The Jere Beasley Report July : 2020

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CAPITOL OBSERVATIONS

No More Delays For Equality And Justice In America

At Beasley Allen, we help those who need it most. That has been our mission since 1979 when I founded the firm as a sole practitioner. The deaths of George Floyd, Ahmaud Arbery, Breonna Taylor and all too many other Black persons show clearly how far we still have to go.

Beasley Allen now has offices in two historically significant cities – Montgomery and Atlanta. In each city, individuals with strength of conviction determinedly stood their ground and demanded justice and equality for Black Americans. Rosa Parks rode a bus and Martin Luther King had a dream. Ms. Parks' refusal to give up her seat on a segregated Montgomery bus sparked a citywide bus boycott that successfully concluded when the U.S. Supreme Court ruled that buses must integrate. Dr. King's leadership in Atlanta, Montgomery, and across America gave us the Civil Rights Act and the Voting Rights Act.

But Rosa Parks and Dr. King are not enshrined for their actions alone. Instead, they are enshrined because they mobilized and encouraged others to stand up for the rightness of their vision. The rightness of equality and justice for all was their mission. In their wake, many stood and advocated for that equality and that justice. Their sacrifices have inspired so many and effected so much change. Racism in America has been our biggest problem. Clearly there is much work yet to be done and further delay cannot be tolerated.

The work for change is hard. Ms. Parks lost her job because of her refusal to accept injustice. Dr. King lost his life. But theirs was righteous work.

Today, it has never been clearer that this righteous work is not done. The call to action is pressing. For too long, too many in America have been complacent about the fight for equality and justice for Black Americans. That complacency must end and it must end now. We must stand for equality and justice for all. We must stand for changes to a broken system – a system that has unfairly oppressed Black Americans through doctrines like that of qualified immunity and harsh sentencing guidelines.

We must engage, learn, and grow until the visions of Ms. Parks and Dr. King are totally realized. The recent murder of George Floyd, an unarmed Black man in handcuffs, by a white police officer, with three other officers aiding and abetting him, has resulted in nationwide protests calling for total reform of a broken system.

This movement is a righteous cause and one that cannot fail. Americans must stand up for right and oppose wrong. Those in public office must join the movement for equality and justice and do whatever is necessary to bring about the needed changes.

Our prayer today is for justice and equality for all Americans and for all citizens, white, black and brown, to join in the movement to bring about the changes in government and society that are long overdue. Beasley Allen's mission – helping those who need it most – calls us to action now. We stand with the call for liberty and justice.

AN UPDATE ON THE TALC LITIGATION

Appeals Court Says J&J's Conduct Was Outrageous

A Missouri appeals court has ruled against Johnson & Johnson in its bid to throw out a jury verdict in favor of women whose ovarian cancer was caused by its baby powder and other talc products. While the damages award was reduced to $2.12 billion from $4.69 billion, the court said that J&J's conduct was “outrageous.” That's a most significant finding and one that is easily proved from J&J internal documents.

The decision by the Missouri Court of Appeals in a case brought by 22 women followed J&J's announcement on May 19 that it would stop selling its talc-based Johnson's Baby Powder in the United States and Canada. Johnson & Johnson faces more than 19,000 lawsuits claiming that its talc products caused cancer because of contamination from asbestos. J&J says it will appeal the decision to the Missouri Supreme Court, the state's highest court.

The appeals court awarded $500 million in actual damages and $1.62 billion in punitive damages, reducing the original July 2018 verdict after dismissing claims by some of the Plaintiffs. It faulted J&J for having published articles downplaying the safety hazards associated with talc, and said a jury could have reasonably found that its products caused the Plaintiffs' injuries. The court, as to J&J's conduct, said:

There was significant reprehensibility in defendants' conduct.

As to the general question of whether punitive damages were rightly awarded in the case, however, the appeals court gave its full and unqualified approval. The court said:

The evidence adduced in this trial showed clear and convincing evidence defendants engaged in conduct that was outrageous because of evil motive or reckless indifference.

The appeals court also upheld the trial court's decision to jointly try the claims of 22 Plaintiffs who said the companies' talc-containing products made them sick, a decision Johnson & Johnson had strenuously fought. Mark Lanier, the Plaintiffs' lead trial counsel, said in a statement:

To their shame, decade after decade, Johnson & Johnson and its subsidiary knowingly manufactured and sold dangerous, life-threatening products. … The opinion shows deep respect for the voice of the jury and admirable concern for the application of Missouri law.

The Plaintiffs are represented by Eric Holland and Patrick Dowd of Holland Law Firm LLC, John Torbitzky of Behr McCarter & Potter PC and Kenneth Starr, Mark Lanier, Kevin Parker, Benjamin Major and Natalie Armour of The Lanier Law Firm.

The case is Ingham et al. v. Johnson & Johnson et al., (case number ED107476) in the Missouri Court of Appeals for the Eastern District.

Sources: Law360.com and Reuters

A Further Update On The Talcum Powder Litigation

While the coronavirus has slowed things down, the Beasley Allen talcum powder team has continued moving forward in both the federal multidistrict litigation (MDL) realm and in state courts across the country. With the recent favorable Daubert rulings in the MDL, Judge Freda Wolfson has now entered an order for 1,000 cases to complete Plaintiff Profile Forms. Beasley Allen represents 210 of these Plaintiffs, and this will help advance the litigation to the next step in the bellwether process.

In state court in the Pennsylvania Kleiner case, Judge Frederica Massiah-Jackson in Philadelphia has denied Johnson & Johnson's Frye motions challenging the expert methodologies used by plaintiff's experts. The Frye standard is similar to the federal Daubert standard, both of which are used to establish guidelines by which expert testimony will be ruled admissible. Judge Massiah-Jackson's rulings mean all of the Plaintiff's experts will be allowed to testify when this case goes to trial. The original June 15 trial setting for the Kleiner case has been set back, and the trial team is currently working hard to get a new date set.

In Illinois, Chief Circuit Judge Andrew Gleeson entered an administrative order vacating all civil jury trials set for 2020 and ordered them to be reset on a case-by-case basis. This has affected the upcoming Cadagin trial, which was set for July 6. That trial has now been set for Nov. 30, 2020. Additionally, a three-Plaintiff trial in St. Louis is scheduled to move forward on Feb. 19, 2021.

In Atlanta, Georgia, the Brower re-trial has not yet been reset; however, the team has been hard at work filing and responding to motions in preparation for this trial to be reset in the near future. In all of these efforts the talc team has been utilizing new video/phone and other long-distance technology to conduct hearings and continue to advance the litigation while dealing with the coronavirus pandemic.

While focusing on the above work, the Talc Litigation Team is also looking at getting a trial set in South Florida sometime in 2021. The team has also been doing additional discovery work nationwide in the pending cases.

Beasley Allen lawyers continue to investigate new cases involving women diagnosed with ovarian cancer after using talcum powder for feminine hygiene. 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.

An Update On The Roundup Litigation

Bayer To Pay Up To $10.9 Billion In Partial Settlement Of Roundup Cancer Suits

Bayer will pay up to $10.9 billion to settle a part of the roughly 125,000 cases alleging that Monsanto's weed killer Roundup causes non-Hodgkin's lymphoma. The settlement, according to Bayer, will resolve about 75% of the current Roundup litigation. Bayer said the settlement includes all litigation brought by Plaintiff law firms leading the federal multidistrict litigation (MDL) and California state court bellwether cases about the glyphosate-based herbicide. I want it to be very clear that Beasley Allen was not involved in this settlement on behalf of the clients we represent.

The settlement includes between $8.8 billion and $9.6 billion to resolve some of the current Roundup litigation, with an allowance for currently unresolved claims, and an additional $1.25 billion for a separate class agreement to address potential future cases. That class agreement will need the approval of U.S. District Judge Vince Chhabria of the Northern District of California, who is overseeing the federal MDL. As we have previously reported, Bayer bought Monsanto in 2018.

Despite the announcement of the settlement by Bayer, Beasley Allen lawyers will continue our fight against the drugs and pesticides giant on behalf of thousands of Plaintiffs who have pending lawsuits in state and federal courts throughout the country.

There will still be approximately 30,000 Plaintiffs represented by several law firms, including Beasley Allen, that have not agreed to be a part of the current settlement.

“Unless Bayer/Monsanto makes a settlement offer that fairly and adequately compensates our clients, we are fully prepared to continue to pursue these cases to trial,” said Rhon Jones, who along with John Tomlinson and myself of Beasley Allen, is leading the firm's Roundup litigation team. Rhon added: “We do not believe Bayer wants the public to learn the tragic truth about Roundup. Our intention is to take cases to trial and Bayer has been made fully aware of our goals for the clients we represent.”

For nearly 40 years, farmers around the world have used Roundup without knowledge of the dangers posed by its use. Monsanto, the maker of Roundup, has failed to place a warning label on its product informing the consumer that the product contains carcinogenic properties, in particular the chemical glyphosate. In 2015, the World Health Organization found that glyphosate, the principal “weed killer” component of Roundup, was carcinogenic to humans and could lead to the development of non-Hodgkin's lymphoma. After its requisition of Monsanto, Bayer has continued to assure the public that Roundup is harmless and poses no danger to its users.

Bayer/Monsanto lost the first three Roundup trials with total jury verdicts totaling $2.3 billion dollars. Those verdicts are not included in the announced settlement. We will report further developments in the next issue of this Report.

Beasley Allen Roundup Litigation Team

Beasley Allen lawyers are currently representing thousands of clients who have been exposed to Roundup and developed non-Hodgkin's lymphoma. Our Roundup Litigation Team is willing to answer any questions you might have. For more information, contact one of the members of the Roundup Litigation Team: John Tomlinson, Michael Dunphy, Danielle Ingram or Rhon Jones, all lawyers in our Toxic Torts Section, at 800-898-2034 or by email at John.Tomlinson@beasleyallen.com, Michael.Dunphy@beasleyallen.com, Danielle.Ingram@beasleyallen.com or Rhon.Jones@beasleyallen.com. I have been asked to join the litigation team and have done so and I will be involved in the trials involving Beasley Allen clients. My contact information is Jere.Beasley@beasleyallen.com.

AN UPDATE ON THE OPIOID LITIGATION

Pharmacies Can't Avoid Common Discovery In Opioid MDL

On June 16 U.S. District Judge Dan Aaron Polster rejected a bid by pharmacies involved in the ongoing opioid multidistrict litigation (MDL) to rescind a ruling forcing them to put discovery documents into a common repository. The judge said the ruling aligns with the purposes of an MDL and imposes “virtually zero” burden on the companies.

Judge Polster said the discovery ruling handed down by Special Master David Cohen promotes efficiency in the MDL, as it helps to reduce duplicative requests by different Plaintiffs in the litigation. The ruling was issued in September, with the special master requiring that the pharmacy Defendants put all documents they've produced for any court case, state government investigation or closed federal investigation over opioids into the MDL repository.

Both the pharmacies and the Plaintiffs in April sought modifications to the discovery ruling. The pharmacies argued that the ruling should be modified or overruled because it applies without regard to specific Plaintiffs' needs and would require producing documents that do not have relevance to the rest of the MDL.

Special Master Cohen rejected that request and also denied the request from the Plaintiffs that the defendants be required to identify the existence of ongoing opioid-related federal investigations, instead requiring the Defendants to inform the Plaintiffs of the conclusion of such investigations. The pharmacy Defendants objected to both of the Special Master April rulings. Judge Polster on June 15 wrote that the pharmacies' objection to the first April ruling amounts to an objection to the discovery ruling itself, an objection they waived because they registered no objection when that ruling was first handed down in September.

Judge Polster added that the discovery ruling only asks that the companies reproduce documents that they'd already located, collected, filtered and produced in other cases, and would not pose any real burden to them. The judge sustained, however, the pharmacies' objection to the Special Master's ruling on the federal investigations, saying that the Plaintiffs haven't identified what relevance the fact of a closed investigation has to any particular case.

Judge Polster said that the pharmacies already have an obligation under the rule to produce investigative materials, and if the Plaintiffs are concerned that the pharmacies are not meeting those obligations, they can file a motion to compel.

As previously reported, in the MDL, dozens of towns, cities, counties and Native American tribes have accused pharmaceutical companies, pharmacies and other distributors of downplaying the risks of addiction inherent to prescription opioids. The Plaintiffs seek to hold the companies responsible for the opioid addiction epidemic that has taken hold across the nation.

Plaintiffs in the MDL are represented by Simmons Hanly Conroy, Motley Rice LLC, Green Ketchum LLP, Spangenberg Shibley & Liber, Robbins Geller Rudman & Dowd LLP and others. The MDL is In re: National Prescription Opiate Litigation, (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.

Source: Law360.com

Amerisource Hides ‘Pillbillies’ Email In Opioid MDL

It appears that AmerisourceBergen Drug Corp. has violated its discovery duties in opioid multidistrict litigation (MDL) by not promptly producing key documents, including an internal email chain that joked about “pillbillies” abusing painkillers.

In a motion filed in the MDL court, lawyers for local government Plaintiffs charged that AmerisourceBergen, a major drug distributor, delayed its production of important records during initial proceedings in the Ohio federal court and thereby limited evidence in cases that have recently been remanded elsewhere. According to the motion, a review of records produced before and after last year's settlement of the MDL's first bellwether cases has created “reason for grave concern regarding [the company's] compliance with the spirit and letter of discovery rulings.”

The motion called for “immediate judicial intervention” to reopen discovery, not allow belated disclosures to be marked confidential and apply sanctions for “conduct deemed to be intentional defiance of this court's authority.”

Although most of the allegedly late disclosures are apparently confidential for the time being, the lawyers filed on the MDL's public docket one of the disclosures: an email chain from 2011 in which high-ranking AmerisourceBergen officials shared lyrics set to the tune of the theme song in “The Beverly Hillbillies” television show. The lyrics said:

Come and listen to a story about a man named Jed. A poor mountaineer, barely kept his habit fed.

The lyrics went on to mention “hillbilly heroin,” a term for the potent opioid oxycodone, which has cut a devastating path of addiction across the U.S., especially in rural America. The lyrics also mentioned “a bevy of pillbillies” and described people traveling to Florida to purchase opioid painkillers unlawfully.

Julie Eddy, director of state government affairs at AmerisourceBergen, replied at one point in the chain by writing, “I sent this to you a month or so ago – nice to see it recirculated.” Ms. Eddy added a smiling emoji at the end of her email. The motion said, referring to the email chain:

Putting aside, for now, the pejorative nature of the parody, the date of this email is important. By 2011, the senior management of [AmerisourceBergen's] regulatory compliance possessed actual knowledge of interstate diversion of prescription opioids into the illicit market. This is a tacit admission of plaintiffs' ‘pill migration’ theory, which [AmerisourceBergen] opposed on both factual and legal grounds.

Plaintiffs lawyers in the multidistrict opioid litigation say that AmerisourceBergen has flouted discovery obligations by not disclosing the internal email.

The motion summarized the contents of other late disclosures. They allegedly include an email exchange related to opioid addiction risks in children and a presentation to AmerisourceBergen's board of directors in 2012 about diversion of prescription opioids for illicit uses. The company told Law360:

The plaintiffs are challenging whether certain documents that AmerisourceBergen has already produced in various cases around the country should have been produced earlier in the [MDL's first bellwether] cases. AmerisourceBergen stands by its document productions and will file a response at the appropriate time.

The motion specifically cited pending MDL bellwether cases in West Virginia federal court. Additional bellwethers against AmerisourceBergen and other opioid distributors are ongoing in California and Oklahoma federal courts.

Source: Law360.com

Drug Company Wants ‘Free Pass’ For Shady Opioid Sales

A drug distributor and two executives indicted for allegedly conspiring to flood Appalachia with opioids are arguing they had “carte blanche” to sell highly addictive painkillers without a legitimate medical need, the U.S. Department of Justice (DOJ) told an Ohio federal court on June 1.

The DOJ, opposing a recent dismissal motion from defunct distributor Miami-Luken Inc. and two former executives, said in its filing that the Defendants are erroneously contending they aren't bound by any legal limits beyond registering to distribute controlled substances, such as oxycodone and hydrocodone.

“That premise defies the law and the principles of justice, and fails for two reasons,” the government wrote in hopes of salvaging a high-profile indictment that a grand jury returned last year against Miami-Luken, former President Anthony Rattini and former compliance officer James Barclay.

According to the opposition brief, one reason the premise fails is that the company and former executives are charged with conspiracy, not unlawful distribution. Even if registration with the U.S. Drug Enforcement Administration (DEA) is sufficient to shield shady distribution, it “does not remotely shield” participation in a conspiracy, the brief said.

A second reason the premise isn't valid is that the immunity cited by the Defendants requires compliance with other legal provisions, including the prohibition on conspiracies, the DOJ wrote in its brief. The government's brief said further:

A DEA registration number does not give a free pass to supply oxycodone to anyone and everyone – or even any and every pharmacy in any and every circumstance – as Miami-Luken chose to do. Neither can Anthony Rattini or James Barclay hide behind their executive titles and claim immunity.

In one specific allegation, the indictment contended that Miami-Luken, Rattini and Barclay from 2011 through 2015 “ignored obvious signs of abuse and diversion by distributing more than 2.3 million dosage units of oxycodone and 2.6 million dosage units of hydrocodone” to a town with less than 1,400 residents.

In their recent motion to dismiss, the company and the executives accused the government of improperly imposing legal liability based on letters penned in 2006 and 2007 by Joseph Rannazzisi, a former deputy assistant administrator at the DEA, regarding obligations for distributors to prevent diversion of opioids for recreational purposes.

The DOJ believes that the “defendants' reliance on the Rannazzisi letters is misguided.” According to the government, the indictment isn't based on noncompliance with the letters. Instead, the DOJ says the failure to adhere to the obligations described in the letters “is circumstantial evidence of the conspiracy.”

In a separate opposition brief, the DOJ targeted a distinct motion to dismiss alleging that the grand jury was wrongly told the Rannazzisi letters carry the force of law. “This is a baseless accusation provided for no reason other than to obtain the grand jury transcripts,” the brief said.

Two pharmacists were also indicted in the case, which could be an important test of the government's ability to bring opioid-crisis prosecutions against prominent drug companies and executives. Historically, allegedly improper sales of narcotic painkillers by big corporations have been resolved with civil settlements.

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.

COURT WATCH

U.S. Supreme Court Takes Up Arbitration Carveout Question

The U.S. Supreme Court has agreed to consider whether a carveout in an arbitration agreement negates a provision allowing arbitrators to rule on their own jurisdiction. The issue has arisen in an antitrust dispute involving two dental equipment distributors.

Henry Schein Inc. is looking to arbitrate Archer and White Sales Inc.'s claim that it conspired with other large dental distributors to maintain supracompetitive margins by threatening to stop buying from manufacturers that sold to low-margin distributors such as Archer and White.

Schein told the high court in its January petition that a decision by the Fifth Circuit refusing to send the dispute to arbitration due to a carveout in the underlying arbitration clause “defies common sense,” and that it deepens a divide among the nation's appeals courts on the effect of a carveout exempting certain claims from arbitration when the parties clearly wanted an arbitrator to decide whether the matter belongs in arbitration or litigation.

The underlying clause at issue exempted claims seeking injunctive relief from arbitration. Archer and White's complaint, in which it's seeking tens of millions of dollars in damages over the alleged conspiracy, includes a claim for unspecified injunctive relief.

Archer and White told the Supreme Court in March that if it takes up Schein's petition, it also should resolve whether if an arbitration agreement incorporates arbitral rules allowing arbitrators to decide their own jurisdiction, that means the parties clearly wanted an arbitrator to decide whether a claim must be arbitrated or litigated.

The American Arbitration Association rules provide that an arbitrator “shall have the power to rule on his or her own jurisdiction.” Archer and White contends that parties that incorporate these rules into their arbitration agreement haven't clearly indicated they want an arbitrator to decide the dispute's proper venue.

Federal appeals courts agree that the incorporation of such rules does constitute the required “clear and unmistakable” evidence. But there's an emerging argument among arbitration scholars and some precedent among state appeals courts suggesting that the rules may not rise to that high standard.

This is the second time that the case has appeared before the Supreme Court. In January 2019, the justices concluded that courts may not override a contract delegating to arbitrators the question of whether a claim must be arbitrated or litigated, even if the arbitration bid was “wholly groundless,” unanimously vacating a Fifth Circuit decision.

