The Jere Beasley Report June : 2020

View Archive Subscribe

CAPITOL OBSERVATIONS

Navan Ward Named President-Elect Of American Association For Justice

Beasley Allen lawyer Navan Ward, Jr. has been selected to serve as President-Elect of the American Association for Justice (AAJ). The election result will be formally announced at the organization’s annual convention in July. This will be Navan’s fifth consecutive year serving on the Executive Committee of AAJ.

The AAJ is dedicated to preserving the civil justice system and making sure that powerful special interests are held accountable when they engage in misconduct or negligence. Navan had this to say:

It is an honor to continue serving such a great organization that remains committed to ensuring access to justice to everyone in our country. This is a fundamental value in our nation and one that should never be taken for granted. The American Association for Justice stands ready to defend the justice system because consumers who have been injured through no fault of their own should have the same level of access to justice as even the most powerful corporations.

Navan works in our Mass Torts Section, where he is the firm’s lead attorney on the metal-on-metal hip implant litigation and proton pump inhibitor (PPI) litigation. He is in our Atlanta office. Navan serves on the Plaintiffs Steering Committee (PSC) for the DePuy “ASR” Hip Implant Recall Multi-District Litigation (MDL) and was appointed as Co-Lead Counsel for the Plaintiffs Executive Committee (PEC) in the Biomet M2a Magnum Hip Implant Products Liability MDL.

Navan has been instrumental in assisting with the verdicts and global settlements against major hip implant manufacturers, including Johnson & Johnson / DePuy for $4.057 billion, Howmedica Osteonics Corporation / Stryker for over $1 billion, and Biomet Corporation for more than $250 million, as well as additional confidential settlements involving other metal-on-metal and/or modular-neck hip components. He has also been appointed to the PEC for the PPI MDL litigation.

In his practice Navan has also handled personal injury and wrongful death cases including those involving nursing home abuse and neglect, as well as trucking crashes. Overall, Navan has obtained more than $360 million for the specific clients that he has represented in the various areas of his practice.

In 2017, Navan received the AAJ Minority Caucus Stalwart Award for his dedicated years of service to the organization. It also awarded him the AAJ Distinguished Service Award in 2012 and 2015 along with its Wiedemann & Wysocki Award in 2014. He has been regularly selected to the Best Lawyers in America list, the Super Lawyers list and has been named to the LawDragon 500 Leading Plaintiff Consumer Lawyers, which is the 500 best attorneys across the nation in this category.

Navan previously served in other AAJ leadership positions including as a past chairman of the Minority Caucus, past chairman of the Diversity Committee and a member of the Board of Governors. He is a former Alabama State Bar delegate for the American Bar Association, past president of the Alabama Lawyers Association, the Alabama State Bar’s Young Lawyers Section, and the Montgomery County Association for Justice. Navan was a member of Leadership Montgomery’s Class XXI, a former chairman of the Father Walters Charity Golf Tournament, and a member of the Alabama Law Foundation Grant Committee.

AN UPDATE ON THE TALC LITIGATION

J&J Discontinues Sales Of Baby Powder In U.S. And Canada

In a major win for consumers and for Beasley Allen clients, Johnson & Johnson (J&J) announced May 19 it will stop selling its talc-based Johnson’s Baby Powder in the United States and Canada, blaming mounting lawsuits for lagging sales. The company faces more than 16,000 lawsuits in the U.S. alleging its talc caused consumers to develop ovarian cancer and mesothelioma, a rare form of cancer linked to asbestos exposure. Ted Meadows, who heads up Beasley Allen’s Talc Litigation Team, had this to say about the development:

By removing Johnson’s Baby Powder from the market, J&J did what they should have done decades ago. Now J&J should accept responsibility for the thousands of women who are suffering or who have died as a result of ovarian cancer caused by their talcum powder products. Despite this news affecting the North American market, it is troubling that J&J’s announcement calls for continuing sales of its talc-based Baby Powder in other countries. The U.S. has the best consumer protection in the world through our jury system. It is unfortunate that women and families in other countries will continue to face the devastating diagnosis of ovarian cancer because J&J refuses to take the same action without juries to force much-needed responsibility. We plan to continue bringing these claims before juries in courts across the nation.

Johnson’s Baby Powder was introduced in 1893 and promoted as being safe for babies. The company later marketed its Baby Powder and Shower to Shower body powder for women to use in their genital area for freshness. Since the 1970s, company documents make clear that Johnson & Johnson was aware that the talc it used to make its body powders often contained asbestos, fibrous talc, and heavy metals such as chromium and nickel, all known carcinogens. Yet, the company continued to sell its talc-based products without warning consumers of the risk.

Johnson & Johnson has known for at least 40 years about the cancer-causing potential of its talcum powder products. Scientific studies demonstrate that 10% of all ovarian cancer deaths or 1.400 ovarian cancer deaths each year are caused by the genital use of talcum power. After many years of callously refusing to act, J&J has finally removed this iconic brand from the market and, as a result, many lives will be saved.

Leigh O’Dell, Beasley Allen lawyer and co-lead counsel for the talc federal multidistrict litigation (MDL), says:

Johnson & Johnson has known for years about the cancer-causing potential of its talcum powder products. Finally, it has removed this iconic brand from the market and, as a result, many lives will be saved in North America. J&J should remove Johnson’s Baby Powder from shelves around the world, not just the United States and Canada. Selling Baby Powder to women in Africa, Central and South America, and Asia puts women at needless risk for a disease that sadly results in death for nearly all of its victims.

Over the past seven years, Johnson & Johnson has been hit with billions of dollars in compensatory and punitive damages from juries who found that Johnson & Johnson’s talcum powder products caused women to develop ovarian cancer or caused individuals to develop mesothelioma. Through it all, Johnson & Johnson has maintained that its talc is safe.

Last year, J&J recalled about 33,000 bottles of the company’s Baby Powder in the United States after testing by the U.S. Food and Drug Administration (FDA) found asbestos in some bottles of the baby powder.

In spite of all the evidence and the many studies against it, J&J has maintained that its talc is safe. The pulling of a highly successful product from a monetary perspective from the market tells a totally different story to the public. The lawsuits against J&J exposed the company’s wrongdoing and J&J bosses pulled the baby powder from the market. This is a prime example of the judicial system doing the job that should have been done by the FDA.

Ted Meadows and Leigh O’Dell have led a dedicated team of Beasley Allen lawyers and support staff in the Talc Litigation that has been ongoing for more than seven years. As stated above, Ted heads the Litigation Team and Leigh serves as co-lead counsel for the talc federal MDL. Our lawyers are representing thousands of women who developed ovarian cancer after using J&J’s baby powder and body powder. While this recent development is a major victory, the battle is not over. We at Beasley Allen are dedicated to fighting this battle to the very end.

Sources: CNBC, Law360, Bloomberg Law, The Wall Street Journal and The New York Times

Talc MDL Judge Rules To Allow All Plaintiffs’ Expert Witnesses To Testify Following Fall Daubert Hearings

In an earlier edition of this Report, we wrote that Beasley Allen lawyers had participated in Daubert hearings last July in the Talcum Powder Multidistrict Litigation (MDL). These hearings allowed each party to formally challenge the testimony of each other’s proposed expert witnesses. Over a two-week period, eight potential expert witnesses (five for Plaintiffs and three for Defendants) were challenged and questioned by opposing parties as well as the judge regarding their opinions, qualifications, and methodology.

We knew this decision was critically important to the outcome of the Talc litigation. However, none of us at Beasley Allen realized the immediate and drastic effect it would have on J&J. The recent action discussed at the outset of this section tells it all. J&J would never have abandoned their baby power product had the order from the MDL had not happened.

In a 141-page decision entered on April 27, Judge Freda Wolfson ruled that each of the five challenged Plaintiffs’ experts would be allowed to testify moving forward. The experts who will be allowed to testify on behalf of Plaintiffs include Dr. William Longo and Dr. Anne McTiernan, who testified before Congress regarding talc safety last year. Dr. McTiernan, along with Dr. Daniel Clarke-Pearson and Dr. Arch Carson, will be allowed to testify regarding their opinions that talcum powder can cause ovarian cancer. Dr. Longo will be allowed to testify that talc contains asbestos and fibrous talc. Additionally, Dr. Ghassan Saed will be allowed to testify that Johnson’s Baby Powder causes inflammation and oxidative stress at the cellular level and that inflammation and oxidative stress are associated with ovarian cancer. Judge Wolfson also ruled that the three challenged Defense experts would be allowed to testify.

Although Judge Wolfson did place some limits on the testimony of Plaintiffs’ experts, her overall decision to allow Plaintiffs’ general causation and testing experts to testify indicates that there is reliable scientific support for Plaintiffs’ allegations. Despite Johnson & Johnson’s years-long claim that Plaintiffs’ allegations are based on “junk science,” Judge Wolfson conducted a detailed evaluation of the methodologies of each of the experts and found that they satisfied the Daubert standard.

This decision by Judge Wolfson is seen by all independent observers as a significant setback for Johnson & Johnson and is also anticipated to impact talcum powder litigation currently pending in state courts across the country.

Although Beasley Allen lawyers had planned for several state court trials in 2020, the COVID-19 pandemic has caused many courts to indefinitely postpone jury trials. Talc trials scheduled for this summer in Philadelphia, Pennsylvania, and Atlanta, Georgia, have been postponed, but we are still preparing for a trial in East St. Louis, Illinois beginning July 6.

Obviously, the Daubert decision affects all cases in the MDL and these cases will now move forward with case-specific and liability discovery. Following the disclosure of case-specific information in 1,000 cases over the coming weeks, 30 cases in the MDL will be selected for further pre-trial discovery. Bellwether trial cases will be selected from those cases. Judge Wolfson has indicated her intent to conduct bellwether trials, but the schedule for those trials has not yet been decided.

Beasley Allen lawyers continue to investigate cases where women have been diagnosed with cancer following talcum powder usage. For additional information on these cases, contact Ted Meadows, Leigh O’Dell or Brittany Scott at 800-898-2034 or by email at Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com or Brittany.Scott@beasleyallen.com.

AN UPDATE ON THE OPIOID LITIGATION

Bellwether Trial Set For 2021 In Opioid MDL

U.S. District Judge Dan Aaron Polster, overseeing opioid multidistrict litigation (MDL), has selected two cases for a bellwether trial in 2021 to test claims that the nation’s largest pharmacy chains fueled the opioid crisis by dispensing painkiller prescriptions they should have known weren’t appropriate.

In a two-page order, Judge Polster designated cases from the Ohio counties of Lake and Trumbull as bellwethers, noting that those cases were recommended by the Plaintiffs’ Executive Committee in the sprawling MDL.

Pharmacy Defendants – including CVS, Walgreens, Walmart and Rite-Aid – earlier in the week objected to scheduling another bellwether trial, especially in northern Ohio, calling it unnecessary in light of other upcoming trials and extensive proceedings that have already occurred before Judge Polster in Cleveland.

Judge Polster was unmoved by the opposition and told the parties to come up with a case management schedule that contemplates a four-week trial in May 2021. He also directed the Plaintiffs in the two new bellwethers to make any amendments to their complaints by May 15.

“The court selected two counties to go forward, and now we’ll start the discovery on the dispensing information for those two counties and look forward to the trial in May of 2021,” Joe Rice of Motley Rice LLC, a top lawyer for the MDL Plaintiffs, told Law360.

Hunter Shkolnik of Napoli Shkolnik PLLC, counsel for the counties, said in a statement to Law360 that the counties “are proud that they have been selected” and that they “look forward to this trial against the chain pharmacies that helped fuel it.”

Judge Polster began looking for new bellwethers after the Sixth Circuit on April 15 struck dispensing allegations from a bellwether trial that’s set for November in Cleveland, leaving only allegations of improper painkiller distribution. Other bellwether cases with pharmacy Defendants in the MDL are heating up in Oklahoma and California federal courts.

Source: Law360.com

New York Attorney General Gets Green Light For Subpoenas Into Sackler Finances

On May 12, U.S. Bankruptcy Judge Robert Drain said that subpoenas from the New York attorney general into the finances of the Sackler family, owners of Purdue Pharma LP, can move forward. The judge authorized the state’s examination of the Sackers’ finances to proceed. Attorney General Letitia James had asked for the order in April, joined by the 24 other states who oppose a proposed settlement that would end 2,000 opioid suits brought by local governments, states and tribes. The Sacklers had agreed to pay $3 billion out of their own pockets in that settlement.

As previously reported, Purdue filed for Chapter 11 protection as part of the settlement agreement. Attorney General James said in a statement:

The opioid epidemic has ravaged American communities, while a single family has made billions profiting from this destruction. Just because Purdue Pharma has declared bankruptcy does not mean its owners deserve special protections under the law.

In late April, Attorney General James told the court that the Sacklers have delayed and resisted discovery requests into their financial information. The Attorney General said the Sacklers had produced few primary documents in the six months they have had to make voluntary disclosures about their finances. She also said the Sacklers want to redact information they deem irrelevant or personal, which would increase the cost of discovery.

Last fall, the New York Attorney General’s office said it had uncovered $1 billion in wire transfers by the Sackler family that appear to be an attempt to shield part of their fortune as they defended against myriad lawsuits alleging they fueled the opioid crisis.

The state had issued subpoenas in August to several financial institutions that Purdue does business with. Records from one unnamed financial institution alone show that the Sacklers transferred about $1 billion through family trusts and Swiss bank accounts, dating as far back as 2009, according to court filings.

At the beginning of May, Judge Drain told Purdue creditors that they can directly collect bank account information connected with the Sackler family. At a hearing on discovery issues in Purdue’s Chapter 11 case, Judge Drain said the creditors could question banks directly and work on ways to collect more of the information they say they need to determine if a proposed settlement with Purdue and the Sacklers over OxyContin sales is a good agreement.

During the May hearing, lawyers for the unsecured creditors committee and the ad hoc group of nonsettling states backed the complaints, saying that instead of the flood of information they had expected, they had received fewer than 6,800 documents. Many of the documents had either already been disclosed by Purdue or were public information.

The nonconsenting states are represented by Andrew M. Troop, Andrew V. Alfano and Jason S. Sharp of Pillsbury Winthrop Shaw Pittman LLP. The case is In re: Purdue Pharma LP, (case number 19-bk-23649) in the U.S. Bankruptcy Court for the Southern District of New York.

Source: Law360.com

CVS Unit To Pay $15 Million Over “Improper” Opioid Dispensing

CVS Health subsidiary Omnicare Inc. has agreed to pay the U.S. $15.3 million to settle claims that it improperly dispensed opioids and other controlled substances without a valid prescription to long-term care facilities. The U.S. Department of Justice (DOJ) announced the settlement on May 13.

Pursuant to the settlement, Cincinnati-based Omnicare agreed to pay a $15.3 million civil penalty and entered into an agreement with the U.S. Drug Enforcement Administration (DEA) that will require the company to increase its auditing and monitoring of the emergency controlled substances it supplies to long-term care facilities.

The matter was investigated by the DEA’s offices in Los Angeles, San Francisco, Seattle and Denver in conjunction with the U.S. Attorney’s Offices in the Central District of California, the Eastern District of California, the District of Colorado, the District of Oregon and the District of Utah, according to the DOJ. U.S. Attorney Nicola T. Hanna said in a statement:

Omnicare dispensed powerful opioids without valid prescriptions and failed to inform federal authorities of significant losses of opioids and other drugs. With the opioid crisis still a very real concern, every entity that handles dangerous drugs will be held accountable to ensure powerful narcotics are properly dispensed and not diverted to the black market.

CVS Health said that the matter did not involve any of CVS Health’s other businesses, including CVS Pharmacy, CVS Caremark or Aetna.

Omnicare operates “closed door” pharmacies that are not open to the public, but rather provide controlled substances to nursing homes and other long-term care facilities. The company makes daily deliveries of prescription medications to facility residents, as well as limited stockpiles of controlled substances to be dispensed to patients on an emergency basis. The “emergency kits,” which often include opioids that are commonly abused, must be tightly controlled and tracked, according to the DOJ, and the controlled substances can only be dispensed with a valid prescription.

Following its investigation, the government alleged that Omnicare violated the federal Controlled Substances Act in its handling of emergency prescriptions, its controls over the emergency kits and its processing of written prescriptions that were missing things like the prescriber’s signature. The government said the company allowed care facilities to use opioids from the kits days before doctors actually provided a prescription. DEA Acting Administrator Uttam Dhillon said in a statement:

Omnicare failed in its responsibility to ensure proper controls of medications used to treat some of the most vulnerable among us. DEA is committed to keeping our communities safe by holding companies like Omnicare accountable for such failures, while ensuring continuity of care and necessary access to emergency prescription drug supplies.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Beasley Allen’s “Opioid Litigation Team” includes Rhon Jones, Parker Miller, Ryan Kral, Rick Stratton, Will Sutton, Jeff Price and Tucker Osborne. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments and other entities, as well as individual claims on behalf of victims. If you need more information on the opioid litigation contact one of these lawyers at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, Parker.Miller@beasleyallen.com, Ryan.Kral@beasleyallen.com, Rick.Stratton@beasleyallen.com, William.Sutton@beasleyallen.com, Jeff.Price@beasleyallen.com or Tucker.Osborne@beasleyallen.com.

AN UPDATE ON THE JUUL LITIGATION

Beasley Allen Joins Firms Uniting To File Suit Against JUUL On Behalf Of NVMI

Beasley Allen Law, together with a coalition of law firms committed to helping school systems nationwide fight the youth vaping epidemic, has filed a lawsuit against JUUL Labs Inc. on behalf of North Valley Military Institute (NVMI). JUUL has marketed its addictive products to young people without warning them of the risks and created a new generation of nicotine addicts. The result is a public nuisance impacting school systems, forcing them to expend limited time and resources.

Joseph VanZandt, who leads the JUUL litigation at Beasley Allen, had this to say:

As a result of the vaping epidemic, NVMI was forced to hire additional counselors to help meet the needs of its students suffering from nicotine addiction issues. The District also continues to incur extensive costs to orchestrate outreach about the risks of vaping and nicotine addiction, to enforce restrictions to limit vaping in school and to develop and carry out procedures to collect and dispose of vape products among students.

North Valley Military Institute is a public college preparatory school in Sun Valley, California, that serves more than 600 students. Its mission is to develop leaders of character by providing a rigorous seven-year college preparatory program to promote excellence in the four pillars of academics, leadership, citizenship and athletics.

Despite having a limited budget and limited resources, NVMI has conducted educational workshops for parents and students about the danger of vaping, partnered with outside agencies and law enforcement to help students understand the dangers of vaping, posted signage throughout its campus, arranged for guest speakers on the topic of vaping, implemented peer mentoring programs, and implemented a robust counseling program to address the youth vaping epidemic in its school. These efforts have required significant diversion of time and resources and resulted in significant interruptions in the school’s mission of educating its students.

NVMI joins dozens of other school districts around the country who have filed lawsuits against JUUL related to the significant impact JUUL’s conduct has caused to schools and the educational process. The school is represented jointly by:

  • Joseph VanZandt and Beau Darley – Beasley Allen;
  • Tom Cartmell – Wagstaff & Cartmell, LLP; Kansas City, Missouri;
  • Kirk Goza & Brad Honnold – Goza & Honnold, LLC; Overland Park, Kansas;
  • John Fiske – Baron & Budd, PC – San Diego, California;
  • Rahul Ravipudi – Panish Shea & Boyle LLP; Los Angeles, California; and
  • Khaldoun Baghdadi – Walkup, Melodia, Kelly & Schoenberger; San Francisco,

California.

The complaint was filed on behalf of the North Valley Military Institute in the Superior Court of the State of California, County of Los Angeles.

Eight JUUL Antitrust Suits Joined Together By California Court

Eight lawsuits accusing JUUL Labs of striking an anti-competitive deal that saw a rival wind down its vape device business in exchange for an ownership stake in the vaping giant were related to each other by a California federal judge. U.S. District Judge William H. Orrick made the decision to connect the cases, but held off on sweeping them into the larger multidistrict litigation (MDL) against JUUL and onetime rival Altria Group while the court mulls whether antitrust cases belong in the MDL concerning JUUL’s marketing and sales tactics. Judge Orrick said:

That issue is more complex and is currently under consideration by me. For purposes of efficiency and until the issue of whether the JUUL MDL will encompass antitrust claims is resolved, I find that each of the antitrust cases identified above should be related to the lowest numbered Reece action.

JUUL is already defending more than 500 suits accusing the vaping giant of marketing its popular products to teenagers, and those claims have roped tobacco behemoth Altria into the litigation as well. Altria bought a 35% stake in JUUL back in 2018 for a whopping $12.8 billion, a deal that has since lost billions in value, and many of the MDL suits aim to hold the company partially liable for JUUL’s activities. That deal has played a prominent role in the litigation so far, sparking allegations that the tie-up was motivated by a desire on JUUL’s part to rid itself of a burgeoning rival in the vape arena.

The eight suits joined together by Judge Orrick all make similar antitrust claims against the smoking giants. The Federal Trade Commission has also gone after the companies, saying in an administrative complaint announced last month that the deal has stunted competition in the vaping industry. Judge Orrick has been considering whether to fold the antitrust suits, largely brought by consumers, into the larger MDL dealing with questions of product liability and teen sales.

Plaintiff Douglas Reece, who filed the first of the antitrust class actions that were before the court Thursday, has been pushing to have his suit included in the MDL, citing overlapping discovery from Defendants. But JUUL has been fighting to keep the matters separate, arguing there is no reason to combine litigation over two separate subject matters into one proceeding.

Reece is represented by Barrett Beasley of Salim Beasley; Michael M. Buchman, Michelle C. Clerkin, Joseph F. Rice and William H. Narwold of Motley Rice LLC and John Alden Meade of Meade Young LLC. The case is Reece v. Altria Group Inc. et al., (case number 3:20-cv-02345) in the U.S. District Court for the Northern District of California.

Source: Law360.com

JUUL Plans To Move From California To Washington D.C.

JUUL is moving its corporate headquarters from San Francisco to Washington, D.C. According to several sources, JUUL is moving its headquarters to be closer to federal regulators. JUUL also plans to lay off up to 3,000 employees. It further plans to significantly reduce JUUL’s marketing budget. These cuts were made across several departments, and all employees received a severance package. It is clear the company continues to make significant changes, but many are questioning whether its move to D.C. will prove beneficial.

The San Francisco City Council praised the move. “It’s nice to see people win over profit, even if it’s a small victory. We never wanted JUUL in San Francisco,” said Supervisor Shamann Walton. Although most cities would ordinarily welcome such a large corporation, D.C. is not excited about JUUL’s arrival. The D.C. Council is already considering a pair of bills targeting vaping.

One of the bills would forbid flavored products, which were already partially banned this year by the U.S. Food and Drug Administration (FDA) and the second would prohibit vaping without a doctor’s prescription. D.C. Attorney General Karl Racine has also sued JUUL for allegedly marketing its products to youth. And several Maryland counties are suing JUUL. Councilmember Charles Allen (D-Ward 6), had this to say:

JUUL is Big Tobacco. They aren’t moving here because of our amazing parks and libraries. They want to head off legislation designed to stop their products, which are dangerous, addictive and aimed at hooking the next generation. No thanks.

But JUUL says it is taking steps to earn “the trust of society and working cooperatively with regulators, policymakers, and stakeholders to combat underage use while providing an alternative to adult smokers.”

Although JUUL is moving its headquarters to D.C., both the federal and state litigations will remain in California. In the federal multidistrict litigation (MDL), there are currently 582 cases, including 465 personal injury cases and 82 government entity and school district cases. In the consolidated state-court litigation, there are 90 cases pending. There are also 11 cases filed by state attorneys general across the country, specifically: California, Illinois, New York, North Carolina, Mississippi, Minnesota, Washington D.C., Arizona, Pennsylvania, New Mexico and Massachusetts. Beasley Allen continues to litigate JUUL cases both in the federal MDL and consolidated state court actions in California.

For more information, contact Sydney Everett or Melissa Prickett at 800-898-2034, or by email at Sydney.Everett@BeasleyAllen.com or Melissa.Prickett@BeasleyAllen.com.

