Beasley Allen’s Navan Ward Installed As The American Association For Justice 75th President
Beasley Allen lawyer Navan Ward was installed on July 14 as the 75th President of the American Association for Justice during the group’s annual meeting. Navan is the second minority to hold the position, with the first being more than two decades ago. It is this area of representation that Navan and other AAJ leaders are working to improve on in the future and is central to Navan’s goals for his administration.
Navan explained that he is thankful for his experience at Beasley Allen, where he said, “our leadership fosters a culture of inclusion and values the unique backgrounds, experiences and personal achievements of minority lawyers.” He also noted that the firm has been recognized for its focus on diversity among its lawyers, including by Law360 as one of the 10 Best Law Firms for Black Attorneys in the U.S. and previously recognized as the top law firm with African American partners. Navan said that this is an approach we want to nurture in firms nationwide.
The AAJ leadership understands that leaders from diverse backgrounds can strengthen and empower each other and those they lead. Navan has worked with AAJ leadership to recruit, train, and encourage members from different backgrounds (including race, gender, age, geography, and level of career) to become active leaders. Navan had this to say:
On many different levels and across various landscapes, our country is rebuilding, so it is the perfect time to do the same within the American Association for Justice. The AAJ is an organization that advocates for access to justice and works to preserve the rights given by the 7th Amendment of the U.S. Constitution. It is important that the organization genuinely reflects the diversity that makes it great. I look forward to implementing strategies that will build on the work of the past presidents and strengthen our leadership moving forward.
Navan launched what has become the cornerstone of these efforts in 2012 called the American Association for Justice Diversity and Inclusion Leadership Academy. The Leadership Academy provides leadership and benefits from continued training and leadership development. It is one way the organization guarantees the retention of minority leaders who can ensure underrepresented member groups have a voice in the future of the AAJ.
In 2017, Navan received the AAJ Minority Caucus Stalwart Award for his dedicated years of service to the Minority Caucus and the organization overall. It also awarded him the AAJ Distinguished Service Award in 2012 and 2015 and its Wiedemann & Wysocki Award in 2014. Navan has been regularly selected to the Best Lawyers in America list, the Super Lawyers list, and named to the LawDragon 500 Leading Plaintiff Consumer Lawyers, the 500 best attorneys across the nation in this category.
Navan previously served in numerous AAJ leadership positions, including a past chairman of the Minority Caucus, past chairman of the Diversity Committee, and a member of the Board of Governors. He is a former Alabama State Bar delegate for the American Bar Association and past President of the Alabama Lawyers Association.
Navan is a tremendously talented lawyer. For his efforts in representing clients, Beasley Allen awarded Navan as the firm’s Litigator of the Year in 2013 and Mass Torts Litigator of the Year in 2011 and 2014. He will be an outstanding president of an Association that works tirelessly for the American people. All of us at Beasley Allen support Navan and the Association fully and look forward to a successful year.
THE TALC LITIGATION
J&J Attempts To Use Bankruptcy As A Shield And To Further Hurt Their Victims
It was revealed by Reuters News and the Wall Street Journal last month that Johnson & Johnson was planning to consider siloing its talc liabilities with a subsidiary and then moving that company into bankruptcy. Such a shameful plan should be barred by law.
Johnson & Johnson’s bankruptcy plans to contemplate a corporate division that would serve to protect the company’s assets at the expense of personal injury claimants who have suffered greatly as a result of using the company’s asbestos-tainted talc products that include its baby powder. Leigh O’Dell of Beasley Allen, co-lead counsel of the plaintiff’s steering committee in a New Jersey multidistrict litigation over talc claims, made this observation:
This is about as shameful as it gets. These women and their families have already suffered so much. If this report is true, we believe it’s time for Congress and the Securities and Exchange Commission to investigate and outlaw the unfortunately common practice of cash-rich companies playing corporate shell games and weaponizing federal bankruptcy laws to avoid paying the victims they’ve hurt and misled.
Reports from Reuters and The Wall Street Journal say Johnson & Johnson told plaintiffs attorneys engaged in settlement discussions that the company could pursue the bankruptcy plan, through which it would assign its talc liabilities to a subsidiary and then have it file for bankruptcy. At press time, it appeared that Johnson & Johnson might be having second thoughts about this scheme to avoid facing its legal obligations. The company is now saying that it has made no decision about a potential bankruptcy strategy. The company told Law360:
Johnson & Johnson Consumer Inc. has not decided on any particular course of action in this litigation other than to continue to defend the safety of talc and litigate these cases in the tort system, as the pending trials demonstrate.
The divisive merger strategy, if allowed, would let a company shield its assets while putting up a ring-fence around its legal liabilities and moral responsibilities. If Johnson & Johnson is allowed to use what is referred to as the “Texas Two-Step” in the Talc cases, it would be a massive injustice for thousands of victims.
Many bankruptcy experts say that this section was never intended to be used in this manner which is apparently being complemented by Johnson & Johnson. In any event, the reported bankruptcy plans should not be permitted.
Johnson & Johnson is attempting to commit fraud on thousands of victims, the judicial system, and the bankruptcy court. This company has literally killed thousands of innocent women who believed and trusted them. Johnson & Johnson can’t be allowed to compound their conduct that borders on being criminal.
Tens of thousands of injury and death claims have been leveled against Johnson & Johnson and its long-time supplier Imerys Talc America in recent years. Those claims arise from diagnoses of mesothelioma and ovarian cancer caused by long-term exposure to talc products containing asbestos. Beasley Allen currently represents almost 12,000 clients in this litigation.
Johnson & Johnson has been subject to several large judgments related to talc injuries — including a $4.69 billion verdict against the company in Missouri, which was later reduced on appeal to about $2.1 billion. That case involved 22 claimants.
There has been huge public outrage over J&J’s scheme to avoid facing its thousands of victims and having its shameful internal operations, which has resulted in the deaths of thousands of innocent women exposed to judges and juries. Such a travesty of justice can’t be allowed.
Beasley Allen Lawyers In Trial In Illinois
While most of the media attention during the last several days has been on the shameful bankruptcy tactics by Johnson & Johnson mentioned above, lots more is going on in the Talc Litigation. During all of the outrage and turmoil over the bankruptcy news, Beasley Allen’s Talc Litigation Team continues work in both the MDL and state courts. A trial is currently underway in Belleville, Illinois (across the river from St. Louis). That trial should have been completed by the time this issue is received. Another trial was to start up on July 29th in Philadelphia. These trials will be followed by an additional multi-plaintiff trial involving three plaintiffs that is set to begin the first week of September in St. Louis.
The MDL team has also continued to move forward with some additional liability, advertising, and marketing depositions, including the deposition of Johnson & Johnson’s former general counsel, who headed up talc and its litigation issues for decades. These will all be used in the MDL bellwether cases, which are moving forward. Bellwether cases are a mix of plaintiff picks, defense picks and random selections from the court. Additional liability depositions were being taken in July and during this month.
The Cadagin trial, taking place in Illinois and being handled by the Beasley Allen team, was nearing completion as this issue was sent to the printer. The team had completed the plaintiff’s case in chief, and the defense started its portion of the case on July 23. A 5-6 day defense was anticipated. We are hopeful for a plaintiff’s verdict in the case.
The Kleiner trial is still set to start July 29 In Philadelphia, with the Beasley Allen Litigation team continuing to handle pretrial hearings and trial workup. The team has several additional trial-ready dates in Philadelphia, with the Wilson case to be set within 90 days of May 5 and additional settings possible throughout the year.
The multi-plaintiff trial in St. Louis, Missouri, involving three plaintiffs, remains set in to begin the first week of September, with several additional potential trial dates in St. Louis throughout the rest of the year and into 2022.
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 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 Beasley Allen lawyers are now moving forward with the Carl and Balderrama trials in Atlantic City, with potential trial dates in Early 2022. The team is also continuing to explore South Florida as a potential venue for additional trials in 2021 and 2022. It has been working on discovery efforts against various retailers of talcum powder throughout the states.
Beasley Allen Talc Litigation Team
The Talc litigation, as indicated above, continues around the country at a record pace. However, as reported, there have been some significant happenings recently. That includes the report concerning Johnson & Johnson’s relating to bankruptcy. The lawyers on our Talc Litigation Team, however, are continuing to prepare for the upcoming trials.
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, lawyers in our Toxic Torts Section, are on the team, but they 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 and claims of asbestos-related talc products linked to mesothelioma.
Members of the Talc Litigation Team include Leigh O’Dell ( [email protected]), Ted Meadows ( [email protected]), 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]).
Tentative Opioid Settlement Announced
In the midst of the first jury trial against opioid manufacturers and distributors that was ongoing last month in New York, distributors AmerisourceBergen, Cardinal Health, McKesson Corporation, and manufacturer Johnson & Johnson revealed that they have come to terms with six attorneys general on a purportedly global settlement offer of $26 billion. However, that figure could be called illusory, as the deal is structured to be paid out over 18 years, meaning the present value of the offer is far less than $26 billion.
A large portion of the agreement is also contingent on the ability of each participating state to get its local governments to sign on and release the defendants from liability. Failure to secure a critical mass of local governments to sign on would severely reduce payout under the settlement. Many believe it will take a huge number of states to make this version of a settlement work.
This isn’t the first time a global settlement has been announced. In October 2019, four states’ attorneys general announced a global settlement deal with AmerisourceBergen, Cardinal Health, McKesson Corporation, Johnson & Johnson, and TEVA. That deal, which was similarly structured, ultimately fell through.
The bottom line is that this proposed global opioid settlement is far from completion. States will have 30 days to decide whether to participate. Almost every state must sign on for the agreement to go through. If enough states agree, cities and counties will then get 120 days to decide whether to participate. The distributors get an opportunity to walk away from the agreement if they don’t have a “critical mass of states,” which is at their discretion. The states would have to be for the settlement before local governments would have a say on the settlement.
The distributors shipped millions of addictive opioid pills across the nation for many years despite obvious red flags indicating that the massive purchases far outstripped legitimate medical needs. By contrast, J&J and other drugmakers are mainly accused of fueling an opioid addiction epidemic through the misleading marketing of addiction risks.
Since our firm represents the states of Alabama and Georgia, and numerous other governmental entities, we are not in a position to comment at this juncture on whether our clients will be agreeable to the proposed settlement.
Drug Distributors Agree To $1.1 Billion Opioid Settlement And Exit New York Trial
While not a part of the nationwide settlement referred to above, the nation’s three largest drug distributors on July 20 agreed to a $1.1 billion opioid settlement with the state of New York. They exited a closely watched ongoing jury trial. New York Attorney General Letitia James announced the settlement just minutes before lawyers told a Suffolk County Supreme Court judge that Cardinal Health Inc., AmerisourceBergen Corp., McKesson Corp. and their affiliates would be severed from the trial that started last month on Long Island. The Attorney General said in a statement on the morning of July 20:
The distributors sold prescription opioids for many years without regard to the national crisis they were helping to fuel. But today, we’re holding them accountable, delivering more than $1 billion [for] New York communities ravaged by opioids for treatment, recovery and prevention efforts.
The settlement will be worth $1.17 billion, of which more than $1 billion will go toward attempts to ease the opioid crisis with addiction treatment and prevention programs, according to attorney general’s office. Apparently, this settlement is independent of and independent of the global settlement being proposed.
The Attorney General’s announcement also confirmed Law360’s report that the settlement will require distributors to share sales data with a clearinghouse to ensure that opioid purchasers aren’t improperly amassing huge amounts of pills in excess of legitimate medical need.
According to Attorney General James, the “groundbreaking clearinghouse” will be operated with independent oversight. It will give each distributor “the ability to account for their own opioid shipments, while simultaneously accounting for the shipments of the other distributors. Additionally, the clearinghouse will use the distributors’ collective data to establish pharmacy-specific opioid shipment limits that each distributor must follow,” the announcement said.
However, it should be noted that the settlement also covers claims brought by New York counties that are co-plaintiffs in the ongoing trial with New York state. Justice Jerry Garguilo, who is presiding over the trial, praised lawyers during court proceedings. “I appreciate all of your work,” Justice Garguilo said. “In the court’s eyes, it was nothing short of remarkable.”
The New York trial is not over. Remember also that Johnson & Johnson settled on the eve of trial for $230 million. So Johnson & Johnson was never in the trial. This most recent settlement leaves the trial with four corporate families of defendants: drugmakers Teva Pharmaceuticals, Allergan PLC and Endo Pharmaceuticals. There is also a smaller drug distributor, Anda Inc., that only the counties are suing. Until recently, there were a dozen groups of defendants, but various drug companies — including J&J and CVS Health Corp. — started agreeing to settlements shortly before the New York trial commenced in late June.
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, County of Suffolk.
The Beasley Allen Opioid Litigation Team
Beasley Allen’s Opioid Litigation Team continues to work on existing cases, and they are still taking in new clients. Activity in opioid litigation will depend largely on what happens relating to the announced global settlement and further negotiating efforts. We will write more on the settlement picture next month.
As stated, Beasley Allen lawyers represent the State of Alabama, the State of Georgia, and numerous local governments and other entities and handle individual claims on behalf of victims in this litigation. Our lawyers are examining the proposed national settlement carefully. We will make recommendations to our clients but not discuss anything along those lines publicly. We will determine if the global settlement would be good for our clients.
Our team includes Rhon Jones ( [email protected]), Parker Miller ( [email protected]), Ken Wilson ( [email protected]), David Diab ( [email protected]), Rick Stratton ( [email protected]), Will Sutton ( [email protected]), Jeff Price ( [email protected]), Gavin King ( [email protected]), Tucker Osborne ( [email protected]) and Matt Griffith ( [email protected]).
If you need more information on any phase of the Opioid Litigation, contact one of the lawyers on the team listed above at 800-898-2034 or by email.
THE JUUL LITIGATION
JUUL Settles With North Carolina For $40 Million And Agrees To A Ban On Marketing Its E-Cigarettes To Youth
We mentioned last month that the State of North Carolina had reached a settlement with JUUL Labs in the State’s lawsuit against the vape giant for $40 million. JUUL is also required to restructure its marketing practices designed to lure youth to its e-cigarettes, which has essentially created a youth vaping epidemic. The consent order pursuant to the settlement bars JUUL from using marketing that appeals to people under 21, especially on social media, near schools, or concert venues. JUUL is also banned from making claims that compare the health effects of JUUL e-cigarettes to traditional combustible cigarettes.
The year after the FDA declared teenage use of e-cigarettes as an “epidemic,” North Carolina filed its lawsuit against JUUL in 2019. North Carolina was the first state to file suit against JUUL over its alleged marketing to minors.
The settlement agreement also requires that many of the documents from the North Carolina suit be made public. North Carolina’s Attorney General believes the documents will increase transparency around JUUL’s marketing and will help prevent similar situations in the future. The $40 million settlement will be paid to North Carolina over the next six years and will fund programs to prevent addiction to e-cigarettes and programs aiding in helping people quit the use of e-cigarettes.
Joseph VanZandt, who leads the Beasley Allen JUUL Litigation Team, made this observation concerning the North Carolina settlement:
I commend the incredible efforts of the North Carolina Attorney General’s Office. This settlement is an important landmark, but the broader litigation against JUUL is far from over. Beasley Allen will continue to fight on behalf of our clients and our nation’s youth to hold JUUL accountable for creating a youth vaping epidemic.
Beasley Allen continues litigating JUUL cases on behalf of other government entities, school districts, and individuals in federal and state courts.
The JUUL Litigation Team
Beasley Allen lawyers, led by Joseph VanZandt, are heavily involved in the JUUL litigation. They currently represent individuals who are suing JUUL, the top U.S. vape maker, for the negative impact its products have had on their lives. Beasley Allen also represents a number of school systems in the JUUL litigation. 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 JUUL Litigation team at 800-898-2034 or by email. Members are Joseph.VanZan[email protected], [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.
THE SUNSCREEN LITIGATION
Johnson & Johnson Faces Class Action Lawsuit Involving Benzene-Tainted Neutrogena and Aveeno Sunscreen Products
Pharmaceutical product safety lawyers at the Beasley Allen law firm, led by David Byrne, have filed a federal class action lawsuit on behalf of consumers who bought recalled benzene-tainted sunscreen products made by Johnson & Johnson (J&J) subsidiaries Neutrogena and Aveeno.
The lawsuit seeks an injunction and damages on behalf of consumers who purchased a range of Neutrogena and Aveeno sun care products. An analysis by independent lab Valisure found alarming benzene concentrations in at least 78 sun care products made by Neutrogena, CVS Health, Banana Boat and other manufacturers. Andy Birchfield, who heads up the firm’s Mass torts Section, said:
It should not have taken the publication of a third party’s tests to bring this critically important information to the public, and J&J’s response so far is not enough. We will find out how long J&J knew about these concerns and why it took so long to take action.
More than seven weeks after the lab results were published, Johnson & Johnson announced a recall of five spray products. It ordered retailers to stop selling Neutrogena’s sunscreens labeled Beach Defense, Cool Dry Sport, Invisible Daily, Ultra Sheer and Aveeno Protect + Refresh.
The Food and Drug Administration permits traces of benzene on rare occasions in medical products deemed critical, but the chemical is not allowed in sun care products in any amount. The National Institute for Occupational Safety and Health (NIOSH) recommends protective equipment for those expecting to be exposed to benzene at concentrations above 0.1 parts per million for 10 hours or 1 ppm for 15 minutes. Some Neutrogena products contained benzene amounts of more than 6 ppm, according to Valisure.
While Valisure found benzene in both aerosol and lotion products, J&J’s voluntary recall is limited to spray products. A complete list of the risky sunscreens can be found by visiting https://factsaboutsunscreen.com/wp-content/uploads/2021/07/sunscreens-with-benzene.pdf.
Benzene is a common industrial chemical that has long been linked to leukemia, a deadly form of blood cancer. The discovery raises grave concerns because chemicals in sunscreen are known to be absorbed through the skin into the bloodstream – even after only one application. Since children’s skin is more permeable than adults, the threat of absorption of harmful chemicals is even greater for them.
David Byrne, an experienced lawyer in our Mass Torts Section, is the lead lawyer on this case. He said:
When these kinds of safety failures occur, the American public deserves a swift and transparent accounting of what happened and what is being done to ensure it doesn’t happen again. J&J’s response falls far short of that.
In addition to Beasley Allen lawyers, the legal team includes Alex Walsh and Kimberly Channick from Walsh Law PLLC and Seth Meyer, Alex Dravillas and Warren Postman from Keller Lenkner LLC. Andy Birchfield, who heads up our firm’s Mass Torts Section, will also be involved in this important litigation. The lawsuit Johanna Dominguez and Sharron Meijer et al. v. Johnson & Johnson Consumer Inc. is filed in the U.S. District Court for the Northern District of California, No. 3:21-CV-05419.