The decision struck down the exception, under which courts were able to decide whether a claim belongs in arbitration, for being inconsistent with the Federal Arbitration Act.

The cases are Henry Schein Inc. v. Archer and White Sales Inc., (case number 19-963) and Archer and White Sales Inc. v. Henry Schein Inc., (case number 19-1080) both in the U.S. Supreme Court.

Source: Law360.com

AN UPDATE ON THE WHISTLEBLOWER LITIGATION

U.S. Intervenes In FCA Suit Against KBR And Panalpina Alleging Kickbacks

The Department of Justice (DOJ) recently intervened in a whistleblower lawsuit against Kellogg Brown & Root (KBR), Panalpina Inc. and others alleging that employees of two freight forwarders doing business with the companies provided unlawful kickbacks to KBR transportation department employees. KBR is the prime contractor under the Logistics Civil Augmentation Program (LOGCAP III) contract for logistical support of U.S. military operations in Iraq. In addition to the kickback issue, the whistleblowers in the suit also allege overbilling by a KBR subcontractor in the Balkans, Wesco, under a military contract.

David Vavra and Jerry Hyatt, who have been active in the air cargo business, filed this lawsuit in the U.S. District Court for the Eastern District of Texas under the qui tam or whistleblower provisions of the False Claims Act.

The United States is pursuing claims that the two freight forwarders, Eagle Global Logistics (which has since merged with TNT Logistics and become CEVA) and Panalpina provided unlawful kickbacks in the form of meals, drinks, tickets to sports events, and golf outings to KBR employees. The government is seeking damages and penalties under the False Claims Act and common law, as well as penalties under the Anti-Kickback Act.

The United States previously intervened in and settled the relators' claim that EGL included non-existent charges for war risk insurance in invoices to KBR for air shipments to Iraq, costs that KBR passed on to the Army. This resulted in two EGL employees pleading guilty to related criminal charges. EGL also paid the United States $4 million in the civil settlement.

The government also intervened in and settled the relators' claim that EGL's local agent in Kuwait, a company known as Al-Rashed, overcharged it for the rental (or demurrage) of shipping containers. The United States settled potential claims arising from that matter against EGL for $300,000.

Finally, EGL paid the government $750,000 to settle the relators' claim that the company provided kickbacks to employees in KBR's transportation department. Former EGL employee Kevin Smoot and former KBR employee Bob Bennett pleaded guilty to related criminal charges in federal court.

This case is part of a National Procurement Fraud Initiative. The Deputy Attorney General announced in 2006 the formation of a National Procurement Fraud Task Force designed to promote “the early detection, identification, prevention and prosecution of procurement fraud associated with the increase in government contracting activity for national security and other government programs.” The Assistant Attorney General for the Criminal Division chairs the Task Force, which includes the Civil Division, United States Attorneys' Offices, the FBI, the U.S. Inspectors General community and a number of other federal law enforcement agencies. This case, as well as others brought by members of the task force, demonstrates the Department of Justice's commitment to ensure the integrity of the government procurement process.

Source: Justice.gov

DOJ Joins Whistleblower Lawsuit Against AECOM

The U.S. Department of Justice (DOJ), has joined a whistleblower lawsuit against AECOM, an architect and engineering firm, and certain disaster relief applicants. The lawsuit alleges that the company violated the False Claims Act (FCA) by submitting more than $100 million in fraudulent claims to the Federal Emergency Management Agency (FEMA) for damage to various client facilities caused by Hurricane Katrina in 2005.

According to DOJ, AECOM received more than $300 million between 2005 and 2019 from FEMA as a technical assistance contractor that conducted site evaluations and prepared and reviewed damage and repair estimates used to determine whether applicants were eligible for public assistance funds. AECOM and the applicants were responsible for providing FEMA with truthful and accurate information regarding each facility's pre-disaster design and all damage resulting from Hurricane Katrina.

The alleged fraud included claims of damage to non-existing concrete building foundations and fictitious basements, systematic inflation of cost estimates for damaged items, inflation of building square footage and submission of fraudulent damage photographs. In some cases, AECOM took advantage of a FEMA policy called the “50% rule” by manipulating repair and replacement estimates so the agency would pay for full replacement when it should have paid only for less expensive repairs, the complaint said.

One former AECOM client, Xavier University of Louisiana, has agreed to pay $12 million to resolve its alleged role in the submission of false and misleading repair estimates prepared by AECOM on its behalf. Additionally, Xavier has agreed to cooperate with the DOJ's investigation of other parties and any related litigation.

Xavier's settlement resolves part of a whistleblower lawsuit brought by an AECOM employee under the qui tam provisions of the FCA. For those who are not familiar with the FCA, the act allows private individuals with knowledge of fraud against the government to bring a lawsuit on behalf of the government and to share in the recovery. As part of the resolution with Xavier, the whistleblower will receive approximately $2.3 million of the money Xavier is returning to the government.

Source: Department of Justice News Release

Whistleblower Receives $50 Million Award, Largest In SEC History

The U.S. Securities and Exchange Commission (SEC) on June 4 issued the largest bounty in the decadelong history of its program for paying whistleblowers, awarding nearly $50 million to a whistleblower who was credited with providing “firsthand” information about corporate misconduct that led to an enforcement action. Jane Norberg, chief of the SEC's whistleblower office, said:

This award marks several milestones for the whistleblower program. This award is the largest individual whistleblower award announced by the SEC since the inception of the program, and brings the total awarded to whistleblowers by the SEC to over $500 million, including over $100 million in this fiscal year alone. Whistleblowers have proven to be a critical tool in the enforcement arsenal to combat fraud and protect investors.

With the latest award, the SEC topped its previous record: a $39 million bounty issued in 2018. The SEC has now awarded 13 separate tipsters in 2020. In the fiscal year that ended Sept. 30, the SEC issued awards to eight tipsters, according to the whistleblower office's most recent report to Congress.

Following its standard practice, the SEC did not name the recipient of its latest award, nor did it identify the enforcement action that gave rise to the award. In the order approving the award, the SEC credited the whistleblower for providing firsthand observations of “misconduct by the company that was previously unknown to the staff.”

In the course of the SEC's probe, the whistleblower “laid out in detail substantial aspects of the scheme and provided a road map for the investigation,” the commission added, noting that the enforcement action helped return a significant amount of money to harmed investors.

Source: Law.com

The Beasley Allen Whistleblower Litigation Team

Beasley Allen has had a Whistleblower Litigation Team in place for a long time. Creating this team was needed to handle the large number of False Claims Act (FCA) claims the firm was receiving. Due to our extensive heavy involvement in whistleblower litigation, there was a definite need for 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 one of the lawyers on Beasley Allen's Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is a contact form on the firm's website ( www.beasleyallen.com). The following Beasley Allen lawyers are on the Whistleblower Litigation Team: Larry Golston, Lance Gould, Paul Evans, Leslie Pescia, Leon Hampton, Tyner Helms and Lauren Miles. Dee Miles, who heads up our Consumer Fraud & Commercial Litigation Section, also participates in the Whistleblower litigation and works with the Litigation Team.

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

Beasley Allen Recognized As National Leader In Product Liability Litigation

Beasley Allen was recognized recently as a national leader in product liability litigation. According to a June 2, 2020, article in Law360, Beasley Allen had the second most product liability cases in the country, with 6,962 cases filed between 2015 and 2019.

While Beasley Allen also has other robust practice areas that include personal injury, toxic torts, environmental law, consumer protection and employment law, the firm does enjoy a very large products liability practice. From defective tires to defective drugs and medical devices, we have been holding manufacturers accountable for more than 40 years.

With more than 80 lawyers in the firm, at least half of the Beasley Allen lawyers are working on product liability cases. That commitment to redressing consumer injuries from defective products has resulted in record breaking recoveries for our clients, including the largest pharmaceutical drug settlement in U.S. history ($4.85 billion).

Our firm's work has led to improved industry practices and, in a large number of cases, the result caused the actual removal of dangerous products from the market. For example, for more than 100 years, Johnson & Johnson (J&J) marketed and sold its iconic talc-based Baby Powder. In the 1950s, studies showed cancerous tumors forming in mice exposed to talc. Subsequent epidemiological studies showed women who dusted with talc in the genital area were 30-60% more likely to develop ovarian cancer. Cell studies also showed talc was causing carcinogenic changes in human epithelium like that which lines a woman's ovaries and fallopian tubes. Despite the compelling science that was well known to J&J, and published in respected medical and science journals, J&J continued to aggressively advertise and sell Baby Powder and encourage women to use it on themselves and their babies.

Then, in 2016, Beasley Allen took J&J to trial for causing an Alabama woman's ovarian cancer, resulting in a $72 million verdict for her family – the first monetary verdict for ovarian cancer from Baby Powder. Two more verdicts that year of $55 Million and $70 million, and two the next year for $110 million and $417 million, eventually got J&J's (and its shareholders) attention.

Then, after a monumental Daubert ruling in the talc multidistrict litigation (MDL) (co-led by Beasley Allen's Leigh O'Dell) validating Plaintiffs' experts' opinions and methodologies, J&J made an unprecedented announcement. It was no longer going to sell its flagship talc-based Baby Powder in the U.S. and Canada. A true victory for women and children.

There is no doubt this move by J&J will significantly reduce the number of women contracting deadly ovarian cancer in this country. There is also no doubt that these legal victories provoked J&J's action. Beasley Allen lawyers continue to prosecute thousands of J&J Baby Powder/ovarian cancer cases.

In a number of cases handled by Beasley Allen lawyers, corporations made significant safety changes in their products. Another benchmark product liability case that changed industry behavior was against Kubota Tractor Company. In the early 1990s, a retired farmer who had driven tractors his whole life was spraying weed killer from his small Kubota tractor when the tractor hit a bump and rolled over, pinning the driver underneath, where he eventually suffocated.

During discovery, Beasley Allen founding partner Greg Allen discovered that Kubota had actually formed a committee to study the risk of tractor roll-over accidents, and discussed the installation of roll-over protection bars. But Kubota's marketing director prevented the modifications, arguing they would hurt sales. Greg eventually took the marketing director's deposition, in which the director repeatedly denied any knowledge of a roll-over protection committee, until Greg confronted him with meeting minutes that clearly evidenced not only the existence of the committee but also that the director actually chaired the committee.

The Kubota director did not hold up any better at trial under cross examination and, midway through trial, Kubota desperately searched for an exit ramp. It made an exceptionally large offer to settle the claim, but insisted on a confidentiality agreement. At our client's request, Greg and I refused the offer. There would be nothing confidential about Kubota's behavior or impending verdict. Soon thereafter, Kubota abandoned its confidentiality requirement, and the case settled for $10 million. There was no doubt the jury was poised to punish Kubota for its callous disregard for the safety of its customers. Soon after the case resolved, Kubota started installing roll-over protection bars on its tractors and boasted it was a “leader” in the tractor safety in the industry because it was the first to put roll-over protection (ROP) on its tractors.

There have been numerous other product liability cases handled by our lawyers in which valuable information was obtained during discovery that not only helped our clients in the cases (both settlements and jury verdicts), but the results brought about safety changes in products made and sold by a number of companies. We have written about those cases in prior issues of this publication.

For more than 40 years, Beasley Allen has represented clients injured by defective products. Our committed lawyers, doctors, nurses, paralegals, investigators, technology department, and support staff stand ready to take on corporate giants in the automobile, drug, chemical and other powerful industries whenever necessary. We realize that the civil justice system actually does the work that government regulators, for whatever reason, fail to do. Trial lawyers play a most significant role in that process.

It is truly a blessing to have the resources and wherewithal to represent injured clients no matter how big the responsible corporation. The ability to help those injured and the families of persons killed and to change dangerous industry behavior, is truly rewarding to us all.

Product Liability Case Filings In U.S. Federal Courts Reach Eight-Year High

The number of product liability case filings in U.S. federal district courts hit an eight-year high in 2019. This continues a trend that has been increasing since 2015, according to a new report from Lex Machina.

Some 56,041 cases were filed last year, 29% more than in 2018 and the highest total since 2011, the data show. When taking out multidistrict litigation (MDL) filings, the trend was even more noticeable – totaling 5,267 cases, the highest over the 10-year period the report analyzed and well above the 10-year average.

The most active Defendants over the same period excluding MDL cases were Johnson & Johnson (1,429 cases), Abbot Laboratories (1,197) and Ford (973). MDL cases are typically heavily skewed toward medical and pharmaceutical companies, according to Ron Porter, Lex Machina's product liability legal data expert.

Source: Globallegalpost.com

3M Officials Attempt To Shift Blame For Earplug Flaws To Soldiers

U.S. District Judge Casey Rodgers, who is overseeing the federal 3M multidistrict litigation (MDL), recently made public hundreds of depositions, emails, memos and receipts related to the Department of Defense's (DOD) purchase of 3M earplugs. These documents revealed that 3M officials knew there were potential issues with the company's protective earplugs, but did not believe soldiers needed to be told how to adjust the earplugs to achieve a proper fit. 3M scientist Elliot Berger stated that “the existing product has problems unless the user instructions are revised.” Yet 3M sales manager Timothy McNamara answered “I don't believe so” when asked in his deposition whether soldiers were entitled to know that the way 3M tested the earplugs was different than the way that service members were instructed to use them.

3M is defending what is likely to become one of the largest mass tort litigation cases in the U.S., with more than 140,000 claims pending against the company concerning the defective Dual-Ended Combat Arms Earplugs Version 2 (CAEv2). This design flaw has resulted in soldiers developing tinnitus and hearing loss. They argue the earplugs could only achieve a proper fit with specific fitting instructions, but this information was not shared with the government and ultimately the soldiers using the earplugs.

3M denies the accusations, saying it has acknowledged some users require special instructions to achieve proper fit, but that it communicated this to the military. The company also says the earplugs were shortened because the Army wanted them to fit in the standard carrying case.

In 2018, 3M paid $9.1 million to resolve accusations that it knowingly sold defective CAEv2 earplugs to the U.S. military. The lawsuit was brought under the whistleblower provision of the False Claims Act. The government claimed 3M knew about defects that hampered effectiveness and failed to disclose this to the military.

If you need more information relating to the 3M litigation involving the ear plugs, contact Will Sutton, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at William.Sutton@beasleyallen.com.

Source: Newsweek

AN UPDATE ON MOTOR VEHICLE LITIGATION

Beasley Allen Reaches $1.3 Million Settlement In Takata Airbag Case

On March 31, 2019, Alfredo Zamora-Contreras was driving a 2004 Honda Civic in rural Jefferson County, Alabama. He attempted to make a left-hand turn and collided into a median curb. When the collision occurred, Mr. Zamora's driver's side frontal airbag deployed and shot shrapnel into the occupant compartment of the vehicle.

Mr. Zamora was properly wearing his seatbelt when the accident occurred. The vehicle he was driving was equipped with a Takata phase-stabilized ammonium nitrate (PSAN) airbag inflator which was subject to National Highway Traffic Safety Administration (NHTSA) Recall Number 15V-320 in which a defect existed in the driver's front airbag inflator. When deployed in a crash, the airbag inflator could rupture and break apart, sending metal fragments through the airbag cushion material into the occupant compartment, possibly causing serious injury or fatality. This is precisely what happened to Mr. Zamora's airbag during the crash.

Mr. Zamora suffered a severely comminuted fracture of the anterior and left mandible including fractures to several teeth. He suffered extensive facial fractures, skull fracture, and a left orbital floor fracture. His medical bills totaled $151,415.31.

Our client submitted claims for compensation from the Takata Individual Restitution Fund (IRF), the personal injury and wrongful death restitution fund established under the Restitution Order entered by the United States District Court for the Eastern District of Michigan on Feb. 27, 2017, in U.S. v. Takata Corporation, Case No. 16-cr-20810, in conjunction with Takata's guilty plea; the Takata Airbag Tort Compensation Trust Fund (TATCTF) established in connection with Takata's Chapter 11 Bankruptcy Plan of Reorganization, which was confirmed by the United States Bankruptcy Court for the District of Delaware on Feb. 21, 2018; and a claim in the TATCTF against Honda, which is a claim against a Participating Original Equipment Manufacturer (POEM). Currently the only POEM is Honda/Acura.

The case was settled for $1.3 million. Chris Glover, who heads Beasley Allen's Atlanta office, handled this case for the firm. Chris says he was humbled to have had the opportunity to help this deserving client. If you have a question about Takata airbag cases, contact Chris Glover at 800-898-2034 or by email at Chris.Glover@beasleyallen.com.

Ninth Circuit Allows State And Local Governments To Enforce Laws Against Volkswagen And Other Auto Manufacturers

In June, the Ninth Circuit Court of Appeals told Volkswagen Group of America Inc. (VW) and other automakers that two counties are permitted to pursue claims concerning the post-sale modification of “defeat devices” intended to fool emissions testing.

Beasley Allen represents the Environmental Protection Commission of Hillsborough County in Florida, which seeks to hold Volkswagen liable for violating its local rules by tampering with the emissions software in select vehicles. The litigation stems from the revelations in September 2015 that Volkswagen equipped its 2.0-liter and 3.0-liter diesel vehicles with devices that would allow the cars to pass government-mandated emissions tests, then emit more pollution once they hit the roads under normal driving conditions.

Volkswagen settled the Environmental Protection Agency's (EPA) criminal and civil actions for more than $20 billion, but it failed to obtain a release of liability from state and local governments. A district court ruling previously held the actions brought by The Environmental Protection Commission of Hillsboro County, Florida, and Salt Lake County were preempted by the Clean Air Act (CAA). The Ninth Circuit, however, disagreed. The Appeals Court said:

We may not strain to give Volkswagen the equivalent of a release from state and local liability (which it did not secure for itself) by engaging in a ‘freewheeling judicial inquiry’ into whether a state statute is in tension with federal objectives.

According to the Ninth Circuit opinion, the two counties' claims for installing defeat devices in new cars are preempted because the CAA expressly preempts state and local government efforts to apply anti-tampering laws to “pre-sale” vehicles. However, the counties are permitted to bring claims against Volkswagen for tampering with “post-sale” vehicles (cars that are registered, licensed and in use) because Volkswagen issued recalls and updated software on the defeat devices to continue evading compliance with federally mandated emission standards.

The Court's opinion rejected Volkswagen's arguments that the state laws form an obstacle to enforcing the CAA, saying it was written as a “cooperative-federalist” partnership, intended for state regulators to work alongside federal regulations. As such, the Ninth Circuit Court determined that Congress did not intend for the CAA to ignore actions of a manufacturer to intentionally tamper with vehicles after they were sold and noted that Congress “apparently did not contemplate that a manufacturer would intentionally tamper with the emission control systems of its vehicles after sale in order to… deceive regulators,” calling Volkswagen's conduct “unexpected and aberrant.” Dee Miles, who is head of the firm's Consumer Fraud & Commercial Litigation Section, had this to say about the court's opinion:

We are very pleased with the Ninth Circuit's ruling and believe strongly that the citizens of Hillsborough County have a right to collect fines from VW for allowing their products to willfully pollute the air quality of the county, unbeknownst to the vehicle operators. Preventing harmful emissions from automobiles was the very purpose of the county ordinance and VW deliberately violated the letter of the law. We now look forward to our day in court.

In addition to Dee, Beasley Allen lawyers Clay Barnett, Leslie Pescia and Tyner Helms are involved in this litigation, as well as Archie Grubb, a lawyer now in Phenix City, Alabama. If you need more information on this litigation, contact Leslie Pescia, a lawyer in our firm, at 800-898-2034 or by email at Leslie.Pescia@beasleyallen.com.

Federal Motor Carrier Safety Administration Crash Accountability Program

The Federal Motor Carrier Safety Administration's (FMCSA) core mission is to prevent crashes, injuries, and fatalities related to large trucks and buses on the public highway. An important step to achieving the mission is to identify unsafe motor carriers. The FMCSA uses the Safety Measurement System (SMS) to identify carriers with potential safety problems. The agency's Safety Compliance and Enforcement program is called Compliance, Safety and Accountability (CSA).

The FMCSA organized the SMS data into seven categories: unsafe driving, crash indicator history, hour of service compliance, vehicle maintenance, control substance/alcohol, hazardous material compliance, and driver fitness. Along with these seven categories, the FMCSA also uses roadside performance data collected on roadside inspections, and crash reports.

The Compliance, Safety and Accountability score is used by the FMCSA to hold motor carriers and drivers accountable for their role in safety. Further, the CSA score is used by FMCSA to identify high-risk motor carriers and drivers that may require intervention by the FMCSA.

