Beasley Allen On The Frontlines Of Improving School Bus Safety
On any given day, school buses transport over 20 million students to and from school. When parents are getting their children ready for this coming school year, they will likely put their trust in school buses for safe transport. The public perception of school buses is that they are the safest mode of transportation for children. Based on our firm’s litigation experience, we have learned this is not necessarily true.
In 2021, school bus-related crashes killed 108 people nationwide. This number includes occupants of other vehicles, school bus passengers, school bus drivers, and pedestrians. Pedestrians involved in school bus crashes have a higher rate of fatality. Sadly, most school-age pedestrians killed are between the ages of 5 and 10 years old.
Beasley Allen’s Greg Allen and Stephanie Monplaisir, along with Darron Hendley from the Montgomery-based Hendley Law Firm, handled a horrific case involving a 5-year-old child tragically killed in the Fall of 2015 when his school bus, weighing more than 20,000 pounds, ran over and crushed his head. The child crossed in front of the bus behind his siblings, and his backpack got caught on the crossing arm on the front of the bus. The backpack spilled its contents directly in front of the bus, and the little boy bent over to gather his books. Unfortunately, there is a blind spot in front of school buses that prevented the driver from seeing the little boy who was bent down. The child’s mother watched in horror as the bus stop lights went off and the crossing arm moved in toward the bumper. The bus started forward and ran over her child.
The school bus in that case was manufactured in 2002. Bus manufacturers have known since the late 1980s that student detection systems (sensor systems) were available to eliminate the blind spot on the front of buses. Yet, in 2002, no bus manufacturer had undertaken to install them. Even today, very few school buses are equipped with a sensor system. There is limited use of this safety device in a couple of states.
New Jersey enacted Abigail’s Law, and it now mandates sensor systems on all new school buses sold in that state. Abigail was a toddler who followed her big sister to the bus. Abigail stopped right in front of the bus as her sister got on the bus. The bus driver never saw Abigail and drove over her. The general assembly of New Jersey realized that the circumstances causing this tragedy needed to be addressed and enacted the law mandating sensor systems. Unfortunately, the overwhelming majority of school buses on the road today do not have this needed safety device.
During the trial preparation of our case mentioned above, Greg Allen and Bobby Mozingo, who heads up our team of in-house investigators, traveled to New Jersey to test a bus with the Rostra SDS System (Student Detection System) in place. The system worked very well. Our lawyers were also able to prove that the cross-view mirrors are not reliable and are fraught with hazards. Anything from dust, dirt, ice, snow, or even rain could obstruct the mirror or distort the view of students in peril. School bus drivers deal with many distractions. They have to deal with students loading and unloading the bus, traffic in the area and they also have to deal with the discipline of the students already on the bus.
In Alabama, a School Bus Specifications Committee sets the minimum school bus specifications manufacturers must meet to sell their buses to school districts. However, school bus manufacturers can always exceed the minimum specs. Back in 2017, when the Beasley Allen lawyers worked this case up for trial, student detection sensors were not required under the minimum specs, and no school bus manufacturer had ever asked that these systems be added for bus safety. The referenced committee must approve any new technology. The head of the committee for more than 20 years testified under oath that he had heard of sensors but that no manufacturer had ever presented the concept to the committee. He said that if it had been presented, the committee would have been very receptive to it.
Fortunately, the 2024 school bus specifications approve of manufacturers incorporating several types of technologies that will improve school bus safety, such as collision avoidance and mitigation systems; exterior cameras; student tracking systems; and pedestrian detection systems. If the 2002 school bus involved in the case handled by Greg, Stephanie, and Darron would have had these safety features, that 5-year-old little boy would be entering 7th grade this Fall. These new school bus safety features will save other Alabama families at his juncture from such devastating tragedies.
If you need more information on the Beasley Allen school bus case mentioned above and the resulting safety changes, contact Stephanie Monplaisir by contact us by clicking the button below.
THE TALC LITIGATION
J&J Fraudulent Second Bankruptcy Attempt Fails– A Huge Victory For Talc Victims
Late on Friday, July 28, just as this issue was ready to go to the printer, we received word that U.S. Bankruptcy Court Chief Judge Michael Kaplan had issued an order in Johnson and Johnson’s second bankruptcy attempt. The judge’s ruling will allow cancer victims who used J&J’s talc products to proceed in the civil courts with their claims against J&J.
Judge Kaplan’s dismissal of LTL’s second bankruptcy attempt that would have limited the J&J subsidiary’s liability for manufacturing and selling cancer-causing talc products, was a huge win for the talc victims. Justice was done, coming after a lengthy and costly battle with J&J in the bankruptcy court.
Andy Birchfield from our firm, along with Leigh O’Dell and Ted Meadows, led the fight against J&J’s fraudulent bankruptcy attempt. Andy had this to say when he received the court order:
Today the court has finally, rightfully denied this latest attempt by one of the world’s largest and most financially successful companies to abuse the bankruptcy system and avoid responsibility for its dangerous product. J&J initially set aside $61.5 million in its first bogus bankruptcy. But J&J’s legal department proposed a settlement that offered only a fraction of that amount and sought the bankruptcy court’s assistance in cramming that bad deal down on cancer victims. Thankfully, with today’s order, that ploy is dead.
The judge’s dismissal will allow users of asbestos-containing talc products who developed ovarian cancer and mesothelioma to resume their trials in federal and state courts.
In his ruling, Judge Kaplan found that LTL failed to show a level of financial distress necessitating bankruptcy protection. The second petition was found by the judge to be a bad-faith filing. Judge Kaplan wrote:
The evidentiary record fixed at trial does not establish sufficient ‘imminent’ or ‘immediate’ financial distress to satisfy the criteria enunciated by the Third Circuit. Simply put, the Debtor does not meet the more exacting gateway requirement implemented by the Circuit with respect to ‘good faith’ which would allow LTL to take advantage of the tools available under the Bankruptcy Code to resolve its present and future talc liabilities
Leigh O’Dell, who co-chairs the talc multidistrict litigation Plaintiffs Steering Committee, had this to say about a $9.5 billion settlement offer J&J had made while the bankruptcy battle was ongoing:
Average costs for medical care, lost wages, lost jobs and pain and suffering can average more than $500,000 and up to more than a million dollars per victim. The plan would have paid a tiny fraction of the amount needed to fairly compensate victims of ovarian cancer and mesothelioma.
Leigh emphasized that the $9.5 billion offer for all claims was grossly inadequate. When you do the math, considering the huge number of claims, that is quite clear.
Ted Meadows, who has tried a number of talc cases against J&J and was helping out in the bankruptcy battle, had this to say:
We believe that J&J should be willing to accept responsibility and, as the company likes to say, resolve these cases fairly and equitably. This has gone on too long. It’s time for our clients to have their days in court and for J&J to stop its bullying tactics and end this nightmare for victims.