Sources: Wall Street Journal, San Francisco Chronicle and WAMU American University Radio

AN UPDATE ON THE WHISTLEBLOWER LITIGATION

Vaccine Whistleblower Testifies On Slow, Chaotic, Corrupt Pandemic Response

Dr. Rick Bright, the government’s leading vaccine expert who was ousted last month, has filed a formal whistleblower complaint with the U.S. Office of Special Counsel, alleging he was terminated for advocating scientific solutions to combat the coronavirus pandemic over unproven and potentially dangerous malaria drugs that the Trump administration aggressively pushed.

Dr. Bright is seeking reinstatement to his position as director of the Biomedical Advanced Research and Development Authority (BARDA) as deputy assistant secretary for preparedness and response. He is also calling for an official investigation of his allegations that he was terminated in retaliation for speaking out against the Trump administration’s handling of the crisis.

In his testimony before the House Energy and Commerce Subcommittee on Health on May 14, Dr. Bright told lawmakers he believed his reassignment to the National Institutes of Health (NIH) was retaliation for his resistance to making unproven risky malaria drugs available “on demand to the American public.”

Dr. Bright said that the Department of Health and Human Services’ strategy to combat the coronavirus spread was unfounded in science and a politically driven misuse of taxpayer money. He warned that the “window of opportunity is closing” to slow the spread of the virus due to the continued “lack of a coordinated response and a dearth of accurate, clear communication about the path forward.”

His warnings were echoed by Michael Bowen, the co-owner of a Texas mask-manufacturing company. Mr. Bowen testified that the U.S. government outsourced almost all of its manufacturing of masks and critical medical supplies to China and other countries. At the same time, he said, the government has repeatedly ignored warnings sounded by medical and industry leaders about the dangerous inadequacy of supplies.

“I’m a lifelong Republican, and I’m embarrassed by how that’s been handled,” Mr. Bowen testified. “Like Rick Bright said, it’s the scientists we need to be listening to, and we’re not.”

Dr. Bright told lawmakers that “there were some attempts to bypass that rigorous vetting process” of the drug hydroxychloroquine, which Donald Trump publicly endorsed as “one of the biggest game changers in the history of medicine” despite the lack of scientific evidence for that claim. `

On April 20, the same day Dr. Bright was removed from his BARDA position and transferred into a less influential NIH role, the results of a comprehensive study were published showing that COVID-19 patients treated with hydroxychloroquine died at higher rates than those who weren’t given the drug. The results were so alarming that the study had to be cut short.

Dr. Bright said that the federal government should be leading efforts to find “safe and scientifically vetted solutions instead of funding projects that were promoted by cronies or politically connected companies.” He told lawmakers:

If we fail to improve our response now, based on science, I fear the pandemic will get worse and be prolonged. There will be likely a resurgence of COVID-19 this fall. It will be greatly compounded by the challenges of seasonal influenza. Without better planning, 2020 could be the darkest winter in modern history.

Dr. Bright’s warnings elicited a familiar anti-whistleblower response from Trump. Last fall and winter, Trump repeatedly sought to discredit and expose the intelligence official whose whistleblower accusations triggered the Ukraine scandal and impeachment hearings.

Sources: Washington Post, CNN, C-Span, Rev.com, CBS news

Massive Fraudulent Activity Predicted During The Coronavirus Pandemic

Fraudulent attempts to profit during a health and economic crisis are not only immoral, but illegal. We expect there to be a tremendous amount of fraud and self-dealing resulting from the federal government’s recent heavy spending relating to the coronavirus pandemic. Lawyers in our firm are investigating fraudulent patterns of entities and individuals seeking to deceive state and local entities, as well as individuals and businesses, and are attentive to all threats of fraudulent actions and practices. If you have information of fraudulent activities, or need help with a potential claim, contact the authorities or seek legal counsel. You can contact one of the lawyers on our firm’s Whistleblower Litigation Team.

The Beasley Allen Whistleblower Litigation Team

The Whistleblower Litigation Team has been in place at Beasley Allen for a good while to handle False Claims Act (FCA) claims. Due to our firm’s heavy involvement in whistleblower litigation there was a definite need for the creation of this team. Fraud against the federal government has been and continues to be a huge problem, involving many industries in this country. We expect the amount of fraud against the government to increase greatly during the coming months.

As we have consistently stated, whistleblowers are the key to exposing corporate wrongdoing and government fraud. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is important to make sure you have a valid claim and that you are prepared for what lies ahead. Beasley Allen has an experienced group of lawyers dedicated to handling whistleblower cases.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have any questions about whether you qualify as a whistleblower, you can contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on the firm’s website ( www.beasleyallen.com).

A lawyer on our Whistleblower Litigation Team will be glad to discuss any potential whistleblower claim with you either in person or by phone. You can reach these lawyers by phone at 800-898-2034 or by email at Larry.Golston@beasleyallen.com, Lance.Gould@beasleyallen.com, Paul.Evans@beasleyallen.com, Leslie.Pescia@beasleyallen.com, Leon.Hampton@beasleyallen.com, Tyner.Helms@beasleyallen.com and Lauren.Miles@beasleyallen.com.

PRODUCT LIABILITY UPDATE

Graco Accused Of Marketing Unsafe Booster Seats

A lawsuit has been filed against Graco Children’s Products Inc., alleging that booster seats made and sold by the company are unsafe for small children, despite marketing claims that the products are safe for kids as small as 30 pounds. The proposed class action lawsuit was filed in New York federal court. Named Plaintiff Silvia Tehomilic alleged in the complaint that media reports and testing have shown that Graco’s marketing claims that its car booster seats have been tested for side impacts are not true. She also says there are no federal or state standards, and that the test Graco refers to is one it came up with.

The Plaintiff alleges that Graco markets the TurboBooster and Affix model seats as safe for children as young as 3 and as light as 30 pounds, despite knowing since 2002 that the seats are not safe for children younger than 4 years old and 40 pounds.

According to the complaint, the National Highway Traffic Safety Administration (NHTSA) reported in 2002 that booster seats are recommended for children who are at least 40 pounds, and reiterated that finding in 2010 in a report that said that prematurely moving a child to a booster seat is among the primary reasons for child injuries in car crashes where the child is restrained.

The complaint cites a media report that performed a side-impact test using a dummy in one of Graco’s booster seats, in which the dummy “hurtled out of the shoulder belt” in a way that made the spine, head and neck vulnerable to injury. The Plaintiff also said in the complaint that Graco does not publish or otherwise share its internal test results, and the company set its own testing protocols, which renders the testing “meaningless.”

It’s stated in the complaint that while Graco has aggressively marketed the booster seats in the United States as safe for children as light as 30 pounds, in Canada for the same product, the company represents that children less than 40 pounds risk “serious injury or death,” when using the seats.

By concealing the truth about the booster seats, the Plaintiffs said that Graco has put its profits above the safety of the children it markets to. She adds that the company’s website still includes statements saying the seats are safe for 30-pound children.

The Plaintiff seeks to represent two national classes, a multistate class and a New York-based class with claims for consumer fraud, breach of warranty, common law fraud and unjust enrichment. She is asking the court to grant restitution, issue an injunction forcing Graco to recall the booster seats and stop marketing them as safe for children less than 40 pounds, and order Graco to investigate the root causes of the decision to market the seats and what steps can be taken to correct its actions.

The Plaintiff is represented by Alex R. Straus, Gregory F. Coleman and Jonathan B. Cohen of Greg Coleman Law PC and Daniel K. Bryson, Martha A. Geer and Patrick M. Wallace of Whitfield Bryson LLP. The case is Tehomilic v. Graco Children’s Products Inc. et al., (case number 2:20-cv-02067) in the U.S. District Court for the Eastern District of New York.

Source: Law360.com

Florida Court Establishes Jurisdiction Over Foreign Battery Producer

On April 24, 2020, Judge Ronald W. Flury of Florida’s Second Circuit Court entered an order denying a motion to dismiss claims by a Florida resident against a foreign corporation based on a lack of personal jurisdiction. Samsung SDI Co., Ltd. (SDI) had filed a motion to dismiss Plaintiff Bennet Fields’s claims on the basis that the Court cannot exercise personal jurisdiction over SDI.

The claims involved a rechargeable lithium ion battery (RLIB), manufactured by SDI and purchased at a Tallahassee, Florida, vaping store operated by South Georgia Vapor. The battery exploded, causing Fields serious injury, including third degree burns to his legs and genitalia.

SDI is a foreign company with its headquarters in Yongin, South Korea. SDI purports to design, manufacture, and distribute various energy products, including small-size, cylindrical 18650 RLIBs, through a global network of locations.

In its motion, SDI sought to dismiss Plaintiff’s claims by arguing the Court lacks personal jurisdiction over SDI with respect to Plaintiff’s claims. While Plaintiff conceded that the Court lacks general jurisdiction over SDI in the matter, the dispute centered on whether the Court may exercise specific jurisdiction over SDI.

SDI’s primary argument against the Court’s exercise of specific jurisdiction is that Plaintiff’s claims do not sufficiently arise out of or relate to SDI’s business activities in Florida. SDI argued that because it does not sell or distribute its 18650 RLIBs specifically for vaping purposes in Florida (or anywhere), SDI cannot be subject to this court’s specific jurisdiction.

Plaintiff countered that SDI has purposefully availed itself of the privilege of doing business in the state of Florida by virtue of its entering into supply agreements with Florida companies, distributing battery products into the state of Florida and, specifically, selling and shipping SDI 18650 RLIBs into the state of Florida – the product at the heart of Plaintiff’s claim. Plaintiff argues that his claims relate to SDI’s Florida business activities because they arise from his use of SDI’s 18650 RLIBs, a product SDI has sold and shipped into Florida.

The Court found that personal jurisdiction as to SDI was established based on the Court’s ability to exercise specific jurisdiction over SDI. The facts of this case met each element set forth by Wells Fargo Equipment Finance, Inc. v. Bacjet, LLC, 221 So.3d 671, 676 (Fla. 4th DCA 2017). The elements dictate that to satisfy minimum contacts required to support the exercise of personal jurisdiction, the Defendant’s contacts: (1) must have been related to or given rise to the Plaintiff’s cause of action; (2) must involve some act by which the Defendant purposefully availed itself of the privilege of conducting activities within the forum; and (3) must be such that the Defendant should reasonably anticipate being hauled into court there.

The main point of contention was whether Plaintiff’s claim sufficiently relates to SDI’s Florida contacts. SDI’s primary argument is that it does not sell or ship its 18650 RLIBs to Florida for the discrete purpose of use with vaping devices. SDI argued that because it does not design the product for that particular use, that any claim arising from injury resulting from such cannot be “related to” its widespread sale of that product, including into the state of Florida. Plaintiffs countered that argument by contending that the relatedness test does not require SDI’s forum contacts to be so narrowly targeted to a specific or intended use of the product. Plaintiff argued that the relatedness test merely requires some relationship between the forum, Defendant, and the litigation.

The Court agreed with the Plaintiff, on the basis that under SDI’s theory of relatedness, SDI could never be subject to a states’ jurisdiction for a claim stemming from an SDI 18650 RLIB explosion in an e-cigarette simply because SDI does not intend consumers to use them in that way, despite the foreseeability of such conduct to SDI.

If you have any questions, contact Will Sutton at 800-898-2034 or by email at William.Sutton@beasleyallen.com. Will is one of the Beasley Allen lawyers handling the e-cigarette litigation for the firm.

Prepac Recalls 4-Drawer Chests Due To Tip-Over, Entrapment Hazards

Prepac is recalling about 21,000 4-drawer chests due to tip-over and entrapment hazards. According to the Consumer Product Safety Commission (CPSC), the recalled chests are unstable and can tip over if not anchored to the wall, posing serious tip-over and entrapment hazards that can result in death or injuries to children.

This recall includes Prepac 4-drawer chests with plastic drawer glides. The recalled chests were sold in three finishes, black, oak and white. The following model numbers are included in the recall and are printed on the instruction manual:

Model Dimensions Finish
BEP-3031-4 29-3/4”H x 30”W x 16”D Black
BBD-3031-4 29-3/4”H x 30”W x 16”D Black
OBD-3031-4 29-3/4”H x 30”W x 16”D Oak
WHD-3031-4 29-3/4”H x 30”W x 16”D White

Consumers should immediately stop using the recalled chests if not properly anchored to the wall and place them in an area that children cannot access. Contact Prepac to receive a free tipover restraint kit and consumers can request a one-time, free in-home installation of the wall anchor strap. There have been no reported incidents or injuries. The 4-drawer chests were sold online at Overstock.com, Target.com, Amazon.com and other online retailers from April 2005 through September 2018 for about $75. Consumers can contact Prepac Manufacturing toll-free at 877-773-7221 from 8 a.m. to 5 p.m. PT Monday through Friday or online at prepacmfg.com and click on “Recall Information” for more information.

Keurig Sues After Scalding Water Ejects From Machine, Burning Minor

Everyone knows that Keurig coffee machines use hot water, and everyone knows that they should not open the machine while it is in the process of brewing. However, Ambrea Beard did not expect that her daughter would be seriously injured by their new Keurig machine spraying scalding water after the brewing process was complete. Ms. Beard has now filed suit against Keurig Inc. for her minor daughter’s burn injuries.

Keurig has had some issues with customers being burned by spraying water before. In 2014, Keurig Green Mountain, Inc, recalled more than 6.6 million units after receiving 200 reports of hot water ejecting from the coffee-making machines, resulting in 90 burn injuries. In those cases, Keurig allowed customers to register for a free repair kit, and even stated that customers could still use the Keurig machines, but should stand away from the machines while brewing, and customers should not brew two or more cups in quick succession.

Keurig has had warnings on its machines stating that extremely hot water is being used in the K-Cup during the brewing process, and that the handle and K-Cup pack assembly should never be opened during the brewing process. However, I.K.G., who is Ambrea Beard’s injured daughter, was burned when water sprayed from the Keurig machine after the brewing process was completed. As a result, she received severe burns to her face, neck, and chest.

The suit is styled I.K.G. et al, v. Keurig Inc., et al, and is pending before Judge Coulee in the Northern District of Georgia.

Source: Law360.com

UPDATE ON THE BOEING LITIGATION

DOJ Expands Criminal And Civil Investigations Of Boeing’s 737 MAX

The U.S. Department of Justice (DOJ) and the Federal Aviation Administration (FAA) have expanded their agencies’ investigation of the development of Boeing’s 737 MAX. The move comes after the plane maker admitted earlier this year to finding debris in the fuel tanks of more than 30 MAX planes, according to the Wall Street Journal. The new safety concerns will become part of the ongoing federal grand jury probe in which investigators are looking at the MAX’s design of the MCAS or flight-control systems. The MCAS was determined to be at the center of two fatal crashes involving the aircraft that claimed 346 lives.

The foreign object debris (FOD) included rags, tools and even boot coverings left behind by workers involved in producing the new aircraft. The FOD was discovered in “fuel tanks and/or other interior spaces,” SimpleFlying reported. Investigators are concerned about the obvious dangers FOD poses in an aircraft’s daily operation. It is more evidence of the problematic internal culture as described by former Boeing production supervisor Ed Pierson.

Mr. Pierson worked at the company’s Renton, Washington, plant and unsuccessfully alerted company leaders about assembly-line problems dating back to 2018. He also has testified before Congress and discussed his concerns with the DOJ and the FAA.

However, the FAA took six months to conduct an in-person interview with Mr. Pierson after the agency’s head received the man’s letter cautioning about an “unstable production environment” within his plant. This delayed response by the FAA has raised more questions from lawmakers who are investigating the agency’s oversight of the MAX development and approval. While his initial warnings did not include the mention of FOD, Mr. Pierson later said it was the kind of mistake that could be expected from overworked employees – a situation he did include in his initial warnings.

The discovery of FOD also echoes concerns by lawmakers who issued an interim report about an ongoing Congressional investigation. The report’s findings identified five central themes that affected the design, development and certification of the 737 MAX and FAA’s oversight of Boeing. These themes included production pressures, faulty assumptions, a culture of concealment, conflicted representation and Boeing’s influence over the FAA’s oversight.

Boeing said it is taking corrective actions regarding the FOD discovery, but it is still likely facing a multimillion-dollar fine from regulators, and lawmakers are already demanding increased oversight, something this Report has noted was lacking part of the systemic failure, which led to the two fatal crashes.

As of March, the MAX debacle is estimated to have cost Boeing $18.7 billion, according to CNN Business. Like others in the industry, Boeing has also suffered economically from the COVID-19 pandemic. However, the company’s board refused to accept a federal bailout at its meeting in April. The board was unwilling to allow taxpayers to have a stake in the company, and therefore a say in how the company operates. During this meeting, several board members’ terms were renewed over the objections of shareholders, as discussed previously in this Report, as well as two influential proxy advisory firms, according to The Motley Fool.

No official timeline exists for getting the MAX aircraft back in operation but CNBC reported that Boeing has quietly pushed back the timeframe once again with hopes of receiving recertification by the end of the summer. In the meantime, Boeing recommends that all of its customers that currently have MAX aircraft within their possession should thoroughly inspect the planes to ensure no FOD has been left behind to cause further safety risks.

Beasley Allen has filed a number of lawsuits for families of victims of the Ethiopian Airlines crash. Mike Andrews in our Personal Injury & Products Liability Section focuses much of his practice on aviation litigation. He is representing a number of families in this litigation. Currently, Mike is also investigating other potential cases. He visited the crash site and surrounding areas several times last year and was overwhelmed at the carnage left behind after Flight 302 hurled itself and passengers 30 feet into the earth. If you would like to have more information on the Boeing litigation, or any other aspect of aviation litigation, contact Mike at 800-898-2034 or by email at Mike.Andrews@beasleyallen.com. Mike also has written a book on litigating aviation cases to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.

Sources: New York Post, Simple Flying, U.S. House Committee on Transportation & Infrastructure, The Motley Fool, CNN Business, CNBC

FAA To Keep Highly Criticized Self-Certifying Protocol For New Planes Despite MAX Tragedies

The Federal Aviation Administration (FAA) has announced that it will continue to allow aircraft manufacturers like Boeing to self-certify when it comes to approving new aircraft, the Seattle Times reported. The agency said it intends to keep in place the highly criticized Organization Designation Authorization (ODA) aircraft certification process.

The announcement is in response to recommendations in a report the agency received in January from the Safety Oversight and Certification Advisory Committee, an advisory committee created by the U.S. Department of Transportation (DOT) Secretary Elaine Chao. The response is at odds with objections from lawmakers and regulators worldwide following two deadly crashes involving the Boeing 737 MAX, which claimed 346 lives. The self-certifying protocol was in place when the MAX was approved, and critics of the process say it fostered a culture that helped dismantle regulations designed to keep the flying public safe.

The FAA’s insistence to maintain the flawed self-certification process and to allow aircraft makers like Boeing to approve their own deadly aircraft speaks to the travesty of its internal review process. The FAA’s response means that it is not a question of if but when Boeing will once again abuse the authority the FAA has granted it and make similar, unwise decisions that lead to even more deaths.

The DOT committee’s report vehemently defended the FAA, one of the few reports from numerous investigations of the two deadly crashes that justified the FAA’s procedures. Lawmakers and the international regulatory community questioned the report when it was first released. Lawmakers once again have criticized the agency’s decision to maintain the ODA and promise to address the problems with the process, potentially involving a complete overhaul.

Sen. Maria Cantwell, (D-Wash), said that the ODA fails to hold plane makers like Boeing accountable and that Congress will need to “address shortfalls and problems that exist in the FAA’s current oversight authority.”

Rep. Peter DeFazio, (D-Ore), explained that “we already know the FAA’s certification process is in need of a major overhaul.” He plans to create legislation that will “make sure that the failures in the system that led to the death of 346 people never happen again.”

The FAA agreed to take steps to address other concerns raised in the DOT Committee’s report. However, until the FAA addresses the systemic failures that led to the erosion of consumer safety protections, very few measures will prevent similar tragedies from occurring in the future. The ODA self-certification process was bought and paid for with aircraft manufacturers’ lobbying money and it likely won’t go away without a well-funded fight.

Sources: Seattle Times

Beasley Allen Still Taking Boeing Cases

Beasley Allen has filed a number of lawsuits for families of victims of the Ethiopian Airlines crash. Mike Andrews in our Personal Injury & Products Liability Section focuses much of his practice on aviation litigation. He is representing a number of families in this litigation. Currently, Mike is also investigating other potential cases. He visited the crash site and surrounding areas several times last year and was overwhelmed at the carnage left behind after Flight 302 hurled itself and passengers 30 feet into the earth. If you would like to have more information on the Boeing litigation, or any other aspect of aviation litigation, contact Mike at 800-898-2034 or by email at Mike.Andrews@beasleyallen.com. Mike also has written a book on litigating aviation cases to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.

MASS TORTS UPDATE

Beasley Allen Continues To Investigate Zantac Cases Despite Court Closures

Consumers continue to file lawsuits alleging that Zantac caused them to develop cancer. As we reported in the April issue, Zantac and generic prescriptions containing ranitidine were pulled from the market by the U.S. Food and Drug Administration (FDA) due to the presence of N-nitrosodimethylamine, (NDMA), a probable human carcinogen.

NDMA exists in low levels in the environment and is commonly ingested in the diet. When ingested at low levels, NDMA is not considered a cancer risk to humans. However, new FDA testing has confirmed that NDMA levels increase in ranitidine even under normal storage conditions. When ranitidine samples are stored at higher temperatures, including temperatures during distribution and handling by consumers, the NDMA levels increase significantly. According to the FDA, such conditions “may raise the level of NDMA in the ranitidine product above the acceptable daily intake limit.”

Additionally, previous studies have found that it is also possible that medicines containing ranitidine can cause NDMA to form in the body after ingestion. According to reports, approximately 60 million people suffer from heartburn, 15 million use prescription ranitidine and countless others use over-the-counter versions.

Despite court closures due to COVID-19, Beasley Allen lawyers continue to investigate potential claims involving regular Zantac or ranitidine use that may have caused cancer. Consumers who may have been affected can contact Frank Woodson ( Frank.Woodson@beasleyallen.com) or Lisa Courson ( Lisa.Courson@beasleyallen.com) for more information at 800-898-2034.

Sources: FDA.gov

An Update On The Bone Cement Litigation Lawsuit Filed involving Cardinal Health’s Cardinal HV Bone Cement

As we have previously reported, medical literature has linked high-viscosity (HV) bone cements to significantly increased rates of early failures for total knee replacements. The primary reason the HV bone cement fails is mechanical loosening. The mechanical loosening is caused by a failure of the bond between the tibial baseplate and requires an additional revision surgery. The Bone Cement Litigation currently involves four models of bone cements:

  • Stryker’s Simplex HV;
  • DJO Global and Biomet’s Cobalt HV;
  • Cardinal Health’s Cardinal HV; and
  • DePuy’s SmartSet HV.

Beasley Allen lawyers have now filed 15 bone cement cases in various federal district courts across the country. The most recently filed case involves Cardinal Health’s Cardinal HV.

Cardinal HV is a bone cement manufactured in Germany by Osartis, GmbH and then sold in the United States by Cardinal Health, Inc. Many may recognize Cardinal Health from its role in the opioid epidemic. Cardinal Health is known as one of the “Big Three” opioid distributors, along with McKesson Corp. and AmerisourceBergen Corp.

Beasley Allen lawyers filed the first known lawsuit in the country involving Cardinal HV. The lawsuit filed in the United States District Court for the Eastern District of Wisconsin in Milwaukee was on behalf of an individual who had both knees replaced using Cardinal HV bone cement. In only two years, both artificial knees failed due to mechanical loosening.

Mechanical loosening, as shown by recent studies, has occurred at a significantly increased rate in patients implanted with HV bone cement, including the Cardinal HV bone cement. We expect that discovery in the filed cases will show Cardinal Health knew about the defective nature of HV bone cements and the significantly increased rates in early failures. Despite this knowledge, Cardinal Health continues to market and sell Cardinal HV bone cement while downplaying its risks.

Beasley Allen lawyers in our Mass Torts Section continue to investigate cases involving bone cement failure. For more information, contact Ryan Duplechin, Melissa Prickett, Chad Cook or Roger Smith, lawyers in the Section, at 800-898-2034, or by email at Ryan.Duplechin@beasleyallen.com, Melissa.Prickett@beasleyallen.com, Chad.Cook@beasleyallen.com or Roger.Smith@beasleyallen.com.