THE PARAQUAT LITIGATION
The Paraquat MDL Is In Process
The Paraquat Multidistrict Litigation (MDL) has now been formed in the Southern District of Illinois. Chief Judge Nancy J. Rosenstengel, who presides over this MDL, appointed Julia Merritt, a lawyer in our firm’s Toxic Torts Section, to the MDL’s Plaintiffs’ Executive Committee (PEC). The selection process was highly competitive, with over 80 applicants. After a selective interview process with Judge Rosenstengel, Julia was one of 14 lawyers appointed to serve on the PEC. As a member of the PEC, Julia is among the group of lawyers tasked with leading this national litigation to meaningful resolution.
In this litigation, plaintiffs have alleged that paraquat is a defective and unreasonably dangerous herbicide and that exposure to paraquat likely causes neurological damage associated with Parkinson’s Disease.
The Judicial Panel on Multidistrict Litigation reports there are over 170 cases consolidated in the MDL. Julia expects many more claims will be filed. Plaintiffs have sued Syngenta, makers of Gramoxone, and Chevron Corporation, which held the rights to sell paraquat in the 1960s under an agreement with the company that Syngenta eventually purchased.
Julia has shared her knowledge and experience surrounding the Paraquat Litigation during a seminar for fellow lawyers in which she specifically addressed preemption issues related to the Paraquat Litigation. With a parent who has Parkinson’s Disease, Julia has a unique perspective on the effects of this devastating neurological disease.
Before joining Beasley Allen, Julia was lead counsel in plaintiffs’ litigation, including wrongful death and complex products liability cases. Julia also litigated talc injury cases filed under the Asbestos Act throughout Georgia and in the multidistrict litigation.
Paraquat is a restricted-use, total-kill herbicide used on commercial farms that grow crops such as soybean, corn, tobacco, cotton, and citrus and grape orchards. Many farmers sprayed paraquat on their fields, which is linked to an increased risk of Parkinson’s Disease. Defendants knew of this risk and failed to warn its licensed applicators.
We will keep our readers up to date on activity in the MDL. This will be a very active MDL. If you have any questions or need more information about the MDL or any part of this litigation, contact Julia Merritt by phone at 800-898-2034 or by email [email protected]. She will be glad to be of assistance.
Sources: U.S. District Court for the Southern District of Illinois, Judicial Panel on Multidistrict Litigation
The Paraquat Litigation Team
Lawyers in Beasley Allen’s Toxic Torts Section are handling paraquat cases, and a litigation team has been created. The lawyers on the Paraquat Litigation Team are Julia Merritt ( [email protected], who heads up the team, Trisha Green ( [email protected]), and Matt Pettit ( [email protected]). Rhon Jones ( [email protected]), who heads up our Toxic Torts Section, is also working with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or by email for more information on the litigation, including the MDL.
THE ASBESTOS LITIGATION
An Update On The Asbestos Litigation
Our firm is heavily involved in the ongoing litigation involving asbestos. As you may already know, asbestos is a commercial and legal term encompassing multiple types of naturally occurring minerals. The six “types” of asbestos are actinolite, amosite, anthophyllite, chrysotile, crocidolite and tremolite. Chrysotile asbestos was most commonly used in commercial products, accounting for around 90% of said use in the 20th century.
There is a consensus among doctors, scientists and other health professionals that all forms of asbestos are deadly and cause cancer, including mesothelioma. Health and regulatory organizations throughout the world, including the World Health Organization, the International Agency for Research on Cancer, the Occupational Safety and Health Administration, and the National Institute for Occupational Safety & Health, among countless others, agree that asbestos exposure, in any form, can be deadly. This fact is so widely agreed upon that many countries throughout the world have banned asbestos, including chrysotile, entirely.
Despite those facts, American courtrooms remain some of the last places on Earth where there is any question about the deadly nature of chrysotile asbestos, specifically. Charlie Stern, a lawyer in our Toxic Torts Section, has extensive experience in asbestos litigation. Charlie will provide some information below on two areas of interest in this litigation.
Debunking The Chrysotile Defense
In the courtroom, plaintiffs lawyers refer to this refusal to accept decades-old science and consensus as to the “Chrysotile Defense.” Experienced plaintiffs lawyers, who have worked up and litigated asbestos cases, know all about the Chrysotile Defense. Simply put, the Chrysotile Defense argues that while some kinds of asbestos are dangerous and can cause cancer, chrysotile asbestos is essentially harmless.
How is it possible for the asbestos corporations to peddle these lies about their products? The answer lies in understanding the decades of asbestos litigation that have occurred. Since the 1960s, massive companies that utilize or utilized asbestos in their products have had a vested interest in limiting liability. One way to do this has been to fund science and research with the goal of creating doubt about the consensus that asbestos, in any form, is dangerous.
Defense-affiliated and funded researchers have put forth several myths to suggest that chrysotile is harmless. This science has gained a foothold nowhere in the scientific community, but it has in courtrooms across America. Without a seasoned and experienced asbestos lawyer, victims risk losing their legitimate cases to this junk science. It happens routinely. At Beasley Allen, our asbestos lawyers understand the real science, history and medical facts to beat back these spurious arguments and ensure that our clients receive the compensation they deserve. If you have any questions or need more information, contact Charlie Stern at 800-898-2034 or by email at [email protected].
The Importance Of State-Of-The-Art Expert In Asbestos Lawsuits
One of the things that asbestos lawyers often take for granted is how much has been known about asbestos and its hazards and for how long. Because of this, some asbestos lawyers decide not to utilize “state-of-the-art” experts because the lawyer thinks it is not worth the case expense. While it may be possible to get some of this testimony admitted via other experts, having a state-of-the-art expert, whose role is to explain how much has been known about asbestos and for how long, can prove invaluable.
The simple truth is that, by the 1920s, it was known that asbestos causes the deadly scarring of the lining of the lung called asbestosis. By the 1940s and 1950s, it was established and known that asbestos causes lung cancer. By the 1950s and 1960s, it was established and known that asbestos causes mesothelioma. As of 1970, it was so well known that asbestos was deadly that the very first regulations by the newly created Occupational Safety and Health Administration (OHSA) were designed to protect against asbestos exposure.
An expert whose sole role is breaking down the long and sordid history of asbestos defendants trying to cover these facts up via their conspiracy of silence prepares the jury for the specific facts of each case. It can be invaluable when asking the jury to attribute fault to these defendants for something that occurred decades ago. At Beasley Allen, the asbestos attorneys know how to set a case up for success via settlement or trial. By working and collaborating with respected and renowned experts, including state-of-the-art experts, Beasley Allen lawyers do just that. If you have any questions or need more information, contact Charlie Stern at 800-898-2034 or by email at [email protected].
The Asbestos Litigation Team
Asbestos Litigation has intensified nationwide over the past year. Because of its importance, our firm created an Asbestos Litigation Team headed by Charlie Stern. Other team members are Will Sutton, Cindy Lopez and Rhon Jones, who heads up our Toxic Torts Section. Charlie has years of experience in asbestos litigation, and that’s why he was selected to lead the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected].
THE WHISTLEBLOWER LITIGATION
Justices Refuse Opportunity To Clarify Circuit Split On Governmental Authority In FCA Cases
The U.S. Supreme Court (SCOTUS) declined a perfect opportunity to review a decision from the Seventh Circuit Court of Appeals that would have cleared up a problem area in FCA litigation. That was yet another way of assessing the validity of the U.S. Department of Justice’s (DOJ) authority to dismiss and extinguish whistleblower suits under the False Claims Act. SCOTUS denied a petition from a whistleblower asking the high court to review a Seventh Circuit decision that threw out its case alleging a kickback scheme related to a drug treatment for Crohn’s disease.
The Cimznhca case, handled by our firm, centered on allegations that the defendant companies concocted a scheme to give kickbacks to doctors, who would then give out prescriptions for brand name Cimzia over competing Crohn’s disease treatments. The government did not intervene in late 2017. But more than a year later, the DOJ decided to ask the court to dismiss the case.
The high court justices gave no reasoning behind the denial, but for some reason, Justice Amy Coney Barrett did not take part in the consideration. The Seventh Circuit decision at issue came out last year and added to several other court decisions grappling with how courts should consider the federal government’s motion to dismiss an FCA case after it declines to participate in the litigation. After the most interesting 2018 Granston memo — a DOJ directive for government lawyers to reduce the number of FCA cases –the DOJ has sought to dismiss numerous whistleblower cases in addition to simply declining to participate in others. In the case at hand, the government refused to intervene in late 2017, yet more than one year later decided to ask the court to dismiss the litigation.
A majority of courts have been evaluating DOJ’s authority under one of two standards. The first is the D.C. Circuit’s Swift standard, which gives the DOJ a virtually “unfettered right” of dismissal. The second is the Ninth Circuit’s Sequoia Orange standard, which requires that dismissal be related to a valid government purpose. At the beginning of July, the Fifth Circuit became the most recent United States Court of Appeal to analyze the issue, and it ruled in favor of DOJ’s unfettered right of dismissal.
Rather than following either of those standards, the Seventh Circuit veered off course entirely on the Cimznhca case. Our lawyers argued that the Seventh Circuit lacked jurisdiction to review a lower court’s denial of the government’s motion to dismiss the case because it failed to meet the standards for review of an interlocutory appeal. Still, the Seventh Circuit decided to treat the government’s motion as a motion to intervene (despite the government expressly noting numerous times that it was declining to intervene).
In doing so, the Seventh Circuit improperly sidestepped analysis of the standard entirely and wrongfully exercised appellate jurisdiction. By treating the motion to dismiss as a motion to intervene, the Seventh Circuit analyzed the motion under an inapplicable standard. Worse, although the Seventh Circuit dismissed the case, it did so without prejudice to the government, yet with prejudice to the whistleblower.
On behalf of our clients Cimznhca, our lawyers also argued that this outcome dramatically undermines the purpose behind the FCA and deprives whistleblowers of their due process rights.
The decision by SCOTUS to deny the Petition for Certiorari gives room for the troubling consequences of the Seventh Circuit’s decision to grow. It negatively impacts the rights of whistleblowers who step up to the plate and try to right wrongs against the government, using the process expressly supported by the FCA.
Although SCOTUS declined to take up this issue in June, given the rise in the number of courts addressing this issue and the inconsistent rulings concerning DOJ’s authority, we hope that SCOTUS will address this critical issue in the near future so that litigants can have some clarity on their qui tam cases.
With all of the rampant fraud committed by corporate America against the U.S. government, the confusion over FCA litigation should be resolved either by SCOTUS or by Congress.
Some Recent Results In Whistleblower Litigation
There have been a number of settlements and other developments in Whistleblower Litigation recently. We will mention several of the more significant ones below.
Kidneys and Kickbacks: Surgery Centers Pay $3.4 Million For False Claims Act Violations
Surgical Care Affiliates, LLC (SCA) and Orlando Center for Outpatient Surgery, LP (Orlando Center) – two Orlando Florida based surgery centers – have agreed to pay the United States $3.4 million to resolve allegations that each of these companies violated the False Claims Act (FCA) and the federal Anti-Kickback Statute. The lawsuit and settlement involved submitting claims to federal healthcare programs involving extracorporeal shock wave lithotripsy, a procedure used to break up kidney stones.
According to the lawsuit, Dr. Patrick Hunter was a urologist who performed lithotripsy procedures at the Orlando Center, which was affiliated with SCA. From January 2010 through April 2016, the Orlando Center submitted claims for lithotripsy procedures performed on Medicare and TRICARE patients that were medically unnecessary because the procedures were not medically indicated or because the patients did not even have kidney stones.
In addition, the settlement also resolves legal claims that Dr. Hunter allegedly received an illegal kickback in the form of per procedure payments from the Orlando Center – a kickback arrangement approved by SCA in violation of the Anti-Kickback Statute. When the per procedure payment services were billed to and paid by Medicare and TRICARE, they also constituted violations of the FCA.
The lawsuit that ended in settlement was originally filed in the U.S. District Court for the Middle District of Florida by Scott Thompson. The plaintiff sued under the qui tam, or whistleblower, provisions of the False Claims Act.
As all of our readers should know, the FCA allows a private citizen to sue on behalf of the United States for false claims and share in the recovery. The Act also allows the United States to intervene and prosecute the action.
The United States intervened in this matter and participated in the litigation. Mr. Thompson will receive $748,000 of the proceeds from the settlement with SCA and the Orlando Center. Medicare, TRICARE and Medicaid constitute three of the largest federal government health care programs in the U.S. It’s known that fraud against these programs is very costly and significantly harms the American taxpayer.
Source: The National Law Review and DOJ Press Release
Georgia-based Nursing Home Chain Pays $11.2 Million To Resolve False Claims Act Litigation
On May 21, 2021, the U.S. Department of Justice (DOJ) announced that it had reached a settlement with Georgia-based nursing home chain, SavaSeniorCare, LLC to resolve litigation under the False Claims Act (FCA). The Georgia-based chain, which has 160 facilities throughout the United States, agreed to resolve the claims for $11.2 million. In their lawsuit, five whistleblowers accused SavaSeniorCare of pressuring its skilled nursing facilities to bill Medicare for unnecessary rehabilitation therapy services and double-bill both Medicare and Medicaid for the very same patients.
According to the whistleblowers, between 2013 and 2018, the defendant company adopted a systematic policy to pad their billing to Medicare and Medicaid to reach unrealistic financial goals. The DOJ claimed that the “financial targets [of the company] were allegedly set at the highest Medicare reimbursement rate without any relationship to the patients’ clinical needs.” The excess government funds gained by the fraudulent billing were then diverted to corporate profits rather than patient care. According to the complaint, SavaSeniorCare’s facilities were grossly understaffed and generally provided unskilled care to vulnerable residents.
In addition to paying $11.2 million, SavaSeniorCare entered into a five-year Corporate Integrity Agreement with the U.S. Department of Health and Human Services Office of Inspector General. The settlement also requires the company to submit to random reviews of its resident care.
FCA cases against nursing homes are particularly tragic because they involve companies that prey upon the elderly community. Lawyers in our firm are currently handling FCA cases against skilled nursing home facilities. If you have a matter concerning a potential FCA case, contact any lawyers on our Whistleblower/Qui Tam Litigation Team.
St. Jude Medical To Pay $27 Million To Settle Faulty Heart Device Suit
St. Jude Medical Inc. will pay $27 million to settle a False Claims Act suit accusing it of knowingly selling defective heart devices to health care facilities. The settlement was announced on July 8 by the U.S. Department of Justice (DOJ), which opted to intervene in the case.
From November 2014 and October 2016, St. Jude Medical, purchased by Abbott Laboratories in January 2017, sold the allegedly faulty devices to facilities that implanted them into patients insured through federal health care programs, the DOJ said in a statement.
Whistleblower Debbie Burke sued St. Jude in Maryland federal court in November 2016. The suit alleges that certain models of implantable defibrillators — Fortify, Fortify Assura, Quadra and Unify — sold by St. Jude were equipped with batteries that ran out prematurely. It was alleged in the suit that the company never told anyone about the issues with the devices, which are used by patients at risk of heart attacks from an irregular heartbeat.
It’s alleged in the complaint:
- By 2013, St. Jude knew that lithium clusters formed on the batteries of the devices, causing some of the batteries to short and, in turn, suffer a premature power drain.
- In 2014, when St. Jude Medical asked the FDA for permission to fix the draining batteries, it claimed that no serious harm or deaths had been reported as a result of premature battery depletion, or PBD.
- Jude knew of two reports of serious injuries and one death that stemmed from the faulty batteries, but it continued to sell the devices.
- In August 2016, St. Jude contacted the FDA and informed it that the number of PBD events had increased to 729, including two deaths and 29 events associated with loss of pacing.
- On October 10, 2016, St. Jude issued a medical advisory regarding the PBD caused by lithium cluster shorts, which the FDA classified as a Class I recall.
The government is represented by Jane Elizabeth Andersen of the U.S. Attorney’s Office for the District of Maryland. Ms. Burke, the whistleblower, is represented by Nathan M. Peak of Ashcraft & Gerel LLP.
The case is U.S. ex rel. Burke v. St. Jude Medical Inc. (case number 1:16-cv-03611) in the U.S. District Court for the District of Maryland.
Alere Agrees To Pay $38.8 Million Over Blood Monitoring Device
Alere Inc. and Alere San Diego Inc. have agreed to pay $38.75 million to settle allegations that they violated the False Claims Act by billing Medicare for faulty blood-monitoring devices. The U.S. Department of Justice announced the settlement on July 8. The companies, acquired by Abbot in 2017, allegedly sold defective “INRatio” blood coagulation monitoring systems to Medicare beneficiaries from 2008 through 2016.
The government alleged that since March 2008, Alere was aware that its INRatio system was capable of issuing incorrect results for patients due to an algorithm defect. Rather than correcting the alleged defect, Alere opted to close an investigation into the affected algorithm, according to details of the settlement agreement.
The settlement agreement stated:
Alere did not pursue the further software improvement efforts that its software developer warned were ‘sorely needed’ and failed to inform patients, healthcare providers, and insurers of the defect.
Alere then signaled to the U.S. Food and Drug Administration that the investigation of its INRatio system did not uncover any deficiencies, allowing INRatio to remain on the market for years despite Alere appearing to have known that the device’s algorithm could produce erroneous results.
It was alleged that the company’s conduct led to false claim submissions to Medicare. If Alere had disclosed the algorithm defect, Medicare would not have paid for claims related to the use of the system, the agreement said. Per the settlement, Alere agreed that the U.S. is able to claw back from Alere any overpayments, along with interest and penalties from the inclusion of such unallowable costs. The agreement underscored that the U.S. government does not waive its rights to audit or examine Alere’s records.
Alere previously agreed to a $20 million agreement with its investors in 2019 to resolve claims that it lied about its blood-monitoring system and caused share price upheaval ahead of its proposed multibillion-dollar acquisition by Abbott Laboratories. The agreement marked an end to the claims over depreciations surrounding the recall of Alere’s signature INRatio device for monitoring people on blood thinners.
The Beasley Allen Whistleblower Litigation Team
Lawyers on Beasley Allen’s Whistleblower Litigation Team are still very busy handling cases around the country under the False Claims Act (FCA). We were correct in our prediction on the future of Whistleblower Litigation. Fraud against the federal government by all too many industries in this country, especially in the health care field, has become a huge problem. We have seen that fraud against the federal government has increased dramatically. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed has been a significant factor in the increase in FCA violations. The effects of the pandemic may have made the wrongdoing by corporations easier and to be more frequent.
We know now more than ever to stress that whistleblowers are essential and key to exposing corporate wrongdoing and government fraud. Their role has intensified dramatically and will continue in that direction in the immediate future and beyond. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other misconduct – before you “blow the whistle” – it is essential 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.
