s home.

The Good News – Childhood Injuries from Bicycles

There is some good news to report about TBI incidents during this period.  During the same time, there has been a sharp decline in the rates of head injuries among children riding bicycles.

The rate of emergency room visits for TBI decreased by almost half among children age 17 and younger. That far exceeds the improvement for adults, which fell by only 5.5 percent. That means children’s head injuries declined at a rate nine times greater than adult bicycle-related head injuries.

An improvement is seen in severe head injury rates among children ages 10-14. It’s estimated that bike helmets reduce the risk of head injury by as much as 85 percent and brain injury by 88 percent. The CDC attributes the improvement in head injury to expanded comprehensive bike safety interventions such as helmet use, dedicated bicycling lanes in cities protecting cyclists from traffic, and improving compliance with traffic laws.

In the future, more focus is need to improving roads with a focus on pedestrian and bicycle safety.

Helmet Use

Helmet wearing alone is believed to be responsible for a 20-55 percent reduction in bicycle-related head injuries and TBIs.

Bicycle helmets alone are not designed to prevent a concussion, but they will help reduce the risk of a head injury and a traumatic brain injury (TBI).

Considering the injuries associated with bicycles, using the correct bike helmet can absorb much of the impact during a fall or collision that the skull or brain might take without a helmet, however, not just any helmet. The standard for a safe helmet that the Consumer Product Safety Commission (CPSC) issues must be stated in the label found usually on the liner inside the helmet.

Besides wearing a helmet, it’s also essential to make sure it fits correctly, which means it should be snug and free of any cracks or missing parts or pads. The chin strap should be in place. The manufacturer’s instructions accompany any new helmet.

The CDC concludes more education about bicycle safety is needed and primarily targeted at the male rider, especially as more Americans are deciding to commute to work on bicycles.

The CDC study appears in the journal Morbidity and Mortality Weekly Report, published May 13th.

CPSC

Meanwhile, the Consumer Product Safety Commission (CPSC), in its recent report on COVID-19-related hospital emergency room visits, found overall, during much of 2020, emergency department visits for relatively minor injuries decreased 41 to 50 percent while severe injuries requiring hospitalization decreased only one percent.

Bicycle-related injuries had a slight increase among all injuries, but a 21 percent jump among those ages 40 and above compared to the previous year.

In 2020, not unexpectedly, organized sports-related injuries saw a dramatic decrease, however, there was a 39% increase in 2020 from injuries related to skateboards, scooters, and hoverboards. Waterskiing, chainsaw injuries, hot tubs, and fireworks also saw a substantial jump in the number of injuries from the year before.

There was also an increase in patients who died in emergency rooms due to product injuries rising from 5,045 in March 2020 to 5,549 in September 2020.

If you or a loved one got injured or killed in a bicycle accident that was someone else’s fault, get in touch with a local personal injury lawyer to discuss your rights and legal options.

 

Belviq Litigation

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According to the Centers for Disease Control and Prevention CDC), it’s estimated that at least one-third of the U.S. population is obese, measured by the BMI or Body mass index scale.

For many, the task of losing weight is just too challenging, so a drug that promised to help you regain a more normal weight sounded like a miracle.

Until it wasn’t.

Belviq was a weight loss drug approved by the Food and Drug Administration (FDA) in 2012. It promised to be a solution for obese people who also had weight-related complications such as high blood pressure, high cholesterol, or type 2 diabetes.

Belviq was the first-in-its class selective serotonin 5HT2c receptor agonist, which claimed to control the user’s appetite. It worked by activating serotonin receptors in the brain, telling the body that it was full as if they had just had a meal.

While the drug may have worked for some, it did not prove to be a miracle weight loss drug. In three trials of almost 8,000 patients, they lost an average of 3 to 5 percent of their body weight. For a 200-pound man, that translates to six to 10 pounds.

Then there was the other issue. In some users, it’s alleged to have caused cancer. Belviq is now off the market and the focus of an increasing number of product liability lawsuits.

Belviq is also known as lorcaserin HCI. It was prescribed to people who were technically obese; that is, they had tried several diets unsuccessfully. They may also have had comorbidities such as diabetes or high blood pressure. The drug came in two forms, the original and an extended-release, Belviq XR.

Both drugs are made by Arena Pharmaceuticals and manufactured in Switzerland with Eisai Inc. While Arena manufactured Belviq, Eisai was the exclusive distributor.

As of now, both companies are named defendants. The company insists the drug continues to have a positive benefit-risk profile, as demonstrated in more than 22,000 patients enrolled in more than 30 drug trials.

Eisai and Arena

The FDA requested Eisai voluntarily withdraw the drug in February 2020 due to the risk of cancer. The companies did so.

The agency determined that the risk exceeded the benefit after looking at a long-term study on Belviq, the Camellia-TIMI 61 trial.

There were 12,000 people enrolled in the five-year study, a randomized clinical trial at 400 sites in eight countries. Clinical trials are required to receive FDA approval.

Compared to the placebo, 7.7 percent of users developed cancer, while placebo users had a cancer risk of 7.1%. That is a slight risk, considered statistically significant.