However, since the CSA score has been used, the trucking industry has sought to change some of the standards used by the government to identify high risk carriers. In July 2017, FMCSA announced a crash preventability demonstration program to evaluate the eight categories of crashes through submissions of data review. In August 2019, based on the experiences with the demonstration program, the FMCSA proposed a new crash preventability determination program in which the FMCSA expanded the types of eligibility crashes and modified the SMS system to exclude crashes with non-preventable determination.

The following crash types are eligible for the program:

  • Struck-in-the-rear type crashes;
  • Wrong direction or illegal turn type crashes;
  • Parked or legally stopped type crashes;
  • Failure of the other vehicle to stop type crashes;
  • Under-the-influence type crashes;
  • Medical issues, falling asleep or distracted driving type crashes;
  • Cargo equipment and debris type crashes;
  • Animal strike type crashes;
  • Suicide type crashes; and, lastly,
  • Rare or unusual type crashes.

Under the Crash Preventability Demonstration Program, a carrier can request the FMCSA review a collision if the carrier believes the event was unavoidable. If a crash falls in one of the above categories, the carrier may submit the crash for review by sending material such as video footage, photos, police reports, insurance claim information, hearing transcripts and/or affidavits.

Once a motor carrier submits data for review, the FMCSA reviews the data and determines whether the crash was not preventable, preventable or undecided. The next step would be input from the general public on a particular crash as long as the FMCSA did not determine the crash was not preventable. After all these steps have been followed, the FMCSA posts its final decision and that will determine if the crash is included in the Safety Measurement System data.

Under the former system, collision data reported to the FMCSA did not specify the motor carrier's role in the crash or whether the crash was preventable.

The FMCSA said the goal of the program is to examine the feasibility, cost and benefits of determining and exploring the preventability of certain crash types and to identify high risk motor carriers.

After the program had been running approximately one year, the FMCSA released the following data:

  • The agency received 5,228 review requests.
  • The agency issued 2,790 determinations during that time period.
  • The agency found the following: 94% of the crashes reviewed were not preventable, 1.5% were preventable, and 4.5% were undecided. Most of the collisions reviewed were commercial vehicles that were struck from the rear end.

Effective May 1, 2020, the FMCSA announced that it would not count crashes in which the motor carrier is not at fault in calculating the carrier's safety measurement profile.

Since 2010, the FMCSA Safety Measurement System has used safety performance information and the seven-behavior analysis and safety improvement categories to prioritize carriers for safety intervention. While the system is not perfect, it is at least an attempt to keep motor carriers aware of their safety status so they may implement change before the federal government intervenes.

If you need more information, contact Mike Crow, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Mike.Crow@beasleyallen.com. Mike handles motor vehicle accident litigation for the firm.

Sources: fmsca.com and truckernews.com

Trucking Wrecks Almost Always Result In Devastation

Many of our readers could probably tell us a story about a car accident they have been involved in. Perhaps it was a fender bender on the way to school as a teenager, or maybe it was a more serious wreck that they can recall as if it happened just yesterday.

Having litigated trucking cases (also referred to as 18-wheelers) across the nation, our lawyers at Beasley Allen unfortunately know that only a very small number of people can tell you a story about a trucking wreck they were involved in. This is because only a very few people ever walk away from that sort of accident, and for good reason.

The legal weight of an 18-wheeler truck is typically 80,000 pounds, and they can reach even heavier weights depending on permits the driver and truck have, or whether the trucking company is breaking the law and hauling loads that are too heavy.

In comparison, the average automobile weighs approximately 5,000 pounds. This extraordinary weight disparity is the catalyst for brutal and unforgiving wrecks that involve big trucks, and it is the reason why safety to drivers and to the traveling public must be priority number one to truck drivers and trucking companies.

Notwithstanding the coronavirus pandemic, the nation is still seeing numerous deadly trucking accidents. For example, in early June, numerous people died from several trucking accidents on Wisconsin interstates. Close to Madison, Wisconsin, the site of one of the major accidents, two large trucks collided. Cleanup ensued, and another large truck struck a trooper car at the original crash site around 5 a.m. Debris from the crash struck two troopers and a highway department worker. Then, at around 6:45 a.m., a major chain reaction crash involving eight vehicles and three large trucks occurred a mile south of the original crash site. Four people died in that collision alone and three others were seriously injured. Police also noted that five motorists pulled two people from burning vehicles.

The above scenario shows just how chaotic a trucking crash can be, and these types of accidents are occurring with regularity. Because of the brutal force behind a truck wreck, flying debris can be just as deadly as the truck itself. Numerous cars are often involved, leading to the potential for spinoff and pileup crashes from the original accident. Upon a loss of control, or at impact, the truck payload can become unstable or dislodged, leading to a jackknife or rollover event.

In addition, large truck tires are especially susceptible to blow-out events, which can cause the truck to lose control or send debris into other vehicles. Because the cabs of 18-wheelers often have limited structural integrity to support the vehicle's weight, the driver of an 18-wheeler in a collision is at serious risk, especially in roll-overs. Truck cabs are also susceptible to payload intrusion during a wreck, which can compromise the safety of the driver.

Beasley Allen has a history of working alongside our co-counsel to successfully litigate and resolve these cases against trucking companies throughout the U.S. If you have any questions about these cases, contact Cole Portis, who heads up our Personal Injury & Products Liability Section, Ben Baker, Ben Locklar, Parker Miller, Chris Glover or Mike Crow at 800-898-2034 or by email at Cole.Portis@beasleyallen.com, Ben.Baker@beasleyallen.com, Ben.Locklar@beasleyallen.com, Parker.Miller@beasleyallen.com, Chris.Glover@beasleyallen.com or Mike.Crow@beasleyallen.com.

Source: TruckersNews

NASDPTS Releases New Position Paper On Three-Point Belts

The National Association of State Directors of Pupil Transportation Services (NASDPTS) has released a new position paper on the use of lap-shoulder (three-point) seat belts in school buses. Approved by the NASDPTS board of directors on May 27, 2020, the position paper supersedes the association's 2014 position paper, “The Equipping and Use of Passenger Lap-Shoulder Belts in School Buses.” Mike LaRocco, NASDPTS's president, reported this development in a letter to members.

The paper details the association's longtime support for the safety value that lap-shoulder belts bring to school buses by augmenting compartmentalization, and states that NASDPTS fully supports requiring three-point belts in all new school buses. The position paper also covers the reasons for NASDPTS' support, as well as “common objections raised by persons and jurisdictions that have not begun purchasing and using new large school buses equipped with three-point lap-shoulder belts.”

Additionally, the paper's introduction notes that many states and local jurisdictions already require lap-shoulder belts in new school buses. As other states, school districts, school bus contractors, and charter and private schools nationwide consider whether to make three-point belts a requirement in new school buses, the paper also offers guidance on making that decision.

The paper concludes that lap-shoulder belts must be combined with a mandatory use policy and employee and student training on how to use the seat belts, and that state directors of pupil transportation should educate lawmakers on the safety record of school buses and additional safety benefits provided by lap-shoulder belts, and the need to ensure funding and service requirements support the availability of school buses.

LaRocco also noted in the letter to members that while navigating the pandemic is its highest current priority, NASDPTS remains committed to its longstanding efforts to address myriad other aspects of transportation safety. Key among those is passenger crash protection.

Beasley Allen has advocated the need for seatbelts on school buses for many years. The school bus roof crush standard is FMVSS 220. This is an inadequate standard for roof crush. When the roof starts to collapse and matchbox, the windows in the bus tend to break out, creating portals of ejection for unbelted children. The videotapes taken from inside school buses as they crash show the substantial need for seatbelts. Children are seen flying all directions, causing severe and sometimes catastrophic injuries. School bus manufacturers have always advocated compartmentalization rather than seatbelts. This is an unsafe practice.

The current roof crush standard for school buses is weak and very easy to pass. There is no angle test to check for effective matchboxing on the roof. In Europe, school bus manufacturers are required to roll their school bus off a ramp onto a corner of the roof to test the true roof strength.

School bus manufacturers like to talk about the safety of buses based on the number of students they provide. They should be extremely safe because they have professional drivers driving these school buses. However, when an accident happens, the results can be catastrophic. Safer designs are necessary to protect the precious cargo.

Kendall Dunson, a Beasley Allen lawyer, is currently handling a case against a bus manufacturer in Georgia. Kendall represents the mother of a 6-year-old school bus passenger who was being transported from school to her home. On the route, the bus driver lost control resulting in a half-roll of the school bus. Our client's daughter was ejected from her seat and thrown around the bus during the roll sequence. When the bus came to rest, the child was entrapped with part of her body under the structure of the bus. Emergency personnel were forced to cut her body in half to extricate the victim from the vehicle. Sadly, she died a horrific and totally preventable death. A seatbelt would have kept the child in her seat, saving her life in this accident.

If you need more information on this subject, contact Graham Esdale at 800-898-2034 or by email at Graham.Esdale@beasleyallen.com. You can also contact Kendall Dunson for information on his case at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com.

Car Seat Safety Updates

For the second time in fewer than six months, the National Highway Traffic Safety Administration (NHTSA) has issued an advisory regarding cars seats or aftermarket passenger seats designed for children. In November 2019, safety experts at the agency urged consumers to avoid using or purchasing car seats for children that do not meet federal safety standards after concerns were reported about products being sold in the United States. More recently, NHTSA warned about an aftermarket bench seat frequently used to add an additional row of seating, often for children, in the cargo compartment of SUVs.

NHTSA's safety advisory on car seat safety urged parents to look for signs that a car seat does not meet Federal Motor Vehicle Safety Standards. NHTSA's complete standards for child restraint systems can be found at 49 C.F.R. 571.213, but there are several telltale signs that a car seat does not meet federal standards. These signs include: car seats without lower anchor attachments (to attach most often to the small, horizontal bars found in the space between the vehicle seat's back and bottom cushion), car seats without proper labeling, car seats lacking a chest clip, or car seats only secured by a seatbelt crossed over the seat and not correctly installed. Car seats that do not meet the agency's safety criteria can pose significant risks not only to the children buckled in the seat, but to other vehicle occupants as well.

In April 2020, NHTSA singled out the “Little Passenger Seat” made by Little Passenger Seats, Inc. and advised consumers not to purchase or use the product because bench seats are not certified as meeting Federal Motor Vehicle Safety Standards for motor vehicle equipment. The Little Passenger Seat, available as early as the year 2000, was advertised as a custom third or fourth row seat for use in more than 70 SUVs and other vehicles.

This seat gained some notoriety after being highlighted by several media outlets, including the program “Jay Leno's Garage.” In a news release NHTSA stated, “this warning is especially important because the seats are frequently used by children,” as parents look for ways to increase seating in their automobiles.

Despite the Better Business Bureau reporting that Little Passenger Seats, Inc is no longer in business, NHTSA warned that consumers should continue to pay special attention because uncertified benches are still being sold online, sometimes misleadingly described as safe and approved for use by the Department of Transportation.

If you need more information, contact Dan Philyaw, a lawyer in our Atlanta office, at 800-898-2034 or by email at Dan.Philyaw@beasleyallen.com.

AN UPDATE ON THE JUUL LITIGATION

Beasley Allen Is Part Of A New Coalition Of Law Firms Fighting On Behalf Of School Districts And Public Entities To Stop Vaping Crisis

Many school districts across the nation are struggling to protect their students from the health hazards of vaping. Beasley Allen has teamed up with a group of nationally recognized firms committed to protecting public health to represent school districts and public entities combatting the youth vaping epidemic. The national law firm coalition includes Baron & Budd, P.C.; Beasley, Allen, Crow, Methvin, Portis and Miles, PC; Goza & Honnold, LLC; Panish Shea & Boyle LLP; Wagstaff & Cartmell, LLP; and Walkup, Melodia, Kelly & Schoenberger.

Each of these firms has built a reputation on its ability and willingness to litigate complex disputes against some of the world's largest companies. Members of these firms serve in key court-appointed leadership roles in the national vaping litigation against JUUL. Together, our team is working with lawyers representing school districts from across the nation as they seek to hold the vape device manufacturer accountable for creating a youth vaping epidemic among school campuses.

To date, the coalition represents more than 100 school districts collectively serving over 5 million students in Arizona, Arkansas, California, Florida, Kansas, Kentucky, Missouri, New York, Pennsylvania and West Virginia. Recently, this team filed a case on behalf of Los Angeles Unified School District, which is the second largest school district in the nation. For more information about the coalition and its mission, visit SchoolVapingCrisis.com.

Beasley Allen, National JUUL Litigation Team Files Suit For Russellville School District

Beasley Allen and this national coalition of firms teamed up with attorney James A. Streett with the Streett Law Firm, P.A. in Russellville, Arkansas, and Gerard Stranch of Branstetter, Stranch & Jennings, PLLC, in Nashville, Tennessee, to file the first JUUL lawsuit against JUUL Labs Inc. on behalf an Arkansas school district – Russellville School District in Pope County, Arkansas. The lawsuit seeks to hold JUUL accountable for marketing its addictive products to young people without warning them of the risks. As a result, the lawsuit alleges that JUUL created a new generation of nicotine addicts, resulting in a public nuisance impacting school systems and forcing them to expend limited time and resources.

Joseph VanZandt is leading Beasley Allen's efforts and heads this litigation team. He had this to say:

We are pleased to represent Russellville School District, which is leading the charge in Arkansas to fight for students and schools negatively impacted by nicotine addiction. It is the mission of schools and educators to improve the lives of students by helping them achieve academic success. Unfortunately, because of its decision to prey on young people, JUUL has severely impacted that mission by diverting time and resources from educational programs to those fighting addiction and raising awareness about the risks of vaping and nicotine.

Dr. Mark Gotcher, Superintendent of the Russellville School District, says the seriousness of the vaping crisis was brought home to him in the 2018-2019 school year after two students suffered medical emergencies on campus as a result of vaping. He began to educate himself about vaping and nicotine addiction, and working with school leaders to amend existing discipline policies on campuses in an attempt to curb usage among students and educate them about the dangers of vaping.

Dr. Gotcher says that what he thought he understood about vaping was that it was “a safer alternative to smoking.” But he discovered that one vape cartridge could contain as much nicotine as several packs of cigarettes and that was very alarming to him. But, it really put things into perspective and allowed him to come to his own conclusion of how deep a problem this could be for youth across the nation and his very own students.

Dr. Gotcher, who has worked in the Russellville School District since 1994 and was a deputy commissioner at the State Department of Education, said he is seeing nicotine addiction from vaping affect students as young as fifth-graders. After a survey of students, it is estimated 20% of the student population consistently vaped, tried vaping or continues to vape.

The complaint is filed in the United States District Court, Northern District of California, San Francisco Division, case number 3:20-cv-03916.

A New Evidence Review Reveals JUUL Labs Made JUUL More Addictive And Appealing To Youth

On June 1, 2020, a new evidence review confirming that JUUL engineered vapes to be more addictive and more attractive to youth was published online in the journal JAMA Pediatrics, which is the first paper to synthesize research findings on pod-based e-cigarettes.

The researchers from South Korea and Harvard collected and analyzed 35 previous studies to form a clearer view of pod-based e-cigarettes and their impact on health. The study concluded that, among others, (1) many aspects of pod-based e-cigarettes like JUUL are designed to addict people to nicotine and (2) these vape devices are designed and marketed in ways that make them very attractive to children. Stella Lee, first author and professor at Konkuk University in South Korea said:

We found that pod-based e-cigarettes have a higher potential to get youth and young adults addicted than other devices. To prevent this from happening, we need stronger health communication messages that alert people to these findings.

According to the study, the design of JUUL ensures the delivery of high doses of nicotine in a low pH form, which is less harsh compared to the higher pH nicotine found in most other e-cigarette brands, thus encouraging deeper inhalation. The findings further suggested that adolescents using pod-based e-cigarettes like JUUL were more likely than other e-cigarette users to vape daily and to have more symptoms of nicotine dependence.

In addition, the study looked at how JUUL and other pod-based vape manufacturers marketed themselves. It found pod-based e-cigarette brands like JUUL, compared with other e-cigarette brands, have targeted youth and young adults with aggressive social media marketing. Other vaping products targeted older demographics and touted vaping as a smoking-cessation tool while JUUL and other pod-based vape manufacturers focused on ease of use, recreation, and other lifestyle appeal. In that way, the products had broader appeal and relevance to non-smokers (i.e. youth) who otherwise would have no need to vape.

The national JUUL multidistrict ligation (MDL-2913) is moving forward smoothly and about 600 cases are currently pending in the MDL, where Beasley Allen lawyer Joseph VanZandt serves on the Plaintiff Steering Committee (PSC). Beasley Allen lawyer Beau Darley serves on the PSC for the consolidated California state court litigation against JUUL in Los Angeles. Joseph and Beau are working with Mass Torts Section Head Andy Birchfield and a team of Beasley Allen lawyers to represent individuals and school districts who are suing JUUL over the damage its conduct has caused. If you need more information about the litigation, contact Joseph VanZandt at 800-898-2034 or by email at Joseph.VanZandt@beasleyallen.com.

Sources: The Harvard Gazette, U.S. News.com and JAMA Pediatrics

The JUUL Litigation Team

Beasley Allen lawyers Joseph VanZandt, Sydney Everett, James Lampkin, Beau Darley, Soo Seok Yang, and Mass Torts Section Head Andy Birchfield are currently representing a number of individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives. These lawyers currently make up our firm's JUUL Litigation Team. The team has also filed lawsuits on behalf of school districts nationwide, which seek to protect students and recover resources spent fighting the vaping epidemic. If you have a potential claim or need more information on JUUL, contact any the lawyers on the team at 800-898-2034 or by email at Joseph.VanZandt@beasleyallen.com, Sydney.Everett@beasleyallen.com, James.Lampkin@beasleyallen.com, Beau.Darley@beasleyallen.com, SooSeok.Yang@beasleyallen.com, or Andy.Birchfield@beasleyallen.com.

UPDATE ON THE BOEING LITIGATION

Pressure From MAX Crash Victims' Families Urges Senate To Restore Some FAA Oversight

The Senate and House Transportation Committees have announced a joint bi-partisan bill that will restore some of the Federal Aviation Administration's (FAA) oversight of the certification process used to approve new and newly redesigned aircraft, including stricter oversight of the “organization designation authorization” (ODA), Flight Global reported. The bill was strengthened after strong protests were made by families of victims who died in the two fatal Boeing 737 MAX crashes. The protests were in response to the initial bill proposed last month by Senator Roger Wicker (R-Mississippi) who chairs the committee.

The initial legislation included only limited changes that most likely would not have improved consumer safety, according to the Washington Post. The bill is in response to the committee's investigation of the two MAX crashes that together claimed 346 lives in 2018 and 2019. A day after the revised bill was announced, FAA head Steve Dickson testified before the committee about the agency's current efforts to learn from the mistakes it made in approving the dangerously defective MAX and what the agency is doing to improve its oversight.

The Senate's proposed legislation would require the FAA to review its assumptions about the human factors or how pilots respond to problems with automated features, such as the MCAS, which are intended to help them fly. The bill would also require more test flights involving a wide range of pilots with varying levels of experience. The updated version also included measures to significantly curtail the ODA or the process that has allowed plane makers like Boeing to largely oversee themselves by restoring the FAA's oversight and approval of new jet designs, including anything deemed to be low- and medium-risk.

The initial Wicker bill focused more on external factors than addressing what critics believe to be the real problem – a systemic breakdown and failure of the existing certification process as a result of the “coziness” between the FAA and manufacturers that are allowed to self-certify. Intense Senate negotiations and lobbying efforts by the crash victims' families during the weeks following the initial legislation led lawmakers to strengthen the bill and tighten FAA oversight

Senator Maria Cantwell (D-Washington), the committee's ranking Democrat and a longtime champion of Boeing, criticized Sen. Wicker's initial proposed legislation as essentially kicking the metaphorical can down the road. Sen. Cantwell said:

Now is the time for direct implementation of safety measures from the FAA and a comprehensive certification bill that takes action to keep the traveling public safe.

During the negotiations, Sen. Cantwell ramped up her role reversal, insisting on “putting limits and controls on Boeing's role in certifying its own airplanes,” according to the Seattle Times. Sen. Cantwell said the amended legislation “makes it clear the FAA is in charge of the certification workforce and the approval process.”

The legislation would also require airlines and aircraft manufacturers to implement organizational tools called safety management systems recommended by aviation experts to improve safety procedures, Reuters reported.

