CAPITOL OBSERVATIONS

A Rescue For America

President Joe Biden signed the $1.9 trillion pandemic relief package into law on March 11, providing some of the most aggressive measures in modern U.S. history aimed at keeping families and businesses hammered by the coronavirus afloat. This is a true rescue measure for the American people and one that was badly needed.

The American Rescue Plan passed the House on a 220-211 vote after adopting the Senate’s changes. I agree with House Speaker Nancy Pelosi, who called the bill “a remarkable, historic, transformative piece of legislation which goes a very long way to crushing the virus and solving our economic crisis.” While the cost is huge, tremendous needs throughout the country made the rescue package an absolute necessity.

There has been some opposition to the package by a number of politicians, some obviously speaking on behalf of the super-rich. But the rescue effort has overwhelming support among the vast majority of the American people.

We must put things in perspective. While most Americans were hurt economically because of the pandemic, the 25 richest Americans did exceedingly well over the past 12 months. The average net worth of these richest Americans in March of 2020 was $43.45 billion, and 12 months later, in March of this year, their average net worth had increased by 50% to $65.58 Billion. So for those who are fussing about what President Biden did, I must remind them of who did well financially and who all were hurt during the pandemic, which by the way, isn’t over.

While the tax cuts during the Trump years were for higher-income folks, and specifically for the super-rich, this effort by the Federal Government was for the people who badly needed help economically and socially.

Let’s take a look at the sweeping measures in the stimulus package, which include $400 billion in direct relief to U.S. individuals and families; $350 billion in economic aid to state and local governments and Native American tribes; a $250 billion boost in unemployment benefits; $170 billion in relief to schools and universities; a $160 billion expansion in individual and corporate tax credits; and $125 billion for COVID testing and vaccines and related public health efforts.

Additional provisions provide benefits for expanded tax credits to help Americans pay for health insurance under the Affordable Care Act (ACA) and $80 billion to save union pension plans.

All of these measures will address real needs caused by the pandemic over 12 months. Had the Trump Administration dealt with the pandemic in February and March of 2020, this rescue package would not have been needed or have been at a vastly lesser cost.

The Senate altered various sections of the original bill and reduced the cost by $77 billion. The income caps for stimulus checks were set at $80,000 for an individual and twice that amount for couples. The upper chamber also lowered unemployment benefits to $300 per week but extended the payments through Sept. 6. The proposed federal minimum wage of $15 per hour was taken out. Hopefully, the minimum wage proposal, which is badly needed, will continue to be pushed by the Biden Administration.

Additionally, the Senate included provisions that will fully cover COBRA health insurance premiums for laid-off workers, exempt student loan forgiveness from taxation, and opened state and local aid to broadband and other infrastructure.

Child tax credits, currently set at $2,000, are being raised to $3,000 and could go as high as $3,600 for children five years old and younger –a measure that should be made permanent. The package raised the age limit for child tax credits from 16 to 17.

By directing much of the rescue money on credits and programs that benefit American families and making some of those measures long-term or permanent, researchers estimate that the American Rescue Plan will cut child poverty in the U.S. in half.

Republicans in both the House and Senate voted against the bill on party lines, criticizing it as “socialism.” The bill, however, doesn’t leave working Americans at the mercy of huge corporations, which have been the biggest recipients of tax cuts, taxpayer subsidies, and other top-targeted corporate welfare programs. It was a rescue measure for American families, who have been falling into poverty at alarming rates, especially during the pandemic.

Sources: CNBC, Law360.com and President Joe Biden (U.S. Whitehouse/Office of the President)

THE ROLE OF TRIAL LAWYERS TODAY

Mass Torts Trial Lawyers Make A Difference

We continue our focus on the role that trial lawyers play in regulating corporate America, this time looking at some notable cases handled by Beasley Allen’s Mass Torts Section.  Government regulation of pharmaceuticals and medical devices relies on the pharmaceutical and medical device companies to disclose all that they know about their products – good and bad.  When those companies fail to disclose important risks of serious injuries, lawyers help bring those risks out in the open and hold the companies accountable.  For more than 20 years, Beasley Allen lawyers have successfully handled many important cases involving pharmaceuticals and medical devices.  More recently, we’ve expanded to consumer products that have caused serious injuries.

Beasley Allen cases that have made a difference

Vioxx – 80 million people took the pain medicine Vioxx worldwide. In 2004, the Food and Drug Administration (FDA), physicians, and the public learned what Merck had known for years – in some patients, Vioxx causes blood clots and narrowed blood vessels which in turn causes heart attacks and strokes.  Earlier studies had shown heart risks, and Merck scientists worried about Vioxx causing heart attacks long before the first pill was ever sold.  By the time of its withdrawal, Vioxx had caused heart attacks or strokes in over 100,000 people. Vioxx was removed from the market September 30, 2004.

Andy Birchfield served as Lead Co-Counsel for the Vioxx MDL. Every attorney in Beasley Allen’s mass tort section played a role in Vioxx litigation, with Leigh O’Dell and Roger Smith also assisting with the settlement program. The MDL litigation team reached a then-record global settlement with the pharmaceutical giant, which paid $4.85 billion to compensate victims of Vioxx-related heart attacks and strokes.

Transvaginal Mesh – Beginning in 2011, plaintiffs began to file lawsuits against the manufacturers of transvaginal mesh from complications they sustained from these products’ implantation. These injuries included erosion of the mesh into the vaginal tissue, organ perforation, pain, infection, painful intercourse and urinary and fecal incontinence. Often women required surgery to remove the mesh and oftentimes, it was impossible to remove all of the mesh involved. Some women were ultimately adjudicated as disabled as a result of the personal injuries they sustained from polypropylene mesh.

This mass tort grew into one of the largest in history, involving more than 100,000 lawsuits and billions of dollars in damages. Beasley Allen was intimately involved in this litigation with attorneys serving in leadership positions, including the Plaintiffs Steering Committee for five separate transvaginal mesh MDLs. As a result of these women coming forward and the resulting litigation, some of these polypropylene mesh products have been removed from the market. Physicians are now more aware of the issues caused by transvaginal mesh and the alternative treatments available for stress urinary incontinence and pelvic organ prolapse.

Talcum Powder Litigation – Johnson’s Talcum Baby Powder was first introduced to the market in the 1890s and has since been used by tens or even hundreds of millions of people worldwide. However, Johnson & Johnson (J&J) did not reveal that since the 1930s, there has been growing concern about the harmful effects of talc. Talc is mined out of the ground and can be contaminated with dangerous heavy metals and fibers, including asbestos. Additionally, talc has been known to cause granulomas, foreign body reactions, and other adverse effects in human tissue. Due to these concerns, talc was removed from surgical gloves and condoms decades ago.

Meanwhile, women commonly used baby powder as part of their feminine hygiene routines. This was strongly encouraged by J&J. Talc used in the genital region to migrate up the genital tract into the fallopian tubes ovaries and ultimately cause ovarian cancer. J&J has been aware of the issues with talc and asbestos for decades and never warned consumers of these dangers.

In the 1960s, J&J started developing a cornstarch substitute for talc as they were concerned with future litigation; however, after they were able to influence many of the regulators in the country, including the FDA, J&J kept its talcum powder product on the market. Unfortunately, greed won over safety at J&J. After several epidemiological studies were published showing the association between genital talc use and ovarian cancer, the first talcum powder ovarian cancer trial was conducted in South Dakota in 2013 – that jury found J&J at fault but failed to award money. Beasley Allen lawyers got involved in the litigation shortly thereafter and have spent the last eight years trying these cases all over the country.

In 2016, Beasley Allen lawyers proved to three separate juries that J&J was at fault in the making and selling of talc products and awarded damages totaling $72 Million, $55 Million and $70 Million, respectively, in the cases. Shortly thereafter, body powder manufacturers started including cancer warning language on their bottles.

In 2017, in two additional cases, juries found J&J at fault with awards totaling $110 Million and $417 Million. The second verdict will be discussed further in this issue.

Beasley Allen lawyers also serve as co-lead counsel in the federal court talcum powder MDL, where thousands of these cases have been filed by plaintiffs from states throughout the country. Due to the ongoing efforts of the Beasley Allen Talc Litigation Team, led by Ted Meadows and Leigh O’Dell, Johnson & Johnson pulled Talcum Baby Powder off the market in North America in the summer of 2020.

With an estimated 10% of 22,000 yearly ovarian cancer cases in the United States believed to be caused by genital talcum powder use, removing this product from the shelves is saving thousands of lives every year. The talc team continues to work hard for a global resolution of these claims and hopes that Johnson & Johnson will ultimately decide to discontinue sales of its talcum powder worldwide.

JUUL E-Cigarette Multidistrict Litigation – In 2015, JUUL Labs, Inc. (JLI) released a vape and line of flavored e-liquid pods that caused an epidemic of youth nicotine use. As a result of JUUL’s highly addictive and appealing product design and youth-targeted marketing, by 2017, JLI’s sales increased by 700%. JUUL soon controlled over three-quarters of the e-cigarette market. JUUL causes respiratory, cardiovascular, and mental health harms, among other kinds of damages. Thousands of teens and young adults have been injured by JUUL.

Beasley Allen is honored to play a leading role in the resulting multidistrict litigation (MDL) proceeding in the Northern District of California. The MDL consists of over 1,200 personal injury cases, several class actions, 160 cases filed by government entities, as well as suits brought by 118 school districts, 20 counties, two cities, and 20 tribes. JUUL has made an initial response by removing its kid-friendly fruit and desert flavors from the market, changing its marketing practices, and increasing warnings on its product labels. A bellwether pool of 24 personal injury Plaintiffs has been selected, seven of which are Beasley Allen clients. Four bellwether trial cases will ultimately be selected by the court and will serve as inquires to produce reliable information about the other cases pending in the MDL.

Conclusion

We could add a number of other litigation areas and a large number of other specific cases where Beasley Allen lawyers in our Mass Torts Section have not only obtained justice for clients, but brought about significant safety changes in Corporate America. To know that our firm has helped make important difference in the lives of American citizens makes all of the effort, expense and hard work well worth it.

In next month’s issue we will discuss how lawyers in our Toxic Torts Section, led by Rhon Jones, have brought about significant changes in another specific area of concern for the American people.

COURT WATCH

The U.S. Supreme Court Makes Important Ruling On Jurisdictional Issue

The U.S. Supreme Court on March 25 issued a most significant opinion involving a critically important issue. The high court clarified the limits of specific personal jurisdiction and preserving litigants’ due process rights by ruling that Ford Motor Co. can be sued in Montana and Minnesota over accidents involving used cars initially sold out-of-state with purportedly defective tires or air bags.

The justices said there were enough connections between the plaintiffs’ claims and Ford’s business activities in the states to be sued there, rejecting the auto giant’s proposed proximate cause standard for establishing specific personal jurisdiction in product liability and negligence lawsuits. Justice Elena Kagan wrote in the court’s opinion:

When a company like Ford serves a market for a product in a state and that product causes injury in the state to one of its residents, the state’s courts may entertain the resulting suit.

It’s most significant that the court’s opinion was 8-0. Justice Samuel Alito filed a concurring opinion, and Justice Neil Gorsuch also filed an opinion concurring in the judgment, in which Justice Clarence Thomas joined him. Meanwhile, Justice Amy Coney Barrett, who joined the high court bench after the Oct. 7 oral arguments were completed, did not participate in the decision.

The court’s ruling is a win for consumers. Ford attempted to reverse a pair of 2019 decisions from the Montana Supreme Court and Minnesota Supreme Court that kept alive lawsuits from residents injured in 2015 accidents in those states involving Ford Explorer and Crown Victoria vehicles that were initially bought out of state.

The Supreme Court held in 2017’s Bristol-Myers Squibb Co. v. Superior Court of California that the due process clause requires both that the defendant “have purposefully availed itself of the privilege of conducting activities within the forum state” and that the plaintiff’s claim “arise out of or relate to” the defendant’s forum conduct.

Ford regularly conducted business in Montana and Minnesota by extensively marketing, selling, repairing and maintaining Ford vehicles, including Explorers and Crown Victorias, in those states. Justice Kagan said:

It’s a small wonder that Ford has here conceded ‘purposeful availment’ of the two states’ markets. In other words, Ford had systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those states. So there is a strong ‘relationship among the defendant, the forum, and the litigation’ — the ‘essential foundation’ of specific jurisdiction. That is why this court has used this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration — even a paradigm example — of how specific jurisdiction works.

The consolidated case involves lawsuits brought by Charles Lucero, the personal representative of Markkaya Jean Gullett’s estate, the plaintiff in the Montana case, and Adam Bandemer, the plaintiff in the Minnesota case.

Because this issue of the Report was headed to the printer, we will not write more on this matter. But we will deal with it in more detail in the May issue.

The plaintiffs are represented by Deepak Gupta, Daniel Wilf-Townsend, Gregory A. Beck, Larkin Turner, Jennifer Bennett and Neil K. Sawhney of Gupta Wessler PLLC; Kyle W. Farrar, Wesley Todd Ball and Mark Bankston of Kaster Lynch Farrar & Ball LLP; and Dennis P. Connor and Keith D. Marr of Conner & Marr PLLP.

The cases are Ford Motor Company, Petitioner v. Montana Eighth Judicial District Court et al. (case number 19-368) and Ford Motor Company, Petitioner v. Adam Bandemer (case number 19-369), both in the Supreme Court of the United States.

Federal Judiciary Seeks 79 New Judgeships Nationwide

The federal judiciary on March 16 urged Congress to create 77 new district judgeships and two new circuit judgeships to handle heavy caseloads that have surged since the last comprehensive expansion of the judiciary in 1990.

The Judicial Conference of the United States said the efficient administration of justice requires new district judgeships in 13 states across the country — with more than half slated for California, Texas and Florida — while making eight other temporary district judgeships permanent and adding two seats to the Ninth Circuit. The request by the conference, a policymaking group of federal judges from courts around the country helmed by Chief Justice John Roberts, would expand the ranks of federal district court judges by more than 10%.

According to U.S. District Judge Claire V. Eagan of the Northern District of Oklahoma, the chair of the Judicial Conference’s executive committee, the judiciary needs Congress to act because district court filings have increased 47% since 1990 while the number of district judges has risen barely 5%. Judge Egan said at a virtual news conference:

When there is substantial growth in other parts of our justice system, we need corresponding growth in the number of judges, or the process will slow or even break down. Before a judgeship recommendation is submitted to Congress, it undergoes six levels of careful review within the judiciary. … We recognize that the growth in the judiciary must be carefully limited to the number of judges absolutely needed to exercise our jurisdiction.

Congress must approve any new judge seats. The last comprehensive addition came in 1990 when lawmakers added 69 district judgeships. More than 130 attempts have failed since then despite intermittent bipartisan interest. It’s now time for the lawmakers to approve the requested judgeships, and hopefully, that will happen soon. The need is urgent and clearly justified.

Source: Law360.com

THE TALC LITIGATION

Update On The Talcum Powder Litigation

Beasley Allen’s talc litigation team remains hard at work in the MDL and state courts. The MDL team has now largely finished up the plaintiff, fact witness, and expert depositions for the discovery pool cases.  The discovery pool cases are a mix of plaintiff picks, defense picks and random selections from the court. The MDL has continued working on discovery issues with the defense and took one corporate liability discovery deposition in February, with numerous additional depositions set for the next several months.

Meanwhile, in the state courts, Beasley Allen remains on track to try numerous cases in 2021. Many trials were originally scheduled in 2020 but were reset throughout the year. In St. Clair County, Illinois, the Cadagin case has been rescheduled for a July 12th trial start date in the wake of continuing coronavirus issues in the area. The multi-plaintiff trial in St. Louis, Missouri, involving three plaintiffs, has been moved to August. There was also an additional case set for trial in St. Louis in May, but that has also been postponed. There are several additional potential trial dates throughout the second half of 2021.

In Philadelphia, coronavirus has affected several of the trial settings. The Kleiner case, initially set in 2020, is now slated to begin July 29th. The Beasley Allen team has several additional trial-ready dates in Philadelphia, with the Wilson case set to start trial on May 5 and additional settings possible throughout the year. In Georgia, the Brower retrial is still being reset, with plans to retry this case as soon as it can be safely scheduled in 2021. While working on getting the Brower retrial set, additional discovery efforts have continued against Johnson & Johnson’s longtime talc packager/manufacturer PTI, which has a large presence in Georgia and Missouri.

Along with multiple trials already set in Missouri, Illinois, and Pennsylvania for 2021 and the potential trial in Georgia in 2021, the team is now moving forward with the Carl and Balderrama trials in Atlantic City, with potential trial dates in early 2022. The team is also exploring South Florida as a potential venue for additional trials in 2021 and 2022.

For additional information on these cases, contact Ted Meadows, Leigh O’Dell, or Melissa Prickett at 800-898-2034 or by email at [email protected], [email protected], or [email protected].

J&J Sets Aside $4 Billion For Talc Verdicts And Settlements

In a recent securities filing, Johnson and Johnson (J&J) said it set aside $4 billion to cover verdicts and litigation expenses while it appeals a 2018 Missouri to the U.S. Supreme Court. Along with the costs of this appeal, J&J currently faces 25,000 lawsuits by women claiming the flagship Baby Powder caused their cancer. It’s quite evident that the amount set aside is inadequate.

The 2018 Missouri verdict would take up a large portion of this set-aside money. The original $4.7 billion, which was later cut to $2.1 billion, was one of the largest punitive damages awards in U.S. legal history. The original verdict sparked a significant drop in J&J’s shares. The case involved 20 women who claimed the talc powder caused their ovarian cancer. The plaintiffs cited internal J&J documents going back to the early 1970s, indicating J&J found asbestos in their baby powder but never made their findings public, choosing instead to put thousands of women at risk of cancer.

As we mentioned in this issue, Beasley Allen lawyers tried the first talcum powder lawsuit against J&J involving talc powder and ovarian cancer, where a jury made a monetary award. The jury in St. Louis returned a verdict of $70 million in the case. The most important thing about the case was that our lawyers uncovered when J&J first knew about the severe ovarian cancer risk. They obtained external J&J documents that were extremely damaging to the company. Our lawyers also learned from J&J internal files how the company had been lying to the FDA and the American people for decades, thereby covering up a known risk that killed hundreds of women.

J&J is not the only company facing justice for its wrongdoing, as many of the pending lawsuits have included the company’s longtime talc supplier, Imerys Talc America, as a defendant. Following the verdict in Mark Lainer’s case, Imerys filed a voluntary chapter 11 bankruptcy petition. The bankruptcy relates to Imerys’ potential liability for the harm caused by exposure to the talc it supplied. However, Imerys has stated that it had prior agreements with J&J that J&J would assume the defense and pay any judgment against Imerys. This would leave J&J to face these lawsuits alone and without anyone else to blame.

J&J spent decades callously watching as consumers died from using a product the company continued to sell, adding even more consumers. J&J handed out coupons and free products, all the while knowing the immense danger. Thousands of women suffered, and many lost their lives. Children lost their mothers, and husbands lost their wives, all while J&J raked in the profits without giving them a second thought. There is no way to measure the damage, but thankfully there are still victories to celebrate. J&J has finally taken its cancer-causing products off the shelves of stores across North America. While no amount of money will undo the harm J&J has caused, the litigation has given us one very important thing – eventually, there will be no more victims.

