The Jere Beasley Report April : 2020

View Archive Subscribe

CAPITOL OBSERVATIONS

The U.S. Judicial System Adjusts During The Coronavirus Pandemic

In an attempt to slow the spread of the coronavirus, across the U.S. entire school districts have shut down, church gatherings have been halted, concerts and festivals have been postponed, and consumers have gone in frantic search for items some essential and some not. The crisis has also required the judicial system to adjust. Trials have been continued, and face-to-face hearings and depositions have either been postponed or handled offsite. Federal and state courts across the country are restricting access and altering their procedures in an effort to flatten the trajectory of COVID-19. However, the judicial system is still operating and that is critically important to the American people.

On the federal level, the U.S. Supreme Court is closed to tourists but the building remains open for official business. As for business, oral arguments have been postponed. The Federal Circuit Court of Appeals will hold no in-person hearings and called for all cases scheduled for argument during April 2020 to be conducted remotely.

Most circuit courts across the country are also restricting access to their courthouses, and have postponed, suspended or canceled in-person oral arguments. The Eleventh Circuit Court of Appeals has canceled its judicial conference, which was scheduled for May 6-9 in Atlanta.

Concerns over coronavirus spread prompted the Supreme Court of New York to push back the start of that state’s highly anticipated opioid trial, which was set to begin March 20.

Closer to home, in the Middle District of Alabama, with districts located in Dothan, Montgomery and Opelika, juror summoning for civil and criminal jury trials has been canceled for 30 days as of March 17. Jury trials, trial-specific deadlines, and grand jury proceedings scheduled during that time period are also postponed for 30 days. Proceedings with magistrate judges will continue remotely and any that cannot will be coordinated with the duty magistrate. The court also holds the discretion to make case-by-case exceptions to the procedures for nonjury matters.

The Middle District of Georgia will not hold jury trials for 60 days with the exception of Grand Juries. The Georgia Supreme Court is suspending filing deadlines through April 13, but lawyers are encouraged to file briefs and other documents where practical.

Law offices across the country are also conducting work remotely, including a number of persons in the Beasley Allen workforce. Our goal at Beasley Allen is to support our lawyers and employees and their families and to put their interests first and foremost. We will also continue to work for our clients and make sure their cases don’t suffer. We fully intend to see that our clients’ cases are not neglected. Thus far we have things under control.

Sources: Law360.com and Law.com

UPDATE ON THE BOEING LITIGATION

Ethiopian Investigators Release Preliminary Report Of MAX Crash

Boeing, specifically its dangerous design of the 737 MAX and the lack of adequate training provided pilots, is to blame for the crash of Ethiopian Airlines flight 302 in March 2019, according to Ethiopian investigators. The Federal Democratic Republic of Ethiopia Ministry of Transport Aircraft Accident Investigation Bureau published a preliminary report of its year-long investigation of the crash, although the agency noted that its investigation continues, and it will issue a final report at the close of the investigation.

The planes have been grounded since the Ethiopian crash. It was the second of two deadly crashes. The first crash, Lion Air flight 610, it has been discovered, suffered similar problems that caused a parallel sequence of events that led to the deadly outcome of both flights.

The Ethiopian investigators’ preliminary report was issued last month – a day before the first anniversary of the tragic crash that claimed all 157 lives on board. The investigators’ report noted “[t]here were no known technical problems before departure.” It also noted that the weight and balance of the aircraft were within operating limits and that “takeoff roll and lift-off was normal, including normal values of left and right angle-of-attack (AOA).”

The problem began shortly after lift-off when the left and right AOA data began to differ. The faulty readings erroneously activated the MCAS, which was a new feature of the aircraft’s flight control system. The MCAS was incorporated into the newest 737 design to address aerodynamic problems created by changes in the aircraft’s design – heavier engines moved closer to the aircraft’s nose. Those changes could push the aircraft’s nose too high, causing it to stall. The MCAS was incorporated to help push the nose back down in those instances. However, conditions that triggered the malfunction or the uncommanded nose-down scenario were never properly tested or addressed before the MAX was approved for service, the report explained. Further, the MCAS was designed to be hidden and separate from the autopilot system. Pilots were never made aware of the system, contributing to their difficulty in handling the challenges it created during the flight.

The Ethiopian report explained that the MCAS activated four times during the short flight. The pilots, just like those operating the doomed Lion Air flight, began a tug-of-war with the MCAS trying to regain control of the plane. Through a flood of alerts and warnings triggered by the uncommanded aircraft nose-down scenario, the pilots initially followed Boeing’s protocol for handling such an MCAS occurrence. They turned off the system but could not slow the plane’s speed, which was necessary for the next step in the protocol – manually trim the stabilizer. Manually trimming the stabilizer required the pilots to turn a wheel that would change the position of the tail stabilizer, allowing the nose to point up once again without reactivating the MCAS. According to the report, the speed placed too much pressure on the wheel, making it nearly impossible for one person to operate it correctly. Since the crew couldn’t get the aircraft to climb by using the manual trim procedure, they were forced to turn the system back on again. They were still unable to regain control of the plane before it crashed.

The investigators reported that in the last MCAS activation “the pitch angle dropped from 0.5 degrees to -7.8 degrees and the descent rate increased from -100 ft/min to -5,000 ft/min.” Further, it said that “despite recorded forces of up to 180 lbs., the pitch continued decreasing” while “[t]he descent rate and the airspeed continued increasing.”

These preliminary findings echo those of other inquiries involving both the Ethiopian Airlines and the Lion Air crashes. The Indonesian National Transportation Safety Committee and the National Transportation Safety Board (NTSB) issued similar findings last fall after the Lion Air crash investigation. At that time, the NTSB issued seven safety recommendations regarding its findings throughout the investigations of the crashes as it worked with the governments of Indonesia and Ethiopia. In addition to their recommendations, Ethiopian investigators adopted the NTSB’s recommendation ASR-19-10. The recommendation addresses improved MAX pilot training to accurately recognize and respond to flight deck alerts and indications, as well as improve training to “minimize the potential for and safety impact of pilot actions that are inconsistent with manufacturer assumptions.”

Additional recommendations from Ethiopian investigators include:

  1. The design of MCAS should consider the use of data from both AOA and/or other independent systems for redundancy.
  2. The regulator shall confirm all probable causes of failure have been considered during functional hazard assessment.
  3. The manufacturer shall insure sic the minimum operational speed computed by the SMYD to be within logical value. There should also be logic to validate the computation.
  4. The difference training should also include simulator sessions to familiarize with normal and non-normal MCAS operation. The Training simulators need to be capable of simulating AOA failure scenarios.
  5. The manufacture should confirm the AOA DISAGREE alert is functional whether the optional angle of attack indicator is installed or not.

Days before Ethiopian investigators published their interim report, the U.S. House Committee on Transportation and Infrastructure also published preliminary findings from its investigation. The report faulted both Boeing and the Federal Aviation Administration (FAA) for green-lighting such a dangerously designed aircraft. The committee’s initial findings centered on five themes.

  1. Production pressures. The report authors explain “[t]here was tremendous financial pressure on Boeing and subsequently the 737 MAX program to compete with Airbus’ A320neo aircraft.” This pressure led to, among other things, cutting corners to reduce costs.
  2. Faulty assumptions. The manufacturer made “fundamentally faulty assumptions about critical technologies” for the aircraft and allowed those technologies, including the MCAS, to proceed to market “[b]ased on incorrect assumptions.”
  3. Culture of concealment. The findings revealed that “[i]n several critical instances, Boeing withheld crucial information from the FAA and customers
  4. Conflicted Representation. The committee discovered that under its current structure, “[t]he FAA failed in its oversight responsibilities to ensure the safety of the traveling public.”
  5. Boeing’s influence over the FAA’s oversight. The committee noted there were documented examples “where the FAA management overruled the determination of the FAA’s own technical experts at the behest of Boeing.”

Further, the committee noted that weeks after the Lion Air crash Boeing defended itself and the MAX development and approval process saying numerous times there was “no process violation or non-compliance” with the approval process. However, because of the problems identified by the committee and other investigative agencies, the committee explained that this “points to a critical need for legislative and regulatory reforms.”

The committee is chaired by Congressman Peter Defazio (D-Oregon). He had this to say about this work:

Our search for answers continues on their behalf and for everyone who boards an airplane. The public deserves peace of mind that safety is always the top priority for everyone who has a role in our aviation system.

Committee co-chair Congressman Rick Larsen (D-Washington) added these comments:

The Committee’s preliminary investigative findings, combined with the findings and recommendations from the Lion Air investigation, National Transportation Safety Board, Joint Authorities Technical Review and other entities, makes it abundantly clear Congress must change the method by which the FAA certifies aircraft.

The Congressmen have announced plans to introduce legislation that “will address failures in the certification process uncovered by the Committee’s investigation.”

Beasley Allen lawyers, led by Mike Andrews, in our Personal Injury & Products Liability Section filed a number of lawsuits for families of victims of the Ethiopian Airlines crash. Mike focuses much of his practice on aviation litigation. He is leading the team representing a number of families in this litigation. Currently, Mike is also investigating other potential cases. He visited the crash site and surrounding areas several times last year and was overwhelmed at the carnage left behind after Flight 302 hurled itself and passengers 30 feet into the earth.

If you would like to have more information on the Boeing litigation, or any other aspect of aviation litigation, contact Mike at 800-898-2034 or by email at Mike.Andrews@beasleyallen.com. Mike also has written a book on litigating aviation cases to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.

Sources: Ethiopian Government (The Federal Democratic Republic of Ethiopia Ministry of Transport Aircraft Accident Investigation Bureau), National Transportation Safety Board, House Committee on Transportation & Infrastructure

AN UPDATE ON THE TALC LITIGATION

Year-Long Study By FDA Finds Cancer-Causing Asbestos In 20% Of Samples Tested

The Food and Drug Administration (FDA) has released the compiled results of a year-long study of talc-containing cosmetic products, finding that roughly 20% of the samples contained asbestos. The well-known carcinogen was found in samples of Johnson’s Baby Powder, as well as eight different types of makeup sold by the retailers City Color and Claire’s.

The FDA issued voluntary recalls of the affected batches of those products in 2019 and has announced continued random testing of products containing talcum. Susan Mayne, director of the Center for Food Safety and Nutrition at the FDA, said there is no dispute that asbestos can cause cancer (mesothelioma, lung, larynx and ovary). The International Agency for Research on Cancer (IARC) has long classified this naturally occurring mineral as a Group 1 carcinogen, in the same group as tobacco smoke, human papillomavirus, plutonium and acid mists.

As we reported, the FDA held a public hearing in February on proposed federal requirements that would standardize technology, methodologies, terms and characteristics for testing cosmetic talc and defining asbestos. Leigh O’Dell, a Beasley Allen lawyer who is heavily involved in the Talc Litigation, said at the hearing:

It’s extremely important for the public, regulatory agencies and manufacturers to acknowledge that asbestos and talc are natural minerals that are intertwined geologically, are mined together and cannot be separated with any degree of safety and certainty. But we should also not lose sight of the fact that even the absence of asbestos does not make products such as Johnson’s Baby Powder safe. Scientific research makes clear that each of these particulate materials has similar pathological outcomes on human tissue, so the FDA’s proposal views any distinction between them as irrelevant. That’s why it’s so important that the definition of asbestos should be broadened to include fibrous talc, which is equally dangerous.

In some cases, corporate and third-party laboratories are using outdated imaging technology and techniques that are incapable of effectively detecting the minute fibers of asbestos and similar carcinogens found in cosmetic talc. Those include fibrous talc – with similar, needlelike structures to asbestos – and platy talc, a layered form of the mineral.

Many other ingredients contained in products such as Johnson’s Baby Powder are known or suspected carcinogens, as designated by the IARC, including several heavy metals, including cobalt, cadmium, chromium, arsenic and nickel.

Some of these substances are known genotoxins, which can damage the genetic information within a cell, causing mutations. In addition, they are known to cause inflammation, which experts have long believed plays a role in the development of cancer. Leigh made these comments recently in a media interview:

The science linking talcum powder use to cancer has never been clearer. As a result of these findings and testimony at the recent hearing, we hope the FDA will follow through on their recommendations by requiring consistent, standardized and sensitive methods to test talc-based consumer products, rather than continue to rely on the outdated protocols and self-policing of the past.

Hopefully, the federal government, including the FDA and Congress will respond to this health crisis and take all steps necessary to protect consumers.

Talc Update – Fulton County, Georgia – Brower Retrial Reset

The Beasley Allen Litigation Team is continuing to prepare for the retrial of the Brower case we tried last fall in Fulton County, Georgia. This retrial was supposed to begin the first week of April; however, due to the coronavirus national emergency, the trial has been delayed. Court systems throughout the country, including the Fulton County Court System, have either cancelled or stayed all litigation proceedings that involve large groups of people meeting, including all jury trials. Currently, Fulton County is planning on at least a 30-day break from all jury trials. This break is expected to extend through at least April 13, and could potentially be longer based on an evaluation of the situation at that time. Beasley Allen lawyers are continuing to work on pretrial issues related to this case and stand ready to begin this trial as soon as possible.

In other venues, the Beasley Allen team is still working hard on preparing for the Cadagin case in East St. Louis, Illinois. It too has been continued from a May 4, 2020, trial date – we are awaiting word on when it will be reset.

The talc team also continues to prepare for an additional summer trial – this one in Philadelphia, Pennsylvania. The Frye hearings in this case took place at the end of February, and we are awaiting the judge’s rulings on these experts. Frye hearings allow a Pennsylvania judge to hear the qualifications of the expert witnesses who have been designated to testify at trial and determine whether they are qualified under the Pennsylvania standards. Pending favorable rulings from the judge on Plaintiff’s expert witnesses, this trial remains on schedule to begin in mid-June.

The Beasley Allen Talc Litigation Team is continuing to work on this litigation. There are new cases coming in constantly. We are making every effort to get trials set for the fall and winter of 2020, with potential trials in St. Louis in the fall and possibly in Miami, Florida, at the end of the year. We are looking forward to representing all of our clients in these upcoming trials. For additional information on these cases, contact Ted Meadows, Leigh O’Dell or Brittany Scott at 800-898-2034 or by email at Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com or Brittany.Scott@beasleyallen.com.

Expert Testifies He Found Asbestos In Clubman Talc

The mines where Clubman talcum powder gets its talc and bottles of the product itself all contain asbestos fibers, an electron microscope expert told a New Jersey jury on March 10. This testimony came in a case being tried on behalf of a hairdresser and a longtime barbershop patron who say the product gave them cancer.

During the second day of testimony in the trial before New Jersey Superior Court Judge Ana Viscomi, Plaintiffs Margaret Lashley and Dwayne Johnson called to the stand microscopy expert Steven Compton of MVA Scientific Consultants. The Plaintiffs say they have mesothelioma because of American International Industries (AII), which bought the Clubman brand in 1987.

Compton testified that his lab had used transmission electron microscopy – the most sensitive type of microscope, capable of magnifying objects by 1 million times – to evaluate a number of talc samples, where he found asbestos. That talc came from the Italian and Montana mines where Clubman sourced its supplies, from Clubman bottles owned by Ms. Lashley and a brush she used to apply the powder to customers during her four decades as a hairdresser.

Compton told the jury that eight out of 10 samples of the Italian talc contained asbestos fibers, as did six out of 53 samples from the Montana talc and all four samples of the Clubman talc taken from Ms. Lashley’s bottles and brush. Compton said that because each sample is less than a billionth of a full bottle of talc, finding even one or two fibers in a particular sample indicates there could be millions of asbestos fibers per gram in the whole bottle.

Before stating his results, Compton had explained his testing methods for the jury. He said his lab first looked at the shape and size of possible asbestos structures before assessing their chemical composition and crystal structure to ensure they are actually asbestos, and not other minerals that could be in a similar shape or have similar chemical components.

The jury was told that Plaintiff Dwayne Johnson was exposed to Clubman talc after roughly four decades of visits to the barbershop. He was not a customer of Lashley’s hair salon.

AII, the manufacturer, no longer makes and sells Clubman talcum powder, having switched to selling a Clubman brand cornstarch powder in 2017.

The trial is part of the wave of litigation that has hit larger talc makers like Johnson & Johnson and Colgate-Palmolive and is now spreading to smaller producers like AII, which has roughly 1,000 employees.

The last talc trial held before Judge Ana Viscomi ended with a jury returning a punitive damages award of $750 million against J&J. Those damages, won by several mesothelioma victims, were reduced by Judge Viscomi to $186 million due to a state cap on punitive damages.

A separate jury in the case had found that J&J’s talcum powder contained asbestos and caused the Plaintiffs’ cancers, awarding them $37.3 million in compensatory damages last year.

Source: Law360.com

AN UPDATE ON THE OPIOID LITIGATION

Ohio Governor And Attorney General Unveil Opioid Settlement Framework

Ohio’s governor, attorney general and local governments across the state have agreed to work together as a unified front to negotiate settlements with drug companies that fueled an epidemic of painkiller addiction. Gov. Mike DeWine and Attorney General Dave Yost said on March 11 that 73 of the state’s 88 county governments, which represent 85% of the state’s population, agreed to work with them to pursue settlements through a plan labeled “One Ohio.”

Under the plan, 55% of any settlements reached would go toward a state foundation that would fund local projects to address the crisis while 30% would be sent directly to 2,000 counties, townships, villages and cities for community recovery. The remaining 15% would support state efforts to fund prevention and recovery support services. Gov. DeWine said in a statement:

It’s a simple concept, but when we are united, we are stronger. One Ohio puts us in the best position to face the drug companies [that] did so much to destroy lives and communities when they got Ohioans hooked on their highly addictive products. No plan is perfect, but One Ohio allows us to achieve our primary goals of a common purpose, local control, and a visionary statewide foundation to help combat the drug crisis for years to come.

As envisioned, the multitiered approach is intended to spread out settlement funds to ensure their preservation as the crisis evolves. Governor DeWine said in a letter to local government leaders in February that the unified approach wasn’t a call for them to stop pursuing their individual lawsuits, but a way to achieve a “swift resolution” across the state.

Local government officials across the state have lined up to support the plan. So far, major drug companies have come to the table to resolve lawsuits. In October, four attorneys general unveiled a proposed $48 billion settlement with major drug companies and the nation’s largest drug distributor.

U.S. District Judge Dan Aaron Polster, the Ohio federal judge overseeing the litigation centralized in Cleveland, came up with the novel mechanism to help more than 30,000 local governments pursue settlements with pharmaceutical companies accused of fueling the opioid crisis.

In an attempt to undo Judge Polster’s plan for settling what’s likely the most procedurally complex litigation in recent U.S. history, attorneys general recently told the Sixth Circuit that letting local governments strike global settlements with drug companies subverts state authority. By letting political subdivisions settle claims they lack state-law authority to litigate, “the district court has created an alternative to state government,” a coalition of state attorneys general told the appeals court in February.

But the leaders of the Plaintiffs’ Executive Committee, Paul T. Farrell Jr. of Farrell Law, Paul J. Hanly Jr. of Simmons Hanly Conroy and Joe Rice of Motley Rice LLC, said in a joint statement that the One Ohio plan is the best way for states to proceed. They said:

We commend the successful efforts of towns and cities around the state to finalize One Ohio. Today is a milestone moment for all Ohio communities that continue to face the devastating consequences of the opioid crisis. The agreement reached today will ensure the transparent, effective distribution of opioid recovery resources once drug manufacturers, distributors, and pharmacies begin paying their fair share for their role in fueling the epidemic.

We will continue to work hard on the Opioid Litigation and will keep our readers up to date on all that is going on.

Source: Law360.com

Coronavirus Halts New York Opioid Trial

The highly anticipated trial pitting New York Attorney General Letitia James against major drug companies accused of destroying communities by recklessly selling opioid painkillers has been continued because of coronavirus concerns.
New York Supreme Court Justice Jerry Garguilo postponed the trial, previously set to start March 20, at the direction of Chief Administrative Judge Lawrence K. Marks. A status conference was scheduled for April 14 to see if the trial can begin around that time.

The trial was “postponed indefinitely” on March 10 because of efforts to contain the coronavirus, which at that time had infected at least 142 people in New York, according to the office of Governor Andrew Cuomo. Since then the effects of the virus have become much worse nationwide and especially in New York City.

Fabien Levy, spokesperson for Attorney General James, said that the coronavirus is “the sole reason” for the postponement, “not Defendants’ attempts to roll this back because they want to delay, delay, delay.” In a written order, Deputy Chief Administrative Judge Vito C. Caruso, citing a directive from Judge Marks and consultation with Justice Garguilo, called for the trial to be adjourned.

The trial is expected to test assertions from New York and two Long Island counties against major drug manufacturers and distributors. After a state appeals court refused to delay the trial for procedural reasons, Attorney General James vowed that “the deadly scheme perpetrated by these companies will be presented in open court and laid bare before the American people.”

Although states and local governments have filed thousands of cases blaming drug companies for the opioid crisis, only one case has gone to trial. That trial saw Oklahoma’s attorney general win a $465 million judgment against Johnson & Johnson.

The imminence of New York’s trial is seen as adding urgency to efforts to broker settlements, potentially on a nationwide scale. Hopefully, the trial will be able to commence this month and if not very soon. Defendants in the New York case include divisions of J&J, Endo Pharmaceuticals, Teva Pharmaceuticals, Allergan Inc., McKesson Corp., Cardinal Health Inc., AmerisourceBergen Drug Corp. and Rochester Drug Cooperative Inc.

Source: Law360.com

New York Attorney General Supports Mallinckrodt $1.6 Billion Opioid Settlement

Drugmaker Mallinckrodt said last month that its $1.6 billion settlement of the opioid litigation brought by state and local governments is one step closer to complete now that New York Attorney General Letitia James has thrown her support behind the settlement. New York was the latest to join 47 other states and territories in backing the Feb. 25 settlement to resolve claims that Mallinckrodt helped fuel an epidemic of painkiller addiction.

Mallinckrodt’s $1.6 billion settlement, which will resolve all the cases against it, is the latest instance of an opioid manufacturer settling cases in the sprawling federal opioid litigation.