Makers Of Diet Drug Belviq Likely Knew Of Cancer Link For Over a Decade

Belviq (lorcaserin) was approved by the Food and Drug Administration (FDA) in 2012 as a weight-loss drug. Belviq was the first diet drug to be approved in almost 15 years largely because of the recall of Fen-Phen and Redux. Recently, the FDA analyzed Belviq’s clinical trial results and recommended that Eisai, the manufacturer and seller of the drug, pull it from the market. However, even before the drug was introduced into the market, there were signals of cancer.

Belviq was originally submitted for approval in 2009. In October 2010, the FDA rejected the new drug application (NDA) approval of Belviq, for both clinical and non-clinical issues. The FDA’s complete response letter states there was an unclear safety margin for lorcaserin-emergent brain astrocytoma, and that additional clinical studies may be required to obtain a more complete assessment of its benefit-risk profile. Arena Pharmaceuticals, the manufacturer of Belviq at the time, submitted a complete response letter in January 2012, which explained that increased tumors found in rats would not affect humans.

After the FDA approved Belviq in 2012, the agency required the manufacturer to continue with a clinical trial to make sure we did not have a repeat of Fen-Phen and Redux, which were linked to cardiovascular issues and subsequently recalled. Belviq’s clinical trial concluded in 2018, and Eisai posted the results in July 2019. Eisai presented that Belviq does not appear to affect cardiovascular health. However, since Eisai knew the study was required for cardiovascular reasons, it downplayed the clinical trial’s showing of an increased risk of cancer. A few months later, the FDA started analyzing the data and then brought the increased cancer results to light in early 2020.

After several years of Belviq being on the market, thousands of patients took the drug without knowing of cancer concerns, which Arena Pharmaceuticals and Eisai at least should have known about more than 10 years ago. Eisai, in a press release about withdrawing Belviq, said its interpretation of the clinical trial data “differs from that of the FDA.” In other words, Eisai would still be selling Belviq had the FDA not stepped in.

Roger Smith, Ryan Duplechin and Melissa Prickett, lawyers in our firm’s Mass Torts Section, are currently investigating individual cases of pancreatic cancer, colorectal cancer and lung cancer in patients who have been treated with Belviq. If you need more information, contact the lawyers at 800-898-2304 or by email at Roger.Smith@beasleyallen.com, Ryan.Duplechin@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

J&J Settles With West Virginia In Pelvic Mesh Litigation

West Virginia has reached a $3.9 million settlement with Johnson & Johnson (J&J) to resolve claims that the company deceptively marketed its pelvic mesh products by misrepresenting their safety history. Attorney General Patrick Morrisey announced the settlement last month. The settlement ends a lawsuit that claimed J&J and its subsidiaries Ethicon Inc. and Ethicon US LLC misrepresented the effectiveness and risks of the surgical products in marketing and educational materials, as well as in personal meetings and published medical articles.

Those marketing materials consistently left out or hid complications with the devices, according to the attorney general. Attorney General Morrisey said in a statement:

The improper marketing of medical products can put the health of consumers at risk. This settlement demonstrates our office’s commitment to hold accountable corporations who ignore potential risks and side effects or omit such crucial details from the materials provided to doctors and patients.

West Virginia’s settlement also involves claims over metal-on-metal hip replacement devices.

In October, J&J agreed to a $117 million multi-state settlement to end litigation over the marketing of its surgical mesh devices. Forty-one states and the District of Columbia are participating in the settlement. The states’ investigation found that J&J and Ethicon either misrepresented or failed to adequately disclose possible adverse effects of the mesh devices, including incontinence and vaginal scarring. Attorney General Morrisey said in the statement that has state received “significantly” more funds by bringing its own claims. The settlement also includes a 5% cap on attorneys’ fees for outside counsel related to the mesh suit.

In 2016, the U.S. Food and Drug Administration (FDA) raised the approval bar for transvaginal pelvic mesh devices, reclassifying them as high-risk devices that need a safety evaluation before they can be sold. In January, a California judge ruled in a suit brought by California’s attorney general that J&J and Ethicon misled consumers about the true risks of their pelvic mesh products and must pay nearly $344 million in civil penalties. In a statement of decision after the lengthy bench trial, San Diego Superior Court Judge Eddie Sturgeon sided with California Attorney General Xavier Becerra and found J&J and Ethicon violated the state’s false advertising and unfair competition laws.

Judge Sturgeon found that the Defendants had lied to California consumers and doctors about the safety of two lines of mesh products made with polypropylene: Tension-free Vaginal Tape, launched in 1998 to treat stress urinary incontinence, and the Prolift, launched in 2005 to treat pelvic organ prolapse. J&J stopped selling the prolapse-treating mesh in 2012.

Source: Law360.com

AN UPDATE ON SECURITIES, INSURANCE AND FINANCE LITIGATION

Update On Business Interruption Insurance And Covid-19

Business interruption insurance is typically an important part of a business owner’s commercial property coverage. This coverage may also be a stand-alone policy. Regardless, business interruption insurance helps a business cover bills and payroll in the event of a disaster that forces the business to temporarily close. Because many business owners have been required to close as a result of the COVID-19 threat, many are turning to their insurance policies to determine, as expected, if business interruption coverage provides them needed relief.

Though coverage for business interruption due to coronavirus closures will depend on the specific language of each business’s policy, many with arguable claims for coverage have filed lawsuits either seeking a declaratory judgment that their losses due to the shutdown are covered under their policies, or claiming breach of contract after coverage has been denied by their insurers. Many times, the business was shut down as a direct result of an order from a governor or mayor.

Due to the volume of these cases, multidistrict litigation (MDL) has been proposed. As of May 13, 2020, three motions to transfer have been filed with the Judicial Panel on Multidistrict Litigation (JPML), seeking transfer of all actions to either the Eastern District of Pennsylvania, Northern District of Illinois, or the Southern District of Florida. As of May 6, 2020, 69 total cases have been filed as related actions to be joined in an MDL. Currently, the anticipated hearing date for the JPML to decide the consolidation and transfer issues is July 30, 2020.

While there are hurdles to the consolidation of all business interruption claims in one MDL, many other cases have managed multiple Defendants with multiple issues in efficient ways. For instance, through the use of liaison counsel and the groupings of defendants and/or policies at issue with similar language and exclusions, the MDL goals of efficiency and consistency will be promoted.

Beasley Allen lawyers are actively investigating and pursuing claims against various insurance companies for denial of business interruption coverage during the COVID-19 pandemic and are involved in advocating for consolidation of these actions in an MDL. Dee Miles, head of our Consumer Fraud & Commercial Litigation Section, Rachel Boyd, and Paul Evans are spearheading this litigation for our firm and they are monitoring any MDL developments that arise. You can contact them at Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com, or Paul.Evans@beasleyallen.com if you have any questions or would like to discuss potential claims.

Alexion Reaches $25 Million Settlement With SEC To End FCPA Probe

Alexion Pharmaceuticals Inc. has reached a preliminary agreement under which it would pay less than $25 million to end the U.S. Securities and Exchange Commission’s (SEC) investigation into possible violations of the Foreign Corrupt Practices Act (FCPA). The company reported the settlement in an SEC filing last month.

In May 2015, the SEC’s enforcement division subpoenaed Alexion, requesting information on its FCPA compliance and grant-making activities. That subpoena specifically named Japan, Brazil, Turkey and Russia, but the company said it applies to Alexion’s activities worldwide.

In the quarterly investor filing with the SEC, Alexion said the agreement to end the investigation is not yet final. The company says:

While we have reached an agreement in principle with the SEC, there can be no assurance that a definitive agreement reflecting the terms of the agreement in principle will be agreed to or finalized.

The company told investors that If the settlement falls apart or changes, the loss related to the FCPA investigation could be greater.

The May 2015 subpoena also asked for information on Alexion’s recall of specific lots of its drug Soliris, which is used to treat paroxysmal nocturnal hemoglobinuria, a rare, life-threatening blood disorder. The voluntary June 2014 recall came after the company found visible proteinaceous particles in one lot when conducting standardized testing, which could lead to blood clots or immune reactions in patients, the company said at the time. That lot was distributed only within the U.S. Alexion has said in filings over the years that it is cooperating with the investigation and is unable to predict how long it will last or what the scope of it will be.

In October 2015, the U.S. Department of Justice (DOJ) made its own request for information pertaining to Alexion’s compliance with the FCPA. But the pharmaceutical company said on May 6 the DOJ “recently” informed the company that the inquiry into the matter is now closed.

Source: Law360.com

EMPLOYMENT AND FLSA LITIGATION

Coronavirus And Employment Issues

As states and businesses move to reopen amid the Coronavirus pandemic, many have asked what would happen to their job if they refuse to return to work in favor of their personal safety. That question is soon followed by considering the legal options available if they return to work and become infected with the virus. Unfortunately, the responses are not favorable but employees have options, even if all available options present harsh consequences.

The answer to the first question depends on whether or not the state follows “at-will” employment laws. At-will employment states allow employers to terminate employees for any reason, and without warning, as long as the reason is not illegal. As long as the employer does not violate Title VII of the Civil Rights Act (prevents discrimination based on race, color, national origin, sex and religion), the Family Medical Leave Act and applicable Whistleblower retaliation laws, it is free to terminate.

In the absence of a contract, an employer is free to terminate an employee for failing to return to work even if the employee has a valid concern for his/her safety. Any employee faced with a request to return to work will have to decide for themselves if it is in their best interest to return to work for their pay and risk infection or to stay at home and risk termination.

The next analysis applies to the employees who return to work and then become infected with the virus. Are they covered by workers’ compensation? The answer to this question depends on their state of residence. State worker’s compensation laws differ from state to state but every state will require the employee to prove that the infection occurred at work. That causation standard will be extremely difficult to prove since anyone can be infected, anywhere, in a number of ways. Even front-line workers will have a difficult time proving the exact source and time of an infection.

However, for purposes of this discussion, let’s assume the employee can prove he/she was infected at work. Even then, the infected employee may not be able to receive workers’ compensation benefits. Many states, including Alabama, are considering bills that would protect businesses, health care providers, schools, churches and government entities from legal liability due to coronavirus infections.

Additionally, federal legislation is being considered that will also shield businesses and other entities from legal liability due to infections. Thus, even if the employee can prove causation, there will be other barriers to overcome.

Any employee examining their choices to return to work and risk infection verses staying away and risking termination should consider their options with the knowledge that they will have very limited options to hold their employer liable for workers’ compensation benefits. Concerned employees should call their state and federal representatives to express their concerns. You can rest assured that the business community, business owners and their lobbyists are in touch with the same representatives pushing legislation to protect their interests.

If you have questions, contact Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com. Kendall handles workplace litigation for our firm.

PREMISES LIABILITY UPDATE

Negligent Security Cases And Confronting Apportionment Issues In Georgia

In Georgia, a landlord, property owner or business owner has a duty to exercise ordinary care in keeping their premises and approaches safe pursuant to statutory law. See O.C.G.A. § 51-3-1. If this duty is breached, the owner or landlord may be liable (and financially responsible) for injures that occur on the property due to the unsafe conditions, such as criminal conduct by a third-party.

Negligent security cases are a subset of premises liability. For example, if a sexual assault at an apartment complex or a shooting at a shopping mall could have been prevented by having better security in place, the property owner (and even the property manager) may be held financially responsible for the injuries resulting from the criminal act. However, the criminal act must be foreseeable to the property owner and such foreseeability can come from a property owner’s knowledge of prior substantially similar crimes committed on or near the property.

In Georgia, property owners have the right, if done so timely, to identify the criminal assailant on the jury verdict form and request that the jury apportion fault to the assailant. See O.C.G.A. § 51-12-33. This is done to decrease the owner’s liability and potentially diminish a Plaintiff’s claim if the jury were to apportion majority of the fault upon the assailant (whom you cannot likely collect from). There have been cases where a jury apportions only 1% of fault to the property owner with the remaining 99% being apportioned to the criminal assailant. Having a good strategy to combat apportionment issues will better assist you in preparation for discovery and trial.

Depending on the type of case, you should focus on developing the following pieces of evidence (not an exhaustive list) that will help you combat apportionment at trial:

  • witnesses (or video evidence) to the subject crime;
  • police records and reports identifying prior substantially similar crimes on or near the premises;
  • other tenants who have knowledge of prior crimes and reported it to owner/management;
  • tenants who have complaints about the property and have reported issues to the owner/management;
  • a deposition of a 30(b)(6) corporate representative of the Defendant(s); and
  • a qualified expert that can testify as to why there should have been additional security measures in place in order to prevent a foreseeable and yet otherwise preventable crime that caused your client injuries.

It takes proper planning and strategy to develop and discover key evidence to establish liability and diminish the Defense’s chances of successfully apportioning fault to the criminal assailant. For more information about these types of cases, contact Parker Miller or Donovan Potter, lawyers in our Atlanta office at 800-898-2034 or by email at Parker.Miller@beasleyallen.com or Donovan.Potter@beasleyallen.com.

Verizon Will Pay $125 Million To Family Of Woman Paralyzed When Rotted Pole Fell On Her

The family of Maria Moser Meister who sued Verizon after a weathered pole fell on her, leaving her paralyzed, settled their lawsuit against the utility company last month for $125 million. Ms. Meister, 50, a lawyer from West Orange, was injured on Jan. 23, 2017 in Union City when she was struck by the pole as she waited for a bus for her commute to work in New York.

It was alleged in the lawsuit that the 43-year-old wooden pole was partially rotted and snapped at its base, crushing the woman’s head and body. Ms. Meister suffered multiple fractures of her spine, ribs, and was paralyzed from her mid-chest down. She now has limited use of her left arm and suffers with brain injuries and vision problems.

At the time of the incident Ms. Meister was general counsel for finance firm Milberg Factors in New York. Previously she had been an associate at Simpson Thacher & Bartlett. The pole was co-owned by Verizon under an agreement with PSE&G and held equipment and wires from Verizon and PSE&G.

The victim’s husband, Peter Meister, sued the utility companies along with Altice USA. PSE&G and Altice had not used the pole for decades. Verizon took full responsibility for the condition of pole.

Essex County Superior Court Judge Stephen L. Petrillo has issued an order approving the settlement in which Verizon pays $125 million, PSE&G pays $250,000 and Altice pays $25,000. Maria Meister will receive $118 million and her husband will receive $7 million, according to the judge’s order. Mazie, a lawyer for the family, said:

This is a very tragic circumstance, and nobody gets paid these kinds of numbers without having a catastrophic, life-changing injury. This has devastated her life and her husband and children, and she will never be put back together.

It appears this settlement is the largest in New Jersey history. The previous record was $47 million for a suit against St. Barnabas Hospital. Verizon issued the following statement:

Words cannot adequately express the remorse, sympathy and compassion that we have for Maria Meister and her family. Maria, her husband and children have been constantly on our minds since this happened and will continue to be in the years to come. While no amount of compensation can make up for what was lost, we hope the resolution of this case helps bring some measure of comfort, and provides care for Maria and her family, now and in the future.

David A. Mazie, a lawyer with Mazie Slat Katz & Freeman, located in Roseford, N.J., represented the Plaintiff in this lawsuit. David and his firm did an outstanding job in this case.

Source: NJ.com

WORKPLACE HAZARDS

CDC Urges ‘Prompt Action’ At Meatpacking Plants To Keep Operations Intact During Pandemic

There has been a great deal of commentary relating to the safety of meat and poultry processing plants across the country. These plants should take “prompt action” to prevent the spread of the novel coronavirus (COVID-19) among critical factory workers in order to continue operations and maintain the food supply, according to the Centers for Disease Control and Prevention’s (CDC) Morbidity and Mortality Report (MMWR).

The recommendation from the CDC comes after an assessment of approximately 130,000 workers at 115 meat and poultry processing facilities in 19 states revealed 4,913 cases of COVID-19 and 20 deaths. State and local health officials helped the CDC calculate the number of cases from April 9 to April 27. But the number is likely under-represented due to access to testing and the failure of some states and facilities to provide numbers. In contrast, as of April 28 – the day after the assessment of these facilities ended, the CDC reported more than 1 million cases of COVID-19 in the U.S., and more than 58,000 deaths.

According to CNN, there are about 2,700 slaughter plants in the United States, 800 of which are federally inspected. Additionally, workers at meatpacking plants around the world – Canada, Spain, Ireland, Brazil and Australia – have reported COVID-19 clusters among their workforce.

The matter of accurately tracking COVID-19 cases at meatpacking plants and similar facilities is also complicated by the fact that health officials in many of these states stopped reporting their numbers. Nebraska is home to four of the 30 counties in the U.S. with the highest per capita prevalence of the coronavirus. It is also home to large meatpacking plants Tyson, JBS and Smithfield. After reporting infection numbers the first week of May, shortly afterward Governor Pete Ricketts announced state health officials would no longer share how many workers were infected at each plant.

However, the following week representatives from Tyson released the company’s latest numbers from its Madison, Nebraska, facility, and said it would also release results of testing at its other locations to employees and government officials. The Madison facility reported 96 infections the first week of May. On May 12, the company said there are 212 employees and contractors who have tested positive at that facility – an alarming increase. But with reporting spotty at best, it’s impossible to tell what this might mean for other facilities nationwide.

It is also difficult to pinpoint whether workers contracted the virus at work or at home. Regardless, researchers are urging meat and poultry plants to follow the CDC guidance by ensuring proper sanitation, promoting social distancing, and providing workers with personal protective equipment. The report stated:

Crowded conditions for workers in meat and poultry processing facilities could result in high risk for SARS-CoV-S transmission. Respiratory disease outbreaks in this type of setting demonstrate the need for heightened attention to worker safety.

The CDC further recommended that facilities allow workers to take sick leave without the repercussions such as loss of pay or loss of seniority, and to adjust the timing of breaks so that employees could still practice social distancing.

Some meatpacking facilities are offering employees bonuses and hourly wage increases to encourage them to continue working despite the risk, although they say they are encouraging workers who don’t feel well to stay home. Workers who are home sick – including those who have tested positive for COVID-19 – are often time being paid regular wages or short-term disability.

Another reason it is difficult to get accurate numbers for COVID-19 infections among meat processing facility workers is lack of testing. Like most of the rest of the country, testing is not widely available and, even if it were, workers in this industry often cannot afford or lack access to health care. As a result, they may be going to work while asymptomatic and unknowingly spreading the disease.

Health officials in several of the severely affected states have created teams to provide testing for meatpacking plant workers, but some companies refused the offer. For example, JBS Beef near Amarillo, Texas, initially refused to allow state health officials to test its 3,000 employees. But after public outcry, the company relented. On April 21, JBS reported 114 infections. On May 3, the number jumped to 243, and as of May 11 – even before it consented to the state health testing – the number had grown to 323. Other plants are complying. The Texas Tribune reports more than 3,500 Tyson Food workers in Amarillo were tested after the company took advantage of the health department’s offer to help.

The CDC’s report was released just days after President Donald Trump signed an executive order designating meat and poultry processing plants as critical infrastructure under the Defense Production Act. This action attempts to shield any potential liability these facilities might face regardless of their conduct. This order – if upheld in court – could well be a death sentence for hundreds if not thousands of employees.

Sources: Law360, CDC, Washington Post, CNN, Wired and Texas Tribune

AN UPDATE ON MOTOR VEHICLE LITIGATION

FMCSA Announces Overhaul Of Key Hours Of Service Rules

Federal regulators announced four major changes to hours of service (HOS) rules that limit working and driving hours and mandate periods of rest for tractor-trailer drivers. The changes relax the current version of HOS rules, parts of which have been in place since mid-2013, allowing commercial truck drivers longer driving hours and greater flexibility.

The rules are intended to combat driver fatigue, which is the leading cause of tractor-trailer accidents in the U.S. Most of the nation’s 1.9 million commercial truck drivers drive long distances over the course of several hours a day with very little rest to break up the time and monotony.

Combined with pressure to deliver goods on time and poor quality of sleep on the road, truck drivers are always straddling a fine line between safety and disaster. Ever since HOS rules were introduced 82 years ago, regulators have delicately attempted to balance commercial needs with safety concerns.

The latest HOS rule reforms, announced by the Federal Motor Carrier Safety Administration (FMCSA) on May 14, are considered a big win for truck drivers. Many commercial drivers said that the old rules made it more difficult to do their job safely and earn a living.

Under the new rules, drivers may take their required 30-minute rest period after eight hours of consecutive driving instead of within their eight-hour driving period as the old rules mandated.

Truck drivers may now meet the 10-hour off-duty requirement by taking two periods of rest. One period must log at least eight hours in their sleeper berth and at least two hours either in or outside of the sleeper berth. Alternately, they can take a seven- and three-hour split with neither period counting against their 14-day driving window.

The new rules also allow truck drivers to extend their driving window up to two hours if driving in adverse conditions. The current rule already permits an additional two hours under the 11-hour clock, so the new rule expands the 14-hour clock by two hours as well.

Lastly, the new rule extends the maximum on-duty period for short-haul drivers from 12 to 14 hours and increases the radius from 100 air miles to 150 air miles.

If you have any questions, contact Mike Crow, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Mike.Crow@beasleyallen.com. Mike is one of the lawyers at Beasley Allen who handle trucking litigation for the firm.

Sources: FMCSA and Trucker.com

TOXIC TORT LITIGATION CONCERNS

Move Toward Regulations Governing “Forever Chemicals” Strengthens

Per- and Polyfluoroalkyl Substances (PFAS) have garnered significant attention in the environmental world over the past four years. And for good reason – they do not break down in the environment, bioaccumulate in humans and animals, and have been linked to numerous health risks such as kidney and testicular cancer, affecting the immune system, and interfering with the body’s natural hormones. Also known as “forever chemicals,” they pose a unique hazard to public health because they are used in a variety of consumer products and are found everywhere in the environment.

PFAS are a particular threat to our nation’s drinking water. That’s because conventional water treatment does not remove PFAS. Instead, expensive filtration systems are required to sufficiently treat drinking water before it is sold to the public. PFAS currently are not regulated, but that can change soon based on new regulations being considered by governmental authorities across the world.

In February, the U.S. Environmental Protection Agency (EPA) issued a preliminary decision to regulate the two most common PFAS, PFOA and PFOS, in drinking water. The agency is currently seeking public comments on this decision as well as potential regulatory approaches for other PFAS, which number in the thousands. The agency also issued a supplementary proposal to ensure that these chemicals could not be imported into the United States without notification and review under the Toxic Substances Control Act. It could take years for regulations to be enacted; however, the United States is moving in the right direction.

Congress has also been pressed into action with the Senate’s environment panel pushing a major water bill directing the EPA to develop a national drinking water standard for PFAS. Supporters attached similar language to the 2020 defense authorization bill last year, only to have it removed in the House-Senate negotiations.

Similar efforts are underway in Europe. Authorities in Denmark, Germany, the Netherlands, Norway and Sweden have agreed to prepare a joint restriction proposal covering all PFAS seeking details on any alternatives or technical replacements for the chemicals and existing efforts to phase out or substitute them. It could take two years for the proposal to be finalized, which will then move to the agencies’ scientific committees for opinion-making.

Until regulations and legislation are passed to protect our nation’s drinking water, litigation has been the most common way to hold polluters accountable. One industry that relies heavily on PFAS is the carpet manufacturing industry which uses the chemicals to impart water-, stain- and soil-resistance to its flooring products.

Our firm, along with Roger H. Bedford of Roger Bedford & Associates, has filed lawsuits on behalf of the water systems in Gadsden and Centre, Alabama. These complaints allege that carpet and textile companies, manufacturers, and chemical suppliers located upstream in Dalton, Georgia, are responsible for contaminating the Coosa River and Weiss Lake. The lawsuits were filed to ensure that these entities, not ratepayers in Gadsden and Centre, would pay to decontaminate their drinking water.

Beasley Allen lawyers are investigating other PFC contamination cases. If you have any questions about this subject, contact Rhon Jones, Rick Stratton or Ryan Kral, lawyers in our firm’s Toxic Torts Section, at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, Rick.Stratton@beasleyallen.com or Ryan.Kral@beasleyallen.com.