Sources: Bloomberg and information from J&J’s most recent 10-K & Imerys’ bankruptcy petition

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Will Sutton and Charlie Stern, who are mesothelioma lawyers, are on the team, are exclusively handling mesothelioma claims. Will and Charlie are looking at cases of industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma, as well as claims of asbestos-related talc products linked to mesothelioma.

Members of the Talc Litigation Team, in alphabetical order, include Kelli Alfreds ([email protected]), Ryan Beattie ([email protected]), Beau Darley ([email protected]), David Dearing ([email protected]), Liz Eiland ([email protected]), Jennifer Emmel ([email protected]), Jenna Fulk ([email protected]), Lauren James ([email protected]), James Lampkin ([email protected]), Caty O’Quinn ([email protected]),  Cristina Rodriguez ([email protected]), Brittany Scott ([email protected]), Charlie Stern ([email protected]), Will Sutton ([email protected]), Matt Teague ([email protected]) and Margaret Thompson ([email protected]).

THE OPIOID LITIGATION

Update On The Opioid Litigation

Due to the COVID-19 pandemic, the only opioid crisis litigation to go to trial is the State of Oklahoma’s case against Johnson & Johnson (J&J), which resulted in a $465 million verdict from the bench against J&J.  The State of Alabama’s case against Endo health solutions and McKesson Corporation has been re-scheduled for November 2021.  The State of Georgia’s case against opioid manufacturers Endo, Actavis, Teva, and Mallinckrodt and opioid distributors McKesson, Cardinal Health, AmerisourceBergen, and Smith Drug, is set for May 2022.  Beasley Allen represents both the State of Alabama and the State of Georgia in these cases.  Trial dates for other states and local governments are still in flux due to the pandemic.  Upcoming opioid trials include a bellwether trial in West Virginia set to start in May and the State of New York in June.

Purdue Delivers Disappointing Chapter 11 Plan

Purdue Pharma’s proposed bankruptcy plan has upset many of Purdue’s tort creditors, including many State Attorneys General. The Sackler family, owners of Purdue Pharma, have sought to shield themselves and their fortunes from liability for their actions in creating the Opioid Epidemic.  Purdue and the Sackler family were responsible for the deceptive marketing of Oxycontin, a potent opioid medication, that marked the start of the Opioid epidemic in the late 1990s.  After OxyContin was introduced to the market in 1996, prescription opioid use and opioid overdose deaths began to skyrocket in the United States.

Purdue and the Sackler family revealed the company’s Chapter 11 bankruptcy plan on March 16. Purdue will provide more than $10 billion in value to mitigate the damages caused by the crisis.  This iteration of the plan would increase the Sackler family’s contributions to an opioid abatement trust fund from $3 billion to almost $4.3 billion. Still, it purports to let the Sackler family off the hook for litigation claims by States, local governments, and individuals, allowing the family to keep their remaining fortune, which is believed to be vast in scope and value.  This is especially concerning to many tort creditors because the Sacklers themselves are not parties to the Bankruptcy. The Sackler family faces litigation personally in many opioid lawsuits.

Funds from the bankruptcy plan, including contributions from the Sacklers, would fund creditor recoveries and opioid abatement programs. Still, there has been concern that the Sacklers contribution will not be enough. Many Attorneys General have also expressed concern that Purdue, although it will be taken from the Sacklers’ control and become a public benefit trust, will necessarily require continued oversight by the states. Those Attorneys General are leery of becoming involved in the management of Purdue going forward.

On March 24, Judge Drain extended the injunction staying Opioid Litigation against both Purdue and the Sackler family until April 21. U.S. Bankruptcy Judge Robert Drain will rule on the adequacy of the plan at an April 21st hearing.  There will likely be more developments before the hearing date. Read more at https://www.law360.com/articles/1365603/purdue-s-ch-11-plan-hangs-on-sackler-liability-question?copied=1

Source: Law360.com

McKinsey Opioid Settlement With New York Attorney General Approved

Suffolk County Supreme Court Judge Jerry Garguilo has approved a $32 million settlement agreement between McKinsey & Co. and the New York Attorney General over the consulting firm’s role in the opioid epidemic. The approval came over counties and municipalities’ objections that challenged the settlement because it could potentially block them from pursuing their claims against McKinsey.

Judge Garguilo agreed with McKinsey and New York Attorney General Letitia James that the issue of whether a provision in the settlement agreement would release the firm from certain legal claims brought by other political subdivisions “is not ripe for determination.” The judge wrote in his order:

The court concurs with McKenzie in that ‘the legal question regarding the scope of the release will only properly be presented for a court to decide on a motion that seeks dismissal on the basis of the release.’ That issue is not properly before this court.

The February settlement McKinsey reached with New York is part of a larger $573 million settlement to resolve nationwide claims that advice from the firm “turbocharged” opioid sales for Purdue Pharma LP and reeled in profits stemming from the epidemic. This was the first multistate opioid settlement to result in a large payment to states dealing with the health crisis.

The settlement requires McKinsey to turn over tens of thousands of internal documents detailing its work for Purdue. Among the allegations in the complaint are claims that McKinsey advised Purdue on how to jack up sales by honing in on higher, more lucrative dosages and increased sales rep visits to high-volume opioid prescribers.

The state is represented by the Office of the New York State Attorney General. The local governments are represented by Simmons Cooper LLC and Napoli Shkolnik PLLC. The case is People of the State of New York v. McKinsey & Co Inc. (Index No. 400001/2021) in the Supreme Court of the State of New York, Suffolk County.

Source: Law360.com

McKinsey To Pay Nevada $45 Million To Settle Opioid Marketing Case

Nevada Attorney General Aaron Ford announced on March 22 that McKinsey & Co. Inc. has agreed to pay his state $45 million to settle the last outstanding state claims over the global consulting firm’s role in fueling the nationwide opioid epidemic.

In a statement announcing the settlement, Attorney General Ford said Nevada has been hard hit by the opioid crisis, and thousands of Nevadans have died due to overdoses, which is why the state’s Bureau of Consumer Protection has fought hard to achieve its own settlement with the New York-based consulting firm.

Meanwhile, Washington and West Virginia have entered separate opioid settlements with McKinsey for $13.5 million and $10 million, respectively. McKinsey has now reached settlements with all 50 state attorneys general, as well as five U.S. territories and the District of Columbia.

The state of Nevada is represented by Ernest Figueroa and Mark J. Krueger of the Nevada Office of Attorney General, Bureau of Consumer Protection, and by Robert T. Eglet, Robert M. Adams, Cassandra Cummings, and Richard K. Hy of The Law Office of Eglet Adams.

The case is State of Nevada v. McKinsey & Company (case number 21 OC 00043 1B) in the First Judicial District Court of the State of Nevada, Carson City.

Source: Law360.com

New York Attorney General Opioid Trial Is Now Set For June

Judge Jerry Garguilo has set a new June trial date for the New York Attorney General’s suit arising out of the opioid crisis. This very important suit has been delayed multiple times due to the coronavirus pandemic. In an order on March 8, the judge said that he would set the trial to start on June 8. During a teleconference hearing held on the previous Friday, Judge Garguilo called off the previously set March 29 trial date out of concerns for the health and safety of lawyers, court staff and jurors. Judge Garguilo also moved a March 22 court appearance to May 3, stating:

On that date, the court and all counsel will consider all factors, conditions, reports, and the like reflecting on a realistic and responsible date to commence the preliminary voir dire process (distribution and collection of juror questionnaires).

The trial will involve claims by New York Attorney General Letitia James and Nassau and Suffolk counties that drugmakers and distributors fueled the opioid crisis. Originally scheduled to start in March 2020, the trial has been delayed multiple times due to COVID-19.

The state is represented by the Office of the New York State Attorney General. Nassau County is represented by Napoli Shkolnik PLLC. Suffolk County is represented by Simmons Hanly Conroy LLC.

The cases are In re: Opioid Litigation (case number 400000/2017); County of Suffolk v. Purdue Pharma LP, et al. (case number 400001/2017); County of Nassau v. Purdue Pharma LP et al., (case number 400008/2017); and State of New York v. Purdue Pharma LP, et al. (case number 400016/2018), all in the Supreme Court of the State of New York, Suffolk County.

Source: Law360.com

McKinsey Seeks New Opioid MDL

McKinsey & Co. is asking for a separate MDL in the Opioid litigation. The lawsuits accusing the consulting firm of contributing to the opioid crisis would be centralized but kept separate from the existing multidistrict opioid litigation. The request was made by the consulting firm in new court filings.

McKinsey’s filings on March 8 in multiple cases disclosed that it had asked the Judicial Panel on Multidistrict Litigation on March 5 to centralize current and future opioid-crisis lawsuits in New York City, where it is based, as opposed to Cleveland, where the existing opioid MDL is located and has been in existence since 2017.

The company leaned heavily on efficiency arguments when requesting a new MDL in the Southern District of New York. It noted that its principal place of business is Manhattan and that it is primarily accused of unlawfully advising OxyContin maker Purdue Pharma LP, which is in bankruptcy proceedings in the Southern District.

McKinsey wrote that there is “no genuine nexus between the new claims against McKinsey and the Northern District of Ohio,” and if the existing MDL were not situated in that district, there “would be no justification for centralizing the cases there.”

Cities, counties and Native American tribes are pursuing at least 17 cases in federal court against McKinsey. All lawsuits claim the consulting firm helped Purdue deceptively tout the benefits of OxyContin and focus its promotional efforts on high-volume prescribers who were likely enabling painkiller abuse. Most of those cases were filed in the aftermath of settlements collectively worth nearly $600 million that McKinsey had reached with almost every state attorney general. Now all of the states, including those who were not in the global settlement, have settled their claims against McKinsey.

The proposed MDL is In re: National Prescription Opiate Consultant Litigation (case number not immediately available) before the Judicial Panel on Multidistrict Litigation. The existing 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

Oklahoma Seeks 19-Year Extension To Johnson & Johnson $465 Million Opioid Judgment

Oklahoma has urged the state’s Supreme Court to reject Johnson & Johnson’s appeal of a $465 million judgment for its role in creating an opioid addiction epidemic. The state also asked the high court to extend the company’s one-year abatement plan to 20 years. The trial court found Johnson & Johnson liable for one year of the State’s proposed 20-year plan to remedy the nuisance caused by Johnson & Johnson’s fostering of the opioid crisis. The total plan, over 20 years, would cost $17 billion.

In his reply to J&J’s appeal, Oklahoma Attorney General Mike Hunter painted a picture of a company motivated solely by billions of dollars in profit, launching a “deceptive marketing spree” undeterred by the tens of thousands of people who became addicted to its drugs and the thousands of Oklahomans who died. The state’s filing said:

J&J lied to Oklahoma for over 25 years. It said these drugs were safe and effective for ordinary, everyday pains. And that they were rarely, if ever, addictive. But that was unfounded.

In 2019, J&J was ordered to pay $465 million for its role in fostering opioid addiction among the state’s residents after a bench trial in front of Oklahoma Judge Thad Balkman. The State of Oklahoma had also sued Purdue Pharma and Teva Pharmaceuticals for their role in the opioid addiction epidemic but settled with Purdue and Teva shortly before trial for $270 million and $85 million, respectively.

J&J appealed the Oklahoma judgment to the state’s Supreme Court in September 2019.  Oklahoma also appealed, asking the Supreme Court to modify the trial court’s judgment to adhere to the state’s 20-year plan for abatement. The state argued that the one-year abatement—which the court ordered J&J to fund—did not go far enough, citing testimony that it would take 20 years to fully abate the crisis. Several chief law enforcement agents, including Attorneys General, from around the country, have filed amicus briefs urging the court to affirm the judgment.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Activity in the Opioid Litigation has intensified nationally. The firm’s Opioid Litigation Team is hard at work, and our lawyers are overcoming the roadblocks caused by the pandemic. The team includes Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne and Matt Griffith. 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 [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].

POLITICAL NEWS & VIEWS

Defamation Lawsuits Take Aim At Bogus Election Fraud Claims

There have been at least six highly significant civil lawsuits filed arising out of the bogus conspiracy theories and other matters relating to the 2020 presidential election. Three companies caught up in the election fraud conspiracy theories ignited by Trump-affiliated lawyers Rudy Giuliani and Sidney Powell, and fueled by right-wing news media, are fighting back against those baseless claims. These companies have filed billion-dollar defamation lawsuits against parties who intentionally sought to discredit them. I will briefly discuss each of these lawsuits.

U.S. Dominion v. Sidney Powell

Dominion Voting Systems, an election-technology company, filed a $1.3 billion lawsuit against Sidney Powell on Jan. 8. Powell was a lawyer who served on former President Donald Trump’s legal team and spread an unfounded conspiracy theory that Dominion colluded with rival company Smartmatic to switch President Trump’s votes to democratic contender Joe Biden. Further, Powell claimed that Dominion was created in Venezuela to help rig elections for Venezuelan dictator Hugo Chávez who died in 2013. Powell’s outrageous theories served as the basis for four federal lawsuits she filed seeking to overturn the election results. The lawsuits have resulted only in calls for Powell’s disbarment.

Dominion was, in fact, founded in Toronto, Ontario, in 2002 to create voting machines that were more accessible for the blind. Tom Clare, the lawyer representing Dominion, remarked that these false claims “made [Dominion] radioactive and destroyed the value of its once-thriving business and has put Dominion’s multiyear contracts in jeopardy.”

In a most interesting and telling statement, Powell’s defense lawyers told the trial judge that no reasonable person would have believed Powell’s conspiracy theories to be “true.” Sadly, millions of Americans did, in fact, believe the lies told by Powell. She was the lawyer representing Donald Trump, and when a president’s lawyer makes a statement, people listen and believe that which is said. Powell’s reversal now proves that the election fraud conspiracy story was nothing more than a flat lie!

U.S. Dominion v. Giuliani

Dominion also filed a $1.3 billion lawsuit against Rudy Giuliani, on Jan. 25, in the Federal District Court in Washington, D.C., accusing the former New York mayor of carrying out “a viral disinformation campaign about Dominion” made up of “demonstrably false” allegations.

Giuliani’s conspiracy theories involved a cast of colorful characters. According to Vox, “Giuliani and other Trump allies relied on a former head of security for an alleged Southern American drug kingpin, who claims that the Muslim Brotherhood colluded with a prepubescent George Soros to form a Nazi ‘deep state’ in 1930s Germany, and the CEO of MyPillow to build their case against Dominion.”

In November, Giuliani echoed Powell’s false assertions during an interview with Fox Business host Lou Dobbs. Giuliani said that Dominion’s parent company had ties to Chávez and that the voting booths were explicitly designed to flip the 2020 election in Biden’s favor.

All of the claims by Giuliani that made the basis for the lawsuits were bogus. The company claims Giuliani’s conspiracy theories involving the company potentially jeopardized hundreds of millions of dollars of government contracts it was pursuing.

U.S. Dominion v. MyPillow, Inc. and Michael J. Lindell

Dominion filed suit Feb. 22 against MyPillow and its CEO Mike Lindell seeking damages over $1.3 billion. It was filed in the Federal District Court in Washington, D.C. In exchange for boosting his pillow’s sales, the lawsuit alleges that Lindell spread what Dominion calls the “Big Lie,” or disinformation that Dominion used its voting machines to flip the election in President Biden’s favor.

According to the lawsuit, Lindell ran ads targeting Trump supporters who believed the election results’ conspiracy theories. Dominion explained that MyPillow’s “promo codes like ‘FightforTrump,’ ’45,’ ‘Proof,’ and ‘QAnon’… increased MyPillow sales by 30-40% and continues duping people into redirecting their election-lie outrage into pillow purchases.” Despite no evidence supporting his claims, the lawsuit alleges that Lindell, a multimillionaire with unlimited resources to broadcast his messages, even “produced a ‘docu-movie’ featuring shady characters and fake documents sourced from dark corners of the internet.”

Lindell founded MyPillow in 2004. He and the company have been sued multiple times for false and misleading advertising over claims that its pillow can improve certain health conditions. MyPillow was fined $1 million in 2016 by the State of California over similar claims of deceptive marketing.

 Smartmatic v. Fox News

Election technology company Smartmatic filed a $2.7 billion defamation lawsuit on Feb. 4 against Fox News for making at least “100 false statements and implications” about Smartmatic, including accusing the company of being tied up in a scheme to help Biden “steal” the Nov. 3 election from Trump. Fox News and Fox Business Network hosts Maria Bartiromo, Lou Dobbs, and Jeanine Pirro named in the suit as defendants and two lawyers – regular guests on the program – Giuliani and Powel. Smartmatic filed the lawsuit on Feb. 4 in New York State Supreme Court.

Giuliani claimed on the Nov. 12 episode of “Lou Dobbs Tonight” that Smartmatic was founded by Venezuelans with close ties to former dictator Chávez “in order to fix elections.” There was no factual basis for this claim, and it was just another bogus claim designed to affect a valid election result.

Smartmatic’s founders were born in Venezuela but founded the company in 2000 in Boca Raton, Florida. According to the company’s website, “Smartmatic has only owned one election company in the U.S., Sequoia Voting Systems. Smartmatic sold the company in 2007 to Sequoia’s management team. More than three years later, Dominion Voting Systems bought Sequoia. Smartmatic had no part in Sequoia’s acquisition by Dominion.”

Dominion Voting Systems sues Fox News

Dominion Voting Systems has filed a $1.6 billion defamation lawsuit on March 19 against Fox News.  The voting technology company was a target of baseless conspiracy theories about the 2020 elections.  The company alleged that Fox “ridiculously disregarded the truth” and participated in a disinformation campaign against it because “the lies were good for Fox’s business.”

Following the election, Trump and his supporters filed a huge number of frivolous lawsuits that were totally without merit, and they even attempted to intimidate state officials into illegally overturning election results. When these efforts failed, Trump and his inner circle called their supporters to Washington, D.C. on Jan. 6, the day Congress met to certify Joe Biden’s win, telling them to “Stop the Steal” and “be wild.” As has been widely reported, thousands of Trump supporters answered the call and, in a carefully planned and carried out effort, descended on the nation’s capitol. Donald Trump held a “Stop the Steal” rally for his supporters outside of the capital where he, Trump Jr., Giuliani, and U.S. Rep. Mo Brooks repeated the unfounded accusations that the election was stolen, further intensifying an emotionally charged crowd.  Soon after the rally, the group, already mad and hostile, grew quickly into a violent, dangerous mob and stormed the U.S. Capitol. Their obvious intent was to keep Joe Biden from becoming president.

The mob disrupted the initial efforts to certify the Electoral College results and threatened American Democracy. The insurrectionists held lawmakers captive by blocking entrances and exits. Emboldened by Trump, who told them to march on the Capitol, the mob also threatened lawmakers in leadership positions and terrorized and injured other lawmakers. As the world, including Trump, watched the sheer anarchy, there is no doubt that all trapped inside the Capitol were fearful for their lives.

Two lawmakers who endured the violent insurrection on Jan. 6 have also filed civil lawsuits. I will briefly discuss these lawsuits below.

Rep. Bennie G. Thompson v. Donald J. Trump, et. al.

