Fifth Circuit recently reversed a district court’s decision not to allow the
attorney-client privilege. In Exxon Mobil Corp. v. Hill, et al., No. 13-30830 (5th Cir. May 6,
2014), the Fifth Circuit permitted assertion of the attorney-client privilege
for a memorandum from an attorney to a client in the course of business
negotiations for a matter that had potential legal implications down the road.
Plaintiffs bringing product liability or toxic tort lawsuits must typically show that use of a defendant’s product or exposure to a defendant’s chemical caused them to suffer an injury. Some courts, however, have allowed plaintiffs without a present physical injury to recover costs for future “medical monitoring” for a latent disease related to an exposure to a defendant’s product or chemical. These courts have found that medical monitoring is either a cause of action or a remedy for an existing tort.
The constitutionality of damage caps is an important issue for health-care providers, liability insurers, and attorneys who represent them. Health-care provider groups and liability insurers see damage caps as an effective way of limiting their potential exposure, thereby making the cost of doing business more predictable. However, states around the country continue to propose and to debate the need for damage caps as well as the constitutionality of the damage caps already in place. These debates undermine the ability of legislatures to pass damage caps where they do not already exist and limit the effectiveness of the caps that are in place because health-care providers and liability insurers question whether the caps can be relied upon.
This article attempts to provide basic information about the nature of damage caps, a summary of the damage caps that are currently in place, and a summary of the most common constitutional challenges.