It’s important to know that 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. There is also a contact form on the Beasley Allen website that you can use.
The Beasley Allen lawyers set out below 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]) heads our Consumer Fraud & Commercial Litigation Section, participates in whistleblower litigation, and works with the Litigation Team. The lawyers can be reached by phone at 800-898-2034 or by email.
PRODUCT LIABILITY UPDATE
South Korean Battery Manufacturer Must Defend E-Cig Product Liability Claim Involving Its Defective Exploding Battery In Alabama Trial Court
Over the last few years, we have written several times on the topic of personal jurisdiction as courts continue to grapple with evolving arguments from manufacturers seeking to escape liability. These manufacturers claim that they cannot be forced to litigate a claim in a state where their products injure or kill consumers even though they do substantial business there. Initially, manufacturers argued that jurisdiction required the plaintiff to purchase the product that caused injury from an in-state retailer.
In other words, if an Alabama resident purchased a Ford car over the state line in Georgia, Ford would argue that the Alabama resident must sue Ford in Georgia even if the injury occurred in Alabama. However, the U.S. Supreme Court definitively rejected this “sale” argument in March of this year when it issued the Bandemer v. Ford opinion, reasoning:
The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. 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.
Realizing the “sale” argument was losing steam, manufacturers who do business in Alabama have resorted to other technical arguments that ask courts to ignore the substantial revenue they derive from our state. Beasley Allen lawyers Will Sutton and Stephanie Monplaisir recently handled a case against a South Korean battery manufacturer, LG Chem. In that case, our client, an Alabama resident, purchased a lithium-ion battery at an Alabama retail store to power his e-cigarette and subsequently experienced life-altering burns in Alabama when the battery unexpectedly exploded in his pocket. The battery did not contain any warnings or prohibitions against individual use or use with e-cigarettes that would have alerted our client to the hazards of such use.
The discovery showed that LG Chem manufactured the battery, along with millions of similar 18650 lithium-ion batteries, and put them into the stream of commerce, knowing that these 18650 batteries would be purchased and used in the State of Alabama. LG Chem regularly does business in Alabama, solicits business in Alabama, and derives hundreds of thousands if not millions of dollars a year from sales of products in Alabama. In fact, LG Chem’s U.S. “sales and trading” subsidiary, LG Chem America, Inc., registered to do business in the State of Alabama in 2013 and remains registered to do business in Alabama to this day. LG Chem also directly shipped 18650 lithium-ion batteries, among other products, to Alabama, and LG Chem America, Inc. often acted as the consignee on these shipments.
LG Chem moved to dismiss our client’s complaint, arguing that the trial court lacked personal jurisdiction. Yet, LG Chem did not dispute its substantial contacts with Alabama. Instead, LG Chem asserted that it did not design these lithium-ion batteries for sale to individual consumers as standalone batteries. The trial court rejected this argument and denied LG Chem’s motion to dismiss. LG Chem petitioned the Alabama Supreme Court for a writ of mandamus, which the Court unanimously denied June 25, 2021.
If you have any questions, contact Will Sutton regarding e-cigarette explosion cases or Stephanie Monplaisir regarding personal jurisdiction issues. Both can be reached at 800-898-2034 or individually by email at [email protected] or [email protected].
CPSC Targets Amazon Over Dangerous Third-Party Products
Amazon was hit on July 14 with an administrative complaint by the U.S. Consumer Product Safety Commission (CPSC). The agency is seeking to hold the online retailer accountable for defective or hazardous third-party products sold on its Fulfilled by Amazon platform by forcing product recalls. The CPSC determined in a 3-1 vote to file the complaint, which seeks to require Amazon to recall around 24,000 defective carbon monoxide detectors, children’s sleepwear apparel that doesn’t meet flammability standards, and approximately 400,000 hair dryers that lack the appropriate safety devices to help prevent electrocution. The complaint says Amazon is legally responsible for recalling the third-party products since they pose significant risks to consumers, including serious injury or death.
Acting CPSC Chairman Robert Adler said in a statement that the vote is “a huge step forward for this small agency,” but acknowledged that there is still plenty of work ahead. Adler said further:
It’s a huge step across a vast desert — we must grapple with how to deal with these massive third-party platforms more efficiently, and how best to protect the American consumers who rely on them.
Under the Fulfilled by Amazon program, merchants store their products at an Amazon fulfillment center and allow the e-commerce giant to pack and ship the products for a fee. Amazon advertises the program as geared toward helping merchants scale their businesses to reach more consumers.
Merchants that participate in the program still retain the legal titles to their products, but the filed complaint says that when a consumer returns a Fulfilled by Amazon product, it’s sent back to Amazon instead of being sent to the merchant. Amazon then purportedly examines the product to see if it can be resold. If an item cannot hit the resale market, then the merchant can elect to have the product mailed to its own facility.
The CPSC wants Amazon to work with the regulator’s staff to recall the defective carbon monoxide detectors, hair dryers and youth garments. The regulator further asks that Amazon not only notify those who purchased any of the defective items but also issue them full refunds.
Joe Martyak, the CPSC’s director of communications, told Law360 that the agency would like to see all third-party platforms take responsibility for the products sold on their sites. He explained:
We are considering [Amazon] as a distributor, but they are not agreeing to that. They do not see themselves legally responsible for these products, but we do, and that’s where there hasn’t been an agreement on a recall.
As we previously reported, the Texas Supreme Court issued a ruling in June that supports Amazon’s stance, finding that the company isn’t considered a “seller” of Fulfilled by Amazon products under the state’s product liability law because it doesn’t hold title to the products. Amazon has taken some action on its own regarding the defective products, according to the complaint. The retailer notified consumers who purchased them about potential hazards associated with the items and offered to refund customers with Amazon gift cards. But the CPSC said those efforts are not enough.
There are huge safety and health concerns here. We commend the CPSC for taking a stand for consumers. The CPSC is seeking to stop distribution of the products named in the complaint and to require Amazon to facilitate returns so that the retailer can destroy the hazardous products. The regulator is also requesting proof of the destruction through a certificate or other documentation and wants monthly progress reports on the process.
The complaint is In the Matter of Amazon.com before the U.S. Consumer Product Safety Commission. It will be interesting to see how Amazon responds to the complaints. Stay tuned!
Ford Recalls More Than 800,000 Vehicles For Risk Of Crash And Fire
Ford Motor Company is recalling more than 800,000 vehicles in North America for the increased risk of a crash or a fire. In a recent press release, Ford announced three safety recalls involving certain 2020-2021 Ford F-350 Super Duty vehicles; select 2013-2017 Ford Explorer vehicles, and select 2020-2021 Lincoln Aviator vehicles. We will take a look at each of the recalls below.
There is a safety recall for approximately 34,939 2020-2021 Ford F-350 Super Duty vehicles with a 6.7-liter engine and single rear wheel axle due to a rear axle housing spring seat interface weld issue. The affected vehicles may experience rear driveline disconnection, which means customers may experience vibration and/or shaking while driving at highway speeds and/or shuddering upon acceleration. In the event of a disconnected driveshaft, customers may experience loss of motive power while driving or loss of transmission park function if the parking brake isn’t applied — increasing the risk of a crash. Ford said it’s not aware of any accidents or injuries related to this recall.
Owners will be notified starting Aug. 16. Dealers will inspect the rear axle to determine if deformation is present, and if so, the axle housing will be replaced. If it’s not deformed, the dealer will perform a weld repair on the spring seats, according to Ford.
A safety recall was issued for 774,696 2013-2017 Ford Explorer vehicles that may experience a seized cross-axis ball joint. The vehicles may experience a seized cross-axis ball joint that may cause a fractured rear suspension toe link. Affected vehicles may experience a clunk noise, unusual handling, or a misaligned rear wheel. Fracture of a rear toe link significantly diminishes steering control, increasing the risk of a crash, Ford said. The recalled vehicles in the United States are located in high-corrosion states as defined by the National Highway Traffic Safety Administration or in regions with a combination of cold winter weather with relatively high humidity and substantial road salt use. Ford said it’s aware of six allegations of injuries related to this recall in North America. Owners will be notified beginning Aug. 23. Dealers will inspect the cross-axis ball joint, replace the cross-axis ball joint/knuckle as necessary, and replace the toe links with a revised design.
Ford issued a safety recall for approximately 40,995 2020-2021 Lincoln Aviator vehicles equipped with 3.0-liter gas engines for improperly secured battery cable wire harnesses because the battery cable wire harness may not be properly secured, allowing contact with the A/C compressor pulley, according to Ford. Over time, the A/C pulley may rub through the wire harness insulation and contact the unfused battery positive (B+) circuit, resulting in a short circuit and potential fire. Ford said it’s not aware of any accidents, injuries, or fires related to this recall. Owner notifications will begin July 30. Dealers will inspect the vehicle, Ford said, and:
- If there is no evidence that the battery cable has contacted the A/C compressor pulley, they will add a tie strap near the frame rail between the battery cable harness and the engine compartment harness.
- If any of the small gauge circuits are damaged, dealers will add a tie strap near the frame rail between battery cable and engine compartment harnesses and replace the A/C compressor belt.
- If any of the four large gauge circuits are damaged, dealers will inspect the wire harness, replace the battery cable harness, add a tie strap near the frame rail between the battery cable harness and engine compartment harnesses, and replace the A/C compressor belt.
AN UPDATE ON MOTOR VEHICLE LITIGATION
Trucking Companies Have A Responsibility To Hire Competent Drivers Who Are Qualified To Operate Commercial Motor Vehicles On Our Roadway
Trucking companies have a responsibility to hire competent drivers who are qualified to operate commercial motor vehicles on the roadway. One way to investigate compliance with this requirement is to assert a negligent hiring claim in cases. 49 CFR § 391.23 sets forth the investigation and inquiries that a prospective employer must make of their applicant driver. This includes an inquiry within 30 days of the date that the driver’s employment begins to each state where the driver held or holds a motor vehicle license.
Be aware of this reality; some entities only make the proper inquiry to the state where a driver currently holds their license and fail to investigate the state where a license was previously held.
Another requirement is to investigate the driver’s safety performance history with DOT-regulated employers during the three years preceding the date of employment. Put simply, the employer must request the applicant driver’s file from previous commercial driving jobs for three years preceding employment.
Often, 30(b)(6) deponents will attempt to deflect these findings and state that they complied with the requirement. As we all know, the rule is not to ensure that the box is checked but to investigate the driver’s recent conduct and determine whether the driver is competent to drive a commercial vehicle.
Ask the 30(b)(6) deponent, “Why is it important to ensure that you are hiring a safe driver?” And also, ask, “Why is it important to review the documents received from an applicant’s prior employers?” You can establish a duty and deviation from this duty through these types of questions. Push the deponent and make them stand by the fact that they must hire a safe driver.
Relying on the defendant trucking company’s qualification file of the defendant driver is not enough. It is important to subpoena the defendant driver’s records from their previous employer before depositions. Not only will you learn of your driver’s past, but you will often find prior employers that were not included on the current job application, along with other inconsistencies.
These cases start with a driver who was negligent. These cases recover for the damages that negligent drivers cause by exposing the employer for placing that driver behind the wheel of a commercial truck. This is done by diligently searching and establishing that the company knew of a driver’s incompetence and/or showing noncompliance or indifference to the rules set forth to protect all of us on the roadway.
If you have a question about pursuing negligent hiring claims in a trucking case, you can contact Ben Keen in our Atlanta office at 800-898-2034 or by email [email protected].
Interstate Trucking Drivers Are Statutory Employers Of Drivers By Federal Law Even If They Are Independent Contractors
A recent Alabama case highlights the need for lawyers to understand FMCSA regulations pertaining to trucking cases. In Jackson v. Allen, etc., [Ms. 1190026, June 30, 2021] __ So. 3d __ (Ala. 2021), the court focused on the analysis of whether a carrier had the necessary control over an independent contractor in order to establish an agency relationship. However, that analysis isn’t necessary. A motor carrier can’t transfer compliance to a motor carrier because, by law, the term “employee” includes independent contractors. Independent contractors are statutory employees of the carrier. See 49 CFR §390.5T.
Employee means any individual, other than an employer, who is employed by an employer and who, in the course of their employment, directly affects commercial motor vehicle safety. The term “employee” includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler. The term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.
Employer means any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it. But the term does not include the United States, any State, any political subdivision of a State, or an agency established under a compact between States approved by the Congress of the United States.
A motor carrier means a for-hire motor carrier or a private motor carrier. The term includes a motor carrier’s agents, officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment and/or accessories. For purposes of this subchapter, this definition includes the terms employer and exempt motor carrier.
If you have any questions or need more information, contact Chris Glover, who manages our Atlanta office, at 800-898-2034 or by email at [email protected].
The Investigation Of A Defective Tire Case
Tire tread separations, blowouts, and other tire failures can cause drivers to lose control of their vehicle, often with tragic consequences. According to the National Highway Transportation Safety Administration (NHTSA), 612 people were killed in tire-related auto accidents in 2019 – more than the number killed by cell phone distraction.
What NHTSA’s data doesn’t specify is how many people were injured in tire-related auto crashes during the same period. The number is almost certainly much higher. These figures underscore the importance of carefully examining tires for evidence of defects in motor vehicle crashes.
In any car accident lawsuit, a lawyer who fails to recognize the signs of a potential product defect may significantly undermine the value of their client’s claim or even miss making a substantial recovery for their client altogether. A defective tire lawsuit can be incredibly complex and challenging to prove, so it’s critical to recognize the signs of a tire defect in an auto crash and identify who is liable.
Product liability lawyers must establish that a tire defect caused, contributed to, or worsened the accident before filing a defective tire lawsuit. Tire tread separation is a common and visible clue that a tire failure played a role in a motor vehicle crash, especially if there is a lack of “wear and tear” to the tire.
Tire defects can be the result of an error in the manufacturing process. This was the case in two large tire recalls announced in the first quarter of 2021, as reported by The Auto Channel. In February, Continental Tires said it would recall several tire brands due to over curing during production, which can develop into a break in the sidewall, causing sudden air loss, belt edge separation, or a complete loss of the tread and belt. Around the same time, Cooper Tire announced a recall of 430,000 tires manufactured under multiple brand names for a defect that could turn into sidewall bulges or separation while driving at highway speeds.
Tire defects may also result from a flawed design, making it unable to perform properly and eventually lead to failure. Together with manufacturing defects, tire design defects make up the most common product liability claims involving tire-related accidents. These are some of the issues Beasley Allen lawyers investigate when handling defective tire cases.
If you need more information or have questions, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section. Ben has handled a number of defective tire cases. He can be reached by phone at 800-898-2034 or by email [email protected].
Sources: National Highway Transportation Safety Administration, The Auto Channel
Motorcycle Helmet Safety Standards
When a motorcyclist purchases a helmet, they should typically look on the back of the helmet to see if there is a “DOT” decal. Except in instances of fraud, the DOT sticker indicates that the helmet has passed Standard No. 218, which is found at 49 CFR § 571.218. The DOT decal under new standards must also be accompanied by a label depicting the manufacturer’s name, the model number or name of the product, a “DOT” designation, and the term “Certified” below the FMVSS 218 designation. FMVSS stands for Federal Motor Vehicle Safety Standard, the same standards applied to automobiles and their safety components and overseen by the National Highway Traffic Safety Administration (NHTSA). Other recognized industry standards include Economic Commission for Europe (ECE) and Snell Foundation.
Part 218 “establishes minimum performance requirements for helmets designed for use by motorcyclists …”, and it “applies to all helmets designed for use by motorcyclists and other motor vehicle users.” (S1, S3) The purpose of the standard “is to reduce deaths and injuries to motorcyclists and other motor vehicle users resulting from head impacts.” (S.2)
To receive the “DOT” certification, a helmet and its components must comply with Part 218. Without exception, testing should be performed by the manufacturer of a motorcycle helmet or by component manufacturers who are supplying aftermarket add-ons for helmets which also fall under the ambit of this standard. The U.S. Department of Transportation, Office of Vehicle Safety Compliance, will also periodically test helmets and applicable components sold on the market in the United States. Random samples of helmets are acquired and sent by DOT to independent testing laboratories. Failure to satisfy the testing can result in fines against the helmet manufacturer.
Under the testing protocol, helmets are tested primarily in three different respects: (1) impact (S5.1, 7.1); (2) penetration (S.5.2, S7.2); and (3) retention (S.5.3, S7.3). These tests are all done under four varying conditions: (A) ambient conditions, (B) low temperature, (C) high temperature, and (D) water immersion. The helmet (for impact and penetration) and its retention system are then noted under the varying conditions to either “PASS” or “FAIL.” Other incidental testing includes configuration (S.5.4), peripheral vision/brow openings (S 5.4), and labeling (S5.6).
The “retention system” is that portion of the helmet that goes under the motorcyclist’s chin and helps to keep the helmet on the rider’s head in a crash. It is “the complete assembly by which the helmet is retained in position on the head during use.” The (S4) standard retention systems are made up of woven nylon straps and two D-rings. Newer versions may include a snap at the end that snaps on the side of the assembly. Often, manufacturers or users may add an alternative mechanism. These products are commonly referred to as quick-release buckles or similar items.
Whether the traditional straps or the quick-release buckles are used, the helmet and the buckling mechanism must comply with Part 218. During testing, the “retention system or its components shall attain the loads specified without separation,” and “[t]he adjustable portion of the retention system shall not move more than 1 inch (2.5 cm)…” during testing. The testing requires that the buckling system be subjected to 22.7 kg (49.9 lbs) for 30 seconds, increased to 136 kg (299.2 lbs) for 12 seconds. Importantly, “[w]here the retention system consists of components which can be independently fastened without securing the complete assembly, each such component shall independently meet the requirements” in this standard. Sub-part S7.3 sets forth how the helmet or the buckling mechanism should be tested to pass Part 218 and receive the DOT certification.
This test, however, does not reflect how a helmet or a buckling mechanism may perform in an actual crash. The standard is simply a minimum standard. Responsible helmet and quick release manufacturers will test beyond the minimum standards of Part 218 to ensure the helmet will stay on the head of a motorcyclist in a crash and result in minimal or no damage to the rider’s head. Manufacturers should be creative in determining how their products will perform when they are really needed for safety, especially where it is represented that the product is safe for its intended use. The failure to do so could prove deadly for the rider if the helmet comes off during a crash.
If you have any questions or need more information, contact Ben Locklar, a lawyer in our Personal Injury & Product Liability Section, at 800-898-2034 or by email [email protected].