Source: Bloomberg Law

COVID-19 Impact On Asbestos Suits

In March, the U.S Environmental Protection Agency (EPA) released a draft risk evaluation, which, although not final, promulgated preliminary determinations on asbestos risk. The draft risk evaluation indicated that asbestos did not pose unreasonable risks to the environment, but preliminarily found unreasonable risk to workers, occupational nonusers, consumers and bystanders “under certain conditions of use.”

Interestingly, the draft risk evaluation indicated that the risk evaluation for asbestos evaluated the cancer risk to workers and occupational non-users and consumers and bystanders from inhalation exposures only, and in this risk determination of asbestos, respirator personal protective equipment, or PPE, (where present) and its effect on mitigating inhalation exposure was considered.

While some experts have criticized the EPA for limiting the scope of harm in the risk analysis to cancer alone, few have discussed the statement on PPE in light of the current COVID-19 pandemic.

PPE has become a household acronym since the start of the pandemic, because it is necessary to mitigate risks associated with airborne dangers, including both asbestos and COVID-19. According to the draft risk evaluation in regard to worker risk, “without respiratory PPE the risk estimates indicate risk (central tendency and high-end); however, when expected use of respiratory PPE is considered for some worker tasks … the risk estimates do not indicate unreasonable risk.”

Although the EPA classified the risk to workers and consumers as preliminarily unreasonable, this determination was partly due to the fact that “respirator PPE is not worn throughout an entire 8-hour shift” and that consumers generally do not wear PPE. Therefore, in a time where national governments are struggling and scrambling to buy PPE, the EPA’s risk evaluation may be understated when considering the projected availability of PPE and other potential harms beside cancer.

Moreover, people diagnosed with mesothelioma and lung cancer often must endure chemotherapy, immunotherapy and surgery. All three treatments leave the immune system compromised, putting mesothelioma and lung cancer survivors particularly at risk for COVID-19 infections. The ongoing pandemic has made the experience of going to a doctor’s office or a hospital room a terrifying endeavor. Many mesothelioma and lung cancer victims are afraid to visit their doctor or leave the house for their regular treatment, as coming in contact with someone infected with COVID-19 could prove to be fatal.

Furthermore, pulmonologists have been called in droves to assist both with treating victims of COVID-19 and helping research a possible vaccine to curb the pandemic. Pulmonologists are usually the doctors most directly involved in treating mesothelioma and lung cancer patients. Their work on the frontlines against COVID-19 leaves less care and resources for victims of asbestos exposure.

These developments may increase the number of asbestos victims and, therefore, the amount of asbestos litigation in the future. For example, an employee previously exposed to asbestos in the workplace may suffer additional harm due to the strained medical system; or a claimant may be negligently exposed to asbestos due to a lack of PPE. Given the long latency period between asbestos exposure and the related injury, it may take many years before litigation arises in such cases.

However, the lack of PPE may strengthen current claims based on increased risk of future disease or medical monitoring. These issues will most likely turn on the evidentiary burden of proving that the lack of PPE pushed the chance of developing cancer above some threshold amount. Alternatively, an employer or manufacturer may become bankrupt due to the economic effects of COVID-19 and avoid asbestos liability from subsequent claimants.

Source: Law360.com

AN UPDATE ON NURSING HOME LITIGATION

Federal Government Considers Relaxing Nursing Home Infection Control

The federal government is considering rolling back infection control requirements in U.S. nursing homes – even as the long-term care industry’s residents and workers are overwhelmed by the coronavirus. That makes no sense from a health and safety perspective and the government’s proposed action can’t be justified.

A rule proposed last year by the Centers for Medicare and Medicaid Services (CMS) would modify the amount of time an infection preventionist must devote to a facility from “at least part-time” to “sufficient time,” an undefined term that lets the facility decide how much time should be spent. The regulation has not been finalized, but CMS defended its proposal in late April, saying it aims to reduce regulatory burden and strengthen infection control.

Opponents of the change said the rule could leave nursing home residents more vulnerable to infection. They expressed concern, especially given the devastation COVID-19 infections have caused within long-term care facilities. Lindsay Heckler, a supervising attorney at the Center for Elder Law & Justice, a civil legal services agency in Buffalo, New York, stated:

It makes no sense at all – prior to pandemic, but more so now during a pandemic – to roll back any of the necessary infection and control requirements and the federal regulations. They should be strengthening these infection and control requirements.

Infection is the leading cause of morbidity and mortality in the nation’s 15,600 nursing homes. In its proposed rule, CMS acknowledged that 1.6 million to 3.8 million infections occur each year in those facilities, with almost 388,000 deaths attributed to infections.

The coronavirus has put a spotlight on the problem. More than 16,000 long-term-care residents and staff have died from complications caused by COVID-19, according to a USA TODAY analysis of government data. And at least 97,000 residents and staff have tested positive for the virus. Those figures are an undercount, because testing has been limited and states have not released full data.

CMS told USA TODAY its rule would allow facilities to determine for themselves the time needed for infection prevention and go above part-time when warranted. the agency said in a statement in late April:

This is a person-centered approach to care and would allow CMS to hold facilities accountable by having the infection preventionist onsite full time, especially in times of an outbreak.

Experts say COVID-19’s devastating effect on people in long-term care is the result of a complex mix of factors, including the characteristics of the virus, vulnerability of older adults and those with underlying conditions, staffing levels, and national availability of testing and personal protective equipment. For some, the virus’s effect on nursing homes has renewed their concerns about the proposed rule.

If you have any questions or need any additional information, contact one of the lawyers on our firm’s Nursing Home Litigation Team.

Source: USA Today

The Beasley Allen Nursing Home Litigation Team

Alyssa Baskam, a lawyer in our Atlanta office, heads Beasley Allen’s Nursing Home Litigation Team. Currently, Susan Anderson and Andrea Linnear serve on the team. In order to properly handle nursing home litigation, lawyers and support staff must have specific experience and expertise in this type case.

Alyssa and other members of her team are dedicated to representing the elderly and infirm who can’t fight back when they suffer at the hands of inadequate care and deficient inpatient facilities. If you have a case involving abuse or neglect at a nursing home or other inpatient facility, we would like to talk with you about working together on the case. You can contact Alyssa, Susan or Andrea at 800-898-2034 or by email at Ayssa.Baskam@beasleyallen.com, Susan.Anderson@beasleyallen.com or Andrea.Linnear@beasleyallen.com.

An Update On Class Action Litigation

Honda Sold Cars With Dangerous Fuel Pumps

Beasley Allen, on behalf of a proposed class of drivers, has filed suit against Honda Motor Co. Ltd. and parts manufacturer Denso Corp. alleging the companies produced vehicles that they knew had defective and dangerous fuel pumps that could cause stalling or shutdown while driving. The suit was filed by named Plaintiff Tucker Oliver.

In an 80-page complaint filed on May 13 in the United States District Court for the Northern District of Alabama, the named Plaintiff alleged that Honda and Denso knew the fuel pumps were defective as early as 2016 but misdiagnosed the problem and offered inadequate repairs in the form of a software upgrade instead of pump replacement. As a result of Honda’s actions and inactions, owners and lessees of the class vehicles have been and still are unknowingly driving on roads and highways in potentially ticking time bombs while Honda knowingly exposes its customers, from whom it made millions of dollars from the sale of the class vehicles, to the risk of grave physical harm or even death.

The pumps contain impellers made from defective plastic, which warp while used under normal driving conditions. This defect not only renders the engine inoperable but can also cause damage to other parts of the engine, according to the complaint. Honda and Denso had access to and knowledge of reasonable alternate designs that would not have the same problem. The pumps were the subject of an April recall by Denso, which pulled back more than 2 million defective units. We allege in the suit that the recall is an admission that the pumps present an unreasonable risk to consumers. The suit also cites complaints about the defect that drivers filed with the National Highway Traffic Safety Administration (NHTA), some as early as 2013, and that Honda admitted to knowing of a defect in 2016.

Honda unquestionably knew that the pumps were defective because it recalled more than 437,000 vehicles in January 2019 for a defect in the Denso-made fuel pumps that could result in hesitations in acceleration and stalling. But that recall failed to adequately remedy the situation because instead of replacing the units, Honda only offered a software upgrade as a temporary solution for vehicles whose fuel pumps failed, meaning the automaker left thousands of vehicles on the road and at risk of failure. While Honda continued to sell vehicles with this dangerous defect, it marketed its products based on their supposed safety and dependability. The defect not only poses a danger to drivers’ safety, but also devalues the cars.

In the suit, Plaintiff Oliver seeks to represent all current and former owners of 2013-2019 Honda vehicles that use the defective pumps in Alabama and nationwide classes. Oliver asks for unspecified damages and an order telling Honda to notify class members of the defect and its dangers. The Beasley Allen lawyers representing Oliver have also filed complaints making similar accusations against Subaru of America Inc. in Alabama in April and against Toyota Motor Corp. in New York in February.

Oliver is represented by Beasley Allen lawyers Dee Miles, Demet Basar, Clay Barnett and Mitch Williams. The case is Oliver v. Honda Motor Co. Ltd. et al., (case number 5:20-cv-00666) in the U.S. District Court for the Northern District of Alabama.

Source: Law360.com

Jeep Oil-Guzzling Engines Class Action Filed Against Fiat Chrysler

Consumers have filed a proposed class action against Fiat Chrysler in a Michigan federal court alleging the company knowingly sold Jeep vehicles equipped with dangerously defective engines that sucked up excessive amounts of oil, resulting in premature wear and catastrophic engine failure.

Plaintiffs Amber Wood, Ashley Schuchart, Karen Burke and Danielle Coates allege the 2.4L Tigershark MultiAir II engine in certain Jeep Cherokee, Compass, Renegade and other FCA US LLC vehicles contained a design or manufacturing defect that caused them to improperly burn off or consume abnormally high amounts of oil. That could then result in the vehicles’ engines stalling or abruptly shutting down without warning or indicator lights going off – all while the vehicles are being driven – creating a major safety hazard for passengers and other cars on the road.

Sufficient levels of engine oil are needed to keep engines properly lubricated or cooled so they don’t prematurely wear down internal parts, which could lead to poor engine performance or catastrophic engine failure, according to the complaint. The suit says:

The class vehicles regularly experience such severe shortages of oil that they automatically shut down to protect the engine before FCA’s indicator system tells them they are due for an oil change. This represents a complete failure of the oil change indicator system to monitor and provide meaningful information regarding the real-world status of the class vehicle’s oil levels.

FCA has known since 2015 that vehicles with the 2.4L Tigershark MultiAir II engine could shut down without warning due to low oil levels or oil pressure, given the numerous complaints that had been lodged directly with FCA, its dealerships, on internet forums and through the National Highway Traffic Safety Administration (NHTSA). The consumers alleged:

Yet rather than being honest about these problems, FCA has engaged in efforts to conceal them by describing the defects as ‘normal’ in a technical service bulletin.

FCA issued a July 31, 2015, technical service bulletin related to “engine oil consumption” that advised its dealerships on what was an “acceptable rate of oil consumption” for all 2013 to 2016 vehicles equipped with gasoline engines, according to the complaint. The bulletin stated that “engines require oil to lubricate and protect the load bearing and internal moving parts from wear including cylinder walls, pistons and piston rings.” The consumers alleged in the suit that FCA dealerships found there was “a problem with the pistons and/or rings causing the oil consumption defect.”

Aside from the safety risks, it’s alleged that the defect increases the expected cost of ownership and maintenance of the affected vehicles because car owners have to replenish the oil of their vehicles at “excessive abnormal rates.” Normalizing the alleged defect has allowed FCA to avoid the economic fallout that would inevitably result from recalling millions of affected vehicles, the suit says.

The class vehicles include the 2015-2016 Chrysler 200; 2013-2016 Dodge Dart; 2016-2020 Fiat 500X; 2017-2020 Fiat Toro; 2014-2020 Jeep Cherokee; 2017-2020 Jeep Compass; 2015-2020 Jeep Renegade; and 2015-2020 Ram ProMaster City.

The suit asserts claims for unfair and deceptive business practices; fraudulent concealment under Illinois, Ohio and Pennsylvania law; as well as violations of state consumer protection laws, among other claims.

The consumers are represented by Steve W. Berman and Elaine T. Byszewski of Hagens Berman Sobol Shapiro LLP, E. Powell Miller of The Miller Law Firm PC and Jeffrey S. Goldenberg and Todd Naylor of Goldenberg Schneider LPA. The case is Wood et al. v. FCA US LLC, (case number 2:20-cv-11054) in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

Drivers In Proposed Class Action Say Subarus Accelerate Without Warning

A proposed class action was filed against Subaru in New Jersey federal court on May 14, alleging that certain Foresters and Outbacks suddenly accelerate and that the automaker hid the defect. The drivers allege that Subaru has known about the defect since at least 2011, which causes the cars to accelerate without warning, often when a driver uses the brake pedal. The defect affects 2012-2018 Subaru Forester, 2015-2019 Subaru Legacy and 2015-2019 Subaru Outback vehicles. The drivers allege:

Not surprisingly, many class vehicle owners have reported collisions or near-collisions due to the sudden and unexpected acceleration. For example, the sudden unintended acceleration led to the hospitalization of Plaintiffs Martin and Margaret Greenwald.

Martin Greenwald was driving a Forester on a New Jersey highway in March with his wife when he pressed the brake pedal, but instead the car accelerated, hit a guard rail and flipped over. The affected vehicles have an inadequate fault detection system that is not robust enough to detect foreseeable problems, including unintended acceleration. In addition, the throttle body assembly and other components have faulty circuit boards. Finally, the class vehicles’ brake override system malfunctions or otherwise is ineffective to sufficiently override acceleration that the driver does not initiate and cannot control.

More than 200 complaints have been filed over the alleged defect with the National Highway Traffic Safety Administration (NHTSA), the drivers said. In one complaint, a 2017 Subaru Forester accelerated when the brake pedal was depressed and hit a cement divider, then crashed into a tree and a parked vehicle. It’s alleged further in the suit:

Instead of recalling cars and informing customers about the alleged defect, Subaru told dealers to tell customers that their cars are operating normally or that no issues could be found. Moreover, dealers also shift blame to the vehicle operators by telling them that the vehicle’s floor mats may cause the unintended acceleration, often even when the mats are properly secured and in place. This is a common practice in the automotive industry.

The drivers seek to represent a nationwide class of people who bought or leased the affected vehicles, as well as subclasses for drivers in Colorado, New Jersey, Connecticut and North Carolina. They claim that Subaru violated the Magnuson-Moss Warranty Act and the consumer protection laws of Colorado, New Jersey, Connecticut and North Carolina. The suit also includes unjust enrichment and breach of express warranty claims.

The drivers are represented by Russell D. Paul, Amey J. Park and Abigail J. Gertner of Berger Montague PC and Steven R. Weinmann, Tarek H. Zohdy, Cody R. Padgett and Trisha K. Monesi of Capstone Law APC. The case is Weston et al. v. Subaru of America Inc. et al., (case number 1:20-cv-05876) in the U.S. District Court for the District of New Jersey.

Source: Law360.com

Investors Filed New Suit Against Facebook Over Privacy Failures

Facebook stockholders filed a new derivative class suit in Delaware Chancery Court on May 13 accusing company founder Mark Zuckerberg and 18 other current or past directors and officers of fiduciary duty failures in the wake of a recently affirmed $5 billion federal privacy and data breach settlement.

While the complaint remained sealed at press time, publicly accessible documents in the filing include a copy of a Federal Trade Commission (FTC) penalty order and $5 billion fine issued last year for violations of the law and a privacy-focused FTC administrative order issued in 2012. The earlier order directed Facebook – the world’s largest social media company – to stop misleading consumers about their privacy status and ability to control access to their personal data and to better protect and control user information.

Related documents filed with the newly filed suit referred to a separate Chancery Court stockholder action for Facebook records in connection with the Cambridge Analytica privacy breach episode that came to light in 2016. In that case, third parties secretly harvested and sold user data to Cambridge, a U.K.-based political research and consulting firm.

Revelations and outrage surrounding Cambridge Analytica fed into the FTC’s $5 billion enforcement action and reform order, issued last year and affirmed in the U.S. District Court for the District of Columbia in April.

In the district court opinion upholding the FTC’s recent $5 billion fine and reform demands, Judge Timothy J. Kelly said the claims made against Facebook, which has 2.6 billion users, and some friends of the court briefs “call into question the adequacy of laws governing how technology companies that collect and monetize Americans’ personal information must treat that information.”

Named in the latest suit are seven current directors, including Zuckerberg, chief operating officer Sheryl Sandberg, Peggy Alford, Marc Andreessen, Kenneth Chenault, Peter Thiel and Jeffrey Zients. The four current directors not named in the suit were appointed in February or March of this year.

Also named are Erskine Bowles, Sue Desmond-Hellmann, Reed Hastings, Jan Koum, Lee Atwahl, Konstantinos Papamiltiadis, Sam Lessin, Christopher Cox, David Fisher, Michael Schropefer, Colin Stretch and David Wehner.

Because derivative suits seek damages for the company from directors and because the claims officially belong to the company, stockholders must first either demand board action on the allegations or show the effort would be futile because of director conflicts or risks of personal liability.

For derivative cases alleging waste of corporate assets, the stockholders also would have to get past the hurdles raised under the In Re: Caremark International Derivative Litigation case in 1996. That case requires a successful argument that the actions in dispute were so costly or one-sided that no reasonable, loyal director would have approved them.

Under the FTC settlement approved in April, Facebook was directed to create a “more robust” privacy program with a new privacy committee and a dedicated corporate officer. The FTC said in a summary that Facebook must develop “multiple channels of compliance,” and restructure its approach to privacy “from the corporate board-level down.

In addition, the order called for mechanisms to ensure that Facebook executives are “accountable for the decisions they make about privacy, and that those decisions are subject to meaningful oversight.”

Construction and General Building Laborers’ Local No. 79 General Fund, City of Birmingham Retirement and Relief System and stockholder Lidia Levy are represented by Kevin H. Davenport, Samuel L. Closic, John G. Day and Elizabeth Wang of Prickett Jones & Elliott P.A.; Peter B. Andrews, Craig J. Springer and David M. Sborz of Andrews & Springer LLC; and Ryan M. Ernst of O’Kelly Ernst & Joyce.

The case is Construction and General Building Laborers’ Local No. 79 General Fund, et al, (case number 2020-0363) in the Court of Chancery of the State of Delaware.

Source: Law360.com

Class Action Lawsuit Filed In Connection With IKEA’s Recall Of Nearly 30 Million Dressers

A class action lawsuit has been filed against IKEA US Retail LLC and IKEA North America Services LLC (collectively IKEA) on behalf of IKEA customers. This class action follows a recall of 8 million MALM chests and dressers and 21 million additional children’s and adult chests and dressers that IKEA knew were prone to tip over. These dressers did not comply with voluntary standards that required stability testing and have caused death and injury to children. The class action seeks damages for consumer protection violations, IKEA’s failure to issue refunds as promised in the recall, and for IKEA’s inadequate attempts to notify purchasers of the recall.

The lawsuit, filed in the U.S. District Court for the Eastern District of Pennsylvania on behalf of the parents of two young children who purchased IKEA MALM dressers in 2012, alleges that IKEA marketed and sold the dressers knowing they were unsafe and prone to tip over. The lawsuit also alleges IKEA did not contact its customers by mail, email or text to personally notify them of the initial recall on June 28, 2016, and a “re-announced” recall on Nov. 21, 2017.

It is further alleged in the suit that IKEA is not honoring the terms of the recalls and details the difficulty that the Plaintiffs, and other customers who took to the internet to complain, have experienced in returning the dressers, getting cash refunds, and getting IKEA to pick up the dressers at their homes.

The Plaintiffs in the lawsuit seek to represent a nationwide class of persons who purchased or owned the chests and dressers, which were manufactured between January 2002 and June 2016.

Any persons who purchased or owned an IKEA chest or dresser included in the June 28, 2016, recall and the “re-announced” recall of Nov. 21, 2017, may be entitled to a refund and other financial compensation.

The law firms of Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP and Francis Mailman Soumilas filed the class action referred to above.

Source: prnewswire.com

Settlements In Class Action Litigation

The following are some of the class action settlements that were reached last month. It appears that there has been a slowdown in activity because of the effects on the courts by the Coronavirus Pandemic.

Facebook Users Share Details Of Historic $550 Million Privacy Deal

A class of Illinois Facebook users has revealed the long-awaited details of a record-setting $550 million biometric privacy deal reached with the social media giant earlier this year. Each class member who files an eligible claim is expected to receive between $150 and $300. The company also agreed to provide nonmonetary injunctive relief to put an end to the certified class action claiming the company had breached Illinois’ Biometric Information Privacy Act (BIPA) by using facial recognition technology without users’ consent to fuel its photo tag suggestion feature.

The proposed settlement requires Facebook to create a $550 million settlement fund, from which class members who submit a valid claim shall be entitled a pro rata share, after deducting administrative expenses, any fee award to class counsel and incentive awards to three class representatives.

The class is believed to consist of roughly 6 million Illinois residents for whom Facebook stored a face template after June 7, 2011.

This prospective relief requires Facebook to automatically turn class members’ facial recognition settings to “off” and delete any face templates it may have for a class member unless that individual affirmatively opts in to facial recognition after receiving BIPA-complaint disclosures in a standalone document. Facebook will be precluded not only by statute, but also by a separately enforceable agreement from collecting or storing class members’ biometric data, through facial recognition technology or any other means in Illinois, without specific class member consent.

The settlement, if approved by the court, would close out nearly five years of litigation that spanned two states and was on the brink of trial earlier this year. The dispute was launched in 2015, when the named Plaintiffs filed three separate lawsuits in Illinois state and federal court. The initial complaint was the “first ever class action” filed under BIPA, a statute that was quietly enacted in 2008 but didn’t start to spur a barrage of lawsuits against businesses and employers until five years ago.

A hearing was held on May 21 before U.S. District Judge James Donato to consider the preliminary approval request.

The class is represented by Jay Edelson, Ryan D. Andrews, Benjamin Richman, Alexander G. Tievsky, J. Aaron Lawson, Rafey S. Balabanian and Lily Hough of Edelson PC; Paul J. Geller, Stuart A. Davidson, Lucas Olts, Shawn A. Williams, Christopher C. Gold, John H. George, Patrick J. Coughlin, Ellen Gusikoff Stewart and Randi D. Bandman of Robbins Geller Rudman & Dowd LLP; and Michael P. Canty and Corban S. Rhodes of Labaton Sucharow LLP.

The case is In re: Facebook Biometric Information Privacy Litigation, (case number 3:15-cv-03747) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Facebook Agrees To $52 Million Settlement To End Moderators’ Trauma Claims

Facebook Inc. has agreed to pay $52 million to settle claims that the social media giant ignored workplace safety standards and allowed content moderators to sustain significant psychological trauma as a result of the thousands of graphic images they see on the job. The settlement requires Facebook to pay 10,000 content moderators who worked for Facebook’s vendors in California, Arizona, Texas and Florida $1,000 each. The company also agreed to cover treatment costs and to provide more counseling to moderators while they work, the statement says.

Under the settlement, Facebook also agreed to pay for treatment of class members who have been diagnosed with psychological conditions as a result of their work for Facebook, who can potentially receive up to $50,000 in additional damages, depending on the amount remaining in the settlement fund after screening and treatment payments.

Additionally, Facebook has agreed to require Facebook’s vendors to provide coaching sessions with licensed mental health counselors and other mental health support, as well as enhance review tools designed to make content moderators’ work safer.

If approved, the settlement would resolve a proposed class action that moderator Selena Scola filed in California state court in September 2018. Ms. Scola says she developed post-traumatic stress disorder from moderating content on Facebook.

Ms. Scola alleged that she and other content moderators were denied protection against the severe psychological trauma that can result from repeated exposure to graphic content like child sexual abuse, beheadings, terrorism and animal cruelty.

Scola’s suit is one of several against Facebook and its contractors, including Pro Unlimited Inc. and Cognizant Technology Solutions U.S. Corp., demanding that content moderators be provided with mental health screening, treatment and compensation as well as improved working conditions.