U.S. Rep. Bennie Thompson, the House Homeland Security Committee Chairman, filed a lawsuit on Feb. 16 in his personal capacity against Trump. The suit received the NAACP’s backing. It cited the Ku Klux Klan Act of 1871, which was created to protect against insurrectionists like those organized by the white supremacist group the Ku Klux Klan (KKK) after the civil war. The group organized insurrections in the South to keep black people from voting. Rep. Thompson compares the violent mob that stormed the Capitol on Jan. 6 to KKK insurrections because of similar intent – to disrupt American Democracy through fear and intimidation.

The lawsuit also names Giuliani, the Proud Boys and Oath Keepers. It accuses the Proud Boys and Oath Keepers of organizing the mob’s insurrection and Trump and Giuliani of inciting the mob. Rep. Thompson seeks compensatory and punitive damages, but his primary reason for the suit is to hold Trump and the insurrectionists accountable.

Rep. Eric Swalwell v. Donald J. Trump, et. al.

U.S. Rep. Eric Swalwell has sued Trump, Donald Trump, Jr., Giuliani and Rep. Mo Brooks.  Rep. Swalwell’s suit alleges conspiracy to violate civil rights, negligence, inciting a riot and inflicting emotional distress. The complaint details how Trump’s refusal to accept defeat prompted him to lie to his supporters by telling them that Biden’s victory was a coup. It further states that “the Defendants’ false and incendiary allegations of fraud and theft, and in direct response to the Defendants’ express calls for violence at the rally, a violent mob attacked the U.S. Capitol.” Rep. Swalwell’s lawsuit also seeks damages, but like Rep. Thompson, Rep. Swalwell’s desires to hold accountable all those who attacked the nation’s capital and threatened him and others conducting business in the Capitol that day.

Conclusion

All of these lawsuits are important and should not be considered an attack on free speech or politically motivated. If any person or entity ever crossed the line and deserved to be held legally accountable for their actions, each of the Defendants in these lawsuits clearly did so. It will be most interesting to watch the pretrial discovery in the cases. Again, I will just say – stay tuned!

Sources: Business Insider, New York Times, Vox, Smartmatic, Washington Post and National Public Radio

THE WHISTLEBLOWER LITIGATION

Circuit Split Deepens For FCA Relators

It might be good to review at this juncture how a whistleblower lawsuit works before discussing a circuit split in the litigation. In a qui tam (whistleblower) action, a private party or “relator” brings an action under the False Claims Act (FCA) on the government’s behalf to stop different types of fraud perpetrated against the government.  The lawsuit is filed under seal for 60 days to allow the Department of Justice time to investigate the claim. After investigation, FCA allows the Department of Justice to dismiss the action.  The only codified requirements for dismissal state the relator must be notified of dismissal and have an opportunity for a hearing.

The FCA, however, is silent on the standard courts should use to review the government’s decision to dismiss.  Before December 2020, courts set two different standards of review.  Now, with the Seventh Circuit hearing an FCA dismissal, courts are forced to consider which of three standards to follow.

Rational Relation Test

Over 20 years ago, the Ninth Circuit considered an FCA dismissal in Sequoia Orange Co. v. Baird-Neece Packing Corp. The court adopted a “rational-relation” test comprised of two distinct steps.  Under the rational relation test, the Department of Justice must show: (1) a valid government purpose for dismissal and; (2) a rational relation between dismissal and accomplishment of said purpose. Only once the Department of Justice establishes both steps, the burden switches to the relator to demonstrate the dismissal is fraudulent, arbitrary and capricious, or illegal. The court stated if the relator “presents a colorable claim that the settlement or dismissal is unreasonable in light of existing evidence, that the Government has not fully investigated the allegations, or that the government’s decision was based on arbitrary or improper considerations,” a hearing is appropriate.

In 2005, the Tenth Circuit adopted this same standing in Ridenour v. Kaiser-Hill Co.  The court cited the purpose of the FCA—to enhance the government’s ability to recover losses sustained due to fraud against the government. This, in combination with construction of the statute, led the court to find the act “imparts more substantive rights for a relator” and entitles them to a fair hearing and true opportunity to be heard.

Unfettered Right to Dismiss

The District of Columbia Circuit heard an FCA dismissal back in 2003 in Swift v. U.S. and went a very different direction than the Ninth and Tenth Circuit.  The court held that the Department of Justice has an unfettered right to dismiss– particularly when DOJ files the motion to dismiss prior to filing an answer or summary judgment motion.  Following Swift’s language, the relator’s hearing is “simply to give the relator a formal opportunity to convince the government not to end the case.”  Unless the court is presented with evidence of serious government misconduct, the court is unlikely to interfere with the Department’s decision.  The Fifth Circuit appears to follow this standard in Riley v. St. Luke’s Episcopal Hosp., stating that “the government retains the unilateral power to dismiss an action ‘notwithstanding the objections of the person.’”

Rules-Based Standard

The most recent standard comes from the Seventh Circuit late in 2020.  In CIMZNHCA v. UCB, Inc., the court looked to the Federal Rules of Civil Procedure, limits in the FCA itself, and background constraints on executive conduct in general.  The Seventh Circuit moved closer to the unfettered right approach, finding that only an exceptional case where the relator alleges fraud on the court or a breach of constitutional rights may warrant a hearing on the dismissal. The court did state that notice and hearing under the FCA may serve a great purpose and that their reading of the statute “does not render its process futile as a general matter.”

Some lawyers have proposed possible resolutions to the split that now exists. Those resolutions, which affect each branch of the government:

  • The Supreme Court could grant certiorari to resolve the split and provide statutory construction for the FCA. However, as the authors note, the Court has denied petition in April and October of 2020.
  • Congress may amend the FCA and resolve the ambiguity in how to review the Department’s dismissal.
  • The executive branch may discourage the Department of Justice from using its dismissal power and directly addressing the dismissal authority.

The CIMZNHCA v. UCB, Inc., case is being handled by our firm with Leslie Pescia and Lance Gould, lawyers in our Consumer Fraud & Commercial Litigation Section, handling the appeal in the United State Supreme Court. We expect a ruling later this year but hope to have a positive role in correcting this “split” in the law among the Federal courts.

As for qui tam actions in general, these cases continue, and when the Department of Justice declines intervention or moves to dismiss the suit, courts will be forced to decide which standard to follow in reviewing that denial.  Other circuits may remain in the three camps already formed or may form their own until the FCA is clarified via Court ruling, executive action, or legislative amendment.  Hopefully, we can make a good change in the appeal of CIMZNHCA v. UCB, Inc.

If you have questions or need more information, contact Courtney Horton at 800-898-2034 or by email at [email protected].

The Beasley Allen Whistleblower Litigation Team

There has been no slowdown in litigation under the False Claims Act (FCA). Lawyers on Beasley Allen’s Whistleblower Litigation Team continue to be very busy handling cases under the Act. Fraud against the federal government by all too many industries in this country, especially in health care, remains a huge problem. We project that because of the pandemic, fraud against the federal government will increase greatly. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed will be a major factor for the increase.

We can’t stress enough that whistleblowers are the key to exposing corporate wrongdoing and government fraud. Their role has intensified greatly and will continue in that direction. 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 prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

If you are aware of any fraudulent activity in Corporate America against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen’s Whistleblower Litigation Team for a free and confidential evaluation of your claim.

The following Beasley Allen lawyers are on the Whistleblower Litigation Team: Larry Golston ([email protected]), Lance Gould ([email protected]), James Eubank ([email protected]), Paul Evans ([email protected]), Leslie Pescia ([email protected]), Leon Hampton ([email protected]), Tyner Helms ([email protected]) and Lauren Miles ([email protected]). Dee Miles ([email protected]), who heads up our Consumer Fraud & Commercial Litigation Section, also participates in the whistleblower litigation and works with the Litigation Team.  The lawyers can be reached by phone at 800-898-2034.

PRODUCT LIABILITY UPDATE

Steering Sensor Lawsuit Brings GM’s Safety Practices Into Question Again

A new lawsuit filed by our Atlanta friend Lance Cooper has put General Motors Co. (GM) safety practices in question again. For all of the wrong reasons, the Detroit automaker is back in the spotlight again. GM vowed to step up its safety practices seven years ago after recalling millions of vehicles with a known ignition switch defect later linked to 124 deaths. That defect was discovered in a lawsuit filed by Lance Cooper, which was joined in by our firm. The Melton case, which will be discussed below, uncovered a major safety defect, known by GM, but covered up by the automaker for 10 years.

This new lawsuit involves 42-year-old Glenda Marie Buchanan, who in Nov. 2014 veered off the road in her 2007 Chevrolet Trailblazer SUV in her hometown of rural Georgia. The plaintiff, her widower, claims a defective steering sensor that GM was aware of but failed to warn drivers about caused the accident. The sensor is a crucial part of GM’s StabiliTrak electronic stability control system that adjusts brakes and engine power to help drivers avoid losing control and crashing. GM knows all about Lance Cooper and has to realize they are in for a real battle.

GM has denied that there are problems with the steering sensor and has refused to issue a recall. The company says it conducted thorough investigations and sought expert opinions and claims it is not aware of any other complaints alleging accidents other than the one in the Buchanan case involving a steering sensor disengaging the StabiliTrak system.

GM also claims in the Buchanan case that there was inconclusive evidence that the vehicle’s electronic stability control was inoperative when Ms. Buchanan’s vehicle crashed, killing her.

Reuters reviewed hundreds of pages of documents, which were unavailable to the public until a Georgia judge issued a sweeping protective order. After reviewing the documents, the news agency began to question what the country’s top-selling automaker knew about issues with the steering sensor.

The documents include depositions taken from GM employees as well as information from a 2018 internal investigation. The probe revealed more than 73,700 warranty claims related to the steering sensor. Furthermore, of the approximate 778,000 GM model year 2006 to 2008 SUVs that had the component, 10% were defective or problematic. A rate that far exceeds the less than 1% industry experts expect to see with vehicle components. Despite this revelation, GM still didn’t recall the vehicles.

In February 2020, Lance Cooper requested the National Highway Traffic Safety Administration (NHTSA) to investigate the Buchanan case. The vehicle safety regulator told Reuters it reviewed the concerns but determined in January that there wasn’t enough evidence to further investigate the matter. Based on our experience with NHTSA, we aren’t a bit surprised that the agency failed to go forward with a needed investigation.

Meanwhile, about 500,000 vehicles with the steering component remain on U.S. roads, according to 2019 registration data from automotive marketing company Hedges & Company.

Beasley Allen lawyers have handled a number of product liability cases against GM involving the company’s questionable safety practices. As stated above, our firm was involved with Lance Cooper in the Melton case, which was over a GM defective ignition switch. Greg Allen, Cole Portis and I worked with Lance in the case against GM. Brooke Melton died in a March 2010 crash when the ignition switch in her 2005 Cobalt failed, slipping into the accessory position as she was driving at highway speeds. This caused her car to skid across the median, crashing into another ongoing vehicle. Work by our two firms in the Melton case exposed a 10-year cover-up by GMs of the ignition switch defect.

Discovery in the Melton case found that defective ignition switches could cause cars to suddenly lose electrical systems, including power steering and power brakes. Airbags would also fail to deploy in some collisions. GM pled guilty to charges that it engaged in a scheme to conceal a deadly defect” from regulators. The automaker agreed to pay $900 million to resolve criminal charges. It also agreed to pay $120 million to state attorneys general and paid about $2 billion to the Department of Justice, the Federal Trade Commission, consumers and shareholders. GM also agreed not to tell consumers a vehicle is safe unless it meets federal motor vehicle safety standards.

Had there not been a Melton case, none of this would have occurred. That includes the MDL created and the settlement of hundreds of cases, including a number of cases handled jointly by Lance Cooper and Beasley Allen.

I predict that the Buchanan case will further expose GM’s history of hiding defects from the public and NHTSA. Pretrial discovery should be most interesting.

Sources: Insurance Journal and Reuters

How One Takata Airbag Explosion Uncovered A Huge Corporate Lie

Lawyers in our Personal Injury & Products Liability Section have handled a number of Takata airbag cases involving deaths and serious injuries. These lawyers have learned a great deal about how the Japanese automotive supplier has operated. We will discuss one very important case that uncovered a corporate lie.

Takata had been making airbags for several years when reports began surfacing of airbag explosions that blasted vehicle occupants with metal shrapnel, leaving them with debilitating or even fatal injuries.

In 2014, Takata blamed these airbag explosions on a bad batch of propellant manufactured at its facility in Coahuila, Mexico. The company vowed to implement better quality control measures so these incidents wouldn’t happen again.

What wasn’t disclosed to the public at the time, however, was that Takata had been making its airbags with ammonium nitrate, a cheaper, low-grade chemical compound. Additionally, the allegedly bad batch was representative of all the company’s airbags, not just a few.

Ammonium nitrate becomes progressively volatile over time, especially in hot, humid environments where exposure to heat accelerates its degradation and makes it more unpredictable. Using ammonium nitrate instead of sodium azide, a solid, stable rocket propellant used by other airbag manufacturers, Takata reduced production costs by more the 90% and gained a competitive advantage. From at least 2008, automakers installed these unstable airbags in tens of millions of vehicles across the United States and other parts of the world.

But it was in the U.S. where the lie Takata had been hiding was finally exposed. The truth broke in a case handled by Tom Willingham, a lawyer in the firm’s Personal Injury & Products Liability Section, on behalf of Brandi Owens, a 24-year-old Georgia woman.

Ms. Owens was the manager of an Enterprise car rental facility. She was driving home from work in December 2014 when she had to make a hard brake for traffic stalled on Georgia 400. The braking caused the vehicle behind her to tap the rear bumper of her 2014 Chevy Cruze so mildly that it left only a scratch. Ms. Owens’ Chevy rolled into the vehicle in front of her. Although her sedan barely tapped the vehicle ahead, the Takata airbag erupted with violent force, spraying metal fragments into the cabin resulting in the blinding of Ms. Owens.

Until Ms. Owens’ accident, Takata repeatedly asserted to the National Highway Traffic Safety Administration (NHSTA) that exploding airbag incidents were limited to older Honda vehicles with Mexican-made propellants. Ms. Owens’ Chevy Cruze, with less than 2,000 miles, clearly didn’t fit that picture. The truth is Takata knew all along that using ammonium nitrate in its airbags would lead to these types of accidents.

Takata placed the cheaper, more volatile airbag chemical into millions of vehicles, knowing that at times the propellant would not ignite uniformly to create an air cushion but instead would create a bomb. Tom learned that Takata performed crash tests showing brand-new, undamaged ammonium nitrate propellant pellets causing airbag explosions but proceeded to use them anyway.

Takata’s exploding airbags have caused about 300 injuries, and at least 26 people have died from the explosions, including 17 in the U.S. The mounting injuries and deaths eventually prompted automakers to recall vehicles equipped with Takata airbags, collectively forming the largest auto safety recall in U.S. history. Despite these measures, the problem is far from over. Millions of U.S. vehicles with Takata’s faulty airbags remain on the road, unrepaired, to this day.

Further, the federal government still allows replacement airbags to use ammonium nitrate. When a customer attempts to replace the faulty airbag, they get the same propellant in their ‘new’ airbag. Unfortunately, over time, these replacement airbags will have the same tragic results as the old ones.

For nearly 30 years, Tom Willingham has exclusively represented victims, many of whom have been catastrophically injured or killed in automobile accidents due to a defectively designed automobile. If you would like to have more information about defective auto products liability claims or any other aspect of auto products liability litigation, contact Tom at 800-898-2034 or by email at [email protected].

LG Chem Unit Must Face Exploding Battery Suit In New Jersey

Last month, a New Jersey state judge refused to dismiss claims that LG Chem America unit is responsible for a battery in an e-cigarette that exploded in a man’s pants, instead of giving him a chance to ensure he is suing the proper company, citing the harm caused by such batteries in the state.

The plaintiff has claimed that an “LG HG2 battery” was included in the Aspire e-vaping device he bought at a retailer in Rockaway, New Jersey. His June 5th complaint was filed against that retailer and LG Chem America. The complaint alleged LG Chem America designed, manufactured, or produced the battery.

Although LG Chem American had argued that if the battery in question was manufactured by an LG Chem entity, the court said it would have been the South Korean parent. The Court said further:

the fact of the matter is the defendant here or another related company, as we found out today … their batteries are in the state of New Jersey hurting people.

The Court allowed the plaintiffs 90 days to conduct jurisdictional discovery to make sure they are suing the appropriate defendant and to find out how the batteries are getting into the State of New Jersey.

Source: Law360.com

Experts Barred From Testifying In 3M Earplug MDL

A Florida federal judge has barred two experts for 3M from testifying about the U.S. Army’s hearing program in multidistrict litigation over allegedly defective earplugs. U.S. District Judge Casey Rodgers found that their testimony was based on speculation and hearsay.

Judge Rodgers said that industrial hygienists Dr. Richard Neitzel and Jennifer Sahmel will not be allowed to testify about the Army’s implementation of its hearing programs, as their opinions are almost totally drawn from anecdotes. Specifically, neither will be allowed to testify about the Army’s implementation of its hearing program or its efficacy. Neither Neitzel nor Sahmel explained how their experiences supported their opinions. The judge said: “Accordingly, Dr. Neitzel’s and Sahmel’s opinions in this regard are speculative, unreliable, and mere conduits for hearsay.”

Around 220,000 service members and veterans say 3M Co. and a predecessor, Aearo LLC, supplied Combat Arms Earplugs Version 2 earplugs that were defective and didn’t protect against service-related tinnitus and hearing loss. They additionally claim the earplugs didn’t come with full and honest warnings and say they received the earplugs during their military service, had their hearing measured through military-issue audiograms, and were injured during their military training.

The service members and veterans are represented by a team led by Christopher Seeger of Seeger Weiss LLP, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz and Shelley Hutson of Clark Love & Hutson.

The case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida.

Source: Law360.com

UPDATE ON THE BOEING LITIGATION

$6.6 Million Fine For Boeing Over Safety And Compliance Failures

In 2019, Mike Andrews, a lawyer in the firm’s Personal Injury and Product Liability Section, warned how deregulation of aviation oversight in the U.S. and specifically the Federal Aviation Administration (FAA) contributed to the two fatal Boeing 737 MAX crashes. As previously reported, Mike has been investigating the two aviation disasters and currently represents families of Ethiopian Airlines’ crash victims. Let’s see what has transpired since Mike issued his warning two years ago.

In late February, the FAA announced a $6.6 million fine against Boeing over regulatory safety compliance failures. Days before the announcement, the Office of Inspector General (OIG) for the Department of Transportation released a report criticizing the FAA’s oversight of Boeing’s 737 MAX program, according to AVWeb.com. Two years later, both the FAA’s decision to fine Boeing and the OIG Report’s findings affirm Mike’s warnings.

While it is a case of ‘too little too late’ for our clients, Beasley Allen welcomes the efforts to hold Boeing accountable for the corporate greed that robbed them of their loved ones.  We will now take a look at the recent developments involving Boeing.

Boeing fined for safety and compliance failures.

The aircraft maker will pay $5.4 million for failing to obey the conditions of an agreement it struck with the FAA in 2015 to improve its safety oversight. The failures are part of the company’s systemic problems that have been highly criticized in the wake of its 737 MAX debacle.