Sen. Wicker opened the hearing by chastising Administrator Dickson for the FAA's “stonewalling” lawmakers' efforts to better understand the agency's role in approving the MAX. The Senator also expressed concern that the agency's lack of response was impeding lawmakers' investigation of how the FAA treats whistleblowers. Sen. Wicker explained that the FAA had “failed to respond to more than half his committee's requests for documents,” including requests “made more than a year ago,” according to the Associated Press.

Administrator Dickson responded to the reprimands by defending the agency but admitted that both Boeing and the FAA made mistakes. Further, when pressed about whether the agency would agree to changes in the ODA, specifically, ensuring the agency selected the manufacturer's employees who would work on certification, Dickson rejected the proposed changes.

Dickson was also rebuked for his lackluster job by Sen. Cantwell, who told the agency head that the country needs an independent FAA. Sen. Richard Blumenthal (D – Connecticut) told Dickson that the FAA must “do the work, not just oversee it,” and that “it's been like a dog watching TV.” Sen. Blumenthal also told Dickson that “the culture of secrecy at the FAA has been aggravated under your tenure.”

Following Administrator Dickson's testimony, Michael Stumo, father of crash victim Samya Stumo, testified and also called for the end of secrecy by the FAA and the National Transportation Safety Board (NTSB). Samya died onboard the MAX last year when Ethiopian Airlines flight 302 crashed. Stumo said in his testimony:

They gambled. We lost. The first crash should not have happened. The second crash is inexcusable… I expect better so do the ET 302 families and the flying public.

Investigators from numerous entities including the U.S. House, Senate, Department of Transportation (DOT) Inspector General, and Department of Justice (DOJ) launched probes of the crashes and the certification process used to green-light the faulty aircraft. The investigations examined the technical problems as well as the roles the FAA and Boeing played during the process and the relationship dynamics between the two groups.

Evidence from the numerous investigations show that Boeing was aware of the problems with its 737 redesign and the flawed MCAS, but during the certification process it submitted false data and information about the new system in “self-certifying” reports to the FAA. The MCAS was designed to be hidden and separate from the autopilot system. Its purpose was to automatically adjust the horizontal tail stabilizer and cause the nose to push downward whenever the system sensed the plane was continuing to climb. Although the MCAS should have only operated when it sensed an imminent stall, the system is flawed and attempts to push the MAX's nose downward when it should not.

The DOT Inspector General is expected to release its findings soon, but will not issue recommendations since its charge is to only investigate and report. The DOJ's investigation is ongoing. In March, the House Transportation Committee announced its findings and determined the certification process was “grossly insufficient.”

The MAX aircraft have been grounded since March 2019, shortly after the second of the two fatal crashes. Boeing has made changes to the aircraft, including the MCAS, but has missed multiple scheduled relaunch dates for returning the aircraft to service. The plane manufacturer has said its latest expected deadline for putting the planes back in the sky is August.

In a related development, a federal court in Illinois dismissed a derivative suit filed by Boeing shareholders, Bloomberg Law reported. The company's bylaws limit such lawsuits to being filed in Delaware only. A shareholder has filed a new lawsuit in Delaware. In April 2019, Richard Seeks filed a class action lawsuit on behalf of Boeing shareholders accusing Boeing of concealing the 737 MAX's safety problems. The lawsuits allege securities fraud violations and seek to recover economic losses suffered by the shareholders as a result of Boeing's cover-up.

Lawsuits by family members of victims of the two crashes, as well as lawsuits by airline employees and unions representing various aviation industry worker groups, have also been filed against Boeing over its defective MAX aircraft.

Many of these actions are still pending in courts across the country. Beasley Allen lawyers have 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. Mike is handling the cases for the families we represent in this litigation. Currently, he is also investigating other potential cases.

As we have written previously, Mike 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: Flight Global, Washington Post, Associated Press, Reuters and Bloomberg Law

WORKPLACE HAZARDS

Workers' Compensation/Employer Immunity

Over the years our lawyers have published a number of articles dealing with the rights of injured workers. Survivors of an employee killed on the job are often surprised to learn that the only available remedy against the employer are the limited benefits provided under the Workers' Compensation Statute. It's tough for a lawyer to explain to a grieving family that despite the conduct of the employer and its employees, there is nothing he or she can do to hold them legally accountable due to immunity. In the last six months, Kendall Dunson, a Beasley Allen lawyer who handles workplace litigation, has been forced to explain immunity to three families. There are many problems with Alabama's Workers' Compensation Statute and the absolute immunity it provides to employers.

All on-the-job death cases are investigated by the Occupational Safety and Health Administration (OSHA). In the latest claim investigated by Kendall, OSHA determined the employer committed a willful violation of one if its safety regulations. Despite this finding, the employer is absolutely immune from tort liability. Kendall wrote the following, which explains the situation and need for change. Take a look.

All employers are required to create and implement a confined space entry program. A confined space has limited or restricted means of entry or exit and is not designed for continuous occupancy. Before employees are allowed to enter a confined space, the employees must be trained, they must have the proper detection and protective equipment, and they must follow procedures that guarantee their safety should they encounter a dangerous atmosphere inside the vessel. The young son of my client was an employee who was sent inside of a vessel and instructed to clean the residue from a prior delivery. The employee died when he inhaled hazardous fumes inside the confined space. He was found unresponsive inside the vessel when a co-employee noticed he was missing.

OSHA's investigation found willful violations of confined space entry protocols. The young man was sent to his death with no training, no detection and protective equipment and no spotter to save him in the event of an incident. When a co-employee was asked about confined space training, he responded he had never heard the term “confined space,” nor was he familiar with confined-space training.

OSHA regulations serve the sole purpose of ensuring the safety of workers on the job site. Employers must comply with OSHA regulations. When employers/employees fall short, they are breaking federal laws. OSHA issues the following level violations:

  • De Minimis: No direct impact on health or safety.
  • Other than Serious: Would not usually cause death or serious injury but is related to job safety/employee health.
  • Serious: Employer knew or should have known of a situation that has a chance of causing serious injury or death.
  • Willful: Most serious. Intentional violations that show disregard of employee safety and health.

Providing immunity to employers for De Minimis, Other than Serious and even Serious violations are acceptable. However, providing immunity to an employer when there is a Willful violation is unacceptable as it violates common sense and fairness.

When an employer commits a willful violation of federal laws there has been a finding that the employer knowingly failed to comply with a legal requirement (purposeful disregard) or it acted with plain indifference to employee safety. Under these circumstances, the survivors of that deceased employee should have the right to sue the employer to recover the full value of their deceased family member's life.

All workers in Alabama need to unite and lobby state legislators to rewrite or amend the Alabama Workers' Compensation Statutes. The benefits to injured workers should be increased and willful actors should not be protected when their conduct causes serious injury or death. If you need more information, contact Kendall Dunson at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com. Kendall handles work-related injury and death litigation for our firm.

Dangers In The Timber Industry

Alabama has the second most timberland in the nation with more than 23 million acres dedicated to forestry. Forestry is one of the largest economic drivers in the state and has continued to grow in recent years. The timber industry is especially important in the more rural areas of the state. In 2018 forest product companies created nearly 2,000 new jobs across the state and invested more than $1.3 billion into new facilities and facility upgrades. This surge is more than a one-year anomaly, as more than $4 billion in timber industry infrastructure entered the Alabama market between 2016 and 2019 according to the Department of Commerce.

During that time frame, the timber industry accounted for 22% of the total capital invested in Alabama. Not only is the timber industry drawing capital investments, it also employs countless Alabama workers with nearly 70,000 Alabamians directly employed by the industry and another 100,000 workers indirectly employed. For all of the positive economic impacts the timber industry has on the state, there are dangers associated with logging that come at a price.

The timber industry is a dangerous trade for all Alabamians and not just those who work in the industry. It does not take much time on the Alabama roadways to see log trucks and logging equipment sharing the roads. With more than 5,000 loads of wood moved each day in Alabama, these potential dangers become real accidents more than one might think. Accidents involving log trucks and passenger vehicles are all too common and the results of those accidents are often catastrophic. Many of these accidents are completely preventable yet occur due to carelessness.

Beasley Allen lawyers commonly see accidents that occur after logging crews fail to take the proper precautions to mark log truck entrances onto a public road, fail to properly secure a load or overload a trailer. Not only do the lawyers see carelessness specific to logging practices, but they also encounter violations generic to all motor carriers. All too often, log trucks are not in compliance with Department of Transportation (DOT) safety standards that apply to log trucks just as they do all commercial carriers.

When investigating a log truck accident, it is important to look not only for negligent driving behaviors, but DOT violations, violations of common industry practices and equipment maintenance failures. More times than not, log truck accidents can be attributed to careless practices.

The timber industry also takes a heavy toll on those working in the field. Simply put, logging is tough, dangerous work. For the thousands of Alabamians directly involved in the logging industry, accidents can occur in any number of ways. Logging requires heavy equipment to cut down trees sizeable enough to produce poles, lumber and even pulp. It then requires a piece of heavy equipment known as a skidder to pull the fallen trees to the loading deck.

Then the logs must be loaded by another piece of heavy equipment onto a trailer, which will ultimately be pulled by a truck to the appropriate mill. There, it will be unloaded and ultimately processed by even more large industrial equipment.

The entire process of taking the trees from the land until a finished product is produced requires human interaction with both heavy logs and industrial equipment. Every tract of land logged, tree cut down and truck loaded presents a unique set of challenges and obstacles where one misstep can result in catastrophic injuries.

The final step in the logging process is milling the wood. Sawmills are extremely dangerous work environments. The milling process requires workers to interact closely with both heavy logs as well as industrial machinery. Beasley Allen lawyers have handled countless cases involving workers injured on the job at sawmills. Saws, presses, and conveying equipment within the plants often expose workers to crush hazards, pinch hazards and other dangers. Too often operators will be injured due to guards being removed, or hazards not being properly addressed and mitigated. Other hazards include fire, explosion, and over pressurization, often caused by dust accumulation.

Each plant or mill has unique machinery that presents unique hazards. Anytime a severe injury occurs inside a timber plant or mill, a careful investigation should be done to analyze the machinery involved. A product liability claim can easily be overlooked.

The timber industry is vital to Alabama's economic well-being. The industry employs thousands and will continue to be a driving force for the state's rural counties. However, as long as there is logging equipment and log trucks running in our state, the potential for devastating accidents and injuries will remain as well.

If you need more information or have a potential claim, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Evan.Allen@beasleyallen.com. Evan handles workplace death and injury cases for the firm, including claims involving the timber industry.

PREMISES LIABILITY UPDATE

PG&E Bankruptcy Judge Confirms $59 Billion Reorganization

A U.S. bankruptcy judge on June 19 approved Pacific Gas and Electric Co.'s (PG&E) $59 billion reorganization plan. This resolves the bankruptcy that came about as a result of the nation's largest utility causing a series of wildfires that killed more than 100 people, leveled entire California communities and led PG&E to plead guilty to involuntary manslaughter.

PG&E filed for Chapter 11 bankruptcy protection in January 2019, with billions of dollars in liabilities relating to its role in causing wildfires in 2017 and 2018. The fires included the most devastating wildfire in the state's history, the 2018 Camp Fire, which destroyed the town of Paradise. To finance the plan, PG&E will be left with more debt than it had when it entered bankruptcy. As previously reported, the plan involves issuing new debt and equity to help pay for $25.5 billion in wildfire-related claims.

U.S. Bankruptcy Judge Dennis Montali, who has overseen the case for nearly a year and a half, said at a hearing on June 18 he had determined that the plan meets the feasibility requirements under the bankruptcy code. But Judge Montali made it very clear that he retains the ability to modify the order if necessary.

The plan's confirmation came less than two weeks before the June 30 deadline for PG&E to emerge from bankruptcy so it can qualify for a $21 billion state wildfire insurance plan created by a California statute. The plan includes a $13.5 billion settlement with Northern California wildfire survivors, paid partially in PG&E stock. After months of disagreement, PG&E and lawyers representing the tort claimants were finally able to reach an agreement.

Michael Carlson of Caymus Vineyards, a member of the official committee of tort claimants that represents the interests of wildfire survivors, said that the “decision ensures that the TCC's hard-won agreements to fund and value the Fire Victim Trust are part of PG&E's emergence from bankruptcy.” Carlson said on behalf of the tort committee: “[W]e are all now one major step closer to fire victims getting their long-awaited relief.”

PG&E has overhauled its board of directors and named a new chief executive officer. PG&E has also agreed to forgo investor dividends for three years. Despite concerns about the company's future, the plan received approval from more than 85% of wildfire survivors who cast votes. It also received unanimous approval from PG&E's regulator, the California Public Utilities Commission. There was criticism from more than 100 ratepayers who said PG&E's troubled past, which includes a previous bankruptcy filing in 2001 and a criminal conviction in 2016 related to the San Bruno pipeline explosion, proves that its investor-owned business model doesn't work and does not prioritize public safety.

Just days before the plan's confirmation, PG&E pled guilty to 84 counts of involuntary manslaughter and to starting the deadly Camp Fire. PG&E will emerge from bankruptcy after Judge Montali signs the confirmation order. The tort claimants are represented by Robert A. Julian and Kimberly S. Morris of BakerHostetler; and John MacConaghy of MacConaghy & Barnier PLC.

The civil case is In re: PG&E Corp. and Pacific Gas and Electric Co., (case number 3:19-cv-05257) in the U.S. District Court for the Northern District of California. The bankruptcy case is In re: PG&E Corp., (case number 3:19-bk-30088) in the U.S. Bankruptcy Court for the Northern District of California.

Source: Law360.com

MASS TORTS UPDATE

Patients Continue To Take Recalled Drug Belviq For Off-Label Seizure Control

The U.S. Food and Drug Administration (FDA) approved Belviq in 2012 to treat obesity. In early 2020, the FDA alerted the public that Belviq's clinical trial results showed an increased cancer risk. Less than a month later, on Feb. 13, 2020, the FDA announced that the drugmaker had agreed to withdraw Belviq from the U.S. market. Eisai, the maker of Belviq, further agreed to halt sales in the United States.

However, according to the Dravet Syndrome Foundation, many of its Dravet Syndrome (DS) patients continue to take Belviq for the off-label purpose of seizure control. The Dravet Syndrome Foundation said in a statement that it worked with Eisai to contact the FDA “about continuing to supply Belviq to patients with Dravet syndrome.” Thereafter, the FDA agreed to an “Expanded Access” program to continue to provide Belviq to these patients.

To be clear, “off label” means prescribing a drug for non-FDA approved reasons. Although drug manufacturers are not allowed to market their drugs for off-label purposes, doctors are still permitted to use their professional judgment to prescribe drugs off-label. However, it is extraordinary that the FDA would allow a certain population to have exclusive access to a recalled drug like Belviq.

Beasley Allen continues to investigate Belviq cases for patients who took the drug for the FDA-approved reason of weight loss and later developed cancer. For more information, contact Ryan Duplechin or Melissa Prickett, lawyers in our Mass Torts Section, at 1.800.898.2034, or by email at Ryan.Duplechin@BeasleyAllen.com or Melissa.Prickett@BeasleyAllen.com.

Source: Dravetfoundation.org

CoaguChek XS PT Test Strips Recalled Due To Dangerous Inaccuracies

More than 1.1 million packages of Roche Diagnostics CoaguCheck testing strips have been recalled due to inaccurate INR test results. This recall has been identified as a Class I recall, the most serious type of recall, due to the possibility of the device causing serious injury or death.

INR tests are used to monitor a patient's response to warfarin, a blood thinner used to prevent blood clotting. The testing is used to determine if the dosage of warfarin is the correct amount. The CoaguChek strips were re-calibrated in January 2018 in response to a new INR standard. They have since been determined to be related to patients experiencing abnormally high or inaccurate results. The inaccurate test results may lead to patients being prescribed an insufficient warfarin dose or instructed to interrupt warfarin use, which may increase the risk for dangerous blood clots. Jeffrey Shuren, MD, JD, director of the FDA's Center for Devices and Radiological Health, said in a November 2018 FDA press release:

These strips are widely used and we are working diligently to warn healthcare providers and the public about the dangers associated with this recall. Using faulty strips can lead to serious errors in medication dosage that could cause serious harm or death in some patients. We are also working with the company on the swift removal of the recalled strips and to ensure the new corrected strips are distributed to patients and healthcare providers as quickly as possible.

Patients who are using CoaguChek meters and CoaguChek XS PT Test Strips affected by the recall should contact their health care provider and patient self-testing service providers immediately to determine alternative test methods and address questions regarding their testing schedule.

Health care providers and patients with questions may contact Roche Diagnostics at 800-428-4674 to learn more details about the recall. The recalled product, CoaguChek XS PT Test Strips, are set out below:

Lot numbers: 28124111, 28124121, 28631911, 28631921, 28631924, 28632021, 28632213, 28632312, 28632412, 29415113, 29415123, 29494221, 29494312, 29494613, 29494711, 29778721, 29779012, 29779213, 29779214, 30497213, 30497311, 30497413, 30497423, 30497515, 31404314, 31404821, 32264116, 32264212, 32264316, 32264317, 32264411, 32264421, 33045913, 33046011, 33046113, 33046312, 33046314, 33046321, 33046322, 33449612, 33449712, 33449723, 33449817

Beasley Allen lawyers are investigating cases involving individuals who suffered blood clots or stroke while using these recalled testing strips. For more information, contact Melissa Prickett, a lawyer in our Mass Torts Section, at 1-800-898-2034, or by email at Melissa.Prickett@beasleyallen.com.

Source: www.fda.gov

AN UPDATE ON SECURITIES, INSURANCE AND FINANCE LITIGATION

Update On Business Interruption Insurance And The Push To Consolidate Cases

Business interruption insurance is typically part of a business owner's commercial property coverage, or may 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 if business interruption coverage may provide them some 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.

Due to the volume of these cases, the consolidation of such cases in multidistrict litigation (MDL) was proposed in late April. To date, consolidation has been proposed in either the Eastern District of Pennsylvania, Northern District of Illinois, Southern District of Florida, Western District of Missouri, Western District of Washington, and Northern District of California. Currently, the anticipated hearing date for the Judicial Panel on Multidistrict Litigation (JPML) to decide the consolidation and transfer issues is the 30th of this month.

These petitions assert that the issue of whether business interruption policies will cover losses incurred by businesses as a result of the COVID-19 pandemic is one of national importance and great significance to the ultimate survival of many businesses. Additionally, they emphasize the importance of coordinating expert witnesses in the cases and discovery. As of June 5, 2020, 20 supporting briefs have been filed by individual companies or groups of policyholders. Some of these supporting briefs have asked the JPML to consider forming not one, but multiple MDLs, with cases lumped together either by state, region, or insurer Defendant.

The MDL petitions also drew strong opposition, with 43 briefs urging the JPML to reject the proposal to combine the business interruption cases. Insurers lodged 29 of these opposition filings, but a dozen individual policyholders and groups of policyholder Plaintiffs also oppose consolidation or coordinated proceedings.

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. Without coordination, thousands of Plaintiffs will be seeking to retain the same limited pool of relevant experts, creating a costly logistical nightmare for litigants and detracting from lawmakers' need to consult with these same experts to fashion the best policies for dealing with the pandemic.

Beasley Allen lawyers are actively investigating and filing 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, lawyers in the Section, are spearheading this litigation for our firm and are monitoring all MDL developments as they 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.

Investor Impact of Covid-19: Part 1
Non-Traded REITs Can Leave Investors Stranded With No Returns And No Liquidity

The COVID-19 pandemic has rattled markets around the globe. All three major U.S. indices were down by at least 30% at one point from their highs in late February. But not all investments simply flow with the market numbers most people see in the news. In a continuing series of articles, Beasley Allen lawyers will examine the pandemic's impact on investments and investors. This month and next, James Eubank will take a look at two types of securities that have caused particularly large losses: Non-Traded Real Estate Investment Trusts and leveraged Exchange-Traded Notes. These securities may never have been suitable for most investors in the first place, meaning whoever sold them could have violated their duties to their client.

For years, investors in the U.S. have been able to purchase interests in Real Estate Investment Trusts (REITs) as a means for the average American to invest in real estate ventures that would otherwise be limited to large financial institutions and wealthy individuals. Real estate investment can offer lucrative returns for investors, but certain types REITs, particularly non-traded (or unlisted) REITs (NREITs), carry significant risks that investors may never have been warned about, which make them unsuitable for the average investor.