The moderators are represented by Joseph R. Saveri, Steven N. Williams, Gwendolyn R. Giblin, Kevin E. Rayhill and Kyle P. Quackenbush of Joseph Saveri Law Firm; Korey A. Nelson, Lydia A. Wright, Amanda Klevorn, H. Rick Yelton, Warren Burns and Kyle Oxford of Burns Charest LLP and William Most. The case is Selena Scola et al. v. Facebook Inc., (case number 18-CIV-05135) in the Superior Court of California, County of San Mateo.

Source: Law360.com

Judge Initially Approves GM’s $120 Million Settlement To End Driver Ignition Claims

A New York federal judge has preliminarily approved General Motors’ $120 million settlement to end multidistrict litigation (MDL) with drivers who claim their cars lost value due to faulty ignition switches, ruling that the settlement is fair and that it will likely be granted final approval.

The settlement that U.S. District Judge Jesse M. Furman preliminarily signed off on includes a $70 million common fund for drivers. Class counsel plans to seek up to $34.5 million in attorney fees. At press time, no one has filed an objection to preliminary approval of the settlement. If granted final approval, the settlement would resolve class allegations that GM LLC and its predecessor General Motors Corp., which filed for bankruptcy in 2009, are both responsible for “egregious” failures to design safe switches for Chevrolet, Pontiac, Cadillac and other vehicle brands.

The suit alleges the alleged design flaw causes keys to slip out of position, thereby shutting off the engine and disabling brakes while operating the vehicle and potentially preventing the airbags from inflating. The Plaintiffs allege “GM aggressively covered up the problem and stymied customers seeking fixes.”

GM announced the proposed settlement in March. Pursuant to the settlement, a trust, referred to as the GUC Trust, controlled by creditors in the company’s 2009 bankruptcy, will contribute up to $50 million. However, the settlement was held up after the GUC trust and a different GM bankruptcy trust – the Avoidance Action Trust (ATTO), which was formed to prosecute claims on behalf of creditors – clashed on the proposed settlement’s terms.

The AAT argued that the proposed settlement agreement failed to provide finality for all interests involved. But the parties reached a compromise in April in which the AAT agreed to fund the economic-loss settlement by paying $2.2 million in exchange for “broad mutual releases” from “all potential claims.” Judge Furman cleared the way for the settlement at an April hearing by taking jurisdiction over both federal court and bankruptcy court “economic loss” claims in the nearly five-year-old litigation. He then preliminarily approved the deal.

Judge Furman also gave class members 90 days to submit a claim. Any person who wants to opt out must do so by mailing a “written, hand-signed request” by Oct. 19. Objections to the settlement must be submitted to the court by Nov. 23. A hearing on the settlement’s final approval is set for Dec. 18, 2020.

I feel compelled to point out that this litigation and the resulting settlement would likely never have happened had it not been for the courage of Ken and Beth Melton who took on GM after the tragic death on March 10, 2016 of their daughter Brooke. GM’s defective ignition switch was discovered in the lawsuit Lance Cooper, along with a team of Beasley Allen lawyers, successfully handled for the Melton family. It was during the Melton case that the bad conduct of GM was initially and fully exposed. All the damaging internal documentation was received from GM during extensive discovery in the Melton case.

Source: Law360com

Hyundai’s Offer To Settle Engine Defect Suits Gets Initial Approval

A California federal judge has granted conditional, preliminary approval of Hyundai and its affiliate Kia’s agreement to end a consolidated group of proposed class actions over a defect in engines of millions of cars that caused some of them to burst into flames. U.S. District Judge Josephine L. Staton noted that the parties have not “quantified” the proposed settlement’s value, but the companies announced in the fall they had set aside $758 million to settle class actions in the U.S. and South Korea.

The proposed settlement does grant preliminary certification of 4.1 million class members and offers details on proposed relief, including reimbursement for certain out-of-pocket repairs and costs, a lifetime warranty extension and other perks like receiving a comparable loaner vehicle while their car is being repaired under the lifetime warranty.

Although the total value of the settlement is not finalized, Judge Staton said that “in light of the comprehensive nature of the consideration offered as well as the obvious value of the lifetime warranty extension, the court finds that the amount offered in settlement weighs in favor of approval at this preliminary stage.” The Plaintiffs have also stated that the proposed settlement provides class members with “virtually everything” they sought in their complaints.

The suit, by drivers of Hyundai and Kia models with Theta II gasoline direct injection engines, accused Hyundai and Kia of not disclosing defects or issuing needed recalls until January 2018, almost two years after the National Highway Traffic Safety Board (NHTSA) began investigating reports of engine fires and two months after company executives were asked to attend a Senate Commerce Committee hearing on the issue. The suits all similarly allege there were manufacturing or design defects in certain Hyundai Motor Co. and Kia Motor Corp. vehicles equipped with gas direct injection engines that caused the engines to seize, fail or potentially catch fire.

The cars included in the proposed settlement include Hyundai model years 2011-19 Sonatas, 2013-18 Santa Fe Sports and 2014-19 Tucsons, as well as various Kia models over a similar period including Sportage, Sorento and Optima vehicles. “The allocation of settlement funds also appears fair, adequate, and reasonable,” Judge Staton said. “Each class member is equally entitled to all forms of consideration offered in the proposed settlement. Considering the difficulties and expenses class members would face to individually pursue litigation and the likelihood that they may otherwise be unaware of their claims, this weighs in favor of preliminary approval.”

The drivers are represented by Steve Berman of Hagens Berman Sobol Shapiro LLP, Matthew D. Schelkopf of Sauder Schelkopf, Adam Gonnelli of The Sultzer Law Group PC and Bonner Walsh of Walsh PLLC. The cases are In re: Hyundai and Kia Engine Litigation, (case number 8:17-cv-00838) in the U.S. District Court for the Central District of California.

Source: Law360.com

Medical Supplier Gets Initial Approval For $35 Million Investor Settlement

Medical supplier Henry Schein Inc. has received initial approval in a New York federal court for a $35 million settlement to end an investor class action accusing the company of hiding an anti-competitive scheme that ended up adversely affecting the company’s stock price. U.S. District Judge Margo K. Brodie preliminarily approved the settlement that ends litigation that started with an individual shareholder suit in March 2018.

The settlement was reached with the City of Miami General Employees’ & Sanitation Employees’ Retirement Trust, which became lead Plaintiff in the case. It’s alleged in the suit that Henry Schein knew about a scheme with its competitors not to offer discounts on supply sales to buyer groups representing small dental practices, but kept that information from investors to inflate the company’s stock price. Investors sued over losses that occurred when the Federal Trade Commission (FTC) started an enforcement action.

A class will be formed solely for the purpose of disbursing the settlement, according to the judge’s order. The class will include all persons and entities who purchased or otherwise acquired Henry Schein common stock from March 7, 2013, through Feb. 12, 2018, “and who were damaged thereby.” Shareholder Joseph Salkowitz claimed in March 2018 that Henry Schein’s executives knew the scheme was in place, but hid its existence from the investing public until the FTC acted.

Judge Brodie said that notice could be sent to the settlement class and that a fairness hearing will be scheduled, possibly by phone, on the preliminary settlement agreement.

The Plaintiffs are represented by James A. Harrod and Michael M. Mathai of Bernstein Litowitz Berger & Grossmann LLP and Robert D. Klausner and Stuart A. Kaufman of Klausner Kaufman Jensen & Levinson.

The case is In re Henry Schein Inc. Securities Litigation, (case number 1:18-cv-01428) in the U.S. District Court for the Eastern District of New York.

Source: Law360.com

Brazilian Meatpacker BRF Settles Shareholder Suit For $40 Million

Brazilian meat and food processing giant BRF SA has reached a $40 million settlement to resolve a stock-drop suit claiming it engaged in a widespread bribery scheme to conceal unsanitary practices at its meatpacking facilities. The settlement was submitted to a New York federal judge.

BRF had been accused of engaging in an “unprecedented and massive case of food fraud” including bribery of Brazilian politicians, falsification of laboratory test results and improper use of additives and chemicals. The company’s alleged misconduct resulted in raids of its offices by Brazilian federal police that, when revealed to the public in 2017 and 2018, led to sharp drops in BRF’s share price, according to the proposed securities class action.

The Alabama pension fund leading the suit updated its claims in a fourth amended complaint last fall, alleging that on March 17, 2017, news reports revealed Brazilian federal police had raided dozens of meatpackers, including BRF’s offices, in connection with a two-year bribery investigation.

Known as “Operation Weak Flesh,” the investigation uncovered at least 40 cases of meatpackers that had bribed inspectors and politicians to “overlook unsanitary practices, reassign dishonest health inspectors, and obtain fraudulent health certifications for their products.” Three BRF employees, along with numerous public officials, were arrested in connection with the investigation. BRF’s share price fell nearly 8% on the day the raids were reported.

The wider investigation continued over the course of the next year, and on March 5, 2018, a Brazilian court authorized another round of raids at BRF’s facilities after finding evidence that its senior executives took steps to avoid legitimate food safety checks, the investors claim. The court ruling also found that BRF had sent chicks with salmonella to contract farmers and provided those farmers with an additive-laced poultry feed supplement.

It was also reported on March 5, 2018, that BRF’s former CEO and other executives had been arrested in connection with the investigation, leading BRF’s stock price to fall nearly 20% by the end of the day, the complaint alleges.

The settlement reached would provide a $40 million payment to investors who acquired BRF’s American depositary receipts between April 2013 and March 5, 2018. It should be noted that the settlement contains no admission of wrongdoing by the Defendants.

The investors are represented by Samuel Rudman, David A. Rosenfeld, Mario Alba Jr. and Christopher T. Gilroy of Robbins Geller Rudman & Dowd LLP.

The case is In re BRF S.A. Securities Litigation, (case number 1:18-cv-02213) in the U.S. District Court for the Southern District of New York.

Source: Law360.com

$500 Million IPhone Settlement Gets Approval

A California federal judge has preliminarily approved Apple’s $500 million settlement to end multidistrict litigation (MDL) accusing the company of releasing software updates that slowed down the performance of certain iPhones, but extended the final approval deadlines in light of the coronavirus pandemic.

During a hearing held via Zoom’s videoconferencing tool, U.S. District Judge Edward J. Davila told the parties he wants to extend the final approval deadlines by a few weeks due to the COVID-19 crisis. The judge told the parties to meet and confer about proposing a new date for a final settlement approval hearing that would take place sometime in December.

If approved, the settlement would resolve dozens of lawsuits that were transferred to Judge Davila in April 2018 and consolidated the following May, after Apple admitted to occasionally slowing iPhones with older batteries to avoid unexpected shutdowns.

The suits generally allege that the company released a software update that diminished the battery life of older iPhones, just as it rolled out new models. The bugs allegedly prompted some customers to spend hundreds of dollars on new phones.

During more than two years of litigation, Judge Davila granted Apple’s motion to dismiss the consumers’ battery performance and overseas false advertising claims. The judge also rejected arguments that the computer giant was liable for breaking federal hacking laws. The company’s bid to dismiss computer intrusion claims, among others, were denied by Judge Davila.

Under the proposed settlement, Apple has agreed to pay up to $500 million in total, depending on the amount of iPhone users to participate in the deal. Class members would receive $25 each for their phones. If the payouts, attorney fees and expenses don’t add up to at least $310 million, class members will receive up to $500 apiece until that minimum settlement amount is reached.

The settlement only applies to individuals who performed certain software updates on their Apple iPhone 6, 6 Plus, 6s, 6s Plus, 7, 7 Plus and SE devices, and not all owners of those phones.

The consumers are represented by Mark Molumphy, Joseph W. Cotchett, Brian Danitz and Anya Thepot of Cotchett Pitre & McCarthy LLP, Frederic S. Fox, David A. Straite, Donald R Hall and Laurence D. King of Kaplan Fox & Kilsheimer LLP and Terrence Edwards.

The case is In Re: Apple Inc. Device Performance Litigation, (case number 5:18-md-02827) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Equifax Agrees To $30 Million Settlement With Credit Unions Over Data Breach

Equifax Inc. has agreed to pay $5.5 million to a putative class of thousands of banks and credit unions, and to spend at least $25 million on the financial institutions’ data security, to end their claims in multidistrict litigation (MDL) stemming from a massive 2017 data breach.

The proposed class includes all U.S. banks and credit unions that issued credit or debit cards whose information was believed to have been breached. The banks will be able to request $4.50 per breached card under the proposed settlement.

Some of the security measures that the $25 million will go toward include continuing to identify threats to personally identifiable information and performing data security risk assessments. Equifax also agreed to cover settlement administration and notice costs, attorneys’ fees, expenses, and named Plaintiff service awards.

The banks and credit unions said Equifax knew that the hacking of its systems was foreseeable and that its internal security was inadequate.

Equifax contended in July 2018 that the financial institutions lacked Article III standing as they had not shown that they had experienced an actual injury, such as a fraudulent transaction being made using the personal data of their customers, as opposed to the speculative risk that a hacker may choose to use a customer’s personal data. But the banks countered by saying in September 2018 that the risk of future injury is enough to confer Article III standing. They said the risk from future “fraudulent banking activity” is significant and directly traceable to the data breach, which saw the personal data of more than 140 million Americans leaked.

The financial institutions are impacted the most by identity theft, as they “bear the risk of loss when identity thieves use a customer’s [personally identifiable information] to open accounts, transfer funds, take out loans, make fraudulent transactions or obtain credit or debit cards in the customer’s name,” the banks and credit unions said.

Equifax also owed the financial institutions a duty under Georgia law not to subject them to an “unreasonable risk of harm.” It was the credit reporting agency’s own actions that led to the increased risk of a data breach. Given the nature of its business, Equifax had assumed a duty to safeguard the personal data of bank and credit union customers, with the institutions relying on the “security and accuracy” of that data to carry out their business.

The banks and credit unions are represented by Joseph P. Guglielmo of Scott & Scott Attorneys at Law LLP, and Gary F. Lynch of Carlson Lynch Sweet Kilpela & Carpenter LLP.

The MDL is In re: Equifax Inc. Customer Data Security Breach Litigation, (case number 1:17-md-02800) in the U.S. District Court for the Northern District of Georgia.

Source: Law360.com

THE CONSUMER CORNER

Senators Say Safety Regulations Must Precede COVID-19 Business Immunity

Republican and Democratic senators agreed at a panel hearing on May 12 that the federal government needs to issue enforceable workplace standards before any federal law can be passed that would shield businesses from civil lawsuits in connection with worker and customer COVID-19 infections.

During a Senate Judiciary Committee meeting to discuss a possible liability shield for businesses – a topic that Senate Majority Leader Mitch McConnell, R-Ky., has said will be a top Republican priority for the next coronavirus relief bill – senators on both sides of the aisle expressed concerns that there is no de facto standard of care since safety guidelines issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) are merely recommendations that are not enforceable. Committee Chairman Lindsey Graham, R-S.C., said:

The sooner we can come up with a regulatory, OSHA-driven process to allow big, small and intermediate businesses [guidance], the better off we’ll be.

At the hearing, witnesses representing employers and employees said they would all welcome clear, enforceable and industry-specific guidelines for business operation best practices.

The panel’s top Democrat, Sen. Dianne Feinstein of California, said it is critical for the federal government to issue specific coronavirus-related standards for workplaces. She added:

But so far OSHA has failed to do so. Furthermore, it has been reported that the [Trump] administration is preventing the CDC from issuing its own detailed guidelines on how to safely reopen businesses.

David Vladeck, a Georgetown University Law Center professor, testified that enforceable regulatory guidelines will allow companies to mount a regulatory compliance defense should they be sued over an infection. He stated:

We urgently need science-based COVID-19 enforceable guidelines from public health agencies. Those guidelines not only safeguard the public but at the same time they provide the standards of liability. Compliance with those guidelines would eliminate any liability risk.

Professor Vladeck also testified that granting immunity to businesses is unnecessary because Plaintiffs bringing COVID-19 infection cases must overcome the substantial legal hurdle of establishing causation. He explained that the lack of a robust contact tracing system in the U.S. makes it virtually impossible for a retail customer to prove he or she was infected at any given establishment. He added:

Someone who has been out and about on the streets and contracts the virus, there’s no way in the world they will be able to say it’s Mr. Smith’s fault.

Sen. Patrick Leahy, D-Vt., stated that if a “bad actor” business knows it can’t be sued, “there’s not much of an incentive for them to do the things they should do.” The sweeping Democratic proposal for the next relief bill, which was passed on May 15 by the U.S. House of Representatives, and sent to the Senate does not include a liability shield.

Giving blanket immunity to Corporate America at any time, including the current health and economic crisis, would be a disaster for the American people. Over the years we have seen examples of how corporate greed and lack of safety and health concerns have caused major problems for people in this country. The best example during the current Coronavirus crisis is found in the large meat-packing facilities where workers are at great risk of being infected with the Coronavirus. The workers have been forced back into an extremely hazardous situation in a number of facilities and lives are being lost. Hopefully, Congress will proceed with great caution and concern before it provides any type immunity to corporate wrongdoers during this crisis.

Source: Law360.com

U.S. Chamber Lobbies Against Small Businesses With Business Interruption Claims

The U.S. Chamber of Commerce is taking a stand against small businesses struggling to survive coronavirus lockdowns by siding with insurance companies that are denying pandemic-related business interruption claims. Based on its past, this conduct should not come as a surprise. The U.S. Chamber has consistently ignored the needs of small businesses in its quest to support huge corporations.

One of the most powerful and aggressive lobbying forces in the country, the U.S. Chamber sent a letter to Congress on April 29 urging two House committees to place the staggering financial burden of floating small businesses on U.S. taxpayers, either through a federal trust fund or government-sponsored insurance.

Restaurants, bars, bakeries, daycare centers, specialty shops, salons, and gyms are some of the small businesses that have been blindsided by denied business interruption claims after state and local governments forced shutdowns of all “nonessential” companies.

Many insurers have shielded themselves from pandemic-related claims with the inclusion of language in the small print of their policy terms excluding “loss or damage caused by or resulting from any virus, bacterium, or other microorganism.” Other policies don’t specifically cover losses related to global pandemics.

The blanket denial of business interruption claims has prompted several states to introduce legislation that would mandate insurance companies to pay the claims at least partially – an idea that the White House has said it supports.

President Trump had this to say on the subject:

You have people that have never asked for business interruption insurance, and they have been paying a lot of money for a lot of years for the privilege of having it, and then when they finally need it, the insurance company says, ‘We’re not going to give it.’ We can’t let that happen.

The U.S. Chamber has the resources to buy political favors on Capitol Hill. In 2019 alone, it spent $77 million on lobbying efforts – more than the amount spent by 5,500 other special interest groups, according to the Center for Responsive Politics, a nonprofit, nonpartisan organization that tracks the effects of money and lobbying on elections and public policy.

In its letter to Congress, the U.S. Chamber asserts that mandating pandemic coverage in business interruption policies isn’t only unconstitutional, it would devastate the insurance industry.

Such bold assertions may be hyperbole, but several legislators backing measures that would work for business say the insurance industry shouldn’t be allowed to collect millions of dollars and then “cut and run” when it’s time to pay on claims.

Bob Hunter, a former Texas insurance commissioner and current director of insurance at Consumer Federation of America, told USA Today that court battles over coronavirus coverage are likely to last for years. He said the lobbying dollars flowing to the U.S. Chamber of Commerce from small businesses are being used against them. “We’re paying to build our own scaffold for where they’re going to hang us,” Mr. Hunter said.

Beasley Allen lawyers are actively pursuing cases with clients whose insurance companies denied their business interruption claims. Dee Miles, Head of our Consumer Fraud & Commercial Litigation Section, Rachel Boyd and Paul Evans are spearheading this litigation for our firm. If you would like to discuss a potential claim, you can contact them at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com or Paul.Evans@beasleyallen.com.

FDA Issues Emergency Use Authorization For Potential COVID-19 Treatment

On May 1, the United States Food and Drug Administration (FDA) issued an emergency use authorization for the investigational antiviral drug remdesivir. The emergency use authorization (EUA) allows for remdesivir to be distributed in the United States and administered intravenously by health care providers to treat both suspected or laboratory-confirmed COVID-19 in adults and children hospitalized with severe disease. Severe disease is defined as patients with low blood oxygen levels or needing oxygen therapy or more intensive breathing support such as a mechanical ventilator.

Remdesivir is manufactured by Gilead Sciences, Inc. According to Gilead, “remdesivir is an investigational nucleotide analog with broad-spectrum antiviral activity – it is not approved anywhere globally for any use.” Although it has previously been used to treat Ebola, Gilead describes remdesivir as an “experimental medicine that does not have established safety or efficacy for the treatment of any condition.”

The issuance of an EUA is different than FDA approval. In determining whether to issue an EUA, the FDA evaluates the available evidence and carefully balances any known or potential risks of any unproven products with any known or potential benefits of making them available during the emergency. In a statement, the FDA declared that based on its evaluation of the EUA criteria and the scientific evidence available, “it was determined that it is reasonable to believe that remdesivir may be effective in treating COVID-19, and that, given there are no adequate, approved or available alternative treatments, the known and potential benefits to treat this serious or life-threatening virus currently outweigh the known and potential risks of the drug’s use.” The EUA will be effective until the declaration from the Secretary of the U.S. Department of Health and Human Services (HHS) that circumstances exist justifying the emergency use of drugs for prevention of COVID-19 is terminated and may be revised or revoked if it is determined the EUA no longer meets the statutory criteria for issuance.

The FDA’s issuance of the EUA came two days after a clinical trial sponsored by the National Institutes of Health (NIH) showed what HHS Secretary Alex Azar described as promising results. Although the clinical trial is still ongoing, the NIH released preliminary data showing that the study met its primary outcome of statistically significant improvement in time to recovery by Day 29. According to the NIH, patients who were treated with remdesivir also showed a median time to recovery of 11 days compared with 15 days for those who received the placebo. Recovery in the study was defined as being well enough for hospital discharge or returning to normal activity level. Patient enrollment for the Adaptive COVID-19 Treatment Trial (ACTT) began on Feb. 21, 2020, and concluded on April 19.

On the same day that data from ACTT was released, The Lancet published results showing that remdesivir failed to show clinical improvement in severely infected patients in a Chinese Phase III trial. In that study, the primary endpoint was time to clinical improvement up to day 28, defined as the time from randomization to the point of a decline of two levels on a six-point ordinal scale or clinical status (from 1=discharged to 6=death) or discharged alive from hospital whichever came first.

The average time to clinical improvement was 21 days for patients in the remdesivir group, compared with 23 days in the placebo group. However, according to the study authors “the numerical reduction in time to clinical improvement in those treated earlier requires confirmation in larger studies.” Twenty-eight days after treatment, 22 of 158 patients (13.9%) in the remdesivir cohort died compared to 10 of 78 untreated control patients (12.8%). The authors concluded this difference was not statistically significant.

Gilead is one of many companies currently attempting to develop a vaccine for COVID-19. Additional companies include GeoVax, Inc., BravoVax Co. Ltd., Regeneron Pharmaceuticals, Inc., and Inovio Pharmaceuticals, Inc.

Sources: U.S. Food & Drug Administration, Law360.com, Clinicaltrials.gov and Gilead.com

3M Wins Its Injunction Over COVID-19 Price-Gouging

3M Company accused Performance Supply LLC of violating federal trademark law and grossly inflating the price of N95 protective masks amid the COVID-19 pandemic. 3M has filed a lawsuit alleging that Performance Supply is using the 3M trademark to perpetrate a false and deceptive price-gouging scheme on unwitting consumers, including agencies of government, in connection with the attempted sale of 3M’s N95 respirators.

3M is a provider of scientific, technical, and marketing innovations throughout the world, with a line of more than 60,000 goods and services ranging from household and school supplies to medical devices and equipment. In the lawsuit, 3M claims that Performance Supply, a company that purportedly operates out of Englishtown, New Jersey, was selling N95 masks at four to six times their actual cost while implying that 3M approved the price hike.

Performance Supply allegedly attempted to deceive New York City procurement officers into purchasing 7 million of 3M’s N95 respirators for 500% more than 3M’s actual list price and illegally used 3M’s distinctive red-letter logo in the attempted sale. As a result of Performance Supply’s conduct, New York City procurement officers were led to believe that Performance Supply was authorized to send out formal bids on 3M’s behalf, which it was not.