State attorneys general from Texas to North Carolina and California lined up behind the settlement in which Mallinckrodt would pay $1.6 billion over eight years under the settlement reached in principle with the Plaintiffs’ Executive Committee that represents local governments in the litigation. It’s widely expected that the imminence of New York’s trial is adding urgency to efforts to broker settlements, potentially on a nationwide scale. Defendants in the New York case include divisions of Johnson & Johnson, Endo Pharmaceuticals, Teva Pharmaceuticals, Allergan Inc., McKesson Corp., Cardinal Health Inc., AmerisourceBergen Drug Corp. and Rochester Drug Cooperative Inc.

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

Purdue Seeks To Extend Injunction

Bankrupt opioid maker Purdue Pharma LP last month asked a New York judge to extend a preliminary injunction enacted in its Chapter 11 case that paused thousands of legal actions against the company for its role in the national opioid crisis.

In its motion, Purdue said it is only asking for the same protection every other Chapter 11 debtor receives automatically when it files for bankruptcy through the automatic stay of litigation. In the motion, it was claimed that the break from prosecution of the claims against it is the only way Perdue will be able to continue working toward a confirmable plan of reorganization.

The bankruptcy judge overseeing the proceedings approved the preliminary injunction in October during the opening weeks of its Chapter 11 case, protecting Purdue as well as its owners, the Sackler family, from facing the thousands of suits against them. That injunction is set to expire April 8, according to the motion.

The motion seeks a 180-day extension of the injunction so Purdue can continue its efforts to work with key stakeholders to the bankruptcy as it pursues a Chapter 11 plan. Purdue argued that the progress already made – including the consensual appointment of a mediation team to aid in plan negotiations – was made possible only through the approval of the injunction at the beginning of the case.

The request for relief has the support of the official committee of unsecured creditors in the case, and Purdue has included an option for state governments to opt out of the voluntary injunction after July 8 if they wish to pursue an appeal of the injunction order, according to the motion.

Purdue filed for Chapter 11 protection along with more than a dozen affiliates on Sept. 15. Shortly before filing, the company reached a tentative settlement with states in which roughly 2,000 suits would be dropped in exchange for the Sacklers giving up their stake in the company, selling off their ownership in other pharmaceutical companies and turning at least $3 billion of the proceeds over to the estate.

Under the proposed settlement, the company would become a public beneficiary trust owned by the Plaintiffs of the individual and government suits against the company and would continue marketing and selling its products, including OxyContin, with the profits going toward addressing the opioid crisis.

The non-consenting states are represented by Andrew M. Troop, Andrew V. Alfano and Jason S. Sharp of Pillsbury Winthrop Shaw Pittman LLP. The unsecured creditors are represented by Ira Dizengoff, Arik Preis, Sara Brauner and Mitchell Hurley of Akin Gump Strauss Hauer & Feld LLP. The case is In re: Purdue Pharma LP, case number 19-bk-23649, in the U.S. Bankruptcy Court for the Southern District of New York.

Source: Law360.com

Opioid Judge Selects Harvard Professor To Guide “Opioids” Fee Fight

The Ohio federal judge overseeing multidistrict litigation (MDL) over the opioid epidemic has tasked a Harvard Law School professor with helping the court navigate “novel” legal issues about how to compensate attorneys, some of whom say their payday could amount to more than $3.3 billion.

U.S. District Judge Dan Aaron Polster said in a notice that William B. Rubenstein, who previously worked on the multimillion-dollar NFL concussion settlement and subsequent fee fight, is best positioned to help navigate the debate over how much attorneys will be able to take home after the dust settles on a wave of opioid-crisis lawsuits.

Professor Rubenstein will assist with navigating both the Plaintiffs’ request to establish a common benefit fund and attorney fees generally, Judge Posler said, adding that the pleadings “raise complex and novel fee issues,” as several parties and non-parties oppose the motion for the common benefit. Judge Posler said:

Professor Rubenstein has written extensively about attorney’s fees issues in complex litigation, including common benefit fees. The court has accordingly asked Professor Rubenstein to assist with questions posed both by the present motion and attorney’s fees generally, as these may arise.

The idea of a common benefit fund, which would set a 7% fee against a global settlement, has come under fire in recent months. Opioid manufacturers and distributors – including Johnson & Johnson and McKesson Corp. – opposed the proposal in February, saying it was nothing more than a “transparent” attempt by lawyers on the Plaintiffs’ Executive Committee to grab settlement funds.

Approving the proposal would favor the lawyers over the parties in the litigation, even their own clients, the companies said. After four attorneys general in October unveiled a proposed $48 billion deal with major drug companies and the nation’s largest drug distributor, drug companies said 7% of the settlement would amount to more than $3.3 billion in fees. “The [plaintiffs executive committee] seeks to grab a piece of every opioid-related resolution across the country, including settlements with the state attorneys general and of the many other actions brought in state court,” the companies said in a memo to the court in February.

A group of 37 attorneys general have also argued that the fee request could irreparably disrupt progress made toward reaching a large national settlement by only applying to certain parts of settlements reached by attorneys general as well as to state court actions that are beyond the district court’s jurisdiction, violating state sovereignty.

As we have reported, another part of the settlement that has come under mounting scrutiny is Judge Polster’s certification of the negotiation class, a novel mechanism designed to help more than 30,000 local governments pursue deals with pharmaceutical companies accused of fueling the opioid crisis.

Professor Rubenstein was among the first to suggest the negotiation class as a way of breaking down 13 sets of national Defendants based on legal claims and then crafting settlements with individual drug companies and binding Plaintiffs to a structured settlement before the terms are negotiated.

As envisioned, any settlement would be put to a vote and require approval by 75% of voting governments. A group of states opposed that idea in February, saying only they, not cities and counties, can sue on behalf of their citizens. By letting those political subdivisions settle claims they lack state-law authority to litigate, Judge Polster created an “alternative to state government,” the coalition of states argued.

Professor Rubenstein says he has been working with the court on the case for the past two years, but has not commented about his role in the litigation. 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.

Purdue Could Profit From The Problem It Helped To Create

Pharmaceutical giant Purdue Pharma LP, as we all know, has been confronted with a large number of federal and state lawsuits as a result of it fueling the opioid crisis by downplaying the risks of addiction to its painkiller OxyContin. The company and its owners, the Sackler family, previously reached an agreement to settle roughly 2,000 opioid suits brought by local governments, states and tribes, with the Sacklers agreeing to pay $3 billion out of their own pockets.

Last September, as part of the tentative settlement, Purdue filed for bankruptcy and will be restructured as a public benefit trust from which OxyContin profits will be sent to states and local governments. In December 2019, the U.S. bankruptcy judge approved $46 million in bonus payments after Purdue agreed with its unsecured creditors committee to take $10 million off its initial request. Then, the bankruptcy judge approved a $1.3 million bonus for Purdue’s CEO, explaining that the amount was essentially industry standard.

Now, Purdue seeks the bankruptcy court’s approval to begin developing an injectable treatment to reverse overdoses of fentanyl and other opioids. Purdue told the court that “time is of the essence” in order to address the opioid public health crisis that it “allegedly” helped create. It claims that court authorization of a development agreement between its affiliate Greenfield Bioventures LP and an unnamed specialty pharmaceutical company “is in the best interest of the debtors and all stakeholders.”

Purdue asserts that nalmefene hydrochloride is much more potent and longer lasting than naloxone, the routine opioid reversal treatment. As a result, Purdue has been developing an injectable form of the drug. Purdue said:

The debtors are not suggesting that nalmefene should be a replacement for naloxone… Rather, the debtors view nalmefene as a valuable addition to the existing collection of opioid rescue medications that is well-suited to treating overdoses from powerful synthetic opioids.

After a review of seven other companies, an unnamed company was selected by Purdue. Concerning its selection, Purdue explained:

The technology partner was selected… because… it has the most experience in the field and a commercially proven technology, and because it was the only company with a successfully registered autoinjector device for emergency use in the United States that was available to license.

The proposed development agreement would allow licensure of intellectual property relating to nalmefene to the unnamed partner, which will in turn license rights to its “autoinjector” technology to Purdue. The company insists that any reservations creditors may have regarding its investment in public health initiatives is misplaced, promising that Purdue will continue to try to build support among creditors.

Even though Purdue did lots of bad things, we are certainly not opposed to it helping those who suffered as a result of the wrongdoing.

The case is In re: Purdue Pharma LP et al., (case number 19-23649) in the U.S. Bankruptcy Court for the Southern District of New York.

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.

PURELY POLITICAL NEWS & VIEWS

The political Scene In Alabama

The candidates who face run-offs in Alabama should put their campaigns on hold for a few weeks. Because the people of Alabama are facing the most serious health crises they have ever faced, this is no time for politics. We must all join – regardless of political leanings – and work together for the common good. The health, safety and well-being of people clearly override any political agenda. Politics in America can wait until things in the nation are back to somewhat normal. That will likely take months. But however long it takes, politics must take a backseat to the welfare and safety of people adversely affected by the pandemic.

LEGISLATIVE HAPPENINGS

Alabama Legislature Affected By Coronavirus Pandemic

When the 2020 Alabama legislative session began, no one could have imagined the impact the coronavirus would have on our country or our state. Since the first reported case in Alabama on March 13, the number of those infected with coronavirus causing COVID-19 has continued to multiply.

Even before Alabama confirmed its first case, the Legislature took proactive action and passed $5 million in emergency funding for testing kits and mitigation efforts. The federal government is expected to send up to $10 million more for state-level coronavirus-related actions.

In an effort to curb the spread of the coronavirus, Gov. Kay Ivey and the Alabama Department of Public Health on March 19 issued a statewide health order to help contain the spread of COVID-19. The order calls for the following through April 5:

  • All gatherings of 25 people or more are prohibited.
  • All restaurants, bars and similar establishments are prohibited from on-premises consumption of food or drink. Take-out and delivery services were encouraged.
  • All beaches – public and private – are closed.
  • All childcare centers are closed (except those workplace-run daycares serving essential workers like health care workers).
  • All hospitals and nursing homes/long-term care facilities must prohibit all visitors.
  • All elective dental and medical procedures are delayed.

Gov. Ivey also pushed the primary runoff election to July 14. And, as of March 20, Alabama became one of 20 legislatures in the country to postpone or suspend its legislative sessions. The Regular Session is scheduled to reconvene March 31, but it remains to be seen if that date holds. As this issue was headed to the printer, I don’t see the House and Senate staying in session at that time.

It could be weeks before the financial toll of the closures and social distancing are known, Rep. Steve Clouse, R-Ozark, chairman of the House General Fund budget committee, told the Anniston Star. How the pandemic will affect Alabama’s tax revenues and the 2021 budgets currently being drafted are anyone’s guess. Earlier this year, both the 2021 General Fund and the education budgets showed increases over current year revenues.

Finally, don’t count on the Alabama Legislature being in Montgomery and in Session in April. Hopefully, there will be time found for budgets to be passed. That has to be a priority.

Sources: National Conference of State Legislatures, Alabama Governor’s Office, Anniston Star, WBHM

CONGRESSIONAL UPDATE

Congress Must Do Its Job

Because of all of the uncertainties that currently prevail in our nation’s capital, we are not going to write on Congressional matters in this issue. There is too much happening or failing to happen in Congress because of the crisis caused by the pandemic to be timely in this issue. I will only say this is no time for political ploys or gamesmanship in Washington. The people’s interests must be kept first and foremost by both Republicans and Democrats. Hopefully, we will have a good and positive report next month on the emergency legislation passed and signed into law that will help citizens who are suffering economically because of the crisis. My prayer is for all concerned to do the right thing and that is not too much to ask.

AN UPDATE ON THE WHISTLEBLOWER LITIGATION

Guardian Elder Care To Pay $15.4 Million To Settle Overbilling Litigation

Guardian Elder Care Holdings Inc., and related companies (Guardian) have agreed to pay $15,466,278 to resolve False Claims Act (FCA) allegations that they knowingly overbilled for medically unnecessary rehabilitation therapy services. The Department of Justice (DOJ) said the FCA allegations involved overbilling Medicare and the Federal Employees Health Benefits Program from 2011 through 2017.

Guardian, which operates more than 50 nursing facilities in Pennsylvania, Ohio and West Virginia, was accused of pressuring its rehabilitation therapists to provide services to meet financial targets and maximize revenue without regard to the clinical need for the care. Some of the patients involved were receiving hospice care before death and didn’t need therapy, but the company is alleged to have pressured therapists to treat them regardless. U.S. Attorney Scott W. Brady said:

Billing federal health care programs for medically unnecessary rehabilitation services not only depletes these programs’ funds but also exploits our most vulnerable citizens. Our office will continue to aggressively pursue providers who take advantage of our seniors by putting financial gain ahead of patient care.

The settlement resolves a whistleblower lawsuit brought by two former Guardian employees under the qui tam provisions of the FCA. The FCA 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. The whistleblowers will share approximately $2.8 million of the money Guardian is returning to the government.

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, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on our website, or you may email one of the lawyers on our Whistleblower Litigation Team: Lance Gould, Larry Golston, Leslie Pescia, Paul Evans, Lauren Miles or Tyner Helms.

Source: Department of Justice News Release

United States Intervenes In False Claims Act Lawsuit Against Drug Maker Mallinckrodt

The Department of Justice (DOJ) has filed a complaint under the False Claims Act (FCA) against Mallinckrodt ARD LLC, formerly known as Mallinckrodt ARD Inc. and previously Questcor Pharmaceuticals Inc. (collectively, Mallinckrodt), in the U.S. District Court for the District of Massachusetts. The government alleges that Mallinckrodt has violated the FCA by knowingly underpaying Medicaid rebates due as a result of large increases in the price of its drug H.P. Acthar Gel (Acthar). Assistant Attorney General Jody Hunt of the Department of Justice’s Civil Division stated:

The Medicaid Rebate Statute provides an important check on rising drug prices. The Department will not hesitate to hold accountable drug companies that attempt to skirt this important protection at the expense of the Medicaid program, which helps ensure that some of our most vulnerable citizens are able to receive medical care.

Pursuant to the Medicaid Drug Rebate Program, drug manufacturers must pay quarterly rebates to state Medicaid programs in exchange for Medicaid’s coverage of the manufacturers’ drugs. The mandatory rebate includes an inflationary component, which is designed to insulate the Medicaid program from drug price increases that outpace the rate of inflation. In particular, for drugs sold to Medicaid, a manufacturer must pay a rebate that is based on the drug’s price since 1990 or when it was first marketed, whichever date is later.

The government alleges that although Acthar was first marketed long before 1990, Mallinckrodt and its predecessor, Questcor, began calculating and paying rebates as if Acthar was a new drug first marketed in 2013, based on the Food and Drug Administration’s (FDA) approval of a new indication for Acthar’s use in 2010. Given that Questcor had raised Acthar’s price by more than $20,000 per unit prior to 2013, the government alleges that Questcor and later Mallinckrodt avoided paying inflationary rebates on any of those pre-2013 price increases, and has thus knowingly underpaid hundreds of millions of dollars at the expense of American taxpayers.

In failing to pay these rebates, the government alleges that Mallinckrodt knowingly avoided its obligations under the Medicaid Drug Rebate Statute despite repeated government warnings. The government alleges, for example, that the Centers for Medicare and Medicaid Services (CMS), which administers the Medicaid program at the federal level, warned Mallinckrodt on multiple occasions that it could not ignore Acthar’s pre-2013 price increases when paying Medicaid rebates for the drug. U.S. Attorney Andrew Lelling for the District of Massachusetts said in a news release:

Mallinckrodt raised the price of its drug to an extraordinary level and then allegedly cheated the Medicaid program out of hundreds of millions of dollars. The government will always target this kind of exploitation of a program designed to provide health care to vulnerable members of our society.

The Medicaid Drug Rebate Program requires drug manufacturers to pay additional rebate amounts if they increase prices beyond a certain level.

The allegations that are the subject of the government’s complaint were originally set out in a case filed under the whistleblower, or qui tam, provision of the FCA. The government case is captioned United States of America et al. ex rel. Landolt v. Mallinckrodt Pharmaceuticals Inc., No. 18-11931-PBS (D. Mass.).

The year 2020 marks the 150th anniversary of the Department of Justice. The government’s pursuit of this matter illustrates the government’s emphasis on combating health care fraud. One of the most powerful tools in this effort is the FCA. Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement can be reported to the Department of Health and Human Services, at 800‑HHS‑TIPS (800-447-8477).

This matter is being handled by the Civil Division’s Commercial Litigation Branch and the U.S. Attorney’s Office for the District of Massachusetts, with assistance from the U.S. Department of Health and Human Services Office of Inspector General.

Source: DOJ News Release

DOJ Urges U.S. Supreme Court Not To Review The FCA Dismissal Split

The U.S. Department of Justice (DOJ) urged the U.S. Supreme Court last month for the justices to avoid scrutinizing government dismissals of False Claims Act (FCA) suits over the objections of whistleblowers. The government contends that a circuit split over its powers has little practical significance. The DOJ’s pressure on the Supreme Court came in response to a petition for certiorari from whistleblower Laurence Schneider, who is accusing JPMorgan Chase Bank NA of bogus compliance certifications related to mortgages. JPMorgan Chase & Co. and Chase Home Finance LLC are also named as Defendants.

In its opposition brief, the DOJ downplayed the importance of a circuit split over how much deference courts should give to government dismissal requests. The government said in its brief:

The only difference concerns the degree of that deference. When the standards are properly applied, the slight difference between the courts’ approaches will very rarely if ever be outcome determinative.

The Schneider case has played out in the D.C. Circuit, which has granted near-total deference to government dismissal requests in FCA cases. Other courts, such as the Ninth Circuit, look for a legitimate basis for dismissal – a standard that has historically proved easy for the government to satisfy. In a separate opposition brief, JPMorgan called the deference question little more than an “academic” exercise. JPMorgan wrote:

No court of appeals has ever held that a qui tam case should be allowed to proceed despite a government decision to dismiss. The petition thus fails to present a circuit split that warrants this court’s review.

Robert L. Di Marco of Foster Walker & Di Marco PC, who represents Schneider, told Law360 that there’s clearly a circuit split and that the appeal comes down to the checks and balances of American governance. Di Marco said:

The district courts are not being given the right to do their job. The judge is not just the best seat in the house between two parties. The judge is given the task of adjudicating and that has been taken away. You have the executive branch making a determination wholesale not to investigate a matter, dismiss it and then say there’s no reason why we should question that or attempt to determine whether that dismissal is reasonable. By its very essence it becomes arbitrary when there’s been no investigation.

Schneider is a real estate investor who purchased mortgage notes from JPMorgan Chase for decades. He is attempting to disrupt the DOJ’s recent efforts to more aggressively wield its authority to dismiss whistleblower suits. The DOJ’s so-called Granston Memo, revealed in 2018, directed government lawyers to be more open to invoking their dismissal powers.

Since the memo emerged, the DOJ has sought dismissal of at least 45 whistleblower suits, including cases seeking massive payouts from corporations in the pharmaceutical, military and banking sectors. Schneider’s case was among those cases targeted for dismissal.

A D.C. Circuit panel in 2019 granted the DOJ’s requested dismissal of the Schneider case accusing JPMorgan Chase of abdicating responsible mortgage lending obligations under a post-financial crisis settlement. In doing so, it adopted a “stricter standard that effectively gives the government complete freedom to dismiss FCA cases,” Schneider said in his petition. According to Schneider, that ruling put the D.C. Circuit in conflict with the Ninth and Tenth Circuits, which take into account the government’s purpose for tossing a FCA case and the relation between that reason and dismissal. Under that test, if the government shows a valid and related purpose, the whistleblower then has to show that the government’s reasons for dismissal are arbitrary or fraudulent.

While the DOJ has had great success in dismissing FCA cases since the Granston Memo emerged, at least a couple of district courts have rejected the dismissal motions after deeming government investigations inadequate. Schneider wrote in his petition that by supporting a meaningful role for whistleblowers, those decisions reflect Congress’ intent in passing the FCA. Schneider said further:

The FCA provides that qui tam relators have all the rights of a party in intervened actions. Together, these provisions reflect a significant role for relators in enforcing the FCA that is inconsistent with the absence of any meaningful review of a government motion to dismiss a qui tam case.

Schneider is represented by Joseph A. Black and Daniel E. Cohen of The Cullen Law Firm PLLC and Robert L. Di Marco and Jennifer M. Foster of Foster Walker & Di Marco PC. The case is U.S. ex rel. Schneider et al. v. JPMorgan Chase Bank NA et al., (case number 19-678) in the Supreme Court of the United States.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

We have had a Whistleblower Litigation Team in place at Beasley Allen for a good while to handle FCA claims. This is due to our firm’s heavy involvement in the whistleblower litigation. Fraud against the federal government has been and continues to be a huge problem, involving many industries in this country. Beasley Allen lawyers Lance Gould, Larry Golston, Paul Evans, Leslie Pescia, Leon Hampton, Tyner Helms and Lauren Miles are working in this area of law known as “qui tam” cases, and make up the firm’s Whistleblower Litigation Team.

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, contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on the firm’s website ( www.beasleyallen.com).

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

PRODUCT LIABILITY AND PERSONAL INJURY LITIGATION

Lawsuit Says Baby Sleepers Poses Threat To Suffocate Infants

A class action lawsuit has been filed against Graco Children’s Products Inc. and its parent company, Newell Brands DTC, Inc., alleging that the baby sleepers they produced are dangerous. Nayonna Brezinski filed the suit Feb. 20 in the U.S. District Court for the Central District of California on behalf of herself and all others similarly situated.

The baby sleepers are sold and marketed under a variety of names, including Graco Little Lounger Rocking Seat, Duet Glide LX Baby Infant Gliding Swing and Napper/Portable Sleeper, and DreamGlider Gliding Seat and Sleeper. These “sleepers” are designed and marketed to permit babies to sleep in an inclined position. The class Plaintiffs allege that the Defendants deceived parents into believing that the product offered certain benefits and was safe, but the Defendants knew, or should have known, that the product created hazards to a sleeping baby. The class Plaintiffs alleged that the Defendants had a duty to warn about these hazards. The lawsuit specifically claims:

By positioning an infant at an incline between 10 and 30 degrees, the inclined sleepers significantly increase the risk that the infant’s head will slip into a dangerous position, tilt to constrict the windpipe and/or cause the infant’s face to become pressed against the padded fabric in the lounge and block airflow, which the infant may be unable to correct. This increases the risk of death by asphyxiation.