In 1960, President Dwight D. Eisenhower signed legislation that contained provisions creating and permitting the investment in REITs, commonly called the REIT Act. Prior to this, real estate investment required so much wealth that very few could participate.

The REIT act permitted the creation of a new security that bundled real estate investments into a single trust, which could then be sold in smaller shares to investors. Similar to the way mutual funds pool stock in numerous different corporations into a single security, REITs pool income-generating real estate into a single trust and offer fractional ownership of this pool at a more affordable price for investors.

When an investor purchases shares in a REIT, they are paid dividends from the income generated by the real estate from rent and mortgage payments and property sales. REITs have been, and continue to be, a valuable tool for investors of moderate means to participate in real estate profits, but not all REITs are created the same.

Most investors purchase REITs that are publicly listed and traded on stock exchanges like the New York Stock Exchange. Since they are publicly traded, anyone can purchase shares through their broker or with an online trading account. Their market value is quotable and constantly updated as market conditions change. NREITs, as the name implies, are not listed on any stock exchange. This means there is no quoted, market-wide price at which they are offered or sold at any given time.

Because there is no open market to trade these NREITs, the true value of their shares is hard to determine, especially at times of market volatility. NREITs often have higher fees and commissions, and their fee disclosures are often more difficult to understand than those of publicly traded REITs. Moreover, studies have shown the long-term returns of publicly traded REITs are significantly higher than those of NREITs.

Investors were hit particularly hard on NREIT investments during the 2009 Financial Crisis. When the economy faltered, the income streams on the real estate held in REITs dried up. When that happened, dividend payments were cut or eliminated, and, because the value of those REITs is based on their income stream, the price of their shares plummeted.

Whereas an investor holding a publicly traded REIT could sell it on the market in an instant at a quoted price, an investor with an NREIT's was stuck with no bar by which to measure the value of their shares, and no willing purchasers to buy them due to the uncertainty.

Due to this poor liquidity, an investor who purchases a NREIT could be stuck holding it for years. For this reason, securities regulators say they are not suitable for most investors, yet, many brokers and investment advisors still are selling these products to their clients. In 2019, NREITs raised more than $10 billion in capital from investors in the U.S.: well over double the fundraising for 2018. Now that markets have stumbled due to the COVID-19 scare, NREIT investors are again holding an illiquid interest that they cannot unload.

Stockbrokers and investment advisors owe a certain duty of care to their clients. Investment advisors are fiduciaries to their clients, and must put their clients' interests above all else, even themselves. A stockbroker's only duty is to ensure that the investment they offer or recommend is suitable for the investor. It is hard to see any scenario in which an NREIT would be suitable for any investor apart from the very wealthy, let alone meet the higher standards imposed by fiduciary duty. This is particularly true for older investors on fixed retirement incomes, who cannot afford to deal with dividend cancellations or the inability to move to another investment.

If your broker or investment advisor recommended or placed you into an NREIT that has been adversely affected by the recent market downturn, or any other investment that you feel was too risky for your account considering your age, wealth, or investing experience, you have rights to ensure that they performed their job up to the legal standard set by law. If they placed you into an unsuitable investment, they could be liable for losses incurred as restitution.

Our Consumer Fraud and Commercial Litigation Section has lawyers experienced with securities regulation and breach of fiduciary duty who are here to help. If you need more information or have comments, contact James Eubank, a lawyer in the Section, at 800-898-2034 or by email at James.Eubank@beasleyallen.com. James is one of the lawyers who handles securities litigation for the firm.

EMPLOYMENT AND FLSA LITIGATION

Employer Can Not Force FLSA Claims To Arbitration

The Fourth Circuit Court of Appeals has affirmed a district court's decision denying a restaurant operator's motion to compel arbitration as to a group of opt-in Plaintiffs, in a case brought by employees of Applebee's Restaurants alleging violations of state and federal wage-and-hour laws. The employer moved to compel arbitration of all claims of a conditionally certified class. The district court found that the employer failed to prove any agreement to arbitrate with respect to 72 current and former Applebee's employees for whom no arbitration agreement was produced. However, the district court compelled arbitration for any Plaintiff who signed an arbitration agreement that the employer could produce.

Plaintiffs alleged in the class action lawsuit that Employee Resource Group LLC (ERG), which owns and operates Applebee's restaurants in several states, violated the Fair Labor Standards Act (FLSA) by failing to pay the minimum wage and that ERG violated West Virginia state law by failing to pay wages within the legally required timeframe when employees resigned. Applebee's itself was not part of the lawsuit.

ERG filed a motion to enforce arbitration agreements, but instead of providing signed arbitration agreements for a group of Plaintiffs, it provided an affidavit from its human resources manager stating that managers were trained in the onboarding process that all prospective ERG employees were expected to sign arbitration agreements and that the lack of agreements was probably a recordkeeping error. ERG also provided 780 signed arbitration agreements and made the general assertion that the agreements suggested general compliance with ERG's corporate policy.

The Fourth Circuit considered and rejected ERG's proffered affidavit of its human resources manager, as well as circumstantial evidence in the form of other agreements produced. The Court said ERG has not shown that arbitration agreements existed between ERG and the employees. While ERG produced 780 arbitration agreements, the Court said that didn't prove the 72 current and former workers at issue actually agreed to arbitration.

Regardless of any presumption in the law favoring arbitration, the party seeking to enforce an arbitration agreement still has to prove the parties agreed to arbitrate.

If you have any questions about arbitration in the employment setting, contact Lance Gould at 800-898-2034 or by email at Lance.Gould@beasleyallen.com.

Source: Law 360 Employment

TOXIC TORT LITIGATION CONCERNS

Prominent Water Associations Urge EPA To Expedite Regulations Of PFAS

In the last issue of the Report, we discussed the growing momentum of governmental authorities in both the United States and Europe toward regulating per- and polyfluorinated substances (PFAS). That support continues to grow as drinking water organizations and states have joined the effort to support regulating these chemicals, which have been linked to various cancers and other health issues.

Three years of testing found that 72% of the samples that detected two of the most well-known PFAS, PFOS and PFOA, were found in groundwater. These chemicals have been used in a wide variety of consumer products including carpet, apparel and cookware since the 1940s. While effective at repelling stains, they do not break down in the environment and can accumulate in humans and animals for many years.

In February, the U.S. Environmental Protection Agency (EPA) announced its proposal to regulate PFOA and PFOS and requested comment on regulatory approaches for other PFAS. In a letter to EPA Administrator Andrew Wheeler, the National Ground Water Association (NGWA) and eight of the country's leading drinking water organizations petitioned the Agency to move expeditiously as it evaluates PFAS drinking water standards.

The NGWA's letter also requested that the EPA work with experts to develop and review a public health risk assessment for PFAS beyond PFOS and PFOA and to determine which chemicals should be targeted for data collection and risk management measures. In addition, the NGWA seeks to accelerate research on effective water treatment options and health effects to attempt to prioritize which PFAS chemicals to focus on next.

In the absence of a federal standard, several states have moved forward with setting their own regulations for various PFAS. New Jersey was the latest to adopt a maximum contaminant level of 13 parts per trillion for PFOS and 14 parts per trillion for PFOA, making those levels among the most stringent in the country. The EPA's current health advisory level of 70 parts per trillion was set in 2016.

Wisconsin Attorney General Josh Kaul announced that he is leading a coalition of twenty-two states in supporting the EPA's preliminary decision to regulate PFOS and PFOA. In comments submitted to the EPA, General Kaul also emphasized the need to regulate more than just PFOA and PFOS and consider regulating PFAS as a class of chemicals. He also asked the EPA to set more restrictive standards “to reflect current science and protect human health.”

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.

Beasley Allen, 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 or comments 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.

Sources: NGWA/ Waterworld.com and Wisconsin Public Radio

UPDATE ON NURSING HOME LITIGATION

Georgia Court Of Appeals Rules Arbitration Clause Unenforceable In Nursing Home Sexual Abuse Case

The Georgia Court of Appeals has ruled that a nursing home's mandatory arbitration agreement signed by the guardian of an elderly man raped at the facility was unenforceable because his guardian lacked authority to sign away the resident's right to trial.

“As far as we can tell, this is an issue that's never been addressed in Georgia: whether a guardian appointed by the probate court has the power of attorney to waive someone's constitutional rights,” said Bethany Schneider of Schneider Injury Law who, along with Kate Hughes and Gretchen Holt of Wagner Hughes, represents the now-deceased man and the aunt who served as his guardian. Michael Terry and Jennifer Peterson of Bondurant, Mixson & Elmore handled the appeal.

The court did not rule upon the trial court's determination that the agreement was unconscionably one-sided in favor of the nursing home, stating that it needn't reach that issue because it already declared the agreement void.

“This decision shows that nursing homes usually think it's automatic that any dispute is going to arbitration. This gives us more teeth on the trial level to fight those agreements,” Ms. Schneider said.

Leroy Wiggins, who died in December at age 70, had been mentally incapacitated for many years when his aunt, Minnie Fountain, was appointed his guardian by the Clinch County Probate Court in 2006. In 2014, Ms. Fountain sought to have Wiggins admitted to the nursing home, and she signed an arbitration agreement stipulating, among other things, that “any and all claims … whether existing or arising in the future … shall be submitted for arbitration.”

Ms. Fountain, who is also about 70 years old, would later sign an affidavit saying she had to “sign this large stack of paperwork to admit Leroy” and that she “must sign all of the documents in order for Leroy to be admitted.” She also said she was not told she could consult a lawyer and never discussed the agreement with Wiggins or asked his permission to sign it. Ms. Fountain was “not permitted to make any changes to any of the documents or cross anything out” or “negotiate any of the documents or the wording on any of the documents,” according to her appellate brief.

In 2017, another resident, who had already been accused of sexually assaulting other residents over a period of two months, raped Wiggins.

Fountain sued Clinch Healthcare's corporate parent, CL SNF LLC and several related entities for negligence and other claims in Cobb County State Court last year. Clinch subsequently filed a motion to enforce the arbitration agreement and stay the case.

Judge Jane Manning denied the motion to compel, writing that the arbitration agreement was “decidedly one sided” in favor of the nursing home. But Judge Manning also denied Fountain's motion to declare that she had no authority to sign the agreement waiving Wiggins's rights including those to a jury trial. Both sides agreed that the issues should go before the Court of Appeals, and Judge Manning granted a certificate for an interlocutory appeal.

The court's opinion, authored by Judge Brian Rickman with the concurrence of Judge Stephen Dillard and Judge E. Trenton Brown III, agreed with Judge Manning that the arbitration agreement was unenforceable. The opinion held that the “plain language” of the statute declaring the duties of a guardian “does not provide Fountain authority to sign the Arbitration Agreement,” and that there is no evidence that Fountain's signing of the agreement was a decision made in Wiggins's best interest because it was not a condition of admission of the facility. The claims that were bound to arbitration had not yet arisen, making it impossible for her to determine at that time whether waiving Wiggins's rights to a jury trial would be in his best interest.

According to Hughes, such agreements are routinely presented to family members or guardians trying to admit a resident, and few realize they may not have to sign them.

Source: Law.com

Connecticut Nursing Home Owner Houses Staff In RVs To Prevent COVID-19

In mid-March, nursing home owner Tyson Belanger realized COVID-19 was going to present a challenge to care facilities and decided to take a creative approach by offering staff large bonuses to move for two months into RVs he rented and placed on site at his Bristol, Connecticut, facility. Staff would quarantine with their elderly patients.

Two months later, there have been no COVID-19 infections at Shady Oaks Assisted Living, while the New York Times reports the rest of the state has endured 1,627 deaths in 219 facilities – about 55% of Connecticut's total deaths.

Belanger says he knew he had to act quickly once he saw the “nightmare” unfolding at Life Care Center of Kirkland in Washington State. The news of multiple infections and deaths there served as “an alert all across the country” to start planning preventative measures against the spread of COVID-19. “Everyone knew it was coming our way. It was coming to senior homes. And we all began to mobilize,” he says.

First, Belanger says Shady Oaks Assisted Living shut down all outside visitation in early March, a decision he described as “heartbreaking.”

Next, a checkpoint was put in place to screen all staff members for the coronavirus before they reported for work. That became difficult, though, as more information became available about asymptomatic cases, he says.

That was the moment Belanger realized he had to rethink his plan.

Shady Oaks Assisted Living – a business that has run in Belanger's family for more than four decades – now has RVs lined up in the parking lot. The center, which normally is buzzing with 48 staff members, was whittled down to 17 people who work 60 to 80 hours a week, he explains.

Asking his staff to work exhausting hours away from home and loved ones for two months is no small feat, he says. But Belanger says the center feels good about its decision to “bubble up.” He added:

We feel like we've really made a difference. And in our hometown, four out of five nursing homes have COVID-19, and one of them has over 28 deaths. And we just know that we made the right decision for our home, for our residents and for our caregivers.

To incentivize and show appreciation for their sacrifices and dedication, Belanger draws from his personal savings to pay the living center's on-site staff more than usual. Certified nursing assistants receive $15,000 a month, and licensed nurses pocket $20,000 a month.

Although his financial situation looks bleak, he says saving patients' and caregivers' lives was the biggest priority.

The federal Payroll Protection Program became available to the nursing home, which he says has been “a huge help.” The program allows him to pay his furloughed staff in full according to their average hours before the pandemic struck.

With the loan and small donations, “we're able to take care of our community,” Belanger says. “And the idea behind that is that sooner or later, we're going to have to open back up. And when we do, we want to make sure everybody was well taken care of.”

Although he says he's still a couple hundred thousand dollars short from the extra expenses of RVs and pay bonuses, Belanger has “no regrets” for doing all he could to save lives in Shady Oaks Assisted Living.

The human reward outweighs the financial uncertainty, he says. He adds:

I speak with strong conviction that we have a way forward. And I just want this idea out there. People should be aware that this is an option at least to bridge, to patch through the surge and then get to the other side.

Source: WBUR

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 also 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

Banner Life And William Penn Insurance $38.2 Million Class Action Settlement Approved

Maryland Federal District Court Judge Richard D. Bennett has approved a $38.2 million settlement with the named Plaintiffs in two class actions and a settlement class consisting of more than 10,750 policyholders of Banner Life Insurance Co. and William Penn Life Insurance Co. universal life insurance policies. Plaintiffs filed the action because of the cost of insurance overcharges, which were implemented to benefit shareholders and clear the companies' near-term liabilities.

The settlement relates to class action complaints filed in Dickman v. Banner, No. 1:16-cv-00192-RDB (D. Md. filed Jan. 19, 2016) and Rich v. William Penn Life Insurance Co. of New York, No. 1:17-cv-02026-GLR (D. Md. filed July 20, 2017), which were consolidated for purposes of settlement approval.

Dee Miles, who heads up Beasley Allen's Consumer Fraud & Commercial Litigation Section, and who serves as co-lead counsel in this case, had this to say about the settlement:

We are pleased we were able to return these cost of insurance overcharges to the policyholders of Banner Life and William Penn. Many life insurance companies have committed similar actions regarding improper cost of insurance (COI) increases, and we will continue to make every effort to recoup those costs for consumers and penalize the insurance companies.

Plaintiffs' class action complaints included claims for breach of contract and fraud against Banner and William Penn, alleging the companies unjustifiably increased the COI charges on certain universal life products in 2015. These COI increases in 2015 affected approximately 7,631 universal life policyholders, who are included in the settlement class. Another 4,482 universal life policies were considered by Banner and William Penn for future COI rate increases, and the policyholders that currently own such policies are also included in the settlement class.

The settlement agreement reached with Banner and William Penn provides the class members with several valuable benefits. The key benefits are set out below.

Banner and William Penn will create a common settlement fund in the amount of approximately $20 million. This fund will be distributed to settlement class members, pro rata, based on the proportion of COI collected for each Class Policy after the 2015 cost of insurance rate increases. The distributions will go to in-force policyholders by an increase to the account value of each in-force policy owned by the Settlement Class Member; terminated policyholders will be paid their share by check.

The settlement provides that Banner and William Penn agree not to impose any COI rate increases on policies of class members for five years unless ordered to do so by a state regulatory body.

Policies that received cost of insurance rate increases to the guarantee maximums set forth in their policies will be provided with an additional 45 days added to the length of their grace period after the guarantee period ends if their policy is subject to lapse.

Banner and William Penn agree to not seek to void, rescind, cancel, have declared void, or otherwise deny coverage or death claims submitted by settlement class members based on any alleged lack of insurable interest or misrepresentations made in connection with the original application process.

Banner and William Penn will provide class members with a free illustration upon request depicting the impact of the settlement benefits on the anticipated future performance of their policies.

In total, the collective value of the settlement benefits amounts to roughly $40 million. This total value is comprised of approximately $20 million Common Settlement Fund and the valuation of the other relief detailed above at $18.2 million, which is supported by formal and informal discovery as well as valuations by Defendants' and independent actuaries that were confirmed by Plaintiffs' experts.

Plaintiffs and the settlement class are represented by Beasley Allen lawyers Dee Miles, who is head of the firm's Consumer Fraud Section and served as co-lead counsel for the case, Rachel Boyd and Paul Evans, along with the other co-lead counsel, Wally Walker of Boles, Holmes, Parkman and White and Geoff McDonald & Associates PC, as well as local counsel Christopher T. Nace of Paulson & Nace, PLLC.

The consolidated claims were filed in the U.S. District Court for the District of Maryland, Northern Division, case number 1:16-cv-00192-RDB.

An Update On The Fisher-Price Rock ‘N Play Litigation

Now that Demet Basar has joined Beasley Allen, lawyers in the firm's Consumer Fraud and Commercial Litigation Section have joined her in In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation to support her role as lead counsel representing a proposed class of 4.7 million parents and caregivers in a multidistrict litigation (MDL) against Fisher-Price and its parent company, Mattel. There are numerous cases pending across the country over infant injuries and deaths caused by Fisher-Price's popular inclined Rock ‘N Play Sleeper, but the MDL focuses on how the companies developed, marketed and sold the Rock ‘N Play to consumers without them ever knowing of the dangers it posed to their children.

In 2008, Linda Chapman, a product designer for Fisher-Price, came up with the idea for an inclined sleeper for babies with reflux and congestion. The idea would become the Rock ‘N Play Sleeper, which Fisher-Price began selling in the United States in 2009. The Rock ‘N Play had a hammock-like fabric sleeping area with a padded rigid plastic insert behind the baby's back and tall sides, meant to keep the baby's body at a 30-degree angle with the head elevated above the baby's body. The sleeping area was supported by a rocking frame, and restraints were also included to keep the baby from turning or crawling out. Over the next decade, Fisher-Price sold 4.7 million of the sleepers to U.S. families before it was finally recalled on April 12, 2019.

From the beginning there were known safety issues with the design within Fisher-Price. Fisher-Price's Safety Committee had “concerns” about the idea when it was brought to them. As far back as 2005, the American Association of Pediatrics (AAP), a non-profit group with a membership of 66,000 professionals in the field of pediatric medicine, issued a policy statement with guidelines for safe infant sleep.

The guidelines stated that the safest sleep position for infants was flat on their back on a firm surface, with no soft padding, and recommended a crib mattress with only a fitted sheet.

In January of 2006 the National Institutes of Health (NIH), a U.S. federal regulatory authority, adopted the AAP guidelines stating parents should “always” place babies on their back for prolonged sleep and that inclined products such as car seats, carriers, and bouncers should not be used. The AAP reiterated its concerns in 2011, and then again in 2016, stating that inclines and soft materials present during infant sleep could be dangerous and increase the risk of Sudden Infant Death Syndrome (SIDS) due to choking or aspiration.

At the same time concerns were being voiced in the U.S., Fisher-Price was having problems marketing the Rock ‘N Play Sleeper abroad due to these same safety questions. In 2011, both Canada and Australia expressly prohibited the sale of the Rock ‘N Play Sleeper in their countries as a “sleeper.” Those countries based their decisions on the same AAP and NIH guidelines in place at the time. Instead of re-evaluating the design, Fisher-Price simply changed the advertisements and packaging for those countries, to remove reference to prolonged sleep and renamed it as the Rock ‘N Play “Soother” instead of “Sleeper.”

Still, with all these warnings that the product created an unsafe sleep environment for infants, Fisher-Price continued to market the product in the United States, claiming: “Baby can sleep at a comfortable incline all night long!” The concealment of these known safety concerns kept sales and profits for Fisher-Price going.

