The U.S. Food and Drug Administration (“FDA”) is one of the country’s oldest consumer protection agencies. The FDA’s purpose is to promote and protect the public’s health by trying to ensure that safe and effective products reach the market; to monitor products for continued safety after they are in use; and to help the public get accurate, science-based information regarding health issues. The Center for Devices and Radiological Health (“CDRH”), a division of the FDA, must approve a medical device before it can be marketed to the general public. The CDRH is responsible for testing and approving every medical device to ensure that it is both safe and effective. The CDRH may discover a defect that prevents approval. If the device is approved and a defect is then discovered, the FDA may request a voluntary recall by the manufacturer or issue a recall if the manufacturer refuses to comply.

Injury or loss may be caused by a medical device. An individual person who has been injured using a medical device may be able to sue the manufacturer, wholesaler, company or person that sold the product for damages. A lawsuit can be brought against any person or company that was involved in producing or distributing the medical device. There are three main categories in which evidence can be shown to prove a device is defective:

• Design defect-There is a flaw in the conceptual design of the device.
• Manufacturing defect-There is a specific defect which occurs during the manufacture of the device.
• Warning defect-The device is not accompanied by adequate or reasonable warning or there has been a failure to educate the consumer at to potential and latent dangers regarding the device.

In some cases, the manufacturer of a medical device will clearly inform the physician community about the risks of a device and it then becomes the obligation of the physician to communicate those risks to the patient.

These cases are subject to a statute of limitations which is the fixed period of time in which a person must file a claim. The statute of limitations usually begins when the patient’s illness or injury is discovered, rather than when the injury happened. If a manufacturer, wholesaler or company that produced or sold the device is found at fault, a court can order them to pay damages. Depending on the state where the injury occurred, the following damages may be allowable:

• Economic damages: Compensation for monetary losses such as past and future medical expenses, loss of past and future earnings, loss of employment or business opportunities.
• Non-economic damages: Compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life.
• Punitive damages: Damages awarded for the purpose of punishing a party for intentional or reckless behavior or actions motivated by malice.

By: Melissa Neiman, M.D., J.D.
http://www.mneiman.com
PROFESSIONAL PROFILE:

I am a Board certified neurosurgeon and licensed attorney authorized to practice medicine and law in Texas. During my fourteen year private practice of neurosurgery I was involved in medical malpractice litigation as a consultant, case reviewer, and expert witness. As a result of that experience I decided to become an attorney. Since completing law school I have been practicing law and using my medical background in numerous areas including, inter alia, medical malpractice and healthcare fraud. My combined medical and legal experience places me in a unique position to offer a wide range of medical-legal consultation to a variety of clients.

Being sued can be an unsettling and frightening experience. However, it you are not careful, it can be a haunting one, even when you win. That is because court records about the lawsuit are available to the public - and in many cases over the internet.

A search of court records, which is an increasingly common part of background checks for jobs or housing, can reveal details of a lawsuit that are embarrassing or unfairly prejudicial. California law provides some protections from being unfairly prejudiced by a civil suit that was dismissed or without merit, but you often need to be proactive in protecting your good name.

There are different rules for different types of cases and different rules for who is providing the information about you. This three part series will examine :
(1) how to seal information from a typical law suit,
(2) the special rules that apply to unlawful detainer actions (evictions), and
(3) what can and cannot be reported and by whom.


To understand how the records of a dismissed court case can cause haunt you consider the following scenario:

Jane, a software engineer, quit her job when she became uncomfortable with her employer over-billing clients. After she quit, Jane told the client about the over billing. Her former employer was infuriated and filed a lawsuit against Jane that claimed Jane defamed the company, stole company secrets and violated an agreement not to quit and compete against the employer. The court case was dismissed when the judge found the lawsuit was without merit.

Jane, who is now looking for a new job and is one of two finalists for a position with a local high-tech company. The company, which is concerned about protecting its technology secrets, performs a background check that searches surrounding counties for civil and criminal court cases. The company sees that Jane was recently sued by her former employer for stealing trade secrets. The company decides that Jane is not the best fit for the job. While Jane cannot prove it, she suspects that the record of the lawsuit cost her the job.