The fine also includes $1.2 million for exerting undue pressure on workers charged with safety oversight of the 787 Dreamliner operations at its South Carolina plant. Last August, the FAA found that the vice president of 787 operations, the senior quality manager, the director of delivery, and at least one other upper-level Boeing manager put undue pressure on Boeing employees designated to represent the FAA in safety inspections as part of the FAA’s Organization Designation Authorization (ODA) program. The ODA program allows Boeing and other select aircraft manufacturers to act as FAA inspectors and essentially self-certify their own aircraft’s safety. The FAA also noted that between November 2017 through July 2019, Boeing established an organizational structure inconsistent with ODA procedures because it placed managers in unapproved roles.

OIG Faults FAA and ODA Program

Boeing’s ODA was also at the heart of the OIG’s findings that “while Boeing and the FAA followed the established certification process for the 737 MAX… limitations in FAA’s guidance and processes that impacted certification and led to a significant

misunderstanding of the Maneuvering Characteristics Augmentation System (MCAS), the flight control software identified as contributing to the two accidents.”

The report notes two critical problems in the FAA’s oversight. The agency’s certification process didn’t “adequately address integrating new technologies into existing aircraft models,” nor did the FAA completely understand how Boeing assessed the safety of the MCAS “until after the first accident.” The OIG report explained that the FAA’s management and oversight weaknesses hindered the agency’s “ability to assess and mitigate risks” regarding Boeing’s ODA. It offers 14 recommendations to “improve FAA’s certification and ODA oversight processes,” including revising the ODA program requirements. The FAA has agreed with the recommendations and provided the OIG with action plans and expected completion dates.

The old adage of the “fox guarding the henhouse” exists for a reason: it doesn’t end well for the “chickens.” This fine underscores the fact that the FAA improperly delegated oversight and control to Boeing, and now we all know how that worked out.

Sources: Forbes, AVWeb.com and Department of Transportation Office of Inspector General

Mike Andrews Handles Aviation Litigation For Beasley Allen

Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, focuses much of his practice on aviation litigation. Currently, he is involved in the Boeing litigation. Mike visited the Ethiopian Airlines flight 302 crash site and surrounding areas several times.

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

THE JUUL LITIGATION

JUUL Litigation Update

The JUUL litigation is in full swing on all fronts. The MDL, class action, and school district cases are all moving forward despite the pandemic. In the MDL specifically, 24 Bellwether plaintiffs have been selected and are undergoing extensive discovery. Depositions are being taken over the next few months.  Once depositions are complete, the first four plaintiffs will be selected for trials to be held in the Northern District of California under presiding Judge Orrick. The first trial is set for March 2022.

Beasley Allen lawyers, led by Joseph VanZandt, continue to investigate new claims on behalf of individuals and school districts.  For more information, contact Sydney Everett or Melissa Prickett at 1-800-898-2034, or by email at [email protected] or [email protected].

Teens Struggling To Quit JUUL, Despite COVID Risks

The coronavirus pandemic has brought about interesting changes for everyone globally, particularly for young people who have had to spend extensive time at home.  This has proven especially difficult for young people who previously became addicted to JUUL and other vaping products before COVID. For the first time, many were forced to face their nicotine addiction, and parents realized how severely their children were struggling with this addiction. Further, many young people could not obtain nicotine due to stay-at-home orders and experienced severe withdrawals.

Not only has the pandemic exposed these addictions, smokers and vapers are actually at high risk for developing severe COVID symptoms and were found to be seven times more likely to contract the virus. This is so recognized by the medical profession that smokers are included in phase 1c of the vaccine distribution plan. Those in medicine recognize the risks associated with long-term smoking and the effects COVID can have on smokers, regardless of age, and have made it a point to include those people on the distribution list.

Still, with knowledge of these risks, many teens are unable to cease usage due to the device’s addictiveness. One study from the University of South Carolina Institute for Addiction Sciences studied tweets during the pandemic regarding JUUL and found interesting statistics. There were three common themes amongst these tweets: methods to quit, wanting to quit, and having quit (using nicotine). The stress of the pandemic and new lifestyle changes have not made quitting easier either.

JUUL delivers a massive amount of nicotine to the brain faster, much quicker than other tobacco products. This is especially harmful for young people with developing brains. Many will never be able to kick the habit, or they will develop other addictions, other health issues, including lung disease, cancers, and heart disease in the process.

One good thing from this pandemic is that the excessive amount of time at home has shed light on many teens’ nicotine addiction, thereafter forcing necessary conversations in households that otherwise might have never happened. One study recently found that many teens have reduced their addictions during the pandemic by as much as 45%. Teens are wanting to quit vaping. Efforts have been made across the board to address the vaping epidemic simultaneously with the COVID pandemic.

Source: verywellhealth.com

The JUUL Litigation Team

Beasley Allen lawyers, led by Joseph VanZandt, currently represent many individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives.

Lawyers on our firm’s JUUL Litigation Team have filed JUUL lawsuits on behalf of school districts nationwide. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the team at 800-898-2034 or by email at [email protected], [email protected], [email protected], [email protected] or [email protected]. Andy Birchfield ([email protected]), who heads up the firm’s Mass Torts Section works with the team on the JUUL litigation.

MASS TORTS LITIGATION

Boston Scientific To Pay $188 Million Over Mesh False Ad Claims

Boston Scientific Corp. will pay 47 states and the District of Columbia $188.6 million to settle claims that the company falsely touted the safety of its surgical mesh products. Attorney General Letitia James announced the settlement, saying the agreement comes after a multistate investigation found that the company violated state consumer protection laws by claiming its mesh products were safe while hiding the risks associated with them.

The mesh products are implanted in women to treat common health conditions, such as urinary incontinence and other conditions resulting from a weakening in the pelvic region due to childbirth, age and other factors.

According to the attorney general, despite the risk of serious complications and lack of evidence that the mesh is any more effective than other tissue repair, Boston Scientific, whose mesh is implanted in millions of women, failed to disclose the full range of complications, such as chronic pain.

In addition to the payment to the states and D.C., Boston Scientific has agreed to a number of marketing reforms, including disclosing the complications in understandable terms in its marketing materials and refraining from representing that the risks of mesh can be eliminated or are common to other types of treatment for the same conditions.

The company must also inform health care providers of the risk of significant complications, ensure its independent contractors are properly trained to report adverse events, and disclose any potential conflicts of interest in clinical studies or data that it publishes.

The case is The People of the State of New York v. Boston Scientific Corp. in the Supreme Court of the State of New York, County of New York.

Source: Law360.com

Eisai Loses Motion To Dismiss Design Defect Claim In Belviq Cancer Lawsuit

A recent ruling by U.S. District Judge Lance M. Africk (E.D. La.), rejected an attempt by drug makers Eisai, Inc. and Arena Pharmaceuticals to dismiss design defect claims involving the prescription drug, Belviq — paving the way for litigation directed at the recalled diet drug to move forward.

Belviq (lorcaserin) was introduced as a new weight-loss medication in 2012, following years of problems linked to earlier prescription diet drugs. However, early last year, the FDA required the drug makers to recall the Belviq products after post-marketing study data revealed an increased incidence of cancer among users.  Since that time, many Belviq cases have been filed by former users who allege that the diet drug caused their cancers.

In the case before Judge Africk, Plaintiff Stephanie Fuller of Louisiana alleged that she developed breast cancer after using the drug from August 2018 to October 2018. Eisai Inc. and Arena Pharmaceuticals filed a motion to dismiss the lawsuit, arguing that Fuller failed to sufficiently allege breach of warranty, manufacturing defect, and design defect claims. After hearing the motion, Judge Africk agreed that the breach of warranty and manufacturing defect claims were not sufficiently alleged and dismissed those claims. However, the judge refused to dismiss the entire complaint and determined that the Plaintiff’s design defect claim was legally sufficient and should move forward. As Judge Africk noted in his January 15, 2021, Order:

Even if the plaintiffs did not allege precisely how the dangers of Belviq’s design outweighed the defendants’ burden in creating a similar, less-dangerous drug, that would not doom their claim at the motion-to-dismiss stage”…”[t]he plaintiffs must plead enough only to ‘raise a right to relief above the speculative level”…”[t]he Court finds that they have.”

Beasley Allen lawyers are currently reviewing a number of individual cancer diagnosis claims for clients who have purchased and used Belviq.  Former Belviq users have been diagnosed with breast cancer, pancreatic cancer, colorectal cancer, lung cancer and other injuries.  If you need more information, contact David Byrne or Melissa Prickett, lawyers in our firm’s Mass Torts Section, at 800-898-2034 or by email [email protected] or [email protected].

Source: Drugwatch

INSURANCE INDUSTRY LITIGATION

Northern District Of Alabama Denies Insurer Motion To Dismiss In COVID-19 Business Interruption Claim

U.S. District Judge for the Northern District of Alabama, Anna M. Manasco, has denied defendant Cincinnati Insurance Co.’s motion to dismiss in Southern Dental Birmingham LLC v. The Cincinnati Ins. Co., No. 2:20-cv-681-AMM. The order in Southern Dental, issued on March 19, is the latest opinion to come out of Alabama in the wave of COVID-19 business interruption coverage cases,

Cincinnati claimed in its motion to dismiss that the plaintiff failed to plead a Covered Cause of Loss because it did not plead “physical damage” or a structural alteration to the covered property.  The relevant language of the plaintiff’s policy defines “loss” as “accidental physical loss or accidental physical damage.”  The policy does not, however, define “loss” or “damage.”

Accordingly, the Court applied Alabama contract interpretation principles and ordinary dictionary definitions to conclude the definition advanced by Cincinnati—that the property must have an “uncleanable compromised structural integrity”—is not the only possible interpretation under the language of the policy.  Rather, because Southern Dental pleaded the virus was present at the Covered Property and, as a result, the facility was required to close, the Court concluded that Southern Dental had adequately pleaded a claim.

In reaching this conclusion, the Court distinguished two prior Southern District of Alabama cases: Hillcrest Optical, Inc. v. Continental Cas. Co., No. 1:20-CV-275-JB-B, 2020 WL 6163142 (S.D. Ala. Oct. 21, 2020); and Drama Camp Prods. V. Mt. Hawley Ins. Co., No. 1:20-CV-266-JB-MU, 2020 WL 8018579 (S.D. Ala. Dec. 30, 2020).  In Hillcrest, the plaintiff specifically did not allege the physical presence of the virus in the covered property, while in Drama Camp, the plaintiff alleged its business losses were due solely to the statewide closure order as opposed to the presence of the virus.

The Court also analyzed Cincinnati’s claim that the plaintiff failed to plead prohibition of access to the plaintiff’s property for purposes of its claim under the Civil Authority provision.  Cincinnati argued that Civil Authority Coverage, which requires physical loss or damage to property other than the covered property and a resultant civil order prohibiting access to the covered property, was unavailable because no physical loss or damage occurred to any premises.  For the same reasons, the Court found physical loss or damage to the covered property was alleged.

The event also agreed that physical loss or damage to other property was alleged as well.  Furthermore, Cincinnati cited no applicable Alabama law or precedent to support its contention that “access to premises must be prohibited, not just limited.”  As such, and because Southern Dental alleged that it ceased on-premises business, the Court declined to dismiss these allegations as well.

Beasley Allen lawyers Dee Miles, Rachel Minder, and Paul Evans handle the Southern Dental case and other business interruption insurance cases.  You can contact them at [email protected], [email protected], or [email protected] if you have any questions or would like to discuss potential claims.

EMPLOYMENT AND FLSA LITIGATION

DOL Plans To Rescind Trump’s Independent Contractor Rule

The U.S. Department of Labor (DOL) announced that it plans to rescind the independent contractor classification test it rolled out near the end of former President Donald Trump’s term.  On January 7, 2021, the DOL published a new rule for determining whether to classify a worker as an employee entitled to minimum wage and overtime protections under the Fair Labor Standards Act (FLSA).  The new rule focused on the “economic realities” of the work arrangement and, in particular, whether the putative employer has actual control over the worker.  The new rule would make it easier to classify workers as independent contractors rather than employees.

DOL cited concerns that the Trump administration’s new rule was inconsistent with U.S. Supreme Court precedent and the purpose of the FLSA while questioning whether it took into account the economic harm independent contracting has on workers.  In reviewing the impact of the new rule, the DOL said, “it assumed that the rule would lead to an increase in the number of independent contractor arrangements, and acknowledged that some of this increase could be due to businesses reclassifying employees as independent contractors.”

The use of independent contracting relationships instead of employment decreases access to employer-provided benefits such as healthcare or retirement benefits.  Additionally, independent contractor status results in higher tax liabilities for the independent contractor.

The DOL did not replace the rule with an affirmative policy of its own on how to interpret worker status for the FLSA, which gives them options on whether to devise a new regulation or take a faster route of publishing guidance that doesn’t require public input.

Separate from the independent contractor rule, the Biden DOL, on February 24, 2021, announced it would push back the effective date of tipped worker regulations that the Trump administration finalized in its final weeks.  The Biden DOL has also withdrawn Trump-era letters it said it issued “prematurely” because their legal analysis relied on the independent contractor and tipped worker regulations, which were not yet effective.  These actions indicate that the Biden administration will restore the Obama-era’s stricter approach to worker misclassification.

If you need more information, contact Lance Gould, a lawyer in our Consumer Fraud & Consumer Fraud Section, at 800-898-2034 or by email at [email protected].

Source: Reuters

 $45 Million Harassment Lawsuit For Sexual Assault Filed Against “TikTok Doc”

With all the recent revelations about sexually driven misbehavior in the workplace, a recent case was filed against a doctor who frequently posts on TikTok and has become known as the “TikTok Doc.” Dr. Jason Campbell, a physician who accumulated a large following by posting videos of himself dancing in his scrubs on “TikTok,” has been sued for sexual assault.  A former colleague of the doctor has sued him for $45 million, alleging that he sent inappropriate text messages and touched her inappropriately.

The lawsuit, filed in Portland, Oregon, seeks $40.5 million in punitive damages from Dr. Campbell and $4.5 million in damages from him and the Oregon Health & Science University (OHSU).  According to the lawsuit, starting in January 2020, when Dr. Campbell was a resident at OHSU, he “began harassing [the] plaintiff via text messages, pornographic photos and sexually-charged social media messages.

The unidentified plaintiff, a former social worker at OHSU, also alleges that on January 24, 2020, Dr. Campbell sent her a picture of his private body parts. Later that same day, he sent her a message on Instagram stating, “you look tasty.” On March 12, he allegedly “snuck up quietly” behind the woman and, without her consent, “pushed his body and his erection forcibly onto [her] backside, pushing her into the desk in front of her,” the suit states. She then yelled at him to leave. When the plaintiff texted him after this incident and complained, Dr. Campbell allegedly responded, in part: “I should’ve asked. I’m sorry.”  The lawsuit asserts that the plaintiff complained to OHSU about Dr. Campbell’s alleged conduct.  However, the lawsuit also alleges that OHSU medical personnel did not formally report her harassment complaints.

Beasley Allen lawyers have represented many victims of sexual harassment in the workplace, and we encourage anyone who has experienced this type of inappropriate conduct at their place of work to seek representation and protection.  If you believe you are a victim of sexual assault or sexual harassment in the workplace, please, contact our law firm at 1-800-898-2034 and ask to speak with Larry Golston, [email protected], Leon Hampton, [email protected], or Lauren Miles, [email protected].

Source: Fox News

PREMISES LIABILITY LITIGATION

Fire Safety Is A Major Premises Liability Concern

Recently, Beasley Allen was retained in another horrific trailer fire case that occurred in Athens, Georgia. The blaze broke out in the middle of the night on January 27, 2021, in a trailer located at the Hallmark Mobile Home Park and quickly consumed the trailer. Gone now are three pillars of the Athens community, including a grandmother, a mother of two, and a precious eleven (11) year old girl. Parker Miller, a lawyer in our Atlanta Office, is taking the lead in investigating our clients’ case.

Since 1980, tens of thousands of individuals have died from fires that occur in the home. Although the frequency of fire events has decreased since 1980, that progress has effectively leveled off since 1997. Each year, there are between 300,000 and 400,000 home fires per year, resulting in seven (7) billion dollars in property damage per year.  Sadly, on average, nearly 3,000 people die each year from these fires. Home fires occur most frequently in the cold months, with deaths and injuries following that trend.

At Beasley Allen, we see firsthand the catastrophic consequences fire can cause when a property is not maintained or is in poor working order. In addition to our Athens case, our lawyers currently represent numerous families in structure fire cases, including multiple ones in the Mobile, Alabama, area. Evan Allen from our Mobile Office is working on these cases.

Of particular concern are trailer fire cases, which comprise many of the structure fire cases that we see. These fires burn incredibly hot and can quickly engulf a trailer. The cause of trailer fire cases can take many forms, be it poor maintenance or a product defect that initiates or fails to detect the fire. In many cases, we find that the smoke detectors are either not functioning, are insufficiently placed, or unreliable because of their age or poor maintenance. Proper functioning smoke detectors placed in every room of the trailer should give residents plenty of time to get out before it is engulfed in flames. When a party owns a trailer and rents it to the occupants, that owner is often required to provide functioning smoke detectors. Failure to do so can create a major premises liability to the owner of the trailer.

Product defects can also be a catalyst of structure fires. While an electronic device may appear to be well-made on the outside, the guts of the electronics may be a fire hazard due to poor configuration on the inside. Based on our experience, we have seen deadly fires start from appliances like new televisions, toasters, laptops, dishwashers, ceiling fans, lithium battery packs and a host of other appliances. Additionally, although properly maintained, an otherwise survivable fire can turn deadly when smoke detectors fail to alert occupants of a fire.

As noted, Beasley Allen lawyers are handling a variety of fire structure cases, be it due to premises liability or because of a product defect. If you have any questions about these cases, or if you have a fire structure case that you would like us to review, contact Parker Miller, in our Atlanta office or Evan Allen, in our Mobile office, at 800.898.2034 or by email at [email protected] or [email protected].

Source:  National Fire Protection Association November 2020 Home Structure Fires Supporting Tables

WORKPLACE HAZARDS

Recent Statistics On Workplace Injuries

The U.S. Bureau of Labor Statistics (BLS) and other federal agencies are tasked with collecting and reporting yearly workplace injury statistics.  These statistics allow employers and workers to assess trends and determine where all interested parties should focus on reducing injuries and fatalities in workplace incidents.  In November of last year, the BLS published its statistics for the prior calendar year (2019).  BLS maintains, gathers and reports incidents involving Fatal and Non-Fatal workplace illness and injury rates.  This article will focus on the statistics related to fatal workplace injuries.

Based on BLS reporting, the number of fatal workplace injuries is on the rise.  That is not good news for American workers and their families.  One would imagine and even hope that the workplace should become safer as we learn more, not more dangerous.  The statistics tell a different story.  According to the released statistics, the most common causes of fatalities in the workplace are:

  • Transportation accidents;
  • Violence, whether by other persons or animals;
  • Slips, trips and falls;
  • Machine, equipment, or contact with other objects;
  • Exposure to hazardous substances or environments; and
  • Fires and explosions.

Transportation-related fatalities ranked #1 and more than doubled the number of deaths related to workplace violence.  Employees working in jobs requiring them to operate motor vehicles for employment have cause for concern.  Employees who drive for a living can wear seat belts and drive safer; however, they have little control over others’ driving habits and have no control over the design of the vehicles they drive.