In 2019, the scope of infant injuries and deaths became more widely known to sleep experts and others while Fisher-Price continued to promote and sell the Rock ‘N Play Sleeper. According to a study by Consumer Reports, at least 32 infants died and hundreds more were injured in the Rock ‘N Play Sleeper from 2011 to 2018. In April 2019, after lawsuits were filed and the true scale of danger was disclosed, Fisher-Price was forced to recall the Rock ‘N Play Sleeper due to its grave safety risks. Through the lawsuits, it also came to light that Fisher-Price had never done safety testing on the product, despite vocal concerns from the AAP and other medical professionals, until eight years after its release.

The 4.7 million Americans who purchased the Rock ‘N Play Sleeper were misled by its marketing and its very name – “Sleeper” – into purchasing the product as a safe way to help their babies sleep through the night or to nap. If they had been informed of the safety concerns and lack of safety testing, it's hard to fathom that parents would have risked the life of their children by purchasing or using the product. The MDL seeks to compensate consumers for purchasing or using these potentially deadly products as a result of Mattel's and Fisher-Price's wrongdoing, to recoup their ill-gotten gains, to improve the terms of the recall, and to help spread information about safe infant sleep.

The proposed class is represented by Beasley Allen lawyers Dement Basar, Dee Miles, Leslie Pescia and James Eubank. The case is In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation, Case No. 1:19-md-02903, in the United States District Court for the Western District of New York. If you need more information, contact Dement Basar at 800-898-2304 or by email at Dement.Basar@beasleyallen.com.

DuPont Seeks To Dismiss ERISA Pension Liability Suit

Beasley Allen lawyers are involved in a suit against DuPont claiming the company used a series of corporate transactions to foist pension liability on a spun-off company that appears too weak to sustain the plan. But DuPont says the California federal court has already found that the business deals didn't implicate a responsibility under the Employee Retirement Income Security Act (ERISA).

DuPont de Nemours Inc., spinoff Corteva and other parties have moved a second time to dismiss with prejudice the amended ERISA suit from a proposed class of DuPont retirees. The companies contended that U.S. District Judge Yvonne Gonzalez Rogers has already found that the retirees didn't show how DuPont's 2015 merger with Dow Chemical and subsequent split into three new companies – Corteva, DuPont and Dow – implicated the DuPont pension plan fiduciaries' duties at all. The companies say our firm's suit challenges those same business transactions and the companies are asking the court to dismiss the suit.

The retirees sued DuPont, Corteva and others in July, saying their retirement savings were at risk because of the company's actions. But Judge Rogers in April dismissed a first amended complaint, which made seven claims including breach of fiduciary duty, failure to follow pension plan documents and failure to fund the plan. Judge Rogers ruled at the time that the retirees didn't identify how DuPont's implementation of the spinoff violated the pension plan, and that the retirees didn't show the plan was underfunded.

However, Judge Rogers gave the retirees the opportunity to file a second amended complaint, which was done. That amendment has only one claim for breach of fiduciary duty. We contend that Corteva was saddled with all the plan's responsibilities while DuPoint was “free from the substantial burden of contributing the billions needed to meet the future needs of the plan.”

The Plaintiffs state in the second amended complaint that they “do not allege violations of ERISA based on the corporate decision to restructure and form new companies, but only based on the implementation of the transaction by executing the separation of the plan and its participants from the true DuPont.” The case is proceeding.

The proposed class is represented by Dee Miles and James Eubank from our firm, Tom O. Sinclair of the Sinclair Law Firm LLC., Elizabeth Hopkins and Susan L. Meter of Kantor & Kantor and Edward S. Stone of Edward Stone Law PC. The case is Krishnan Thondukolam et al. v. Corteva Inc. et al. (case number 4:19-cv-03857) in the U.S. District Court for the Northern District of California.

We will keep our readers posted on any new developments with this important case, but if you want more information about the case, contact James Eubank, a lawyer in our firm, at 800-898-2034 or by email at James.Eubank@beasleyallen.com.

Source: Law360.com

Additional Class Action Settlements

The following are additional settlements in class action litigation that have been reached recently. We give a brief summary of each below.

MetLife Agrees To $84 Million Settlement In Investors' Life Insurance Suit

MetLife Inc. has agreed to pay $84 million in settlement in class action claims saying the company misled investors by underreporting life insurance death benefit liabilities. The proposed settlement agreement was filed in New York federal court last month.

The two classes of investors alleged that MetLife started making misrepresentations to investors in 2010 that reserves it held for certain “incurred but not reported,” (IBNR) death benefit claims for group life insurance policies were adequate. The false statements came even though the insurer had discovered a $25 million shortfall in its backup funds in 2007 after it began cross-checking its policyholders with a federal database of all deaths recorded in the U.S., the investors said.

Under the terms of the settlement, MetLife's $84 million will be distributed among the classes of investors who purchased or otherwise acquired MetLife common stock during certain offerings in 2010 and 2011.

According to the investors' suit, the company's stock traded at artificially inflated prices in 2010 but then fell twice in 2011 after the IBNR shortcomings came to light. The suit was originally filed in 2012. The class won certification in September 2017. In August 2018, U.S. District Judge Lewis A. Kaplan denied MetLife's motion to dismiss and allowed the class action to continue, ruling that the investors had adequately pled that the insurer and its officers knew they were misrepresenting the company's financial health.

Judge Kaplan on June 11 declined to give initial approval to the settlement. But he said the investors can ask again if they fix a class notice. In a short order, Judge Kaplan denied without prejudice from motion by lead Plaintiff Central States, Southeast and Southwest Areas Pension Fund's for preliminary approval of the settlement. Note that the judge did not reach the merits of the motion.

The investors are represented by Shawn A. Williams, Daniel J. Pfefferbaum, Armen Zohrabian, John H. George, Robert M. Rothman and Ellen Gusikoff Stewart of Robbins Geller Rudman & Dowd LLP. The case is City of Westland Police and Fire Retirement System v. Metlife Inc. et al., (case number 1:12-cv-00256) in the U.S. District Court for the Southern District of New York.

Source: Law360.com

JP Morgan Chase Reaches $62 Million Settlement With Military Class In Overcharge Suit

A class of servicemembers has required a North Carolina federal court to approve a $62 million settlement it reached with JPMorgan Chase Bank over allegations the financial institution overcharged them under the bank's Servicemembers Civil Relief Act (SCRA) program. If given final approval by the court, the settlement would end a lawsuit first filed in 2016 by several servicemembers and amended in March alleging Chase Bank charged an illegally high interest rate and improper fees on the debts of thousands of servicemembers and charged interest on the improper fees.

The motion for preliminary approval of the settlement was filed by the class, and Chase Bank filed a separate motion indicating it does not oppose the proposed settlement's terms.

The cash settlement amount of $62,461,938 would cover all compensation to the class members, attorney fees and costs, service awards and administrative costs, minus the amount of any remediation payment checks that Chase Bank reissues upon request of any member of the class between April 17 and final approval of the settlement.

The SCRA guarantees that all debts incurred by a servicemember before being called to active duty are reduced to a 6% interest rate, from “the date deployment orders are received through the ensuing active duty period,” and requires financial institutions to permanently forgive interest above 6%, the class said in its first amended complaint filed in March.

It's alleged in the complaint that to “attract and retain the businesses of active military members,” JPMorgan Chase Bank and some of its affiliated entities offered benefits that are more generous than required by the SCRA, but then failed to properly reduce the interest rate on applicants' credit card accounts as required by the SCRA.

In July 2019, U.S. District Judge Terrence W. Boyle certified a class of all Chase Bank customers who received reduced interest or fee benefits due to their military service, excluding anyone who had executed a release of their rights claimed in the lawsuit. There are an estimated 185,000 class members, according to the proposed settlement, and each member would receive between $75 and $500, or an amount previously calculated, according to the proposed settlement.

The class is represented by Claire Tonry of Smith & Lowney PLLC. The case is Childress et al. v. JPMorgan Chase & Co. et al. (case number 5:16-cv-00298) in the U.S. District Court for the Eastern District of North Carolina.

Source: Law360.com

Georgia Teachers Settle Pension Lawsuit For $117 Million

A group of DeKalb County School District employees has settled its class action lawsuit against the Board of Education over pension contributions for $117.5 million, with the settlement to be paid over the next five years. The agreement ends a decade of litigation for teachers and other school employees who alleged the DeKalb County Board of Education illegally ended contributions to their retirement funds.

The agreement is subject to approval by DeKalb County Superior Court Judge Gregory A. Adams. The most most recent development came when Judge Adams changed his earlier position and granted a motion for class certification on March 26. The judge named teachers to serve as representatives in the lawsuit going forward. The lead Plaintiff in the case is Elaine Gold.

More than 10,000 teachers and other employees contend – “and the appellate courts have established” – that the school district “breached their contract by improperly reducing certain retirement benefits,” Judge Adams said. “If ever there was a question that ought to be resolved once and for all, it is whether this school district shortchanged these teachers unlawfully,” he added.

The Georgia Court of Appeals had reversed Judge Adams and remanded the case to him for reconsideration. Judge John Ellington wrote the reversal opinion on June 1, 2018, agreeing with the teachers that they had “an enforceable ‘governmental promise' that required two years' notice before reducing or suspending funding.” The school district appealed to the Georgia Supreme Court, which unanimously affirmed the panel's ruling in November 2019.

The Barnes Law Group represents lead Plaintiff Elaine Gold and others. The team includes former Gov. Roy Barnes and John Salter Jr. They were joined by Michael Terry and Jason Carter of Bondurant, Mixson & Elmore. There has been 10 years of litigation, with appeals.

Source: Katheryn Tucker with Law.com

Centene Settles Hep C Class Suit

A Florida federal judge has approved a settlement ending a class action by hepatitis C patients who said health insurance company Centene denied them coverage of drugs that cure the liver disease. U.S. Magistrate Judge Jacqueline Becerra signed off on the settlement.

Pursuant to the settlement agreement, Centene Corp. agreed to not reinstate certain restrictions on coverage for the hepatitis C drugs and said it would provide notice to any class members who were previously denied coverage to tell them they are now eligible and can resubmit their requests for coverage.

In the motion requesting approval, the patients called the deal a “tremendous victory for class members” because it gives them access to a life-saving cure. In the order approving the settlement, Judge Becerra said:

The parties estimate that the settlement has a significant value, because if a class member were to buy a cure on the retail market, a single course of treatment would cost $94,000, for an aggregate value to the class of $141 million.

In addition to the treatment coverage, Centene agreed to pay $350,000 in attorney fees and costs. Centene also agreed to allow those class members who were denied coverage for the drugs who are no longer insured by a Centene subsidiary to enroll in Centene plans. Those who are no longer insured at all or have no coverage of the hepatitis C drugs can submit for a single payment of up to $2,200, which was the estimated annual national out-of-pocket sales premium for bronze-level health plans in 2018, according to the judge's order.

Three individuals insured by Centene subsidiary Celtic Insurance Co. sued the insurer in June 2018, claiming Centene, which is the largest health insurer in the marketplace for individual policies created by the Patient Protection and Affordable Care Act, told subsidiaries to refuse to pay for breakthrough treatments for hepatitis C unless patients had already suffered severe, irreparable liver damage. The Plaintiffs say drug treatments to cure hepatitis C have been available since October 2014.

The Centene subsidiaries would limit coverage only to those whose livers met a certain fibrosis score that indicated severe liver damage. In August 2018, the company told the court the case should be dismissed because the claims were moot after a policy change effective July 1, 2018, that did away with the coverage guidelines at the heart of the lawsuit. The parties reached a settlement in February 2019 that will provide coverage for those who were denied the drugs before the change took effect.

The patients are represented by Vicki Tucci Krusel of the Legal Aid Society of Palm Beach County Inc. and Andres Rivero of Rivero Mestre LLP. The case is M.D. et al. v. Centene Corp. et al., (case number 1:18-cv-22372) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

States Should Fight Against PBM Misconduct

Prescription drug prices have been on the rise in our country and the spotlight has been put on Pharmacy Benefit Managers (PBMs) for their significant role in the rising costs to consumers. PBMs are the middlemen that contract with employers or health plans to interface with drug manufacturers and pharmacies to process plan participants' claims for prescription drugs. PBMs are supposed to be using their negotiating power to decrease prescription drugs costs and then pass their savings on to patients and plan sponsors. However, PBMs are being scrutinized for increasing drug costs, inflating overhead costs, overcharging administrative fees, retaining rebates, and pocketing savings.

Over the past decade, the PBM industry has gotten stronger and more consolidated, leaving the market with just three major players – Express Scripts, CVS Health and OptumRx. These three PBMs make up 85% of the market, which hinders competition, increases drug prices, and keeps consumers in the dark about the wrongful conduct of PBMs.

Individual states, as consumers of prescription drugs, are victims of PBM schemes. For instance, states often use PBM services related to prescription drug benefits for Medicaid, state employee benefit plans, state university health plans, the department of corrections, and even workers compensation funds. When PBMs commit deceptive and anticompetitive practices involving state-funded plans, it directly affects citizens of the state and the use of their taxpayer dollars. When a PBM is supposed to use its relationship with the state to negotiate for lower drug prices and instead uses the lack of transparency with rebates, recoupments, drug formularies and other issues to pocket the savings, it can cost the state millions of dollars in prescription drug costs.

Retaining any of the state's money is a violation of the PBM's contractual and fiduciary obligations to pass through the savings to the state and is an unlawful practice that keeps health care costs high and, in some instances, affects access to care for beneficiaries. Because the federal government has not been able to control the misconduct of PBMs, it is up to the individual states to take action. State attorneys general, state auditors, and state legislators have the tools and requisite authority to make the necessary changes this country needs.

After a thorough investigation by a state agency such as the Office of the Attorney General or the Office of the State Auditor, if evidence of wrongdoing by its PBM is discovered, the respective state agency handling the investigation may authorize litigation. While states may have limited antitrust and consumer protection litigation resources to litigate against the country's largest PBMs, attorneys general may hire outside counsel and/or join multistate task forces to investigate and prosecute unlawful conduct of PBMs.

In the past 10 years, more than 20 state attorneys general have brought actions against the three major PBMs for their abusive practices, especially in relation to drug rebate programs. State auditors have also pursued investigations into PBMs in pursuit of the recovery of state taxpayer dollars. Unfortunately, PBMs still have not ceased their unlawful practices and state agency investigations and complaints must continue in order to put an end to the various PBM schemes.

In addition to litigation, many states are attacking unlawful PBM practices through legislation. Since at least 2018, hundreds of bills each year related to PBM regulation have been introduced in state legislatures across the country attempting to protect patients against some of the worst practices by PBMs. Some of the proposed legislation would require rebates or discounts to be given directly to patients and would prevent pharmacies from negotiating prices only with respect to drug formulary placement as opposed to cost savings. Other proposals would restrict PBMs from redirecting patients to specialty or mail-order pharmacies.

There was proposed federal legislation that would have required plans to apply rebates at the point-of-sale and a rule to withdraw the safe harbor protection under anti-kickback laws, thus eliminating rebates in Medicare that have permitted manufacturers to negotiate with payers for formulary placement. However, the Trump administration withdrew the plans for the new rule. It is now up to the states more than ever to take the fight against PBMs into their own hands.

Over the years, Beasley Allen has represented 11 states in various complex health care litigation and is currently investigating PBM claims on behalf of private and governmental plans. Our firm welcomes the opportunity to investigate potential PBM misconduct.

If you have any questions about our firm's health care fraud practice, contact Ali Hawthorne, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Alison.Hawthorne@beasleyallen.com. Ali has been heavily involved in the PBM litigation and would be glad to talk with you.

Source: Inside Sources

THE CONSUMER CORNER

Government Rollbacks To Auto Emissions Standards

Twenty-three state attorneys general, along with the California Air Resources Board (CARB), the Cities of Los Angeles, New York, San Francisco, and Denver, and the Counties of San Francisco and Denver, have filed a lawsuit challenging the Trump administration's Safer Affordable Fuel-Efficient Vehicles (SAFE) rules revising extant fuel efficiency and emissions standards for passenger vehicles. The lawsuit alleges the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) used a flawed analysis to justify their rollback.

SAFE effectively undoes President Barack Obama's 2010 Clean Car Standards (CCS), which set forth aggressive fuel economy and greenhouse gas emissions requirements for vehicle models through the year 2025. The new rule guts both the CCS's anticipated 5% increase in annual fuel efficiency (now a 1.5% improvement requirement) and emissions reduction goals.

Critics contended that the rollback will allow the release of hundreds of millions of metric tons of carbon emissions over the next 10 years, resulting in higher levels of air pollution and the speeding of climate change-related catastrophes like sea level rise, plant and animal extinction, extreme weather events, drought, famine, and human migration.

The attorneys general have filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit after having exhausted the requisite administrative channels. The suit, led by California Attorney General Xavier Becerra, contends there is no legitimate basis for the policy and its foundations rest on faulty modeling, baseless assumptions, and a “fundamental misunderstanding of consumer behavior.” The EPA's announcement of SAFE on March 31, 2020, provoked the present lawsuit.

The Trump administration has argued that the Obama-era standards would have made cars more expensive, forcing people to stick with older, less-safe models. The Administration argues further that the revised regulations will boost the auto industry and the economy and reduce road accidents because drivers will be able to afford safer, newer cars. But the attorneys general point to evidence that the weaker rules could result in an estimated thousands of premature deaths because of increased tailpipe emissions. Further, consumer advocates counter that the relaxed standards will reduce neither the cost of vehicles nor road accidents but will result in greater consumer expenditure on gasoline.

In 2010, the EPA, NHTSA, the California Air Resources Board, and car manufacturers established a unified national program harmonizing greenhouse gas emission standards and fuel efficiency standards. Two years later, the agencies extended the national program to model years 2017-2025 vehicles. As part of the program, California and the federal agencies agreed to undertake a midterm evaluation to determine if the greenhouse gas emission standards for model years 2022-2025 vehicles should be maintained or revised.

In January 2017, the EPA completed the midterm evaluation and issued a final determination affirming that the existing standards were appropriate and would not be changed. The Trump administration began to unwind the CCS in 2018 when it reversed a 2017 CCS midterm evaluation that concluded the rules continued to be technologically feasible and cost-effective.

In response to the reversal, California, 17 other states, and the District of Columbia sued the federal government. Since then, the federal government has taken further steps toward deregulation, including revocation of California's Clean Air Act (CAA) waiver, which allowed it to set its own vehicle emissions standards.

The states also contend that the Trump administration ignored red flags from its own EPA staff. In pushing the rule through, the states say that the EPA and NHTSA have contravened several federal laws, including the CAA, the Energy Policy and Conservation Act, and the Administrative Procedure Act. Several environmental organizations have also filed suit citing public welfare concerns such as respiratory disease linked to increased emissions.

Not all automakers are in favor of the changes. At least four major manufacturers, including Volkswagen, BMW, Honda and Ford, have said that they will continue to adhere to the stricter tailpipe emissions standards set forth by California and 13 other states. On the other hand, the Alliance for Automotive Innovation, an organization comprising significant players such as Toyota and GM, has defended the changes.

Beasley Allen lawyers will continue to monitor this important issue and keep our readers posted on any new developments. If you have any questions, contact Lauren Miles, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.

Source: NYTimes.com

More Dismantling Of Consumer Protections

On June 4, President Trump signed another order to allow agencies to waive 50-year-old environmental laws to speed up federal approvals of pipelines, highways and other projects. In doing so, the Trump Administration is dismantling federal regulations designed to protect workers, consumers, investors and the environment.

Invoking an economic “emergency” stemming from the coronavirus pandemic, the administration has made it harder for people to challenge inaccuracies on credit reports, eased required breaks for commercial truckers and told factories and power plants that, although they should obey pollution limits, they do not have to monitor or report their emissions routinely – among other things.

The Executive Order directed agencies to waive requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act if that could accelerate the construction of highways, pipelines and other projects. These laws require agencies to solicit public input on projects proposed in their communities and analyze in detail how they could potentially harm the environment.

The moves come on top of waivers that federal agencies had granted businesses and industries earlier in the health crisis. One sign of industry's appetite for regulatory relief can be seen on the state level in Minnesota, where pollution regulators have received more than 500 requests for “regulatory flexibility” because of the coronavirus and been granted more than 93% of them.