Jane could have eliminated the risk of being unfairly prejudiced if she was proactive and asked the court to seal the record of the dismissed lawsuit. California Court Rule 2.550 provides the constitutional standard and procedure a court will use when someone requests to seal a court record that would otherwise be public. Because of strong First Amendment support promoting public access to court records, sealing a record is an uphill battle.

California courts will use a balancing test in deciding whether or not to grant a request to seal a record. The court weighs the First Amendment right of public access to court records against any “overriding interests” that support sealing the record to determine if the request should be granted. While the Rules do not define what may qualify as an “overriding interest,” a person’s interest in housing or earning income definitely qualifies.

In the scenario above, Jane could have argued to the court that her “overriding interests” included protecting her ability to obtain a job and earn a living. Her argument would be strengthened because the claims in the dismissed lawsuit are taken very seriously by her prospective employers. The court would seal the record and prevent it from ever being disclosed if it found that the threat of potential harm to Jane’s career prospects outweighed the public’s interest in knowing about the dismissed lawsuit.

If you do not have the time or resources to petition a court to seal the record, you might be able to take advantage of special rules based on the nature of the case, or you may even be able to prevent a credit agency from reporting it. These options are discussed in part 2 and part 3 of this series on Keeping Old Law Suits From Haunting Your Future.

By: Mathew Higbee
By Mathew Higbee, the founder of RecordGone.com, a law firm that specializes in record clearing. Law clerk Melanie Bronny contributed to this article. court to seal the record.

Lemon laws are U.S. state laws that offer remedies to consumers for products such as boats, cars, computers, motorcycles, refrigerators, RVs, etc. that frequently fail to meet the set standards of quality and performance. These products are commonly referred to as “lemons”. There are both state and federal lemon laws that protect the interests of consumers. The rights afforded to consumers by lemon laws may exceed any warranties expressed in purchase contracts.

The California Lemon Law states that if a purchased vehicle turns out to be defective in the warranty period rendering it unfit for use or inflicts some serious injuries to the user, then the consumer has every right to ask for refund or replacement.

If you purchase or lease a vehicle in California and then discover that it has defects that substantially affect its safety, use or value, California State Lemon Law may help you gain satisfaction from the vehicle's manufacturer. Under the California Lemon Law, new cars, leased cars, pre-owned cars, RV's, motor homes, motorcycles, boats and other consumer vehicles qualify for protection if they were accompanied by a written warranty. While the law cannot help everyone with a "lemon", and some people may have to hire an attorney to get their cases resolved, the law does create important rights for the consumers.

Circumstances in which the consumers seek protection under California Lemon Law:

The defect of the product is a manufacturing defect
The vehicle has been repaired at least four times and still the defect persists.
The defect is detected but not repaired within the period of 18 months or 18,000 miles.

There are several steps that the consumer must take to effectively use the lemon laws of California State. (1) Keep a detailed repair record, complete with dates of the repair attempts, when the vehicle was out of service, and a list that explains exactly what the trouble is, such as "cutting off" or "stalling"; (2) send a certified, return receipt requested letter to the manufacturer's consumer relations office and the manufacturer's nearest regional office listed in your manual; (3) after you have followed the previous steps and met the criteria as defined by your state's lemon law, request a refund or replacement, less depreciation, of the vehicle.

Differing from some laws in other states, the California Lemon Law allows unsatisfied car buyers to sell the defective vehicle, or to trade it in for a different automobile. To preserve the consumer rights outlined in the California Lemon Law, vehicles with warranty defects offered for sale must be accompanied by a written disclosure that declares the owner is aware of the automobiles defects (a written statement from a professional inspector is better), and the vehicle's manufacturer needs to be notified of the unsatisfied buyer's intention of sale or trade.

By: Ronaldo Wagh
Visit http://www.LemonLawAmerica.com for more information on State Lemon Laws and consumer protection tips from the well experienced attorney’s.

An affordable and very effective method to shield your assets from attack is to transfer your rental property to a Limited Liability Company (LLC). Holding title to investment property through an LLC limits the liabilities of the business to only those assets held within the LLC. In the same way as shareholders of a corporation are shielded from liability, a properly formed LLC will guard its owners from lawsuit liability, including liability from acts of its employees and agents.