Recent Bell Helicopters’ Grounding Demonstrates Deadly Outcomes Of Even The Smallest Defective Component
There are countless cases Beasley Allen lawyers have handled involving some of the smallest defective aircraft components that led to catastrophic and tragic outcomes. Last month, the Federal Aviation Administration (FAA) grounded Bell 212 helicopters after its Canadian counterpart discovered an outboard main rotor hub strap pin had been sheared off during flight because of the pin’s defect, Vertical Magazine reported.
The defective pin caused a firefighting helicopter to crash in June, in Alberta Canada, killing the pilot, the only person on board at the time. Fire Aviation explained what Canadian investigators discovered. The sheared pin, which had approximately 20 hours of flight time, caused the main rotor blade to detach from the main rotor head. The investigators examined another Bell 212 helicopter, and the same component had been deformed after only 29 hours of flight service. The pins were manufactured by the same company part number (P/N) 204-012-104-005 and a prefix of “FNFS.”
The FAA issued an emergency Airworthiness Directive (AD) ordering removal of all defective pins before flight continues for the grounded helicopters. It also forbids further use of the faulty components. The AD also included the Bell 204B, 205A-1 and 205B models, which use the same defective pin.
The helicopters are manufactured by Bell, a subsidiary of Textron Inc., located in Fort Worth, Texas. The helicopters are designed to carry multiple firefighting crews. The U.S. Department of Agriculture Forest Service also uses these aircraft to transport firefighting personnel and grounded its fleet of the select Bell helicopters the day before the FAA issued its AD. Forestry services in the U.S. and other countries rely on helicopters and other areal firefighting equipment more in recent years with the growing number and intensity of wildfires throughout.
Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, focuses much of his practice on aviation litigation. He is the lead lawyer at Beasley Allen for all aviation litigation, including the firm’s involvement in the Boeing litigation.
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 of the complexities of aviation crash investigation and litigation. In his book, Mike explains that “[a]n aircraft is a complex piece of equipment. It involves complex systems that have to work consistently in the right order, every time. In aviation, there is a smaller margin for error or product failure than most cases involving automobiles or other simpler products.” From commercial airliners like the Boeing 737 MAX to a case Mike is investigating involving the Robinson R22 to the recently grounded Bell helicopters, one thing is sure, a defective component, regardless of its size or design complexity, can prove fatal for the passengers who have put their trust in the aircraft and the manufacturer.
If you would like to have more information on aviation litigation, including any aspect of the ongoing Boeing litigation, contact Mike Andrews at 800-898-2034 or by email [email protected].
Sources: Vertical Magazine, Fire Aviation, Federal Aviation Administration
PREMISES LIABILITY LITIGATION
Carbon Monoxide Poisoning Case In Georgia
Many people are aware that their home or apartment furnace can be hazardous due to explosions and fires. Still, another more insidious and equally deadly hazard exists, and that involves carbon monoxide (CO). CO is a deadly gas created whenever combustion occurs and can be extremely dangerous even in lower amounts. Gas stoves, fireplaces, generators, and home heaters (propane, oil and gas) all produce CO. During every year, serious injuries and deaths are caused by CO poisoning when heating appliances malfunction or are improperly vented.
According to the Mayo Clinic, symptoms of CO poisoning include dull headaches, weakness, dizziness, nausea or vomiting, shortness of breath, confusion, blurred vision and loss of consciousness. The Clinic warns that some people may suffer irreversible brain damage or die before a CO problem is recognized. The signs of CO poisoning can be subtle, but the condition is a life-threatening medical emergency.
Every time a furnace is heating, it is producing carbon monoxide. Properly trained engineers, manufacturers, landlords, apartment complex managers and service companies understand this, and they typically take the proper steps to ensure a furnace is operating properly to remove CO by actively using fan motors to push it out of the home.
Older houses and apartments may still utilize natural draft venting, and those homes need to be “breathable,” basically like a chimney. In those instances, no fan is used, and the heat and natural draft of air into the home allow proper venting of CO.
However, a breathable home allows more outside air to penetrate the house and typically results in reduced efficiency. Additionally, unless the furnace is properly vented, CO may simply escape or be forced into the home’s living area. Older individuals and those with preexisting medical concerns can be particularly vulnerable to CO poisoning.
Beasley Allen lawyers Mike Andrews and Alyssa Baskam recently filed an important wrongful death case involving the death of a woman caused by CO exposure in Clayton County, Georgia. Our client’s mother, who lived alone, was exposed to carbon monoxide in her apartment. A CO detector – installed by the apartment complex on the ceiling rather than lower as recommended – was alarming to alert the presence of harmful CO. The victim was rushed to the hospital, where she suffered cardiac and respiratory failures and remained in the hospital where she tragically died a month later.
Our initial investigation indicates that a faulty gas valve and improper furnace venting were discovered at the time the victim was transported from her apartment. But additional sources may also have contributed to the CO present in the home. If our investigation reveals additional wrongdoers, they will be added to the case.
Obviously, all of us deserve to be safe in our homes. We have written previously on the necessity of apartment complex owners and operators to provide safety and security for tenants. If apartment complexes and their service companies are going to provide gas heating and appliances, they should certainly make sure the appliances are properly installed and maintained.
Mike Andrews and Alyssa Baskam look forward to developing and presenting this case to a Clayton County jury. If you have any questions or need more information about CO-related litigation or this case, contact Mike or Alyssa at 800-898-2034 or by email at [email protected] or [email protected].
Determining The Victim’s Status in a Negligent Security Case
When pursuing a negligent security case against a property owner, there are numerous factors to consider by a trial lawyer. The first inquiry, which is critically important, is the actual classification of the victim. Tort law generally recognizes three distinct categories of victims in negligent security causes of action: (1) invitee, (2) licensee, and (3) trespasser. The type and scope of the duty owed by a property owner or operator to a victim who becomes a plaintiff in a lawsuit depends on the status of the person who becomes a victim. For a trial lawyer, determining the status of the client will let you know whether that person has a viable case or not. The following are explanations of the three classifications:
An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose (i.e., a tenant). The duty owed to an invitee by a landowner is the exercise of ordinary care to keep the premises and approaches safe.
A licensee is a person who is permitted, either expressly or impliedly, to go on the premises of another, but merely for his own interest, convenience, or gratification. A landowner’s duty to a licensee is not to injure the licensee wantonly or willfully and arises after the owner becomes aware of or should anticipate the presence of the licensee near the peril.
Lastly, a trespasser is one who wrongfully enters upon property owned or occupied by another. A landowner has no duty to keep the premises safe for a trespasser present without the owner’s knowledge, even if the owner generally knows that trespassers may enter his property. However, once the landowner becomes aware of the trespasser’s presence, the only duty owed is to refrain from willfully and wantonly injuring the trespasser.
Differentiating between these classifications is paramount in determining the type of standard and the associated breach of the duty of care. Beasley Allen lawyers are currently investigating several negligent security cases where this analysis is key to determining whether a case is viable to pursue.
For example, one of our lawyers recently investigated a case where a man was shot and killed near the premises of a Greyhound Bus Station. Our investigation revealed that the deceased was neither an invitee nor licensee but could be classified as a trespasser. A person may be deemed a trespasser whether they were on the property of another, intentionally or by mistake.
It’s critically important for the trial lawyer to understand that the status of their client is vital to bringing a successful negligent security case. So hopefully, this information will be helpful for lawyers who may be investigating a first premises case.
Parker Miller and Donovan D. Potter, Sr., lawyers in our Atlanta Office, are the lead lawyers handling negligent security cases for the firm in Georgia. If you or a loved one was seriously injured due to a criminal act, or if you have any questions about these cases, contact Parker or Donovan at 800-898-2034 or by email [email protected] or [email protected].
THE NATIONAL SCENE
Boy Scouts Offer To Compensate Sexual Abuse Victims In Historic $850 Million Bankruptcy Settlement
The Boys Scouts of America have now more than doubled its initial offer of compensation to sexually abused scouts to $850 million as of June 20. This sets the stage for what is being called an historic settlement as part of the organization’s bankruptcy proceedings. The offer comes more than a year after the nonprofit group facing 275 abuse lawsuits and 1,400 potential claims filed for bankruptcy. By the November 2020 deadline for victims to come forward, the number of claims had risen to nearly 90,000. This became one of the largest sex abuse cases ever against a single national organization. Kenneth M. Rothweiler, a lawyer representing the largest group of survivors totaling approximately 16,800, said in a statement:
This initial settlement of $850 million is the largest settlement of sexual abuse claims in United States history. I am pleased that both the BSA and their local councils have stepped up to be the first to compensate the survivors.
Paul Mones, another lawyer representing survivors, told USA TODAY that with insurance contributions, he expects the amount of the settlement to grow to over $1 billion. Jordan Merson, also a plaintiff’s lawyer, stated:
It is important that people see this dollar amount and know this is not the end; this is just the beginning. There are billions of dollars in insurance money, and the fight to get that money is continuing.
In a statement, the Boy Scouts of America characterized the offer as part of its plan to emerge from bankruptcy this year. The statement read:
Bringing these groups together marks a significant milestone and is the biggest step forward to date as the BSA works toward our dual imperatives of equitably compensating survivors of abuse and preserving the mission of Scouting.
According to motions filed with the court on July 2, the agreement has support from representatives of about 60,000 abuse survivors. But, this entire affair has been full of controversy. According to the Boy Scouts of America’s statement, the national organization agreed to contribute $250 million to the trust. There was opposition, particularly from the hundreds of local Scout councils, which in the offer filed in federal bankruptcy court, would have been responsible for paying the largest share of the settlement: $600 million, broken down to $500 million in cash and other properties, with additional $100 million funded with contributions that would have originally gone to a pension plan for former executives and employees, which the Scouts admit is overfunded.
With a reduction in expected eligible victims to about 84,000 as of February 2020, the amount now being proposed would provide about $10,000 to each claimant, which would be provided at different times to the survivors. That assumes an even distribution among survivors and does not reflect issues related to statutes of limitations or specific acts of abuse.
In addition to the monetary settlement, Boy Scouts of America agreed to give the Settlement Trust access to all records related to abuse and non-monetary compensation such as insurance rights and protective measures in current organization programs. The victims who filed claims will vote on the settlement.
The organization has previously estimated the likely payout potential of the abuse claims at a range of $2.4 billion to $7.1 billion, according to records in the bankruptcy case. In comparison, a committee representing victims has valued the total claims at over $100 billion.
In March, USA TODAY estimated the Scouts to be worth over $3.7 billion, including more than 250 local councils plus various trusts and endowments. Michael Pfau, a lawyer for the plaintiff’s, said:
The Boy Scouts have disclosed that their local councils have over $1.8 billion in unrestricted net assets, but their latest plan and disclosure statement fail to disclose how much each council is contributing to this bankruptcy. Our clients are already calling us and asking why this new proposal is acceptable when it appears the local councils have so much more to contribute.
Our firm is representing several individuals who are eligible to participate in this fund. We are monitoring the case closely. It will be interesting to see if this settlement will be approved. If you have any questions or need more information, contact Lauren Miles, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email [email protected].
Source: USA Today
Faulty Aerial Lifts In The Workplace
Aerial lifts are powered mobile machines used to elevate workers in construction and other industries where work must be performed at significant distances from the ground. These industrial machines have begun replacing ladders and scaffolding. Still, they are accompanied by safety risks. The U.S. Department of Labor Bureau of Labor Statistics (BLS) reports that aerial lifts injured 1,380 workers and killed 87 workers between 2011 and 2014. In 2017, BLS reports that 24 workers were killed that year alone by aerial lifts.
Common causes of injury and even death of workers using aerial lifts include falls, objects falling from elevated levels, workers being ejected. When an aerial lift isn’t adequately maintained or experiences a defect, the machine can also injure or kill workers due to tip-overs, structural collapses, hydraulic failure, or electrical malfunctions, among other problems with the equipment.
The Occupational Safety and Health Administration (OSHA), the agency charged with ensuring worker health and safety in the U.S., defines an aerial lift as “any vehicle-mounted device used to elevate personnel, including extendable boom platforms, aerial ladders, articulating (jointed) boom platforms, vertical towers, and any combination of [these products].” It has issued regulatory guidance to employers that require workers to use aerial lifts to better protect workers by requiring proper training, inspection and maintenance of the aerial lifts.
Beasley Allen lawyers have helped workers injured by aerial lifts or families of workers killed in on-the-job accidents due to an aerial lift defect. Our lawyers have litigated aerial lift accidents caused by defective designs, negligent maintenance, and the removal of original equipment manufacturer (OEM) safety devices throughout the country. An aerial lift accident resulting in serious injury or death must be carefully and thoroughly investigated to determine the cause of failure. Our firm’s lawyers realize this is a necessity.
If you need more information or have questions about any of the above, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected]. Evan handles product liability cases, including workplace injuries and deaths, for Beasley Allen.
Sources: Bureau of Labor Statistics, Occupational Safety and Health Administration
Machine Guarding: Identifying And Pursuing On-the-job Third-Party Products Liability Claims
All too often, men and women who work in an industrial field are catastrophically injured or killed on the job. While workers’ compensation laws provide for their medical care, the compensation provided by most state laws falls drastically short of the amount needed to compensate the injured worker or their family fully.
Workers’ compensation laws typically do not account for damages such as mental anguish, pain and suffering, loss of consortium, loss of value of life, or the full amount of a worker’s lost wages. Inadequate compensation for the injured worker or their family makes investigating other avenues of recovery for the worker imperative.
Often a catastrophic injury or death occurs when a hazardous condition of a machine has not been guarded. A third-party product liability claim against the manufacturer of the machine that caused the worker’s injury is an additional avenue of recovery for the worker that is not bound by the restrictions of workers’ compensation laws.
Machine hazards are typically present at or near the moving parts of the machine. These hazard zones are usually at the point of operation, where the machine cuts, bends, presses or otherwise moves materials, or power take-off or power transmission device. Workers must never be given the freedom or opportunity to put any part of their body into a machine’s hazard zone. If a moving part (like the parts previously mentioned) may be touched by a worker, then that part must be guarded.
Once a hazard zone on a machine has been identified, the safety engineering hierarchy identified by the National Safety Council gives machine designers an order of design procedures to help mitigate and/or guard against the specific hazard. This order is as follows:
- First, if at all possible, the engineer should redesign the machine to eliminate the hazard.
- Second, if the hazard cannot be designed out, it must be guarded. Not all hazards are the same, so there are many different guards available to manufacturers to protect workers, such as fixed barrier guards, light curtains, electronic sensors or interlocking devices, to name a few. It is the manufacturer’s responsibility to use the most appropriate guard for the specific hazard.
- Third, if a hazard cannot be guarded, manufacturers must warn the user of the hazard. A fourth option is to develop training policies for using the machine.
However, it is agreed within the engineering community that designing a machine to eliminate a hazard and guarding against a hazard are far superior methods for protecting workers than just warning them of hazards.
In many situations, it’s the workers who believe they can avoid dangerous parts of a machine, and that belief can put them quite often in a perilous situation. Safety experts universally recognize that workers must not be able to reach around, under, through or over a guard to reach the hazard zone of a machine.
Some supervisors will turn a blind eye when workers are working near hazard zones to achieve production goals. That is why machine guarding is so essential. It removes the temptation of the “I’ll be fine,” or “I’ll be careful,” or “We need to get this done” mentality. No one ever intends to be in a car wreck. Similarly, workers never intend to be caught in a drill press or pinch point on a conveyor belt. Accidents happen even when an employee is paying attention. That is why hazard zones on machines must be adequately guarded.
There are practical strategies to consider when a lawyer prepares to pursue a third-party products liability claim related to an on-the-job injury. The lawyer should send a preservation letter to the employer as soon as possible, instructing them not to alter or destroy the machine causing the injury until you have had the opportunity to inspect the machine.
In many situations, the machine may have already been altered before the employer received such a letter, so the letter should also contain language instructing the employer to preserve all photos or other documentation of the repair and/or modification of the machine, and all product identifying information. Not only does this letter serve the purpose of preserving critical evidence, but it also sends a message to the employer, its insurance carrier, and its attorney that the employer is not necessarily going to be the primary target of the litigation.
Many insurers and their lawyers understand that if your client is successful in pursuing a third-party products liability claim against the machine manufacturer, their chances of recovering more of their subrogation interest may increase exponentially. This can often lead to cooperation from the employer before a lawsuit is filed. This type of cooperation can allow opportunities to inspect the product before filing a suit, which can be invaluable in determining whether there is a viable products liability case.
You may also want to consider filing the workers’ compensation claim without initially adding the machine manufacturer as a defendant. This strategy provides two advantages. First, you can ensure state court jurisdiction and, second, it allows you an opportunity to obtain verified discovery from the employer about the product, its history, maintenance records, documentation and other plans provided by the manufacturer to the employer, and additional helpful information that can help you craft your product liability claim against the manufacturer in your amended complaint.
A manufacturer’s failure to adequately guard hazard zones can cause any number of catastrophic injuries and often death. Using the right type of guard is just as important as using a guard. As such, every on-the-job injury involving a machine must be investigated and evaluated on a case-by-case basis. Beasley Allen’s Personal Injury & Products Liability Section lawyers have extensive experience investigating and litigating these cases. They will love to speak with you if you have a claim for an on-the-job catastrophic injury or death related to the use of a machine.
If you have any questions or need more information, contact Wyatt Montgomery, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected]. Wyatt, who is located in our Mobile office, handles product liability litigation, including cases involving workers and the workplace, for the firm.
Wrongful Death Suit Against Rock Crusher Maker Will Proceed
The Virginia Supreme Court overturned a lower-court decision last month in an important Virginia case being handled by our firm, along with a very good Virginia firm. The case involved a malfunctioning classifier that buried a man in debris, causing his death. The Supreme Court found that the trial court had mistakenly applied a five-year limitation when it misclassified the equipment at issue.
The state’s high court found the trial judge erred when he ruled the statute of limitations had expired in the suit filed by Brian Potter, the father and executor of the estate for Daniel Potter. Brian Potter is suing BFK Inc., the manufacturer of the stone pulverizer and separator, known as a Buell Classifier, which ruptured and led to his 18-year-old son’s death after he was buried under an avalanche of material. In the opinion, the trial court’s decision was reversed and the case remanded for further proceedings.
The issue on appeal was the classification of the Buell Classifier – whether it was “equipment or machinery” or “ordinary building materials.” The state has a five-year statute of repose on personal injury claims, but it carves out an exception for manufacturers and suppliers of equipment and machinery.
Justice Cleo E. Powell, who wrote the opinion, noted that BFK often defined the pulverizer as “equipment.” She also noted that the former president and CEO of BFK said he had called the Buell Classifier equipment in the past. Justice Powell wrote:
While not dispositive, the fact that BFK routinely referred to the Buell Classifier as ‘equipment’ further supports the notion that it was, in fact, a piece of equipment.
Daniel Potter was a seasonal worker at the Leesburg, Virginia, stone mine operated by Luck Stone.