This order of dismissal by Judge Kaplan was a huge win for all of the living victims and for the families of those persons who died without having had a jury hear their cases at a trial. The victims can now proceed in the civil courts in their pursuit of justice. We will write more about the effect of this dismissal in the next issue. Stay tuned!
Jury Awards Meso Patient $18.8 Million in J&J Talc Trial
A California state jury in Oakland awarded $18.8 million to a 24-year-old man who sued Johnson and Johnson, alleging a lifetime’s use of J&J baby powder was to blame for his mesothelioma. This case had been allowed to go to trial because of the current health condition of the plaintiff, Emory Hernandez Valadez.
Mr. Valadez received his devastating diagnosis in early 2022. His doctors found that he had malignant pericardial mesothelioma, a very rare form of cancer in the tissue around his heart caused by asbestos exposure. Mr. Valadez is not expected to live much longer.
Mr. Valadez is one of tens of thousands of cancer patients suing J&J over its talc powder products. The claimants allege the company’s signature baby powder contained asbestos that exposed them to the risk of ovarian cancer and mesothelioma for decades. Johnson & Johnson stopped selling its talcum powder product in North America three years ago. The company now makes Johnson’s baby powder with cornstarch instead. This is what J&J should have done years ago when it learned that the talcum powder product was killing innocent people.
But the switch from talc to cornstarch came too late for Mr. Valadez, whose mother testified that she used large amounts of the baby powder on him from when he was a baby and throughout his childhood. Mr. Valadez testified in June that he would have stopped using the powder had the company warned consumers of the asbestos risk. Jurors assigned 100% of the blame for Mr. Valadez’s illness to Johnson & Johnson.
Sources: Law360 and Reuters
Beasley Allen Talc Litigation Team
Beasley Allen lawyers Leigh O’Dell and Ted Meadows head the Beasley Allen Talc Ovarian Cancer Litigation Team. Andy Birchfield, who heads our Mass Torts Section, has been directly involved in all phases of the talc litigation. The team handles claims of ovarian cancer linked to talcum powder and mesothelioma cases. Several key team members have been focused on Johnson & Johnson’s blatant abuse of the bankruptcy system. That battle is finally over. Now the team’s attention will be on trials and obtaining justice for our clients. The following Beasley Allen lawyers are members of the Talc Litigation Team:
Leigh ODell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty OQuinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, William Sutton and Matt Teague.
Charlie Stern and Will Sutton are on the litigation team but exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.
THE ASBESTOS LITIGATION
Mesothelioma Subtypes And Their Impact On Litigation
In the world of cancer, things get very complex. This is definitely true for mesothelioma, which is a cancer that can occur in the mesothelium (the thin layer of tissue) around certain internal organs. As noted in previous articles, there are four types of mesotheliomas based on tumor location: the lining of the lungs (pleural), abdomen (peritoneal), heart (pericardial) or testicles.
Along with the different locations of the body where mesotheliomas can occur, not all mesotheliomas are the same in terms of cell type and cell location. There are three most common cell types for mesothelioma: (1) epithelioid, (2) sarcomatoid, and (3) biphasic. Epithelioid is by far the most common, accounting for about 70% of mesothelioma diagnoses, while sarcomatoid accounts for about only 10%. That leaves biphasic with just around 20%. The shape of the cancers’ cells is what distinguishes these subtypes from one another. Epithelioid cells are boxy or oval shapes, sarcomatoid cells are oval or spindle-like and biphasic contain both epithelioid and sarcomatoid shapes.
The biggest impact the subtypes have on the litigation is how the patient responds to potential treatment and how quickly the attorney on the file needs to make things happen. Traditionally epithelioid mesothelioma had the best prognosis of around 1.5 to 3 years to live, while a diagnosis with sarcomatoid was likely a death sentence within ten months. Biphasic is more like sarcomatoid, with about 9-12 months to live. For the prosecuting attorney, understanding this and being able to immediately identify the subtype is crucial. By failing to understand the nuanced information related to subtypes and how to quickly and correctly determine this information, plaintiffs can die much faster than anticipated.
In a recent Beasley Allen case, the firm was contacted in December of 2021 by a potential client. After the Beasley Allen lawyer on the case spoke with the client and reviewed medical records, it became apparent that this was not an epithelioid mesothelioma and time was truly of the essence. Within a month, the case was filed in the proper jurisdiction. Just a few months later, after diligent work to expedite the deposition by the lawyers working the file, the client sat for a deposition. Just a few weeks after that deposition, sadly the client died. From first contact to death was around four months. Had he not sat for his deposition, his case would have been far, far weaker.
But the lawyers at Beasley Allen recognized the urgency because of their experience and understanding of the issues. This allowed them to protect their client’s rights. This is the skilled and informed approach taken by all Beasley Allen asbestos lawyers.
New Asbestos Rule Will Help EPA Assess Ongoing Health Risks
The US Environmental Protection Agency (EPA) finalized a long-anticipated rule in July requiring all producers, importers, and processors of asbestos to report asbestos usage and exposure information. The EPA will use this information to inform future actions and rules governing the use of asbestos and products containing the toxic mineral.
The EPA dubbed the new rule the Asbestos Reporting and Recordkeeping Requirements under the Toxic Substances Control Act. It requires all businesses and other entities that handled asbestos over the last four years (2019-2022) to electronically report how much asbestos they made or processed, how they used it, employee data, and other exposure-related info. Anyone affected by the new rule will have nine months after the effective date to file a one-time report.
Despite government restrictions on asbestos, the fibrous mineral continues to cause the deaths of about 40,000 Americans every year. Inhalation of asbestos fibers causes mesothelioma and other dire lung diseases, including asbestosis and lung cancer.
The EPA has already proposed a ban on Chrysotile asbestos, one of the six types of asbestos fibers. That agency expects to finalize the rule later this year. The EPA said that data collected from the new reporting requirements will help the agency evaluate and address the risks posed by the other forms of asbestos and their uses.
Like other EPA actions on asbestos in the past, the new reporting rule resulted from a lawsuit. The Asbestos Disease Awareness Organization sued the EPA in 2019 to force the new rule.
Sources: Law360, Environmental Protective Agency
California Jury Awards $107 Million in Union Carbide Mesothelioma Lawsuit
A California jury awarded about $107 million to the family of a 45-year-old janitor who died from mesothelioma. The jury found Union Carbide Corp. acted with malice. It also found Elementis Chemicals and E.F. Brady Co. Inc. negligent. The companies’ careless actions led to Joel Hernandezcueva’s death, the Los Angeles Supreme Court jury found.
Hernandezcueva died in 2014 from pleural mesothelioma, a type of cancer caused by asbestos exposure. The father of four worked at a mixed-use development in Irvine and was exposed to asbestos fibers during renovations. The jury granted his family $32 million in compensatory damages and $75 million in punitive damages. The family’s lawyers said the judgment could include tens of millions of dollars in interest.