The American Academy of Pediatrics and other consumer groups repeatedly issued warnings about the sleeper in April 2019, the suit said. On Jan. 29, Newell Brands recalled 110,000 “Little Lounger” sleepers, according to the complaint, which seeks unspecified damages. This suit is in U.S. District Court Central District of California (case number 5:20-cv-00347). The Court will be asked to certify this case as a class action.

Source: Legalnewsline.com, Bloomberglaw.com, truthinadvertising.org

Kawasaki USA Recalls Off-Highway Utility Vehicles Due To Crash Hazard

Kawasaki Motors Manufacturing Corp. U.S.A, of Lincoln, Nebraska, has recalled about 80,000 Kawasaki MULE PRO off-highway utility vehicles. The steering shaft can develop excessive wear and affect steering control resulting in a crash hazard, posing a risk of injury or death. This recall involves recall involves 2015 through 2020 MULE PRO-FX, MULE PRO-FXR, MULE PRO-FXT and 2016 – 2020 MULE PRO-DX and MULE PRO-DXT utility vehicles.

The four wheel, off-highway utility vehicles have side-by-side seating for three to six people and automotive style controls. The vehicles are available as either gas or diesel models. The diesel models have DIESEL printed on the right and left rear of the cargo bed. The Vehicle Identification Number (VIN) is located on the steel frame between the right front lower A-arm mounts.

The company has received 453 reports of incidents of steering problems. Thus far no injuries have been reported. The vehicles were sold at Kawasaki dealers nationwide from July 2014 through January 2020 for between $12,000 and $17,000.

Consumers should immediately stop using the recalled utility vehicles and contact a Kawasaki dealer to schedule a free repair. Kawasaki says it is contacting all known purchasers directly. Kawasaki can be contacted toll-free at 866-802-9381 from 7 a.m. to 4 p.m. PT Monday through Friday or online at www.Kawasaki.com and click on “Recalls” for more information.

Source: CPSC

Exploding E-Cigarette Leaves Virginia Man With Fifth-Degree Burns

A Virginia Beach man recently suffered severe burn injuries when his e-cigarette exploded in his pants pocket. The victim reported that he was getting in his car when he heard a loud bang. Before he knew what had happened, he says the seat of his car and his leg were engulfed in flames. He quickly realized that his SnowWolf brand e-cigarette exploded in his pants pocket.

The fire was so intense that it melted the SnowWolf e-cigarette and left the victim with fifth-degree burns on his leg. Doctors had to remove skin from his other leg to repair the damage, leaving him in excruciating pain and unable to walk on his own. He has since undergone three surgeries and is scheduled to have a fourth surgery. It is likely that he will need several more procedures and therapy sessions to overcome the burn injuries. The explosion left him unable to work, with a lengthy road to recovery.

Like many people injured by vape device explosions, he was surprised by how a small consumer electronic could cause so much damage. Even more troubling was the fact it was not being used at all. A report published in BMJ Journals found that from 2015 to 2017, there were at least 2,035 explosions and burn injuries caused by e-cigarettes, vape pens, and other vape devices. The authors of the study noted that the number was likely much higher due to the difficulty of accurately tracking vape explosions. There have also been thousands of e-cigarette explosions since then, including blasts that killed a Florida man in 2018 and a Texas man in 2019.

The U.S. Food and Drug Administration (FDA), which regulates tobacco products, including vape products, says that “battery-related issues” are the source of most explosions. Vapes are powered by lithium-ion batteries, which the U.S. Fire Administration said are “not a safe source of energy for these devices.”

“The shape and construction of electronic cigarettes can make them (more likely than other products with lithium-ion batteries) to behave like ‘flaming rockets’ when a battery fails,” the Fire Administration wrote in a 2017 report about vape explosions.

Lawyers at Beasley Allen are currently 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. With few regulations to ensure their safety, e-cigarette devices have been aggressively marketed and sold in stores throughout the United States. Contact Will Sutton, a lawyer in our Toxic Torts Section, for assistance with cases you may have involving these devices, at 800-898-2034 or by email at William.Sutton@beasleyallen.com.

AN UPDATE ON THE JUUL LITIGATION

JUUL MDL Master Complaint Adds New Parties To Litigation

The Plaintiffs Steering Committee (PSC) for the JUUL multidistrict litigation (MDL) in the Northern District of California recently filed amended master individual and class action complaints that expand the field of Defendants blamed for addicting a generation of youth to nicotine. The complaints divide the Defendants into five categories:

The JUUL Defendants: JUUL Labs, Inc. and its predecessors Altria Group, Inc., Phillip Morris USA, Inc., Altria Client Services LLC; Altria Group Distribution Company; and Altria Enterprises LLC.

The Management Defendants: JUUL Founders and Board Members – James Monsees and Adam Bowen; members of JUUL’s Board of Directors – Nicholas Pritzker, Hoyoung Huh and Riaz Valani.

The E-Liquid Manufacturing Defendants: Mother Murphy’s Labs, Inc.; Alternative Ingredients, Inc.; Tobacco Technology, Inc; and Eliquitech, Inc.

The Distributor Defendants: McLane Company, Inc.; Eby-Brown Company, LLC; and Core-Mark Holding Company, Inc..

The Retailer Defendants: Chevron Corporation; Circle K Stores Inc.; Speedway LLC; 7-Eleven, Inc.; Walmart; and Walgreens Boots Alliance, Inc.

The complaints allege that the Co-Defendants conspired to hook millions of youth to nicotine and worsen nicotine addiction for adults trying to quit smoking, all while raking in billions of dollars in profits. The complaints detail how JUUL and its conspirators downplayed and hid the risk of addiction while aggressively marketing its products to youth. JUUL copied “Big Tobacco’s” playbook to undo decades of public health successes in reducing the number of people smoking cigarettes and addicted to nicotine. JUUL and its Co-Defendants promoted JUUL as a safe alternative to cigarettes, without telling prospective buyers about the risk of addiction and other physical injuries like cardiovascular and pulmonary problems.

The complaints allege that JUUL and Altria worked to conceal studies that showed JUUL was more addictive than cigarettes, and they worked to delay and block regulation of their product enabling e-cigarette usage among youth to grow into an epidemic. The complaints allege that JUUL went so far as to send representatives into schools to study teenagers’ preferences and paid social media influencers to promote JUUL to youth. Further, the complaints allege that JUUL advertised its product on websites like Nick Junior and Cartoon Network.

The Master MDL complaints are the first complaints to name JUUL’s founders and several key board members personally. The complaints allege that when James Monsees stepped down as CEO of JUUL in 2015, billionaire investors and directors – Pritzker, Huh, and Valini – formed an Executive Committee and took charge of the company and its fraudulent marking of JUUL products to youth. Soon thereafter, they formed a relationship with tobacco-giant Altria to expand JUUL’s market and impact.

In 2017, JUUL’s sales increased by 700% and JUUL soon controlled more than three-quarters of the vaping market. The efforts of JUUL and its Co-Defendants resulted in a national youth vaping epidemic, and the amended Master Complaint seeks to hold the individuals and companies responsible for this epidemic accountable for the damage done to an entire generation of young people.

JUUL Co-Founder James Monsees Resigns From JUUL Labs, Inc.

On March 12, 2020, just days after being personally named in expansive litigation related to the JUUL e-cigarettes, JUUL announced that co-founder James Monsees has officially left the company as an adviser and board member.

Monsees and co-founder Adam Bowen met at Stanford University and launched their first vape device company, Ploom, Inc. in 2007. They renamed the company Pax Labs, Inc. in 2015 and launched the JUUL vape that year. They changed the name of the company to JUUL Labs, Inc. in 2017. Monsees served as the CEO until 2015. After stepping down as CEO, he continued to work as an executive in the company and serve as a board member.

More Details Of Aggressive Marketing To Minors Revealed As More States Sue JUUL Labs

A series of lawsuits against JUUL Labs is being filed in court across the country. On Feb. 12, 2020, Massachusetts Attorney General Maura Healey joined the ranks of the states and attorneys general who filed a suit against JUUL for creating a youth vaping epidemic:

State Filing Date
North Carolina May 15, 2019
California November 18, 2019
New York November 19, 2019
The District of Columbia November 26, 2019
Illinois December 12, 2019
Arizona January 7, 2020
Minnesota December 4, 2019
Pennsylvania February 10, 2020
Massachusetts February 12, 2020

States such as Colorado and Connecticut are also investigating JUUL’s sales practices and considering whether to join forces with other states. In addition, on Feb. 25, 2020, a coalition of 39 states was formed to look into the marketing and sales of vaping products by JUUL Labs, including whether the company targeted youth and made misleading claims about nicotine content in these devices.

As more lawsuits against JUUL Labs are filed, more details on JUUL’s aggressive marketing to minors are being revealed. According to Massachusetts AG Healey, internal documents show that JUUL intentionally sought out models and influencers and tried to recruit celebrities like Miley Cyrus and Kristen Stewart. JUUL also purchased ad space on Nickelodeon and Cartoon Network and in Seventeen magazine, and created appealing flavors for its products, all in an effort to hook kids.

Even worse, internal documents show that a JUUL representative went so far as to coach an underage buyer on how to skirt the age restriction laws. A consumer whose order had been cancelled due to an age verification failure received an email signed by “Don” from the “JUUL Care Team” that said, “The legal age to purchase nicotine products in Milton, MA is 21 years old and above. If you have friends or relatives in Quincy, MA, you may use their address as a shipping address for your order,” according to the complaint.

On the nation’s legislative end regarding the vaping epidemic, on Feb. 28, 2020, the House passed a bill banning all flavored vapes, regulating advertising, and forbidding online sales of vaping products. The bill has a Senate version sponsored by Senator Sherrod Brown, D-Ohio, with 11 Democratic co-sponsors. The measure has not received consideration in the Senate Committee on Health, Education, Labor and Pensions. It will be interesting to see how the Senate will act upon this similar bill banning flavored vapes in the near future.

Sources: Law360.com and Reuters.com

MASS TORTS UPDATE

Zantac Lawsuits Could Climb To 100,000

Lawsuits against the makers of over-the-counter and generic heartburn drugs containing ranitidine, the active ingredient in the brand-name drug Zantac, for failing to warn that the medicine contained a probable cancer-causing impurity, could climb as high as 100,000, experts say.

More than 60 million Americans suffer from heartburn at least once a month. About 15 million of them take prescription ranitidine and countless more regularly take over-the-counter Zantac or its generic equivalents. It is conceivable the number of claimants will add up quickly as more consumers become aware of the widespread contamination and the risks it poses to those who took the drugs.

U.S. District Judge Robin L. Rosenberg in West Palm Beach, Florida, was assigned to oversee dozens of Zantac lawsuits in a multidistrict litigation (MDL). The lawsuits arose after waves of ranitidine recalls were issued by numerous companies after the impurity known as NDMA (N-nitrosodimethylamine), classified as a probable human carcinogen, was found to form in the body after ingestion of ranitidine. The consumers say that the drug companies should have known their products contained the impurity and warned the public.

NDMA has been found “in laboratory research to induce tumors in experimental animals,” according to the U.S. National Library of Medicine. Some cancers that may be related to NDMA include stomach, small intestine, bladder, kidney, colorectal, esophageal, prostate, pancreatic, leukemia, non-Hodgkin’s lymphoma, and multiple myeloma. No study has been published to date that provides any specific risk for any particular cancer.

Beasley Allen lawyers are heavily involved in the Zantac litigation. Frank Woodson, a lawyer in our Mass Torts Section, is heading up the team of lawyers who are investigating and handling these cases. For more information contact Frank at 800-898-2034 or email him at Frank.Woodson@beasleyallen.com.

Source: South Florida Sun Sentinel

An Update On The Diet Drug Belviq

Recently we reported on the recall of the diet drug Belviq. The recall came after the U.S. Food and Drug Administration (FDA) requested Eisai Inc., the manufacturer of Belviq and Belviq XR (lorcaserin), to voluntarily withdraw the weight-loss drug from the U.S. market. This request came after a randomized, double-blind, placebo-controlled clinical trial to evaluate the risk of cardiovascular problems revealed an increased risk of cancer. The drug manufacturer, Eisai Inc., has submitted a request to voluntarily withdraw the drug.

Ever since the Fen-Phen debacle the FDA has required manufacturers of diet drugs to conduct post-market cardiovascular studies. This one showed some cardiovascular impacts, but it was the increased risk of cancer that raised concern enough for the FDA to require removal from market. FDA-mandated recalls of drug products are not a common occurrence, which makes the risk profile of Belviq all the more alarming. More stringent rules on drug testing prior to commercial release should be the rule, not the exception.

Belviq’s approval was not without controversy. Despite some arguing that diet pills should be on the FDA’s fast track, citing the public health concerns caused by obesity, the FDA denied the drug’s approval in 2010, citing heart valve risks and increased brain and breast tumor development in laboratory rats who were given well above the recommended dose. Subsequent studies that showed no increased risk of cardiovascular risks and a small risk of cancer ultimately led to Belviq’s approval in 2012.

For more information, contact Melissa Prickett or Lisa Courson at 800-898-2034, or by email at Melissa.Prickett@BeasleyAllen.com or Lisa.Courson@beasleyallen.com.

Source: ABC News

AN UPDATE ON SECURITIES INSURANCE AND FINANCE LITIGATION

California Jury Sides With SEC In Trial Against CBD Company, Curative Biosciences

A California jury in Los Angeles federal court returned a verdict last month in favor of The U.S. Securities and Exchange Commission (SEC) in its suit against Curative Biosciences, Inc., (CBI) a Florida-based CBD company, and its husband-and-wife executives, William M. Alverson (Alverson) and Katherine West Alverson (West). According to a press release from the SEC, jurors found against the Defendants on all counts of the complaint.

The SEC’s complaint, originally filed in May 2018, levied five claims against CBI, the Alversons, and codefendant Stephen G. Patton for violations of the registration requirements of Sections 5(a) and 5(c) of the Securities Act of 1933 and the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5(b). Patton was dismissed from the lawsuit in June 2018 after he assisted the SEC’s investigation and disgorged profits received in the scheme. The SEC’s complaint seeks injunctive relief, barring the Defendants from participating in the securities industry, disgorgement of more than $4 million in illicit profits, civil monetary penalties, and prejudgment interest.

Alverson, as Chairman of the Board, and West, as President and CEO, told investors that 33 million shares needed to be issued to pay CBI employees and consultants, and to pay third parties to discharge claims against CBI. In fact, the Alversons had all of the shares issued to Patton, who agreed to receive and help sell the shares on their behalf. Over several years, the three sold millions of shares in the market to unsuspecting investors, bringing in more than $4 million in proceeds to the Alversons. The shares issued and sold were not properly registered with the SEC either, as required by law.

After the scheme was executed, the Alversons then signed Form 10-K filings that CBI filed with the SEC. These filings failed to disclose the issuance of the shares used in the scheme, further misleading potential investors. The Alversons used the proceeds for business and personal expenses, including country club dues, retail purchases, and spa trips. Steven Peikin, Co-Director of the SEC’s Division of Enforcement, stated:

The defendants misappropriated shares for their own personal gain, all the while deceiving the company’s shareholders into believing that the shares were being used for legitimate corporate purposes. The SEC remains committed to prosecuting those who engage in self-dealing at the expense of investors.

Investing in smaller “microcap” companies carries the potential for great returns. The lure of being a part of the next Apple or Google that starts in a garage and then becomes an international success naturally attracts a lot of interest. However, such ventures also attract a lot of fraudsters looking to milk investors’ dreams for their own benefit. The best way to protect yourself is to demand transparency in the process and examine all books and records of the company that you can. No one can completely protect themselves from investment fraud, but the more you know about a potential investment, the more likely you will be able to spot the signs that something isn’t right.

The case is Securities and Exchange Commission v. Curative Biosciences Inc. et al., case number 8:18-cv-00925, in the U.S. District Court for the Central District of California.

If you suspect you have been the victim of investment fraud, there are federal securities laws and “Blue Sky” laws in every state that target securities fraud. A lawyer in our Consumer Fraud & Commercial Litigation Section would be glad to discuss any potential claim with you either in person or over the phone. You can reach James Eubank, a lawyer in the Section who handles securities litigation, at 800-898-2034 or by email at James.Eubank@beasleyallen.com.

Three Firms Will Lead In Conagra Derivative Suit Over $11 Billion Settlement

The Rosen Law Firm PA, the Brown Law Firm PC and Gainey McKenna & Egleston will be co-leading a consolidated derivative action accusing leadership at Conagra Brands Inc. of deceiving investors about details of its nearly $11 billion acquisition of Pinnacle Foods Inc. U.S. District Judge Martha M. Pacold made the appointment in an order consolidating three shareholder derivative suits filed against Conagra last year. The judge put a stay on the case while she considers a pending dismissal motion in a related securities class action against the Chicago-based food giant. Judge Pacold said in her order:

Notwithstanding this stay of the consolidated derivative action, the derivative plaintiffs may file a consolidated amended complaint, although defendants shall be under no obligation to respond to it unless and until the stay is lifted.

The three derivative suits filed in Illinois federal court last summer blamed Conagra’s directors for mischaracterizing the financial health of Pinnacle before buying it for $10.9 billion in 2018. The securities suit similarly aims to hold the company liable for stock drops that occurred when the company’s 2019 second-quarter financial results showed that Pinnacle products hadn’t sold as well as Conagra had suggested they would during Pinnacle’s first month under the Conagra umbrella.

Conagra first announced plans to purchase Pinnacle in June 2018. Under the terms of the final deal, Pinnacle shares, which were valued at $68, were worth $43.11 in cash and 0.6494 of a Conagra share, and Goldman Sachs provided $9 billion in bridge financing to make the acquisition possible. Conagra’s press release told investors that the Pinnacle acquisition stood to expand Conagra’s presence in its “most strategic categories,” including frozen foods and snacks, according to investors in the securities litigation. During a June conference call discussing the deal, Conagra CEO Sean Connolly said the companies were a natural fit for each other, and that “the Pinnacle team has done an absolutely phenomenal job driving innovation and growth.”

According to investors, Connolly and Conagra failed to disclose that the company hadn’t performed proper due diligence on Pinnacle, and that Pinnacle’s three leading brands were deteriorating “not due to intensified competition, but due to self-inflicted subpar innovation and executional missteps.” In late October 2018, Pinnacle common stock holders voted 99.87% in favor of the acquisition, which the company completed three days later, but Conagra announced in a December 2018 press release that Pinnacle’s struggling leading brands were the source of most of its current challenges.

According to the securities suit, the company’s stock price fell about 17% to $24.28 in an immediate reaction to the disclosure and continued to topple in subsequent days. The derivative action takes aim at Conagra’s directors for allegedly breaching their fiduciary duties and the company’s code of conduct, enriching themselves unjustly and wasting company money in connection with the stock slump in late 2018.

The derivative Plaintiffs are represented by Thomas J. McKenna and Gregory M. Egleston of Gainey McKenna & Egleston, Timothy Brown of the Brown Law Firm PC, and Philip Kim of The Rosen Law Firm PA. The case is Klein v. Arora et al., (case number 1:19-cv-03148) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

Delaware Justices Reverse Chancery On Federal Forum Selection

Delaware’s Supreme Court last month reversed a Chancery Court finding that state corporation law prohibits companies from adopting federal forum selection provisions for Securities Act litigation. The court said that instead the law provides “flexibility and wide discretion” for organizing, governing and financing businesses.

The decision on the closely watched case – which drew friends of the court briefs on both sides of the issue – also reversed a $3 million fee award that Vice Chancellor J. Travis Laster approved for the investor who led the class challenge to forum selection measures adopted by Blue Apron Inc., Roku Inc. and Stitch Fix Inc. Justice Karen Valihura wrote for the Supreme Court:

Delaware courts attempt ‘to achieve judicial economy and avoid duplicative efforts among courts in resolving disputes.’ FFPs [federal forum provisions] advance these goals. Accordingly, a bylaw that seeks to regulate the forum in which such ‘intra-corporate’ litigation can occur is a provision that addresses the ‘management of the business’ and the ‘conduct of the affairs of the corporation,’ and is, thus, facially valid.

Justice Valihura wrote that FFPs provide a means to avoid the filing of multiple securities actions in state and federal courts, making them a permissible means for managing a company’s interest in avoiding costly duplicative litigation. That duplication had been on the rise in the wake of the U.S. Supreme Court’s decision in Cyan Inc. v. Beaver County Employees Retirement Fund, which found concurrent federal and state courts jurisdiction over class actions based on 1933 Act claims. State court actions challenging initial public offerings and other securities matters were not removable to federal court under the finding, with the number of disputes winding up in both courts jumping recently.

Justice Valihura said FFPs are not contrary to Delaware law or provisions of the Delaware General Corporation Law. That law, the justice said, “allows immense freedom for businesses to adopt the most appropriate terms for the organization, finance, and governance of their enterprise.” The reversal opinion referred a number of times to “private ordering,” or the use of certificates of incorporation and public company bylaws to tailor corporate governance issues, including on forum selection and proxy matters.

The case is Matthew B. Salzburg et al. v. Matthew Sciabacucchi, (case number 346,2019) in the Supreme Court of the State of Delaware. The Chancery Court case is C.A. 2017-0931.

Source: Law360.com

EMPLOYMENT AND FLSA LITIGATION

PwC Agrees To $12 Million Settlement In Job Applicants’ Age Bias Suit

PricewaterhouseCoopers LLP (PwC) has agreed to pay nearly $12 million to a group of unsuccessful job applicants to resolve a suit in California federal court accusing the accounting firm of age discrimination. The named Plaintiffs Steve Rabin and John Chapman asked U.S. District Judge Jon S. Tigar for preliminary approval of a settlement in which PwC agreed to pay $11.6 million to resolve claims that it violated the Age Discrimination in Employment Act (ADEA) by systematically favoring younger applicants and denying older candidates jobs that they were qualified to perform.