In cases Beasley Allen lawyers have pursued on behalf of families, it is often a defect in the vehicle that led to a death.  As we all know, accidents happen; thus, the vehicles employees operate should be designed with safety in mind.

Machine and equipment-related deaths have similarities to transportation-related deaths in that those deaths are often caused by a defect in the machinery.  Manufacturers of machinery utilized in the workplace are supposed to observe design standards intended to keep machine operators safe.

Unfortunately, our lawyers see too many cases where machines are defective due to inadequate guarding and/or warnings.  Additionally, employers will sometimes bypass or fail to integrate safety devices provided by the manufacturer.  Whether it’s the manufacturer’s fault or the employer’s, it is the employee and their families forced to deal with the consequences.

Beasley Allen lawyers currently represent the families of employees killed while driving a vehicle for their employer, utilizing a machine, becoming exposed to hazardous substances, or becoming the victim of an explosion/fire.  In each instance, the employee killed in a workplace setting was blameless; however, they left behind families and loved ones who depended on their love and financial support.

Behind each statistic is a devastated family left to pick up the pieces and attempt to move forward.  Anyone that receives that dreaded call from a loved one’s workplace and receives the news that an accident has claimed a life should hire competent counsel to review the incident to ensure justice is served.  Do not depend on reports from management as management is incentivized to claim that the death was caused by the employee.

While no one, including competent counsel, can bring the loved one back, they can ensure that the employer and any responsible third party will be held to account and that attempts are made to replace the lost income resulting from the death.

If you need more information, have questions, or have a potential claim that you need help on, contact Kendall Dunson (lead lawyer for Beasley Allen on workplace accident litigation), Evan Allen, or Ben Locklar, lawyers in our Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected], [email protected] or [email protected].

On The Job Injuries: Nail Guns

Nail guns can be found on any construction site. The nail guns boost carpenter and framer productivity, but with that speed comes the likelihood of injury.  In fact, tens of thousands of nail gun-related injuries are reported each year.  Many more go unreported.  One study found that 2 out of every 5 carpenters experienced a nail gun injury over a four-year period, with 1 out of 5 being injured twice and 1 out of 10 injured three or more times.  Nail guns are responsible for an estimated 37,000 emergency room visits each year. The majority of injuries are to the hands and fingers. Injuries to other body parts such as the legs and even head and face are reported each year.

Understanding how these injuries occur and how to prevent them requires an understanding of how nail guns operate.  Nail guns are typically pneumatic or air-driven devices.  Others are gas, electric, or hybrid.  Nail guns are equipped with a trigger or other device that will fire and drive the nail when actuated.  There are several different trigger designs, and the type elected will often have a dramatic effect on the safety of the device.  Full sequential triggers will only fire a nail when the controls are activated in a certain order.  These nail guns have a safety tip on the end of the gun that must be pushed into a surface.  The gun will not fire even if the trigger is pulled if the tip is not pressed against a surface.  Further the gun will only fire in a full sequential trigger if the tip is depressed and then the trigger is engaged.  The operator will then have to engage the tip and pull the trigger again to fire another nail.  These are regarded as the safest option of a trigger mechanism.

This differs from a contact trigger. A contact trigger has the same safety tip. However, the trigger can be engaged by the user, and then once the tip is depressed, the gun will fire automatically.  The user can continue to engage the tip, holding the trigger, and a nail will be fired each time the safety tip is pressed against a surface.  This is also known as “bump firing.”  Contact triggers are quicker than full sequential triggers but come with more risk.  Operators can unintentionally fire nails by engaging the safety tip.  One study found that approximately 2/3’s of nail gun injuries are the result of unintentional firings.   Contact triggers also increase the risk of a double fire, where one nail is fired into a nail that was just fired.  This can cause nails to ricochet or go in unintended directions.

Other nail gun injuries result from nails penetrating through the intended object and striking something on the other side.  These are what are known as “pass-through” injuries.  These injuries are particularly common when the worker must hold the board in place.  The nail can go through the board and strike the worker’s off-hand, which is holding the board in the desired location.  Pass-throughs can also result in a nail completely passing through a board, creating an airborne projectile.  This can be hazardous to other workers on site.

The Occupational Safety and Health Administration (OSHA) has studied nail gun accidents and provides directives on minimizing these risks.  OSHA suggests using nail guns with full sequential triggers, provide operators with adequate training, establish nail gun work procedures, provide workers with personal protective equipment, encourage reporting and discussion of nail gun injuries and close calls, and finally providing first aid and medical treatment should there be an accident.

If you have any questions or need more information, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected].

Source: OSHA.gov

Workplace Accidents Can Involve Numerous Responsible Parties

According to the U.S. Bureau of Labor Statistics, there were 2,814,000 nonfatal injuries and illnesses in the private business sector in 2019.  Also, in that year, there were 5,333 fatal injuries at private workplaces.  The injury portion of this number includes every possible type of injury that you can imagine from sprain, strains and tears; back injuries; falls and trips; roadway injuries; amputations; loss of eyesight; and the like.

Most employees receive worker’s compensation for their injuries. Still, worker’s compensation coverage is often far too little to adequately compensate an injured employee for his or her injuries to corporate or family for an employee’s death.  For the most part, employers are protected from liability beyond the liability imposed under a state’s Worker’s Compensation Act.

When an employee is seriously injured or killed, the question for the employee or the deceased employee’s family, and often for the employer, is whether some other entity outside of the employer’s business caused or contributed to the injury or death of the employee.  Claims against persons or entities other than the employer are often referred to as third-party claims.

The potential for recovery from third parties could include drivers of other vehicles (for roadway accidents), manufacturers of equipment (where a person is injured on or around a piece of equipment), and outside contractors (where an outside contractor may be involved in working in the employer’s business when the employee was injured).  It is this latter group that will be addressed here.

Typically, when someone is injured on the job, the local office of the Occupational Safety and Health Administration (OSHA) is called in to investigate the matter.  OSHA has the authority to cite entities that caused or contributed to the injury or death where an entity violated federal law.   Often, injuries occur where a machine is activated or still in motion while an employee works on or around that machine.  Industry standards require that a machine be locked out when it is being serviced to keep an employee from being injured.  The primary regulatory authority that addresses lockout-tagout is 29 CFR 1910.147 (“The control of hazardous energy (lockout/tagout)”).

This government standard places some responsibility on the employer and the employee. Still, it also puts additional standards on outside contractors who may be in the plant working on the equipment.  In those instances where machinery is being worked on, the person or party who removes locks to activate the energy to the machine is required to confirm that the potentially hazardous area is free of tools and people. They are also required to verify that all persons in the area are notified that the locks have been removed, that the machine has been energized, and that a hazard exists.  1910.147(e) and (f).

An outside contractor and an employer must meet and confer to discus the potential hazards and share this information with their respective employees.  Unfortunately, critical information is not always properly conveyed between the employer and outside company.  In those cases, employees have been known to be seriously injured or killed.

It is imperative that employers and outside contractors have policies in place that are habitually implemented to discuss the scope of work of the outside contractor, the hazards involved, and the means to convey the risks to employees before work begins.  This process should be repeated often throughout the work process to ensure that others do not get on or near equipment that can be activated during the servicing and maintenance process.

If you have any questions or need more information, contact Ben Locklar, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected].

Sources: OSHA.gov and Theheartford.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

Defective Fuel Pump Class Action Cases

Beasley Allen was the first law firm to investigate the serial recall of cars equipped with defective low-pressure fuel pumps manufactured by Denso Corporation and its U.S. affiliate Denso International America, Inc. The firm filed a trio of class action cases which were the first cases filed in the U.S. involving this matter.

Denso’s low-pressure fuel pumps are dangerously defective because, as Denso admitted when it first recalled over two million of these parts, they can cause car engines to run rough, fail to start, lurch, and unexpectedly stall, including at high speeds, increasing the risk of a crash. The fuel pump is critical to the functioning of a car because it supplies fuel pressure to the fuel injection system and delivers it to the engine, which then propels the automobile.

Denso’s low-pressure fuel pumps have motors or “impellers” made of material that is too porous for them to function safely in their environment, the fuel tank, causing the pumps to swell and become inoperable.

Drivers of cars equipped with these dangerous components have reported instances of near misses when their cars unexpectedly lunged forward at intersections and accidents when their cars stalled without warning while on the road, causing the steering wheel to seize and the brakes to stop working.

Many of these events occurred when the vehicles were new or a few years old, even though fuel pumps are expected to last a vehicle’s life or a minimum of 200,000 miles.

Denso has now recalled over 3.6 million of its fuel pumps, and the auto manufacturers whose vehicles are equipped with these faulty parts have in turn recalled millions of their vehicles.

In January 2020, Toyota Motor Corporation issued the first of these recalls, which it reported as affecting nearly 700,000 of its Toyotas and Lexuses manufactured between August 2018 and through January 2019. Beasley Allen lawyers, working with an automotive engineering expert, identified the faulty fuel pumps by part number and determined and allege that additional Toyota and Lexus models and other model years of the already recalled models should be added to the recall.

In March 2020, Toyota confirmed the accuracy of the Plaintiffs’ findings when it expanded its recall to cover over 1.8 million cars, including its most popular Toyota and Lexus models such as the Toyota RAV4 and Lexus GX, some of which were manufactured as early as 2014.

Plaintiffs alleged in a subsequent complaint that the recall still did not cover all affected vehicles, and, in October 2020, Toyota recalled an additional 1.5 vehicles. All told, Toyota recalled more than 3.3 million cars equipped with the defective Denso fuel pump in the U.S. and up to 5.8 million cars worldwide.

Plaintiffs commenced the Toyota Fuel Pump litigation in February 2020, asserting consumer protection, fraudulent concealment and strict liability claims against Toyota and Denso, and warranty and negligent recall claims against Toyota on behalf of statewide, multi-state, and nationwide classes. Plaintiffs allege:

  • That Denso knew its fuel pumps were defective since well before 2016 when Denso filed a patent application to improve the impeller’s material in the fuel pump, and from its prerelease testing and validation of the fuel pumps, which it knew would be installed in the Toyota vehicles.
  • That Toyota also knew of the fuel pump defect because, among other reasons, it owns 25% of Denso, its pre-release testing of the vehicles, and the part would have disclosed the defect, it had thousands of warranty claims and field reports concerning the fuel pumps. Toyota also knew of the many complaints lodged by consumers with the National Highway Traffic Safety Administration.
  • That Toyota’s purported “fix” for the recall, which originated with Denso and calls for replacement of the fuel pump only as opposed to the fuel pump assembly as the industry norm, is ineffective and renders the vehicles more dangerous.

Numerous consumers who have had the recall fix performed on their vehicles have reported experiencing continued stalling and other symptoms of the defect and gasoline leakage and fumes.

Denso and Toyota have moved to dismiss our cases, and briefing is expected to be completed by April 29, 2020. Pretrial discovery is underway in the cases.

Beasley Allen clients filed similar class cases against Honda Motor Company, and Subaru Corporation, both of which also issued fuel pump-related recalls, naming Denso a defendant in each case.  Plaintiffs recently filed consolidated amended complaints in those cases, and motion practice on the sufficiency of the pleadings and discovery will follow.

Dee Miles and Demet Basar are interim lead class counsel in Cheng v. Toyota Motor Corporation, Case No. 11:20-cv-00629_WFK-CLP (E.D.N.Y.); Dee Miles is interim co-lead counsel in Oliver v. Honda Motor Company Limited, Case No. 5:20-cv-00666-MHH (N.D.AL.); and Lydia K. Reynolds is lead Beasley Allen lawyer in Cohen v. Subaru Corporation, Case No. 1:20-cv-08442-JHR-AMD (D.N.J). In addition to Dee, Demet and Lydia, the Firm’s Fuel Pump Team consists of Clay Barnett and Mitch Williams, with able assistance from Tyner Helms.

Enhancing Liability In Heavy Truck Cases With Video Evidence

The old adage “a picture is worth a thousand words” proves even more true when the picture is in the form of video evidence. With emerging technologies, video cameras are located on many devices today. In the heavy truck industry, many companies are equipping their fleets with video-based safety programs. These systems interface with other onboard monitoring systems and the engine to provide information to the trucking company regarding the safety (or lack thereof) of its drivers through video evidence and analytics.

These systems use these data sources to determine a critical event and begin recording video. Such critical triggering events include, but are not limited to: following too closely, speeding, hard braking, swerving, lane changes, g-force changes, rollover stability, and impacts.

Following a triggered event, the recorded video of said event is sent to the company providing the safety program for analysis and e-mailed to the trucking company for review. Thus, a trucking company can be provided evidence in real-time of its driver operating the vehicle in an unsafe manner.

This type of video evidence is critical in showing the driver acting negligently or wantonly at the time of the crash, which harmed your client, and proving the trucking company had notice of a driver’s unsafe driving habits. These systems can include forward-facing cameras, in-cab cameras, and those on the sides of the vehicle.

Such recorded video provides a jury a clear understanding of exactly how the crash occurred because they see it happen. These systems can also provide more than just video evidence. They also provide analytics on every driver, a driver scorecard, trends, maintain a company portal with information on coaching risky drivers and provide reports that focus on both driving and coaching performance. SmartDrive® and Zonar Systems are examples of commercially available video-based safety programs. It is important to quickly determine what type of on-board equipment the trucking company has equipped its fleet with and such equipment’s capabilities. Letters requesting that the evidence be preserved should be immediately sent to the trucking company and the video-based safety program provider. Often the videos are saved by the commercial provider for a specified time period before they are discarded.

In addition to on-board video recordings of the crash between the heavy truck and your client’s vehicle, body-cam video recordings of responding law enforcement personnel can be key evidence and are often overlooked. Such video evidence can provide a clear picture of the behavior of the truck driver following the crash, your client’s injuries as well as the crash scene. This video evidence can be particularly damaging if the truck driver is criminally charged, for instance, driving while under the influence. Body-cam video recordings will capture field sobriety tests, searches performed of the cab of the vehicle, and the truck driver’s condition. This video evidence will provide the jury a clear indication of the level of inebriation of the truck driver, further establish liability and add value to your case.

In a recent trucking case, this type of evidence proved critical in establishing liability and providing visual evidence of the crash and the condition of the driver following the crash. The truck driver at issue had been previously reprimanded for hard-braking incidents captured by the trucking company’s video-based safety program. Moreover, on the day of the crash, the truck driver had two triggering hard-braking incidents, which would have been sent to the trucking company, yet continued to drive and ultimately caused a crash resulting in severe injuries.

The entire crash, with sound, was video recorded by the on-board camera. The body-cam videos obtained from the responding law enforcement agency provided a clear visual of the driver’s condition at the time of the crash. The driver was visibly intoxicated, and the video evidence showed the cab of his tractor with remnants of alcoholic beverages.

While documents from the trucking company or responding law enforcement personnel are used to establish liability in trucking cases, the video evidence available with emerging technologies can be used to further enhance liability and provide a clear picture of what happened at the time of the crash.

If you have any questions or would like more information, contact Mary Leah Miller, a lawyer in our Personal Injury & Products Liability Section at 800-898-2034, or by email [email protected]. She is in our Atlanta office.

Tractor Trailers And Liability In The Atlanta Perimeter

There is a constant presence of tractor-trailers and other personal motor vehicles on our roadways. This is necessary for all of us to get where we are going and for businesses to exist. As a result, and in the case of Atlanta, there is traffic every day.  Because of the makeup and busyness of the roadway in Atlanta,  any motor vehicle with more than six wheels and commercial motor vehicles as defined by Code Section 40-1-1 shall not travel on any portions of Interstates 20, 75, 85, or Georgia Highway 400 that are located within the arc of Interstate 285 unless they meet an exception noted in O.C.G.A 40-6-51. These exceptions include:

  • Engaging in a pickup or delivery to or from a shipper located inside the arc of Interstate 285;
  • Traveling to or from such motor vehicle’s terminal facility located inside the arc of Interstate 285;
  • Traveling to or from a repair facility located inside the arc of Interstate 285 for service; or
  • Traveling to or from his or her residence, which is located inside the arc of Interstate 285.

When litigating tractor-trailer cases inside the perimeter, it’s important to consider this code. Ask the questions such as, “Where did you pick up your load,” “where were you going,” “What was your destination,” and do so with a purpose. Have the driver explain their route. It is important to find the defendant driver in places where they should not be and understand why that is the case.

Often you will find that the Defendant valued their time and the load he or she is carrying over the safety of the motoring public. As a result of this selfish act, the driver abandons their professional driving duties and causes a collision. Litigating tractor-trailer cases is about finding justice for a family by learning all the ways a driver and the driver’s company violated the law or company policy.

Knowing this code section is one other way to do just that. In a deposition, not only can’t you catch the defendant driver in a place they should not be, but discussions related to this wrong will naturally lead you through a sequence of questioning that provides insight related to HOS violations, late delivery, and the fact that the driver simply chose themselves (i.e., profit) over the safety of others.

If you have questions about litigating tractor-trailer cases and exposing these defendants, contact Ben Keen, a lawyer in our Atlanta office, at [email protected].

NTSB Report Finds The Batteries For Electric Vehicles Pose A Threat To First Responders

The National Transportation Safety Board (NTSB) recently released a report finding that lithium-ion battery fires in electric vehicles pose a threat to first responders, and there is little guidance to mitigate first responders’ safety risks.

The NTSB’s report followed an investigation into four electric vehicle fires (three electric vehicle crash fires and one non-crash fire). Three of the batteries reignited after first responders extinguished them. Tesla manufactured all four vehicles.

The investigation, leading to the NTSB Report, found that the vehicles’ high-voltage lithium-ion batteries “pose the risk of electric shock to emergency responders from exposure to the high-voltage components of a damaged lithium-ion battery,” and that damaged battery cells can experience uncontrolled spikes in temperatures and pressure and reignite. The NTSB said:

The risks of electric shock and battery reignition/fire arise from the ‘stranded’ energy that remains in a damaged battery.

The NTSB studied response guidelines and found “gaps” in recommended procedures to first responders. Though the NTSB does not have any enforcement powers, it recommended that manufacturers create vehicle-specific response guides for addressing battery fires and limiting chemical thermal runaway and reignition. The guidelines should also include information on safely storing vehicles with damaged lithium-ion batteries to avoid reignition.

The NTSB also called upon the National Highway Transportation Administration (NHTSA) to form a coalition to research ways to mitigate or de-energize the stranded energy in high-voltage lithium-ion batteries and to reduce the hazards associated with thermal runaway resulting from high-speed, high-severity crashes.

We will continue to monitor this issue and report on any new developments. If you have any questions or need more information, contact Mitch Williams, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email [email protected].

Sources: NTSB.gov and carcomplaints.com

Daimler And Mercedes Get Approval On $1.5 Billion Emissions Settlement

U.S. District Judge Emmet G. Sullivan on March 9 approved a $1.5 billion settlement between automakers Daimler AG and Mercedes-Benz USA LLC and the Department of Justice (DOJ) to resolve claims that they used “defeat devices” to fool emissions tests and put vehicles on the road that didn’t meet regulations. The settlement also resolves claims between Daimler and the state of California, with a $110 million payment to the California Air Resources Board and a $17.5 million payment to the state attorney general on similar allegations.