The verdict attributed 46.6 percent of the harm to Union Carbide’s negligence, 5 percent to Elementis, and 10 percent to E.F. Brady. The jury found only Union Carbide acted with malice. The family’s lawyers accused Union Carbide of knowingly exposing workers to asbestos while allegedly claiming their asbestos was “different,” “innocuous,” and “not harmful.” They alleged that Union Carbide calculated the cost of settling future claims and decided to continue selling asbestos despite the risk to others.
The family filed the lawsuit in 2011. It went through a series of trials and appeals. Union Carbide sought a mistrial during the latest trial, claiming improper statements by the family’s counsel. The court denied their requests.
The Beasley Allen Asbestos Litigation Team
Case filings in the asbestos litigation continue to increase nationwide. The Beasley Allen Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation and is a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by clicking the button below.
THE CAMP LEJEUNE LITIGATION
Camp Lejeune Litigation Update
More and more administrative claims are proceeding to civil litigation for Camp Lejeune. The Navy has received over 70,000 administrative filings, but thus far no settlement offer has been made at the administrative level. The cases are being filed in the Eastern District of North Carolina. It is estimated that the Department of Justice (DOJ) has responded to less than 20% of the cases, numbering approximately 200 cases, that have been filed in court. With the growing surge in cases that are filed weekly, the DOJ has requested for the judges in the Eastern District of North Carolina to quicken the plans to consolidate these cases to help them deal with the volume of these cases.
If you have questions about Camp Lejeune litigation, you can attend the free webinar that Beasley Allen is hosting on August 16. The webinar will cover a variety of issues including an update of the litigation; issues to consider concerning wrongful death cases; and a question-and-answer section where attendees can ask their questions directly to our lawyers working on the Camp Lejeune litigation. If you haven’t already signed up, you can find the sign-up information for the Camp Lejeune webinar – as well as previous Camp Lejeune webinars – on the Beasley Allen website.
Further, if you have cases or questions that you want to discuss directly with a lawyer, you can reach out to the Beasley Allen co-leads, Leslie LaMacchia and Julia Merritt. They have helped numerous lawyers ranging from working up cases to providing helpful input for common issues. Other Beasley Allen lawyers who are working on these cases, will also be glad to work with you on your cases.
Beasley Allen Camp Lejeune Litigation Team
Beasley Allen lawyers are working hard on the Camp Lejeune litigation. The work has dramatically increased since the Camp Lejeune Justice Act passed. There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com.
Currently, our firm has 12 lawyers working on this litigation, including Toxic Torts Section Head Rhon Jones. You can contact Rhon Jones or any other lawyers on our team should you need help with a claim or have questions. The lawyers include Leslie LaMacchia, Julia Merritt, Will Sutton, Ryan Kral, Trisha Green, Ken Wilson, Matt Pettit, Tucker Osborne, Gavin King, Elizabeth Weyerman, and Marion Brummal.
SOCIAL MEDIA LITIGATION
Faced With Massive Litigation, Social Media Defendants Seek Immunity
Beasley Allen, along with other leading plaintiff firms, is heavily engaged in the multidistrict litigation against Meta and other social media companies regarding social media addiction and other related personal injuries.
With extensive and ongoing litigation relating to their addictive algorithms and resulting harm to youth, the Social Media companies behind Facebook, YouTube, TikTok, and Snapchat are seeking immunity behind Section 230 of the Communications Decency Act. Broadly speaking, Section 230 shields those who re-publish content written by another for liability arising from that content. The pending litigation though, does not specifically focus on the content of the platforms, but on the addictive nature of the algorithms that are designed to make youth stay online longer and longer.
Earlier, the defendants moved in April to dismiss the complaints, but deferred argument on the Section 230 issue pending the United States Supreme Court’s then-pending ruling in Gonzalez v. Google. That ruling, which the Social Media Defendants hoped would create a clear bar to the pending multidistrict litigation, provided no real guidance. In Gonzalez, YouTube was accused of aiding and abetting a terrorist attack by hosting Islamic State propaganda videos. The Supreme Court dismissed the case, but did not address Section 230.
Though the plaintiffs’ responses have not yet been filed, lead counsel likened the defendants’ arguments to suing the architect of a building for the actions occurring within a building as opposed to the design of the building. The multidistrict litigation, according to lead counsel, is about the design.
While this is an anticipated defense, Plaintiffs’ counsel are confident in the distinction between the design and its contents. Lawyers in our firm continue to monitor how the law may change with respect to Section 230, and whether in this new tech-driven day the shield will be lessened for publishers, thus opening up the possibility for a variety of new claims. Beasley Allen lawyers are actively involved in fighting the social media giants through all possible avenues. Our lawyers will be glad to speak with you about potential claims.
The Beasley Allen Social Media Personal Injury Litigation Team
If you need help on a case or more information on the personal injury part of our social media litigation, contact a lawyer on the firm’s Social Medial Litigation Team by clicking the button below. Members of the team are:
Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaugh and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team.
Joseph VanZandt, who leads the team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California state court. He is also a member of the Plaintiffs Steering Committee, helping lead the federal social media multidistrict litigation (MDL).
It should be noted again that the class action aspect of the Meta Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. If you need more information, or need help on a case, contact Michelle Fulmer, Section Director, by clicking the button below. She will have a lawyer respond to you.
AN UPDATE ON MOTOR VEHICLE LITIGATION
Car Owners Sue Arc Automotive Over Millions Of Allegedly Defective Airbag Inflators
Beasley Allen filed a sweeping product liability class action lawsuit last month against Arc Automotive, a manufacturer of airbag inflators. Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, and Dylan Martin, who handle consumer fraud cases for the firm, are pursuing this very important class action multidistrict litigation centralized in the United States District Court for the Northern District of Georgia, Atlanta Division.
On March 15, 2023, the U.S. Judicial Panel on Multidistrict Litigation granted Plaintiffs’ Consent Motion for Appointment of Leadership Team, naming, among others, Beasley Allen lawyer Demet Basar, a principal in the firm, to the Leadership Committee.
On June 28, 2023, Plaintiffs filed a Consolidated Class Action Complaint containing over 100 named plaintiffs from thirty-six states alleging violations of state consumer protection and warranty laws. Plaintiffs also seek to represent a nationwide class on behalf of all consumers in the United States who purchased, currently own, lease or leased a Class Vehicle containing a driver or passenger side inflator manufactured by ARC between 2001 and 2018.
Specifically, plaintiffs allege that defective ARC toroidal-shaped hybrid airbag inflators (the Defective Inflators) manufactured by ARC Automotive, Inc. (ARC), and/or its subsidiaries, successors, or affiliates are installed in airbag modules manufactured by Autoliv, Inc. and Autoliv ASP, Inc.; Joyson Safety Systems; Hyundai Mobis Co., Ltd.; ZF Friedrichshafen AG; TRW Automotive, Inc.; ZF-TRW Automotive Holdings Corp.; TRW Vehicle Safety Systems Inc.; TRW Automotive U.S., LLC; and Toyoda Gosei North America, Inc., (the Airbag Module Suppliers).