In determining the legal definition of the classifier, the Supreme Court justices noted that equipment and machinery are subject to regular maintenance and inspections. Justice Powell said that BFK “exerted control” over the maintenance and installations of similar Buell Classifiers in a way that made it seem to be equipment. Moreover, the Buell Classifier was not an integral part of the building, as it was only added to the existing structure, a silo, years afterward, the justices found. Justice Powell wrote:
The Buell Classifier is a device used for a specific purpose unrelated to the structural integrity of the building itself. It has several qualities that we have recognized as being characteristic of equipment: The manufacturer exerts some degree of control over its installation and maintenance, it is not required for the operation of the building, and it is neither fungible nor generic.
Beasley Allen’s Kendall Dunson, the lead lawyer in the case for the plaintiff, will be working with Jon D. Pels of the Pels Law Firm. The case is Brian C. Potter, Personal Representative Of The Estate Of Daniel C. Potter v. BFK, Inc. (case number 191716) in the Virginia Supreme Court.
ABM Agrees To Pay $140 Million To Settle Long-Running Wage Suit
Facility management company ABM Industries has agreed to pay $140 million to thousands of California workers to settle a 15-year-long consolidated case over the company’s old timekeeping system. Employees had alleged that this system caused them to be underpaid. The settlement class involves 50,000 janitors who worked for ABM between 2002 and 2013.
The janitors claimed that ABM violated state labor law by systematically failing to keep accurate time records that reflected the actual hours they worked. The proposed settlement will have to be approved by the San Francisco County Court overseeing the litigation.
The workers first filed suit in 2006. The janitors said in their operative complaint that ABM had engaged in a practice based on an hourly quota system where they were paid not based on their actual time worked, instead they were paid based upon a system that provided for a total number of hours paid for particular job assignments. The employees claimed:
For example, if a non-exempt janitorial employee is sent to clean a site or do some other task on that site, ABM pays that employee for the number of hours indicated by its hourly quote system, regardless of the actual time taken by the employee to perform his or her job duties.
The trial court initially denied the janitors’ bid for class certification, but a California appeals court overturned that decision in 2017, remanding the matter to be certified. The appeals court said it was “somewhat mystified” by the lower court judge’s exclusion of expert evidence in denying the class certification motion. Specifically, the judge had wholly excluded payroll analyses provided in support of the certification bid by expert witness Aaron Woolfson.
The company has faced other wages and benefits challenges from its workers in the past. Most recently, in 2020, ABM Onsite Services West Inc. agreed to pay $4.1 million to settle a proposed class action claiming it took too much out of employees’ paychecks to pay into an Oregon state benefits fund. And in 2017, the company agreed to pay $5 million to resolve overtime and break claims for 7,000 California security guards.
The workers are represented by Stan S. Mallison and Hector R. Martinez of Mallison & Martinez, Caren P. Spencer, Robert D. Perkins and Caitlin Gray of Weinberg Roger & Rosenfeld, and Matthew J. Matern and Kiran Prasad of Matern Law Group PC.
The case is ABM Industries Overtime Cases (case number CJC-07-004502) in the Superior Court of California, County of San Francisco.
Pilgrim’s Pride Corp. Agrees To $29 Million Settlement In Wage Conspiracy Suit
Pilgrim’s Pride Corp., a subsidiary of JBS, has reached a $29 million settlement with workers who claim it conspired with other poultry companies to keep their wages low. In addition to the monetary settlement, which must be approved by a Maryland federal judge, Pilgrim’s agreed to cooperate with the plaintiffs’ case against the remaining defendants in the suit, which include other large poultry companies such as Tyson Foods Inc. and Koch Foods LLC.
Pursuant to the settlement, Pilgrim’s is required to allow the deposition of five of its employees and turn over a number of documents related to the accusations. The plaintiffs also agreed not to bring additional claims against Pilgrim’s arising from this particular case. The settlement agreement allows plaintiffs to secure key evidence — in the form of documents, deposition testimony, and trial testimony — from Pilgrim’s and its employees.
It appears that cooperation by Pilgrim’s in the litigation against the remaining defendants was an important factor in the settlement. The workers alleged in the lawsuit filed in 2019 that the poultry processors, which together own and run roughly 200 poultry plants in the United States, held clandestine meetings and traded information in an effort to tamp down wages for hundreds of thousands of workers at their facilities. The suit also names two consulting companies, Webber Meng Sahl & Co. Inc. and Agri Stats Inc., that the workers allege were part of the scheme as defendants.
The workers are represented by Matthew Handley, Rachel Nadas, George Farah, Rebecca Chang and William Anderson of Handley Farah & Anderson PLLC, Daniel Small, Benjamin Brown, Brent Johnson, Daniel Silverman, Alison Deich and Zach Glubiak of Cohen Milstein Sellers & Toll PLLC and Steve Berman, Breanna Van Engelen, Shana Scarlett and Rio Pierce of Hagens Berman Sobol Shapiro LLP.
The case is Jien et al. v. Perdue Farms Inc. et al. (case number 1:19-cv-2521) in the U.S. District Court for the District of Maryland.
MASS TORTS LITIGATION
Negative Results Seen In Study Assessing Effectiveness Of Belviq In Treatment Of Substance Use Disorder
A recent study published in the Journal of the Federation of American Societies of Experimental Biology (FASEB) found that Belviq (locaserin) is ineffective at treating Substance Use Disorder but may increase the risk of ventilatory depression in opioid users. Scientists were interested in seeing if Belviq, which selectively targets the serotonin 5-HTC receptor in the hypothalamus, could positively impact substance user disorders. That’s because the hypothalamus is thought to be one of several regions of the brain involved in addiction.
Belviq was approved by the FDA in 2018 to treat obesity. By targeting the 5-HTC serotonin receptor, Belviq was touted as an effective obesity treatment without the associated heart damage seen in other obesity treatments which targeted other serotonin receptors.
Unfortunately, a long-term Belviq study looking at heart damage revealed an increased rate of cancers in Belviq users. Earlier animal studies of Belviq had indicated increased rates of tumors in rats, a finding the manufacturers of Belviq wrote off as unrelated.
Beasley Allen lawyers are actively litigating cases against the manufacturers of Belviq. Our Belviq Litigation Team consists of Roger Smith, Ryan Duplechin, and Mary Cam Raybon. If you represent someone who has been diagnosed with cancer after taking Belviq, or you or someone you know has been diagnosed with cancer following Belviq ingestion, contact one of the lawyers on our Belviq team at 800-808-2034 or by email [email protected], [email protected] and [email protected]. They can answer the questions you may have about the litigation.
Plaintiffs Receive Adverse Rulings In The Zantac Litigation
The Zantac Personal Injury Multidistrict Litigation (MDL) involves the heartburn medication Zantac and its association with cancer. The defendants in the MDL include the manufacturer of Zantac, retailers, pharmacies, distributors and the generic manufacturer. U.S. District Judge Robin Rosenberg, who presides over this litigation in Florida, recently dismissed the retailer, pharmacy, and generic defendants from this case.
In his ruling, Judge Rosenberg found that the consumers’ claims that the negligence of these companies contributed to the cancer-causing chemical nitrosodimethylamine (NDMA) that forms in Zantac were improbable.
The dismissed defendants include Albertsons Cos. Inc., Walgreen Co., CVS Pharmacy Inc., Costco Wholesale Corp., The Kroger Co. and Amazon.com Inc. and several other companies. The plaintiffs contended that the retailers, pharmacies, and distributors negligently permitted the drug to be heated over the maximum temperature permitted on the label. However, Judge Rosenberg sided with the companies, accepting their contentions that they were the wrong targets for the claims arising from the carcinogen found in Zantac.
Judge Rosenberg also dismissed the plaintiffs’ Racketeer Influenced and Corrupt Organizations (RICO) Act claim against the brand-name and generic manufacturers. The RICO claims were based on false advertising, failure to warn and other claims associated with the alleged discovery of NDMA in the medication.
In the fall of 2019, the U.S. Food and Drug Administration (FDA) issued a warning that trace amounts of NDMA were found in Zantac and similar generic drugs. Subsequently, in the Spring of 2020, the FDA recalled all prescription and over-the-counter generic drugs from the market over concerns that the drugs, when stored at temperatures higher than room temperature, could result in exposure to unacceptable levels of the carcinogen.
Plaintiffs argued that the generic manufacturers could revise their label, related to how the medication was stored and/or transported, without being bound by the brand-name’ label. However, Judge Rosenberg rejected the plaintiffs’ contentions and found that the claims against the generic makers were subject to preemption. The plaintiffs respectfully disagree and plan to appeal the judge’s ruling.
However, despite these recent setbacks, the plaintiffs’ lawyers continue to conduct discovery in the litigation to develop their case against the remaining defendants responsible for this drug.
The consumers are represented by Tracy A. Finken of Anapol Weiss, Robert C. Gilbert of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Michael L. McGlamry of Pope McGlamry PC and Adam Pulaski of Pulaski Kherkher PLLC.
If you have any questions or need more information, contact Navan Ward, a lawyer in our Atlanta office, at 800-898-2034 or by email [email protected].
Robinhood To Pay Record $70 Million FINRA Penalty
The Financial Industry Regulatory Authority (FINRA) hit Robinhood Financial LLC with a record-setting $57 million fine and ordered it to pay $12.6 million in restitution, plus interest, to investors over what the regulators called “systemic supervisory failures” that harmed millions of customers. FINRA’s announcement noted that the fine was the “highest ever levied by FINRA” and “reflects the scope and seriousness of Robinhoods’ violations.”
The penalty resolves a range of allegations against the popular trading app related to its communications with customers, its management of options trading, and service outages the platform experienced last year. Robinhood also received tens of thousands of written customer complaints that it failed to report to FINRA between January 2018 and December 2020. The lengthy settlement order details a number of violations by Robinhood and goes out of its way to blast the company for touting a mission to ” ‘de-mystify finance for all’ and to make investing ‘understandable for newcomers and experts alike,’ ” despite having disseminated a “wide array of false and misleading information to its customers” since September 2016. Jessica Hopper, Executive Vice President and head of FINRA’s enforcement department, said in a statement:
This action sends a clear message — all FINRA member firms, regardless of their size or business model, must comply with the rules that govern the brokerage industry, rules which are designed to protect investors and the integrity of our markets. Compliance with these rules is not optional and cannot be sacrificed for the sake of innovation or a willingness to ‘break things’ and fix them later.
According to FINRA, the company has misled customers about their ability to trade on margin and “disable” margin on their accounts, displayed inaccurate cash balances to certain customers that were sometimes twice as large as they actually were, issued erroneous margin calls and margin call warnings to some customers, and misrepresented the risks associated with certain options transactions.
One such customer was 20-year-old Alex Kearns, who died by suicide after the Robinhood app showed him a $730,000 loss on options trading. FINRA’s announcement noted Kearns was confused by the loss because he had turned margin “off” on his account.
According to a wrongful death lawsuit filed by Kearns’s family, the confusion caused Kearns to panic and reach out to Robinhood, whose customer service failed to explain the distinction and began demanding hefty deposits to cover the balance. The suit claims the company provided Kearns with too much leverage and not enough know-how to understand that the sky-high negative cash balance he had seen was not the same as a normal debt.
FINRA ordered Robinhood to pay $7 million in restitution to thousands of customers based on its misstatements about options trading. Option trading ability requires approval from broker-dealers because, unlike stock trading, options can expose investors to potentially unlimited losses beyond what was originally used to purchase the securities. FINRA alleges that since Robinhood started offering options trading to its customers in December 2017, it relied on “option account approval bots” with only limited oversight by its principals. FINRA said that the lack of oversight led to thousands of Robinhood customers being improperly approved for options trading.
The settlement order further states that Robinhood’s failure to reasonably operate and maintain its core technologies has led to a series of outages and critical system failures between 2018 and 2020 that prevented customers from accessing its basic broker-dealer services. The most serious of these outages occurred in early March 2020 when volatility surrounding the looming COVID-19 pandemic led to the largest single-day point gain in Dow Jones history. These outages “persisted despite two warnings from FINRA that the firm was not reasonably supervising its technology,” according to the order, which notes that Robinhood will be required to pay more than $5 million in restitution to affected customers.
Lawyers at Beasley Allen and several other firms represent investors in a class action lawsuit against Robinhood over these outages. The case is pending in the Northern District of California. Leslie Pescia and James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, are leading the charge on this matter for our clients.
For roughly three years, Robinhood failed to tell FINRA about “tens of thousands of customer complaints” the company had received related to losses incurred due to the outages and misleading information it provided to app users, the regulator said. “Robinhood’s failure to report these complaints to FINRA resulted from a firm-wide policy that exempted certain broad categories of complaints from reporting, even though those categories of complaints fell within the scope of [FINRA’s reporting requirements,]” according to the order.
FINRA had previously fined Robinhood in December 2019 over accusations that the company had failed to provide “best execution” for its customers. The U.S. Securities and Exchange Commission, which oversees FINRA, fined Robinhood $65 million a year later for failing to disclose an order routing arrangement that led to millions in customer losses.
The case is Re: Robinhood Financial LLC (case number 2020066971201) before the Financial Industry Regulatory Authority, and the class action lawsuit our firm is involved in serving in a leadership role regarding Robinhood is In re Robinhood Outage Litigation (Case no. 3:20-cv-01626-JD) in the Northern District of California.
We will keep our readers posted on any new developments in these two Robinhood cases. In the meantime, if you have any questions or need more information, contact Leslie Pescia and James Eubank at 800-898-2034 or by email [email protected] or [email protected].
Goldman Wins Battle At Supreme Court, But Not The War
The recent decision by the U.S. Supreme Court to vacate certification for a class of Goldman Sachs investors is being heralded by the bank and members of the defense bar. Still, its impact on the broader realm of securities litigation will likely be limited, and it keeps an important burden off of plaintiffs in securities class actions. In an 8-1 opinion, penned by Justice Amy Coney Barrett, the Court held that defendants bear the burden to prove alleged misrepresentations did not impact share price, and remanded the decade-old case to the Second Circuit to reassess whether the trial court properly considered the generic nature of Goldman’s alleged misrepresentations.
The original complaint, filed in 2010 in the wake of the global financial crisis, alleges Goldman’s public statements regarding the bank’s legal and ethical compliance standards and how it handles potential conflicts of interests kept the price of Goldman’s stock artificially inflated. Particularly, the plaintiffs point to statements in Goldman’s SEC filings and annual reports, touting their “extensive procedures and controls” to identify conflicts of interest to ensure “Our clients’ interests always come first” and that “Integrity and honesty are at the heart of our business.”
The complaint argues these statements, contained in Goldman’s SEC filings and annual reports, were misrepresentations that caused Goldman stock to retain market value when it would have fallen if the truth were disclosed. This theory of securities fraud is known as “price inflation maintenance.” On April 16, 2010, after it was revealed that Goldman had engaged in conflicted transactions without disclosing the conflicts to clients and was the target of an SEC enforcement action, Goldman’s shares fell 13% on that day.
Plaintiffs sought to certify the class of Goldman shareholders using a presumption of reliance endorsed by the Court in 1988 in Basic v. Levinson (485 U.S. 224). The Basic Presumption is premised on the theory that efficient markets will incorporate all of the company’s public statements, including misrepresentations, to set the price of the security. Investors are presumed to rely on the market price of a company’s stock. When a misrepresentation is made public, and the stock drops, investors can seek recovery for the inflated price paid for the shares, based on the change in market price after disclosure. This presumption of reliance is crucial to the ability to bring any market price inflation securities fraud class action. A defendant can rebut this presumption by showing evidence that the alleged misrepresentations actually had no impact on the stock price.
After Goldman’s motion to dismiss was denied, the bank challenged class certification by claiming that the misstatements relied upon by investors were too generic to have any impact on the price. The trial court determined Goldman failed to prove the lack of price impact and certified the class. After the Second Circuit affirmed, Goldman petitioned the Supreme Court to review whether (a) the generic nature of alleged misstatements are relevant to the price impact inquiry and (b) whether Goldman was properly assigned the burden of persuasion to prove a lack of price impact.
By the time arguments were held, both parties agreed that the generic nature of misrepresentations is often important evidence a trial court should consider at class certification, even though plaintiffs are not required to prove materiality at that stage. The Court agreed, resolving potential conflict between two prior decisions: Haliburton Co. v. Erica P. John Fund, Inc. (holding that the defendant can defeat class certification by disproving price impact) and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds (holding securities fraud plaintiffs are not required to prove materiality during class certification.
The opinion holds that the generic nature of statements can affect price impact, even though it may also be relevant to materiality, which is reserved for the merits stage of the case. Regarding the burden of persuasion, the Court held that placing that burden on the plaintiffs would eviscerate the ability to class securities fraud claims under the Basic Presumption.
Quoting the Halliburton decision, the Court held that “The defendant must ‘in fact’ ‘seve[r] the link’ between a misrepresentation and the price paid by the plaintiff.” Justice Barrett’s opinion further reasoned that the “mere production of some evidence relevant to price impact” is not sufficient to “sever the link” – it must be something more than mere production.
While the opinion gives Goldman a positive result, it essentially maintains the status quo in these types of securities cases and avoids what many thought could have been a nearly insurmountable obstacle if the Court were to have undone parts of the Basic Presumption and its progeny. This is a great result for average public investors who rely on quoted market prices to incorporate all available information relative to a security. All eyes are now on the Second Circuit to see how they will evaluate the impact of Goldman’s arguments on the generic nature of the statements on remand.
The case is Goldman Sachs Group Inc. et al. v. Arkansas Teacher Retirement System et al. (case number 20-222) in the U.S. Supreme Court. If you have any questions or need more information, contact James Eubank at 800-898-2034 or by email [email protected].
Beasley Allen Securities Litigation Team
Our firm has been actively involved in the area of securities litigation for several years. Over the past 18 months, Beasley Allen has greatly expanded this practice area in the Consumer Fraud & Commercial Litigation Section of the firm. Dee Miles heads the Section. James Eubank, Demet Basar and Lydia Reynolds, lawyers in the Section, serve on our litigation team. While the securities litigation has been active, we expect the activity to increase drastically over the next several months.
We encourage our readers to contact one of these lawyers if there are questions or more information is needed on securities litigation. You can reach them by phone at 800-898-2034 or by email [email protected], [email protected], [email protected] and [email protected].
TOXIC TORT LITIGATION
DuPont And Others Reach $50 Million Settlement In Delaware Forever Chemicals Litigation
The Delaware Department of Justice announced on July 13 that DuPont Co., Corteva and the Chemours Co. will collectively pay $50 million to settle their responsibility for past use of toxic substances known colloquially as “forever chemicals” that were released in the state.