The cancers included:

  • Lung Cancer
  • Colorectal Cancer
  • Pancreatic Cancer
  • Cancer along the Digestive Tract

The risk usually resulted from a six-month or longer use, and these were the only types of cancer noted by researchers. Patients were advised to stop taking Belviq and Belviq XR and seek alternatives for weight loss. Health care professionals and hospitals stopped prescribing and dispensing the medications.

The FDA’s relationship with the pharmaceutical industry is such that it prefers to strongly suggest that a drug be withdrawn rather than mandate it be removed from the market for fear of being sued.

Shortly after it entered the market, Public Citizen issued a warning about Belviq and the possible risk of heart complications. The companies were mandated to do post-marketing studies looking for potential heart problems. Instead, the trials did show that users developed cancer after taking Belviq for a while.

Even when it was approved, there were already studies linking the weight loss drug to an increase in cancer risk, but the FDA approved it anyway and required the manufacturer to monitor side effects post-market.

The similarities between Belviq and fen-phen are undeniable.

That appetite suppression drug was also pulled from the market in 1997 because of its link to fatal heart valve problems. Arena Pharmaceuticals submitted data to the FDA showing the agency heart problems were not a problem with Belviq if taken at a low dose.

Before that, Xenical, approved in 1999, and Meridia, both weight loss medications, were taken off the market when heart problems became apparent. It was that pattern that caused the FDA to reject the first Belviq application in 2010.

Litigation

Earlier in 2021, Eisai and Arena Pharmaceuticals attempted to have the design defect claims dismissed.

In one lawsuit filed in the Eastern District of Louisiana by plaintiffs Stephanie and Robert Fuller (case no. 2:20-cv-01675), they claimed that the companies fraudulently represented to regulators, the medical community, and the public that the drug was safe and effective for its indicated use.  They allege that problems with the drug were intentionally concealed from the public, and the medicine is responsible for Stephanie’s breast cancer.

On January 15, 2021, Judge Lance M. Africk agreed that the Fullers did not completely state their claim and granted the company’s motion to dismiss the manufacturing defect and breach of warranty claims.

However, the companies failed to have a design defect claim dismissed, and the case will continue in the same venue.

Litigation will focus on what the companies knew and when they knew about the weight-loss drug and the cancer risk. Aftermarket, the companies failed to follow through with studies to monitor the cancer risk. Failing to inform the public about the danger of Belviq resulted in a delayed recall, exposing many more patients to danger.

Eisai, Inc. is a Delaware corporation with a business headquartered in Woodcliff Lake, New Jersey. Arena Pharmaceuticals GmbH is a Swiss Corporation with a principal place of business in San Diego, California.

The bottom line is, as always, that the companies put profits before patients.

Patients are advised to proceed with standard cancer screenings, not special screenings, if they have taken lorcaserin.

At this time, cases are expected to be filed around the country.

Resources:

Eisai media room https://eisai.mediaroom.com/2020-02-13-Eisai-to-Voluntarily-Withdraw-BELVIQ-R-BELVIQ-XR-R-in-the-U-S

FDA Voluntary Request https://www.fda.gov/news-events/fda-brief/fda-brief-fda-requests-voluntary-withdrawal-weight-loss-medication-after-clinical-trial-shows

AARP https://blog.aarp.org/healthy-living/new-weight-loss-pill-5-things-you-should-know

courts during covid-19

Are the Courts Ready for Business as Usual after Covid-19?

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In early 2020 as the Covid-19 pandemic began to sweep across the US, unprecedented mitigation efforts were implemented to “flatten the curve” and slow the spread of the novel coronavirus. Social distancing requirements, nonessential business closures, and stay-at-home/shelter in place orders disrupted every area of our society, including the legal industry.

The court schedule slowed to a crawl, and for the first time ever, the Unified Judicial System went live with virtual court hearings in Alabama in late March. Most courts suspended jury trials during the lockdown, and only emergency hearings were allowed. Not surprisingly, this created a major bottleneck in an already strained court system.

What few of us realized in the early days of the pandemic was that the coronavirus was not going away anytime soon. Phased-in court reopening plans for the summer and fall were disrupted by a second-wave outbreak that took us well into the winter months, forcing many courts to revise their plans and continue limiting jury trials.

It has been more than a year since the pandemic began, and our country is still dealing with the effects of the deadly Covid-19 outbreak. We are finally starting to see significant drops in case numbers, and although new variants of the virus still pose a threat, we are cautiously optimistic that things can return to normal soon.

Light at the End of the Tunnel: But Are the Courts Ready?

As the situation improves, most Alabama courts are finally resuming a full in-person schedule or something close to it. But unfortunately, the damage that the extended Covid season has inflicted on the system will be felt for some time to come. The bottleneck created by the months-long limited court schedule is not likely to clear up anytime soon, and it is expected that there will be significant delays in the progress of cases for at least the next 12 to 18 months.