It’s alleged further that the inflators are in vehicles designed, manufactured, distributed, marketed, sold, and leased by General Motors, LLC; Ford Motor Company; FCA US LLC; Hyundai America Inc.; Hyundai Motor Company; Hyundai Motor Group; Kia Corporation; Kia America, Inc.; BMW Manufacturing Co.; BMW of North America, LLC; Bayerische Motoren Werke; Dr. Ing. H.C. Porsche AG; Porsche Cars North America, Inc.; Volkswagen Aktiengesellschaft; Audi Aktiengesellschaft; Audi of America, LLC; and Volkswagen Group of America, Inc. d/b/a Audi of America, Inc. (together, the “Vehicle Manufacturers”).
These defective vehicles pose a serious safety and health risk to vehicle occupants. The Class Vehicles’ airbag inflators utilize gas and propellant to fill the airbag cushion during a vehicle crash. The ARC-made defective airbag inflators are manufactured via a friction welding process which fuses components of the airbag inflator together using heat and rotation. However, in ARC’s friction welding process, the airbag inflator components create excess weld flash, which can exit the inflator upon deployment or rupture the inflator entirely.
Due to the location and the close proximity to vehicle occupants, the Inflator defect places occupants at severe risk of bodily injury or even death. To date, there are seven known Inflator Defect incidents, two of which resulted in occupant death.
If you or someone you know has experienced the Inflator Defect or has a defective ARC-made airbag inflator in their vehicle, contact Demet Basar, Clay Barnett, Mitch Williams, or Dylan Martin, all Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section.
The multidistrict litigation is styled—In re: ARC Airbag Inflators Products Liability Litigation, Case No. 1:22-md-03051-ELR, and is centralized in the United States District Court for the Northern District of Georgia, Atlanta Division. We look forward to providing continuing updates on this important litigation.
Assessing Rear Crashworthiness Cases
Lawyers, like those in our firm’s product liability section who handle product liability cases, and specifically cases involving automobiles, understand the term “crashworthiness.” It isn’t a new term. The present location of the steering wheel was moved from the right to the left in 1915 to provide the driver with a better viewpoint to avoid oncoming vehicles. The president of General Motors recognized the manufacturer’s duty to design safe vehicles when, in 1965, he stated that it was the duty of the manufacturer “to seek all possible ways in which the built-in protection for car occupants can be improved.”
Crashworthiness is simply the degree to which the manufacturer’s design of the package will protect the occupants from injuries in the event of a collision. Crashworthiness is an engineering term that may more appropriately be referred to in terms of basic occupant safety. Automobiles typically do okay in frontal collisions. That is because federal regulations and organizations like IIHS test for occupant protection in various frontal collision configurations. However, rear collisions are just as likely. Recent studies have shown that rear occupants are more likely to die in rear collisions due to compartmental collapse that would be survivable under the same speeds if they were frontal collisions. Why? Because the same principles used to protect occupants in the front of vehicles are not being used in the rear.
The principles of crashworthiness apply to virtually all vehicles that carry humans. Lawyers in our firm have handled crashworthiness cases involving cars, heavy trucks, airplanes, helicopters, tractors, forklifts and the list goes on. The design considerations all change for each of those vehicles, but the principle is the same. In the event of a collision, the vehicle safety cage is supposed to protect the occupant by maintaining survival space and reducing the collision forces that the occupants would otherwise be exposed to in that crash. We have recently been involved in two cases involving rear impacts to Toyota Corolla vehicles where the crush from the rear of the vehicle came almost to the front seat.
A correctly functioning occupant protection system reduces the loads exerted on occupants in a crash. That, in turn, has the effect of lowering the severity of the occupant’s injury. Safety advances have raised the bar on the design of vehicles. Today, manufacturers have a responsibility, just as GM’s CEO acknowledged in 1965, to continue to build vehicles that provide the built-in protection occupants deserve. Unfortunately, that isn’t always the case.
In today’s world, nobody could imagine a sedan designed without a frontal airbag and a seatbelt. We now have side airbags in the vehicle and cars designed to avoid crashes altogether. New building materials make vehicles safety cages stronger and more likely to protect occupants.
Tomorrow will bring new technologies. Manufacturers have a responsibility to not only provide those technologies but to provide them in a way that makes those technologies effective in protecting occupants. It’s time the same level of protection is provided to people in the rear seat of a vehicle, especially children, as it is provided for their parents in the front.
Lawyers in our firm’s Personal Injury & Products Liability Section have extensive experience in handling crashworthiness cases. Anyone seriously injured while occupying any type of vehicle should have their case evaluated by experienced product liability lawyers to determine if the vehicle was designed with the appropriate level of crashworthiness in mind. All too many good crashworthiness cases are missed by lawyers who don’t understand the concept and see such cases as simply a car crash case.
Do You Know If Your Tires Have Been Recalled?
Many people get their tires replaced only to find out that the tires they are replacing are subject to a recall. One reason why some consumers never learn about these recalls is because independent tire dealers, who provide the majority of consumers with tires, are not required to register the sale with manufacturers so that the consumer is effectively notified when the tire maker issues a recall. This means that tire manufacturers often have trouble reaching out to or do not reach out at all to consumers who have unregistered tires. Therefore, it is often up to the consumer to register their tires to find out about these recalls.
This system is admittedly not perfect. In 2015, the National Transportation Safety Board (NTSB) admitted that the current tire recall system was broken and issued 11 recommendations to fix it. While many of those recommendations are yet to be implemented, small developments have been made. For example, nowadays tire sellers at times provide consumers with the means to register their tires themselves at the point of sale by providing registration forms and/or links to online registration. Nonetheless, the system remains imperfect because tire sellers rarely explain the importance of registering tires to consumers.
So how does the consumer receive notice about a recall? A consumer who is registered with the manufacturer should receive a notice of any recalls directly from who made the tire. Manufacturers must notify registered owners by first-class mail within 60 days of notifying NHTSA of a recall decision. However, that does not ensure that a notice will be forwarded to someone’s new address if they have moved.
For those consumers who are not registered or are perhaps unsure of their registration status, they can search for applicable recalls on the websites of both the National Highway Traffic Safety Administration (NHTSA) and the tire manufacturer itself. Both websites provide relevant information such as brand name, DOT code, and other identifying information that the consumer can cross-reference with information found on their tires in order to see if any applicable recalls apply.
Therefore, it is best for these consumers to know how to read the DOT codes found on their tire’s sidewall in order to effectively find the needed information. The DOT code is the only identifiable information to determine if a tire has been recalled.
While the system is not perfect, knowing whether a tire has been recalled is important for consumers because it ensures that travel remains as safe as possible. Beasley Allen lawyers have successfully handled cases involving fatal and non-fatal vehicle accidents linked to tire failure.