In April of this year, 3M filed suit against Performance Supply in federal court in the Southern District of New York. In its Complaint, 3M seeks relief for Performance Supply’s violation of (i) various federal and state trademark laws; (ii) federal and state laws prohibiting unfair competition, false association, false endorsement, false designation of origin, and other deceptive acts and practices; (iii) federal and state laws against false advertising; and (iv) claims involving injury to business reputation. 3M sought a preliminary injunction against Performance Supply and by May 4, 2020, U.S. District Judge Loretta A. Preska in Manhattan ruled in favor of 3M, granting the injunction.

Judge Preska held that Performance Supply is not an authorized distributor, vendor, agent, or representative of 3M, and is not authorized to solicit orders of any size for 3M’s N95 respirators. According to the Judge’s ruling, Performance Supply “is trading off the widespread commercial recognition and goodwill” of 3M by using its branding to sell N95 masks. Judge Preska enjoined Performance Supply from using 3M’s name, stating in her ruling:

The public has an interest in avoiding confusion about the source and quality of goods and services. This is especially true during the global COVID-19 pandemic, when consumers, including experienced governmental procurement officials, are relying on the 3M Marks and 3M Slogan to indicate that goods and services offered thereunder originate from 3M, and are of the same quality that consumers have come to expect of the 3M brand.

As a result of the injunction, Performance Supply is prohibited from using the 3M marks and 3M slogan, and any other word or symbol that is similar to the marks and slogan. The Court’s preliminary injunction also enjoined Performance Supply from engaging in any false, misleading, and/or deceptive conduct in connection with 3M, including representing itself as being an authorized vendor of 3M products or having an affiliation with 3M, and falsely representing that 3M has increased the prices of its 3M-brand N95 respirators.

While New York City eventually did not place the order of 7 million N95 masks, had it done so, the municipality would have been up-charged by $30 million during this COVID-19 crisis.

Opportunistic companies seeking to exploit the increased demand for respirators by price-gouging and committing unfair and deceptive acts at the expense of health care workers, first responders, and citizens of this country in the midst of a national pandemic is shameful. Beasley Allen has a long history of representing consumers, states and municipalities in massive fraud schemes that target the most vulnerable aspects of our nation’s health care needs. If you have any questions about our firm’s health care and consumer fraud practice, contact Dee Miles, Ali Hawthorne, or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Alison.Hawthorne@beasleyallen.com, or James.Eubank@beasleyallen.com.

Source: Law360.com

Apotex To Pay $24 Million Criminal Fine In DOJ Price-Fixing Case

Canadian drugmaker Apotex Corp. will pay a $24 million criminal penalty to settle felony allegations that it conspired to jack up the price of a popular cholesterol drug. The U.S. Department of Justice (DOJ) announced the settlement on May 7.

According to the DOJ, a deferred prosecution agreement filed in a Pennsylvania federal court includes the penalty and an admission by Apotex “that it conspired with other generic drug sellers to artificially raise the price of pravastatin,” which belongs to the widely used class of cholesterol-lowering statin drugs.

Apotex will also assist the government in its sprawling pharmaceutical price-fixing investigation, which has led to antitrust charges against three other generic-drug makers that also signed deferred prosecution agreements. Four individuals have also been charged; three have pled guilty and one is awaiting trial, according to the DOJ.

Apotex has agreed to help government lawyers who are examining possible “violations of federal antitrust and related criminal laws involving the production and sale of generic drugs in the United States,” according to the deferred prosecution agreement. U.S. Attorney William McSwain said in a statement:

Compromising the health and welfare of innocent people by artificially inflating the price of a much-needed medication is not only morally wrong but illegal. Preying on the public in this manner for the sake of financial gain is something that must be rooted out of the pharmaceutical industry.

The DOJ accused Apotex of participating in the purported conspiracy from May 2013 to December 2015. The deferred prosecution agreement will last three years.

According to the government, Apotex was able to stamp out competition for pravastatin, and it sold $105 million worth of the drug. Roberta Loomar, Apotex’s U.S. general counsel, said in a statement:

This activity, occurring several years ago, was clearly against our established compliance policies, training and culture. With this resolution, we are highlighting our commitment to continually improve our compliance and training programs, as well as evolve our controls to ensure full compliance with all antitrust laws.

There have been other resolutions so far in the DOJ’s broader investigation. Those have included a $195 million criminal penalty against Sandoz Inc., a $3 million payment from Rising Pharmaceuticals Inc. and an agreement for cooperation with Heritage Pharmaceuticals Inc. Separately, there is also multidistrict price-fixing litigation in which numerous drug companies are being sued for damages by states, consumers, pharmacies, health insurers and union benefit plans.

The government is represented by William M. McSwain of the U.S. Attorney’s Office for the Eastern District of Pennsylvania and Carsten M. Reichel, Mark C. Grundvig, Tara M. Shinnick and Julia M. Maloney of the U.S. Department of Justice’s Antitrust Division.

The case is U.S. v. Apotex Corp., (case number 2:20-cr-00169) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com

Liability Of Cruise Ship Lines

In November 2019, the first known diagnosis of a new strain of the coronavirus, COVID-19 was made in Wuhan, China. Fast forward to January 2020 and the first COVID-19 case was identified in the United States.

As we have watched this historic drama unfold in this country and around the world, one thing has stood clear – a large number of individuals have contracted the viral disease while traveling on cruise ships. In early March of this year, it was reported that 21 passengers aboard the Grand Princess had tested positive for this strand of coronavirus. Three days later, it was reported that one of the passengers died from the virus.

According to a USA Today report (publ. April 2, 2020; Cara Kelly), two of the passengers, Ronald and Eva Weissberger, aboard the ship were the parents of Debi Chalik, a lawyer from Florida. Ms. Chalik, believing that the cruise line failed to take appropriate steps to protect her parents, filed suit on their behalf.

The problem with this litigation, as has been reported, is an antiquated federal maritime law that protects ships that operate in navigable waters. The law, which existed prior to the sinking of the Titanic, is referred to as Death on the High Seas Act. The law, passed in 1920, limits loss to physical injuries only and precludes recovery for other species of damages, such as mental anguish and pain and suffering.

Even older laws, such as the Limitation of Liability Act of 1851 (yes, dating back to the mid-1800s), allow vessel operators and owners to limit their exposure to the value of their ships, disallows class actions, and sets a very short statute of limitation (injured persons typically have one year from the date of injury or exposure to file suit). This limitation has not deterred Ms. Chalik. She has been retained by a large number of ship passengers, including passengers from the Ruby Princess, an Australian ship that saw several hundred confirmed COVID-19 diagnoses.

Ms. Chalik is basing her filed lawsuits, in part, upon a provision in the ticket issued to passengers that permits lawsuits to be filed in the event of “immediate danger.” The lawsuits filed by Ms. Chalik claim that such a danger existed because the cruise line was put on a notice well before the ensuing cruise and that resulted in, for example, more than 700 people becoming infected on the Diamond Princess, with nine deaths being reported. The lawsuits further contend that Princess Cruises acted grossly negligent when they permitted more passengers to board a ship that was known to have been infected on previous cruises, resulting in more than 100 additional confirmed exposures and additional deaths.

Michael Winkleman, a lawyer from Miami, Florida, filed a class action lawsuit against Costa Cruises, a subsidiary of Carnival Cruise Lines, on behalf of all passengers of the Costa Luminosa. The proposed class action lawsuit claims that the cruise line failed to notify and protect its passengers about the risks of exposure to the virus and to take appropriate measures to protect the passengers of the ship.

The lawsuit alleges that a prior Italian passenger had symptoms consistent with the virus and then tested positive, but that the cruise line failed to notify the oncoming passengers of this important fact. The result, the lawsuit alleges, is that more than 2,000 people have been exposed with a reported seven people having now lost their lives.

If you need more information on any aspect of the matters discussed above, contact Ben Locklar, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Ben.Locklar@beasleyallen.com.

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

Beasley Allen has been able to keep things moving during the current pandemic crisis. Taking care of our clients’ cases and their need for justice are very important and our lawyers and support staff have been hard at work. The following is the latest update on the types of cases that Beasley Allen lawyers are currently working on. The firm operates in four separate Sections with each Section focusing on a specific area of litigation. The four Sections are Personal Injury & Products Liability, headed by Cole Portis; Mass Torts, headed by Andy Birchfield; Toxic Torts, headed by Rhon Jones; and Consumer Fraud & Commercial Litigation, headed by Dee Miles. Information on the current litigation will be set out below for each Section.

Personal Injury & Products Liability Section

The personal Injury & Products Liability Section is handling cases in a number of areas. Currently, the Section has 18 lawyers and 31 support staff. Sloan Downes is the Section Director. The lawyers and support staff are working on the areas of litigation set out below. The primary lawyer contact will be listed for each type case. Following is the list of current activity in the Section.

Product Liability – We continue to focus on accident cases involving automobiles, heavy equipment and consumer products. Some of these auto cases involve single-vehicle crashes, while others involve multiple-vehicle accidents. We would like to review any case involving catastrophic injury or death. Contact: cole.portis@beasleyallen.com, greg.allen@beasleyallen.com, ben.baker@beasleyallen.com, chris.glover@beasleyallen.com, mike.andrews@beasleyallen.com, graham.esdale@beasleyallen.com, labarron.boone@beasleyallen.com or rob.register@beasleyallen.com.

Truck Accidents – There are significant differences between handling an interstate trucking case and other car wreck cases. It is imperative to have knowledge of the Federal Motor Carrier Safety Regulations, technology, business practices, insurance coverages, and to have the ability to discover written and electronic records. Expert testimony is of utmost importance. Accidents involving semi-trucks and passenger vehicles often result in serious injuries and wrongful death. Trucking companies and their insurance companies almost always quickly send accident investigators to the scene of a truck accident to begin working to limit their liability in these situations. Our lawyers, staff and in-house accident investigators immediately begin the important task of documenting and preserving the evidence. We would like to review any case involving catastrophic injury or death. Contact: chris.glover@beasleyallen.com, mike.crow@beasleyallen.com, dan.philyaw@beasleyallen.com or parker.miller@beasleyallen.com.

On-the-job Product Liability – Many times product claims arise from worker’s compensation claims. After we investigate the circumstances that caused the injuries, many times we discover a defective machine may be the cause of the injuries. Contact: kendall.dunson@beasleyallen.com or evan.allen@beasleyallen.com.

Boeing Litigation – Lawyers in the Section, led by Mike Andrews, are investigating and filing suits arising out of the two crashes involving Boeing planes that have received tremendous public interest and concern. The first suit was filed on June 13. Mike is handling the litigation and has filed several other lawsuits. Others are being prepared for filing. Contact: mike.andrews@beasleyallen.com.

Aviation Accidents – Aviation litigation can be extremely complex and often involves determining the respective liability of manufacturers, maintainers, retrofitters, dispatchers, pilots and others. In some circumstances, the age of the aircraft involved can limit or completely preclude an injured party from compensation. Soaring through the sky hundreds of miles an hour, thousands of feet above the ground in an airplane or helicopter leaves little room for error. One small mechanical problem, misjudgment or faulty response in the air can spell disaster for air passengers and even unsuspecting people on the ground. We are handling cases involving all types of aircraft, military and civilian. Contact: mike.andrews@beasleyallen.com or cole.portis@beasleyallen.com.

Heavy Truck Product Liability Claims – Tractor trailers and other heavy trucks are not required to contain many of the same protections for occupants as smaller passenger cars. They can contain dangerous defects putting the truck driver or passengers at risk of serious injury or death. These trucks many times have particularly weak roofs that crush in rollovers. The passenger compartments are often not protected by effective cab guards, and this allows loads to shift into the truck cab. We would like to review any case involving catastrophic injury or death. Contact: ben.baker@beasleyallen.com or greg.allen@beasleyallen.com.

Defective Tires – Tire failure can result in a serious car crash and even a vehicle rollover accident, causing serious injury or death to vehicle occupants. Air, heat and sunlight can cause the rubber in tires to break down. When a tire is defective, potentially serious problems like detreads and blowouts can occur long before the tire would be expected to wear out. If the tire failure is the result of design or manufacturing defects, and the manufacturer is aware of the problem, they have an obligation to alert consumers to the potential danger. Contact: ben.baker@beasleyallen.com or labarron.boone@beasleyallen.com.

Premises Liability – In premises liability claims, patrons of establishments are often injured because the premises, for some reason, was unsafe. Premises liability claims can take many forms, including when severe injury or death results when a building or structure collapses, merchandise falls, during swimming pool accidents, due to poor lighting, falling debris, unsecured fixtures and furniture that falls or tips over, unsecure drainage that creates drowning or fall hazards, slippery surfaces, and inadequate maintenance. Beasley Allen has successfully handled a number of premises liability cases, and we would like to investigate any cases where severe injury or death results. Contact: mike.crow@beasleyallen.com, ben.locklar@beasleyallen.com, warner.hornsby@beasleyallen.com, or ben.keen@beasleyallen.com.

Negligent Security – Under the law, owners of establishments owe a duty to patrons and guests to ensure that the premises are reasonably safe and secure from anticipated dangers. These cases normally take the form of shootings, fights, stabbings, or other physical violence (including sexual assault) where severe injury or death occurs due to the establishment owner’s failure to take reasonable safety measures. When this occurs, the establishment owner, as well as those contractors charged with security, may be held responsible for the injuries suffered by individuals or groups of individuals on the premises. While the laws vary from state to state, our firm is actively investigating and litigating these cases where severe injury or death results. Contact: parker.miller@beasleyallen.com, rob.register@beasleyallen.com or donovan.potter@beasleyallen.com.

Nursing Home Abuse and Neglect – Nursing homes are supposed to be in the business of providing skilled nursing care to elderly and disabled residents. Unfortunately, statistics indicate residents in nursing homes suffer abuse and neglect more and more frequently at the hands of nursing home corporations. In many cases residents have died or have been severely abused as a result of neglect. They may suffer physical abuse, emotional or psychological abuse, or neglect. We are investigating cases involving serious injury or death resulting from nursing home abuse or neglect. Contact: alyssa.baskam@beasleyallen.com.

The Mass Torts Section

The Mass Torts Section is handling a number of cases involving pharmaceuticals and medical devices. Currently, there are 32 lawyers and 87 support staff in the Section. Melissa Prickett, a lawyer, serves as the Section Director. The lawyers and support staff are working in the areas of litigation set out below. The contact lawyer will be supplied in each case. The following are the current areas of litigation in the Section.

Talcum powder and ovarian cancer – As many as 2,200 cases of ovarian cancer diagnosed each year may have been caused by regular use of talcum powder. Talc is a mineral made of up various elements including magnesium, silicon and oxygen. Talc is ground to make talcum powder which is used to absorb moisture and is widely available in various products including baby powder and adult products including body and facial powder. Talc products used regularly in the genital area increase the risk of ovarian cancer. In February 2016, a jury found Johnson & Johnson knew of the cancer risks associated with its talc products but failed to warn consumers and awarded the family of our client $72 million. She died of ovarian cancer after using J&J talc-containing products for more than 30 years. This case was the start of the litigation that followed. Ted Meadows heads up our talc litigation team handling individual claims. Leigh O’Dell heads up the team of lawyers handling the talc multidistrict litigation (MDL). Contact: ted.meadows@beasleyallen.com, leigh.odell@beasleyallen.com, or melissa.prickett@beasleyallen.com.

JUUL vaping devices – The use of JUUL and other vaping devices has reached epidemic levels, especially among teenagers and young adults. JUUL and other vape device manufacturers fueled this epidemic by targeting and deceiving youth and adolescents with misleading social media marketing and sweet, fruit-flavored pods containing high levels of nicotine. Use of these products has been associated with numerous adverse health effects, such as seizures, nicotine addiction, nicotine poisoning, breathing problems, behavioral and psychological problems, and other serious health conditions. Contact: joseph.vanzandt@beasleyallen.com, sydney.everett@beasleyallen.com or melissa.prickett@beasleyallen.com.

Bone Cement – The type of bone cement used during knee replacement surgery affects the outcome of that surgery. High viscosity bone cement (HVC) boasts shorter mixing and waiting times and longer working and hardening phases, meaning surgeons can handle and apply the cement earlier than with low- or medium-viscosity cements. Although HVC may be more convenient to use, there is mounting evidence that the bond it produces is not as strong. Researchers have observed more early failures with the use of HVC, even when used in combination with a previously well-performing implant. Complications associated with knee replacements performed with HVC include loosening and debonding (where the implant fails to adhere to the cement interface on the shin or thigh bone), which requires revision surgery. Other reported problems include new onset chronic pain and instability. Contact: chad.cook@beasleyallen.com, ryan.duplechin@beasleyallen.com or melissa.prickett@beasleyallen.com.

Zantac – Zantac is used to treat and prevent ulcers in the stomach and intestines. It also treats conditions in which the stomach produces too much acid, such as Zollinger-Ellison syndrome, gastroesophageal reflux disease (GERD) and other conditions in which acid backs up from the stomach into the esophagus, causing heartburn. Zantac was voluntarily recalled from the market on Sept. 13, 2019. We are currently investigating claims for those who used Zantac and were diagnosed with certain types of cancer, including liver, bladder, stomach, colon, kidney and pancreatic cancer. Contact: frank.woodson@beasleyallen.com or melissa.prickett@beasleyallen.com.

Belviq – On Feb. 13, 2020, the FDA issued a Drug Safety Communication requesting that weight-loss drug Belviq and Belviq XR be removed from the market. Based upon the results of a recent clinical trial, the FDA said the potential risk of various cancers, including pancreatic, colorectal, and lung cancers, outweighed any of Belviq’s benefits. The FDA instructed Belviq users to immediately discontinue its use. Sadly, the manufacturers of Belviq, Eisai, Inc., and Arena Pharmaceuticals, were aware that Belviq use was associated with an increased risk of cancer long before Belviq was approved for marketing by the FDA. In fact, their own pre-marketing studies had initially detected the risk, and the FDA had originally refused to approve Belviq for marketing in 2009 due to the risks of cancer. Only after these companies submitted additional or re-evaluated data masking the risk of cancer did the FDA grant regulatory approval for Belvic in 2012. Beasley Allen is investigating cases involving diagnoses of cancer following Belviq use. Contact: roger.smith@beasleyallen.com, ryan.duplechin@beasleyallen.com or melissa.prickett@beasleyallen.com.

Proton Pump Inhibitors – Proton pump inhibitors (PPIs) such as Nexium, Prilosec and Prevacid were introduced in the late 1980s for the treatment of acid-related disorder of the upper gastrointestinal tract, including peptic ulcers and gastrointestinal reflux disorders, and are available both as prescription and over-the-counter drugs. Beasley Allen is currently investigating PPI-induced Acute Interstitial Nephritis (AIN), which is a condition where the spaces between the tubules of the kidney cells become inflamed. The injury appears to be more profound in individuals older than 60. While individuals who suffer from AIN can recover, most will suffer from some level of permanent kidney function loss. In rare cases individuals suffering from PPI-induced AIN will require kidney transplant. PPIs also have been connected with causing gastric/stomach cancer and Beasley Allen is investigating these cases as well. Contact: navan.ward@beasleyallen.com or melissa.prickett@beasleyallen.com

Metal-on-Metal Hip Replacement parts – The FDA has ordered a review of all metal-on-metal hip implants due to mounting patient complaints. Problems with metal-on-metal include, but are not limited to loosening, metallosis (ie: tissue or bone death), fracturing, and/or corrosion and fretting of these devices, which require revision surgery. Many patients that require revision surgery due to these devices suffer significant post-revision complications. We are investigating all cases involving metal-on-metal hip implants, including the DePuy Orthopaedics ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System, recalled in August 2010; the Stryker Rejuvenate and ABG II modular-neck stems, recalled in July 2012; the Stryker LFIT Anatomic v40 Femoral Head (recalled August 29, 2016); the Zimmer Durom Cup, and the Biomet M2A “38mm” and M2A-Magnum hip replacement systems, which have not been recalled. Reported problems include pain, swelling and problems walking. Contact: navan.ward@beasleyallen.com or melissa.prickett@beasleyallen.com.

IVC Filters – Retrievable IVC filters are wire devices implanted in the vena cava, the body’s largest vein, to stop blood clots from reaching the heart and lungs. These devices are used when blood thinners are not an option. Manufacturers include Bard, Cook and Johnson & Johnson. While permanent IVC filters have been used since the 1960s with almost no reports of failure, retrievable IVC filters were introduced in 2003, promoted for use in bariatric surgery, trauma surgery and orthopedic surgery. Risks associated with the retrievable IVC filters include migration, fracture and perforation, leading to embolism, organ damage and wrongful death. Contact: melissa.prickett@beasleyallen.com or frank.woodson@beasleyallen.com.

Zofran – Manufactured by GlaxoSmithKline, Zofran (ondansetron) was approved to treat nausea during chemotherapy and following surgery. Zofran (ondansetron) works by blocking serotonin in the areas of the brain that trigger nausea and vomiting. Between 2002 and 2004, GSK began promoting Zofran off-label for the treatment of morning sickness during pregnancy, despite the fact the drug has not been approved for pregnant women and there have been no well controlled studies in pregnant women. The FDA has received nearly 500 reports of birth defects linked to Zofran. Birth defect risks include cleft palate and septal heart defects. Contact: roger.smith@beasleyallen.com or melissa.prickett@beasleyallen.com.

Physiomesh – Intended for hernia repair, Physiomesh is a flexible polypropylene mesh designed to reinforce the abdominal wall, preventing future hernias from occurring. Though there are several types of hernias, most occur when an organ or tissue protrudes through a weak spot in abdominal muscles. The condition often requires surgery where mesh, like Physiomesh, which is intended for laparoscopic use, is used to fill in a hole in the abdominal muscle or laid over or under it to prevent any further protrusions. Independent studies have found Physiomesh to lead to high rates of complications including hernia reoccurrence, organ perforation, mesh migration, sepsis and even death. In May 2016, Ethicon issued a market withdrawal of Physiomesh in the U.S. and recalled the product in Europe and Australia. We are currently investigating cases involving serious injury or death as a result of Ethicon’s Physiomesh. Contact: melissa.prickett@beasleyallen.com.

Consumer Fraud & Commercial Litigation Section

The Consumer Fraud & Commercial Litigation Section has 14 lawyers and 20 support staff. Michelle Fulmer is the Section Director. Lawyers and support staff in the Section are working on the litigation areas set out below. The primary lawyer contact will be supplied for each type case.

Business Interruption Insurance – Many businesses have suffered losses as a result of the Coronavirus, COVID-19. Most all businesses have a form of “Business Interruption” coverage that is designed to cover losses due to unforeseen circumstances out of the control of the business. This virus is a prime example of an event that would trigger this type of coverage. However, insurance companies are already denying coverage for this type of claim. Obviously, the insurance contract language of each policy governs the coverages, but in many cases the insurance companies are denying coverage despite that the policy actually provides coverage. We are actively pursuing these cases already with our clients who received a denial communication from their insurance companies. Dee Miles, Rachel Boyd and Paul Evans are spearheading this litigation and can be reached at dee.miles@beasleyallen.com, rachel.boyd@beasleyallen.com or paul.evans@beasleyallen.com.

State and Municipalities Litigation – Our firm has represented numerous states throughout the country. These cases have been handled through the Attorneys General and have involved various civil actions. Many times, individuals are barred from bringing a consumer fraud type claim, but the state government is not. We recently concluded litigation in seven of eight states for a recovery dealing with Medicaid fraud. In addition, we are representing five states in related pharmaceutical pricing litigation. For more information, contact dee.miles@beasleyallen.com or alison.hawthorne@beasleyallen.com.

False Claims Act / Whistleblower- We are handling and investigating whistleblower claims of government fraud ranging from Medicare/Medicaid to military contracts, and any other type of fraud involving a government contract. Under the False Claims Act (FCA) the whistleblower is entitled to a percentage of the recovery. Studies show that as much as 10% of Medicare/Medicaid charges are fraudulent. Common schemes involve double-billing for the same service, inaccurately coding services, and billing for services not performed. Additionally, the Commission on Wartime Contracting has warned that the lack of oversight of government contractors has led to massive fraud and waste. Contact: lance.gould@beasleyallen.com, larry.golston@beasleyallen.com, leslie.pescia@beasleyallen.com or tyner.helms@beasleyallen.com.