Judge Sullivan signed off on a consent decree agreed to by all the parties, saying it was fair, reasonable and promoted the public interest by binding the automakers from using such devices again and requires them to start programs to mitigate the damage the devices have done to the nation’s air. The companies announced the settlement in August, saying the agreement covers claims over the emissions control systems of about 250,000 diesel passenger cars and vans in the U.S. The court held off on approving the consent decree to give time for public comment.

The settlement resolves complaints filed in September 2020 by both the DOJ and California, alleging that Daimler and Mercedes used undisclosed auxiliary emission control devices and “defeat devices” to fool emissions tests, so the cars appeared to put out less pollution, while during normal driving conditions they failed to meet U.S. Environmental Protection Agency standards.

The settlement requires Daimler to fix its vehicles at no cost to customers, offer an extended warranty on all parts impacted by the fix, and conduct testing of those vehicles to demonstrate they comply with emissions standards. Additionally, according to the order, Daimler must perform projects to clean up the air pollution caused by the defeat devices, implement corporate compliance measures and pay an $875 million civil penalties, plus retroactive penalties of about $70 million.

In his order, the judge wrote that by bringing the affected vehicles into compliance and imposing penalties on the companies, the settlement is both reasonable and in the public interest. He said the penalties should act as a deterrent to other companies in the future. The settlement is the latest development arising from the scandal that started when fellow German carmaker Volkswagen admitted in 2015 to using defeat device software to bypass emissions standards.

Since then, VW has admitted to equipping 11 million vehicles with emission-cheating devices and said it has paid a total of more than $25 billion in fines, penalties, and various settlements over the scandal. Daimler has also faced a shareholder suit in California that resulted in a $19 million settlement to resolve claims that the company inflated its stock using cheat devices to fool emissions tests. The Department of Justice, representing the U.S., said in a statement to Law360:

The district court recognized that the settlement secures significant relief for the environment and for Mercedes customers who purchased diesel vehicles with devices that reduced pollution controls in certain situations. The company will repair the vehicles at no cost to owners, take important measures to prevent future violations, and pay penalties of over $940 million. This punishes the defendants and sends a clear message of deterrence to other manufacturers not to utilize emission control evasion strategies.

The government is represented by Stefan J. Bachman, Lori Jonas, Steven O’Rourke and Jerome W. MacLaughlin of the U.S. Department of Justice’s Environment and Natural Resources Division. California is represented by Xavier Becerra, Robert Byrne, Ed Ochoa, Gary E. Tavetian, Joshua M. Caplan and John Sasaki of the California attorney general’s office. The case is United States et al. v. Daimler AG et al. (case number 1:20-cv-02564) in the U.S. District Court for the District of Columbia.

Source: Law360.com

TOXIC TORT LITIGATION

Hidden Dangers Harming America’s Brave Service Men And Women

For much of the 20th century, brave men and women enlisted in the United States armed forces to serve this country.  Many of them knew that certain risks and dangers awaited them – foreign enemies, long journeys at sea and time spent in remote and harsh environments away from the comfort of home and loved ones.  However, unbeknownst to them, there was a hidden danger that lurked among them in the form of deadly asbestos fibers.

In particular, U.S. Navy servicemen were at risk of being exposed to deadly asbestos fibers because over 300 kinds of asbestos products were used in the U.S. Navy and on its ships during the 20th century.  Unfortunately, before around 1980, most U.S. Navy vessels contained large amounts of asbestos.  All of these ships were full of heavy-duty industrial equipment like pumps, valves, boilers and turbines, among other things, that were both insulted with asbestos-containing insulation and contained internal component pieces, such as gaskets and packing, that contained asbestos.

The manufacturers that supplied the Navy used the toxic mineral because of its affordability, tensile strength and resistance to heat and chemical damage. These properties made asbestos a good insulation, fireproofing and building material. The Navy used it in nearly every part of each ship, from bow to stern.

Of course, these products’ manufacturers never placed warnings on any of the products to inform the sailors of the risks associated with working with and around these asbestos-containing materials despite these corporations knowing about the risks associated with their products for decades.

The outcome of this has been tragic. Some of America’s bravest served their country with distinction and honor only to find out decades later that the asbestos-containing equipment they worked around during those years of service will cost them their lives after developing deadly asbestos-caused cancer, known as mesothelioma.

A 2019 quantitative assessment of asbestos-related diseases in the military revealed that Navy personnel who worked as machinist’s mates, boiler technicians, pipefitters, fire control technicians and water tenders had the highest mesothelioma mortality rate of the 114,000 veterans in the study. The epidemiological research was published in the International Journal of Radiation Biology.

Veterans suffering from illnesses caused by military asbestos exposure are entitled to disability compensation. There are also survivor benefits for spouses when veterans die of service-related cancer.  Additionally, manufacturers of the asbestos-containing products that knew the risks associated with their products but failed to warn the Navy and its sailors about them also face lawsuits.

If you need more information, contact Charlie Stern, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at [email protected]. Charlie has vast experience as a mesothelioma lawyer, and he will be glad to talk with you.

New Jersey Department Of Environmental Protection Sues The Federal Government Over PFAS Contamination

In January of this year, the New Jersey Department of Environmental Protection (NJDEP) filed suit against the United States to compel the United States to immediately address the contamination of New Jersey groundwater with PFOA and PFOS facilities owned or operated by the United States. The suit, which was brought pursuant to the federal Safe Drinking Water Act (SWDA) and the New Jersey Safe Drinking Water Act (NJSWDA), alleges that the use of AFFF at federal facilities caused the contamination, which presents an imminent and substantial endangerment to drinking water supplies in New Jersey.

NJDEP seeks injunctive relief ordering the United States to control the source of PFOS and PFOA, to remediate the PFOS and PFOA, to provide alternate water supplies, and to conduct medical monitoring for New Jersey residents who have been exposed. NJDEP also seeks to recover its reasonable costs for investigation and remediation of the PFOA and PFOS contamination above New Jersey drinking water standards. New Jersey drinking water standards for PFOS (13 ppt) and PFOA (14 ppt) are considerably lower than EPA’s Lifetime Health Advisory Level (HAL) of 70 ppt.

The complaint was filed in the AFFF Multi-District Litigation in federal court in South Carolina. If you have any questions or need more information, contact Ryan Kral, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at [email protected].

Source: jdsupra.com

The ONGOING Roundup Litigation

Bayer AG Drops Appeal Of $21 Million Roundup Verdict

Bayer AG, on March 19, announced that it would not be asking the U.S. Supreme Court to review the $20.6 million verdict awarded to Dewayne Johnson, the former school groundskeeper who proved at trial that Monsanto’s weedkiller Roundup caused his cancer. Bayer, without warning, pulled its request for certiorari with the high court. Bayer claims it has another case that may make its way to the high court unless settled. That case involves Edwin Hardeman’s $25 million verdict, which is currently on appeal pending before the Ninth Circuit Court of Appeals. Bayer will have difficulty explaining why it will pay the victim in Johnson but denies liability in Hardeman for another victim.

The Johnson case was the first to go to trial in August 2018, and it resulted in an initial $289 million verdict that was later reduced to $20.6 million. Since then, a huge number of people across the country have filed claims against Monsanto, which Bayer acquired in June 2018 for $63 billion. Beasley Allen lawyers represent 3,500 of those claimants.

In October, the California Supreme Court refused to take a look at the Johnson verdict. R. Brent Wisner of Baum Hedlund Aristei & Goldman PC, who represents the plaintiff in that case, told Law360:

Bayer and Monsanto saw the writing on the wall — the Johnson verdict was grounded in science and careful application of California law, and the Supreme Court was never going to upset the verdict. We are very pleased that Mr. Johnson was able to see justice done before he passed. He is a bona fide American hero.

The Ninth Circuit is currently reviewing the Hardeman case. During a teleconference hearing in October, U.S. Circuit Judge N. Randy Smith seemed skeptical of Monsanto’s arguments that the verdict must be overturned because the U.S. Environmental Protection Agency approved of the herbicide. Monsanto argued that the jury trial over Hardeman’s failure-to-warn claims should never have been held because his claims are preempted.

Judge Smith questioned whether the EPA’s approval matters in light of a provision in the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) that says, “in no event shall registration of an article be construed as a defense” against a FIFRA violation. That is a most difficult hurdle for Monstanto to overcome. The judge added that FIFRA says an herbicide’s registration should serve as “prima facie evidence” that its labeling and packaging comply with the act’s registration provisions, “but that’s it.”

Johnson is represented by R. Brent Wisner and Pedram Esfandiary of Baum Hedlund Aristei & Goldman PC, Michael J. Miller, Curtis G. Hoke and Jeffrey A. Travers of the Miller Firm LLC, and Mark E. Burton of Audet & Partners LLP. Hardeman is represented by David Wool of Andrus Wagstaff PC.

The cases are Dewayne Johnson v. Monsanto Co. (case number S264158) in the Supreme Court of California and Hardeman v. Monsanto Co. (case numbers 19-16253, 19-16255, 19-16636 and 19-16708) in the U.S. Court of Appeals for the Ninth Circuit.

Source: Law360.com

Widespread Outrage And Opposition Over Bayer’s Class Action Settlement

As many as 90 law firms recently voiced opposition to Bayer AG’s $2 billion plan to settle future Roundup cancer claims. The proposed settlement is aimed at future cases and is separate from the $11 billion Bayer has set aside to settle existing claims brought by people alleging they developed non-Hodgkin lymphoma (NHL) due to exposure to Monsanto’s herbicides. The people affected by the proposed class settlement are individuals who have been exposed to Roundup products and either already have NHL or may develop NHL in the future but who have not yet taken steps to begin the litigation process.

Nine different objections and four amicus briefs were filed with the US District Court for the Northern District of California, showing Judge Vince Chhabria the extent of the opposition to the proposed class settlement.

Most recently, the National Trial Lawyers (NTL) joined the opposition, stating that “the proposed settlement seriously endangers access to justice for millions of people in the proposed class, would prevent Monsanto’s victims from holding it accountable and would reward Monsanto in numerous respects.” The NTL also remarked on its fear that if Bayer’s proposed settlement is approved, it will set a dangerous precedent for future plaintiffs in unrelated cases, stating:

It will hurt the proposed class members, not help them. This type of settlement would also provide an untenable template for other corporate tortfeasors to avoid appropriate liability and consequences for their conduct… the proposed class settlement is not how a ‘system of justice’ works and thus such a settlement should never be approved.

The proposed plan poses several key problems, according to many knowledgeable critics. Those problems are:

  • First, everyone in the US who meets the criteria as a potential plaintiff will automatically become part of the class and, therefore, subject to provisions if they do not actively opt-out within 150 days after Bayer issues notifications of the formation of the class. Notification to this potential class would not be sufficient.
  • Second, and even more troubling, the plan would strip the people who may not even choose to be part of the class of the right to seek punitive damages altogether.
  • Third, a proposed four-year standstill period would block the filing of any new lawsuits—offering no benefit to the class.
  • Finally, much criticism of the proposed formation of a hidden science panel would act as a “guidepost” for an “extension of compensation options into the future” and make available evidence about the carcinogenicity—or not—of the company’s herbicides.

In one of the opposition filings, lawyers seeking a rejection of the proposed settlement wrote:

But an even bigger winner here will be Monsanto, which will get a four-year stay of litigation by class members, who will also lose their right to seek punitive damages and be saddled with the results of an ill-conceived science panel. In exchange, class members will be shunted into an alternate compensation system that features modest payments, increased complexity, and high hurdles to qualify.

Bayer has struggled to figure out how to end the Roundup litigation since buying Monsanto in 2018. The company lost all three trials held to date and lost the early rounds of appeals seeking to overturn the trial losses. Many plaintiffs suffering from non-Hodgkin lymphoma have died since the start of the litigation in 2015. Those numbers continue to climb as arguments of Bayer’s proposed settlement continues.

Beasley Allen lawyers are currently representing 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. The lawyers on our Roundup Litigation Team will answer any questions you might have. Call Tracie Harrison at 800-898-2034 or by email at [email protected], and she will put you in touch with one of the Beasley Allen lawyers handling the Roundup Litigation.

Source: https://usrtk.org/monsanto-roundup-trial-tracker/bayers-class-action-settlement-plan-draws-widespread-outrage-opposition/

Class Action Litigation

Recent Settlements

There have been a number of significant settlements recently in the class action litigation arena, some of which have been approved by a court. A brief summary of each case is set out below.

$650 Million Facebook Privacy Settlement Gets Final Approval

U.S. District Judge James Donato has given final approval to the $650 million settlement resolving claims that Facebook’s facial recognition technology violated Illinois users’ biometric privacy rights. The settlement resolves claims under the Illinois Biometric Information Privacy Act. This is said to be a major win for consumers in the “hotly contested” area of digital privacy. Judge Donato praised the settlement, calling it a “landmark result.”

There have been 1.6 million class members who filed claims. Facebook has also agreed to set its “face recognition” default setting to “off” for all global users and delete all existing and stored face templates for the class members.

The settlement ends a six-year-old consolidated class action over claims the social media giant breached BIPA — one of only three state biometric privacy laws in the U.S. and the only one to include a private right of action — by using facial recognition technology without users’ consent to fuel its photo tag suggestion feature.

Based on reports, this is “the largest cash privacy class action settlement in history.”

The class is represented by Jay Edelson, Benjamin H. Richman and Alexander G. Tievsky of Edelson PC,  Paul J. Geller and Stuart A. Davidson of Robbins Geller Rudman & Dowd LLP and Michael P. Canty and Corban S. Rhodes of Labaton Sucharow LLP. The case is In re: Facebook Biometric Information Privacy Litigation (case number 3:15-cv-03747) in the U.S. District Court for the Northern District of California.

Source: Law360.com

TikTok Users Agree To $92 Million Settlement To End Biometric Privacy MDL

The parties involved in multidistrict litigation against the social media company TikTok have asked an Illinois federal judge to approve a $92 million litigation wide settlement. The plaintiffs in the case alleged biometric privacy violations against the short-form video-sharing app and its parent company, ByteDance.

The settlement, if approved, would end 21 proposed class actions against TikTok.  The various class actions alleged that TikTok does not inform users — many of whom are children and teenagers — that its facial recognition technology collects and stores their biometric identifiers.  Additionally, TikTok does not get the users’ written permission before doing so, as required by Illinois’ Biometric Information Privacy Act.

Under the settlement agreement, the users propose two settlement classes: a nationwide class of people who used TikTok or its Musical.ly predecessor and an Illinois subclass. The users estimate that the Illinois subclass size is about 1.4 million people and the nationwide class has about 89 million members, including the Illinois subclass.

The settlement also includes injunctive relief by requiring TikTok to make certain disclosures and initiate a new data privacy compliance training program for all of its employees and contractors.

TikTok has also agreed not to use the app to collect users’ biometric data, nor will it collect geolocation or GPS data, transmit U.S. user data outside of the U.S., or store U.S. user data in databases outside of the U.S., unless it makes a disclosure in its privacy policy and complies with all laws.

The social media company will also require new training on compliance with data privacy laws and company procedures for all incoming employees and contractors, with annual training thereafter. TikTok will hire a third party to review the compliance training for the next three years.

Objectors to the proposed settlement said in the runup to the proceedings that TikTok’s proposed notice plan was defective and would result in artificially low claims that make the “paltry” deal sound better than it is for users of the video-sharing app. They argue that $92 million to release the claims of roughly 89 million class members undervalues class claims, particularly when compared to Facebook Inc.’s recently approved $650 million biometric privacy settlement, which is mentioned above.

The plaintiffs are represented by Carlson Lynch LLP, Fegan Scott LLC, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC, Freed Kanner London & Millen LLC, Susman Godfrey LLP, Bottini & Bottini Inc., Hausfeld LLP, Burns Charest LLP and Clifford Law Offices PC.

The case is In re: TikTok Inc. Consumer Privacy Litigation (case number 1:20-cv-04699) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

Apple iPhone Slowdown Settlement

A California federal judge has approved a settlement of up to $500 million for iPhone users who accused Apple of deliberately slowing down their devices with an update.

In a pair of orders filed last month, U.S. District Judge Edward J. Davila first granted final approval to the settlement, which will see Apple pay out between $310 million and $500 million — which the judge called one of the largest class action settlements in the circuit. The second-order deal with a request for fees to be awarded to Cotchett Pitre & McCarthy LLP; Kaplan Fox & Kilsheimer LLP; the Law Offices of Andrew J. Brown; and the Brandi Law Firm.

The settlement resolves dozens of consumer protection lawsuits filed in 2018 after Apple admitted to issuing software updates that slowed certain iPhones. The suits allege that Apple designed its software updates to slow down some phone models, nudging consumers to buy newer iPhones.

Under the agreement, Apple agreed to pay up to $500 million in total, depending on the amount of iPhone users to participate in the settlement, with a minimum settlement fund of $310 million.

The consumers are represented by Joseph W. Cotchett, Mark Molumphy and Elle D. Lewis of Cotchett Pitre & McCarthy LLP; Laurence D. King and Frederic S. Fox of Kaplan Fox & Kilsheimer LLP; Andrew J. Brown of the Law Offices of Andrew J. Brown; and Thomas J. Brandi and Terence D. Edwards of The Brandi Law Firm.

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

Source: Law360.com

Reckitt Benckiser To Pay $53 Million To Settle False Ad Suit

Reckitt Benckiser LLC has agreed to pay $53 million to settle a certified class action claiming the dietary supplement maker had falsely advertised one of its products as treating joint pain. This settlement is believed to be “the largest dietary supplement class action settlement ever reached.”

The consumers had claimed that the company falsely advertised its “Move Free Advanced” dietary supplement. U.S. District Judge Vince Chhabria certified both a California and a New York class of buyers in June 2019, finding that the plaintiffs had shown they could support both their false advertising and damages claims.

In their suit, the supplement buyers said they and others had been induced to buy MFA by packaging and advertising, claiming the supplement treats joint pain and stiffness. However, more than a dozen independent studies since the late 1990s have found no improvement in pain, mobility, or quality of life for patients treated with glucosamine or chondroitin, separately or in combination, and that the same had been found for patients treated with MFA’s secondary ingredients, the consumers alleged.

Judge Chhabria said the consumers couldn’t seek extra damages under California law for deceptive business practices targeting senior citizens, saying the statute requires evidence of “substantial” economic harm and the supplements at issue are “relatively inexpensive.”

The consumers are represented by Timothy G. Blood and Thomas J. O’Reardon of Blood Hurst & O’Reardon LLP, and Craig M. Peters of Altair Law. The case is Yamagata et al. v. Reckitt Benckiser LLC (case number 3:17-cv-03529) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Ex-Fresh Market Investors Reach $27.5 Million Settlement In Merger Suit

Former public stockholders of specialty grocery chain The Fresh Market reached a $27.5 million settlement in Delaware Chancery Court. This will resolve a long-running suit over a purportedly unfair, $1.4 billion take-private sale of the business to affiliates of Apollo Global Capital in 2016.

Stockholders must approve the agreement, and the court also must approve the settlement. Insurers or indemnifying parties will pay for those sued other than JPMorgan Chase & Co., the deal’s financial adviser.

In the case, former Fresh Market CEO and chairman Ray Berry was accused of acting disloyally in concealing or lying about his private communications on terms of Apollo’s acquisition of the gourmet grocer to Apollo, as well as an agreement on rollover of Berry’s equity as part of the deal.