Sources: Rubber News, Recall Masters, Law360, National Highway Transportation Safety Administration, US News, Consumer Reports
Do-Not-Drive Notice Issued After Takata Airbag Kills Dodge Ram Passenger
The Takata airbag disaster continues to maim and kill motorists while sending shockwaves through the auto industry. A Takata airbag explosion that killed a passenger in a 2003 Dodge Ram pickup truck in May prompted Stellantis to urge the owners of about 29,000 older Dodge Ram pickup trucks to stop driving the vehicles until the airbags in them can be repaired.
Neither Stellantis nor the National Highway Traffic Safety Administration (NHTSA) have identified the victim or said where the airbag explosion occurred. The company issued a statement saying that the person sustained fatal injuries consistent with victims of previous Takata airbag inflator explosions.
The death is the 26th in the US since 2009 and the fourth in a Stellantis vehicle. Following three other fatal Takata airbag explosions, the company last year urged owners of model year 2005-2010 Chrysler 300s and Dodge Magnums, Chargers, and Challengers to avoid driving the vehicles until the airbags are repaired.
About 400 people have been injured by Takata airbag explosions in the US. Many survivors of these blasts are critically injured, including loss of eye or vision and facial disfigurement.
The product defect stems from the inflator mechanisms within the airbag. Takata used the highly volatile chemical ammonium nitrate to ignite within the airbag and inflate it in a crash. The hypersensitive chemical can deploy the airbag with lethal force, blasting metal fragments from the airbag canister toward vehicle occupants. The latest death was the only known fatality to result from a passenger-side airbag explosion.
According to Stellantis, 233,000 of its vehicles under the Takata airbags recalls have not been repaired and remain at risk.
Sources: Claims Journal, Autoblog, CBS News
Ford Expands SUV, Truck Recall Due To Fire Risk
Ford Motor Co. is dealing with a series of recalls due to fire risks. Last month, the company expanded a recall for 125,000 SUVs and trucks. The vehicles’ engines could fail and catch fire. The recall affects certain 2020-2023 model year Escape and Lincoln Corsair SUVs and Maverick compact pickups with 2.5L hybrid or plug-in hybrid engines.
In July 2020, Ford recalled 200,000 Escape, Corsair, and Maverick vehicles after receiving 23 reports of fire or smoke. Those reports were likely due to a block or oil pan breach. The company warned vehicle owners to park their cars and shut them off if they hear unexpected engine noises, notice a reduction in vehicle power, or see smoke.
Since then, Ford has received at least three reports of fires in vehicles that had received the 2022 recall fix. A new fix is currently under development.
Ford recalled 142,000 Lincoln MKC SUVs in the U.S. in May due to fire risks. The automaker told owners to park the SUVs outside and away from any structures until they repair their vehicles. That fix involves adding an in-line fuse to the battery monitor sensor power circuit.
A Look At Truck Driver Fatigue
Fatigue for truck drivers is a very serious safety problem. The Driver Fatigue and Alertness Study found that fatigue leads to: increased lapses of attention; slower information-processing and decision-making; longer reaction time to critical events; more variable and less effective control responses; decreased motivation to sustain performance; increased subjective feelings of drowsiness; decreased watchfulness, and decreased alertness to danger (Wylie, et al., 1997). There is little dispute that these problems have the potential for a driver to become deadly behind the wheel of a tractor-trailer truck. Thus, it was no surprise that researchers found that driving while drowsy increased an individual’s crash risk by four to six times (Klauer, et al., 2006).
Chris Glover, who manages our Atlanta office, recently settled a case in which his client was parked on the shoulder of Interstate 85 in Hall County, Georgia. A roadside attendant was parked behind the client’s vehicle and was in the process of helping her refuel when a tractor-trailer collided with the side of the attendant’s vehicle and the rear of the client’s vehicle. The attendant was killed, and Chris’ client was ejected, suffering catastrophic injuries as a result. Through the discovery process, it came to light that the driver of the tractor-trailer was severely fatigued, so much so that he did not even implement his brakes before the collision.
Accidents like this one and countless others could be prevented if truck drivers followed the FMCSA rules for hours of service, which were put in place to keep the drivers of these massive and potentially dangerous vehicles safe, as well as other vehicles sharing the road with them. Beasley Allen lawyers are committed to fighting for justice on behalf of clients whose lives are forever altered by the negligent conduct of truck drivers and the companies they work for if they do not follow or enforce the necessary rules designed to keep us all safe. If you have any further questions regarding any aspect of the litigation, you can contact Chris Glover by clicking the button below.
PRODUCT LIABILITY LITIGATION
Amazon Attempts To Avoid Liability In Delivery Vehicle Crashes
Amazon’s Delivery Service Partner (DSP) program allows entrepreneurs to start their own businesses delivering Amazon packages. Delivery Service Partners are essential to Amazon’s daily operations and ability to deliver packages quickly. However, Delivery Service Partners are also essential to Amazon’s shield from liability when one of their drivers injures someone.
Amazon controls the start-up, training, and operations of their Delivery Service Partners. For example, Amazon provides technology, training, processes and logistics experience, and on-demand support to help run the delivery services. Delivery drivers are monitored daily by cameras, smartphone apps, and telematic devices installed in their vans. Recently, Amazon has come under extensive scrutiny for hiring companies with unsafe driving scores. In addition, there have been reports of Amazon warehouse employees instructing drivers to disable Amazon’s monitoring software. This allows drivers to engage in reckless driving behavior.
Although Amazon exercises an extensive amount of control over their Delivery Service Partners, Amazon routinely denies having any authority, agency, or liability when a delivery driver is involved in an accident. In fact, this is an issue that is hotly contested throughout the litigation process. Amazon has created multiple entities to silo, or house, documents and other information related to their Delivery Service Partners and other delivery service contractors. These entities were created with one goal in mind: frustrate the discovery process.
This is why having a lawyer who is familiar with Amazon’s litigation strategy is essential to any case involving a driver transporting Amazon packages. This is true regardless of the type of vehicle the driver is operating. They can include an 18-wheeler, box truck, sprinter van, or a Flex driver.
On July 15, 2021, Wyatt Montgomery, a lawyer in our firm’s Mobile office, filed a personal injury lawsuit against Amazon and the Amazon Delivery Service Partner. The lawsuit arises out of an incident where the plaintiff was struck by one of Amazon’s delivery vans in his own front yard. The complaint alleges that the defendant negligently and wantonly allowed his vehicle to strike the plaintiff. At the time of the incident, the delivery driver was driving within the line and scope of his employment with Amazon and the Amazon Delivery Service Partner. The case is set for trial in March 2024, and we will keep our readers informed of any developments in this case as it moves forward. Stay tuned!
Source: JD Supra
A Look At Workplace Accidents
In Alabama, an employee injured on the job is limited to benefits payable under the Alabama Workmen’s Compensation Act (Comp Act). Two exceptions to this statutory limitation are (1) when the injury was caused by a third party, such as a product manufacturer who sells a dangerous or defective piece of equipment to the employer, or (2) when the injury was caused by the willful conduct of a co-employee.