Pension Plan Litigation (ERISA) – Many large corporations are improperly funding their Employee Benefit plans and / or transferring these Pension Plans to other entities that cannot properly fund the plans. The result is that employees’ life savings for retirement is either lost, compromised or reduced substantially. These transfers and inadequate funding measures are all designed to increase earnings for the corporations at the expense of its employees. Our firm is committed to pursuing the preservation of employee benefits / retirement by challenging these abuses through ERISA litigation and class actions. For more information contact dee.miles@beasleyallen.com, james.eubank@beasleyallen.com or rachel.boyd@beasleyallen.com.

Auto Defect Class Actions – We are continuing to work on numerous auto defect class actions against many of the major automobile manufacturers like VW, Toyota, General Motors, Ford and even some suppliers. These cases continue to be filed because of corporate misconduct in designing and manufacturing unsafe vehicles that are purchased by consumers, corporations and state agencies. We continue to investigate these automobile problems for class relief treatment. Contact: clay.barnett@beasleyallen.com, dee.miles@beasleyallen.com, leslie.pescia@beasleyallen.com or mitch.williams@beasleyallen.com.

Life Insurance Fraud – We have uncovered alleged fraudulent accounting practices by life insurance companies concerning premium increases. The accounting method may result in the policyholder being charged excessive insurance premiums. A client that has a life insurance policy and has been notified of a substantial increase in premium payments, or if they have been told their policy’s “cost of insurance” has increased, may have a valuable legal claim that our firm would like to investigate. Contact: dee.miles@beasleyallen.com, rachel.boyd@beasleyallen.com, or paul.evans@beasleyallen.com.

Property Insurance Fraud – Insurance companies nationwide are unjustly depreciating labor costs on adjusted property claims (roof or fence damage for example). The depreciation of labor costs is contrary to many insurance policy forms and leads to policyholders either being undercompensated for their claims or not compensated at all as they fail to meet their deductible once labor costs are depreciated. If you have had an insurance claim on your property in the past six years, then we would like to review the adjuster’s estimate and your homeowner’s or manufactured home policy as you may have a case. Contact: dee.miles@beasleyallen.com, rachel.boyd@beasleyallen.com or paul.evans@beasleyallen.com.

Supplemental Disability Insurance Denial – We have successfully litigated bad faith denial of benefits cases for years in the disability insurance area and we are interested in reviewing cases involving denial of Individual and Group disability insurance. These cases can be either employee sponsored benefit plan policies (ERISA), individually owned policies or non-ERISA governed supplemental insurance. Contact: larry.golston@beasleyallen.com, rachel.boyd@beasleyallen.com, james.eubank@beasleyallen.com or paul.evans@beasleyallen.com.

Health Care Fraud – We are looking into cases of fraud within the health care industry. These may include cases dealing with pricing, off-label prescriptions, or other health care abuse. Contact: alison.hawthorne@beasleyallen.com, james.eubank@beasleyallen.com or dee.miles@beasleyallen.com.

Self-funded Health and Pharmacy Insurance Plans – Third Party Administrators and Pharmacy Benefit Managers may have been charging unauthorized fees to self-funded insurance health and pharmacy benefit plans. These extra fees may be in violation of the contracts with the self-funded plan and a breach of fiduciary duty under ERISA. We are looking into these cases on behalf of self-funded plans. Contact: alison.hawthorne@beasleyallen.com or james.eubank@beasleyallen.com.

Pharmaceutical Pricing – We are continuing to handle claims involving chain pharmacies falsely reporting their generic pricing transactions to state Medicaid agencies. This misconduct has led to millions of dollars in overpayments by Medicaid agencies for generic drugs to the chain pharmacies. Contact: alison.hawthorne@beasleyallen.com or leslie.pescia@beasleyallen.com.

Antitrust – We are handling claims related to the violation of federal and state antitrust laws. We are currently involved in claims alleging a wide array of anticompetitive conduct, including illegal tying, exclusive dealing, monopolization, and price fixing. Contact: dee.miles@beasleyallen.com, alison.hawthorne@beasleyallen.com, leslie.pescia@beasleyallen.com or james.eubank@beasleyallen.com.

Sexual Harassment – Sexual harassment is outlawed by Title VII of the Civil Rights Act of 1964 because it is a form of discrimination, as explained by the Equal Employment Opportunity Commission (EEOC). The agency states “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” We are looking at any claim involving extreme sexual harassment or sexual assault. Contact: larry.golston@beasleyallen.com, lauren.miles@beasleyallen.com or leon.hampton@beasleyallen.com.

Employment Law – We are handling employment cases. Situations that may be addressed in this area include minimum wage and overtime pay, unfair labor practices, all types of discrimination, employee benefits, and whistleblower claims. Contact: larry.golston@beasleyallen.com, lauren.miles@beasleyallen.com or leon.hampton@beasleyallen.com.

Fair Labor Standards Act (FLSA) – We are working several cases involving Fair Labor Standards Act (FLSA) violations. The FLSA cases are brought on behalf of clients whose job title is misclassified by their employers so that employees are not compensated for overtime worked. Cases may also involve unequal pay, where women are paid less for doing the same job as men. Contact: lance.gould@beasleyallen.com, larry.golston@beasleyallen.com, or lauren.miles@beasleyallen.com.

Toxic Torts Section

The Toxic Torts Section has a number of ongoing projects at present. Currently, the Section has 10 lawyers and 27 support staff. Tracie Harrison is the Section Director. Lawyers and support staff are working on the areas of litigation set out below. The primary contact lawyer for each type case will be listed.

State and Municipalities Litigation – Our firm is representing the States of Alabama and Georgia in the opioid litigation. We also represent states and certain local governments in environmental or toxic exposure claims. Many times, individuals are either barred from bringing an environmental claim or it is not a practical solution. These types of government cases may involve issues of environmental catastrophe, or some other type of pollution. One of the most notable cases handled by Beasley Allen on behalf of states for environmental issues is the BP Oil Spill litigation. For more information, contact rhon.jones@beasleyallen.com.

Opioids – Beasley Allen is representing Alabama and Georgia against both manufacturers and distributors of opioids for increased costs related to the opioid epidemic. These lawsuits allege the crisis was created by the pharmaceutical industry, which instead of investigating suspicious orders of prescription opiates, turned a blind eye in favor of making a profit. They intentionally misled doctors and the public about the risks of these dangerous drugs, and state governments are left struggling to cope with the consequences. Contact: rhon.jones@beasleyallen.com, jeff.price@beasleyallen.com or rick.stratton@beasleyallen.com.

Mesothelioma and asbestos-related diseases – Mesothelioma is a highly aggressive and rare form of cancer usually affecting the lining of the lungs (pleural) or abdominal cavity (peritoneal). Occasionally, it also may affect the lining of the heart (pericardial). The only known cause of mesothelioma is exposure to asbestos. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. For years, asbestos was widely used in many industrial products and in building construction for insulation and fire protection. When asbestos is broken or disturbed it can release microscopic fibers that can be inhaled or ingested, posing a health risk, including the development of asbestos diseases and mesothelioma. Contact: rhon.jones@beasleyallen.com.

Defective 3M Earplugs – Beasley Allen lawyers are investigating claims related to defective combat earplugs manufactured by Minnesota-based 3M Company. The earplugs were issued to thousands of military personnel serving in combat in Iraq and Afghanistan and used in training exercises in the United States. Numerous soldiers are now complaining of permanent hearing loss related to the defective ear plugs. Other soldiers have complained of tinnitus, commonly referred to as “ringing” in the ears. The dual-sided earplugs allegedly were improperly designed and manufactured so that the earplugs did not fit snugly in the wearer’s ear canal. Contact: rhon.jones@beasleyallen.com, william.sutton@beasleyallen.com or danielle.ingram@beasleyallen.com.

Leukemia and Benzene exposure – Benzene is widely used in a number of industries and products, yet many people remain unaware of the toxic danger of this chemical substance. Exposure to products containing benzene, whether through inhalation or skin absorption, can cause life-threatening diseases including Acute Myeloid Leukemia (AML), Myelodysplastic Syndrome (MDS), lymphomas and aplastic Anemia. Some of these diseases do not manifest themselves until several years after exposure to benzene. Due to certain statute of limitations for bringing a claim of this nature it is important to contact an attorney as soon as possible if you believe your condition is a result of benzene exposure. Contact: john.tomlinson@beasleyallen.com.

PFC Contamination in Water Systems – In May 2016, the U.S. Environmental Protection Agency (EPA) issued new lifetime health exposure guidelines for perfluorooctane sulfonate (PFOS) and perfluorooactanoic acid (PFOA) in the water supply. After the EPA issued the new exposure limits, Beasley Allen filed suit for two water systems impacted in Alabama. The EPA advisory focused on PFOA and PFOS, man-made chemical compounds that are used in the manufacture of non-stick, stain-resistant, and water-proofing coatings on fabric, cookware, firefighting foam, and a variety of other consumer products. Contact: ryan.kral@beasleyallen.com, david.diab@beasleyallen.com or rhon.jones@beasleyallen.com.

E-cigarette Explosions – We are investigating cases involving severe injuries caused by exploding e-cigarette devices and exploding e-cigarette batteries. These explosions have been linked to faulty e-cigarette products, defective lithium-ion batteries, and insufficient warnings for users. These cases involve personal injury including serious burn injuries. Please contact our Toxic Torts section for assistance with cases you may have involving these devices. Contact: william.sutton@beasleyallen.com.

As we said last month, even with the changes required by the Coronavirus pandemic, our offices are open. You will have no difficulty getting through to a lawyer in our firm when seeking information or assistance on a specific case. However, in the unlikely event you do have difficulty reaching any of the lawyers listed above as the primary contact for a specific type of case, you can contact one of our four Section Directors and she will promptly put you in touch with a lawyer in her Section who is working on the specific case you are asking about.

As we have stated previously, the Section Directors at Beasley Allen do a tremendous job for our firm. The Directors are Melissa Prickett, Mass Torts Section; Sloan Downes, Personal Injury & Products Liability Section; Michelle Fulmer, Consumer Fraud & Commercial Litigation Section; and Tracie Harrison, Toxic Torts Section. The directors can be reached at 800-898-2034 or by email at Melissa.Prickett@beasleyallen.com; Sloan.Downes@beasleyallen.com, Michelle.Fulmer@beasleyallen.com; and Tracie.Harrison@beasleyallen.com.

Resources to Help Your Law Practice

Beasley Allen has been recognized as one of the country’s leading law firms involved in complex civil litigation, representing only claimants. We are both honored and humbled to have received that recognition. By choice, our firm does no defense work. Beasley Allen has truly been blessed and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources, including books authored by our lawyers, to help our fellow lawyers. For those who may be looking to work with Beasley Allen, or simply are seeking information that will help their law firm with a case, the following are among our most popular resources. The names of the books and the authors are set out below.

Aviation Litigation & Accident Investigation

Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.

Tire Litigation: A Primer

Although tire failures, blowouts and detreads are foreseeable and preventable events, all too often consumers are unaware of the potential dangers from defective, old or degraded tires. Beasley Allen lawyer Ben Baker provides lawyers guidance on evaluating tire litigation and underscores the importance of inspecting the tires of all vehicles involved in a crash.

Nursing Home Abuse & Neglect Brochure

Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high rates of underreporting. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect, and advice about how to file a claim.

Co-Counsel E-Newsletter

Beasley Allen also sends out a Co-Counsel E-Newsletter, which is specifically tailored with lawyers in mind. It is emailed monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers as well as the general public. We provide the Report at no cost monthly, both in print form and online. You can get it online by going to https://www.beasleyallen.com/publishing/jere-beasley-report/.

You can reach Beasley Allen lawyers in the four sections of our firm by phone toll free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at beasleyallen.com/publishing.

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Beasley Allen lawyers Rob Register and John Tomlinson will provide some practice tips for trial lawyers in this issue. I believe you will find the information from Rob & John to be helpful. We will start with Rob’s contribution, which deals with a case he handled, to be followed by John’s tips.

Rob Register - Recognizing A Traumatic Brain Injury And Proving It With Medical Certainty

As trial lawyers, we often encounter clients who have suffered some form of brain injury and cognitive deficit. Sometimes these injuries are difficult to recognize and challenging to prove with medical certainty. Our own Rob Register recently settled a case on behalf of a young woman who suffered a profound brain injury that was not readily apparent but had catastrophically altered her life. This young woman could walk, talk and appeared essentially normal if you were to pass her on the street.

When Rob first met our client, she maintained that she could recall long term memories, everything from before the incident that caused her injury. However, since the incident she could not remember anything new for more than a few hours. Similar to the character played by Drew Barrymore in the movie “Fifty First Dates,” it seemed implausible that such a specific brain injury could truly occur in a human being.

Other lawyers had declined to represent this woman, presumably because they did not believe her or take the time to investigate the validity of her brain injury. Rob chose to trust his client and set about to confirm the truth. First, he contacted friends and relatives who knew the woman before and after the incident. He interviewed them separately and heard similar observations of her behavior and memory since the incident.

Rob discovered the story of a vibrant and beautiful 29-year-old who recently completed a master’s degree and started her career. She was single, making good money and she had just purchased her first home. She loved her friends, her job and her life. She dreamed of being successful, traveling, and one day getting married and having kids. The future could not have been brighter for this young woman before her injury.

After her brain injury, the woman could not remember from day to day anything that happened the day before. You could meet her in the morning and she would not remember you by the evening. She could not return to her job as she could not remember the tasks to be performed. Her mother moved in with her and had to leave notes all over the house to remind her to do simple activities of daily living. The worst part is that she is aware of her loss. She has long term memories of her prior life, but now lives with the frustration each day of realizing that she has lost her self. Her dreams of having a career, husband and family were forever ruined.

In an effort to objectively prove this woman’s brain injury, Rob retained the expertise of a neuroradiologist who had published a text book on recognizing brain injury from Magnetic Resonance Imaging “MRI” scans. In addition to single images, an MRI machine can also produce three-dimensional images that may be viewed from several different angles. The unit of measurement used to quantify the strength of a magnetic field in an MRI machine is called a Tesla (T). The expert in this case compiled and reviewed MRI studies of the woman’s brain from high tesla MRI studies. He found areas of brain damage that were measurable and could be seen in the images. His work proved to the Defense that this woman’s injury could be shown objectively to the jury in a manner that was easy to understand.

Additionally, Rob hired a respected neuropsychologist who performed extensive neuropsychological evaluation and testing. This doctor ultimately diagnosed the client with Major Neurocognitive Disorder. In a 17-page report, the doctor identified in detail the client’s significant deficits in both auditory and visuospatial memory. He determined her memory deficits to be in the severely impaired range. The doctor opined that given her residual neurocognitive deficits, difficulties with complex activities, judgment, decision making and navigation problems, the woman would require continued supervision and assistance with medications, financial management, and any matters pertaining to complicated medical, legal, and/or financial decision making. She will also require professional caregiver assistance and transportation assistance for the remainder of her life.

The next step was to engage a life care planner. Rob utilized a neurologist who specializes in treating patients with brain injury. The neurologist traveled to Georgia and spent an entire day with the client and her family to personally observe her in her home environment. He prepared an encompassing life care plan that outlined all the needs associated with the client’s care.

The life care plan was then sent to a forensic accountant who prepared a comprehensive economic evaluation showing the cost to fund the life care plan, as well as the total lost income over the client’s lifetime. This expert quantified a monetary range for the total economic loss suffered by the client and discounted the amounts to present value.

Lastly, Rob allowed the Defense to depose his client. While this may seem risky with an impaired client, in this case there was no better way for the Defense to personally interact with and see the legitimacy of this woman’s brain injury. It was expected that she would answer questions incorrectly, and she did. However, at the conclusion of the deposition, it was evident to everyone in the room that this woman wanted nothing more than to have her prior life back and to pursue her dreams. Tragically, it was also obvious that she did not have the capacity to achieve most of those dreams due to her permanent brain injury.

As Rob prepared for trial, the case settled for an amount that would take care of the client for the remainder of her life and allow her the financial freedom to adapt to her challenges. It was a privilege for Beasley Allen Law Firm to represent this client and to make a meaningful difference in her life.

If you represent a client with a brain injury or if you suspect your client has suffered a brain injury, we welcome the opportunity to investigate the potential claim with you. Contact Rob Register at Rob.Register@beasleyallen.com or Cole Portis at Cole.Portis@beasleyallen.com. Rob is a lawyer in our Atlanta office and Cole heads up the firm’s Personal Injury & Products Liability Section and is located in Montgomery. They can be reached at 800-898-2034.

John Tomlinson

I’ve observed through the years that successful trial lawyers are great storytellers. The importance of telling your client’s story in a well-developed and consistent narrative is immeasurable in setting the tone at trial and evoking an emotional response from a jury.

A good story is not a just a simple recitation of the facts in chronological order or an explanation of the applicable law at issue, but is also a description of personal life and events, including who your client is, what’s important to them, and how the events at issue in the case have impacted their life.

In the book The Storytelling Animal, the author Jonathan Gottschall suggests that stories help us navigate life’s complex social problems and bind us around common values. The New Yorker summed up the essence of the author’s thesis in observing that “human beings are natural storytellers – that they can’t help telling stories, and that they turn things that aren’t really stories into stories because they like narratives so much. Everything – faith, science, love – needs a story for people to find it plausible. No story, no sale.”

Skipping the important step of developing a strong narrative/story or waiting too long to fully develop it is not a recipe for success. With the technology currently available, attorneys have access to a multitude of tools and visual aids that can go a long way in developing and communicating their client’s story. Visual illustrations of case timelines and critical events as well as pictures and videos that capture personal moments of clients are effective in conveying an overall theme. Be mindful that referencing or reciting too many details of dates, names and other information can oftentimes distract a listener from the central story. Conveying the “Big Picture” is most important.

Each of our clients has their own unique personal story. We as attorneys have an obligation to listen and help them effectively tell it.

Source: The New Yorker; Can Science Explain Why We Tell Stories -May 18, 2012

RECALLS UPDATE

While there likely have been a significant number of safety-related recalls during May, we are not able to gain access to them. We are not including May recalls in the Report for that reason. The NHTSA website for some reason is not giving access to the recall information. You can contact Shanna Malone at Shanna.Malone@beasleyallen.com for more recall information or to supply us with information on recalls that you may have.

CONGRESSIONAL UPDATE

U.S. House Passes Second Stimulus Package

On May 15, the U.S. House of Representatives passed a second stimulus relief package. If the Heroes Act were to become law, it would pump an additional $3 trillion into the economy to address the shortfalls and needs caused by the coronavirus pandemic. There is a clear and definite need for another stimulus bill.

Senate Majority Leader Mitch McConnell indicated that the House bill is dead on arrival. However, he did tell Fox News, “I think there’s a high likelihood we’ll do another bill.” The White House has also said it was open to another round of stimulus checks. But there will likely be plenty of negotiations before a bill becomes law.

Here are the key aspects of The Heroes Act:

  • $200 billion for hazard pay for essential workers;
  • $1 trillion for state, local and tribal governments to cover pay for workers such as first responders, health care workers and teachers;
  • A second round of stimulus checks for Americans. The checks would be the same as last time – $1,200 for individuals and $2,400 for married couples, depending on income level. But children (up to three) would also get $1,200 instead of the $500 they received the first round;
  • $175 billion to help renters and homeowners with rent, mortgage payments and utility bills;
  • $75 billion for COVID-19 testing, tracing and isolation efforts; and
  • Extending the COVID-19 unemployment program an additional six months. The program pays an extra $600 per week benefit and is set to expire July 2020. The Heroes Act extends the payments through the end of 2020.

The Heroes Act also modifies or expands programs and policies such as Medicare and Medicaid, health insurance, student loans and financial aid, medical products supplies, veterans’ benefits, federal elections, consumer protection requirements, and pensions and retirement plans.

The Senate communicated that it will consider negotiations on the bill, but not until June. As stated above, there is clearly a need for another stimulus bill and it must benefit those who need it the most in order for them to survive economically. This is no time for “partisan politics” and our national leaders should know this. The American people need help from Congress without further delay.

Sources: Forbes and MarketWatch

LEGISLATIVE HAPPENINGS

State Budgets Pass Despite Chaotic Legislative Session Disrupted By Coronavirus

Perhaps the only silver lining to come out of the chaotic 2020 Alabama legislative session – which was significantly disrupted by the coronavirus pandemic and shutdown – is that both state budgets passed and were signed by Gov. Kay Ivey. On May 20, the governor signed the General Fund budget (SGF) and the Education Trust Fund (ETF), as well as the PSCA bond bill. Additionally, both budgets were for record amounts, despite the economic crisis brought on by the nationwide governmental shutdown, which of course severely impacted Alabama along with the rest of the country.

Gov. Ivey told the Alabama Political Reporter she appreciates the hard work of legislators during the “unprecedented” session, and added:

While we have yet to know the full impact of COVID-19 on our state, these budgets will ensure continuity of government, while being fiscally responsible. There is more work to be done, and I look forward to working with the Legislature in the days ahead.

The 2021 General Fund Budget sees a $169 million increase, including:

  • $35 million for Alabama Department of Public Health;
  • $94 million for Alabama Medicaid Agency
  • $25 million for Alabama Department of Mental Health;
  • $3 million to the Alabama Law Enforcement Agency (ALEA), specifically earmarked for hiring State Troopers;
  • $23 million for the Alabama Department of Corrections.

Most of these increases make sense in light of the critical role these agencies were shown to play during the difficult pandemic response. The Education Trust Fund also received $91 million more in funding for 2021 than the previous budget year, again perhaps a reflection of the recognition of the important role of educational resources brought to light in the COVID-19 response. The ETF increase will benefit early childhood education programs and Alabama’s colleges, universities and community colleges.

Gov. Ivey also amended SB161 by Sen. Greg Albritton, which provided authority for the release of CARES Act funds for pandemic response, to which both houses concurred. Gov. Ivey’s Executive Amendment to the $1.8 billion spending package specified categories for appropriations under the Act, including:

  • Up to $300 million to state agencies for expenses directly related to the pandemic;
  • Up to $250 million to reimburse local governments;
  • Up to $300 million to support citizens, businesses, and non-profit organizations directly impacted;
  • Up to $250 million to support the delivery of health care services;
  • Up to $300 million for technology and infrastructure related to remote instruction and learning, and
  • Up to $200 million to the Department of Corrections.

While some significant legislation was passed, for the good of the State, several major pieces of legislation that were proposed at the beginning of the session fell by the wayside. These included issues addressing education reform, prison reform, a state lottery, and medical marijuana. Hoped-for pay raises for teachers and state employees also fell off the radar for the time being.

In fact, out of 856 bills introduced at the beginning of the Regular Session, more than 700 were not addressed. Gov. Ivey has indicated that she may call a Special Session later in the year. If that happens, it is possible these will be tackled at that time. If not, or if legislators are unable to get to them, they will have to wait until the 2021 Regular Session. Hopefully, a special session can be avoided.

Sources: Alabama Political Reporter, Tuscaloosa News and Trussville Tribune

FIRM ACTIVITIES

Employee Spotlights

Demet Basar

We are happy to welcome Demet Basar to Beasley Allen and to the firm’s Consumer Fraud & Commercial Litigation Section. Demet brings with her nearly 30 years of experience in complex class action litigation. Her practice is focused on representing consumers in class actions seeking redress for unfair and deceptive practices, including the marketing and sale of defective products.

Demet currently is sole lead counsel in In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation, representing 4.7 million parents and caregivers in a multidistrict litigation against Fisher-Price and its parent, Mattel, arising from the marketing and sale of Fisher-Price’s popular inclined Rock ‘n Play Sleeper, the use of which has resulted in many infant deaths and injuries. Demet is also working with Dee Miles, Clay Barnett and Mitch Williams in several automotive class actions involving dangerously defective fuel pumps, including Oliver v. Honda Motor Corp. Ltd. et al., Case No. 5:20-cv-00666-MHH (N.D. Ala.).