Former company president and CEO Richard Anicetti, who succeeded Berry, and former chief legal officer and senior vice president Scott Duggan were accused of fiduciary duty breaches and are parties to the settlement as well.

The agreement potentially marks the final chapter in a tainted sale process and stockholder challenge dismissed by Vice Chancellor Sam Glasscock III in September 2017 but revived by a three-judge panel of Delaware’s Supreme Court in 2018. The justices rejected the vice chancellor’s conclusion that stockholders were adequately informed about the deal’s terms during a tender offer, including about financial adviser JPMorgan’s alleged deception of the Fresh Market’s board about its communications with Apollo. The decision was seen as refining Delaware’s standards for judging whether decisions by minority or independent stockholders can be viewed as fully informed and when business judgment deference should give way to more plaintiff-friendly review standards.

Stockholder Elizabeth Morrison and the class are represented by Joel Friedlander, Jeffrey M. Gorris and Christopher P. Quinn of Friedlander & Gorris PA and Randall J. Barron and Christopher H. Lyons of Robbins Geller Rudman & Dowd LLP.

The case is Elizabeth Morrison et al. v. Ray Berry et al. (case number 12808-VCG) in the Court of Chancery of the State of Delaware.

Source: Law360.com

Judge Gives Early Approval To $104 Million Settlement With Chicken Companies

An Illinois federal judge has granted preliminary approval to a $104 million settlement with four poultry producers to resolve claims from a group of consumers who say the companies engaged in a long-term scheme to fix prices for broiler chickens.

U.S. District Judge Thomas Durkin said during a hearing on March 22 that the settlement — which was reached with only some of the chicken producer defendants in the case (Tyson Foods, Fieldale Farms, Peco Foods and George’s Inc.) appeared to be fair and reasonable and was reached after hard-fought negotiations, with millions of documents exchanged and more than 100 depositions taken.

Judge Durkin noted that he had “never confronted any class action with this many potential plaintiffs.” That could pose a problem relating to the notice issue.

After granting initial approval, Judge Durkin set a hearing date for June 22 to revisit the notice issue. According to the motion for early approval, the settlements were reached with Tyson for $99 million, Peco for $1.9 million, and George’s for $1.9 million and Fieldale for $1.7 million.

Tyson has disclosed that it will pay $221.5 million to resolve all class claims in the case, which is also being pursued by groups of commercial and indirect purchaser plaintiffs, as well as end-users. Direct buyers had recently gained early approval of an $80 million payment from Tyson as part of $155 million in settlements with direct buyers.

The litigation began in September 2016 when private plaintiffs began claiming the nation’s largest broiler chicken producers coordinated and limited chicken production to raise prices and exchanged detailed information about prices, capacity and sales volume through data compiler Agri Stats Inc.

The case is In re: Broiler Chicken Antitrust Litigation (case number 1:16-cv-08637) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

SCOTUS Strikes Down PBM’s Preemption Victory

The U.S. Supreme Court vacated an Eighth Circuit Court of Appeals win by a pharmacy benefit manager (PBM) trade group that brought an ERISA case challenging North Dakota’s regulation of the PBM industry.  The Eighth Circuit ruled in favor of the PBM group, the Pharmaceutical Care Management Association (PCMA), holding that the state’s regulation of the PBM industry is preempted by ERISA. However, a group of North Dakota officials asked the U.S. Supreme Court to vacate PCMA’s win, citing the justices’ monumental ruling in the Rutledge case just a week before. The U.S. Supreme Court reviewed the case and ruled to vacate the PBM group’s victory, and sent the case back to the Eighth Circuit for another review in light of the Rutledge decision.

In the U.S. Supreme Court’s December 10, 2020 ruling in the Rutledge case, which handed a groundbreaking win to Arkansas in its fight to regulate PBMs,
the Supreme Court justices ruled unanimously that ERISA doesn’t preempt Arkansas’ Act 900 —a law forbidding PBMs from reimbursing pharmacies at rates below drugs’ acquisition costs.  In holding that ERISA doesn’t preempt rate regulations, the justices explained that ERISA only preempts local and state policies concerning matters central to benefit plans’ administration, leaving states relatively free to regulate PBMs.

Therefore, the PCMA must now argue their claims of ERISA preemption before the Eighth Circuit again — and the Eighth Circuit must take into consideration the Rutledge decision from the highest court in the nation.

Beasley Allen lawyers handle a great deal of healthcare litigation.  If you have any questions about our firm’s healthcare litigation practice, contact Dee Miles, Ali Hawthorne, or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected], [email protected], or [email protected].

Source: Law360.com

THE CONSUMER CORNER

The CFPB Remains A Critical Factor In Protecting Consumers

The Consumer Financial Protection Bureau (CFPB) received a record number of consumer complaints in 2020, with credit-reporting complaints making up a majority of the grievances. This is according to a study released March 1, 2021, by the watchdog group, U.S. PIRG Education Fund (PIRG).

PIRG found the number of credit-reporting complaints more than doubled in 2019 according to their analysis, increasing to a record high. Specifically, more than 280,000 complaints about credit reporting issues:  Almost nine out of 10 credit-reporting complaints were about Big Three credit-reporting agencies Experian (86,600 complaints), TransUnion (83,300 complaints) and Equifax (76,300 complaints).

The Big Three credit bureaus also led the list of the overall “top 10 most-complained-about companies” by a large margin. That list also included a number of banks.

Credit reporting errors have long been the albatross of the modern American consumer where credit consumption is inevitable, and accuracy of the contents of your credit report make or break the quality of life; innocuous mistakes range from incorrect personal information and addresses, transposed names, or outdated status of a loan repaid, are all examples of errors in a credit report that can affect whether a consumer qualifies for loans, credit cards, and what interest rates to pay. Some of the mistakes can notably be attributed to blunders by federal pandemic-related relief programs allowing pause in the repayment of certain federally issued loans and are supposed to show the loans as current despite payment hiatus to avoid credit damage. Likewise, the government’s granting flexibility to credit bureau’s timely responses to complaints has negatively impacted consumers.

Arguably, the most unsettling aspect of credit errors is the inconsequence levied against loan servicers reporting false consumer data to credit bureaus. While the errors reported by consumers of problems with their credit score may be addressed by the servicers, there’s no guarantee or obligation the misinformation’s effect to lower credit scores, sometimes by three digits will be addressed.

A representative for Consumer Data Industry Association representing credit bureaus and other data companies epitomized the indifference to consumer interests by dismissing the increase in complaints as false leads filed by unscrupulous credit “repair” companies on behalf of their clients, and essentially denying the phenomena despite the CFPB’s monitoring of responses from companies to identified false claims at less than 3% of all responses to consumer reporting complaints in 2020.

The CFPB, under the Biden administration, has stated their intent to investigate and prioritize financial firms, specifically their responsiveness to consumer complaints, and PIRG’s report issued several recommendations to improve consumer credit, including access to free credit scores and a better process for disputing credit report errors. Private actions on behalf of consumers remain the most effective and necessary resource to combat equally predatory financial behavior and inadequate and/or inferior reporting practices.

Litigation, estimated to represent thousands of borrowers to remedy the consequences of reporting mistakes that cause consumers’ credit scores to significantly decrease against credit bureaus, including Equifax, Transunion and Vantage Score, are currently being pursued in Federal District Courts. But the staggering occurrence of such issues evidenced by PIRG’s most recent data begs the question of whether similar litigation will be sufficient to preclude reporting issues on behalf of consumer interest or if this problem will continue to worsen for consumers, demanding more aggressive redress.

Consumers deserve to have their interests represented against big-money banks and corporations that prey on consumers’ financial vulnerabilities for their own gain.  Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section have successfully represented consumers against such fraudulent actors. They protect consumer interests from falling victim to a corporation’s bottom line.

If you need more information or have questions about any part of the above, contact Lauren Miles, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email [email protected].

Our lawyers welcome the opportunity to investigate suspected schemes targeting consumers’ financial welfare, fraudulent actions, and unfair and deceptive trade practices. You can contact Michelle Fulmer, Section Director, at 800-898-2034 or by email at [email protected], and she will put you in touch with a lawyer in the section.

Robinhood Is Facing Nearly 50 Lawsuits Over GameStop

Robinhood, the brokerage of choice for huge numbers of online day traders, is in talks with securities regulators and other authorities concerning the surge in January in shares of GameStop and other so-called meme stocks.

In a regulatory filing, the firm said it has received requests for information from federal prosecutors, the Securities and Exchange Commission (SEC), various states attorneys general and other financial regulators over its decision to restrict trading in January in stocks, including GameStop.  The filing also said the Financial Industry Regulatory Authority (Finra) and the SEC are investigating the firm’s options trading platform and how it displays information about options trading and cash positions to its customers.

Robinhood has faced criticism over how its app displays information since the death last year of Alexander Kearns, a 20-year-old who killed himself because he thought he had incurred more than $700,000 in losses. Kearns’s family has filed a wrongful-death lawsuit against the brokerage.

Robinhood has become popular over the past several years with retail investors and what are described as “fast-fingered” day traders because it does not charge commissions on trades. But last year, Robinhood settled a case with the SEC over its disclosures to customers about how it earned money. The firm faces at least four potential class-action lawsuits over its disclosures about the fees it receives from other firms.  That source of revenue — called payment for order flow — drew the attention of angry users after Robinhood curbed trading in January in GameStop and other stocks that got caught up in a retail-trading frenzy that briefly sent the video-game retailers shares soaring.

Robinhood, a privately traded company with financial backing from several Silicon Valley firms, also disclosed other investigations, including an inquiry by Finra into a March 2020 outage that stopped some customers from accessing the firm’s trading platform on the web and its mobile app at a time of major market volatility as a result of the coronavirus.  Numerous cases were filed by Robinhood customers concerning the 2020 outages and consolidated before Judge James Donato in the United States District Court for the Northern District of California.  Beasley Allen lawyer Leslie Pescia is one of nine lawyers nationwide appointed to the Executive for the Robinhood Outage Litigation.  In February of this year, Judge Donato denied the motion to dismiss and allowed litigation over the 2020 outages to advance.

If you need additional information, contact Leslie Pescia, who is in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email [email protected].

Source: New York Times

Pharmacy Company In Alabama Settles Fraud Case For $43 Million

Priority Healthcare Corporation, a pharmacy network that operates primarily in Alabama and Mississippi, settled a case recently with pharmaceutical company Roche for $43 million. The lawsuit filed by Roche in the U.S. District Court in Northern Alabama in 2018 involved fraudulent rebates for diabetes testing supplies.

Roche alleged in the lawsuit that Priority Healthcare Corporation, which operates pharmacies and related businesses in Alabama and Mississippi, billed insurance companies for diabetes test strips that weren’t shipped or that cost more than the supplies patients received. Employees at Priority Healthcare Corporation then sought rebates from Roche.

It appears that priority Healthcare billed insurance companies multiple millions of dollars every year for blood-glucose test strips. Type 1 and Type 2 diabetics use the strips to measure blood sugar and manage the disease.

Witnesses from Priority Healthcare testified that proceeds from the scheme were kept in shell company accounts, according to an opinion by Chief U.S. District Judge Karon Bowdre. Roche said Priority Healthcare owners Konie and Phillip Minga spearheaded the fraudulent scheme. Judge Bowdre wrote in a 2019 preliminary injunction:

[A witness] corroborates Roche’s claims that defendants engaged in large-scale fraud. Taken as a whole, this evidence exhibits a substantial likelihood that the Defendants unjustly enriched themselves at Roche’s expense.

Roche paid an estimated $30 million to $32 million in unwarranted rebates to the company. In 2019, the court froze Priority Healthcare Corporation’s assets after owners of the company attempted to remove $11 million from accounts.

The evidentiary record reflects that Phillip Minga transferred multiple millions of dollars within days after Roche filed its complaint. More importantly, the Mingas transferred significant amounts of money from business accounts to personal accounts held under the dominion and control of Mr. and Mrs. Minga. Contemporaneously they purchased several big-ticket luxury items.

Phillip Minga had a past conviction for insurance fraud and was not permitted by federal authorities to sell diabetes supplies through the mail, according to the Roche complaint. His wife, Konie Phillips, was listed as the owner of Priority Healthcare Corporation, which is headquartered in Amory, Miss.

The company operates pharmacies in Carbon Hill, Vincent, Jasper, Pinson and Phenix City, and others in Mississippi and Arkansas. It’s alleged in the complaint that the company shifted orders between different pharmacies to hide evidence of fraud.

In addition to the $43 million payment to the pharmaceutical company, the settlement banned employees of Priority Healthcare Corporation from purchasing or selling Roche’s Accu-chek test strips.

Source: AL.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

Our BeasleyAllen.com website provides all the latest information on all of the current case activity at Beasley Allen. The list can be found at the bottom of our homepage, top navigation, or our Practices page of the website (BeasleyAllen.com/Practices/)

The following are some of the current case activity listings:

Resources to Help Your Law Practice

Beasley Allen has been recognized nationally 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. 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 seek 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.

Nursing Home Abuse & Neglect Brochure

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

Co-Counsel E-Newsletter

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

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers and 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/the-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/publications.

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Trial Tips From Beasley Allen Lawyers

This month LaBarron Boone, a lawyer in our Personal Injury & Products Liability Section, has some recommendations on how to try a lawsuit. LaBarron has had an outstanding record of successes in complex Products Liability Litigation over the past 25 years. Let’s see what the Auburn Engineering graduate, now a very good lawyer, has for us.

Framing Your Case

Winning or losing depends on whether the case is properly framed and sequenced, using the case’s facts.  The framing is what moves the jurors to action.  It is not enough to prove that certain facts happened.  A skilled trial lawyer must resist the temptation to present facts that do not fit within the frame or theme of the case, even if they are bad for the defendants. Only the facts that fit the framing of the case should be presented.

The best trial lawyers in the history of this country had a knack for framing cases in a way that appealed to the conscience of the community.  They did that by boiling the case down to a universal truth.  For example, if the facts support the conclusion that the defendant put profits over safety, the universal truth in that case would be that human life is sacred and should never be sacrificed in the name of profits.  Everyone will get that.  Now that your case is framed, all the evidence presented must have the goal of showing the jury that the defendant placed profits over safety—nothing else.

Presenting information that does not prove your claim is a waste of time.  Since most trials last at least a week, with many going much longer, a skilled trial lawyer must condense the case down to only the evidence that supports the frame/theme of the case.  The most successful lawyers can distill the issues down to only the essential facts.  Unnecessary information only adds confusion.  Confusion can breed uncertainty, distrust and skepticism.  Thus, a trial lawyer’s primary goal is to allocate his or her limited time during trial to only what is essential for the client to prevail.

RECALLS UPDATE

As has become the norm, a large number of safety-related recalls were issued in March. Significant recalls are being made available on our website, https://www.beasleyallen.com/recalls/.

You will always find the latest important product recalls on our site throughout the month. We will continue to handle recalls in this manner. You are encouraged to contact Shanna Malone, the Executive Editor of the Report, at [email protected] if you have any questions or to let her know your thoughts on the handling of recalls in the report.

FIRM ACTIVITIES

Employee Spotlights

Andy Birchfield Jr.

Andy Birchfield joined Beasley Allen in 1996, and he initially handled cases involving consumer fraud and commercial litigation. In 2000, things changed for Andy. At that time, Andy was instrumental in developing the firm’s Mass Torts Section. He now manages the section, which has been recognized as a national leader in pharmaceutical litigation.

The Mass Torts Section’s first foray into national litigation were cases in Mississippi that involved the diet drug Fen-Phen. The team of lawyers that would become the Mass Torts Section obtained sizable compensation for the victims harmed by the drug.

As lawyers in the Mass Torts Section continued winning large verdicts and settlements, it heightened the firm’s national profile and expanded the firm’s reach. Andy and his law partners in the Mass Torts Section have successfully resolved claims for thousands of clients over defective drugs and medical devices, including Vioxx, Bextra/Celebrex, Baycol, Rezulin, Hormone Replacement Therapy, Actos, hip and knee implants, heart devices, transvaginal mesh and most recently Xarelto.

As a national leader for the Plaintiff’s Trial Bar, Andy served as co-lead counsel of the Plaintiff’s Steering Committee for the federal Vioxx multidistrict litigation, and he served as lead counsel or co-lead counsel in five Vioxx trials, including one that resulted in a $51 million verdict against Merck. Andy also served as co-lead counsel for the Plaintiffs Steering Committee in the multidistrict litigation involving the blood thinner medication Xarelto. Xarelto has been linked to serious side effects, including internal bleeding, gastrointestinal bleeding, brain bleed and death.

Bringing relief to people who have been injured while holding big corporations accountable is what Andy says he enjoys most about practicing law. He says his practice adheres to Jesus’ directive, “Whatever you did for one of the least of these… you did for me.”  Andy adds:

To be able to give a voice and to provide help to hurting individuals against the most powerful and influential companies in the world is incredibly rewarding. And, striving to do so in a way that honors the Lord gives me a true sense of purpose and meaning in my work.

With his experience in handling some of the most compelling complex litigation cases in the country, Andy is a regular speaker at national, regional, and state seminars on complex mass tort litigation. He is a resource for other lawyers who share his passion for taking on powerful corporate giants and striving to achieve justice for their clients.  It is this mindset that attracted Andy to the profession. His mother, an American History teacher, shared stories about those who founded the country, many of whom were lawyers. Andy admired the influential role of lawyers in the founding and shaping of our great nation. He was also intrigued by the process of building and arguing a case. Andy says:

As a teenager, I was given some books about a famous lawyer. I was fascinated by the stories of investigating cases, putting the pieces together, and the courtroom battles.  I knew then I wanted to be a lawyer.

Andy also brings his leadership skills to several professional organizations. He serves on the Board of Emory University’s Institute for Complex Litigation. Andy is a member of the American Association for Justice and the Montgomery Trial Lawyers Associations. He has served as President of the Alabama Young Lawyers and on numerous task forces and committees of the Alabama State Bar. Andy has served on the Committee for Character and Fitness, which assesses applicants’ attributes for admission to the Bar. He also served as a member of the Alabama Trial Lawyers Association Board of Governors, now called the Alabama Association for Justice. Andy also is an active member of the Trial Lawyers for Public Justice. Additionally, he is a member of Samford University’s Board of Trustees.

The award-winning lawyer has been selected to Alabama Super Lawyers annually since 2009, Best Lawyers in America annually since 2007 and has been named to the LawDragon 500 Leading Plaintiff Consumer Lawyers, which is the 500 best attorneys across the nation in this category. Andy was also named the Best Lawyers 2020 Mass Tort Litigation/Class Actions – Plaintiffs “Lawyer of the Year” in Montgomery. In 2010, Andy’s law partners recognized his consistent excellence on behalf of his clients and the firm and named him one of Beasley Allen’s Litigators of the decade. He was also the recipient of the firm’s 2017 Chad Stewart Award, which recognizes lawyers who best demonstrate service to God, family and the practice of law in the service of living out the firm’s motto – “helping those who need it most.” And it is this guiding principle that Andy believes sets Beasley Allen apart as a law firm, stating:

Beasley Allen is a firm committed to doing the right thing for the right reasons. We have a clear objective of helping those who need it most in the civil justice arena, and we are steadfast in that pursuit.