Section 25-5-11(c), Code of Alabama, provides that “willful conduct” of an employee can occur when the co-employee has “[a] purpose or intent or design to injure another” or where a co-employee participates in the “willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine.” (For the full language of “willful conduct,” see § 25-5-11(c).)
Alabama courts have found that in some circumstances, the removal, or the failure to maintain a safety device, is equivalent to the removal of that device and can constitute willful conduct. Often, a machine manufacturer will include safety features on a piece of machinery. These safety features can include things such as an emergency turn-off, interlock devices to stop operation when a barrier is opened but the machine is in operation, foot control pedals to keep arms clear from work areas, and the like. In some instances, an employee may find that he can do the job easier or more quickly if the safety device is removed. If another employee comes along after that and is injured as a result of the removal of the safety device, then in that instance the co-employee who removed the safety device may be found liable for willful conduct.
In other instances, a maintenance person may fail to maintain the safety equipment on a machine, and that failure to maintain may make the machinery unsafe to operate. In such instances, Alabama courts have also found that a co-employee may be found liable for willful conduct as defined in section 25-5-11(c).
Our firm recently settled a case handled by Ben Locklar against an Alabama employer for worker’s compensation benefits and against several co-employees for what we asserted was “willful conduct” as defined under the Worker’s Compensation Act. In our case, an employee was killed when a Vertical Reciprocating Conveyor (VCR), a freight elevator, fell three stories. The employee was in the process of unloading supplies from the VCR when the cable that raised and lowered the VCR broke, resulting in the elevator suddenly collapsing. The employee was pulled into the falling VCR and tragically killed.
The elevator, when installed by the manufacturer, had a safety brake, referred to as a falling platform safety device. This device was designed so that if the elevator dropped or fell, a cam mechanism would cause the brake to turn into the guide rail, lock into place, and keep the elevator from falling.
Our investigation revealed that the cam brake system had not been properly inspected and maintained. In fact, we learned through discovery that the VCR had fallen previously under similar circumstances without injury being caused to anyone on that occasion. Had appropriate measures been taken by those responsible for maintaining and servicing the VCR, the employee would not have died.
The young man who lost his life was survived by his fiancée, three minor children, and other family members. If you need more information or need help with a case involving serious injury or death in the workplace, contact Ben Locklar by clicking the button below.
You can also contact Melissa Prickett, Section Director, and she will have another lawyer who handles workplace cases respond to you. Melissa can be reached by clicking the button below.
PREMISES LIABILITY LITIGATION
Poorly Maintained Apartment Complexes Are Extremely Dangerous
Over the past several years, our firm has been honored to represent families in catastrophic premises cases. Of all the different premises categories, in our experience, apartment complexes reign supreme in the sheer volume of catastrophic incidents that take lives or permanently maim people. We have written at length previously about the dangers of criminal violence at apartment complexes, particularly at complexes where the owners and occupiers turn a blind eye to dangerous crime and gang activity. However, the many other dangers associated with apartment complexes that kill people every year are often overlooked.
If not maintained, older apartment complexes are often steps away from a catastrophic fire. These complexes are in towns and cities across America, and many of them suffer from decaying (or completely compromised) electrical systems. As these systems begin to fail, tenants may notice sparks shooting from wall outlets, or they may observe other bizarre electrical issues – such as the entire grouping of wall outlets going out at one time. Unfortunately, the signs will begin to lead to the conclusion that the system is failing to control strong electrical currents, which can ultimately result in a fire event.
The cause of a fire is one thing, but the condition of the property compounds the danger further. Oftentimes, these poorly maintained apartment complexes have no smoke alarms. Even if they do, we often find that the smoke alarms are years beyond their useful life, which means they will not work when called to task. Old or outdated upholstery usually lacks flame-retardant properties, which means that a fire can turn into a blazing inferno within seconds. To make matters worse, many old apartment complexes are not up to code, or they lack modern entry and exit doors that may prevent a person from escaping a fire.
Electrical systems and outdated equipment are just one subset of dangerous hazards in these poorly run apartment complexes. Another major hazard is a drier venting system because the venting system can accumulate lint over time if not properly maintained by the complex. These venting systems are supposed to push lint outside the building, but sometimes, the systems can become clogged or capped, leading to an extremely dangerous lint buildup.
Before a catastrophic fire event, tenants may complain that their drier is not working (perhaps because the venting system is not allowing moisture to escape). They may also begin seeing lint buildup inside their house, amongst other ominous warning signs. Either way, a lint fire can burn incredibly hot and engulf multiple dwellings within a very short period. What’s worse, the fire can be very hard to suppress because it is oftentimes encased behind the wall.
Finally, carbon monoxide is a major hazard in these decaying apartment complexes. We are presently litigating a case in Georgia where an occupant died as a result of carbon monoxide poisoning where the property was poorly maintained. As an odorless colorless gas, carbon monoxide can poison and kill an entire family within a very short time of exposure.
Multifamily owners and occupiers have a duty to make sure their premises are safe, habitable and properly maintained so these events do not happen. But all too often in these catastrophic premises cases, we find in discovery that none of this was done.
Our firm has recovered tens of millions in compensation for our clients in these catastrophic premises cases. Parker Miller, from our Atlanta office, leads our efforts in this area of litigation.
Negligent Design Of Premises And Its Structures
While liability in premises cases often rests on the failure of the owner/occupier to exercise ordinary care in keeping its premises safe, this is not always the only avenue to recovery. For example, Georgia also allows for a negligence action to be brought for the negligence in the actual design of the premises and/or its structures by an architect or contractor where such negligent design causes injury to a third party.
Such an action requires an exception to the general rule that an independent contractor is not liable to third persons for injuries suffered as a result of work on a property once it is turned over to the owner, however.
In order to bring the action, the work must (1) constitute a nuisance per se, or be inherently or intrinsically dangerous, or (2) be so negligently defective as to be imminently dangerous to third persons. Id. For example, in a case where a pedestrian is struck by a vehicle at a property where the architects and/or engineers failed to adhere to accepted industry standards to create a walkway for a particular type of development, the architects or engineers may be held liable for their imminently dangerous defective design of the premises. See e.g., Id. Such an action is yet another tool for the premises liability practitioner to consider in applicable cases to ensure that their client obtains full recovery for injuries caused by the negligence of others.
Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these types of cases, as well as numerous other premises liability and negligent security cases, across the State of Georgia as well as in other states. If you have any questions about these cases, you can contact Parker or Houston or by clicking the button below.
Source: In re: Samuelson v. Lord, Aeck & Sergeant, Inc., 205 Ga. App. 568, 571, 423 S.E.2d 268, 271
Aviation Failures Affect More Than Aircraft Passengers And Crew
When we think of aviation accident victims, our minds often jump to people onboard the aircraft. We do not immediately consider others impacted by aviation failures, including unsuspecting people on the ground who may be injured or killed. Aircraft may also cause property damage, which is what prompted the first aviation lawsuit in U.S. history.