Under the settlement agreement, DuPont and Corteva will each pay $12.5 million, while Chemours will pay $25 million. Interestingly, the companies also agreed to pay another $25 million if they resolve similar claims in the next eight years with other states for more than $50 million.
The $50 million settlement will be used to fund the Natural Resources and Sustainability Trust, which Delaware said will go toward restoring the environment, community environmental justice, sampling and analysis, among other natural resource needs.
Delaware Attorney General Kathy Jennings had this to say in the statement about the settlement:
The agreement is the most significant environmental settlement that the State of Delaware has ever secured, and it is being delivered on a timeline that matches the urgency of this moment. The real work still lies ahead, but I am grateful that everyone came to the table to chart a constructive path forward for Delaware.
The settlement addresses prior use by the companies of per- and polyfluoroalkyl substances (PFAS) and perfluorooctanoic acid (PFOA). These substances were used to create nonstick products like Teflon, along with firefighting foam, water-repellent clothing and other household items, according to the state. PFAS and PFOA chemicals are referred to as “forever chemicals” for their longevity in the human body and the environment. They are associated with a range of adverse health impacts, including developmental and reproductive problems, increased risk of cancers in the liver and kidney, and immunological effects.
The companies previously committed $4 billion at the start of the year to cover liabilities for their past use of toxic substances and agreed to pay $83 million to settle multidistrict litigation in Ohio over PFOA.
DuPont de Nemours Inc. became an independent company in June 2019 after spinning off Corteva Inc. — which itself is a descendant of E.I. du Pont. Chemours split off from E. I. du Pont in 2015 and has been pursuing claims that its former parent company underestimated the upper limits of the environmental baggage that went along with creating a spinoff.
Saint-Gobain, 3M, Honeywell To Pay $65 Million Over Tainted Water
A proposed class of hundreds of residents affected by water contaminated by “forever chemicals” has asked a New York federal judge to preliminarily approve a $65 million settlement to resolve claims that Saint-Gobain, 3M and Honeywell were responsible for perfluorooctanoic acid (PFOA) contamination of the town’s drinking water.
Class counsel said in its motion for preliminary approval that Saint-Gobain Performance Plastics Corp., 3M Co. and Honeywell International Inc. will collectively pay 65.25 million to establish a settlement fund for the community of Hoosick Falls, New York. Individual company contributions will remain confidential, according to a statement from 3M. The proposed settlement, however, does not involve the fourth named defendant, E.I. DuPont de Nemours & Co.
The residents previously asked a New York federal court to certify four classes for their allegations against two companies accused of handling PFOA chemicals, Saint-Gobain and Honeywell, and two that manufactured the cancer-linked substance, 3M and DuPont. Plaintiffs in three proposed property damage classes allege that their water was contaminated, differing on the type of water sources and what was done to address the contamination. A fourth class of those with elevated levels of PFOA in their blood is also proposed in a push for medical monitoring.
The facility in question from “at least 1967” to 2003 used a PFOA containing foam that was emitted into the air and groundwater, polluting the area and causing elevating levels of the chemical in residents’ blood. Honeywell used to own that facility, and Saint-Gobain owns it now.
In addition, 3M and DuPont are linked to the manufacturing of the Teflon products that were used and knew about the health risks PFOA posed long before they told the public. The residents say the manufacturers failed to warn them of the harm.
Class counsel outlined in its motion four different settlement classes eligible for relief, which are:
- $20.7 million to be paid to residents belonging to either the “Municipal Water Property Settlement Class” or the “Private Well Water Property Settlement Class.”
- Approximately $7.8 million will be allocated to the “Nuisance Settlement Class.”
- $22.8 million will be paid to the “Medical Monitoring Settlement Class.” Class counsel also intends to request 19% of the settlement, or roughly $12.4 million, to cover attorney fees.
The settlement does not affect the rights of class members to sue for future illnesses caused by PFOA, according to the agreement.
The plaintiffs are collectively represented by James J. Bilsborrow of Seeger Weiss LLP, Robin L. Greenwald of Weitz & Luxenberg PC, Stephen Schwarz and Hadley L. Matarazzo of Faraci Lange LLP and Gerald Williams of William Cedar LLC. The case is Michelle Baker et al. v. Saint-Gobain Performance Plastics Corp. et al. (case number 1:16-cv-00917) in the U.S. District Court for the Northern District of New York.
Plaintiff Awarded $1.7 Million in Third 3M Earplug Trial
The third trial in the 3M Earplug litigation ended with the jury awarding Lloyd Baker, a U.S. Army veteran, a $1.7 million verdict. This is the second seven-figure verdict against 3M in the ongoing MDL Earplug Litigation. The jury found that 3M Co. failed to provide adequate safety warnings for its combat earplugs regarding Baker’s failure to warn claims.
These “bellwether” trials are only a sample of the cases in the massive Earplug Litigation, which encompasses about 240,000 claims. The purpose of these bellwether trials is to help identify the strengths and weaknesses to forecast future outcomes in the litigation, which will assist the decision-making process among the parties.
At least two more earplug bellwether trials are already scheduled in U.S. District Court in Pensacola, Florida, one each in September and October. Overall, the plaintiffs are predominantly current and former military members who developed hearing loss and tinnitus.
The case referred to above 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. The service members and veterans are represented by a team led by Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, Shelley Hutson of Clark Love & Hutson, and Christopher Seeger of Seeger Weiss LLP.
If you need more information on the 3M Litigation or have questions of any kind, contact Will Sutton at 800-898-2034 or email [email protected]. Will handles the 3M litigation for our firm.
The ONGOING Roundup Litigation
A Significant Ruling In The Roundup MDL
The judge presiding over the Roundup multidistrict litigation (MDL) in the Northern District of California denied the request by lead counsel for the plaintiffs that a certain percentage of any consumer’s recovery, including state court plaintiffs, be held back for a common benefit fund. The request was, according to U.S. District Judge Chhabria, too “far-reaching” and “breathtaking.”
The request was sought to collect a portion of state court plaintiffs’ recoveries to contribute to the common benefit fund in the MDL. This is the fund established in the Roundup MDL to compensate lead counsel for their work in litigating the case. Judge Chhabria’s main objection to the request was that the court lacks the power to order holdbacks from these state recoveries. The judge opined that the request itself reflects a larger issue in mass torts litigation, and that is “a pervasive assumption that MDL courts have the power, or should have the power, to solve every problem or imperfection imaginable relating to mass tort litigation.”
While MDLs offer the convenience of consolidation to work through common questions of fact and legal issues, MDLs, like any form of litigation, are limited to their procedural frameworks to work within. Jurisdictional concerns are constant throughout any MDL, but in the Roundup MDL, these issues are more apparent considering a large portion of Roundup cases were filed in Missouri state courts. These state cases in Missouri are on their own track for litigation, separate and apart from any litigation in the Roundup MDL located within the Northern District of California. The tension between the federal MDL cases and the state cases has remained high. The decision by Judge Chhabria is legally sound and should survive the expected appeal.
Beasley Allen’s Toxic Tort lawyers have been working closely with leadership in the MDL and Monsanto to protect their clients’ best interests and to seek a fair and reasonable resolution for their clients. There is a great deal happening in this litigation at present. That will be discussed in detail in the September issue. For more information, contact Rhon Jones by phone at 800-898-2034 or email [email protected],
Class Action Litigation
Supreme Court’s TransUnion Decision Affirms Standing Requirements In FCRA Actions Case
In a recent 5-4 decision in TransUnion v. Ramirez, 594 U.S. ___, slip. op. (2021), the U.S. Supreme Court upheld the standing requirements for plaintiffs alleging violations of the Fair Credit Reporting Act (FCRA) as set forth in the 2015 decision of Spokeo, Inc. v. Robins. Just as Spokeo has generally not been widely applied beyond the context of FCRA claims, it is unlikely that TransUnion will have implications in other, non-FCRA, class actions.
The TransUnion class action arose out of the consumer reporting agency’s use of an add-on product called OFAC Name Screen Alert, which allowed a business to obtain not only an ordinary credit check of a consumer but check to determine whether the consumer’s name appeared on a list of terrorists, drug traffickers, and other serious criminals maintained by U.S. officials. If a consumer’s name matched a name on these lists, TransUnion would place an alert on the credit report.
The TransUnion action was brought on behalf of 8,185 individuals with allegedly inaccurate OFAC alerts in their credit files, alleging that TransUnion violated the FCRA by (a) failing to use reasonable efforts to ensure the accuracy of their files and (b) formatting defects in various mailings sent by TransUnion. Among other things, FCRA provides a private right of action for consumers to sue and recover damages when a credit reporting agency fails to take “reasonable efforts” to ensure the accuracy of their credit report(s).
The Ninth Circuit affirmed the district court’s ruling that all class members had the requisite standing under Article III, and the Ninth Circuit affirmed in relevant part. However, a divided Supreme Court overruled much of that decision. The Supreme Court found that the only class members with standing were the 1,853 individuals whose OFAC-alert credit reports were sent to third parties by TransUnion. The remaining class members – who were flagged as potential terrorists by TransUnion – lacked Article III standing because TransUnion never provided their OFAC-alert reports to a third party, and “[t]he mere presence of an inaccuracy in an internal credit file, if it is not disclosed to a third party, causes no concrete harm.” Transunion, slip op. at 19. Further, none of the class members alleged the requisite “concrete harm” to establish Article III standing to bring an FCRA claim arising out of the formatting defects in TransUnion’s mailings.
While the Supreme Court’s TransUnion decision may be frustrating for plaintiffs seeking redress for FCRA violations, it is not a surprising outcome given the Court’s 2015 Spokeo decision, which held that “courts should assess whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in the American courts” and rejected the proposition that “a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants that person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 578 U.S. at 341. Spokeo, like TransUnion, was an FCRA action in which the Court ultimately found that a “bare procedural violation” is insufficient to convey Article III standing to the plaintiffs.
Moreover, it is unlikely that TransUnion will be applied to class actions outside of the FCRA context, as efforts to apply Spokeo to other claims have generally proved unsuccessful. This is logical, given that a plaintiff in a consumer class action is generally alleging a concrete monetary harm (commonly, the purchase price of the product or the price difference between the product as advertised and the product actually received). See, e,g., In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Pracs., & Prods. Liab. Litig., 295 F. Supp. 3d 927, 946-47 (N.D. Cal. 2018) (refusing to apply Spokeo to consumer protection claims insofar as such claims are based upon the plaintiffs’ allegation that they “paid money for the Class Vehicles that they would not have otherwise spent but for Defendants’ misrepresentations and concealment of material facts”).
Thus, while TransUnion plainly affirms Spokeo’s “concrete harm” requirement, it adds no additional requirement, nor does it apply Spokeo’s ruling beyond the context of FCRA actions.
Our firm is privileged to have been recognized as being a national leader in class action litigation. Issues like these are monitored closely by the lawyers in our Consumer Fraud & Commercial Litigation Section to continue to lead the class action litigation in this country in the right direction for consumers and the protection of their rights. We will continue to update our readers on any new class action developments in the future. If you have any questions or need more information on the ramifications of the TransUnion case, contact Lydia Reynolds at 800-989-2034 or email [email protected].
Recent Settlements In Class Action Litigation
There have been lots of activity in class action litigation nationwide over the past several weeks. We will mention several significant cases below.
Pfizer And EpiPen Consumers Reach $345 Million Settlement
Pfizer has reached a $345 million settlement with a class of consumers who allege they overpaid for EpiPens because of anti-competitive practices by pharmaceutical companies, potentially clearing the company from having to face a jury trial scheduled for early next year. The representative for the class of Alabama residents is represented by Beasley Allen lawyers in our firm’s Consumer Fraud & Commercial Litigation Section.
The settlement was submitted last month and is pending approval by a Kansas federal judge. If approved, Pfizer would pay out the multimillion-dollar settlement to the class members while denying any liability for the claims. The motion describes the settlement proposal as an opportunity for buyers who filed the suit in 2017 to get financial relief in a timely manner. The motion said:
Thus, the $345 million immediate recovery, particularly when viewed in the context of the risks, costs, delay, and the uncertainties of further proceedings, weighs in favor of preliminary approval of the settlement.
The class action accused pharmaceutical companies, including Pfizer and EpiPen seller Mylan, of racketeering and state antitrust violations. Mylan, which is still set to face trial in January of 2022, was able to get the racketeering claims dismissed in June. The ruling by U.S. District Judge Daniel D. Crabtree cut claims against Mylan under the Racketeer Influenced and Corrupt Organizations Act over its marketing and sales tactics for the EpiPen, as well as claims for conspiracy and monopolization under various state antitrust laws based on allegations that Mylan used exclusive rebates to undermine competition.
Mylan must still face a jury over whether a pair of settlements ending patent litigation constituted an illegal reverse payment that violated state antitrust laws.
The multidistrict litigation came about after the price of an EpiPen climbed up to $600 in 2016 from the $100 it had been less than a decade earlier. The buyers claim that Mylan, which was selling EpiPens made by Pfizer, conspired to maintain the emergency treatment’s monopoly through large rebates issued to insurers and Medicaid plans that refused to cover a competing medication. The two companies are also accused of employing reverse-payment patent settlements and other tactics to thwart the emergence of generic competitors.
James Eubank from our firm has been involved in the litigation, representing an Alabama resident with serious allergies whose doctor prescribed EpiPens for him in case of anaphylaxis.
The Pfizer settlement proposes a timeline in which a hearing on the final approval of the settlement is held in October. If approved, the settlement funds would be divided into two pools, one for individual consumers and one for third-party payors.
The case is In re: EpiPen Marketing, Sales Practices and Antitrust Litigation (case number 2:17-md-02785) in the U.S. District Court for the District of Kansas. We will keep our readers posted on any new developments that occur in this case. In the meantime, if you have any questions, contact James Eubank at 800-898-2034 or email [email protected].
CalPERS Settles Rate Hike Suit With Agreement Worth Up To $2.7 Billion
The California Public Employees’ Retirement System has agreed to provide up to $2.7 billion to settle policyholders’ class claims over large premium increases in February 2013, according to a joint announcement on July 13.
The policyholders filed suit in August 2013, accusing CalPERS of breaching its contracts with thousands of long-term care insurance policyholders by deliberately misleading them over the strength of its investment program. The retirement system increased its rates by 85% for many of the long-term care policies, according to the release. The proposed settlement is worth up to $2.7 billion in premium refunds and other benefits, according to the parties. Each settlement class member’s recovery will be based on whether they used their policy benefits and how they responded to the premium increases, according to the announcement.
CalPERS will pay up to $2.4 billion to refund all premiums paid by class members, as well as another $282.5 million in a contingency and fee fund, for a total of nearly $2.7 billion, according to the motion for preliminary approval filed on July 12. The contingency fund will be used for settlement administration expenses, attorney fees, litigation costs and service awards to named plaintiffs Holly Wedding, Richard M. Lodyga and Eileen Lodyga, the motion states.
If approved by the court, the settlement will affect nearly 80,000 California residents who bought long-term care insurance that included automatic inflation-protection coverage. Class members contend their premiums were raised after they were told that rates would be fixed and wouldn’t rise based on their age or health, according to the announcement. CalPERS disagrees with those claims.
The plaintiffs are represented by Michael J. Bidart and Steven M. Schuetze of Shernoff Bidart Echeverria LLP, Gretchen M. Nelson and Gabriel S. Barenfeld of Nelson & Fraenkel LLP, Gregory L. Bentley, Matthew W. Clark and Clare H. Lucich of Bentley & More LLP, and Stuart C. Talley of Kershaw Cook & Talley PC.
The lead case is Holly Wedding et al. v. California Public Employees’ Retirement System (case number BC517444) in the Superior Court of California, County of Los Angeles. The coordinated case is CalPERS LTC Cases (case number JCCP4936) in the Superior Court of California, County of Los Angeles.
Evoqua To Pay $16.7 Million To Settle Investors’ Suit Over $500 Million IPO
A New York federal judge has granted preliminary approval for a $16.7 million settlement to resolve claims from Evoqua investors that they were misled by the water treatment company and its private equity backer in the run-up to the company’s $500 million initial public offering (IPO).
U.S. District Judge John P. Cronan signed off on a proposed order from the plaintiffs, City of Omaha Police and Fire Retirement System and Louisiana Sheriffs’ Pension & Relief Fund. The plaintiffs allege that Evoqua Water Technologies Corp. failed to disclose some key information about the state of the business.
Evoqua went public with a limited IPO of $500 million in 2017, and funds affiliated with private equity firm AEA Investors further reduced their holdings in a secondary offering in 2018. The AEA funds, the offerings’ underwriters and a number of Evoqua executives are named in the suit.
The plaintiffs had contended that Evoqua failed to mention the extent to which the company was pushing out experienced employees and replacing them with cheaper, less-seasoned workers. Evoqua did reveal that it launched a voluntary retirement initiative for some of its workers, but confidential witnesses brought forward by the pension funds testified that many sales employees who stayed were later forced out by unrealistic sales quotas that reduced their commission payments.
Last year, U.S. District Judge Alison J. Nathan gave the investors approval to pursue some of its claims, but she rejected others. The pension funds, which are leading a proposed class of investors, reasonably argued that some of Evoqua’s pre-IPO disclosures were misleading, the approval order said.
Additionally, Judge Nathan said that investors sufficiently accused Evoqua of not revealing that it also fired employees who helped the company integrate new businesses following acquisitions. As a “serial acquirer,” that information could have been useful for investors to know, the order said. Defendants did not even disclose which employees — those in sales and integration management — were impacted by the [voluntary separation program.
Evoqua and its executives could have already known by the time of the IPO that this policy would damage future sales, the order of appeal said. But the statements in its prospectus acted as if this was merely a hypothetical situation, according to the decision. “Warning of risks that could occur at some future date does not warn investors that those risks have already come to pass,” Judge Nathan said. The investors then sought class certification, but that bid was rejected as moot following the announcement of the settlement. Judge Cronan’s order grants the class certification for the purposes of the preliminarily approved settlement.
City of Omaha Police and Fire Retirement System and Louisiana Sheriffs’ Pension & Relief Fund are represented by Hannah Ross, Jeremy P. Robinson and Jai Chandrasekhar of Bernstein Litowitz Berger & Grossmann LLP and William C. Fredericks, Donald A. Broggi and Randy Moonan of Scott + Scott Attorneys At Law LLP. Louisiana Sheriffs’ Pension & Relief Fund is also represented by Robert D. Klausner and Stuart A. Kaufman of Klausner Kaufman Jensen & Levinson PA.
The case is City of Omaha Police and Fire Retirement System et al. v. Evoqua Water Technologies Corp. et al. (case number 1:18-cv-10320) in the U.S. District Court for the Southern District of New York.