Judge Tigar had conditionally certified the collective action last year. The parties estimated there will be some 5,000 individuals in the class. Around 3,500 individuals have opted into the suit so far, according to the motion. In addition to the monetary payout, PwC also agreed to revamp its hiring procedures to better recruit older workers for low-level jobs and limit the potential for age bias to creep into the process. The applicants said in the motion:

The [$11.6 million] common fund plus the programmatic relief constitutes fair, reasonable, and adequate compensation for the class members, in light of potential value of their claims.

The suit was filed in 2016 accusing PwC of flouting the ADEA as well as several state anti-discrimination laws. Rabin, a certified public accountant, alleged he was denied a job as a seasonal experienced associate in 2013 when he was 50 years old. He also claimed PwC had a “stunningly low” number of older workers in entry-level and lower- to mid-level positions. Rabin also claimed that PwC “rarely” advertised entry-level openings publicly, that it mostly hired entry-level accountants through campus recruiters and that people who aren’t affiliated with a college can’t apply for those entry-level positions. Chapman later joined the suit as a named Plaintiff asserting claims under Michigan state law.

PwC’s argument in a motion for judgment on the pleadings that the ADEA doesn’t permit job applicants to bring disparate impact claims was rejected by Judge Tigar. He wrote at the time that a textual analysis of the U.S. Supreme Court’s precedents in Griggs v. Duke Power Co. and Smith v. City of Jackson, along with the Equal Employment Opportunity Commission’s interpretation of the ADEA and the act’s legislative history, confirms that job applicants such as the Plaintiffs may bring disparate impact claims. Judge Tigar said:

Rather than invent a new and more restrictive interpretation of Section 4(a)(2), this court will follow the guidance of Smith and Griggs. Those precedents support extending the right to make a disparate impact claim under the ADEA to ‘any individual’ who has been adversely affected ‘because of such individual’s age,’ regardless of whether she is an applicant or employee.

The proposed settlement would cover a collective under the ADEA as well as classes brought under both California and Michigan state laws.

Additionally, the procedural changes PwC agreed to make over a two-year period include bringing aboard a neutral consultant who will conduct age inclusivity training for company leadership and employees who are part of the hiring process. The consultant would also offer ways to recruit workers older than 40 for positions specified in the settlement. PwC also agreed to advertise job openings directly to older applicants and include age as a protected category under the company’s nondiscrimination policy.

Rabin and Chapman would each stand to receive $20,000 service awards as part of the agreement. The nonmonetary elements of the settlement make the agreement true value millions higher than the amount in the settlement fund, according to the motion.

Jahan Sagafi of Outten & Golden LLP, who represented the Plaintiffs along with lawyers from the AARP, told Law360:

discriminatory obstacles in recruiting, hiring and retention are unfair and they contribute to America’s unemployment problem. We [at] Outten & Golden, together with our co-counsel AARP Foundation, are committed to remedying age discrimination in hiring, which can lock qualified, energetic older workers out of job opportunities.

The applicants are represented by Jahan Sagafi, Laura Mattes, Adam Klein, Melissa Stewart, Daniel Stromberg and Lucy Bansal of Outten & Golden LLP, Daniel Kohrman, Laurie McCann and Dara Smith of AARP Foundation Litigation and Jennifer L. Liu of The Liu Law Firm PC. The case is Steve Rabin et al. v. PricewaterhouseCoopers LLP, (case number 3:16-cv-02276) in the U.S. District Court for the Northern District of California.

Source: Law360.com

PREMISES LIABILITY UPDATE

PG&E Reaches $1 Billion Wildfire Settlement With FEMA

Pacific Gas and Electric (PG&E) Co. has agreed to a $1 billion settlement with the Federal Emergency Management Agency (FEMA) to reimburse it for services provided in response to Northern California wildfires caused by the utility. The parties told the judge overseeing PG&E’s Chapter 11 bankruptcy about the settlement on March 10. The agencies will be paid only once wildfire victims are made whole, the parties add.

U.S. Bankruptcy Judge Dennis Montali was told that objections to PG&E’s Chapter 11 plan by federal and California state agencies “have all been resolved.” Settlement agreements will be submitted to the court.

FEMA and the California Governor’s Office of Emergency Services (CalOES) had initially sought reimbursement for about $4 billion. Just last month, FEMA counsel argued before the bankruptcy court that PG&E knew of the wildfire risk from faulty maintenance of its power lines, which sparked wildfires in 2015 and 2017, “and yet they chose not to act.” Counsel for state and federal agencies told the court that the roughly $4 billion claim has been reduced to $1 billion and that it will only be paid to the agencies if there is money remaining in the $13.5 billion wildfire victims’ settlement fund.

A FEMA spokesperson said the agency’s goals in filing a claim in the PG&E bankruptcy have been to ensure that survivors’ needs are placed first, to hold PG&E accountable for the expenditure of federal disaster assistance and to ensure that the agency met its legal obligations to avoid any potential duplication of benefits. The agency’s spokesperson said:

FEMA may receive up to $1 billion in compensation for federal disaster assistance provided in response to the 2015 Butte Fire, 2017 Northern California Wildfires, and 2018 Camp Fire, but only after individual fire survivors have resolved their claims against the $13.5 billion Fire Victims Trust.

PG&E said there has been “substantial progress” made in resolving objections to PG&E’s disclosure statement. “Under the settlements which are subject to court approval, FEMA’s claim will be reduced and subordinated to the fire victims[‘] claims. Cal OES has withdrawn its claim,” PG&E said in a statement. The tentative agreement removes one of the major obstacles standing in PG&E’s way as it seeks to exit bankruptcy.

PG&E filed for bankruptcy in January 2019, buckling under an estimated $30 billion in potential liabilities tied to its alleged role in causing wildfires that killed 130 people and razed billions of dollars in property in 2017 and 2018. In December, it struck a $13.5 billion settlement with the tort claimants committee representing wildfire victims. The utility must emerge from bankruptcy and make all wildfire victims whole by June 30, 2020, if it is to gain access to California’s newly created $21 billion wildfire fund.

Judge Montali called the settlement agreement reached with FEMA an “enormous” development and congratulated the parties for reaching a deal. A spokesperson for the Official Committee of Tort Claimants said the committee is optimistic about the development. The spokesperson said:

The deal we have tentatively struck with FEMA and California Office of Emergency Services would prevent billions of dollars from being taken from a fund specifically set aside for fire victims. Under the deal, FEMA has agreed to put its claims behind those of fire victims and would not receive any fund money until all confirmed claims are paid out 100 cents on the dollar, and California Office of Emergency Services has withdrawn its claims completely.

The committee also said every wildfire victim will have the chance to vote on PG&E’s final plan of reorganization.

PG&E addressed more than a dozen objections to its proposed disclosure statement and its solicitation procedure. Objections largely came from various creditors seeking an estimate of how much money they might recover from PG&E and creditors who want to make sure their vote will count fully.

The 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

5th Circuit Takes Another Look At A $77 Million Deepwater Horizon Award

The Fifth Circuit Court of Appeals has ordered a lower court to investigate BP PLC’s argument that a commodity firm was wrongly awarded $77 million from the Deepwater Horizon disaster settlement. BP says the firm’s losses weren’t the result of the 2010 oil spill. A three-judge panel said BP presented credible evidence that the alleged damages suffered by Trammo Inc., which deals in ammonia, fertilizer and other commodities, at its Florida distribution port was solely caused by unstable fertilizer prices that sent the company’s revenues soaring before crashing back down to normal levels.

That type of evidence fits into the narrow requirement the Fifth Circuit has carved out for investigations of the plausibility of Deepwater settlement claims, the panel said. It cited the court’s rulings in March 2019’s BP Expl. & Prod. Inc. v. Claimant ID 100281817 (West) and BP Expl. & Prod. Inc. v. Claimant ID 100141850 (Howard Industries), the latter of which held that investigations can be required if there is “credible evidence of a sole, superseding cause” of a Deepwater claimant’s alleged losses. The lower court should have at least reviewed BP’s evidence before affirming Trammo’s $77 million claim, the panel said. The panel said further:

Because the district court has not considered whether there was credible evidence of a sole, superseding cause and because we are not the factfinder, the district court should review this argument in the first instance and determine whether to remand to the claims administrator for additional factfinding.

BP agreed to a multibillion-dollar settlement to cover economic and property damages stemming from the Deepwater Horizon catastrophe, the largest oil spill in U.S. history. Trammo originally filed its Deepwater claim in 2013 and was awarded $77 million under the settlement agreement’s formula for calculating claims. An appeals panel rejected BP’s claim that Trammo’s losses were caused by a spike and subsequent drop in the price of fertilizer and found that Trammo had satisfied the terms of the settlement agreement to collect its claim.

The Louisiana federal judge overseeing the settlement agreed to review the appeals panel’s decision, but ultimately affirmed Trammo’s award in March 2019, prompting BP’s appeal to the Fifth Circuit.

In reversing and remanding the case, the Fifth Circuit panel noted that the lower court’s decision affirming Trammo’s award wasn’t able to rely on the West and Howard Industries decisions, which were issued two weeks later. The Fifth Circuit also said that since the West and Howard Industries rulings, the appeals court has remanded two other Deepwater claims to the district court to determine whether there was a sole, superseding cause of a claimant’s alleged loss. The panel concluded:

Thus, reversal is warranted because the appeal panel’s categorical rejection of credible evidence of a sole, superseding cause stands in conflict with this court’s precedent.

Trammo is represented by Zachary L. Wool of Barrios Kingsdorf & Casteix LLP and Samuel Issacharoff of New York University School of Law. The case is BP Exploration & Production Inc. et al. v. Claimant ID 100191715, (case number 19-30264) in the U.S. Court of Appeals for the Fifth Circuit.

Source: Law360.com

WORKPLACE HAZARDS

Workplace Safety – Chicken Processing

The meat processing industry is an extremely hazardous occupation and one of the more common sources of on the job injuries we see. According to the Department of Labor, workers in meat processing plants are injured five times more frequently than all other private workers and nearly 20 times more likely to develop carpal tunnel syndrome. However, studies suggest that the Labor Department’s data is likely skewed due to the large number of foreign-born meat processing workers and their reluctancy to report workplace injuries due to fear of retaliation or deportation.

It is estimated that nearly 30% of meat processing workers are foreign-born. Information collected by the Southern Poverty Law Center (SPLC) suggests that two thirds of chicken processing employees will suffer significant work-related injuries. Unfortunately, these incidents of injury within the chicken processing industry are likely to increase.

Recently, the Trump administration cleared the way for chicken processors to increase processing line speeds. Line speeds were capped at 140 birds per minute; however, the National Chicken Council recently lobbied and petitioned the Food Safety and Inspection Service (FSIS) to increase the line speeds to 175 birds per minute. In January of 2018, the USDA announced that chicken processors could apply for waivers to increase the line speed from 140 birds per minute to 175.

Higher line speeds are cause for concern. The increase in line speeds applies to the automated portion of the slaughter process, called the evisceration line. Although the poultry industry contends the increase in line speed will not have an effect on worker safety, the data suggests otherwise.

At the 140 bird per minute line speed, workers perform the same repetitive motions 20 to 30 thousand times per daily shift. Often that repetitive motion requires workers to use knives to debone portions of the chicken. This increase will undoubtedly result in more injuries due to cuts, but also increases the risk of the employees developing carpal tunnel.

Unfortunately, the increase in poultry processing line speeds likely opens the door for other meat processing industries to experience similar increases. The Trump administration likely will relieve similar line speed restrictions amongst the pork processing industry as well. The USDA has proposed lifting caps on hog processing speeds, which are currently capped at 1,100 hogs an hour.

These changes are directly related to worker safety and will subject employees to more hazards. The meat processing industry is already an extremely hazardous occupation. More measures should be taken to ensure safe work environments. However, the Trump administration clearly values profits over worker safety. If you need more information contact Evan Allen, a lawyer in our Personal Injury & Product’s Liability Section, at 800-898-2304 or by email at Evan.Allen@beasleyallen.com. Evan handles work-related litigation involving serious injuries and deaths for the firm.

Source: https://civileats.com/2018/11/07/workers-fear-injury-as-administration-clears-way-for-faster-chicken-slaughter/

AN UPDATE ON MOTOR VEHICLE LITIGATION

Trucking Cases With Contested Liability

Oftentimes accidents occur where liability is contested. Accidents involving commercial motor vehicles are no different. When contested liability tractor trailer cases arrive at a law firm, it is important for the lawyers involved to remember the heightened standards that carriers are subject to. Although ordinary personal motor vehicle drivers have duties under the law to drive safely, they do not operate under the same heightened standard that commercial motor vehicle drivers are obligated to follow.

Whether the case involves constructions zones, rush hour traffic, merging, turning or other potential hazards, it is important to identify and focus on the present hazards. Remember that these drivers are professional drivers and in deposition they identify as such. To obtain a commercial driver’s license (CDL), drivers must take a test. State specific commercial driver’s license manuals are used by applicant drivers to learn extensive roadway maneuvers and how to respond to roadway hazards.

Using a state-specific manual, you can have the driver who has contested liability admit that a safe prudent professional driver should slow in a construction zone because not doing so raises the likelihood that someone could get injured or killed. All state CDL manuals educate drivers on rush hour traffic and the likelihood that other drivers will cut them off. Further it discusses the fact tractor trailers and personal motor vehicles have substantially different maneuvering abilities from accelerating and braking to turning and merging.

Establishing what the professional driver knew, and ultimately showing the professional driver decided to forgo safety precautions in the presence of a known roadway hazard distinguishes your client and the professional driver. Beasley Allen lawyers have extensive experience handling contested liability cases in both state and federal courts. If you have a question or desire to work a case with us, contact Ben Keen or Cole Portis at 800-898-2034 or by email at Ben.Keen@beasleyallen.com or Cole.Portis@beasleyallen.com.

TOXIC TORT LITIGATION CONCERNS

Ohio Jury Awards $50 Million In PFAS Cancer Case

Last month, an Ohio jury found that Dupont Co. must pay a combined $50 million to testicular cancer survivor Travis Abbott and his wife for the illness allegedly linked to chemicals manufactured by the chemical giant. The verdict, which is the largest awarded thus far against the company, set the bar for dozens of other cases in which people are suing the company for illnesses allegedly caused by drinking contaminated water.

The Plaintiffs claimed they drank water tainted with PFOA, one of the most common chemicals that is part of the family of “forever chemicals” known as per- and polyfluoroalkyl substances, or PFAS. DuPont manufactured PFOA for decades until 2015 when it agreed to cease production as part of an Environmental Protection Agency (EPA) initiative after the chemical was linked with certain health effects including testicular cancer and kidney cancer. It was the key chemical in the production of Teflon, which provides a nonstick surface in many consumer products such as cookware and water repellant apparel.

The jury award includes $40 million in compensatory damages to Abbott and $10 million in loss of consortium damages to his wife. The jury did not award punitive damages after finding that DuPont did not act with actual malice. The Abbotts were seeking $105 million for him and $15 million for his wife. Dupont plans to appeal the verdict.

The jury was deadlocked over the claims brought by another kidney cancer survivor, Angela Swartz, who is seeking a new trial. Jon Conlin, a lawyer for the Plaintiffs, said the Swartz was case handpicked by DuPont for trial because the company believed it had a strong case for a defense verdict. A deadlocked jury not finding for the company was seen as a silver lining.

This combined trial is the first since Dupont entered a $670 million settlement in 2017 to resolve approximately 3,500 pending cases for Plaintiffs seeking damages for illnesses allegedly stemming from DuPont’s contamination of drinking water with PFOA. These verdicts now set the tone for nearly 50 other lawsuits filed in the U.S. District Court for the Southern District of Ohio. There will be more kidney cancer suits filed very soon.

These verdicts are just a small piece of the overall liability faced by companies who manufactured or used PFAS, which are common in nonstick treatments, firefighting foam, waterproofing for clothes, and food wrappers. PFAS have been detected in nearly all Americans and a significant number of drinking water systems nationwide. Local and federal governments as well as environmental groups have expanded testing in the recent years to determine the full extent of the contamination.

The Birmingham, Alabama, firm Cory Watson, led by Jon Conlin, represented the Plaintiffs in the litigation described above. They did an outstanding job in this most significant and important case.

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

Source: Bloomberg Environment

UPDATE ON NURSING HOME LITIGATION

Coronavirus Outbreak Poses Threat To Vulnerable Nursing Home Population

An outbreak of coronavirus disease in a nursing home near Seattle has prompted urgent calls for precautionary tactics at elder care facilities across the country. Studies indicate a much higher fatality rate for older patients who contract coronavirus, which is alarming news for U.S. residents in long-term care settings, where residents are at higher risk of contracting illnesses caused by more common pathogens like norovirus and seasonal influenza. The heightened risk is due to the dual threat of age and close living conditions. Immune response wanes as people age, leaving them more vulnerable to infections of all types, and close living spaces compound the problem by causing disease to spread rapidly among residents.

The emergence of coronavirus at the Life Care Center of Kirkland, Washington, left several residents dead and others hospitalized, according to local health officials. A health care worker was also hospitalized. Officials previously said that of the nursing home’s 108 residents and 180 staff members, more than 50 people have shown signs of possible infection. According to a statement from Ellie Basham, the center’s executive director, visits from families, volunteers and vendors have been halted and new admissions have been placed on hold.

This cluster of coronavirus, which emerged from Wuhan, China late last year, was the first of its type in the U.S., which is home to 2.2 million people living in long-term care settings.

On Feb. 28, the American Health Care Association, which represents 13,500 nonprofit and for-profit facilities for seniors and people with disabilities, issued updated guidelines in response to the Washington outbreak. These guidelines largely echo existing strategies for stemming the spread of other respiratory viruses, such as influenza, including frequent hand sanitation among staff and visitors, grouping people who become ill in the same room or wing, and asking family members who are sick to avoid in-person visits.

If you have any questions or need any additional information, contact Alyssa Baskam, a lawyer in our Atlanta office who handles nursing home litigation for the firm. Alyssa can be reached at 404-751-1162 or by email at Alyssa.Baskam@beasleyallen.com.

Source: NPR Public Health

The Beasley Allen Nursing Home Litigation Team

Alyssa Baskam 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 Alyssa.Baskam@beasleyallen.com, Susan.Anderson@beasleyallen.com or Andrea.Linnear@beasleyallen.com.

An Update On Class Action Litigation

An Update On The Polaris Class Action Lawsuit Alleging Fire Risk

United States District Judge Wilhelmina Wright recently reduced a class action lawsuit alleging certain Polaris off-road vehicles contain a design defect where they generate excessive heat and are prone to dangerous fires.

The lawsuit was filed in April of 2018 by Beasley Allen lawyers Dee Miles, Clay Barnett and Mitch Williams, as well as lawyers from Dicello Levit Gutzler LLC and Baron & Budd PC. The lawsuit alleges certain Polaris off-road vehicles were designed in a way that they do not sufficiently mitigate heat generated in the engine compartment, leading to thermal degradation of critical components and potentially fire. Many of the vehicles have caught on fire during use.

The Safety Research & Strategies, Inc. reported that in May 2018 the U.S. Consumer Product Safety Commission (CPSC) closed out its oversight of a 2016 Polaris safety campaign. Recall 16-146 was the single largest of 13 Polaris fire-related recalls, covering some 133,000 Model Year 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. These models also remain among the Medina, Minnesota, company’s most hazardous, responsible – at the time of the recall – for more than 160 reports of fires and 19 injuries, including second- and third-degree burns and the death of a 15-year-old girl.

Just six weeks earlier, the commission and Polaris had reached an agreement: Polaris would pay a $27.25 million fine for neglecting to report these fires and similar fires involving the 2015 Ranger, but were not required to make any admissions that the RZR ROVs were defective, nor that it failed to meet its statutory requirements to fully and promptly report the myriad incidents, nor that it knowingly violated any regulations.

Despite a CPSC staff investigation, which found that the RZRs were fire and burn hazards, “which could create a substantial product hazard and create an unreasonable risk of serious injury or death,” and that Polaris waited until February 2016 to report the 150 fires, 11 burn injuries and one death that began in 2013, Polaris was only required to admit it was recalling the vehicles “out of an abundance of caution.”

The class action lawsuit filed in Minnesota in 2018 would hopefully rectify the remaining problems that the CPSC failed to correct, but a challenge was found at the courthouse as well. Just this past February, Judge Wright ruled that Plaintiffs who do not allege their vehicle caught fire lack standing (known as Article III standing) to bring the class claims. Judge Wright stated:

The No-Fire Plaintiffs allege that they purchased vehicles from a product line that contains a defect and that their vehicles exhibit the defect. But the No-Fire Plaintiffs do not allege any fact as to how that defect manifests in their respective cases. Thus, the No-Fire Plaintiffs’ allegations do not establish standing.

However, Judge Wright acknowledged the severity of the defect, as indicated by the 11 claims from seven states that remain and will now proceed to discovery. The Plaintiffs’ team is appealing Judge Wright’s ruling on the issue of the “no-fire Plaintiffs” not having standing to bring their claims for the vehicle’s design defect. We strongly believe that the governmental investigation by the CPSC clearly demonstrates that there is a clear and present danger of fire to every operator of these vehicles during usage. The Court of Appeals for the Eighth Circuit will have to decide this “standing” issue for consumers who own these vehicles.

As for now, the “fire Plaintiffs” will proceed to the discovery phase of the case while the “no-fire Plaintiffs” navigate the “standing issue” in the court of appeals. Dee Miles, who heads up this litigation for Beasley Allen, told Law360:

Our team is still digesting the 11 counts of the complaint that will move forward and what we may do with any of the dismissed counts. The court clearly recognizes these vehicles pose a serious potential danger, and for those states that have good consumer protection laws, we feel those consumers will certainly prevail. For those states with weak consumer protection laws, we may have a different strategy to protect those claims. We are pleased with the fact we will now move on to discovery.

We will continue to update our readers on the development of this case, the appeal and the safety of this product.