In 1822, a man traveling in a balloon crashed onto a New York farm. After spectators checking on his welfare trampled through a garden, the property owner sued the balloon traveler for damages.
Today there are frequent reports of aircraft causing property damage and harming ground victims. A small plane crashed into a North Carolina home in June, killing the pilot and one of the residents. The crash also seriously injured another occupant of the home. Last October, at least two planes crashed into U.S. homes, one in Florida and one in New Hampshire.
A 2019 Yorba Linda, California, crash killed the pilot of a plane and four victims inside a home after the plane smashed into the residence, igniting a massive fire that spread to a neighboring home. Debris from the crash rained over four blocks of the Yorba Linda neighborhood.
Airline ground crew members also risk injury or death by aviation failures. Between 1983 and 2004, 21 ground crew members were killed on the job, while another 77 were injured. Our firm is currently investigating the case of a Montgomery, Alabama, airport worker who was killed last December after being sucked into the engine of an Embraer 170 airplane.
Mike Andrews, our lead aviation lawyer, represents those impacted by aircraft incidents on the ground and in the air. He observed:
Aviation failures can affect us all, not just those on board. As an aviation lawyer, it’s my job to consider every angle of an investigation and possible case. I have to ensure that all who are harmed or sustain property damage are compensated for their loss.
If you need more information, or need help with an aviation case, contact Mike Andrews by clicking the button below.
Sources: National Transportation Safety Board, Time Magazine, CNN
Class Action Litigation
Court Denies YouTube And Google’s Motion To Dismiss BIPA Suit
The Northern District of California has rejected Google and YouTube’s attempt to dismiss a proposed class action claiming the companies used video editing tools to collect biometric data. U.S. District Judge James Donato held that Nathan Colombo, named plaintiff in the litigation, adequately alleged that YouTube LLC and Google LLC, its parent company, violated Illinois’ Biometric Information Privacy Act (“BIPA”) by collecting and indefinitely storing facial scan data though YouTube’s face blur and thumbnail generator tools that allow users to edit videos.
In its motion to dismiss, YouTube argued that Colombo failed to allege the collected data qualified as biometric identifiers or information as defined by BIPA because it was not linked to any name or email address. The court disagreed, noting in its order that biometric identifiers include “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” Colombo alleged YouTube’s face blur and thumbnail generator tools collected and stored facial geometry data without disclosing this to users.
In particular, the face blur tool recognizes faces in videos and allows users to blur out individuals. Colombo’s complaint alleges there is a possibility the facial recognition data is permanently stored, evidenced by the fact that “when a user runs the tool multiple times on the same video, ‘the previously stored result is provided to the user without actually rerunning the tool again.’” This is the case even when a user runs the face blur tool multiple weeks after its initial run, despite defendants’ representations that they only have access to the detected faces for a few hours.
Likewise, YouTube’s thumbnail generator includes an automatic facial scan for videos. According to Colombo, YouTube is collecting data from facial geometric scanning within each YouTube video (including videos uploaded in Illinois).
The court’s order “rejected YouTube’s argument that Colombo’s claims violate the extraterritoriality doctrine as the complaint doesn’t allege that the data gathering is processed on devices or servers in the state.” The judge emphasized that Colombo is an Illinois resident who has uploaded YouTube videos numerous times from within Illinois. The court further held in its order that the “provision of access and services to Colombo and other Illinois users constitutes in-state activity by YouTube.”
Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are actively involved in the handling of cases relating to BIPA violations. If you are aware of your biometric information being collected or disclosed without your consent, contact Beasley Allen lawyers Rachel Minder, Rebecca Gilliland, or Tyner Helms.
Judge Tosses Borrowers’ Usury Claims After $43 Million Win
A Virginia federal judge granted a request from Virginia borrowers to dismiss usury claims against a loan financier accused of teaming up with a Native American tribe to issue loans with unreasonably high rates. The decision follows a $43.4 million award to the borrowers against the lender over liability in a federal Racketeering Influenced and Corrupt Organizations Act (RICO).
The case was scheduled for trial in mid-July. Still, the plaintiffs told U.S. District Judge Robert E. Payne that litigating the remaining claims against the lender, Matt Martorello would be time-consuming and costly. And any damages the borrowers would recover based on usuary claims would “overlap entirely” with the sizeable award the borrowers already received.
The plaintiffs comprised two borrower classes, both certified in 2021. The borrowers accused Martorelllo of channeling high-interest loans through Red Rock Tribal Lending LLC and its successor, Big Picture Loans LLC. Both companies were associated with the Lac Vieux Desert Band of Lake Superior Chippewa.
Martello and another firm, Bellicose Capital LLC, managed and funded the loans, some carrying interest rates exceeding 700 percent. The plaintiffs claimed that Martorello used the partnership with the Michigan tribe to bypass Virginia’s usury restrictions. Virginia limits annual interest rates to 12 percent. In return for using its name, the Lac Vieux Desert Band reportedly received 2 percent of the revenue from the lending activities.
The plaintiffs are represented by Leonard A. Bennett of Consumer Litigation Associates PC and Kristi C. Kelly and Andrew J. Guzzo of Kelly Guzzo PLC.
The case is Williams et al. v. Big Picture Loans LLC et al., case number 3:17-cv-00461, in the U.S. District Court for the Eastern District of Virginia.
Sources: Law360, Reuters
Judge Rejects $5.5 Million Google Cookie Deal
A Delaware federal judge overseeing decade-long complaints against Google rejected a $5.5. million class action deal that would have ended claims that the tech company unlawfully tracked users’ online activity.
Judge Eduardo Robreno’s refusal to approve the cy pres, or next best, settlement will likely hasten the extinction of class action deals that release monetary claims but pay non-profits rather than class members. In these cases, class members are usually impossible to identify with any reasonable effort. Cy pres class action deals in which all funds are given to charity have become exceedingly rare.
The class action, first filed in 2012, alleged that Google and other companies used code to dodge the privacy settings on Apple Safari and Microsoft’s Internet Explorer web browsers so it could track user data with cookies.
Google and class counsel worked out a settlement in which none of the $5.5 million would have been paid to class members. They asked the judge to appoint a neutral party that would choose charities to receive the settlement payouts instead. Both sides agreed that it would be impossible to identify the millions of class members affected by the alleged Google cookie scheme.
Judge Robreno said the 3rd US Circuit Court of Appeals rules for class actions seeking monetary damages barred the class from being certified, so he could not approve the deal. In the 3rd Circuit, a class cannot be certified unless there is a feasible way to determine who the class members are. Class counsel has said it would appeal Judge Robreno’s decision.
The case is In re: Google Inc. Cookie Placement Consumer Privacy Litigation, case number 1:12-md-02358, in U.S. District Court for the District of Delaware.