Demet says her belief in social justice prompted her legal career, explaining:

I started my legal career as a paralegal at The Legal Aid Society in New York, advocating on behalf of indigent people at administrative hearings to help them get Social Security and other public benefits. My elders there encouraged me to go to law school and I did.

Having earned her undergraduate degree from Fairleigh Dickson University, where she was a member of the Phi Omega Epsilon honor society and graduated summa cum laude, Demet attended Rutgers University School of Law. She earned her juris doctorate in 1990. While in law school, she was Senior Notes and Comments Editor for the Rutgers Law Review and a recipient of West’s Scholarship Award for an article she wrote about the responsibility of nuclear scientists under international law. Demet said she focused more on global issues during this time, including working with the Lawyers’ Committee on Nuclear Policy.

After law school, Demet initially worked at a big Defense firm, but realized she had always been a Plaintiff’s lawyer at heart. She says:

Protecting the public from dangerous products/acts and holding corporations accountable for their misconduct is an important service to society.

Before joining Beasley Allen, and while she was at her previous firm, Demet served as co-class counsel alongside Dee Miles in Simerlein et al. v. Toyota Motor Corporation et al, Case No. 3:17-CV-01021-VAB (D. Conn.). The class action resulted in a nationwide settlement providing quality class-wide relief valued at up to $40 million for the benefit of 1.3 million owners of Toyota Sienna minivans with sliding doors, including a 10-year warranty for covered parts, a free inspection, and reimbursement for covered repairs. She has also served as lead or co-counsel in other consumer protection cases, including against e-cigarette manufacturers.

Previously, Demet represented individual and institutional investors, including public and labor pension funds, in complex securities fraud class actions and derivative litigations in federal and state courts.

As co-chair of her previous firm’s Madoff Recovery Litigation Task Force, Demet successfully represented hundreds of investors in securities class actions against various “feeder funds” that entrusted client funds to the now infamous Ponzi scheme operated by Bernard L. Madoff. The class actions recovered more than $300 million for wronged investors, including a $100 plus million settlement in In re Tremont Securities Law, State Law and Insurance Litigation and a $219 million plus settlement in In re Beacon Associates Litigation.

Demet’s favorite part of practicing law, she said, is writing:

In my view, presenting a persuasive argument on paper is one of the most important tools lawyers have in advocating for their clients because it allows us to communicate with judges directly, uninterrupted and without distractions. In order to do that effectively, we have to fully understand the nooks and crannies of our cases – and, of course, thoroughly study the relevant law – and try to determine the areas in which the court is likely to view our case as strong or weak or neutral. Equally importantly, when writing for the judge, we also have to try to identify any facts and arguments we think the court may not fully understand and, if there are any, find the best way to inform the judge respectfully. Finally, we have to write simply, in plain English, and without assuming the reader – who is usually the judge’s clerk, a young lawyer – knows anything about our case. Doing all this is quite challenging – at least for me – and usually involves many drafts (sometimes to the consternation of my colleagues) in which I’m reordering and recasting arguments, rewriting the preliminary statement and fine-tuning the overall theme of the brief. But it’s something I thoroughly enjoy.

Demet is a member of the New York City Bar Association. She is also committed to giving back to her community. Demet has been involved in fundraising efforts in her community, including for the Urban Upbound, which provides resources to public housing residents to foster economic mobility and self-reliance.

In reflecting on joining Beasley Allen, Demet said she has been impressed that the firm “has so many practice groups under one roof all of which are devoted to vindicating the rights of victims of different kinds of harm.” She has also been impressed with each of the groups’ continued success, including the firm’s most recent success. Demet said:

Just in the short time I have been here, there have been two major firm victories – both reported in national press – first, resisting defendants’ motions to exclude expert testimony in the firm’s talc mass tort cases, which led to Johnson & Johnson taking its Baby Powder off the market in North America, and, second, getting three bellwether state classes in the GM engine defect case certified, which will likely lead to the certification of an additional 25 state classes, and may make it possible to achieve a settlement. Think of how many individuals have already benefited and stand to benefit from these developments – including, most importantly, women who will no longer face the prospect of ovarian cancer from using J&J talc-based products.

Demet says she also appreciates the true teamwork and inclusiveness at Beasley Allen, adding:

It’s as though everyone at the firm is part of one big family. The first time I saw the email distribution list called ‘Everyone in the firm’ instead of the corporate sounding ‘All Personnel,’ I knew I wasn’t at a New York firm anymore.

Demet Basar will be a tremendous addition to our firm. We are honored that she saw fit to join us.

Kelli Jo Flanagan

Kelli Jo Flanagan, who has been with Beasley Allen for 20 years, works in the Toxic Torts Section. She is the Legal Secretary to Rhon Jones and Tucker Osborne. Kelli is responsible for handling the calendar, correspondence, dictation transcription, pleadings, arranging travel, organizing files, document review, communicating with clients and lawyers, updating client files and helping others in the section.

Kelli says she is a “very proud Momma” to three beautiful daughters, Alissa (20) and twins, Emilee and Bailey (18). She says all three young ladies are very busy and keep her on her toes. The twins are Juniors this school year and have been active in their Junior Civitan Club. Bailee is also the Junior Class Vice President.

Kelli says that she loves to spend time with her friends and family, especially cooking out, going to the beach, working out and just relaxing. When asked what her favorite thing is about working at Beasley Allen, Kelli says, “how much the Firm gives back to the community and gives the employee an opportunity to participate in these various events, especially adopting and providing families with meals and gifts during the holidays.

Apreill Daun Hartsfield

April has been with the Firm for three years and is a Writer in our Marketing Section. She writes content for the firm’s website and maintains lawyer biographical information on the site. Apreill also drafts content for the Jere Beasley Report and assists with articles that are submitted to publications outside of the firm. Additionally, Apreill manages the firm’s social media presence, including content and scheduling posts for all of its social media channels.

Apreill is married to Rodney and they have a 7-year-old daughter and a 6-year-old son. They are members of Journey Church of the River Region where Rodney and Apreill teach 3-year-olds and serve in Journey Kids ministry. Apreill is also a vocalist for the Journey Worship Team.

In her spare time, Apreill loves spending time with her family and watching her kids enjoy their favorite sport, which currently is karate. She loves singing, is an avid reader and devours podcasts about writing, Bible studies and mysteries. When asked what her favorite thing is about working at Beasley Allen, Apreill says:

I love the firm’s commitment to helping those in need. That it pursues each client’s case for the right reasons while maintaining a level of integrity and professionalism, I believe, are enviable among other firms of its caliber.

Apreill is a dedicated, hard-working employee. She is a definite asset to the firm. Apreill has an extremely important role at Beasley Allen. She helps us get our story of helping those who need help out to the public. We are blessed to have her at Beasley Allen.

Lauren Elizabeth Miles

Lauren Miles first joined Beasley Allen in 2014 as a law clerk in the Consumer Fraud & Commercial Litigaiton Section. She returned to the firm as an associate in the Section in 2018. Lauren is working on class action litigation involving consumer fraud in the health care industry, qui tam litigation under the False Claims Act, as well as sexual harassment and employment discrimination. Before returning to the firm, Lauren practiced law in Birmingham, Alabama, focusing on contract, fraud, and employment law.

After returning to the firm, Lauren was part of the team that worked with the Kentucky Attorney General’s office, helping secure a $10.3 million settlement in its case against Fresenius Medical Care Holdings Inc., a Massachusetts-based dialysis company, for Medicaid fraud.

Lauren explained that while growing up, her family prioritized an obligation to “your neighbor,” or the notion that “if you can help someone else, share their burden, then you should.” She said she internalized this message. Additionally, she said she was “exceptionally blessed to have had the opportunity to grow up surrounded and influenced by Beasley Allen attorneys.” The combination of these influences on her life led her to follow in her father’s footsteps and become an attorney.

“I was always interested in pursuing a career that personified my parents’ priority and witnessing the successes Beasley Allen attorneys accomplished in helping those who need it most inspired me to follow them into the profession,” Lauren said.

Lauren completed undergraduate school at Birmingham-Southern College (BSC) in 2012, with a B.A. in Political Science. While at BSC, Lauren was on the dean’s list and selected to multiple national academic honor organizations. She was also active in student government and in Greek communities, as well as student organizations including the EnACT Club and student art league. She also interned in the U.S. Senate for Senators Richard Shelby and Lindsey Graham.

Lauren continued her education at Samford University Cumberland School of Law, where she earned her law degree in 2015. While in law school, Lauren was a dean’s list student, a member of the Cumberland Women in Law organization and the Cumberland Environmental Law Society. She also participated in Cumberland’s various community outreach programs and clerked for other Plaintiff’s law firms, in addition to Beasley Allen, as a law student.

Lauren says her favorite part of practicing law is when she can successfully represent a client. She says:

It’s an unfortunate reality that a client comes to us in need of our service because someone has exploited or harassed or devalued them. The moments I can help a client confront their oppressor and compel that bad actor to recognize my client’s value are so precious to me. There are so many bad actors committing injustices through greed or indifference every day: effectively representing my client in challenging that turpitude by demanding a person’s worth is respected encourages me when I’d otherwise be disheartened.

Lauren supports Kings Home and the Wellhouse Birmingham. She is also a member of the Board of Directors for Catholic Social Services and is an active BSC alumna and advisor to her sorority chapter. As a native of Montgomery, Lauren splits her time between her hometown and her adopted city of Homewood, Alabama. She is a member of the Cathedral Church of the Advent in Birmingham where she and her husband were married last year.

Lauren says she is proud to have returned to Beasley Allen and to be part of a firm that is committed to improving the community through service and outreach initiatives, committed to improving the lives of its clients, and even committed to improving how its attorneys approach their work – by adapting to evolving legal standards and challenges while preserving the integrity of their work and supporting one another.

“There are other great firms, filled with exceptionally talented lawyers (several of which I had the privilege to also work for before Beasley Allen), but I personally believe our firm’s progressiveness is uniquely exceptional,” Lauren said.

We are blessed to have Lauren at Beasley Allen. She is totally dedicated to the stated mission of the firm and works hard to see that her clients receive justice.

Brandi Wilkerson Ross

Brandi Ross is a Clerical Assistant in the Personal Injury & Products Liability Section. She assists the Section Director with day-to-day operations of incoming personal injury cases. She also works on various assigned projects to help with the completion of specific tasks and that is very important, especially with those approaching deadlines.

Brandi is married to David and they have been married for 11 years. They have two children, Michael, 10 and RaeLeigh, 6. They attend and serve at Church of the Highlands. They also have three “furry friends” that complete their family.

Brandi’s family enjoys exploring nature and finding new trails they have never hiked before. Occasionally they enjoy camping. One of their new favorite state parks is Tannehill Ironworks. When things are quiet, Brandi says she enjoys reading.

When asked what her favorite thing is about working at Beasley Allen, Brandi says:

I am honored to work for a company which places high value on the things that matter in life. I love the encouraging atmosphere which welcomes my faith in Jesus Christ. I am blessed to work for individuals who consider family a top priority. No matter the daily task at hand, I find fulfillment in working for a firm with morals; a firm helping those who need it most.

Brandi is another dedicated, hard-working Beasley Allen employee who is an asset to the firm. We are blessed to have her with us.

SPECIAL RECOGNITIONS

Aigner Kolom Nominated Girl Scout Leading Lady

For the last three years, the Girl Scouts of Southern Alabama (GSSA) have recognized women leaders in the community and selected one local female to receive its Leading Ladies award. This year, Aigner Kolom, a lawyer in our firm’s Mass Torts Section, has been nominated. The award recognizes the accomplishments of women leaders and celebrates them for being outstanding role models in their local community.

Aigner, who was featured in this Report in April, was nominated because of her personal strength and determination to move beyond adversity and inspire others along her journey.

At 6 months of age, Aigner entered the foster care system. She was born into poverty to a mother who was unable to care for her. Until the age of 6, Aigner lived from home to home before finally being adopted by a family. The adoption process proved to be a pivotal moment in Aigner’s life as it was the first time she encountered a lawyer. His work made a lasting impression on her, and from that moment she knew she wanted to be a lawyer so she could help others when they needed it the most.

With the support of a loving adoptive family, Aigner attended Montgomery’s Booker T. Washington (BTW) Magnet High School and enrolled in a law track. Following graduation, she obtained a BS in Business Administration from Auburn University, and in 2015, graduated summa cum laude from Faulkner University’s Thomas Goode Jones School of Law. While in law school, Aigner served as president of the Women’s Legal Society, a student-run organization that promotes academic, personal, and professional development of women law students.

In 2015, Aigner joined the firm as a lawyer in the firm’s Mass Torts Section. One of her focuses is on litigation involving claims by women who developed ovarian cancer after using talcum powder for feminine hygiene. She is part of the firm’s Talc Litigation Team, which has partnered with other law firms around the country to try seven cases, with six going to verdict, since February of 2016. The team and its co-counsel have obtained favorable verdicts on behalf of five Plaintiffs totaling more than $724 million. While some of the cases are in different stages of appeal Aigner and other firm attorneys continue to fight for the victims in courtrooms throughout the country.

Aigner is a true Leading Lady not only in her personal and professional life but in the community as well, supporting girls and women, especially her daughter, Destini. Aigner became a mother at age 16, but it didn’t keep her from setting an example for her own daughter by finishing high school, college, and law school, and becoming gainfully employed. Destini is now in high school and Aigner strives to give her daughter opportunities she didn’t have access to growing up. As a result, Destini has been an active member of the Girl Scouts since first grade.

Currently, Aigner serves as President of the Montgomery County Bar Association’s Women’s Section. She is also a member of the American Association for Justice, Alabama State Bar, Alabama State Bar Young Lawyers Section, Alabama State Bar Women’s Section and Alabama Lawyers Association. Aigner is also actively involved in the newly formed Black Lady Lawyers of Alabama. Additionally, by donating her time and talent to the Montgomery Volunteer Lawyers Program, Aigner continues to help low-income Montgomery residents often at a disadvantage in dealing with their civil legal problems simply because they cannot afford to hire an attorney. She also serves on the Board of Directors for Common Ground ministry, an inner-city/urban youth ministry serving the Washington Park and Gibbs Village communities in Montgomery.

In 2017, when the Leading Ladies award was established, Danielle Mason, who was a lawyer with the firm at the time, was the inaugural award winner. Ali Hawthorne, a lawyer in the Consumer Fraud Section, was also a Leading Ladies award nominee.

The GSSA also recognizes businesses that support girls’ and women’s leadership and success with its Leading Workplace for Women award. The firm had the distinct honor of being the first business to receive the award. The award recognized Beasley Allen’s culture of promoting leadership and success among girls and women.

The award winner will be announced during a reception this month depending on the status of the ongoing Coronavirus outbreak and if such public events can resume safely. We are proud of Aigner and regardless of the results, she is a real “winner!”

FAVORITE BIBLE VERSES

Andy Birchfield, who heads up our firm’s Mass Torts Section, furnished some scriptures for this issue. Andy says that God’s Word often provides guardrails to keep us out of the ditch as we seek to faithfully follow and live for Him. Andy adds that two such passages that often help him are Philippians 4:13 and John 15:5.

I can do all things through Christ who strengthens me. Phil. 4:13

Andy says: “For times when I feel weak, overwhelmed, and helpless, this verse encourages me and keeps me out of the ditch of despair. However, if I veer too far in the other direction, John 15:5 serves as a guardrail on the other side.”

I am the vine, you are the branches. He who abides in Me, and I in him, bears much fruit; for without Me you can do nothing. John 15:5

For times when Andy begins to feel confident or in control, he says “this verse keeps me out of the ditch of pride. I can do nothing – absolutely nothing – apart from Christ. Connecting the idea behind these two guardrail verses is what Jesus revealed to Paul in 2 Corinthians 12:9”

And He said to me, “My grace is sufficient for you, for My strength is made perfect in weakness.” Therefore most gladly I will rather boast in my infirmities, that the power of Christ may rest upon me.

Willa Carpenter, one of the most important persons at Beasley Allen, serving as the firm’s Human Resources Liaison, supplied Psalm 23:1-5 for this issue. Willa says:

We can have absolute trust and peaceful confidence in Jesus, the good Shepherd. He gave His life for us. He restores our anxious and weary souls; He guides us beside the waters of quietness, and in the right paths. Even though death’s shadow hovers all around us, still we will not be afraid, because He is with us. He prepares a table for us in the presence of our enemies, giving us our daily bread; no matter who or what the enemy may be, or how strong or severe, He is stronger. He anoints us with favor, causing us to overflow with thanksgiving and praise to Him.

The Lord is my Shepherd; I shall not want (lack), He makes me lie down in green pastures; He leads me beside the still waters, He restores my soul; He leads me in the paths of righteousness for His name sake. Yea, though I walk through the valley of the shadow of death, I will fear no evil; For you are with me, Your rod and Your staff they comfort me; You prepare a table for me in the presence of my enemies; You anoint my head with oil; My cup runs over. Psalm 23:1-5

David Dearing, who is a lawyer in our Mass Torts Section, furnished two verses for this issue. David says: “As Christians are well aware, our minds are often a battlefield between good and evil. To defend against the enemy’s attacks on our thought life, Paul told the church in Colossae to

Set your minds on things above, not on earthly things. Col. 3:2

David says, “The verse I lean most on in my life to strengthen my mind is Phil. 4:8:

Finally, brothers and sisters, whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable – if anything is excellent or praiseworthy, think about such things…. And the God of peace will be with you.

“Our God is the God of all good things! I try to focus on those good things when I can,” David says.

CLOSING OBSERVATIONS

We Are All In This Together

Some folks have referred to our pandemic predicament by saying “everyone is in the same boat.” But I think another saying rings truer – “We may all be in the same ocean, but we’re not all in the same boat.” People have been affected by this pandemic in very different ways. Those who are blessed to still be able to work, who have a strong support network of family and friends to lean on, are in a very different boat from those who are alone, who may not have a way to pay their bills or put food on the table. Others were deemed “essential” during the pandemic, continuing to work out of necessity, but fearful for the consequences to their health.

People have “quarantine fatigue.” All of us need the contact of other people in the real world. But we all also have a moral duty to follow the U.S Centers for Disease Control and Prevention (CDC) guidelines and orders from governors and mayors relating to the pandemic. The advice and counsel of heath care experts and scientists must be the basis for the decisions that affect all of us. Politics must be put on the shelf at every level of government.

Another nautical saying may help here – “a rising tide lifts all boats.” We may not be in the same boat, but we’re all in this together. As things begin to re-open, the world looks strange to us. We stand at least 6 feet apart, and we can’t see each other’s smiles behind our masks. Some question if all of this is really necessary. They let their fear of change, of losing control, outweigh their compassion. Again, politics should play no part in the ongoing battle.

Certainly, our world sure has changed a lot this year. When I was working on the first Report of 2020 at the close of last year, we hadn’t heard of this coronavirus. Even in China, where the illness was developing, doctors only saw a few cases of a new, strange type of what they thought was pneumonia. There was no indication it was serious, or particularly contagious. In America, at that time it wasn’t even a blip on the radar for anyone except for scientists who study that sort of thing.

By the middle of January, the strange pneumonia had killed two people in Wuhan, China, and cases began to appear in other countries. China’s CDC said the pneumonia was being caused by a novel coronavirus, and that it was infectious through person-to-person contact. The country began to implement strict travel restrictions. On Jan. 21, the United States reported seeing a case of the coronavirus pneumonia in Washington State. But the man had traveled to China. The news barely registered elsewhere in the nation.

By the end of January, the virus was turning up throughout Europe and in Australia and Canada. The U.S. had six confirmed cases, including its first from person-to-person transmission in the country. Travel bans began to be implemented worldwide to restrict travel into and out of China and between some other countries.

In February, Americans took notice when a Japanese cruise ship, the Diamond Princess, was quarantined. We watched as the ship and its nearly 4,000 passengers were stranded without permission to disembark. This scenario began to repeat with other ships whose passengers were diagnosed with the coronavirus. China went under lockdown and we watched strange news broadcasts of usually bustling cities empty and quiet. Unfortunately, those in positions of power still didn’t recognize what was going on – and largely ignored the impending threat. Americans celebrated Mardi Gras in New Orleans shoulder-to-shoulder, and planned vacations for spring break.

But by the middle of March, the U.S. was seeing increasing cases of COVID-19, the pneumonia-like illness caused by the novel coronavirus, throughout the country. Fairs and festivals were postponed. Schools began to close. And maybe the one thing that finally made people in America stop and wonder – the NCAA canceled the men’s and women’s March Madness basketball tournaments, followed closely by the NBA canceling its season. States began to implement stay-at-home policies, limiting group gatherings, closing public facilities and services, and causing privately-owned businesses to close.

As this issue of the Report prepares to go to press, we mark the middle of the year – nearly six months since this virus intruded into our lives and changed the world. In Alabama and elsewhere in the country, governments and individuals try to navigate a complicated strategy to open businesses and allow people to be together again, safely. The same is true around the world. We wonder, did our actions make a difference? I heard it said at the beginning of quarantine that we would never know if we did too much, but we would certainly know if we did too little.

Sadly, there has never been an organized national plan to combat the pandemic. Planning for the battle has been left to governors and mayors and they are having to handle a tremendously serious and complicated problem at their level. The comparison between how the national government in the U.S. handled the crises back in January with how South Korea dealt with the same information it received at the same time, tells a story. Compare 100,000 deaths currently in America to less than 300 in South Korea during the same period of time.

During this transitional time, I pray that we will be mindful of each other. Reach out to those who need support, and encouragement, who need to lean on your faith. Lend a hand where you are able, but don’t be afraid or embarrassed to ask for help where you need it. We are all in this together. Remember the words of our Lord Jesus when he instructed in John 13:34-35, “A new command I give you: Love one another. As I have loved you, so you must love one another. By this everyone will know that you are my disciples, if you love one another.” And, after all, love is all we need.

Finally, we must all follow the CDC guidelines concerning spacing and other safety requirements. Also, each of us must wear our mask when a mask is required in public or in confined spaces. We owe all of this to our families and to others with whom we come into contact. We are in on ongoing battle that must be won!

Source for coronavirus timeline is https://www.thinkglobalhealth.org/article/updated-timeline-coronavirus

Our Monthly Reminders

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.

2Chron7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.

Isaiah 10:1-2

I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.

Martha Washington (1732 – 1802)

The only title in our Democracy superior to that of President is the title of Citizen.

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.

The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.

Martin Luther King, Jr.

The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you’re willing to pay the price.

Vincent Lombardi

Kindness is a language which the deaf can hear and the blind can see.

Mark Twain (1835-1910)

“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country… corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”

U.S. President Abraham Lincoln, Nov. 21, 1864

In his December 1902 State of the Union address, Theodore Roosevelt said of corporations: “We are not hostile to them; we are merely determined that they shall be so handled as to subserve the public good. We draw the line against misconduct, not against wealth.”

The ‘Machine politicians’ have shown their colors..I feel sorry for the country however as it shows the power of partisan politicians who think of nothing higher than their own interests, and I feel for your future. We cannot stand so corrupt a government for any great length of time.”

Theodore Roosevelt Sr., December 16, 1877

“The opposite of poverty is not wealth; the opposite of poverty is justice.”

Bryan Stevenson, 2019

PARTING WORDS

A Beacon Of Light From The Capital City

The City of Montgomery (the “Capital City”) is historically significant for a number of reasons. The Civil War and the Civil Rights Movement are very much an important part of the City’s history. Without a doubt, while both are important, the birth of the Civil Rights Movement in the Capital City was the most significant and meaningful happening. The movement has had a profound effect on our entire country. However, the battle for equality in America is still ongoing.

I recommend that we all read the “I have a Dream” speech delivered by Dr. Martin Luther King at the Lincoln Memorial in Washington, D.C. on Aug. 28, 1963. This will go down in history as one of the best – if not the very best – speeches ever given. It came during a dark era in our country’s history and served as a wake-up call for many. It definitely inspired all of those who really believe in equality for all to get involved and carry the civil rights movement forward.

The Capital City can be a beacon of light for all to see and the vision projected by Dr. King must be the cornerstone of that vision. My prayer is for the ugly face of racism in America to change to a face that shows liberty, justice and equality for all of our citizens. Hopefully, our battle together against the pandemic will help bring this about. May God Bless America and all of our people.