Source: Law360.com

A Class Action Filed By Beasley Allen On Behalf Of Toyota And Lexus Vehicles

Beasley Allen lawyers recently filed a class action lawsuit concerning defective fuel pumps in 2018-2019 Toyota and Lexus vehicles, partnering with Demet Basar, a lawyer with the New York City firm Wolf, Halden, Holdenstein.

The lawsuit, filed in February in the Eastern District of New York on behalf of Plaintiff Sharon Cheng and all other Toyota / Lexus car owners similarly situated, alleges that defective Denso fuel pumps can fail prematurely and without warning, causing an increased risk for collision and injury.

The lawsuit follows Toyota’s January 2020 recall of nearly 700,000 affected vehicles where it admitted the defective nature of the fuel pump. However, the Plaintiff’s concern that the recall did not cover all vehicles equipped with the same defective fuel pump was verified on March 4, 2020, when Toyota expanded the recall to cover nearly 2 million vehicles equipped with the same or similar defective Denso fuel pumps. The recall now covers certain Toyota and Lexus models dating as far back as 2013.

The defective fuel pump contains a plastic impeller that is prone to excessive fuel absorption leading to deformation. When the impeller becomes deformed, it contacts the fuel pump’s casing, which affects vehicle performance. Specifically, drivers complain of diminished acceleration capabilities or, in some cases, complete vehicle shut down.

The lawsuit alleges that even though Toyota acknowledged the defect and its serious consequences, it will not disclose the defect to the public until a later date. Owners and lessees of the Class Vehicles are unknowingly driving on roads and highways in potentially ticking time bombs while Toyota knowingly exposes its customers, from whom it made at least $20 million from the sale of just the Recalled Vehicles, to the risk of grave physical harm and even death.

Beasley Allen lawyers Dee Miles, Clay Barnett and Mitch Williams, along with Demet Basar, are spearheading this class case for consumers. The Beasley Allen lawyers and Ms. Basar have successfully prosecuted class action cases involving some of the most egregious conduct in the auto industry. The cases include the likes of Volkswagon and Chrysler-Fiat in the “emissions cheat device” scandal, defective airbag systems in Takata, and the most recent ZF-TRW airbag litigation pending in California Federal Court.

Our lawyers will continue their efforts to make products safer through important litigation like these cases and others. If you have any questions, contact Dee Miles, Clay Barnett or Mitch Williams at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Clay.Barnett@beasleyallen.com or Mitch.Williams@beasleyallen.com.

VW Jury Awards $100,000 In Punitive Damages In Clean Diesel Trial

A California federal jury awarded five Volkswagen drivers a total of $100,000 in punitive damages last month in the German automaker’s first U.S. trial over its “clean diesel” emissions scandal, Volkswagen says it hopes to get this amount reduced because of the low compensatory damages awarded earlier in the first phase of the bellwether trial.

The jury awarded verdicts of $25,000 in punitive damages to the drivers of four vehicles – three individuals and a couple – in the bellwether trial testing claims of 10 Plaintiffs who opted out of the settlements. There are roughly 340 other drivers who opted out as well.

Volkswagen’s lawyers told the jury that while the automaker’s actions deserved punishment, the company had already been punished by regulators. Jurors were told that Volkswagen offered “a generous settlement,” but that the drivers wanted more than other customers. The jury was reminded that if they decide to award damages, only those five Plaintiffs will receive the money and that none of that money will go to remedying the environment or compensating other consumers.

The bellwether trial marks the first U.S. trial for Volkswagen since it admitted in 2015 to equipping 11 million vehicles worldwide with so-called defeat device software, which reduced nitrogen oxide emissions in vehicles to pass government-mandated emissions tests, but then increased the vehicles’ emissions when driven.

After reaching settlements with a majority of drivers who purchased or leased the affected vehicles, Volkswagen still has roughly 350 drivers who have refused to settle. The bifurcated bellwether trial, and the runup to it, have had lots of surprises. Among other things, the drivers made a last-minute attempt to disqualify U.S. District Judge Charles Breyer, who reduced their claims and rejected their expert witness, former FBI Director Louis Freeh. The drivers have also moved for a mistrial.

In the first phase of the trial, the jury found that five of the 10 drivers were entitled to economic damages. The jury found that Volkswagen owed one driver $1,080, a second driver $952, a third driver $582 and a couple $3,133. Those damages are less than what the drivers would have received had they accepted the settlement.

The drivers are represented by Fred D. Heather and Richard W. Buckner of Glaser Weil Fink Howard Avchen & Shapiro LLP, Lauren Ungs and Scot Wilson of Knight Law Group, and Bryan Altman of the Altman Law Group. The case is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, (case number 3:15-md-02672) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Intuit, Inc. Will Face Trial Over Turbo Tax Allegations

The Northern District of California recently denied Intuit, Inc.’s attempt to avoid the courtroom and move a class action to arbitration. Turbo Tax users filed a class action against the company alleging Intuit tricked them and other users into paying for tax-filing services when they were entitled to use the free-filing option promoted by the company. Intuit argued that Plaintiffs were bound by its arbitration agreement in the Intuit Terms of Service for TurboTax Online Tax Preparation Services – Tax Year 2018 (“the Terms”), which, Intuit argued, Plaintiffs ostensibly agreed to every time they signed in to use Intuit’s tax preparation software.

The Court, however, disagreed, and stated:

Because the Terms were too inconspicuous to give Plaintiffs constructive notice that they were agreeing to be bound by the arbitration agreement when they signed in to TurboTax, the Court finds that Plaintiffs did not agree to the arbitration provision. The Court therefore need not decide whether questions of arbitrability or claims for equitable relief were delegated to the arbitrator. The Motion to Compel Arbitration is denied, and so is Intuit’s request for a stay pending its appeal to the Ninth Circuit.

Plaintiffs filed the class action in May of 2019 detailing the scheme by which Intuit deceptively profited from its users. According to the complaint, pursuant to an agreement with the IRS, TurboTax is required to cumulatively offer 70% of U.S. taxpayers the option to file their taxes for free. For the 2018 tax season, any taxpayer whose adjusted gross income is $66,000 or less is eligible to use tax preparation software from one of these providers to prepare and file their tax returns for free.

TurboTax violated its agreement with the IRS by intentionally diverting qualified taxpayers away from its “free filing” program in favor of its paid product offerings. It did this by segregating its “free file” webpage from its primary website and then altering the website’s code in order to keep it hidden from search engines like Google so that it would not be easily accessible to qualified taxpayers. Plaintiffs brought claims for breach of contract as well as claims under various states’ consumer protection statutes seeking recourse for damages suffered as a result of Intuit’s scheme.

In denying Intuit’s motion to compel arbitration, the court addressed the key question of whether there was a valid agreement between Intuit and the user to arbitrate. Intuit argued that the sign-on screen where its users logged into the system contained sufficient notice of the terms of the agreement; however, the court held that the way in which Intuit attempted to notify consumers of the terms of the agreement was not conspicuous enough to provide users with terms of the agreement.

Because the users never received adequate notice of the terms, they could not have agreed to them. Since the court reached this conclusion, it declined to assess the scope of the arbitration provision. The court stayed the litigation pending Intuit’s appeal of the decision; however, it did not stay Plaintiffs’ claims for equitable relief. Therefore, those claims will be moving forward in the district court.

Sources: ProPublica

Ford Gets Consolidated Opt-Out Suits Split Up In Takata MDL

A Florida federal judge has granted Ford Motor Co.’s request to remand to their respective courts 23 suits filed by thousands of people who opted out of the car maker’s settlement of a consumer class action over the use of defective airbags in vehicles.

U.S. District Judge Federico A. Moreno said the consumers’ claims would be better handled in the courts where they were initially filed. The U.S. Judicial Panel on Multidistrict Litigation (JPML) has transferred each group action to the Southern District of Florida for consolidated pretrial proceedings. Judge Moreno said remand is warranted because nearly all the claims in each group action complaint are state specific. Judge Moreno said:

In addition to remaining discovery being case specific, there is also a dearth of common legal issues because each group action asserts state specific claims.

The consumers consist of more than 2,000 individuals who opted out of Ford’s 2018 $299 million settlement in the multidistrict litigation (MDL) over Takata Corp. air bags, whose inflators could explode and spew shrapnel at passengers. The consumers who opted out are spread across 23 actions in various district courts across the country, and each Plaintiff is seeking recovery for economic losses from Ford.

Ford filed notices of potential tag-along actions with the JPML and did not object to the transfer orders for each group action that brought the cases to Florida, according to the order. But the company subsequently filed motions to dismiss each group action, while the consumers argued the Florida court is “in the best position to make pretrial rulings and expedite a disposition of the litigation.”

Ford told the court it participated in extensive common liability discovery for more than three years, during which the company responded to 227 document requests and 52 interrogatories, and produced more than 134,000 pages of documents, according to the order. Among the districts to which the cases are being remanded are the Eastern District of Pennsylvania, the District of New Jersey, the Southern District of New York, the District of Illinois, the District of Massachusetts and the Western District of Texas.

The MDL arose from consumer suits first filed in 2014 that alleged the cheap but volatile ammonium nitrate that inflates airbags made by Takata can misfire, especially in humid conditions, blasting chemicals and metal fragments at passengers and drivers. Takata’s air bag inflators have been linked to at least 11 deaths in the U.S. and the company has faced massive global recalls.

Takata has pled guilty to wire fraud, agreed to pay $1 billion in fines and restitution, and acknowledged that it ran a scheme to use false reports and other misrepresentations to convince automakers to buy air bag systems that contained faulty, inferior or otherwise defective inflators. In June 2018, the company filed for bankruptcy in Delaware and Japan.

Several other car companies that used Takata airbags have settled claims against them. Honda agreed to a $605 million deal in September 2017; Nissan settled for $98 million in August 2017; and Toyota, Subaru, Mazda and BMW agreed to pay a combined $553.6 million in May 2017.

The Germany-based parent companies of automakers Volkswagen, Audi and Mercedes won their bids to escape the MDL last year, after Judge Moreno found the foreign corporations were outside the Florida federal court’s jurisdiction.

The Ford Plaintiffs are represented by Sergei Lemberg of Lemberg Law LLC and Matthew Fornaro. The MDL is In re: Takata Airbag Products Liability Litigation, (case number 1:15-md-02599) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

Apple To Pay Up To $500 Million For Purposely Slowing Batteries In iPhones

Apple has agreed to settle a multidistrict litigation (MDL) suit that accuses the company of releasing software updates designed to slow down the performance and battery life of some older iPhone models. Brought in District Court in San Diego, California, under U.S. District Judge Edward Davila, the case was mediated by former district judge for the Western District of Oklahoma, Layn Phillips.

The settlement involves a minimum payment of $310 million, with the potential for payouts as high as $500 million, should enough iPhone users join the settlement. This will likely amount to $25 per iPhone user, but contains provisions that allow for up to $500 per class member should the payouts, attorney’s fees, and expenses add up to less than $310 million. Lawyers for the class are seeking $1.5 million in expenses and $93 million in fees, which equates to a 30% fee on the minimum settlement number.

At times contentious, concerning confidential documents and protective orders that lawyers on both sides accused the other of violating, the suit centers on Apple’s updates to its older model iPhones. Consumers claimed that when Apple released software updates for its iPhones it designed the software intentionally to drain and over-work the older models, leading consumers to believe that their phones had reached or were reaching the end of their useful lives. This convinced many iPhone users to spend hundreds of additional dollars on newer model phones and batteries.

This scheme described above is becoming more rampant in today’s economy, especially where technology is concerned. Industry experts and consumer protection groups refer to this strategy as “forced obsolescence.” As technology becomes more central in our daily lives, while at the same time becoming less transparent, forced obsolescence presents a valuable business model, while simultaneously undermining the principles of fairness and economics that underscore the implied warranty of merchantability. When companies purposefully design their products into uselessness, consumers lose the ability to set standards with prices willingly paid.

The amount each user receives could increase or decrease depending on how many claims are filed as well as any additional legal fees and expenses approved by the court, the document added.

The settlement agreement, which is subject to approval by a judge on April 3, caps a legal battle that’s gone on for more than two years during which Apple tried to ease a global backlash. The company admitted in December 2017 that it used software updates to slow down older iPhones, soon after angry customers and tech analysts flagged that the updates were causing diminished performance. Some of them suggested that Apple did so to force users to upgrade to the latest iPhone model, but the company said it was aimed at addressing issues with older lithium-ion batteries that would make the phones suddenly shut down to protect their components.

Apple later apologized and offered battery replacements to its customers for $79, which it knocked down to $29 in January 2018. The company’s CEO, Tim Cook, admitted a year later that revenue for 2018 was partly hit by “significantly reduced pricing for iPhone battery replacements.” iPhone users in the United States can file settlement claims if they owned an iPhone 6, 6 Plus, 6S, 6S Plus, 7, 7 Plus or SE device bought before Dec. 21, 2017.

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

Source: Law360.com

C.R. England Agrees To $18.6 Million Settlement With Driving School Students

An $18.6 million proposed settlement involving trucking company C.R. England, Inc. has been submitted to Utah federal court judge David Nuffer for preliminary approval. The settlement involves class claims that the company prompted would-be commercial truck drivers into enrolling in a $5,000 for-profit, in-house commercial truck driving school with false guarantees that students would become employed with the company after graduation from the program.

The $18.6 million proposed settlement is comprised of a cash settlement payment by C.R. England of $3.6 million to be placed into a qualified settlement fund and an additional $15 million in debt forgiveness. The so-called “forgiven debt” portion of the settlement consists of all liquidated damages that the Defendant claims it is owed by participating class members for its Driver Education and Employment Contract.

Class members in the suit all similarly alleged that the Defendant forced prospective employees to pay the company $5,000 to take part in its “premier” driving school. The Defendant then loaned students the tuition money upon their agreements to repay the money, with a high interest rate, from their future paychecks. In addition to forcing new employees to take part in the driving school, class members were required to sign a nine-month exclusive employment contract that included a stipulated $2,500 deduction in pay if they quit or were fired within the employment contract period.

The case is: William Gradie v. C.R. England Inc., (Case No.: 2:16-cv-00768) in the U.S. District Court for the District of Utah.

Source: Law360.com

Snap Agrees To Pay $155 Million In IPO Class Action Settlement

Snap Inc. has agreed to pay nearly $155 million to resolve litigation claiming the social media giant concealed problematic growth metrics ahead of its initial public offering. Investors in the company behind Snapchat have asked a California federal judge for preliminary approval of the settlement, which was reached in January. The agreement came just two months before the class action was set to go to trial and with a summary judgment motion and class certification appeal still pending.

The terms of the January agreement were not revealed until a motion for approval was filed on March 20. It was stipulated in the motion that $154.7 million will be paid to resolve the federal class action in California. Another $32.8 million will be used in a state court settlement over the same alleged misconduct. The investors said:

In order to ensure a global resolution, the parties all agreed to the requirement that the federal and state settlements must each receive final approval and be no longer subject to appeal in their respective courts as a condition to the settlements becoming final.

A former employee has accused Snap and its executives of using faulty growth metrics ahead of the IPO and pressuring him to reveal secrets from a past job. Shares of Snap fell in April 2017 after the whistleblower’s allegations about the company’s alleged misrepresentations went public. The stock declined another 21% the following month when Snap reported its first-ever quarterly results as a publicly traded company, according to investors who filed related federal suits against Snap in May and July 2017. The court combined the two actions the following September.

The investors renewed their August 2018 bid for class certification in early July after the suit’s previous lead Plaintiff withdrew. Certification was granted in November for a class of investors who bought or acquired Snap common stock between March 2 and Aug. 10, 2017.

The class is represented by Sharan Nirmul, Nathan Hasiuk, Jonathan F. Neumann, Jennifer L. Joost and Stacey M. Kaplan of Kessler Topaz Meltzer & Check LLP, liaison counsel Daniel L. Germain of Rosman & Germain LLP, local counsel Brian Schall of The Schall Law Firm and Stephen G. Larson and Paul A. Rigali of Larson O’Brien LLP. The case is In re: Snap Inc. Securities Litigation, (case number 2:17-cv-03679) in the U.S. District Court for the Central District of California.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

Supreme Court Told ERISA Doesn’t Doom Arkansas PBM Law

The federal government has requested the U.S. Supreme Court to reverse the Eighth Circuit’s ruling that an Arkansas law regulating pharmacy benefit managers’ (PBM) drug reimbursement rates was preempted by the Employee Retirement Income Security Act (ERISA). U.S. Solicitor General Noel J. Francisco said the finding took the federal law’s preemption provision too far. He told the high court in his amicus brief that the Eighth Circuit wrongly found that Arkansas’ Act 900 had an impermissible reference to and connection with ERISA plans, triggering preemption.

The statute didn’t act immediately or exclusively on ERISA plans, and those plans weren’t essential to the operation of the law, the federal government’s brief said. The solicitor general contended that though Act 900 might have an indirect economic influence on ERISA plans, it didn’t force their administrators to choose any particular path. The government said:

Indeed, the [Supreme] Court has cautioned that, if state laws that merely influenced the choices of ERISA plans were preempted, courts would ‘scarcely see the end of ERISA’s preemptive reach.’

The Arkansas law at the center of the case was initially struck down by a federal court in March 2017 after the Pharmaceutical Care Management Association (PCMA) challenged the statute. The state took the case to U.S. the Supreme Court after the Eighth Circuit sided with the trade group on appeal.

The solicitor general asked the Supreme Court in December to grant Arkansas’ petition to review the Pharmaceutical Care Management Association’s win at the appeals court. In January the justices agreed to do so. Arkansas then filed a brief defending its law.

In the government’s brief, the solicitor general also took aim at PCMA’s arguments for why the Arkansas statute was preempted by ERISA. The trade group’s “concerns about the consequences of the Arkansas statute for nationally uniform plan administration are misplaced,” the government said.

Ultimately, the solicitor general said the statute only imposed obligations on PBMs, not ERISA plans. Additionally, he added that the court didn’t need to address whether the federal benefits law preempted the application of the Arkansas statute to ERISA plans managing prescription drug benefits themselves, since PCMA’s members weren’t plans.

It was further noted by the solicitor general that the language of ERISA and the context surrounding its passage didn’t suggest that Congress meant for the federal benefits law to overtake the states’ regulation of health care costs. The solicitor general said:

Holding that ERISA preempts Arkansas’s regulation of pharmacy reimbursement rates would thus stretch ERISA’s preemption provision beyond what history suggests Congress contemplated.

Arkansas has been supported strongly at the Supreme Court by other states. Amicus briefs were submitted by 46 attorneys general and several pharmacy groups, including the National Association of Specialty Pharmacies and National Community Pharmacists Association. The state was also backed by medical professional organizations, such as the American Medical Association and American Pharmacists Association. Arkansas Attorney General Leslie Rutledge in a statement said:

Having such large bipartisan support from the public and private sectors shows the overwhelming need to regulate abusive PBM reimbursement practices. Abusive PBM reimbursement practices are harming Arkansas patients and community pharmacies nationwide, all the while lining the pockets of PBMs with billions of dollars.

Arkansas is represented by Nicholas Jacob Bronni, Leslie Rutledge and Shawn J. Johnson of the Arkansas Attorney General’s Office. The case is Rutledge v. Pharmaceutical Care Management Association, (case number 18-540) in the Supreme Court of the United States.

Source: Law360.com

THE CONSUMER CORNER

The U.S. Supreme Court And The Legacy Of The CFPB

On Tuesday, March 3, the United States Supreme Court heard arguments that very well could deconstruct one of the most effective and efficient resource available to the American consumer to challenge corruption in Corporate America. The Consumer Financial Protection Bureau (CFPB), known for its actions against unscrupulous business practices by credit card companies, banking systems such as Wells Fargo, debt collection agencies, and student loan servicers, is distinctive as a government entity removed from political influence, by design.

The crux of the CFPB’s empowerment as an advocate for consumers in America is largely enabled by its exclusion from political influence and the bureau’s exclusive and insular design: the CFPB’s current structure prevents the president from firing its director except in cases of “inefficiency, neglect of duty, or malfeasance in office,” and its funding allocation exists outside of conventional Congressional appropriations.

By itself, the CFPB has been a target of the Trump administration in efforts to dismantle and/or undermine the Bureau’s intent to protect the rights of consumers since the administration’s assumption of office. The latest effort is the legal action filed by California-based Seila law firm in its constitutional challenge to the Bureau’s legal structure and leadership before the United States Supreme Court.

Seila Law represents Defendant companies involved in consumer-debt cases the CFBP has pursued legal action against, and argues that because the Agency Director’s appointment is for five years and can only be revoked by the president for cause, the president’s power granted by the constitution to terminate any officer at will is inherently a constitutional violation in separation of powers.

For its efforts in advocating this interpretation of the executive’s constitutional right, Seila Law has gained an alliance with the Trump administration in their amicus curiae (friend of the court) brief. Remarkably, Seila Law also has the support of the CFPB, as the current Bureau Director is Trump-appointed Kathy Kraninger, forcing Justice Elena Kagan to appoint a solicitor to argue on behalf of the seemingly abandoned bureau.

Previous challenges to the Bureau’s structure’s legitimacy successfully contended this requirement ensured its independence and validity as an advocate for consumers, and the House of Representative’s own amicus brief says as much. But the court’s current makeup of a conservative majority indicated its discomfort in the level of independence the CFPB operates with, indicating through oral arguments the Court’s intention to strip the bureau director’s protections under the Dodd-Frank Act.

Strengthening this likelihood is Justice Kavanaugh previously noting in the D.C. Court of Appeals case PHH Corporation v. CFPB, “…[the CFPB] possess enormous power over American business, American consumers, and the overall U.S. economy.” Should the Court agree with Seila Law’s corporate clients, the Agency and the Trump Administration’s position that the CFPB’s leadership structure is unconstitutional, the Court must consider whether the statue from whence the provision derives can be salvaged, thus weighing the consequences of potentially delegitimizing the CFPB”s decisions, actions and interests in advocating for consumers for the past decade.

The causticness of the case is underlined by the crux of the Congressional intent in structuring the Bureau to ensure a director’s advocacy for consumers’ best interests. Essentially, the Court system is being abused to institute politically abused power, most likely to the greatest political donor. The CFPB was designed to be an independent agency for consumer advocacy regardless of what political party is in power and this latest attack has amplified its continued need.