The Consumer Financial Protection Bureau (CFPB), which guards consumers from abuse by payday lenders, mortgage brokers, banks and other financial institutions, had already reduced its enforcement activities before the pandemic. Under President Barack Obama, the bureau filed an average of 3.1 cases a month over nearly six years. It has filed about half that number under Trump since the beginning of 2018.

In April, the bureau said it would not punish banks, debt collectors and other financial companies for violating provisions of the Fair Credit Reporting Act that require them to investigate disputed information on consumers' credit reports. It means consumers who see problems on their credit reports will have less recourse.

The CFPB's more relaxed approach comes despite the fact it has received a record numbers of complaints – about 36,700 in March and 42,500 in April. In the eight weeks after Trump declared a national emergency in March, the average number of complaints about prepaid cards increased by 84% compared with the previous eight weeks, and credit-reporting complaints were up by 29%.

The federal consumer watchdog agency suspended requirements that financial institutions investigate disputed information on consumers' credit reports. The Labor Department relaxed some worker protections, including how businesses report paid sick leave. The Food and Drug Administration cut the time it takes to approve new antimicrobial products from years to months.

Major conservative groups and trade associations, which decry many federal regulations as overreach, are rushing to present even more ideas. These include setting aside labor requirements on infrastructure projects; speeding up vaccine and treatment approvals; limiting corporate liability; lifting restrictions on telemedicine so people can see doctors across state lines; and loosening wetlands protections so farmers can install stocked fish ponds or other features.

While these orders will surely be subject to legal challenges and scrutiny, undeniably the COVID-19 crisis has caused a wide array of effects in everyday life and consumers' finances, while reinforcing the import for consumer advocacy. The CFPB has proven to be one of our greatest allies in consumer advocacy and as fellow advocates for consumers regardless of political affiliation, this latest act's demoralizing intention has instead affirmed and amplified the demand for consumer advocacy through litigation as one of the few remaining vehicles for consumer relief.

Our firm continues to committed to stop corporate abuses and seek justice for victims of corporate greed. If you need more information, contact Lauren Miles at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.

Source: Law360.com

DOJ Says BigLaw Firms Put FBI Agent At Risk

Major drug companies represented by Covington & Burling LLP and other BigLaw firms “jeopardized the health” of an FBI agent by serving subpoenas at his home during the COVID-19 pandemic, according to a U.S. Department of Justice (DOJ) filing in opioid crisis litigation.

The DOJ's 184-page filing in a West Virginia federal court related to discovery requests and included several exhibits, including a recent letter in which a U.S. Attorney expressed “serious concerns” about large pharmaceutical distributors sending a process server with subpoenas to the Arlington, Virginia, home of Darren Cox, an FBI agent. Michael B. Stuart, the U.S. Attorney for the Southern District of West Virginia, wrote in an April 17 letter to Covington partner Laura Flahive Wu:

We understand that defendants' process server went to Agent Cox's home on two separate occasions and both times initiated in-person contact with both Agent Cox and his spouse, eventually serving the subpoenas on Agent Cox personally. Such actions jeopardized the health and safety of Agent Cox and his family. Initiating such unnecessary person-to-person contact with Agent Cox and his family subjected them and the community to an increased risk of COVID-19 transmission, undermining the social distancing order issued by the state of Virginia on March 23, 2020.

Ms. Wu, based in Washington, D.C., notified the DOJ in an April 3 letter that the subpoenas for testimony and documents were served on Agent Cox, who belonged to a drug task force in Huntington, West Virginia. The city is a Plaintiff in the West Virginia opioid litigation, which is one of several bellwether cases in multidistrict litigation (MDL) that is centralized in Ohio and accuses drug companies of fueling the opioid crisis.

In his letter, U.S. Attorney Stuart also wrote that in addition to the health issue, the subpoenas put Agent Cox at risk from a safety perspective by listing his place of residence. In the letter, he wrote:

By publicizing the home address of an active FBI agent, defendants may have endangered Agent Cox and his family and disrupted his ongoing investigations and cases.

There is a good lesson for all of us in this handling of a routine subpoena. We should never put any person at undue risk for any reason. This is a prime example of what not to do.

Source: Law360.com

Attorneys General Pursue Generic Drug Manufacturers

On June 10, 2020, a coalition of 51 attorneys general filed suit against several manufacturers of generic dermatological drugs. The suit alleges that the manufacturers are artificially inflating prices and conspiring to reduce competition. State attorneys general since 2016 have accused companies of routinely coordinating efforts to fix prices on 80 different creams, gels, lotions, ointments, shampoos and solutions that are used to treat a pain, allergies and a variety of skin conditions.

The lawsuit states that in 2013 and 2014, some prices of generic dermatological drugs increased by 1,000% or more due to collusion within the pharmaceutical industry. Together, the lawsuits have alleged that more than 15 pharmaceutical companies are working together to artificially inflate the prices of almost 200 generic drugs. The lawsuit described how the companies agreed to divide a market, rather than compete by lowering prices.

The drug makers also allegedly struck long-standing deals to ensure a “fair share” of the market for each company and prevent “price erosion” due to competition. In some instances, prices rose more than 2,000%. The lawsuit names many of the same companies that faced similar allegations in the previous lawsuits, including Pfizer, Mylan, Teva Pharmaceutical, the Sandoz unit of Novartis, Perrigo, Taro Pharmaceuticals, Bausch Health, and Wockhardt. Named for the first time are Mallinckrodt and Sun Pharmaceuticals, among others. In addition, 10 individuals who worked at different generic makers were also named as Defendants.

If you need more information, contact Lauren Miles at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.

Jury Awards $2.8 Million Over Waste Disposal Fight In Mobile

A federal court jury in Mobile, Alabama, awarded $2.8 million last month to landfill operator WM Mobile Bay Environmental Center Inc., (WM) on claims that it was denied reimbursement from the City of Mobile's waste agency for certain increases in the cost of running a landfill due to regulatory and statutory obligations, and that the city improperly sent some waste elsewhere. The jury returned the verdict following a four-day trial over a contract dating back to 1993.

According to WM Mobile Bay Environmental Center Inc., (WM) which runs the Chastang Landfill for the city's Solid Waste Disposal Authority (SWDA), it was the SWDA's duty to pay WM back for major cost hikes stemming from “changes in laws and regulations.” There were two claims in this case: one for $770,000 related to the installation of a gas management system, and a second for $38,500 in surcharges linked to testing of leachate for contaminants, particularly ammonia. The SWDA said both sets of costs, incurred from roughly 2016 to 2018, were WM's problem because each expense was linked to a law change that happened before the 1993 contract. For example, the SWDA said “control of landfill explosive gas” and “perimeter monitoring” were both required by law before 1993.

In a third claim, WM said the city reneged on its agreement in the same contract to send all of its solid waste to Chastang, improperly diverting yard waste to another waste company.

For the increased operating costs, the jury awarded WM Mobile Bay $110,400 for 2016, $135,600 for 2017 and $555,200 for 2018. For the city's failure to send all solid waste to Chastang, the jury awarded $2 million.

The two parties had previously been in litigation over similar issues, reaching a settlement in 2017 that required the city to pay hundreds of thousands of dollars. WM filed this suit in October 2018. WM had succeeded a different company that actually signed the contract with the SWDA in 1993, TransAmerican Waste Industries Inc.

WM Mobile Bay Environmental Center Inc. is represented by Jaime Betbeze of Maynard Cooper & Gale PC. The City of Mobile Solid Waste Disposal Authority is represented by Charles Miller Jr. The case is WM Mobile Bay Environmental Center Inc. v. City of Mobile Solid Waste Disposal Authority, (case number 1:18-cv-00429) in the U.S. District Court for the Southern District of Alabama.

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

Beasley Allen has been able to keep things moving during the current pandemic crisis. We are taking care of our clients' cases and their need for justice 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 in each of our Sections 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 being handled by Beasley Allen lawyers 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, donovan.potter@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 Belviq 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, lance.gould@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, demet.basar@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: lance.gould@beasleyallen.com 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: william.sutton@beasleyallen or 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.

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.

The Section Directors at Beasley Allen continue to 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

Trial Tips

Ali Hawthorne, a lawyer in our firm's Consumer Fraud & Commercial Litigation Section, has some very good trial tips for lawyers this month. Let's see what Ali has for us.

Many trials involve either complex factual issues, long-winded witnesses, too many documents, less-than-entertaining deposition transcripts, or other obstacles that lawyers face when trying to maintain a captive audience in their jury. It is important for trial lawyers to keep the jury focused on the evidence and not allow for their attention to stray to distracting or more interesting things. Some ways lawyers can accomplish this are by limiting the commotion caused by exchanging exhibits and conferring at counsel table, positioning yourself in a way that focuses the jury on what you need them to hear, and simplifying the appearance of counsel through understated but professional clothing.

Prepare organized exhibit notebooks.

Many trials involve shuffling around exhibits between the opposing counsel, the judge, the witness and the jurors. Trial lawyers should make the introduction of exhibits during their direct examinations as seamless as possible in order to prevent unnecessary chaos and distraction for the jury. In a trial where many exhibits are expected to be introduced through a witness on direct, lawyers should consider preparing an exhibit notebook. During their direct examination when the witness needs to be the focal-point, lawyers should prevent moving around the courtroom with papers every time they want to introduce an exhibit. The commotion caused by walking to opposing counsel to exchange an exhibit, then approaching the bench, followed by approaching the witness, and last the jury in between questioning takes the jury's attention off your witness and onto you and the shuffling of documents. The commotion caused by so much movement around the courtroom throughout the questioning of your witness will also affect the flow of your witness's testimony on direct, potentially causing the jury to miss the major points.

If a lawyer anticipates introducing several exhibits during his/her direct examination, an exhibit notebook should be prepared. The lawyer knows the exhibits he/she wants to use during direct, so he/she should assemble them in at least four separate exhibit notebooks in the order in which they will be introduced through the witness, separated by numbered tabs. For instance, there should be one exhibit notebook for (a) opposing counsel; (b) the Judge; (c) the witness; and (d) either an electronic set or hard copy set for the jury depending on the lawyer's chosen trial strategy. When the witness takes the stand, the lawyer can distribute the exhibits one time, allowing him/her to remain in one place throughout the direct examination, instructing the witness, the court, and the jury to the next tab in the notebook as additional exhibits are introduced throughout the examination. The jury will then not be distracted by any unnecessary movement about the well or unorganized exchanges of stacks of paper.

Maintain a clean and quiet counsel table.

It is human nature to stray your attention to more exciting things when faced with a boring topic or lull in the conversation. Jurors are no exception. If there is ever a slow or uninteresting portion of the trial, jurors are likely to turn their attention to counsel's table if the whispering of lawyers or the shuffling of notes catches their eye. If your witness is on the stand, this could be problematic for your case. Therefore, lawyers should always keep a clean and organized counsel table and limit any distracting behavior. Lawyers should avoid having papers strewn across their counsel table that would make them appear unorganized and draw attention away from the witness box. Lawyers should equally limit the noise caused by whispering and distracting note passing that can be perceived by the jurors as disorder. The counsel table should remain as boring and orderly as possible in order to keep the jurors' eyes off the doings of lawyers and onto the witnesses presenting your evidence.

Let your witness on direct be the star.

Every lawyer wants the jury's undivided attention when their witness is testifying on direct examination, but sometimes jurors need help staying focused. If allowed by the Court, lawyers should consider positioning themselves in a way during direct examination that allows for the jury's line of sight to be between you and the witness. Of course, this will depend on the arrangement of the courtroom and the allowances of the Judge, but many lawyers can accomplish this by positioning themselves closer to the jury box during questioning and reminding the witness to speak directly to the jury when testifying. The examination will then become a conversation between the witness and the jury merely facilitated by the lawyer's simple questioning.

Do not wear distracting clothing and accessories.

Everyone has different styles and people often prefer to express themselves through clothing; however, the courtroom is not the place to do this. Lawyers should wear professional clothing and accessories that are not overdone or distracting. If a juror is staring at an obnoxiously colored outfit, too many accessories, a themed tie, or even an ill-fitting suit, they are not paying attention to your evidence. Lawyers should wear professional but simple clothing with minimal and understated accessories, if any, to create that balance of looking sharp without the distraction.

Every lawyer strives to present the best case he/she can, but if the jury is not listening because their attention is focused elsewhere, then it can be damaging to the case and affect the jury's ability to hear the evidence, decide what facts the evidence has established, and draw inferences from those facts to form the basis for their decision. Lawyers' presence and behavior in the courtroom has a big impact on jurors' ability to sufficiently fulfill their important role in our justice system.

RECALLS UPDATE

We are again reporting a large number of safety-related recalls involving motor vehicles. We have included some of the more significant recalls that were issued in June. If more information is needed on any of the recalls, readers are encouraged to contact Shanna Malone, the Executive Editor of the Report. We would also like to know if we have missed any safety recalls that should have been included in this issue.

Motor Vehicle Recalls

Mazda North American Operations (Mazda) is recalling certain 2020 CX-30 and Mazda3 vehicles. The front brake caliper mounting bolts may not have been tightened properly during assembly, possibly allowing the calipers to loosen. Loose brake calipers can reduce braking performance or interfere with wheel rotation, affecting vehicle handling. Either of these scenarios can increase the risk of a crash.

Mazda North American Operations (Mazda) is recalling certain 2020 CX-30 vehicles equipped with all-wheel drive. The evaporative vent hose for the fuel tank may be disconnected, possibly allowing fuel to leak from the charcoal canister vent at the rear of the vehicle. A fuel leak in the presence of an ignition source may increase the risk of a fire. Additionally, the engine may stall while driving, increasing the risk of a crash.

Chrysler (FCA US LLC) is recalling certain 2014-2017 Jeep Cherokee vehicles equipped with a two-speed Power Transfer Unit (PTU). Relative movement in the Power Transfer Unit (PTU) between the differential input splines and the transmission output shaft may cause some input spline teeth to wear off, which may eventually cause a loss of engagement between the transmission and the differential inside the PTU. If this occurs, power cannot be transferred between the front wheels and the transmission, which results in a loss of drive while the vehicle is in motion and a loss of the Park function while stationary. A loss of drive can cause a vehicle crash without prior warning. A loss of the Park function can cause unintended vehicle rollaway, which can increase the risk of a crash or injury.

Chrysler (FCA US LLC) is recalling certain Two-Speed Power Transfer Units (PTU) sold as replacement parts for certain Jeep Cherokee vehicles, part numbers 68090605AJ, 68090605AK, 68090605AL, 68282447AA, 68282447AB, 68282447AC, 68307403AA and 68307403AB. Relative movement in the Power Transfer Unit (PTU) between the differential input splines and the transmission output shaft may cause some input spline teeth to wear off, which may eventually cause a loss of engagement between the transmission and the differential inside the PTU. If this occurs, power cannot be transferred between the front wheels and the transmission, which results in a loss of drive while the vehicle is in motion and a loss of the Park function while stationary. A loss of drive can cause a vehicle crash without prior warning. A loss of the Park function can cause unintended vehicle rollaway, which can increase the risk of a crash or injury.

Chrysler (FCA US LLC) is recalling certain 2017-2020 Pacifica Plug-in Hybrid Electric Vehicles (“PHEV”). The 12-volt isolator post located behind the driver's seat may develop high resistance. A high-resistance electrical connection may result in the connection overheating, increasing the risk of a fire with the vehicle on or off.

Ford Motor Company (Ford) is recalling certain 2011-2014 Fiesta, 2013-2014 Fusion, 2015 Mustang, 2013-2015 Escape and C-Max, 2012-2015 Focus, 2014-2016 Transit Connect, 2013-2014 Lincoln MKZ, and 2015 MKC vehicles. These vehicles were previously recalled and repaired under recalls 15V-246, 16V-643 or 17V-210, however the repair may not have been completed properly. A component within the door latches may break making the doors difficult to latch and/or leading the driver or a passenger to believe a door is securely closed when, in fact, it is not. A door that is not securely latched could open while the vehicle is in motion, increasing the risk of injury to a vehicle occupant.

Ford Motor Company (Ford) is recalling certain 2014-2017 F-150 pickup trucks equipped with 3.5L Ecoboost engines. The brake master cylinder may leak brake fluid into the brake booster. A loss of brake fluid may result in a change in brake pedal travel and feel, increased pedal effort and reduced front brake functions, possibly requiring greater effort and distance to stop the vehicle. These conditions can increase the risk of a crash.

Ford Motor Company (Ford) is recalling certain 2016-2017 Transit Connect vehicles. The front driver and/or passenger seat belt pretensioner initiators could contain an improper generant mix ratio that may prevent the seat belt pretensioners from deploying in the event of a crash. In the event of a crash, the front driver and/or passenger seat belt pretensioners may not deploy, increasing the risk of injury.

Ford Motor Company (Ford) is recalling certain 2020 Mustang vehicles equipped with a forward-looking camera. The camera may be misaligned to the vehicle and features that are dependent on the camera such as Pre-Collision Assist, Adaptive Cruise Control, Lane Keeping System, Driver Alert, and Auto High Beam Control may not function as intended. If the driver is unaware that the Pre-Collision Assist feature is not operating effectively, they may rely on a system that is not functional, increasing the risk of a crash or injury.

General Motors LLC (GM) is recalling certain 2021 Chevrolet Trailblazer vehicles factory-equipped with optional 17-inch sport terrain tires. The certification label on these vehicles does not provide the tire size and cold tire pressure information for front and rear tires, as required. As such, these vehicles fail to comply with Federal Motor Vehicle Safety Standard Number 110, “Tire Selection and Rims.” If drivers are uninformed and overinflate or underinflate their tires, this may increase the risk of a crash.

General Motors LLC (GM) is recalling certain 2020 Chevrolet Silverado 2500 and 3500 and GMC Sierra 2500 and 3500 vehicles previously recalled under 20V-142. Some of the vehicles in 20V-324 were not part of Recall 20V-142 but received defective parts during another service (typically during collision repair). The hood-latch striker wires on replacement hoods installed for Safety Recall 20V-142 may not have been heat-treated properly, possibly causing them to fracture. If a striker wire fractures, the hood may open unexpectedly while driving, increasing the risk of a crash.

General Motors is recalling certain 2019-2020 Chevrolet 4500HD, 5500HD, and 6500HD Medium Duty trucks. If the vehicle's body control module (BCM) loses communication with the vehicle's electronic brake control module (EBCM), the EBCM software programming may not illuminate the vehicle's ABS malfunction indicator light (MIL). As such, these vehicles fail to comply with Federal Motor Vehicle Safety Standard (FMVSS) Number 105, “Hydraulic and Electric Brake Systems.” If a driver is unaware that the ABS system is malfunctioning, there may be an increased risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2019-2021 Western Star 4700 and 5700 vehicles. A particular wire in the ground harness may be undersized, possibly resulting in a melted connector in the ground circuit harness. If the connector becomes damaged, under certain circumstances, the engine may stall without the ability to restart. An engine stall may increase the risk of a crash.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2020 E450, AMG E63S, GLC300, AMG GLC43, AMG GLC63, AMG GT53, and AMG GT63 vehicles equipped with rear seatbacks that can be electrically unlatched. The left-rear seatback latch may not be strong enough to withstand certain loads. If cargo were to strike the left-rear seatback, the latch may fail. In the event of a crash, if the left-rear seatback latch fails, it can increase the risk of injury.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2012 C250, C250 Coupe, C300, C350, C350 Coupe, C63 AMG, and C63 AMG Coupe vehicles equipped with a front passenger air bag assembly replaced under a prior recall. An incorrect replacement front passenger air bag may have been installed. An incorrect passenger air bag may not provide adequate protection increasing the risk of injury in the event of a crash.

Honda (American Honda Motor Co.) is recalling certain 2019 Clarity Fuel Cell, Clarity Electric, and Clarity Plug-in Hybrid vehicles with rear seat belt assemblies with a dual-mode locking mechanism. The seat belt webbing sensor locking mechanism may not lock as intended. In the event of a crash, the seat belt may not properly restrain the occupant, increasing the risk of injury.

Honda (American Honda Motor Co.) is recalling certain 2018-2019 Acura NSX, 2019 Acura RDX, RLX and RLX Sport Hybrid, 2018-2019 Honda Accord, Civic Hatchback, Civic Type R and HR-V, 2019-2020 Insight and 2019 Fit vehicles. The low-pressure fuel pump inside the fuel tank may fail. If the fuel pump fails, the engine can stall while driving increasing the risk of a crash.