Chancery Court Approved $27.5 Million Fresh Market Sale Class Settlement
A Delaware Chancery Court Vice Chancellor has approved a $27.5 million settlement to resolve a stockholder suit. The suit arose out of the $1.4 billion take-private sale of specialty grocery chain Fresh Market in 2016.
Vice Chancellor Sam Glasscock III, who approved the settlement, said that the case helped to clarify Delaware’s evolving standards for judging corporate deals.
The class attorneys had said the case blazed a trail for merger challenges following the Delaware Supreme Court’s 2015 decision in Corwin et al. v. KKR Financial Holdings LLC. That case granted court deference to business judgment for deals approved by a majority of disinterested directors and a majority of unaffiliated minority stockholders.
Vice Chancellor Glasscock dismissed the case in 2018, finding that there was a fully informed approval vote by common stockholders. Delaware’s Supreme Court sent the case back in July 2018, finding material omissions of information that undercut company claims that the deal was “cleansed” under Corwin.
Vice Chancellor Glasscock noted:
This has been, for the state at which it now exists, extraordinarily heavy litigation, hard-fought litigation. It really did create some historical clarification of our law.
In the suit, Ray Berry, Fresh Market’s former CEO and chairman was accused of acting disloyally in concealing or lying about his private communications on terms of the gourmet grocer’s sale to private equity firm Apollo Global Management LLC as well as an agreement on the 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 remaining outside director members of Fresh Market’s entire board, Apollo and Cravath Swaine & Moore LLP were eventually dismissed from the case. A Cravath lead partner represented the Fresh Market in the Apollo acquisition. 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.
Class attorney use of document inspection rights under Section 220 of Delaware’s general corporation law was said to be innovative at the time for post-closing damage claims and investigations of disclosure deficiencies. Although the company and class settled the 220 action with limited document handovers, the effort helped to ground the case that followed.
The investors are represented by Joel Friedlander, Jeffrey M. Gorris and Christopher M. Foulds of Friedlander & Gorris PA and Randall J. Baron and Christopher H. Lyons of Robbins Geller Rudman & Dowd LLP.
The case is Morrison et al. v. Berry et al. (case number 12808) in the Court of Chancery of the State of Delaware.
PHARMACY BENEFITS MANAGER (PBM) LITIGATION
Drug Channels Institute’s Report On The Land Of The PBM Giants
Much of the country today has expressed concerns about the anti-competitive practices of Pharmacy Benefit Managers (PBMs) and the consolidation, both vertically and horizontally, of the PBM market. As a result of acquisitions and consolidations in healthcare today, the three biggest PBMs— CVS Health, Express Scripts, and OptumRx— account for more than three-quarters of total equivalent prescription claims. Such a high level of consolidation arguably can suffocate fair negotiations, increase drug prices, and possibly threaten access to certain drugs.
Industry experts at Drug Channels Institute (DCI) provide reports that offer insight into the complex U.S. pharmacy distribution and reimbursement system, and they have provided concerning data about our country’s top PBMs. According to DCI’s 2021 Economic Report on U.S. Pharmacies and Pharmacy Benefit Managers, the three biggest PBMs in 2020 processed about 77% of all prescription claims in the U.S. The top six PBMs processed more than 95% of all prescription claims.
The DCI data shows that there are significant business relationships among the largest PBMs that have further concentrated market share. This concentration allows plan sponsors and payers to maximize their negotiating leverage by combining their prescription volumes within a small number of PBMs, which many argue hurts independent pharmacies, consumers, and even state purchasers who must pay higher prices and receive lower reimbursements for the same prescription drugs.
DCI further reports that five of the six largest PBMs are part of large vertically integrated organizations that combine insurers, PBMs, specialty pharmacies, and healthcare providers. This is especially true for CVS Health (including Caremark and Aetna), the Express Scripts business of Cigna, and the OptumRx business of UnitedHealth Group. This has changed the scope and scale of companies in the healthcare distribution chain, and these vertical integration moves further concentrate the healthcare market.
Drug prices are and will be an ever-growing component of the healthcare industry. Therefore, our country should expect to see more health plans attempt to control their drug costs and more closely align with and even purchase PBM companies. The Prescription Pricing for the People Act of 2021, if passed, would require the Federal Trade Commission (FTC) to review the role of PBMs and study their mergers with a focus on how the business deals may be affecting patients and small independent pharmacies.
While legislation is certainly one way to regulate PBMs to mitigate the severe lack of competition in the PBM market and increased drug spending, plaintiffs across the country, including pharmacists and state attorneys general, are pursuing investigations and lawsuits against PBMs to combat their unlawful practices and recoup any overspending.
Over the years, Beasley Allen lawyers have represented eleven states in various complex healthcare litigation and are currently investigating PBM claims on behalf of private and governmental plans. 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 email [email protected], [email protected], or [email protected].
Source: Drug Channels Expert Insights on Pharmaceutical Economics and the Drug Distribution System
Lydia Reynolds and Stephanie Monplaisir Discuss SCOTUS And Personal Jurisdiction In Law360 Expert Analysis Column
Beasley Allen lawyers Lydia Reynolds and Stephanie Monplaisir were recently featured in Law360 Expert Analysis Column. They submitted their articles about two U.S. Supreme Court opinions involving personal jurisdiction in response to a commentary published in an earlier issue of the magazine. Lydia and Stephanie explained that despite the interpretation by commentators’ and defense lawyers’ of the U.S. Supreme Court’s Bristol-Meyers Squib v. Superior Court of California opinion in 2017, the basic principles of personal jurisdiction remain intact. Further, the Court’s ruling in Ford Motor Co. v. Montana Eighth Judicial District Court, issued earlier this year, affirms “decades-old principles” of personal jurisdiction.
Our lawyers explained that the Bristo-Meyer Squib decision applies only to mass actions, not class actions, as expressly indicated in the 2017 decision. They also point out that since the decision, ‘[t]he overwhelming majority of district courts and every circuit court that have considered the issue have rightly declined to expand the scope of Bristol Meyers to the class action context, noting that doing so would expressly contradict established Supreme Court jurisprudence as well as Congress’ constitutional authority to shape the jurisdiction of the federal courts.”
Lydia and Stephanie further explain that “if the court wished to substantially curtail personal jurisdiction in Bristol-Meyers Squib, Ford would have provided the perfect opportunity to do so.” However, the Court in Ford “ultimately reiterated the principle, dating back to 1945 Supreme Court ruling in International Shoe Co. v. State of Washington that a defendant may be haled into court anywhere it purposefully avails itself of doing business so long as the claims at issue arise out of or relate to the defendant’s conduct in the forum.” Lydia and Stephanie show that the Ford Court “sent a clear message to large corporate defendants that sell or market their products throughout the U.S. These defendants can expect to be rightfully brought to court and held accountable for damages their product inflicted on a consumer plaintiff.
Lydia is a lawyer in the firm’s Consumer Fraud Section and has substantial experience litigating complex class actions in various practice areas, including consumer fraud and securities litigation. Her practice is focused on representing consumers seeking redress for violation of state and federal consumer protection statutes.
Stephanie is a lawyer in our Personal Injury and Products Liability Section, handling complex litigation and appellate proceedings. She has helped secure more than $180 million in verdicts and settlements and serves as the firm’s resident personal jurisdiction expert.
Read the full commentary by Lydia and Stephanie at https://www.law360.com/articles/1395274.
THE CONSUMER CORNER
Consumer Reports Says Product Safety Warning System Is Broken
When it comes to removing dangerous products from the marketplace, most of us assume that government regulators can move quickly to protect consumers. But based on a new Consumer Reports investigation, it appears that is not always the way. Consumer Reports found a broken system within the Consumer Product Safety Commission (CPSC), leaving unsuspecting consumers vulnerable to injuries or even death from dangerous products.
Under a law known as Section 37, companies are required to notify the CPSC when a certain number of lawsuits alleging serious injury or death are settled or have a ruling for the plaintiff within a certain period of time. But Consumer Reports’ investigation found that, in reality, the CPSC rarely learns of these lawsuits.
Shortcomings in the law leave consumers exposed to potentially dangerous products. The consuming public should be aware of these lawsuits, and safety officials should investigate and take action as needed. That requires them having notice and the resulting knowledge of the lawsuit involving defective and dangerous products.
Consumer Reports says that the CPSC declined to comment on specific questions submitted to them. But it’s important to know that the law, as originally proposed before it was enacted in 1990, called for companies to alert the agency about a product when a single lawsuit had been filed alleging significant injury or death. However, that’s not what ultimately passed.
Under Section 37, instead of potential issues being reported to the CPSC when a lawsuit is filed, it’s now required to be reported after three lawsuits have been settled or found in favor of the plaintiff within a specific two-year period. Lawsuits like these often take longer than two years. So the Consumer Reports found it to be rare that the CPSC finds out about these lawsuits at all.
In fact, Consumer Reports says that over the last 25 years, only two companies have been cited for failing to report lawsuits to the CPSC. Manufacturers are said to believe the law is fine as it currently stands. But the failures of Section 37 have consumer advocates calling for changes.
Based on what we have learned over the years in litigation, all of us at Beasley Allen agree with Consumer Reports’ assessment. Every lawsuit alleging injury or death should be reported to the CPSC when it’s filed. The agency should have all of the information it needs to keep potentially dangerous products out of people’s homes.
Even with the problems of Section 37, you should still regularly check to see if products you own have been recalled by the CPSC by going to SaferProducts.gov. You can also report problems with products on that site as well. I also encourage you to let Consumer Reports know how you feel about its report and work for consumers. You can go to consumerreports.com for contact information.
Source: Consumer Reports
Georgia’s Protection Against Human Trafficking
Human trafficking has become a major problem in this country. In addition to aggressive prosecutions taking place under existing law, there is an urgent need for additional legislative action at the federal and state levels to combat this cancer in society. On April 27, 2021, Senate Bill 33 (SB 33) was unanimously passed by the Georgia legislature and signed by Governor Brian Kemp, furthering his commitment to put punishing sex traffickers at the center of his agenda. SB 33 provides a cause of action against perpetrators of human trafficking, allowing victims to file a claim for a civil case up to ten years after the cause of action or after the victim reaches 18. The bill, now effective as of July 1, will amend Georgia’s Official Code and allow for legal action against certain human trafficking perpetrators to be commenced by the state’s attorney general on behalf of the State of Georgia.
This new bill expands previous definitions of “perpetrator” and “violation.” Under SB 33, a person or entity will be considered a perpetrator if they “knowingly benefit, financially or by receiving anything of value” from participating in any scheme such person or entity knew or should have known violated Georgia’s Code Section 16-5-46. There are two main ways to commit a violation: (1) trafficking a person for labor servitude or (2) trafficking a person for sexual servitude. The second violation is committed not only by a person who subjects or maintains an individual in sexual servitude, but also by a person or entity who knowingly “recruits, entices, harbors, transports, provides, solicits, patronizes, or obtains by any means an individual for the purpose of sexual servitude” or “benefits financially or by receiving anything of value from the sexual servitude of another.”
SB 33 has some mirroring provisions to United States Code §§ 1591 and 1595(a). These provisions allow a civil claim to proceed against an entity such as a hotel for knowingly benefitting from human trafficking, though they did not participate in the trafficking act itself. These cases extend to hotel owners, operators, and franchisees of properties where human trafficking occurred. The court may find that these owners/operators knowingly benefitted from human trafficking because they receive payments for the rooms rented by the traffickers and food and beverage sales or ATM fees.
In looking at United States Code §§ 1591 and 1595(a), one Florida court found that the owners knew or should have known about the trafficking based on staff observation of behavior and screams, refusal of housekeeping services, excessive requests for towels/linens, cash payments for rooms for extended periods of time, multiple used condoms located in the rooms, and the repeated entrance and exit of multiple men without luggage in and out of the rooms.
According to the Urban Institute’s 2014 report on trafficking, as of 2007, the sex trafficking industry was worth an estimated $290 million in Atlanta alone. Another report from the Center for Public Policy Studies highlighted the severity of the issue in Georgia in its findings that an estimated 374 underage girls are sold for sex trafficking each month in the state, with 65% occurring in Atlanta. SB 33 and companion bills improve the legal status of victims and are intended to shake the “Sex Trafficking Capital of the U.S.” title given to Georgia’s capital city.
If the analysis under the federal law is used by judges hearing cases under SB 33, the resulting opinions should be the same, and hotels and other entities benefitting financially from sex trafficking can finally be held liable for their willful blindness to its occurrence. In the past few years, Georgia has seen a string of lawsuits against hotels in Atlanta that benefitted from sex trafficking financially instead of reporting the illegal activity. Now that SB 33 has gone into effect, the trend will likely increase, reflecting the governor and the attorney general’s commitment to punishing traffickers and all benefitting entities that turn a blind eye.
Lawyers in our firm are investigating these claims, and we will likely put this statute to good use to protect victims from further abuse. If you have any questions regarding this important issue, contact the following lawyers in our Consumer Fraud & Commercial Litigation Section of the firm: Dee Miles, Ali Hawthorne and Courtney Horton. They can be reached at 800-898-2034 or email [email protected], [email protected] or [email protected].
Apotex Pays Texas $26 Million To End Medicaid Fraud Probe
Pharmaceutical manufacturer Apotex Corp. has agreed in an out-of-court settlement to pay the state of Texas $26 million to resolve claims that it reported inflated drug prices to Texas’ Medicaid program for more than three decades. The settlement was announced by Texas Attorney General Ken Paxton on July 16.
Texas contends that dating back to Jan. 1, 1991, Apotex falsely reported inflated drug prices to the Texas Medicaid program, thereby increasing the company’s reimbursement from the state, in violation of the Texas Medicaid Fraud Prevention Act. Apotex denies the claim.
Among the dozens of drugs that Texas claimed Apotex misreported the price of were the powerful opioid fentanyl, nicotine patches used for smoking cessation, and the common pain reliever acetaminophen. The settlement agreement required Apotex to pay the $26 million by July 13. The settlement includes $23.4 million in restitution to the state and $2.6 million for the state’s attorney fees and costs.
Under the settlement, Texas has agreed to end the civil investigation into Apotex’s alleged Medicaid fraud, which it initiated back in 2015. Attorney General Ken Paxton said in a statement:
thanks to our Civil Medicaid Fraud Division’s commitment to Texas taxpayers, identifying and preventing Medicaid fraud continues to be a top priority in my office. We will not allow pharmaceutical companies to take advantage of vulnerable Texans, and we will continue to be vigilant in cracking down on any abuse of this important program.
The Texas Attorney General’s Office said the Apotex settlement is its latest recovery in price reporting cases brought under the Texas Medicaid Fraud Prevention Act, bringing the total recovery amount for Texas taxpayers since 1999 to over $2.3 billion. Apotex, a Canadian company with a U.S. office in Florida, has also been the focus of a separate, high-profile pricing investigation in recent years.
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
A New Look At Case Activity At Beasley Allen
Our BeasleyAllen.com website provides all the latest information on all the current case activity at Beasley Allen. The list can be found on our homepage, top navigation, or our Practices page of the website (BeasleyAllen.com/Practices/). The following are the current case activity listings for the Beasley Allen sections.
- Business Litigation
- Class Actions
- Consumer Protection
- Employment Law
- Medical Devices
- Personal Injury
- Product Liability
- Retirement Plans
- Toxic Exposure
The cases in the categories listed below are handled by lawyers in the appropriate section at Beasley Allen. The list can be found on our homepage, top navigation, or our Cases page of the website (BeasleyAllen.com/recent-cases/).
- Auto Products
- Aviation Accidents
- Benzene in Sunscreen
- Defective Tires
- Talcum Powder
- Trucking Accidents
Resources to Help Your Law Practice
All of us at Beasley Allen are honored to have long been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. All of us at the firm are both honored and humbled to have received that recognition. Our firm 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 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.
Beasley Allen 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.
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.
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 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 Mike Andrews, a lawyer in our firm’s Personal Injury and Product Liability Section, gives us some tips on keeping an open mind and evaluating all possible claims in a new potential product liability case. Mike draws on over 20 years of experience evaluating and working up product liability cases of all sorts. He offers the following advice on handling these cases. So let’s see what Mike has for us.
Keep an open mind when evaluating potential product cases and always ask WHY
Complex product liability litigation can be tricky, and frequently the first task involves figuring out the defect that is actually responsible for your client’s death or injuries. There are literally many moving parts to consider. Sometimes the client has a theory, sometimes bystanders or eyewitnesses offer theories, and although they can all be well-intentioned, sometimes those theories can create lawyer tunnel-vision and can cause us to focus too narrowly and miss a larger picture. Whether the product is an automobile, heavy truck, airplane, construction equipment or consumer goods, a careful inspection and thorough review are necessary to consider what the evidence is telling you. Lawyers should always ask “why” an accident happened in the way that it did and “why” a product failed in the manner that it did.
Loading marks, burn patterns, fractures and witness marks all tell the story of how an incident unfolded and what the directions of stress and failure were during the event. Marks (or the absence of marks) on a human body can also help reveal loading, seatbelt use or fractures. The bottom line is that the practitioner must be careful to consider all the evidence – regardless of how seemingly insignificant at first – to fully understand what happened and why. After the accident sequence is properly understood, only then can you narrow the focus to the potential product failures and on to “why” the failure occurred.
As examples, consider the following cases I handled several years ago. In the first, an experienced tree-cutter was severely injured when a harness and fall-arrestor failed and allowed him to fall over 60 feet to the ground. Lucky to be alive, he suffered multiple pelvic, vertebral and leg bone fractures. When the case came into my office, the client and referring lawyer both pointed to the broken fall-arrestor lanyard as the defect. In truth, the lanyard was indeed broken – during the accident, one end remained firmly attached to the client and one end firmly attached to the attachment point on his bucket truck, and the lanyard was clearly frayed and broken in the middle. Was the failure due to inferior lanyard design or construction? Poor material choice? Product misuse and abuse? Focusing solely on the lanyard, what experts would I need for testing?
However, closer inspection of the entire unit revealed the “why” of the failure. When the housing for the retractable reel was placed under a load, poor design and assembly allowed a sharp self-tapping machine screw to separate from the housing and cut the lanyard. The cut lanyard was not the defect but rather was evidence of the defect. As a result, we were able to focus the case on the design and assembly of the housing. That allowed us to compare to multiple alternative designs, some of which were used in our defendant’s other products. At mediation, we presented multiple fall arrestors with multiple alternative designs and negotiated a great result for our client.
In the second example, a case came into my office involving the tragic paralysis of a very young girl. She had been seated in the rear seat of her family’s car when they were hit by another vehicle crossing an intersection. After the vehicles spun around following the crash, and although she was properly wearing her seatbelt, she was instantly paralyzed from the mid-chest down and would never walk again. The case came in with the recommendation that the defect was in the seatbelt. Surely if the seatbelt had functioned properly, it would have prevented such devastating injuries – and truthfully, we have handled many such seatbelt defect cases before. What seatbelt experts would be necessary, and how would I explain the loading forces necessary to break her spine even though she weighed so little and was on the opposite side of the crash?