If you need more information, contact Lauren Miles, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.

White House Nominates Dr. Nancy Beck To Chair CPSC

The White House has nominated Dr. Nancy Beck, described as an environmental health expert, to chair the Consumer Product Safety Commission (CPSC).

Dr. Beck, who earned her environmental health doctorate from the University of Washington, would bring years of experience as a scientist and public policymaker to the CPSC, an agency that is ordinarily staffed by professionals with little to no technical expertise in science, health, engineering and other relevant fields. Dr. Beck also holds a master’s in environmental health and toxicology.

Dr. Beck has had decades of government and regulatory experience going all the way back to the Clinton administration and continuing into the Bush and Obama administrations. She had positions in the Washington State Department of Health, the U.S. Office of Management and Budget, and in the American Chemistry Council, where she served as senior director for science regulatory policy. Dr. Beck currently serves as the Principal Deputy Assistant Administrator of the Environmental Protection Agency (EPA)’s Office of Chemical Safety and Pollution.

Dr. Beck previously led the EPA’s office of chemical safety, a position she came to after serving as the senior director of regulatory science policy at the American Chemistry Council, a lobbying group for the chemical industry. Dr. Beck’s former life as a lobbyist for this industry concerns some people.

Hopefully, Dr. Beck won’t use her previous connections to the chemical industry to advance the agenda of the industry. During her time at the EPA, Dr. Beck oversaw the rewriting of an Obama-era rule in 2017 on a class of chemicals known as perfluoroalkyl and polyfluoroalkyl substances, or PFAS, that are linked to birth defects, in a way that would make them harder to regulate. She also helped scale back proposed bans on other substances like asbestos and methylene chloride, a deadly chemical found in paint thinners, in favor of limited restrictions.

The Environmental Working Group, a nonprofit public health advocacy organization, said the recent movement to protect the public from water contaminants came only after intense pressure from Congress. They criticized the EPA for failing to consider regulations earlier. The group’s president, Ken Cook, called Dr. Beck’s track record “riddled with disregard” for the risks that toxic chemicals pose to human health.

The Consumer Product Safety Commission investigates the safety of products, ranging from studying whether drawstrings on children’s coats and sweatshirts pose a choking risk, or whether to issue a recall of lead-tainted toys from China. Watchdog groups say the agency, which was created in 1972 to protect the public against “unreasonable risks” from consumer products, suffers from budget cuts and insufficient staff to monitor the more than 15,000 regulated items.

The Senate Committee on Commerce, Science and Transportation will consider Dr. Beck’s nomination before it reaches the Senate floor for a confirmation vote. If appointed, Dr. Beck would take over the top spot from acting CPSC chairman Robert S. Adler, a Democrat and consumer advocate who has served on the Commission since 2009. The Senate Committee on Commerce, Science and Transportation will review her nomination and, if favorable, move it to the Senate floor for a vote.

Sources: Law360.com, National Law Review and ChemicalWatch.org

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The following is the April 2020 update on the types of cases that Beasley Allen lawyers are currently working on. The firm operates in four separate Sections with each Section focusing on a specific area of litigation. The four Sections are Personal Injury & Products Liability, headed by Cole Portis; Mass Torts, headed by Andy Birchfield; Toxic Torts, headed by Rhon Jones; and Consumer Fraud & Commercial Litigation, headed by Dee Miles. Information on the current litigation will be set out below for each Section.

Personal Injury & Products Liability Section

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

Product Liability – We continue to focus on accident cases involving automobiles, heavy equipment and consumer products. Some of these auto cases involve single-vehicle crashes, while others involve multiple-vehicle accidents. We would like to review any case involving catastrophic injury or death. Contact: Cole.Portis@beasleyallen.com, Greg.Allen@beasleyallen.com, Ben.Baker@beasleyallen.com, Chris.Glover@beasleyallen.com, Mike.Andrews@beasleyallen.com, Graham.Esdale@beasleyallen.com, Labarron.Boone@beasleyallen.com or Rob.Register@beasleyallen.com.

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

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.

Opioids – Opioid abuse has reached epidemic proportions in the United States. According to the Department of Health & Human Services, 12.5 million people misused prescription opioids and 33,091 Americans died from opioid overdose in 2015 alone. These medications provide important pain relief for many. However, over the years, drug companies inflated the effectiveness of delayed-release medications like OxyContin and downplayed their addictive properties, creating conditions ripe for abuse. We are investigating cases involving opioid-related deaths and overdose requiring hospitalization, as well as cases involving treatment for addiction to prescription opioids. Contact: Melissa.Prickett@beasleyallen.com, Roger.Smith@beasleyallen.com or Liz.Eiland@beasleyallen.com.

Opioids and Infants – The opioid epidemic has also taken its toll on the most vulnerable among us. According to the National Institute on Drug Abuse, every 25 minutes, a baby is born addicted to opioids – a condition called Neonatal Abstinence Syndrome (NAS). Babies with NAS suffer painful symptoms of opioid withdrawal in the hours and days after they are born and are more likely to suffer long-term complications like developmental delays and hearing or vision impairment, compared to babies born to mothers who did not use opioids. We are investigating cases on behalf of children who were born with NAS after their mothers were prescribed opioids before or during pregnancy. Contact: Melissa.Prickett@beasleyallen.com, Roger.Smith@beasleyallen.com or Liz.Eiland@beasleyallen.com.

Consumer Fraud & Commercial Litigation Section

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

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

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

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

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

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

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

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

Supplemental Disability Insurance Denial – We have successfully litigated bad faith denial of benefits cases for years in the disability insurance area and we are interested in reviewing cases involving denial of Individual and Group disability insurance. These cases can be either employee sponsored benefit plan policies (ERISA), individually owned policies or non-ERISA governed supplemental insurance. Contact: Larry.Golston@beasleyallen.com, Rachel.Boyd@beasleyallen.com, James.Eubank@beasleyallen.com or Paul.Evans@beasleyallen.com.

Health Care Fraud – We are looking into cases of fraud within the health care industry. These may include cases dealing with pricing, off-label prescriptions, or other health care abuse. Contact: Alison.Hawthorne@beasleyallen.com, James.Eubank@beasleyallen.com or Dee.Miles@beasleyallen.com.

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

Pharmaceutical Pricing – We are continuing to handle claims involving chain pharmacies falsely reporting their generic pricing transactions to state Medicaid agencies. This misconduct has led to millions of dollars in overpayments by Medicaid agencies for generic drugs to the chain pharmacies. Contact: Alison.Hawthorne@beasleyallen.com, James.Eubank@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, James.Eubank@beasleyallen.com or Leslie.Pescia@beasleyallen.com.

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

Employment Law – We are handling employment cases. Situations that may be addressed in this area include minimum wage and overtime pay, unfair labor practices, all types of discrimination, employee benefits, and whistleblower claims. Contact: Larry.Golston@beasleyallen.com, Lauren.Miles@beasleyallen.com or Leon.Hampton@beasleyallen.com.

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

Toxic Torts Section

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

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

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

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

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

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

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

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

You should 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 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 bi-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 TIP OF THE MONTH FOR TRIAL LAWYERS

Trial Tips For Lawyers

Recently, Law360 interviewed Beth Wilkinson, a lawyer with Wilkinson Wash. Beth, an outstanding lawyer, has participated as a criminal and civil lawyer in a large number of high-profile cases in her career. Among other notable cases, Beth was involved in the prosecution of Timothy McVeigh, the Oklahoma City bomber, in the 1990s. Some of Beth’s clients on the Defense side of the ledge have included Bayer, the NCAA, and Philip Morris.

Beth was asked by Law360 about how one should communicate with jurors. She mentioned three important matters: (a) be authentic; (b) be prepared and intelligent; and (c) tell your story in a compelling way. Let’s see what Beth has for lawyers who try cases before juries.

It is easy for an attorney who is representing one side or the other to get so lost in the forest that he or she misses the trees. While we are expected to be zealous for our clients, we need to remember that our zeal has to be packaged in such a way that it is received well by a jury. As the lawyer, we are the voice for our client, some of whom have died or are not competent or able to speak on their own behalf.

In presenting a case to a jury, we need to be who we are and not try to be someone else. A young lawyer who attempts to be F. Lee Bailey will soon find that his theatrics are not well-received by most jurors. Most jurors are savvy and they understand what is real and what is not. Lack of authenticity, much as if we misrepresent or twist evidence, causes us to lose trust with jurors. And when trust is lost, all is lost.

In law school, our trial advocacy coach used to preach, “Know your case better than anyone else in the courtroom.” Know the facts, know the law, and know how the facts and the law interact. At the end of every case, a trial judge will charge a jury on the law. The jury should be able to understand how to plug your case into the law that is being presented to them. If they cannot square the two together, then the outcome will not be as you hoped for your client.

Finally, while being authentic and correlating the law with the facts, a good lawyer must be able to present his case in a story that the jury can follow and appreciate. In this age of litigation, most jurors have watched shows such as NCIS or other crime-legal shows. They believe they have a sense of what must be presented and how it must be presented. Most jurors have an innate need to be entertained, for lack of a better term. Jurors want what you present to be real and to make sense, but they want it to be interesting as well. Demonstrative evidence, such as videos, models and displays may help with this, but ultimately it comes down to the attorney being able to tell a compelling and interesting story.

Beth, in closing her interview with Law 360, stated that the biggest change she has seen in her 30-plus years of trying cases is that fewer cases are tried. Sadly, she is right. Lawyers have more tools at their disposal to try cases but fewer opportunities. When these opportunities do arise, it is important not to forget what matters most – authenticity, preparedness and presentation.

James Lampkin

The following is from James Lampkin, a lawyer in our Mass Torts Section. James, who practiced with a Mobile firm before joining Beasley Allen, has been with our firm for eight years. He gives some insight into several aspects of a case to be tried before a jury.

After my first year of law school, I had the good fortune of working as a law clerk for an established firm in Birmingham. Justice Eric Embry, who served on the Alabama Supreme Court, was “of counsel” for the firm at that time. Justice Embry gave me some valuable advice that I have tried to apply throughout all phases of my practice. Justice Embry practiced in the days of “code” pleading and told me I should always start with the statutes to determine if there were any statutory requirements for a particular cause of action. i.e., the elements of the action. He explained that knowing the elements served as the foundation for the lawsuit and should serve as a guide for the other things you do in preparing and trying the case.

Although we no longer practiced under the old “code” pleading rules, Judge Embry’s advice was still viable and important because it relates to being prepared and knowledgeable of the case you are handling. Through my own experience over the past 30 years, another valuable source of the elements of a cause of action is found in a jurisdiction’s pattern jury instructions. Knowing the elements of each cause of action is important in all phases of a case.

Written Discovery

The elements of a cause of action are crucial to any discovery you are seeking from the other party. What you have to prove for each cause of action should always be considered in formulating interrogatories, requests for production and requests for admissions. Discovery requests should be tailored to make sure you are seeking information that will provide evidence to support each element of each cause of action. For a younger lawyer, I would suggest taking the time to sit down, think through and chart out the elements of each cause of action before drafting the first discovery request. How can you send effective discovery requests if you don’t know what you are looking for and what you must prove in order to survive summary judgment?

Depositions

The elements of a cause of action are also important in determining who to depose and what information you need to get from a particular witness. In the context of a Rule 30(b)(6) deposition of a corporate party, there may be more than one individual whose testimony may be required to obtain the evidence necessary to support the elements of a particular cause of action or different causes of action. Knowledge of what you must prove will allow you to correctly identify the subjects of testimony you need from a corporate party. Even for non-corporate parties, different witnesses may provide different elements of a particular cause of action. For example, on a wanton conduct claim, you will need a witness to testify about the particular conduct affecting your client; you will need a witness that can establish the Defendant’s state of knowledge concerning the risk of the conduct; and you will need a witness to establish damage as a result. While an injured party may be able to establish the first and third points, a different witness will likely be required to establish the second.

Motions

The elements of the cause of action and the evidence supporting those elements will be the deciding factors in determining whether your case survives a motion for summary judgment. If you have not prepared for the motion by knowing each and every element that you have to prove in order to prevail, you will likely not have the evidence you will need to overcome the motion. Not having evidence to support an important element of your cause of action can be fatal on a motion for summary judgment.

As to discovery motions, the elements of a cause of action can serve as the basis for arguing that discovery should be allowed or prevented. Ask yourself: Is the information requested reasonably calculated to lead to the discovery of admissible evidence of a particular element, for instance, a Defendant’s knowledge of the risk of the conduct at issue?

Trial

At the end of trial, the judge is going to instruct the jury on the law. These instructions will include the elements of each cause of action the jury will consider and decide. If you haven’t introduced documentary evidence or put a witness on the stand to prove up each element of a cause of action, your jury may never get the chance to render a decision on it because you may lose that cause of action on a directed verdict motion.

The preparation for the trial stage begins before your case is even filed. If you haven’t thought through and planned out your route, you likely won’t get to your ultimate destination. The elements of your client’s cause of action serve as the road map for your trial journey.

RECALLS UPDATE

We are again reporting a large number of safety-related recalls. We have included some of the more significant recalls that were issued in March. 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.

Automotive Recalls

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2019 Audi Q8 and 2017-2019 Audi Q7 vehicles. The bolt connecting the steering shaft to the steering gear may loosen, possibly resulting in a loss of steering control.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2019 Arteon vehicles. The electronic brake booster pressure input rod may be installed incorrectly, possibly causing an increased actuating force or a disconnected input rod. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 135, “Light Vehicle Brake Systems.” An increased actuating force or a disconnected input rod may affect braking, increasing risk of a crash.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2016-2019 Audi TT Roadster Quattro and TT Coupe Quattro vehicles. In the event of a crash, the fuel tank may become damaged by the fuel tank heat shield bracket. A damaged fuel tank may leak fuel, increasing the risk of a fire.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2019 Audi Q7 vehicles. In the event of a crash, the side curtain air bags may not properly inflate.

Eldorado National-Kansas is recalling certain 2017-2019 Ford World Trans E-series vehicles. The seat belt may not be properly secured to the side wall. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 210, “Seat Belt Assembly Anchorages.” If the seat belt is not properly secured in a crash, the occupant will not be properly restrained, increasing their risk of injury.

Nissan North America, Inc. (Nissan) is recalling certain 2020 Infiniti Q60 vehicles equipped 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 involving multiple impacts, the seat belt may not properly restrain the occupant, increasing the risk of injury.

Volvo Cars USA LLC (Volvo Cars) is recalling certain 2019-2020 S60, V60, V60 Cross Country, S90L, V90, V90 Cross Country, XC40, XC60, and XC90 vehicles. Due to a software/hardware incompatibility, the Automatic Emergency Brake (AEB) system may not detect obstacles and engage as intended.

General Motors LLC (GM) is recalling certain 2020 Chevrolet Silverado 2500 and 3500 and GMC Sierra 2500 and 3500 vehicles. The hood-latch striker wires 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 risk of a crash.

Jaguar Land Rover North America, LLC (Land Rover) is recalling certain 2017-2018 Discovery vehicles equipped with low line headlight assemblies. When towing a trailer with the trailer lights connected to the trailer socket and the vehicle’s Daytime Running Lights (DRL) are on, the trailer lights may not function. If the trailer lights are not working, following traffic won’t be aware the vehicle is slowing down or stopping increasing the risk of a crash.

BMW of North America, LLC (BMW) is recalling certain 2020 F900R, F900XR, S1000RR, F750GS, F850GS, F850GS Adventure, R1250GS, R1250GS Adventure, R1250RS, R1250R, RnineT, RnineT Pure and RnineT Scrambler and 2019-2020 S1000R motorcycles. The brake light may flash instead of remain steady during emergency braking. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 108, “Lamps, Reflective Devices, and Associated Equipment.”

Key Safety Systems, Inc. dba Joyson Safety Systems (Joyson) is recalling certain rear seat belt retractors equipped with a dual mode belt locking mechanism. Due to a manufacturing issue, the seat belt webbing locking mechanism may not properly restrain the occupant as intended. In the event of a crash, if the occupant is not properly restrained, there is an increased risk of injury.

PACCAR Incorporated (PACCAR) is recalling certain 2016-2020 Peterbilt 320 and 520 vehicles with dual foot valves and a liftable tag or tri-drive rear axles. The rear brake signal hose may be missing a quick release valve, possibly causing a delay in their brake release timing. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 121, “Air Disc Brakes.” A delayed brake release may increase the risk of a crash.

PACCAR Incorporated (PACCAR) is recalling certain 2015-2020 Peterbilt 365, 389, 567, and 579 vehicles equipped with a left-hand under hood jumper terminal (option code 2539410). The positive battery jumper terminal cable may be too long, allowing it to chafe against the left front suspension spring and result in an electrical short circuit. An electrical short circuit can increase the risk of a fire.

Chrysler (FCA US LLC) is recalling certain 2018-2020 Jeep Wrangler and 2020 Gladiator vehicles equipped with manual transmissions. The clutch pressure plate may overheat and fracture. The overheated clutch components may increase the risk of a fire. Additionally, damage to other nearby components can result in debris falling onto the road or a loss of drive, increasing the risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2019-2020 Freightliner 108SD, 114SD, Cascadia, Business Class M2, Western Star 4700 and 5700, Freightliner Custom Chassis S2, Custom Chassis XB, and Custom Chassis XC vehicles equipped with air disc brakes. The brake caliper mounting bolts may have been insufficiently tightened. Loose brake caliper mounting bolts can reduce brake effectiveness, increasing the risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2019-2020 Thomas Built Saf-T-Liner HDX, EFX, and C2 school buses equipped with air disc brakes. The brake caliper mounting bolts may have been insufficiently tightened. Loose brake caliper mounting bolts can reduce brake effectiveness, increasing the risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2017-2020 Thomas Built Buses Saf-T-Liner C2 school buses configured with a specific Switch Hub Module (part numbers 204803 and 216434) combined with a 500k Bulk Head Module and a certain 3-position momentary switch warning light package. The Switch Hub Module (SHM) that controls the exterior warning lights and stop sign may fail, resulting in deactivation of the red warning lights, stop sign and system indicator.

Daimler Vans USA, LLC (DVUSA) is recalling certain 2019 Mercedes-Benz Sprinter and Freightliner Sprinter vehicles. The screws that secure the intermediate bearing of the steering spindle may not have been properly tightened, potentially causing the screws to loosen and detach. If the screws detach, the driver may have difficulty steering the vehicle, increasing the risk of a crash.

Daimler Vans USA, LLC (DVUSA) is recalling certain 2019 Mercedes-Benz Sprinter and Freightliner Sprinter vehicles. The steering column casing cover may have not been installed, allowing the steering column area to be exposed. If small vehicle components, such as nuts and screws, enter the steering column area, the steering operation can be affected, increasing the risk of a crash.

Daimler Vans USA, LLC (DVUSA) is recalling certain 2019 Mercedes Benz Sprinter and Freightliner Sprinter vehicles. The flange connection between the exhaust gas turbocharger and the exit to the diesel particulate filter may not be attached properly, potentially causing an exhaust gas leak. An exhaust gas leak in the engine compartment increases the risk of a fire.

Hyundai Motor America (Hyundai) is recalling certain 2013-2014 Sonata vehicles. The low pressure fuel hose that connects the low pressure fuel pump to the direct injection fuel pump may crack over time due to heat generated within the engine compartment. If the fuel line cracks, a fuel leak can occur, increasing the risk of a fire.

Hyundai Motor America (Hyundai) is recalling certain 2020 Sonata vehicles produced between Oct. 22, 2019, and Feb. 13, 2020. The tire pressure label inside the driver’s door and the owner’s manual state an incorrect tire size. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 110, “Tire Selection and Rims.” The incorrect tire information may mislead the vehicle owner to install wrong tire size, potentially affecting vehicle handling, increasing risk of a crash.

General Motors LLC (GM) is recalling certain 2020 Chevrolet Silverado 1500 and GMC Sierra 1500 vehicles. The bolts used to attach the front and/or rear brake calipers may have not been heat treated and may break under load. Broken caliper bolts can reduce brake performance or interfere with wheel rotation and increase the risk of a crash.

Nissan North America, Inc. (Nissan) is recalling certain 2020 Versa vehicles. Due to a manufacturing issue, the fuel tank wall thickness may be insufficient, potentially causing a small hole in the tank seam area. If a small hole is present, a fuel leak may occur if the operator fills the tank over half full, increasing the risk of a fire.

Ford Motor Company (Ford) is recalling certain 2019 Ranger vehicles previously repaired under recall 19V-726. The service replacement Heating, Ventilating and Air Conditioning (HVAC) blower motor that was installed may have an improper clearance between an electrical terminal and the conductive base plate that may result in a resistive electrical short. A resistive electrical short increases the risk of a fire.

Ford Motor Company (Ford) is recalling certain 2015-2016 F-150 pick-up trucks equipped with 3.5L GTDI engines and block immersion heaters that were potentially relocated from their originally installed location. The incorrect location could put the heater too close to hot engine components, possibly resulting in a damaged cable. A damaged cable could cause resistive short, increasing the risk of overheated or melted wiring, increasing the risk of a fire.

Ford Motor Company (Ford) is recalling certain 2020 F-550 and 2021 E-350 and E-450 vehicles. The rear axle differential fluid may be below the minimum level, possibly resulting in a failure of the rear axle assembly and driveshaft separation. If the drive shaft separates, there may be a loss of drive, increasing the risk of crash. Additionally, if the parking brake is not applied, unintended vehicle movement can occur and increase the risk of injury or crash.

Ford Motor Company (Ford) is recalling certain 2018-2020 F-150 trucks equipped with high series LED headlamps with Autolamp (On/Off) functionality. The Daytime Running Lamps (DRL) may remain activated instead of dimming to parking lamps when the Master Lighting Switch (MLS) is manually rotated from the “Autolamps” switch position to “Headlamps On.” As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 108, “Lamps, Reflective Devices and Associated Equipment.” DRL that cannot dim may reduce visibility of other drivers, increasing the risk of crash.