Jaguar Land Rover North America, LLC (Land Rover) is recalling certain 2016 Land Rover Range Rover and Range Rover Sport vehicles. These vehicles were previously recalled and repaired under Recall 19V-390, however the repair may not have been completed properly. A spring in the Keyless Vehicle Latching System (KV Latch) may get stuck, causing the left-hand door to remain unlatched when the door is closed. An unlatched door may open while the vehicle is in motion, increasing the risk of injury or a crash.

Nissan North America, Inc. (Nissan) is recalling certain model year 2013-2018 Nissan Altima vehicles. If the primary hood latch is inadvertently released, there is an increased likelihood that the secondary hood latch may corrode over time. Corrosion to the secondary latch may cause it to bind and remain in the unlatched position when the hood is closed. If the primary latch is inadvertently released again and the secondary latch is not engaged, the hood could unexpectedly open while driving, increasing the risk of a vehicle crash.

Nissan North America, Inc. (Nissan) is recalling certain model year 2013-2015 Nissan Altima vehicles manufactured March 6, 2012, to Dec. 31, 2014. In the affected vehicles, the secondary hood latch may bind and remain in the unlatched position when the hood is closed. If the primary latch is inadvertently released and the secondary latch is not engaged, the hood could unexpectedly open while driving, increasing the risk of a crash.

BMW of North America, LLC (BMW) is recalling certain 2020 X1 xDrive28i, X1 sDrive28i, X2 xDrive28i and X2 sDrive28i, 2020 MINI Clubman Cooper S All4, 2021 MINI Hardtop 2 Door (Cooper, Cooper S, John Cooper Works and Cooper S E) and MINI Hardtop 4 Door (Cooper and Cooper S) vehicles. Due to a problem with the rollover sensor within the air bag control unit, in the event of a rollover crash, the head air bag, seat belt pretensioners and other safety systems may not activate. If the safety systems do not deploy as intended in a rollover crash, it may increase the risk of injury.

Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain 2019-2020 RAV4 and RAV4 Hybrid vehicles. The front lower suspension arms may have cracks, which may result in the suspension arm separating from the front wheel assembly. If a suspension control arm breaks, it can result in a loss of vehicle control, increasing the risk of a crash.

Navistar, Inc. (Navistar) is recalling certain 2019-2020 International CV vehicles. Due to a software error, the Antilock Braking System (ABS) malfunction indicator does not light when there is a loss of communication between the Electronic Brake Control Module (EBCM) and the Body Control Module (BCM). As such, these vehicles fail to comply with Federal Motor Vehicle Safety Standard (FMVSS) number 105, “Hydraulic and Electric Brake Systems.” If the malfunction warning does not light, the driver may not be aware of an inoperative ABS or Automatic Traction Control (ATC) system, increasing the risk of a crash.

Mitsubishi Motors North America, Inc. (MMNA) is recalling certain 2008-2010 Lancer, 2010 Lancer Sportback, 2008-2013 Outlander, and 2011-2016 Outlander Sport vehicles originally sold in, or ever registered in, Connecticut, Delaware, the District of Columbia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia and Wisconsin. The front lower control arms may detach due to the front cross member corroding from salt water exposure such as from road salt use. A detached front control arm can result in a loss of vehicle control, increasing the risk of a crash.

Yamaha Motor Corporation, USA (Yamaha) is recalling certain 2015-2018 XC155 scooters. The cylinder head nuts may not have been tightened properly and could loosen, allowing coolant to foul the spark plug. A fouled spark plug could cause the engine to stall at idle and possibly not restart, increasing the risk of a crash.

Tire Recalls

American Pacific Industries, Inc. (American Pacific) is recalling certain Gladiator X-Comp A/T tires, size LT285/75R16, Load Range E and with DOT date codes 0718 to 0420. Due to a manufacturing issue, the sidewall may separate from the tire. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 139, “New Pneumatic Radial Tires for Light Vehicles.” Sidewall separation can lead to tire failure, increasing the risk of a crash.

Vee Tyre and Rubber Co., Ltd. (Vee Tyre) is recalling certain Taiga A/T tires, size LT285/75R16. Due to a manufacturing issue, the sidewall may separate from the tire. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 139, “New Pneumatic Radial Tires for Light Vehicles.” Sidewall separation can lead to tire failure, increasing the risk of a crash.

As you can see, there have been a large number of recalls since the last issue. We included a number of motor vehicle recalls we felt to be of the highest importance and urgency. We did not include consumer recalls in this issue. If you need more information on recalls, visit our firm's web site at BeasleyAllen.com. We would also like to know if we have missed any significant recall that involves a safety issue. If so, please let us know. As indicated at the outset, you can contact Shanna Malone at Shanna.Malone@beasleyallen.com for more recall information or to supply us with information on recalls.

FIRM ACTIVITIES

Employee Spotlights

Susan Baker

Susan Baker, who has been with the Firm for 24 years, is the Paralegal to Ted Meadows in the firm's Mass Torts Section. Currently, Susan is a member of the Talcum Powder In Extremis Team specifically working with talc clients preparing them for trial preservation depositions.

Susan and her husband Phil have been married for 33 years. They have three, as Susan describes them, “awesome children,” Jessica, Callie and Josh, and one beautiful grandson, Grayson. They have one “fur baby,” Lacey, a 13-year-old miniature dapple dachshund.

Susan says she loves spending time with family and friends. She also loves to travel, go antiquing, read, and play Rook. Susan's family also owns a farm down in South Alabama that keeps them pretty busy.

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

I love that I get to help our clients prepare to tell their story. As heartbreaking as it usually is, it is also so rewarding. I get to know these clients on their most personal level. I also am so proud when I see the work that we do have such a positive impact on people, not only across the country but across the world.

Susan is a dedicated, hard-working employee who really cares about the clients she works with. We are fortunate to have her with us.

Jill Cawley

Jill Crawley has been with Beasley Allen for almost 25 years. She is the secretary to seven of our Staff Investigators and assists them with their work. That work keeps Jill very busy. For example, Jill transcribes dictated correspondence, downloads field work/photos to our ProLaw database, maintains stored vehicle inventories, requests certain reports online, and processes weekly hours reports.

Jill, a widow, had 38 wonderful years with her husband, Rob Cawley. Jill was brought up in a military household, which provided many opportunities for travel and learning about different cultures. Her family was stationed a number of interesting places, including the Philippines and South Dakota.

Jill says she enjoys reading and knitting. She also enjoys listening to many genres of music. When asked what her favorite thing is about working at Beasley Allen, Jill says:

The people I work with are wonderful. I call the Investigators “My Guys” because they have all become my friends as well as my co-workers. I also appreciate the fact that the firm is involved in the community and gives back generously.

Jill's role in the firm is very important. The investigators' work is essential to the firm and Jill is very much a part of this work. She too is a dedicated, hard-working employee. We are fortunate the have her at Beasley Allen.

Ben Keen

Ben Keen, a lawyer in the firm's Personal Injury and Products Liability Section, is based in our Atlanta office. He handles cases involving serious injuries and defective products including tractor-trailer accidents. Before joining the firm and during law school, Ben gained experience as a law clerk for law firms practicing in civil litigation and criminal defense.

Ben credits his ability to connect with individuals from various backgrounds and circumstances for putting him on the path to becoming a lawyer. He explains that although he excelled in sales, a job he took after finishing his undergraduate degree, it was a job that didn't provide the rewarding experiences he desired. Further, as he gained maturity over the years, Ben said he decided that he needed more. He realized one of his strengths was always standing “sound in the concept of doing what is right” and he has “always had an inherent interest in helping those who cannot effectively help themselves.” Ben says:

I desired a career that will provide the reward of bettering someone's life. Becoming an attorney provided that opportunity and I have thanked God every day for delivering the path to accomplish this goal.

The University of Mississippi grad received his B.A. in 2013 and earned his Juris Doctorate from Samford University's Cumberland School of Law in May 2018. While at Cumberland, Ben studied at Cambridge University, Sidney Sussex College in Cambridge, England, as part of the law school's study abroad program. He was consistently included on the Dean's List and was a member of Cumberland's National Arbitration and National Trial teams, an Associate Judge of the law school's Trial Advocacy Board, a member of the Cordell Hull Speakers Forum and a member of the Judge James Edwin Inn of Court. During his senior year of law school, Ben served as class President and Graduation Commencement Speaker.

When asked about his favorite part of practicing law, Ben says, “Put simply, helping people.”

He explained that the process of dealing with accidents generally requires legal representation because of the traumatic experience and the complex insurance issues among other reasons. He says:

Whether the victim of this traumatic experience recovers or the incident involves a fatality, I believe your focus should be on addressing your physical and mental health. Practicing law allows me to counsel clients and ensure that they are addressing their current needs, while I ease the stress of dealing with a traumatic event. This counseling is invaluable to clients when done through the avenue of listening and showing that you care.

Further, Ben explains that he enjoys digging deep into case law and researching the entity or person responsible for a wrongful act to “ensure the victim isn't being taken advantage of” in their moment of need. Ben says:

Since generally the remedy to a victim of tortious conduct is financial compensation, I take pride in this research as it ultimately puts what I will call ‘our matter or our case’ now at the forefront of the Defendant's mind. This in turn results in the outcome that can change lives for the better and for the people who have been through so much. This is the reward worth all the work.

Ben is a member of the American Association for Justice, the Georgia State Bar and the Georgia Trial Lawyers Association where he serves on the Board of Directors for the New Lawyers Division. He is also a member of the Southside Metro Atlanta Trial Lawyers Association.

An interesting fact about Ben is that in 2009, the Georgia native earned his Screen Actors Guild (SAG) card after landing the role of Wingate quarterback, Tony, in Warner Brothers Entertainment, Inc.'s The Blindside. Ben enjoys spending his free time with family and close friends, and he enjoys listening to music, watching Ole Miss football, hunting and fishing.

Ben says he is glad to be part of the Beasley Allen law firm because everyone at the firm genuinely shares the same interests – helping the clients. He also appreciates the firm's priorities. He says:

Beasley Allen is founded on the concept that God is first, family is second, and work is third. This concept over the last 41 years has created a healthy work environment, which is essential to success.

Ben is a very good lawyer who works hard to see that his clients receive justice. We are fortunate to have him with us.

Becky Lamb

Becky Lamb, who has been with the Firm for 14 years, is a Legal Secretary in the Mass Torts Section. She works on the Talcum Powder litigation and primarily works for Ted Meadows and David Dearing. Some of Becky's job responsibilities as a Legal Secretary include making travel arrangements for assigned lawyers, taking care of Visa statements and WIP reports, setting up calendar events as requested and assisting with MDL time submissions. She also handles a number of other specific responsibilities at the direction of the lawyers.

Becky has a 17-year-old daughter, Lauren, who will be a Senior this upcoming school year and is a Varsity Cheerleader. Becky also has a 2-year-old miniature dachshund named Sadie.

In her spare time, Becky says she enjoys spending time with her family, grilling out, decorating and helping on what she describes as the “cow farm.”

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

The relationships I have formed with my bosses, other attorneys, and co-workers. They become your family away from home. There is always someone at the firm that cares about how you are and what is going on in your life. You always have someone to talk to if you need anything. There is always someone willing to help. I am also thankful for the devotions each week.

Becky is a dedicated, hard-working employee who has been involved in some very important litigation in the Mass Torts Section. We are fortunate to have her with the firm.

SPECIAL RECOGNITIONS

Beasley Allen lawyer Leon Hampton Jr. Sworn In As President Of Alabama Lawyers Association

Beasley Allen lawyer Leon Hampton Jr. was sworn in last month as the 47th president of the Alabama Lawyers Association (ALA) during the group's virtual annual conference. Leon joins other Beasley Allen lawyers who have helped lead the ALA, including LaBarron Boone, Kendall Dunson, Larry Golston, Danielle Ward Mason and Navan Ward. Leon says:

It's an honor to lead ALA during a very challenging time in our state and nation's history. For 49 years, ALA lawyers have been at the forefront of legal and societal change. I look forward to building upon this well-established tradition. This year, ALA will focus on using the collective voices of our members to help bring awareness and resolution to systemic inequities within minority communities.

Leon is a principal and trial lawyer in the firm's Consumer Fraud & Commercial Litigation Section where he focuses his practice on consumer fraud, employment litigation and whistleblower claims under the False Claims Act. Since 2017, Leon has helped secure verdicts and settlements totaling more than $20 million. Recently, he received an invitation to join the National Trial Lawyers' 40 under 40 List. Prior to joining Beasley Allen, Leon was a prosecutor with the Montgomery County District Attorney's Office.

In addition to serving as President of ALA, Leon serves on the Board of Directors for the Legal Services of Alabama and the Mercy House. In 2020, he was selected for the Alabama State Bar's Leadership Forum (Class 15). Leon is married to Dr. Tonquita Hampton and they have two children. The family attends True Divine Baptist Church where Leon Hampton serves on the executive pastoral staff.

The ALA (formerly known as the Alabama Black Lawyers Association) was organized in 1971 to help populations that have historically been unrepresented or underrepresented in the legal arena. The ALA provides support services and networking opportunities for members to enhance their effectiveness as legal counsel, and to protect the civil and political rights of all citizens.

FAVORITE BIBLE VERSES

Kwanzaa White, a receptionist at Beasley Allen in one of our buildings in Montgomery, sent in her favorite Bible verse for this issue. She says this verse has become one of her favorite scriptures over the last few months. Kwanzaa says: “It's been a difficult time for our world, but this scripture reminds me of who we are, who we really are, and who lives in us – Christ. With HIM we have the victory.”

“I have been crucified with Christ; it is no longer I who live, but Christ lives in me; and the life which I now live in the flesh I live by faith in the Son of God, who loved me and gave Himself for me.” Galatians 2:20

Ben Baker, a lawyer in our Personal Injury & Products Liability Section, furnished several scriptures for this issue.

God resists the proud, but shows favor to the humble. 1 Peter 5:5

Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow. Isiah 1:17

The plans of the diligent lead to profit as surely as haste leads to poverty. Proverbs 21:5

The fear of the Lord is the beginning of wisdom, and knowledge of the Holy One is understanding. Proverbs 9:10

Tom Methvin, the lawyer who manages Beasley Allen, sent in several of his favorite verses this month. He says: “Some of my favorite scripture deals with showing love by helping the poor. My parents were a great influence in this area of my life. I have strived to pass this on to my children and hope they do the same.”

Helping the poor is personal to God and Jesus.

He defended the cause of the poor and needy, so all went well. “Is that not what it is to know me?” declares the Lord. Jeremiah 22:16 (NIV)

“For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.” Then the righteous will answer him, “Lord, when did we see you hungry and feed you, or thirsty and gave you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?” The King will reply “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.” Matthew 25:35-40(NIV)

Tom said further: “God and Jesus make it clear how important it is to help the poor. It seems to be very personal to them. God says “Is that not what it is to know me?” Jesus is saying when you help the poor, it is just like helping me. Wow! This is very important and should be a high priority for those who follow Christ. It is the heart of God and Jesus.”

God rewards those who help the poor.

“Is not this the kind of fasting I have chosen: to loose the chains of injustice and untie the cords of the yoke? Is it not to share your food with the hungry and to provide the poor wanderer with shelter- when you see the naked, to clothe them, and not turn away from your own flesh and blood? Then your light will break forth like the dawn, and your healing will quickly appear; then your righteousness will go before you, and the glory of the Lord will be your rear guard. Then you will call, and the Lord will answer; you will cry for help, and he will say Here am I.” Isaiah 58:6-9 (NIV)

Whoever is kind to the poor lends to the Lord, and he will reward them for what they have done. Proverbs 19:17 (NIV)

Those who give to the poor will lack nothing, but those who close their eyes to them receive many curses. Proverbs 28:27 (NIV)

The generous will themselves be blessed, for they share their food with the poor.Proverbs 22:9 (NIV)

Finally, Tom says: “It seems clear that the Lord will reward those who help the poor. Isaiah talks about all the good things that will happen to us when we help. Proverbs talks about even more good things that will happen to us. We should always look to help the poor in whatever way we can because it is the heart of The Lord. That alone is a good enough reason to do so and that should be our sole motive. However, isn't it also good that God rewards those who show love by helping the poor?”

CLOSING OBSERVATIONS

On August 28, 1963, I was a very young lawyer in Tuscaloosa, just out of law school, when Dr. Martin Luther King, Jr. delivered his “I Have a Dream” speech at the Lincoln Memorial in Washington D.C. His powerful and badly needed speech will go down in history as a turning point in the civil rights movement in America. Its importance at the time it was delivered cannot be overstated. However, there is a present and urgent need for its content and direction in the turbulent times we live in today. For those reasons, I am setting Dr. King's speech out below in its entirety. All Americans should read it, and when they do it will have a profound and hopefully lasting impact on them. It has on me!

Martin Luther King, Jr.
I Have a Dream

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we've come here today to dramatize a shameful condition.

In a sense we've come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God's children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. And those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. And there will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.

The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. And they have come to realize that their freedom is inextricably bound to our freedom.

We cannot walk alone.

And as we walk, we must make the pledge that we shall always march ahead.

We cannot turn back.

There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their self-hood and robbed of their dignity by signs stating: “For Whites Only.” We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until “justice rolls down like waters, and righteousness like a mighty stream.”

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. And some of you have come from areas where your quest – quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed.

Let us not wallow in the valley of despair, I say to you today, my friends.

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” – one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

This is our hope, and this is the faith that I go back to the South with.

With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

And this will be the day – this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the Pilgrim's pride, From every mountainside, let freedom ring!

And if America is to be a great nation, this must become true.
And so let freedom ring from the prodigious hilltops of New Hampshire.
Let freedom ring from the mighty mountains of New York.
Let freedom ring from the heightening Alleghenies of Pennsylvania.
Let freedom ring from the snow-capped Rockies of Colorado.
Let freedom ring from the curvaceous slopes of California.

But not only that:
Let freedom ring from Stone Mountain of Georgia.
Let freedom ring from Lookout Mountain of Tennessee.
Let freedom ring from every hill and molehill of Mississippi.
From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!
Thank God Almighty, we are free at last!

I truly believe that if Dr. King was living today, he would be out front leading nationwide peaceful protests against the systemic racism that has been around in America for far too long. His would be an effective voice and a force for permanent change in America. Hopefully, Dr. King's words will inspire all of us to help bring about that change. It's definitely time for Dr. King's Dream to become a reality in America.

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

I have been asked on more than one occasion why I haven't already retired and I have no difficulty in responding. I am a trial lawyer, representing people who, because of corporate wrongdoing, have been hurt or who have lost a loved one and deserve justice. I have never had the urge to retire, and don't intend to do so now, and that's because there is much more to do.

As long as there is rampant greed in the board rooms of large and powerful companies, the civil justice system and trial lawyers will be needed. All too often I, along with other lawyers at Beasley Allen, have seen tragic consequences caused by the combination of corporate greed and weak and ineffective governmental regulation.

A classic example involves Johnson & Johnson and its talc products that cause ovarian cancer. Another example involves the companies that have made and sold the dangerous and highly addictive opioid products in a gross and cruel manner. Millions of Americans have become addicted to the pain killers and have suffered untold misery.

I watched a segment on CBS' 60 Minutes on Sunday, June 20. No lawyer at Beasley Allen who saw the show was shocked at how a pharmaceutical company intentionally bribed doctors to prescribe highly dangerous and addictive drugs. However, I suspect most lay persons, and even lawyers who don't handle mass torts litigation against the pharmaceutical industry, who saw the show, were shocked at the revelations of corporate greed, wrongdoing and even criminal activity, in the 60 Minutes show.

We at Beasley Allen have seen this sort of thing in various forms in a huge number of cases over the past 40 years. The company in the CBS show, Cephalon, had intentionally, and without fear of being caught, violated FDA regulations and criminal laws. The Department of Justice (DOJ) did a tremendous job in their investigation and both the company and its top officials were prosecuted criminally. However, the DOJ did a job that the FDA should have done.

I simply can't stop doing what I am doing at Beasley Allen so long as there are companies like Johnson & Johnson and Cephalon operating with no concern for the health and welfare of people and with regulatory agencies in government not doing their required job of regulation. I will say without reservation that the drug industry isn't the only industry that operates in the manner described above. I could write a lengthy book on the subject of corporate greed and corruption. But for now, I will confine my efforts to the courtrooms of America. The courts and trial lawyers are the only forces that are actually doing the job of regulation and protecting the public from a safety perspective.

God has given me the ability and desire to work as a trial lawyer and to help folks who need help and protection from greedy corporations. I am eternally thankful for having had this opportunity.