When I inspected the car in a salvage yard, I sat in her seated position to try to envision the forces she would have experienced during the crash. As I sat in the seat, I could feel the seatback move slightly, and on closer inspection, I could tell that the seatback was actually broken. At this point, I began to ask “why.” Although some vehicle manufacturers use a bulkhead or divider to separate the cargo portion of the trunk from the passenger compartment, the manufacturer, in this case, did not. The back of her seat was actually the only divider between the two compartments and amazingly was constructed entirely – 100% – of plastic. Her seatback lacked any reinforcing metal, not even any springs, just fabric and cloth and padding and plastic.
What became obvious was that, during the crash, objects in the trunk moved forward into the rear of her seatback. Because it was plastic, the back broke and failed to protect her. Unstopped by the plastic seat, the trunk objects continued to move forward against her body and broke her spine as she was forced against and over the seatbelt. The seatbelt held her and contributed to her paralysis, but the plastic seatback was the defect. We developed an extremely compelling case on her behalf and again provided multiple alternative designs that would have prevented her injuries.
The bottom line in complex product liability litigation is that the practitioner must fully understand how and why an injury or death occurred and then how and why a product failure contributed to the injuries. Tunnel-vision is very real, but the old adage of “can’t see the forest for the trees” can sometimes be backward in product cases – effective product defect attorneys have to see the forest but also be able to focus on the correct tree at the right time.
If you have any questions, you can contact Mike at 800-898-2034 or email [email protected].
A large number of safety-related recalls were issued during July. Significant recalls are available on our website, beasleyallen.com/recalls/. We currently try to put the latest and most important product recalls on our site throughout the month. 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 recalls. We would also like to know if we have missed any significant recalls over the past several weeks.
BEASLEY ALLEN EMPLOYEE SPOTLIGHTS
Kelli Alfreds is a lawyer in Beasley Allen’s Mass Torts Section. During her time at the law firm, Kelli has handled document review and trial preparation for numerous defective drug and defective medical device cases. She began her career at Beasley Allen in April 2002 as a staff assistant and worked as a law clerk until graduating from Faulkner University Thomas Goode Jones School of Law in December of 2002. Kelli became a Mass Torts staff attorney after passing the Alabama Bar Exam in 2003. She earned her undergraduate degree in political science with minors in English and criminal justice from Troy University in 1999.
Kelli said she first developed an interest in law because of her love of history and politics. She received encouragement to enter the legal field from her college advisor and criminal justice professor, Ed Stevens.
While working in Beasley Allen’s Mass Torts Section, Kelli has been involved in preparing defective drug and device cases in state and federal courts across the United States. These very important cases included Baycol, Hormone Therapy, Vioxx, Fosamax, Yaz, Gardasil, Transvaginal Mesh and Talcum Powder.
Kelli says, “I truly love knowing that every task we undertake at Beasley Allen has as its purpose, helping someone that needs us. We fight giants every day, and we do it for our clients.”
Kelli is a member of the Alabama State Bar and the Montgomery County Bar Association. She is originally from Selma, Alabama, and now makes her home in Montgomery with her husband, Matt. He is also a lawyer with a practice primarily in personal injury and criminal law. Kelli and Matt have one son, Sebastian, and twin daughters, Rollie and Sloane. The Alfreds attend Church of the Highlands.
Kelli says that Beasley Allen is a firm “with a genuine desire to treat people as Jesus would, a culture not found in many workplaces.” She says further, “I am so very fortunate to have been a part of a caring group of employers and staff for almost twenty years.”
We are blessed to have Kelli with us. She does excellent work and is totally dedicated to helping folks utilizing the judicial system and specifically her clients.
Brittany Gresham, a Medical Claims Analyst in the Mass Torts Section of the firm, has been with the firm for over two years. Brittany reviews medical records to ascertain if a client has an injury-related lawsuit. That determination is critically important to the client and the firm.
Brittany has two brothers, two nieces, one nephew, and a 13-year-old Shih Tzu poodle mix named Roscoe. In her spare time, Brittany enjoys traveling. Her favorite places to travel to are Las Vegas and California to visit her family. Brittany hopes to travel to Africa and Dubai soon. She also enjoys reading personal growth books, and her most recent reads are How to Do the Work by Dr. Nicole Lepera and Conversations with God by Neale Donald Walsh. Brittany also enjoys kickboxing and yoga.
Brittany says her favorite thing about working at Beasley Allen is receiving the Thursday firm devotions from Mr. Beasley and other attorneys in the firm.
Brittany has an important job, and she does it extremely well. We are fortunate to have her at Beasley Allen.
Judah Helms has been with the firm since January 2020 and is an IT Specialist I in our Information Technology Section. He assists staff in the litigation sections with technical issues, deploys new software, and administers Microsoft products like SharePoint and Teams. Judah also handles the firm’s in-house e-discovery databases for document review and production.
Judah and his wife Samantha just celebrated their 10th wedding anniversary. Samantha is a nurse at Baptist East. They have one daughter (Emma, 5) who is starting kindergarten this fall. Emma loves to read, and they have already made it halfway through the Harry Potter series. Judah and Samantha have another daughter on the way. She is due September 9.
In his spare time, Judah likes to read, especially memoirs. He also enjoys exploring, which may come by traveling, reading, or even playing a video game. Judah loves playing sports much more than watching them, and he is always trying to learn more about space.
When asked what his favorite thing is about working at Beasley Allen, Judah says, “certainly the people. I have an A+ boss who has made me feel at home and cultivated my career growth. My co-workers are friendly and helpful.”
Judah also has an important job in the firm, and he too does that job extremely well. We are fortunate to have him with us.
Julia Merritt is a lawyer in the firm’s Toxic Torts Section. She is heavily involved in the handling of the Paraquat Litigation. In July 2021, Julia was appointed by Southern District of Illinois Judge Nancy J. Rosenstengel to serve on the Plaintiffs’ Executive Committee for In Re: Paraquat Products Liability Litigation, the national multidistrict litigation (MDL) involving the herbicide paraquat. Paraquat is defective and unreasonably dangerous, and exposure to Paraquat causes neurological damage associated with Parkinson’s Disease. With a parent who has Parkinson’s Disease, Julia has a unique perspective on the effects of this devastating neurological disease.
Before joining Beasley Allen, Julia was lead counsel in plaintiff litigation, including wrongful death and complex products liability cases. Julia also handled talc injury cases filed under the Asbestos Act throughout the State of Georgia.
Julia graduated from Georgia State University College of Law after earning a B.A. from Northwestern University in English and writing. While at Northwestern, she was selected as one of 14 students to participate in the Honors Writing Program, and she was chosen for independent study.
Julia says she was drawn to the profession because she wants to help people. Now, she says that her favorite part of practicing law is the “lifelong relationships I build with clients, attorneys and staff.” She is an AV Preeminent Rated attorney, which is the highest possible rating in both legal ability and ethical standards. Julia is a member of the Georgia State Bar, Georgia Trial Lawyers Association and Attorneys Information Exchange Group (AIEG).
Julia has two beautiful daughters, ages 8 and 9 and a cat named Sydney. Away from the office, Julia enjoys tennis, travel and cooking. She is an avid New York Times Crossword Puzzle fan. Julia is a member of the Alpharetta United Methodist Church.
When asked what she believes sets Beasley Allen apart from other firms, Julia said, “I have always admired Beasley Allen’s firm culture and strong adherence to ethics.”
We are blessed to have Julia join our firm. She is a talented lawyer who brings tremendous experience in litigation to the firm and is a tremendous addition to Beasley Allen.
Amy Ross is a paralegal in our Consumer Fraud & Commercial Litigation Section. She has been with the firm since January 2020 and works directly with section lawyers Larry Golston, Leon Hampton, and Lauren Miles. They are focusing on qui tam (whistleblower), wrongful termination, and employment discrimination cases.
Amy is married to Caleb Ross, and they have two children; Rebecca Claire is 6, and Jack is 4. Caleb is a first-year football coach at Troy University after spending many years as a successful high school football coach. Amy says that has been a big part of their lives and has moved them around to many places but lead them back home almost three years ago. She says football season keeps their family very busy outside of kid’s activities. Amy’s family attends Prattville First United Methodist Church, where she is a Sunday school teacher.
Amy says her favorite thing about working at Beasley Allen is, “I love the people I work with and the friendships I have formed. I learn something new almost daily and can grow as a paralegal continuously. The cases that we work on are always interesting. I love getting to know our clients and see their cases through. Knowing that we helped change someone’s life is very rewarding.”
The position of paralegal, sometimes called legal assistant, is very important in a trial firm such as Beasley Allen. Amy is a good paralegal and is dedicated to the clients whose cases she works on. We are blessed to have her with us. Go Trojans!
Harrison C. Wagner
Harrison Wagner, a lawyer in the Toxic Torts Section, joined the firm on May 24. He is based in our Montgomery office. Harrison is working on cases in the Roundup, Paraquat and Opioid litigations. Before joining the firm, he was a law clerk and a summer associate for other law firms across the state. Harrison also clerked for Judge Brendette Brown-Green of the 10th Judicial Circuit and Judge Claude E. Hundley, III of the 23rd Judicial Circuit. He says he became an attorney to help people.
The Huntsville, Alabama, native received a United Methodist Scholarship to attend Birmingham Southern College, where he studied business administration. While at BSC, he was a member of the Sigma Chi Fraternity. Harrison later obtained a B.A. in Business Management from Athens State University. He received his J.D. from Samford University Cumberland School of Law, where he served as an Honor Court Justice and was a pupil on the Judge James Erwin Inn of Court. Harrison competed in many trial competitions, including the Parham H. Williams Trial Competition, in which he advanced to the Final Four, the Haley Federal Trial Competition, and an arbitration competition, in which he came in 2nd Place.
Harrison says he grew up playing ice hockey, baseball, basketball, and football. He is an avid runner and enjoys getting into the gym. In addition, he loves jam bands, college sports, and the Atlanta Braves. Harrison is an amateur historian and says he enjoys reading Wikipedia. His girlfriend is a lawyer in Birmingham who works for a firm that predominately defends school boards.
Since 2006, Harrison has served as a volunteer team leader for JH Outback of America. His dad currently resides in Huntsville, and his younger brother lives in Nashville, Tennessee, where he works for a company called BrightDrop.
Harrison is a member of the Alabama State Bar. He says he is happy to begin his law practice at the firm, where he said its prestigious reputation is built on solid work for its clients and work in the community.
Harrison is a hard-working lawyer who is dedicated to the representation of clients in the areas of litigation mentioned above. He has a bright future with the firm. We are fortunate to have Harrison with us.
Gibson Vance Installed As Alabama State Bar President-Elect
We are extremely pleased to announce that Gibson Vance was installed on July 17 as the President-Elect of the Alabama State Bar. He will become president and serve his term until July 2022. On track to become the organization’s next president, Gibson will join his law partners Tom Methvin and Cole Portis, who also served as Alabama State Bar Presidents.
Gibson said, “I have been a long-time member of the Alabama State Bar, and it will be an honor to assist the incoming administration and prepare to help lead the organization next year.”
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. He attended Faulkner University Thomas Goode Jones School of Law at night and worked for a law firm full time as a law clerk during the day. While attending Jones, Gibson was elected Student Bar President.
Gibson began his law practice during law school when he obtained his “third-year practice card,” and he assisted in trying several jury trials. For his entire 28-year career, he has focused 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.
The Troy native 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.
He has served in many capacities at the Alabama State Bar. In addition to his current position as President-Elect, 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 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 Baptist Theological Seminary, based in Louisville, KY., and Andrew, a Junior at Troy University.
Gibson is an excellent trial lawyer and is a tremendous asset to our law firm and the profession of law generally. We are blessed to have Gibson with Beasley Allen.
Burt Smithart Elected President Of Alabama Association Of Circuit Judges
Burt Smithart, Presiding Judge of the Third Judical Circuit (Barbour and Bullock Counties), was sworn in as the newly elected President of the Alabama Association of Circuit Judges (AACJ) last month. Judge Smithart has served as Vice President and Secretary / Treasurer of the statewide organization under former Presidents.
In Alabama, there are currently 148 Circuit Judges and 106 District Judges, serving the circuits and counties statewide. Judge Smithart has served as a Judicial College instructor for new and existing judges and currently chairs Alabama Law Institute committees on Pretrial Release and has been appointed to the Alabama Sentencing Commission.
Judge Smithart has previously been awarded the Bar Associations Award of Judicial Merit and the VOCAL Judge of the Year. He had this to say:
It is truly an honor to represent the men and women of the Circuit trial court bench in Alabama and the citizens of Barbour and Bullock counties. The fact that my peers throughout the state unanimously supported this undertaking is truly humbling. We have a huge job in front of us with restarting jury trials as the pandemic recedes. The judges throughout the state have worked very hard to ensure safe court facilities for jury service. We will continue to follow the protocol set forth by the CDC and State Health officials to protect our citizens.
Burt Smithart is an outstanding jurist and is recognized by the lawyers who appear in his court as always being well prepared and fair in his ruling and in the treatment of the lawyers and parties in his court. The judge also expects the lawyers to be prepared and to follow the rules in his court.
FAVORITE BIBLE VERSES
Sara Sandlin, a staff assistant in the firm’s Mass Torts Section, sent in her favorite verse for this issue. She says: “I chose my favorite Bible verse since childhood. This verse has brought me comfort since I was a child. I feel now more than ever we should be reminded only to fear God. We are only here temporarily until we are called home to be with our Father, so during these trying times when you find yourself afraid about what will happen next, remember to put your trust in God this is all part of his plan.”
When I am afraid, I put my trust in you. In God, whose word I praise; in God I trust and am not afraid. What can mere mortals do to me. Psalm 56:3 -4
Andrea Linnear, a paralegal in the Toxic Torts Section, who furnished two verses this month, says: “Most times I think that I have life “figured out” with my monthly planning and daily schedules, but inevitably something happens that is beyond my control, which gives me pause. I AM NOT IN CONTROL! As long as I am doing what I think is right, God will illuminate the path for me to follow. In those times when decisions are not easy, we must have faith in knowing that no matter the circumstance, God is always present and at work in our lives.”
Andrea adds: “Romans 8:38-39 reminds me that it’s okay to make mistakes. I am not perfect. We all have sinned and fallen short of the glory of God, but I’m so glad that despite my shortcomings, God still loves and cares for me.”
Trust in the Lord with all thine heart; and lean not unto thine own understanding. In all thy ways acknowledge him, and he shall direct thy paths. Proverbs 3:5-6
For I am persuaded, that neither death, nor life, nor angels, nor principalities, nor powers, nor things present, nor things to come, nor height, nor depth, nor any other creature, shall be able to separate us from the love of God, which is in Christ Jesus our Lord. Romans 8:38-39
A “Wake-Up Call” For A Regulatory Overhaul
The tragic and deadly collapse of the 12-story condominium building in Surfside, Florida, that caused at least 98 deaths has put regulatory issues nationwide in sharp focus for older multi-family buildings. That will definitely be true in Florida. Statewide inspection standards and mandatory reserves for condominium associations will be some of the potential changes to the Florida Condominium Code that are likely coming after the shocking collapse of the building in Surfside.
This disaster in Florida must serve as a wake-up call to all state and local officials about how little oversight there is on aging multi-family buildings, not just in Florida but also nationwide. These buildings, especially condominiums, and their structural integrity, will be carefully scrutinized over the coming months. The major emphasis will first be in Florida in the beginning for obvious reasons. The tragic and emotional effect in Florida has been devastating. Families who lost loved ones and others who had friends in the building have suffered greatly.
The Champlain Towers South tragedy will force state and local officials to reevaluate how multi-family buildings, including condos, are governed and what kinds of checks are in place to ensure safety, safety experts say.
High on the agenda of a task force looking at this tragedy is whether there should be a statewide recertification process like those in Miami-Dade and Broward counties, which require multistory buildings to be thoroughly inspected by structural and electrical engineers 40 years after construction and then every 10 years beyond that.
Champlain Towers South was built in 1981 and was about to begin extensive repairs identified in its 40-year structural inspection when it collapsed on June 24. The huge number of deaths shocked the nation and brought sadness and heartache to many.
In addition to all of the loss of life, there was an exhibition of something good that occurred in the midst of all of the pain and suffering by those who lost family members and friends. The heroic efforts of first responders and rescue units were unbelievable, and all involved in those efforts must be recognized and commended. The lengthy “rescue effort” is now in the “recovery” stage. The efforts and diligence of all concerned were above and beyond the call of duty. But it was the sort of thing we have come to expect from men and women who serve in those ranks.
We will write more on this critically important matter in the September issue of the Report. Our prayers are with all of the families who lost loved ones in this tragic occurrence in Florida and for all of the men and women who worked diligently in the rescue and recovery efforts.
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.
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
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
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.
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.
Martin Luther King, Jr.
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.
Martin Luther King, Jr.
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.
Kindness is a language which the deaf can hear, and the blind can see.
Mark Twain (1835-1910)
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
People throughout the world have now had to deal with the painful and heartbreaking effects of COVID-19 for almost two years. Sadly, the pandemic is far from over. So far, there have been over 600,000 deaths in the United States. Unfortunately, the enormity of that number really hasn’t sunk in with all of the American people.
Those who lost loved ones fully understand the tragic consequences and misery connected to the pandemic. However, largely because of politics there are far too many in this country who have refused to accept the reality of the hurt, despair and damage caused by COVID-19.
Those who respect science and the opinions of medical experts understand the need to take all of the steps necessary to eliminate the virus to the extent possible. That includes wearing masks when needed and getting vaccinated. Unfortunately, there are huge numbers of people who won’t wear the masks and won’t get the vaccines.
Currently, we are heading into a new wave of cases caused by the Delta Variant of the virus. With so many people refusing to be vaccinated, there will be more deaths and economic damage. It’s impossible to understand why so many people refuse to face reality and get the vaccines. Some do it because they have a real fear of the side effects, but others refuse because of the misinformation that is put out by some politicians and on social media. There are even some who because of their “religious beliefs” refuse to be vaccinated. In any event, there are many people in the country who aren’t vaccinated and are at great risk. They are also putting others at risk, which is hard to understand and can’t be tolerated.
The bottom line is that we are now facing another major crisis in America. I encourage every person in our country to get a vaccine as soon as possible. Failing to do so puts the person refusing to get vaccinated in danger, but it also affects those in their family, all in their workplace, and everybody else the unvaccinated person comes in contact with. This puts all at great risk of dying and that’s very sad. My prayer is that all persons will do the right thing and help to put an end to the pandemic and that requires everybody to get vaccinated.