Kia Motors America (Kia) is recalling certain 2013-2014 Optima vehicles equipped with 2.4L Gasoline Direct Injection (GDI) or 2.0L GDI Turbo engines. The low-pressure fuel hose may deteriorate and crack over time due to heat generated within the engine compartment. If the fuel hose cracks, a fuel leak may occur, increasing the risk of a fire.

Kia Motors America (Kia) is recalling certain 2011-2012 Sedona vehicles. The fuel rail may crack from exposure to heat generated within the engine compartment, resulting in a fuel leak. A fuel leak increases the risk of a fire.

BMW of North America, LLC (BMW) is recalling certain 2014-2019 M6 Gran Coupe vehicles. The third brake light may become loose, possibly allowing the light to detach from the vehicle.

BMW of North America, LLC (BMW) is recalling certain 2019 C400X scooters. Water may collect in the throttle cable, which can freeze in cold temperatures, resulting in a stuck throttle.

Mercedes-Benz USA, LLC. (MBUSA) is recalling one 2019 Smart Fortwo Electric Drive vehicle. A welded joint within the high-voltage battery main cell conductors may detach and interrupt electrical contact, resulting in sudden battery failure. The detached weld may also cause an electrical arc which can ignite inside the battery cells. If the high-voltage battery fails, the vehicle may stall, increasing the risk of a crash. In addition, an electrical arc inside the battery increases the risk of a fire.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2020 CLA250, CLA250 4MATIC and CLA35 AMG 4MATIC, 2020-2021 GLE350, GLE350 4MATIC, GLE450 4MATIC, GLS450 4MATIC and GLS580 4MATIC and 2021 GLE53 AMG Coupe, GLE63S AMG 4MATIC, GLS63 AMG 4MATIC and Maybach GLS600 4MATIC vehicles. The instrument cluster software may deactivate the illumination of certain interior switches (switch bar, overhead control unit, steering wheel) if the hazard lights are turned on and the ignition switch is in the ‘off’ position. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 101, “Control and Displays.”

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2019-2020 G550 4MATIC and G63 AMG 4MATIC vehicles. An electrical resistor within the differential locking module may malfunction, interrupting communication between the control unit and the differential locking actuator, possibly resulting in the deactivation of the Electronic Stability Program (ESP) and Anti-lock Brake System (ABS) while driving. Deactivation of the vehicle stability control system or anti-lock brakes may increase the risk of a crash.

PACCAR Incorporated (PACCAR) is recalling certain 2020 Kenworth T370 long wheelbase vehicles with larger rear axle spacing. The vehicles may be missing a second R12 relay valve, causing increased brake activation timing. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 121, “Air Brake Systems.” Increased brake activation timing may lengthen vehicle stopping distance, increasing the risk of a crash.

Chrysler (FCA US LLC) is recalling certain 2019 Ram 1500 pickup trucks equipped with four-wheel drive. A gear within the transfer case may not have been installed correctly, possibly causing the vehicle to become stuck in neutral. If this occurs while driving, there could be a sudden loss of power. Additionally, a loss of “PARK” function may occur. A sudden loss of power or a loss of “PARK” function may increase risk of a crash.

Jaguar Land Rover North America, LLC (Jaguar) is recalling certain 2010 XF vehicles equipped with 4.2L engines. The fuel tank outlet flange may crack, allowing fuel to leak. A fuel leak in the presence of an ignition source may increase the risk of a fire.

Jaguar Land Rover North America, LLC (Jaguar) is recalling one 2020 I-Pace vehicle. The front passenger seat frame may be missing fasteners, resulting in a seat frame with insufficient strength.

Porsche Cars North America, Inc. (Porsche) is recalling certain 2015-2018 Macan vehicles. The fuel pump service cover may contact the flow nozzle on the filter flange of the fuel pump, potentially causing cracks and a fuel leak. Fuel leakage in the presence of an ignition source may increase the risk of a fire.

Yamaha Motor Corporation, USA (Yamaha) is recalling certain 2019 YZF-R3 motorcycles. The brake hose holder may come loose, potentially causing damage to the brake hose protector and hose, resulting in a brake fluid leak. A brake fluid leak can reduce braking ability, increasing risk of a crash.

Yamaha Motor Corporation, USA (Yamaha) is recalling certain 2019 YZF-R3 motorcycles. The front brake hose may chafe against the horn lead wire when the handlebars are turned from left to right, potentially resulting in a brake fluid leak. A brake fluid leak can reduce braking ability, increasing risk of a crash.

The Kawasaki MULE PRO off-highway utility vehicles are being recalled because debris can ignite on the vehicle’s exhaust manifold and frozen water can block the breather hose allowing oil to leak, posing a fire hazard.

The Kawasaki MULE PRO off-highway utility vehicles are being recalled because the steering shaft can develop excessive wear and affect steering control resulting in a crash hazard, posing a risk of injury or death.

Tire Recalls

Yokohama Tire Corporation (Yokohama Tire) is recalling certain Yokohama RY023 tires, size 255/70R22.5 16H (DOT date code 0320 and 0520 through 0620), RY023 tires, size 295/75R22.5 16H (DOT date codes 0320 through 0520), RY023 tires, size 285/75R24.5 14G (DOT date codes 0320 and 0520), RY617 tires, size 11R22.5 16H (DOT date code 0320), RY617 tires, size 11R24.5 16H (DOT date codes 0220 and 0420 through 0620), TY517 MC2 tires, size 295/75R22.5 14G (DOT date codes 0220 through 0620), TY517 MC2 tires, size 285/75R24.5 14G (DOT date codes 0420 through 0620), TY517 MC2 tires, size 11R22.5 16H (DOT date codes 0320 through 0620), TY527 tires, size 11R24.5 16H (DOT date code 0520), 712L tires, size 295/75R22.5 16H (DOT date codes 0420 through 0620), 712L tires, size 11R22.5 16H (DOT date codes 0620 and 0320 through 0420), 709ZL tires, size 285/75R24.5 14G (DOT date code 0420), 709ZL tires, size 11R24.5 14G (DOT date code 0220), LY053 tires, size 11R24.5 16H (DOT date codes 0320 through 0620), 109L tires, size 11R22.5 14G (DOT date codes 0220 and 0420 through 0620), 109L tires, size 285/75R24.5 14G (DOT date codes 0620 and 0320 through 0420), 109L tires, size 295/75R22.5 14G (DOT date code 0420), 108R tires, size 11R24.5 16H (DOT date codes 0320 and 0620), and 715R tires, size 295/75R22.5 16H (DOT date codes 0320 through 0420). Due to improper manufacturing, the tires tread or bead may detach, possibly resulting in loss of vehicle control. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic Tires – Other than Passenger Cars.” A sudden loss of vehicle control increases the risk of a crash.

Compañia Hulera Tornel, S.A.de C.V. (Tornel) is recalling certain Tornel Deportiva tires, size P235/60R14, with DOT date codes 2216 and 4116 through 5016. Due to a manufacturing issue, the adhesive between the belt and tread base may fail, possibly causing tread block separation. 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.” A tread block separation could lead to loss of vehicle control, increasing the risk of a crash.

Sentury Tire Thailand (Sentury Tire) is recalling certain Delinte DX11 tires, size LT275/65R20 with DOT date codes 3617 through 2219, Lionhart Lionclaw HT tires, size LT275/65R20 with DOT date codes 4617 through 2518, Lexani LXHT206 tires, size LT275/65R20 with DOT date codes 4617 through 5018, Patriot Patriot HT tires, size LT275/65R20 with DOT date codes 2518 through 2618, Landsail CLX11, tires, size LT275/65R20 with DOT date codes 2917 through 1618, Wild Spirit Wild Spirit HST tires, size LT275/65R20 with DOT date codes 4617 through 2618, and Pantera Supertrac HT tires, size LT275/65R20 with DOT date codes 4717 through 2418. 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.

Compañia Hulera Tornel, S.A.de C.V. (Tornel) is recalling certain Tornel A/T-09 tires, size LT265/75R16, Load Range C with DOT date codes 2119 through 2619. Due to improper manufacturing, the sidewall rubber may separate from the body ply cords and cause separation of the lower sidewall. 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.

Goodyear Tire & Rubber Company (Goodyear) is recalling certain Fortera HL tires, size P255/65R18. Due to a manufacturing issue, the tire may experience a belt separation. A belt separation could lead to loss of vehicle control, increasing the risk of a crash.

Other Consumer Recalls

Novartis Pharmaceuticals Corporation, of East Hanover, New Jeresey, has recalled about 73,000 packages of Sandimmune® (cyclosporine capsules, USP) 100 mg soft gelatin capsules and Neoral® (cyclosporine capsules, USP) MODIFIED 100 mg soft gelatin capsules prescription drug blister packages. The prescription drug packaging is not child resistant as required by the Poison Prevention Packaging Act (PPPA), posing a risk of poisoning if the contents are swallowed by young children. This recall involves blister packages of prescription medications Sandimmune® (cyclosporine capsules, USP) 100 mg soft gelatin capsules and Neoral® (cyclosporine capsules, USP) MODIFIED 100 mg soft gelatin capsules from Novartis. Packages of Sandimmune 100 mg contain three blister cards with ten soft gelatin capsules per card and packages of Neoral 100 mg contain five blister cards with six soft gelatin capsules per card. The recalled blister packages have “Novartis,” the name of the medication, dosage, NDC, lot number and expiration date on the outer package and on the blister cards. Only 100 mg doses of these medications are included in this recall

The packages were sold at clinics and pharmacies nationwide as a prescribed medicine from March 2018 through March 2020, at prices varying based on quantities prescribed, health insurance terms, and other factors. Consumers should immediately secure the product out of the sight and reach of children and contact the company to request a free child-resistant pouch in which to store the blister package medications. Consumers can continue to use the medication as directed. The child-resistant pouches should be used to store these medications until new child-resistant blister packaging is available. Novartis can be contacted toll-free at 866-629-6182 from 8 a.m. to 8 p.m. ET daily, email at Novartis5060@stericycle.com or online at www.pharma.us.novartis.com and in the top navigation of the page go to the News tab and click on Statements, or visit https://www.pharma.us.novartis.com/news/statements/corrective-action-certain-100-mg-sandimmune-and-neoral-blister-packages-us for more information.

Kolcraft Enterprises Inc., of Chicago, Illinois, has recalled about 51,000 inclined sleeper accessory included with Kolcraft Cuddle ‘n Care 2-in-1 Bassinet & Incline Sleepers and Preferred Position 2-in-1 Bassinet & Incline Sleepers. Infant fatalities have been reported with other manufacturers’ inclined sleep products, after the infants rolled from their back to their stomach or side, or under other circumstances. This recall involves the inclined sleeper accessory sold with the Kolcraft Cuddle ‘n Care 2-in-1 Bassinet & Incline Sleeper (model number starting with KB063) and the Kolcraft Preferred Position 2-in-1 Bassinet & Incline Sleeper (model number starting with KB061). Model numbers are located on the metal bar between the bassinets’ legs. The inclined sleeper is the only portion of the product that is being recalled.

Consumers should immediately stop using the recalled inclined sleeper accessory and contact Kolcraft for a $35 voucher to be used on www.Kolcraft.com or a $20 refund. The voucher can be used until Feb. 20, 2022. Kolcraft is contacting all registered owners and known purchasers directly via a postcard by mail. Consumers can continue to use the bassinet without the inclined sleeper accessory. Contact Kolcraft at 800-453-7673 Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 3:30 p.m. CT, email customerservice@kolcraft.com, or online at www.kolcraft.com and click on “Incline Sleeper Recall” or “Safety Notifications” for more information.

Home Depot Product Authority, of Atlanta, Georgia, has recalled about 200 Home Decorators Collection Print Block 4-Drawer Whitewash Chest. The recalled chest is unstable if it is not anchored to the wall, posing serious tip-over and entrapment hazards that can result in death or injuries to children. The chest does not comply with the performance requirements of the U.S. voluntary industry standard (ASTM 2057-17). This recall involves the Home Decorator’s Collection Print Block 4-Drawer Whitewash Chest, Model # HDC-14012, made from mango wood with a distressed finish, which was sold between May 2015 and December 2019. The chest is about 44 inches tall and weighs about 96 pounds. A white label on the back of each chest lists the manufacturer “Country Art & Craft LLP” and date of production in black text.

The dressers were sold online at www.homedepot.com from May 2015 to December 2019 for about $900. Consumers should immediately stop using the recalled chest unless properly anchored to the wall, and place it in an area that children cannot access. Contact Home Depot for a full refund with free chest pick-up. Contact Home Depot at 800-466-3337 from 8 a.m. to 8 p.m. ET Monday through Friday and 8 a.m. to 6 p.m. ET Saturday; or online at https://www.homedepot.com and click on Product Recalls for more information.

American Honda of Torrance California, has recalled about 340,000 portable generators due to fire and Burn Hazards. The portable generator’s inverter assembly can short circuit with the presence of salt water. This causes the unit to smoke or catch fire, posing fire and burn hazards to consumers. This recall involves Honda EB2200i, EU2200i, EU2200i Companion and EU2200i Camo portable generators. The recalled portable generators were sold with a red or Camo cover. The name “HONDA” and the generator model name are printed on the control panel. The serial number is located on a lower corner of one of the side panels of the generator. The model names and serial number ranges that are being recalled:

Honda has received 13 reports of the generator’s inverter assembly short-circuiting while in use, including 10 reports of fire. No injuries or property damage reported. They were sold at authorized Honda Power Equipment Dealers, The Home Depot and other home improvement stores nationwide, and online from February 2018 through January 2020 for between $1,100 to $1,300. Consumers should immediately stop using the recalled generators and contact a local authorized Honda Power Equipment service dealer to schedule a free repair. Honda is contacting all known purchasers directly. Consumers who took part in the previous recall for these generators should also take part in this recall. Contact American Honda toll-free at 888-888-3139 from 8:30 a.m. to 7 p.m. ET Monday through Friday or online at https://powerequipment.honda.com/ and click on “Recalls and Updates” at the bottom of the page for more information.

Grizzly Industrial Inc., of Bellingham, Washington, has recalled about 20,645 Children’s Tool Kits. The tool belt, hammer and suspenders (model H3044) contain excessive levels of lead, violating the federal lead content standard. In addition, the toy goggles and hardhats do not meet toy safety requirements. The recalled Children’s Tool Kits have two different model numbers: H3044 and H5855. Model H3044 is a 12-piece tool kit that contains a helmet, goggles, tape measure, tool belt, hammer, pair of leather gloves, ruler, carpenter’s square, level, bottle of chalk and suspenders. Model H5855 is an 11-piece tool kit that contains goggles, tape measure, wooden tool caddy, hammer, ruler, carpenter’s square, level, screwdriver, pliers and an adjustable wrench. Model numbers are printed on the front upper right-hand corner of the packaging. “Grizzly Industrial” is printed on multiple items of the tool kits. Consumers should contact Grizzly Industrial for instructions on returning the recalled tool kits to receive a full refund including return shipping. Grizzly is contacting all known purchasers directly to notify them of this recall. Contact Grizzly Industrial toll-free at 888-615-7944 anytime or email at recalls@grizzly.com or online at www.grizzly.com and click on recalls for more information.

Hawthorne Hydroponics has recalled about 60,0000 Grower’s Edge Vaporizers. The vaporizers can overheat, and the vaporized materials can pose a burn risk if spilled or cause a fire if they fall onto a combustible surface. The Deluxe model vaporizer also poses an electrical shock hazard if a consumer touches a small copper piece at the base of the vaporizer while in use. This recall involves the Deluxe and Commercial models of the Grower’s Edge Vaporizer sold by Hawthorne Hydroponics LLC for use in hydroponic growing. The Deluxe vaporizer has a yellow, aluminum body and adjustable vaporizing cup, and the Commercial model has a stainless-steel plate and adjustable vaporizing cup. The following model numbers, which are visible on the packaging, are included in the recall:

Model Model Number UPC
Deluxe Vaporizer 704050 870883005795
Commercial Vaporizer 740650 870883000608

Hawthorne received 11 reports of overheating or fire, nine for the Deluxe and two for the commercial model. Hawthorne has received one report of property damage as a result of vaporizer use, apart from damage to the vaporizer itself. No injuries have been reported.

The vaporizers were sold at Hawthorne Hydroponics dealers nationwide, including hydroponic and indoor specialty gardening stores, and online from August 2011 through January 2020 for between $115 and $140. Consumers should immediately stop using the recalled vaporizers and return them to the place of purchase for a full refund in the form of store credit. Contact Hawthorne Hydroponics toll-free at 855-913-1678 from 9 a.m. to 6 p.m. ET Monday through Friday or online at www.growers-edge.net/ and click on “Recall Notice” or https://www.growers-edge.net/page/recall-notices.

Thule Group has recalled about 1,430 Thule Sleek Car Seat Adapters. The plastic brackets on the car seat adapter can break, posing a fall hazard to infants. This recall involves the Thule Sleek Car Seat Adapter used to place a Chicco car seat on the Thule Sleek Stroller. The adapter is metal with two black plastic brackets and clips onto the stroller. Only the car seat adapter is included in this recall. Product number 11000301 is printed on a sticker located on the adapter’s plastic bracket. The UPC code is 091021188099. Thule has received three reports of the plastic brackets on the car seat adapters cracking or breaking while in use. No injuries have been reported. Contact Thule Group toll-free at 855-652-2688 from 8 a.m. to 5 p.m. ET Monday through Friday, email at carseatadapter@thule.com, or online at www.thule.com/carseatadapter or www.thule.com and click on Support/Safety Notice for more information.

Crate and Barrel of Northbrook, Illinois, has recalled about 2,560 Miles Glass Pitchers with Wood Lid. The handle on the pitcher can break, posing a laceration hazard. The recalled 84 oz. glass Miles Pitcher has a wooden lid and measures about 9” H x 5” D. The product has a label on the bottom that reads in part: SKU #444-560, Miles Pitcher Wood Lid, and Made in China. Crate and Barrel has received five reports of the handle breaking off the glass pitcher while in use. No injuries have been reported. The pitchers were sold at Crate and Barrel stores nationwide and online at www.crateandbarrel.com from December 2019 through February 2020 for about $35. Contact Crate and Barrel at 800-451-8217 from 8 a.m. to 8 p.m. ET, Monday through Friday, or 8 a.m. through 7 p.m. CT Saturday through Sunday, or online at www.crateandbarrel.com and click on “Recalls” located at the bottom of the page.

C3 Manufacturing LLC, of Littleton, Colorado, has recalled about 1,100 Perfect Descent™ Auto Belays climbing devices. The belay climbing device can loosen and can cause slack on the rope, allowing the climber to fall. Climbing while tethered to a malfunctioning belay can cause serious injury or death. This recall involves Perfect Descent Auto Belay model 220 Indoor, Outdoor, Speed Drive and Direct Drive auto belay climbing devices. Belay devices are used with climbing ropes to protect the climber while climbing, to arrest a fall or while being lowered on the rope. The devices were sold in yellow and black and have “Perfect Descent” printed on the top of the devices. The recalled belay devices have the following serial number ranges printed on the bottom of the device: Serial number Manufacture Date:

  • I-0970 through I-3109 February 2017 through November 2018
  • S-0604 through S-1609 March 2017 through December 2018
  • S-1695 through S-1762 February 2019 through March 2019
  • D-1015 through D-1385 June 2018 through December 2018
  • D-1572 through D-1705 February 2019 through March 2019
  • D-1710 through D-1722 March 2019
  • D-1726 through D-1751 March 2019 through April 2019
  • D-1761 through D-1777 April 2019

The company contacted all known purchasers directly on Oct. 21, 2019. Contact C3 Manufacturing toll-free at 866-250-5903 from 9 a.m. to 6 p.m. MT Monday through Friday, email at support@PerfectDescent.com or online at www.perfectdescent.com and click on Service & Support, then Product Notices or https://linkprotect.cudasvc.com/url?a=https%3a%2f%2f%2f%2fwww.perfectdescent.com%2fproduct-notices%2f&;c=E,1,M85hMIeI3fe5xuzajM_Rq8iAMbidTGFXS0Vhd7zQ-G1YLf7Q_GIKTz8Kc2gRkOG1DsELh5L9QnD42gC8MTjTcItqdPADYzJcWyd7bQNYgnpL6s5cdYmNzOha&typo=1″>// www.perfectdescent.com/product-notices/ for more information.

Contigo Kids Cleanable Water Bottles’ clear silicone spout can detach, posing a choking hazard to children.

Browning Leather Pistol Holsters are being recalled because the holster design can change the position of the safety switch on the firearm without the user knowing it. When this occurs, if the trigger is accidentally pulled, the firearm could fire unexpectedly, posing an injury hazard to the user and bystanders.

Safavieh recalled chests of drawers due to tip-over and entrapment hazards. The recalled chests are unstable if they are not anchored to the wall, posing serious tip-over and entrapment hazards that can result in death or injuries to children.

Step2 recalled children’s grocery shopping carts due to laceration hazard. The shopping cart’s basket can break into sharp pieces, posing a laceration hazard.

Just Blanks children’s nightgowns are being recalled by Ishtex Textile Products because the nightgowns fail to meet the federal flammability standard for children’s sleepwear, posing a risk of burn injuries to children.

Lennox Ductless Single-Zone and Multi-Zone heat pumps are being recalled because internal electrical components can fail, allowing the units to overheat, posing a fire hazard.

Bayside Furnishings Lawler-9-PC-Dining Sets sold exclusively at COSTCO are being recalled because the dining chairs can break, posing a fall hazard.

IKEA is recalling its KULLEN 3-drawer chest because the recalled chest is unstable if it is not anchored to the wall, posing tip-over and entrapment hazards that may result in death or serious injuries to children. Additionally, KULLEN 3-drawer chests imported after Aug. 12, 2019 do not comply with the performance requirements of the updated version of the U.S. consensus standard (ASTM 2057-19).

RH is recalling its Camino Floor Lamps because the lamp’s on/off foot switch can overheat, melt or catch fire, posing a fire hazard.

Joules USA is recalling its children’s pajamas and robes because the children’s garments fail to meet the federal flammability standard for children’s sleepwear, posing a risk of burn injuries to children.