One of the difficulties that many attorneys are running into is an issue that many other industries have faced during the pandemic – supply chain problems. More specifically, as the number of cases ramp up, expert witnesses are in such high demand right now that many of them cannot be scheduled until several weeks or even several months out. As we know, the testimony of expert witnesses can often make or break the success of the case, so their lack of availability poses a major problem for parties who are pursuing litigation.

Mediation and Arbitration: Practical Dispute Resolution Tools for Unprecedented Times

With the lengthy anticipated timeframe to complete a court trial in the aftermath of Covid-19, it is wise for litigators to consider an alternative approach. Toward that end, mediation and arbitration are tried and tested forms of alternative dispute resolution (ADR) that provide several potential benefits for the parties involved.

  • Mediation: Mediation is essentially a form of negotiation facilitated by third-party mediator and held in a neutral setting. The process is private and confidential, meaning the details of the case never become part of the public court record. While the process is facilitated by a neutral mediator, a settlement can only be reached if all parties agree to it. This gives participants more control over the process and allows for more creative resolutions that would be very difficult to achieve in a court setting. Mediation works very well for business disputes, personal injury claims, family legal matters, and virtually any other type of civil case. Some criminal cases can be mediated as well.
  • Arbitration: Arbitration is similar to mediation in that both are private proceedings that are conducted outside of the court process. The main difference between the two is that the arbiter usually has the authority to decide the case based on its merits, unless the parties go to non-binding arbitration. Arbitration is commonly used to resolve commercial disputes, and arbitration clauses are often written into commercial contracts in the event that a future dispute arises.

Even during normal times, mediation and arbitration have been increasingly preferred methods for resolving various types of legal disputes. These processes are very affordable compared to litigation, and because they are done privately between the parties, they can be completed in far less time than a lengthy trial that must adhere to the court calendar. With the extended court delays and “supply chain” issues brought on by Covid-19, it is more important than ever for parties that are involved in a legal case to consider mediation or arbitration as alternatives to resolve their dispute. 

Are Employers on the Hook for Adverse Reactions if They Mandate a COVID Vaccine?

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As the United States starts to recover from the COVID-19 pandemic and return to something resembling normalcy, questions swirl about the variety of COVID-19 vaccines available. In particular, many employees wonder about the legality of requiring COVID-19 vaccinations and what happens if you suffer an adverse reaction.

Learn more about current guidance on this topic, and if you’re looking for assistance with a workplace injury claim, contact an attorney in your local area.

Is the Vaccine Work-Related and a Condition of Your Employment?

First, you have to ask the question: is the vaccine a condition of your employment? If you are required to get the vaccine to go to work, then any subsequent adverse events are work-related. This means that any adverse event suffered by an employee after a mandatory vaccine becomes part of the safety record. This is true whether you got your vaccine from a government facility, standalone clinic, or as part of a vaccine clinic at work.

Recordable Adverse Reactions

Recordable adverse reactions are defined under OSHA rules, which require employers with more than 10 employees to track work-related illnesses and injuries. The criteria for a recordable event is described under 29 CFR 1904.7 under OSHA laws.

Per OSHA, an event is considered recordable if it results in one of the following:

  • Death
  • Days off of work
  • Restricted work abilities
  • Transfer to another job
  • Medical treatment beyond general first aid
  • Loss of consciousness

Even if none of those criteria are met, an event may still be recordable if it results in a significant injury or illness as diagnosed by a physician or other licensed healthcare provider.

How Employers Are Responding

This guidance from OSHA, which was released on April 20, 2021, was greeted by a flurry of disapproval from contractors. They believe it is in direct contradiction of the government’s stated goal of getting as many people vaccinated as possible, as it gives employers incentive not to require the vaccine. They claim that it does the opposite and puts employers at risk for workplace injury claims if they do require the vaccine, even if they do so with the goal of protecting employees and consumers.

Quite a few contractors did require the COVID vaccine as part of returning to work. However, a substantial number of them are now changing course and simply recommending the vaccine for employees. This may drop vaccine rates and lead to community spread, which many employers have spoken out about.

This also raises questions for contractors working in certain areas. For example, those doing construction or remodeling work in a hospital may be at direct odds with the facility they are working on. It’s likely that the facility will house at-risk individuals and, as a result, require that all workers be vaccinated. This puts contractors in a bad position where they have to fulfill an obligation both to their employees and to their clients.

Staying On Top of Future Changes

Since this news is still very recent, it’s important to remember that this matter is far from settled. As has been the case since the start of this pandemic, everything is new and subject to change. Today, employers seem to be on the hook for adverse reactions if they require the COVID vaccine. However, that could change as new research comes out or there is significant pushback from employers across different industries. It is crucial for employees and employers alike to stay aware of changing OSHA recommendations and use those recommendations to better guide their decision-making process.

In particular, the construction industry is seeking further information and guidance regarding their vaccination requirements. In fields like this, liability and risks are considerably different than they are in other fields, and so vaccination standards may be different.

OSHA expects the COVID-19 emergency safety standard to be released in the latter half of 2021. It remains to be seen whether the standards will be the same as the current guidance, build on it, or completely override it.

If you suffer a workplace injury or illness, it’s important to explore your legal options. Find a workplace injury attorney in your area to get started.