This guiding principle not only applies to Andy’s law practice but in every aspect of his life. Andy is active in the community. He and his family are members of First Baptist Church of Montgomery, where he has served as chairman of the Deacon Board and chairman of the Prayer Ministry. Currently, he teaches an adult Bible study class, and he is serving as the chairman of the Church Leadership Council. Andy has also incorporated his faith with his professional life by starting and leading a weekly Bible study and devotional time at the firm. Since its inception in 1997, this weekly devotion has grown from a small gathering of co-workers to a large group of employees, clients and friends.

In 2010, Andy and his wife Tanya partnered with First Baptist Church to start Children’s Hope, a ministry in Jacmel, Haiti. The Lord has worked through Andy’s leadership, a wonderful team of staff, volunteers and supporters to provide a safe and loving home for more than 50 children, a quality education for hundreds of children, and much-needed medical care for thousands in the Jacmel area.

We are truly blessed to have Andy at Beasley Allen.

Christine Colvett

Christine Colvett, a Medical Claims Analyst in the firm’s Mass Torts Section, has been with Beasley Allen for two years.  Her responsibilities include reviewing a new client’s medical records to help determine claim eligibility, status and certificate of Insurance.

Christine lives with Lex, her seventeen-year-old daughter, and their three-year-old dog, Goobie.  In her spare time, Christine says she enjoys traveling with Lex and Goobie, hiking, reading, playing video games, drawing, and binge-watching shows on streaming apps.  She also has a passion for photography and says she is teaching herself to play the guitar.  Christine also volunteers her time as a member of the Junior League.

When asked what her favorite part of working at Beasley Allen is, Christine states: “It’s this environment at the firm which puts family as a priority and also the collegiality.” She is also enjoying being able to work from home during this time.

Christine is a dedicated, hard-working employee, and we are fortunate to have her with us.

Amani Graves

Amani Graves, a relatively new employee at Beasley Allen, is a Staff Assistant in our Mass Torts Section. She has been with the firm for a year.  Her duties consist of case management, assisting with case evaluation, and making client calls. Amani assists paralegals and lawyers in the Section as needed on various projects.

Amani is the youngest of three children. She has two older brothers, Keonte and Jatori. She has two nephews, Carson and Parker (described by her as being “very handsome”), with another niece or nephew on the way. Amani says she really hopes this will be another girl in the family.  In her spare time, Amani enjoys spending time with her family, cooking and watching all Auburn sports.

When asked what her favorite part of working at Beasley Allen is, Amani states:

From day one, my coworkers and higher-ups were available to help me in any way possible. Everyone is so friendly. Having a healthy working environment was so important to me!

Amani is a good employee who is working hard in her job. She is dedicated to the welfare of the clients with whom she works. We are fortunate to have Amani with us.

Dristin Johnson

Dristin Johnson, a Paralegal in our Mass Torts Section, has been at the firm since July 2018. She currently helps with cases in our Talcum Powder Litigation.  Dristin also helps gather information from our clients, assisting in the drafting and filing of documents with the Courts. She also communicates with legal support services for opening estates when needed.  She also maintains our “Plaintiff Facts Sheets” for each Talc case.

Dristin and her husband Chase have been married for eight years.  Together, they have three children, Rowen (14), Tyden (7) and Livia (9 months), who she refers to as her “pandemic baby.”  They also have three dogs, Thor, Roxy and Trooper.  In her spare time, Dristin enjoys watching her children in their extracurricular activities.  Rowen plays baseball and basketball and Tyden wrestles and plays baseball.  Dristin also loves Alabama football and can be found shouting “Roll Tide” during football season. When asked what her favorite thing about working at Beasley Allen is, Dristin states,

The people and the friends I have made in such a short amount of time. I love working for a firm that not only helps our clients but helps out in the community as well.

Dristin is a hard-worker who is dedicated to helping clients that she works for to receive justice. We are fortunate to have her at Beasley Allen.

SPECIAL RECOGNITIONS

Gibson Vance Is President-Elect Of Alabama State Bar

Gibson Vance is currently serving as Vice President of the Alabama State Bar and is the 2021–2022 President-Elect, a position that will begin in July. For the last 20 years, Gibson has been a member of Beasley Allen’s Consumer Fraud & Commercial Litigation Section and has handled cases throughout Alabama and Georgia. He was elected to be the bar association president without opposition.

Gibson was born in Troy, Alabama, and raised by his mother, who was a schoolteacher. He attended Troy State University on a Pell grant, student loans and work-study. Gibson attended Jones School of Law at night and worked for a law firm full time as a law clerk during the day. While attending Jones, he was elected Student Bar President.

Gibson began his law practice during law school when he obtained his “third-year practice card,” and during that year, he assisted in trying several jury trials. For his entire 28-year career, he has focused his practice on representing individuals who have been injured or mistreated.  Gibson began his career in a two-person law firm handling all types of cases, including criminal, civil, probate and domestic cases.

Gibson has been active in bar activities at the local, state, and national levels. He has served as President of the Montgomery County Bar Young Lawyers Division, the Montgomery County Bar Association, the Alabama Civil Justice Foundation, the Alabama Association for Justice, the Southern Trial Lawyers Association, and the American Association for Justice.

Gibson has served in many capacities at the Alabama State Bar. In addition to his current position as Vice President, Gibson has been a Bar Commissioner for several years and chaired and has been a member of numerous committees. He has been selected as a member of the American Board of Trial Advocates, is a Fellow of the Alabama Law Foundation, and has been recognized by Best Lawyers in America. Gibson is a talented lawyer who has been a tremendous asset to our firm.

Gibson also has been active in a leadership capacity in other organizations and is currently serving as President Pro Temp of the Troy University Board of Trustees. Gibson is married to Kate Vance, and they have two sons, Carter, who attends Seminary at Southern Theological Seminary and Andrew, a Junior at Troy University.

David Byrne Installed As Federal Bar Association Middle District Of Alabama Chapter President

Beasley Allen lawyer David Byrne is the 2021–2022 President of the Middle District of Alabama Chapter of the Federal Bar Association. David, who is in the firm’s Mass Torts Section, joined the firm in 2001. He handles complex environmental cases in state and federal courts throughout the United States. David’s practice is now focused on claims against pharmaceutical and medical device companies.

David said that it has been an honor to serve on the Chapter’s executive board. He looks forward to continuing to further the Chapter’s mission, which is to advance collegiality among judges and attorneys in the Middle District and to promote the welfare, interests, education, and professional development of all attorneys who practice in the Middle District.

The Federal Bar Association, founded in 1920, has nearly 100 local chapters across Puerto Rico and the U.S. Virgin Islands. Like the local Chapter, the Federal Bar Association is dedicated to advancing the science of jurisprudence and promoting the welfare, interests, education, and professional development of all attorneys involved in federal law.

Sources: Federal Bar Association

FAVORITE BIBLE VERSES

Tabitha McGuire, a paralegal in our Mass Torts Section, furnished several scriptures for this issue. She says: “in this time of Covid-19 with all of the uncertainties it causes, we must overcome and stay away from “fear, anxiety, worry and stress.” What is your focus?” Tabitha says:

For me, it is my husband, myself and my youngest daughter who recently made a move from Alabama to Ohio to be with our family in Ohio after my husband’s retirement from the USAF and after my two daughters graduated high school. This move was something that I have wanted and prayed for, but the timing was never right. Then all the pieces fell into place, leaving jobs, close friends, best friends, my mom and stepdad was tough for us all.

Now, my daughter Ceara is facing her first deployment in the USAF to Kuwait this year, and my daughter Kaylee is facing her basic training for the Ohio Air Guard at the same time.

For parents, family and friends of the military, you know how stressful times can be. How anxiety and worry try to take control and, at times, does.  There is so much that I/we can be fearful of or to worry about, but there is so much that I/we can be thankful for. My goal is to stay focused and reminded that God is in control.  Is it yours?

So do not fear, for I am with you; do not be dismayed, for I am your God.  I will strengthen you and help you; I will uphold you with my righteous right handIsaiah 41:10

Have I not commanded you? Be strong and courageous. Do not be terrified; do not be discouraged, for the Lord your God will be with you wherever you go. Joshua 1:9

And I am convinced that nothing can ever separate us from God’s love. Neither death nor life, neither angels nor demons, neither our fears for today nor our worries about tomorrow—not even the powers of hell can separate us from God’s love. Romans 8:38-39

Kelli Flanagan, a staff assistant in our Toxic Torts Section, sent two of her favorite Bible verses for this month. She says:

 When I think of my daughters and the strong young women I am raising (sometimes, a little too strong for this momma), I often think of this verse.

She is clothed in strength and dignity, and she laughs without fear of the future. Proverbs 31:25

Kelli says another all-time favorite is John 3:16. She says, “knowing how God sacrificed his son Jesus for our sins, how can we not make sacrifices for our children.”

For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. John 3:16

Rhon Jones, who heads up our firm’s Toxic Torts Section, furnished verses for this Report. He had this to say:

Romans 8:28 is what I would call my life verse, “And we know that for those who love God all things work together for good, for those who are called according to his purpose.”  This gives me peace that ALL THINGS, not just those that I like or welcome on that particular day, do actually work for good, as I am thankful to be called according to his purpose. Certain things we encounter cause us pain, anxiety and stress.  Focusing on this verse helps me to know that God intends them for good and that I don’t know everything I think I do.

That leads to my next life verse.

 “For my thoughts are not your thoughts, neither are your ways my ways, declares the Lord.   For as the heavens are higher than the earth, so my ways are higher than your ways and my thoughts than your thoughts.” Isaiah 55:8-9

Sometimes when I am at the lake or where I grew up (miles from the nearest town), I am struck at the beauty of the stars in the night sky.   The heavens are indeed higher than the earth, and to even start to comprehend the difference is something my feeble mind has trouble with. Can you even begin to imagine the difference between the Creator of the Universe and my frail earthly body? I need to be on my knees, acknowledging that vast difference and thanking God for salvation.

Speaking of my frailty leads to my third life verse.    Matthew 6:25-34 is somewhere I turn often as I suffer mightily from the sin of worry.

Therefore I tell you, do not worry about your life, what you will eat or drink; or about your body, what you will wear. Is not life more than food, and the body more than clothes? Look at the birds of the air; they do not sow or reap or store away in barns, and yet your heavenly Father feeds them. Are you not much more valuable than they? Can any one of you by worrying add a single hour to your life?

And why do you worry about clothes? See how the flowers of the field grow. They do not labor or spin.  Yet I tell you that not even Solomon in all his splendor was dressed like one of these.  If that is how God clothes the grass of the field, which is here today and tomorrow is thrown into the fire, will he not much more clothe you—you of little faith?  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.

These verses remind me that my propensity to worry is indeed a sin and that only by seeking the Lord do I have any hope to battle it. The harsh reality is we all sin; we have all fallen short, we all have troubles and struggles. You don’t have to bear that burden alone. Do not let that sin and those troubles drag you where Satan wants you to be. Share your troubles with someone you trust, a godly person, and Jesus will free you of that bondage!

CLOSING OBSERVATIONS

Firm Selected As Legal Services Alabama 2021 Pro Bono Fairness Award Winner

Beasley Allen is the 2021 Pro Bono Fairness Award winner, an award sponsored by Legal Services Alabama (LSA). The award recognizes individuals or law firms in Alabama that demonstrated a consistent commitment to pro bono work and access to justice. The Fairness Award made its debut last year. The inaugural honoree was Mary Margaret Bailey of Mobile, who is current President of the Alabama Law Foundation and previously President of the Mobile Bar Foundation.

LSA serves low-income people by providing civil legal aid and promoting collaboration to find solutions to poverty-related problems. In 2004, LSA formed when three legal services organizations in Alabama – the Montgomery-based Legal Services Corporation of Alabama, the Metro Birmingham Legal Services, and the Huntsville-based Legal Services of North-Central Alabama – merged. Building on these three organizations’ incredible advocacy, LSA continues this legacy by providing high-quality advocacy to over 10,000 low-income Alabamians.

It is an honor for LSA to recognize Beasley Allen’s dedication to ensuring that Alabama’s underserved and disenfranchised populations can access the civil justice system. We are thankful for LSA’s support provided to our firm and other lawyers across that state as we all donate time, knowledge and skills.

People familiar with our firm know that our motto is “helping those who need it most,” and it is more than mere words for lawyers and staff alike. It is a passion that drives us to do what we do for our clients. That commitment includes providing pro bono legal services. As the firm has grown, encompassing multiple office locations and many complex cases nationwide, it is essential to have a central repository of its pro bono work.

Beasley Allen’s firm leadership created a Pro Bono Coordinator position in 2020 and selected Beasley Allen lawyer, Leslie Pescia, as the first Coordinator. Leslie manages the firm’s pro bono activities and serves as the point person for the firm’s lawyers handling pro bono cases across each of the firm’s practice sections and all office locations. Our lawyers donate hundreds of pro bono hours each year; through handling cases and projects organized by various Volunteer Lawyer Programs.

The Fairness Award is one of three awards LSA will present during its 2021 Justice, Fairness and Hope Awards reception that will be held virtually on May 5. The LSA will also present retired Judge John H. England Jr. (Tuscaloosa County Circuit Court) the Tommy Wells Justice Award. Stacey Abrams will receive the Congressman John Lewis Hope Award.

As the COVID-19 pandemic swept across the country in 2020, legal issues surrounding the virus added to and exacerbated existing social justice issues. The Legal Services Corporation, a national nonprofit that is a parent organization of LSA, received $50 million through the 2020 CARES Act stimulus package Congress passed in response to COVID-19. LSA received a portion of the CARES Act money, which it will use to fund the Fellowship’s first year. Currently, LSA supports six fellows and funds raised during the Justice, Fairness & Hope Awards virtual reception will help maintain funding for the Fellows’ program.

Sources: Legal Services Alabama and Legal Services Corporation

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.

2 Chron 7:14

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

Get in good trouble, necessary trouble, and help redeem the soul of America.

Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.

Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America

PARTING WORDS

It’s Time For More Than Thoughts And Prayers

The deadly shooting on March 22 in Boulder, Colorado, where 10 people were killed, including a police officer, was the second mass shooting in the United States in less than a week. On the previous Tuesday, a gunman shot and killed eight people — six of them women of Asian descent — at three spas in the Atlanta-area of Georgia.

There were many expressions by well-meaning people, including political leaders, of thoughts and prayers for the surviving family members and friends of the victims. There were also calls for badly needed action by the Federal Government on gun safety reform. Unfortunately, there were also NRA backers like Sen. Ted Cruz, who took advantage of the tragic events for personal political gain and made some rather bizarre statements that were hurtful to the families of the victims. Cruz should be ashamed, but he has exhibited no sense of shame quite often.

While we must all pray for the victims and our country, it’s past time for nothing more than “thoughts and prayers” by persons in leadership roles who can do something about a growing national problem that has cost a tremendous number of lives lost. There will be more tragic deaths unless strong, affirmative action is taken in Congress and state legislative bodies.

There have been dozens of mass shootings in the United States in just the past five years, according to the Violence Project, which maintains a database of attacks in which at least four people were killed. In 2020, there were more than 600 shootings in which four or more people were shot by one person compared with 417 in 2019.

We immediately react to each mass shooting, but after a few weeks, we seem to forget and move on with our lives. But then another mass-shooting happens. Each new attack is a reminder of all of the others that came before it. The United States has been unable to curb the epidemic of gun violence that far outpaces other countries. In addition to the mass shootings in Boulder and the Atlanta area in just a week, take a look at the following list of mass shootings:

  • Aug. 4, 2019: An entertainment district in Dayton, Ohio
    Armed with an AR-15-style rifle and body armor, a gunman killed nine people and wounded 27 others in 32 seconds in a bustling entertainment district before he was fatally shot by a police officer.
  • Aug. 3, 2019: A Walmart in El Paso, Texas
    Just 13 hours before the Dayton attack, a gunman prowled the aisles of a Walmart in El Paso, a majority-Hispanic border city, killing 23 people and wounding about two dozen others.
  • Oct. 27, 2018: A synagogue in Pittsburgh.
    In one of the deadliest attacks against the Jewish community in the United States, a man shouting anti-Semitic slurs opened fire inside a Pittsburgh synagogue, killing 11 congregants and wounding six others. The gunman shot indiscriminately at worshipers for several minutes.
  • Feb 14, 2018: A high school in Parkland, Fla.
    A 19-year-old man barged into his former high school about an hour northwest of Miami and opened fire on students and teachers, killing 17 people. The shooting prompted a wave of nationwide, student-led protests calling for tighter gun laws.
  • Nov. 5, 2017: A church in Sutherland Springs, Texas
    A gunman with a ballistic vest strapped to his chest and a military-style assault rifle in his hands stormed into a Sunday church service at a small Baptist church in rural South Texas and sprayed bullets into its pews. He killed 26 people, including nine members of a single-family, and left 20 people wounded, many of them severely.
  • Oct. 1, 2017: A concert in Las Vegas
    In one of the deadliest mass shootings in American history, a gunman located on the 32nd floor of the Mandalay Bay Resort and Casino smashed the windows of his suite with a hammer. He shot at a crowd of 22,000 people at an outdoor country music festival. Fifty-eight people were killed, and 887 sustained documented injuries, either from gunfire or while running to safety.
  • June 12, 2016: The Pulse nightclub in Orlando, Fla.
    A gunman who had proclaimed allegiance to the Islamic State terrorist group attacked a crowded gay nightclub, Pulse, in Orlando, Fla., killing 50 people and wounding 53 others. After a three-hour standoff following the initial assault, law enforcement officials raided the club and fatally shot the gunman.

Sadly, this list is far from complete. There were many mass killings prior to 2016.  More than 40,000 people were killed in 2020 alone by gun violence, which set a one-year record. Hopefully, that record won’t be broken this year.

One would think surely our political leaders responded long ago and passed needed gun safety legislation, but virtually nothing has been done, especially in Congress. The time has finally come when thoughts and prayers are not enough. President Joe Biden and Congress must pass reasonable gun safety legislation quickly. In addition to commence background checks, a ban on “assault rifles” must be included in the legislation. There is no justification for any individual being able to purchase and possess an assault rifle, a weapon designed to be used by the military as a weapon of war. Anybody who thinks an assault rifle is a “hunting rifle” has never fired one and definitely is not a real hunter. These weapons are not for hunting or target practice. They are meant to be used to kill people and do so in mass.

My prayer is that our political leaders on all sides will do the right thing and join with President Biden in this effort.

About the Report

Consumer Protection Lawyer Jere Beasley

On January 7, 1979, Jere L. Beasley established a one-lawyer firm in Montgomery, Alabama, which has grown into the firm now known as Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. During his tenure he also briefly served as Governor, while Gov. George Wallace recovered from an assassination attempt.

Since returning to his law career, Jere has tried hundreds of cases. His numerous courtroom victories include landmark cases that have made a positive impact on our society. His areas of practice include litigation in products liability, insurance fraud, business, nursing home and personal injury.

It has been 40 years since he began the firm with the intent of “helping those who need it most.” Today, Beasley Allen has offices in Atlanta, Montgomery, and Mobile, and employs more than 275 people, including more than 80 attorneys. Beasley Allen is one of the country’s leading firms involved in civil litigation on behalf of claimants, having represented hundreds of thousands of people.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.