ECHO recalls its ECHO and Shindaiwa Backpack Blowers and replacement straps because the blower’s shoulder straps, plastic buckles, or the anti-static ground wire can be drawn into the blower fan and fan housing causing plastic pieces to be expelled from the machine, posing laceration and impact hazards.

Kichler Lighting is recalling it Kichler 52-inch LED Indoor Ceiling fans because the irons (arms) that hold the ceiling fan blades can detach during use, causing the blades to fall, posing an injury hazard.

Homestar is recalling its Finch three-drawer dressers because the recalled dressers are unstable if they are not anchored to the wall, posing serious tip-over and entrapment hazards that can result in death or injuries to children.

Yamaha Guitar Group is recalling its Line 6 Relay G10 Digital Wireless Guitar Systems and USB Charging Cables because the lithium-ion battery can overheat and the battery cover can separate with force, posing fire and injury hazards.

American Honda is recalling its Honda EB2200i, EU2200i, EU2200i Companion and EU2200i Camo Portable Generators because the portable generator’s inverter assembly can short circuit with the presence of salt water. This causes the unit to smoke or catch fire, posing fire and burn hazards to consumers.

C3 Manufacturing is recalling its Perfect Descent™ Auto Belays climbing devices because the belay climbing device can loosen and can cause slack on the rope, allowing the climber to fall. Climbing while tethered to a malfunctioning belay can cause serious injury or death.

Kids & Koalas baby walkers sold exclusively on Amazon.com are being recalled because the baby walkers fail to meet the federal safety standard. Specifically, they can fit through a standard doorway and are not designed to stop at the edge of a step as required by the federal safety standard and they have leg openings that allow the child to slip down until the child’s head can become entrapped at the neck. Babies using these walkers can be seriously injured or killed.

Lilly of New York children’s winter boots, sold exclusively through Zulily.com, are being recalled because the boots’ sole contains levels of lead that exceed the federal lead content ban. Lead is toxic if ingested by young children and can cause adverse health issues.

Woom is recalling its Woom model 4, 5, 6 bicycles because the bicycle’s front fork can loosen and detach, posing fall and injury risks to the rider.

As you can see, there have been a large number of recalls since the last issue. We included many of them in this issue. Those we felt to be of the highest importance and urgency are included. If you need more information on any of the recalls listed above, 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

Cathy Hall

Cathy Hall, a Personal Injury Intake Specialist in the firm, will be celebrating her 20 Year Anniversary with the Firm later this year. Cathy takes new client calls for the Personal Injury & Products Liability Section and also is one of our Relief Receptionists.

Cathy’s daughter Christie is working toward her doctorate in Human and Social Service and works with Butterfly Bridge Children’s Advocacy Center. Her son Cameron is currently working at the Montgomery Casino and working on his Master’s in Finance.

In her spare time, Cathy enjoys spending time with family, attending church, reading, and relaxing while watching one of her favorite TV shows. Cathy says that her favorite thing about working at Beasley Allen is, “meeting and getting to know clients who need help. Giving someone a listening ear is satisfaction for me, especially when they say thank you for listening.”

Cathy is a hard-working employee who is dedicated to making sure Beasley Allen clients have the opportunity to seek justice in their cases. We are fortunate to have Cathy with us.

Aigner Kolom

Aigner Kolom, a lawyer in our Mass Torts Section, joined Beasley Allen in August 2015. Currently, Aigner is working on metal-on-metal hip implant litigation and on cases related to the development of ovarian cancer linked to talcum powder use.

Before joining the firm, Aigner worked as a law clerk for two Circuit Court Judges in Montgomery (15th Judicial Circuit), Charles Price, Presiding Judge (now retired) and J.R. Gaines. Aigner also worked as an intern for Judge Charles Watkins, Chief Judge Middle District 11th Circuit Court of Appeals and served as a legal intern and law clerk for Legal Services of Alabama.

An Auburn University graduate, Aigner earned her B.S. in business administration, human resource management in 2010. She graduated summa cum laude from Faulkner University’s Thomas Goode Jones School of Law in 2015. While in law school, Aigner earned several Best Papers awards, was senior editor of the Jones Law Review, a senior member of the Board of Advocates, and a Dean fellow and pupil for Hugh Maddox Inn of Court. She was also a Walter Knabe scholarship recipient and competed in the school’s Moot Court and Trial Advocacy programs. Even in law school, Aigner was deeply committed to providing pro bono legal services to those in her community. She participated in the Pro Se Assistance Program for Federal Court, served as a Public Interest Society fellow, and board member of the Alabama Pro Bono Task Force.

Aigner says she always wanted to become a lawyer since she was a young girl. Adopted at a young age, she recalls the integral role of a lawyer in the adoption process. Aigner knew at that time there was something special about that career path. She says every lawyer she met from that point on helped her recognize the positive difference they could make in the lives of others.

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

Aigner now takes immense joy in achieving successful results for her clients. She understands first-hand the importance of lawyers in our world and believes Beasley Allen not only nurtures its lawyers but the communities and people it serves. Aigner is a dedicated, hard-working lawyer who does an excellent job in her role in the firm. We are fortunate to have her at Beasley Allen.

Leah Robbins

Leah Robbins, a Legal Assistant in the Toxic Torts Section, began working at Beasley Allen in 2013. She is responsible for calculating statutes and obtaining, checking bankruptcy and confirming any additional information from the clients that is needed regarding Roundup cases.

Leah and her husband Joey have been married for almost 14 years. Joey is a Technical Support Supervisor at Rheem Manufacturing and has been there for 16 years. They have three children: Austin (19), who currently attends Shelton State in Tuscaloosa; Andie (12), who attends Alabama Christian Academy and is on the middle school softball team; and Nathan (11), who attends Bear Magnet School. Nathan currently plays baseball at AUM and Football in the Fall. During the summer and fall Andi plays travel softball and also plays school Volleyball.

Leah enjoys spending her spare time with family & friends or just relaxing at home even though they don’t have much downtime as the kids are involved in some type of sport year-round. Leah says they really enjoy watching the kids play sports and being involved in something they are passionate about.

Leah says that she absolutely adores all of the persons she works with and says she couldn’t be any more grateful to be a part of this firm.

Leah is a hard-working employee who is dedicated to the mission of the firm and clients in the Toxic Torts Section. We are fortunate to have her with us.

Keith Scott

Keith Scott, an Investigator in the Personal Injury & Products Liability Section, has been working at Beasley Allen for 23 years. Keith provides investigative services to the lawyers in the Section. This work typically involves interviewing first responders and witnesses who have direct or indirect knowledge of accidents involving all types of vehicles. Our investigators often respond to the scene and document any road evidence for further use. Keith also conducts vehicle inspections, specifically checking to see if the accident is due to product failure in any manner. These exams include extensive photographing and written documentation of findings.

Keith and his wife Marion have been married 38 years. They have two children, Meredith and Cy. Meredith is a CPA with Iberia Bank in Birmingham and Cy is a Mechanical Engineer with United Launch Alliance in Denver. Keith and Marion have one grandchild, Mary Ashton, who is 1 year old.

In his spare time, Keith enjoys hunting, fishing, shooting and collecting antique fishing gear. Keith says, “I enjoy working with the other investigators. We all worked together in law enforcement prior to having the opportunity to join Beasley Allen and that makes this job fun.”

Keith has an important job in the firm. We learned early on that having fully trained, experienced investigators in house was badly needed. Keith is dedicated to his work and is a hard worker. We are fortunate to have Keith with Beasley Allen.

Ken Wilson

Ken Wilson is a lawyer in Beasley Allen’s Atlanta office. Ken is a member of the firm’s Toxic Torts Section and is a part of the firm’s team working with Georgia Attorney General Christopher Carr in Georgia’s opioid litigation. The State of Georgia is pursuing claims against four pharmaceutical wholesale distributors – McKesson, Cardinal Health, AmerisourceBergen, and JM Smith Drug – and four pharmaceutical manufacturer groups – Endo, Mallinckrodt, Allergan, and Teva – for their role in causing the opioid crisis.

Ken, a Morehouse College graduate, earned his B.A. in English and literature, with a minor in philosophy, graduating in 2010 with honors. In 2014, Ken graduated from Mercer University, Walter F. George School of Law, where he was the treasurer of the Black Law Students Association and a member of the Public Interest Committee.

Ken said he became an attorney to help people, “specifically, those without a voice to obtain justice for themselves. As an attorney, I have the ability to directly help shape society and my community.”

Before joining Beasley Allen, Ken was an insurance Defense lawyer at one of Atlanta’s top insurance Defense firms, handling automobile, premises liability, trucking, environmental, and products liability litigation throughout the State of Georgia. He also served as in-house counsel for a Fortune 500 insurance company handling automobile and premise liability litigation.

Ken says practicing law allows him to engage in the art of litigation to help achieve justice and to reveal the truth. He says that is what he enjoys most about his chosen profession.

Ken has been selected to the National Black Lawyers Top 40 Under 40 list, is a member of the Georgia State Bar, Georgia Trial Lawyers Association, and Henry County Bar Association. Ken is also a member of Kappa Alpha Psi Fraternity, Inc., and Phi Alpha Delta Law Fraternity, International. Beginning in 2017, Ken also served two years as a member of the Clayton County Community Service Board.

Although new to Beasley Allen, Ken says he appreciates the dedication to excellence the firm strives toward in all of its endeavors. “Although I am a newcomer, it is evident that all of its lawyers and employees are striving to do their best to make a difference,” Ken said.

A native of Atlanta, Ken is married to Amber Wilson and they have two children – – a daughter, Kyleigh, and a son, Kenneth “KJ.” He is an active member of New Day Covenant Ministries. Ken also enjoys listening to music and is an avid bassist.

Ken is an excellent addition to our firm in the Atlanta office. He is dedicated to the firm’s mission and goal for our clients. We are blessed to have Ken with the firm.

SPECIAL RECOGNITIONS

Kendall Dunson Inducted Into American College Of Trial Lawyers

Beasley Allen lawyer Kendall Dunson has been inducted into the American College of Trial Lawyers, a premier professional trial organization in North America comprising preeminent trial lawyers from the U.S. and Canada. Fellowship with the college is invitation-only and the College thoroughly investigates each nominee for admission and selects only those who have demonstrated the very highest standards of trial advocacy, ethical conduct, integrity, professionalism and collegiality.

The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on important legal issues relating to its mission. The College strongly supports the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings. Kendall had this to say concerning this high honor:

It is an honor to become a fellow of this long-established organization that works to maintain the integrity of our judicial system. I have spent my career working for people who have been injured or family members of those killed by no fault of their own. It is important to me that everyone has an avenue for recourse should the need arise.

As a member of Beasley Allen Law Firm’s Personal Injury & Products Liability Section, Kendall handles product liability, general personal injury and workers’ compensation cases involving defective industrial machinery. He has worked on numerous cases to compensate clients for their losses and influence corporations to design and manufacture safer products. Kendall has been involved in several multimillion-dollar lawsuits. Most recently, he was part of the team that secured a $151 million verdict for Travaris “Tre” Smith who was left paralyzed after the 1998 Ford Explorer he was riding in crashed and rolled over. The jury agreed with Smith in finding that Ford failed to meet its own safety guidelines for the Explorer’s rollover resistance requirement and then attempted to cover up the vehicle’s defective design.

Kendall has served as the president of both the Alabama Lawyers Association and the Capital City Bar Association. He is a member of the prestigious American Board of Trial Advocates and was named a 2017 Alabama Law Foundation Fellow. In addition, he served on the Board of the Montgomery County Bar Association until he was elected to the Executive Committee. Kendall is also past president of the Montgomery County Bar Association and has the distinct honor of being its first African American President. He is a member of the Alabama State Bar and serves on the Diversity Committee and the Client Security Fund committees, positions appointed by the State Bar President. He served on the Alabama Curriculum Committee for the Board of Examiners, where he authored the new Tort Section and videotaped the presentation to be viewed by all taking the Alabama Bar Exam.

Kendall also has been regularly selected for inclusion in the Best Lawyers in America Midsouth Super Lawyers lists, and has also been named to the Lawdragon 500 Leading Lawyers. He is a tremendously talented trial lawyer who is at home in the courtroom. We are blessed to have Kendall at Beasley Allen.

FAVORITE BIBLE VERSES

Michael Dunphy, a Staff Attorney in our Toxic Torts Section, says Matthew 6:31-34 is his favorite verse. He says:

This passage is as applicable to us now as when first heard in Jesus’ Sermon on the Mount. And yet, I find myself repeatedly struggling with Jesus’ command – DO NOT WORRY. I think, “God has the entire world to deal with. Maybe He’ll forget about my needs.” Of course, this couldn’t be further from the truth. My God is great; He is mighty; He is sovereign. He has proven to me time and again that He is the perfect father and He knows exactly what I need. I must strive to seek first His kingdom, and He will ensure I have every spiritual blessing I need.

So do not worry, saying, ‘What shall we eat?’ or ‘What shall we drink?’ or ‘What shall we wear?’ For the pagans run after all these things, and your heavenly Father knows that you need them. But seek first his kingdom and his righteousness, and all these things will be given to you as well. Therefore do not worry about tomorrow, for tomorrow will worry about itself. Each day has enough trouble of its own. Matthew 6:31-34 (NIV)

Ryan Duplechin, a lawyer in our firm’s Mass Torts Section, says that Psalm 32:8 reminds him that God is in control. He said further:

In this profession, there are always deadlines and projects. It sometimes feels like there is not enough time to get everything done. Then I think about this verse and something that Leigh O’Dell told me a few years ago: “God never gives us more than we can handle.” All of a sudden, my to do list seems smaller and I can approach anything with a humble confidence knowing that God’s got me and, no matter what is ahead, we can do this together.

I will instruct you and teach you in the way you should go; I will counsel you with my loving eye on you. Psalm 32:8

Scott Chambliss Gunn, a Staff Assistant in our Mass Torts Section, sent in a verse for this issue. He told Willa Carpenter that he prayed about her request, and the following is what he felt impressed to share:

We are told of Jesus in John 1:1 and 1:14: “In the beginning was the Word, and the Word was with God, and the Word was God….and the Word was made flesh, and dwelt among us…” For years, I feared I did not love God enough, nor even could, but one day the light came on, and I understood through this scripture that one way to love Him was to love His Word, and to love his Word was to love Him. After all, verse 1 says He and His Word are one and the same, so I set myself to love His Word, and over time, as that love grew, I not only saw fear about not being able to love God dissolve, but watched that same love cause what Jesus, in John 14:23, said would happen: “…If a man love me, he will keep my words…” Joyful and eager obedience to the Word came forth and replaced the drudgery of religious obligation I had grown up with. I haven’t “arrived”, as it is said, but that initial light made all the difference.

ReNay R. Robertson, a Legal Secretary in our firm’s Mass Torts Section, sent in Psalm 3:3-8. ReNay says:

This scripture is so timely. David’s songs, his Psalms, mean so much to me, as a music minister’s wife and life-long choir member. There’s a Psalm that fits every occasion, stage of life, triumph, tragedy:

But thou, O Lord, are a shield for me; my glory, and the lifter of my head. I cried unto the Lord with my voice, and he heard me out of his holy hill. I laid me down and slept; I awaked; for the Lord sustained me. I will not be afraid of ten thousands of people, that have set themselves against me round about. Arise, O Lord; save me, O my God: for thou hast smitten all mine enemies upon the cheek bone; thou hast broken the teeth of the ungodly. Salvation belongs unto the Lord: thy blessing is upon thy people. Amen. Psalm 3:3-8

CLOSING OBSERVATIONS

Nineteen U.S. Generals File Amicus Brief Urging Liability For Banks Laundering Money That Aids Terrorists

Lawyers at Bailey Glasser have filed an amici curiae (friends of the court) brief on behalf of 19 retired Generals of the U.S. Armed Forces urging the federal appeals court in New York to hold that banks can be held liable for injuring or killing U.S. soldiers and other Americans by illegally laundering money for Iran that aids terrorists.

The case, Freeman v. HSBC Holdings PLC, asserts claims under the Justice Against Sponsors of Terrorism Act (JASTA) for more than 400 U.S. soldiers and other Americans (or their estates) wounded and killed by terrorist attacks while serving in Iraq between 2004 and 2011. It charges nine financial institutions in the U.S., England, Europe, and the Middle East with causing their injuries by conspiring with, and aiding and abetting, Iran and its proxies to violate U.S. sanctions and secretly launder around $300 billion through the U.S. banking system.

A federal district court in Brooklyn dismissed the suit saying that because the financing for the Islamic Revolutionary Guard Corps (IRGC) and Hezbollah flowed through Iranian “commercial entities” it did not “solely exist for terrorist purposes.” The Generals say that ignores how terrorist networks operate and that JASTA liability is not limited to those illegally supporting organizations that “solely exist for terrorist purposes.” JASTA states that “liability may be asserted to any person who aids or abets…or conspires with the person who committed” an “act of international terrorism.” The Generals – who have vast experience confronting Iran’s threat to U.S. service members in Iraq and Afghanistan – believe that Iran’s, IRGC’s, and Hezbollah’s funding sources and supply chains are vital to their terror activities. Retired Four Star General James D. Thurman stated:

I spent my entire military career fighting terrorism and working to keep America safe. One of the critical ways to fight terrorism is to go after its sources of funding. For years, Iran, the IRGC, and Hezbollah have conspired with financial institutions to fund their terrorism. It is essential that we have the tools to hold those institutions accountable.

Arthur H. Bryant, a lawyer with Bailey Glasser and is lead counsel in the effort for the Generals, had this to say:

The district court made a grave mistake. Congress said it was adopting JASTA to provide Americans injured by terrorism ‘with the broadest possible basis to seek relief against persons, entities, and foreign countries, wherever active and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons engaged in terrorist activities.’ The district court’s decision, if not reversed, will effectively gut that statute.

Bailey Glasser’s Joshua I. Hammack, who is co-counsel for the Generals, stated further:

The district court held that, even if these banks conspired to launder money knowing it would likely help finance terrorism, they can’t be held accountable. The Generals say that holding is not, and cannot be, right.

The retired Generals of the US Armed Forces joining in the brief – Gen. Keith B. Alexander, Gen. Vincent K. Brooks, Gen. John Campbell, Gen. Richard A. Cody, Gen. Jack Keane, Gen. Peter J. Schoomaker, Gen. James D. Thurman, Gen. William Scott Wallace, Lt. Gen. James O. Barclay III, Lt. Gen. Mick Bednarek, Lt. Gen. Daniel P. Bolger, Lt. Gen. Sean B. MacFarland, Lt. Gen. H.R. McMaster, Lt. Gen. Michael L. Oates, Lt. Gen. Stephen Speakes, Lt. Gen. James Terry, Lt. Gen. Keith C. Walker, Maj. Gen. Anthony Cucolo, and Br. Gen. William H. Forrester – led America’s efforts to counter the national security threats posed by the Islamic Republic of Iran and its terrorist agents and proxies, including those that operated in Iraq.

Lawyers at Bailey & Glasser wrote and filed the amicus brief and the firm should be commended for assisting in this matter. The firm has offices in Birmingham, Alabama; Oakland, California; Washington, DC; Wilmington, Deleware; St. Petersburg, Florida; Boston, Massachusetts; St Louis, Missouri; Chicago, Illinois; Cherry Hill, New Jersey; Westchester, New York; and Morgantown and Charleston, South Carolina.

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

Beasley Allen Following CDC Guidelines For COVID-19 Response

What is happening in our state, the nation and around the world right now with the coronavirus is unprecedented. I have never seen a situation like this before, with a pandemic – or any event, even war – affecting so many people simultaneously, with risk on every shore.

It is easy to feel afraid, and overwhelmed. But it is important to focus on what we can each do as individuals, as well as within our communities of family, friends, faith and work. I am concerned about all of the people who work at Beasley Allen both here and in Atlanta. I’m also concerned about the clients of Beasley Allen who are depending on us for help. We want everyone to stay safe, while still doing all we can to continue to help people who need justice.

Elsewhere in this Report I have talked about how the COVID-19 pandemic is affecting the legal profession as a whole, and federal, state and local courts. Everyone is taking a step back to determine how we can continue to accomplish our important mission while being mindful of public health and safety. At Beasley Allen, we are taking these changes into account as we develop our plans, and incorporating advice and guidance from local, state and national leaders, as well as health organizations like the Alabama Department of Public Health and the Centers for Disease Control and Prevention (CDC).

Our plans are fluid, updated as we receive new information and recommendations from these agencies, and responsive to the needs of our employees. To ensure a safer workplace during the COVID-19 outbreak, we are following these recommendations suggested by the CDC:

  • Establishing flexible or remote worksites (telecommuting), flexible work hours, or increased physical distance among employees.
  • For those employees for whom it is necessary to come into the office, we are encouraging anyone who feels sick to stay home.
  • Being more flexible with employees who need to stay home to care for a sick family member.
  • Encouraging hand hygiene and providing soap and water and alcohol-based hand rubs in several locations throughout the workplace and ensuring these stations are maintained.
  • Performing routine environmental cleaning, especially frequently touched surfaces in the workplace, like countertops and doorknobs.

Our physical offices in Atlanta and Montgomery are closed to visitors to further protect staff who are still working in the buildings. Lawyers and support staff are scheduling client meetings, depositions and as other tasks on the telephone or using video conferencing technology. Things have been working well for everybody at Beasley Allen and we are thankful for that.

The leadership at Beasley Allen continues to monitor this developing situation, and adjust our response accordingly. The health and safety of our lawyers, staff and clients is paramount. I have faith that the Lord holds us in his hands and am at peace putting my trust in Him. I encourage everyone to check in on those you love, and those you know are in need or vulnerable. We may not be able to be close in body, but we can look for avenues to serve one another with whatever resources we have available – physical, emotional and spiritual. The American people are all in this battle together and I am confident will meet the challenges presented.

Finally, it is absolutely necessary for every single person to follow the CDC guidelines to the letter. If all will do that in every state the effects of the pandemic will be lessened. Make sure you have a reliable source of information and stay up to date.

My prayer is for people all over the world who are being affected by the Coronavirus pandemic. All Americans must follow the CDC guidelines and help their families, neighbors and friends weather this storm. We will survive the pandemic and even though painful, be better for it. God Bless!