There are several significant benefits the California LLC can provide to you or your investors. The LLC creates a risk barrier which encourages apartment ownership, yet shields the owner's personal assets from lawsuits and seizure. The double taxation and extensive formalities inherent with traditional corporations are eliminated. When legal action such as an eviction is required against a tenant, it is the LLC, rather than the individual owner, that pursues the claim. In addition, the landlord’s privacy is enhanced because rent checks are made payable to the LLC, lease agreements are between the LLC and the tenant, and correspondence comes from the LLC.

While high limit liability insurance is important, it is still not adequate to protect the property owner(s) from loss of assets. Most insurance policies contain exclusions for mold, lead-based paint and other environmental hazards. Additionally, they rarely cover judgments arising out of discrimination claims. Even with expensive high-limit insurance coverage, a major incident such as a fire or balcony collapse resulting in numerous claims, could create liability far exceeding your policy limit. Even with the best of intentions regarding your tenants, the LLC has become a necessary tool in limiting liability not only for legitimate claims, but also for those in which only a brainwashed jury could see merit. The deductible $800 annual State franchise tax on LLCs is small compared to the huge benefit provided.

In recent years, the State of Nevada LLC has been touted as an asset protection alternative to the California LLC, since the annual tax is relatively small compared to California. However, in most cases there is little or no financial benefit to forming a Nevada LLC for your California rental property, because the ownership of the California property necessarily means business is transacted in California. As such, the Nevada LLC also must be registered with the California Secretary of State and pay the initial California registration fee and $800 annual franchise tax, along with California income tax. (Ca. Rev & Tax Code Sec. 17941, Ca. Corp. Code Sec. 17050). For business ventures other than California real estate, where the principal business is not transacted in California, the Nevada LLC/Corporation may be an attractive option for investors.

Additional benefits of the LLC include the ability of LLCs to utilize 1031 exchanges and exemption from the 3 1/3 withholding on sale of real estate for multi-member LLCs. Furthermore, a separate federal tax return is usually not required for single-member LLCs, including those owned by a husband-wife or living trust, and the property transfer to the LLC is almost always exempt from tax reassessment. And the LLC will work very well in conjunction with a living trust to simultaneously protect and preserve estate assets.

Many apartment owners have executed a living trust in order to provide for the distribution of their assets after they die, as well as to avoid huge probate costs, reduce or eliminate estate taxes when they die, and prevent court control of their assets should they become incapacitated. The living trust, however, will not protect against lawsuits. If an apartment building is held directly by a living trust, then all other assets in the trust will be exposed to lawsuit liabilities generated by the building. A much better approach is to place your apartment in an LLC, creating a liability barrier in order to protect all of the other trust assets. The LLC membership interests may then be safely added to the trust.

As far as multiple investments are concerned, it is better to have a separate LLC for each rental property so that liability arising from one property cannot attach to any other properties. Even single-family homes with tenants should be held by their own LLC. If paying $800 annually each for multiple LLCs is not a viable option, then properties could be grouped together. Owning a total of six investment properties with three in one LLC and three in the other would afford significantly more protection than owning all the properties in one’s personal name. For those investors wishing to transfer multiple properties with annual gross rental receipts totaling more than $500,000 into a single entity, the use of a limited partnership should be considered. Both the limited partnership and the LLC must pay the $800 franchise tax, but the LLC must pay an additional gross receipts tax if the gross annual receipts exceed $250,000.

Because landlords are subject to virtually unlimited lawsuit exposure and financial liability arising out of ownership of their rental property, they must take advantage of every lawful means to protect their assets. Once a competent attorney prepares and files the array of legal documents required for the initial formation of the LLC, personal assets will no longer be reachable to satisfy any debts or judgments against the LLC.

By: Michael Elson
Michael K. Elson is the principal of The Law Offices of Michael K. Elson and specializes in business formation, asset protection and estate planning, including the formation of corporations, LLCs, and living trusts. He may be reached at (818) 763-8831 or (800) 781-7038 or by visiting http://www.LimitLiability.com.

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The information contained in the above post is not intended as a source of legal advice. You should not act upon or rely on information in this or any other post without the advice of competent legal counsel.