Class Action Lawyers At Beasley Allen
Beasley Allen lawyers are heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:
Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin.
If you need help on a case that would be a class action, you can contact one of these lawyers. You can also contact Michelle Fulmer, Section Director, and she will have one of the lawyers contact you. Michelle can be reached by clicking the button below.
Eleventh Circuit Panel Affirms Insurer’s Uniform Reduction Of The Value On Totaled Vehicles
A three-judge panel for the Eleventh Circuit Court of Appeals recently affirmed summary judgment in favor of an insurer over classwide allegations that the insurer reduced the payouts on total loss vehicles by uniformly imposing a downward condition adjustment on dealer-advertised prices of comparable vehicles. The spilt panel held that the insurer’s methodology pertaining to actual cash value did not violate Florida law.
The lawsuit arose after the proposed class representative was involved in a car accident that totaled her 2014 Lexus. The insurer, Safeco Insurance Company of Illinois, calculated the actual cash value of the vehicle using the Certified Collateral Corporation ONE Market Valuation (“CCC”) system.
To arrive at the actual cash value of the vehicle, the CCC system first obtained the prices of 12 comparable vehicles of the same make, model, and year advertised by car dealers to determine the base value. Then, the CCC system applied a uniform reduction to the dealer-advertised prices of the 12 vehicles by deducting approximately $1,000 from the value of each vehicle to purportedly account for the difference in the vehicle’s sale-ready condition and normal wear-and-tear condition.
The CCC system subsequently averaged the prices of the 12 comparable vehicles with the condition adjustment and adjusted the average to account for the condition of the plaintiff’s Lexus, which resulted in Safeco’s calculation of the actual cash value.
The plaintiff brought a proposed class action alleging, among other things, that Safeco’s method of calculating the actual cash value of her totaled vehicle violated Florida statutory law and breached her insurance policy. The Florida statute at issue provided that the payment for a totaled vehicle be “based on the actual cost to purchase a comparable motor vehicle” and listed three methods for calculating the actual cash value. The proposed class action plaintiff contended Safeco’s calculation method was inconsistent with the statute in two ways: (1) through the use of uniform condition adjustment to comparable vehicles; and (2) by using dealer-advertised prices for the comparable vehicles rather than actual sales prices.
In affirming summary judgment in favor of Safeco, the panel was split with Circuit Judge Jill A. Pryor writing for the majority, joined by Judge William H. Pryor and Judge Britt C. Grant writing a dissent. The majority held that Safeco’s method for calculating the actual cash value did not violate Florida law, reasoning that the statutory provisions merely provided the starting point for actual cash value calculations, which did not prohibit the use of the adjustments nor the use of dealer-advertised prices for comparable vehicles rather than the actual sales costs. The majority further reasoned that the “based upon” language in the Florida statute did not mandate that the settlement for totaled vehicles be equal to the actual cost to purchase a comparable vehicle.
The dissent said that the majority conflated value with cost because Safeco’s uniform condition adjustments to the comparable vehicles did not reflect the money needed to purchase a comparable vehicle. As such, Judge Grant reasoned that it was possible and likely that “an insured could not purchase any of the comparable cars for the amount the insurance company says is the ‘actual cost’ to purchase a comparable vehicle.”
The case is Gina Signor v. Safeco Ins.Co. of Illinois, Case No. No. 0:19-cv-61937-WPD.
THE WHISTLEBLOWER LITIGATION
11th Circ. Says Government Can’t Dismiss FCA Suit Without Intervening
A lawsuit accusing federal officials of sending $2.7 million of Honduran hurricane aid to an agency independent of the Honduran government will proceed. The Eleventh Circuit cited a June 16 U.S. Supreme Court opinion allowing the case to move forward.
In 2020, an Alabama federal judge dismissed the lawsuit alleging that the U.S. Agency for International Development (USAID) incorrectly sent millions of dollars to a construction project managed by an independent agency. Legal precedent at the time allowed False Claims Act (FCA) suit dismissal without government intervention. The Supreme Court’s United States ex. rel Polansky v. Executive Health Resources Inc. opinion reverses that, an Eleventh Circuit 13-judge panel said.
Relators John P. McAvoy, Marco Zavala and Murray Farmer previously accused the USAID of conspiring to redirect money from the $250 million the U.S. allotted to aid Honduras in the aftermath of Hurricane Mitch in 1998. The hurricane killed approximately 7,000 people.
The relators alleged that USAID officials and an agency called Fondo Hondureno de Inversion Social (FHIS) took $2.7 million from a designated project and paid $100,000 of FHIS’s legal expenses. The leftover $2.6 million was then put toward a different project.
The relators further alleged that FHIS was not a Honduran government agency. Instead, it was a “separate and independent entity,” as a District of Columbia federal court found in 2014.
The U.S. government did not intervene in the case and requested case dismissal, determining that FHIS could receive funding as a government agency. The U.S. also questioned the relators’ accusation that the Honduran government lied about FHIS’s eligibility as a public agency. U.S. District Judge Kristi K. DuBose ultimately dismissed the case. She said:
A qui tam False Claims Act case is not an appropriate vehicle to challenge official actions of a government agency. As explained above, a qui tam action is brought on behalf of the United States when the United States has been defrauded. The United States is adamant that it has not been defrauded.
The Eleventh Circuit’s decision vacated the ruling. The case has been sent back to the lower court.
Michael S. Arif of Arif & Associates PC represents McAvoy. Arif and Willie J. Huntley Jr. of the Huntley Firm PC represent Zavala and Farmer.
The case is U.S.A. et al. v. John McAvoy et al., case number 20-10604, in the U.S. Court of Appeals for the Eleventh Circuit.
Booz Allen to Pay $377.5 Million in FCA Case Over Improper Billing
Booz Allen Hamilton Holding Corp. agreed to pay $377.5 million to resolve whistleblower claims regarding improper billing. According to the U.S. Department of Justice (DOJ), the settlement is one of the largest fraud settlements in U.S. history.
The DOJ said Booz Allen violated the False Claims Act by billing costs to its government contracts and subcontracts that it should have charged to its commercial and international contracts. The practice allegedly persisted from 2011 to 2021.
Government contracting regulations require a direct connection between costs charged to a government contract and the contract’s objectives. Contractors can bill the government for expenses directly related to the contract or indirect costs that benefit multiple contracts. But contractors can only do this if the government’s contract also benefits from these expenses.
The DOJ claims that Booz Allen had improperly allocated costs that had no connection to the government contracts or were distributed disproportionately. The engineering services provider also failed to disclose its accounting methods for expenses related to its international and commercial operations, the Justice Department added. As a result, Booz Allen was essentially receiving reimbursements from the government for expenses incurred in commercial activities that provided no benefit to the U.S.
The allegations against Booz Allen originated from a qui tam lawsuit filed by former employee Sarah Feinberg. Feinberg will receive over $69.8 million as part of the settlement agreement.
The case is United States ex rel. Feinberg v. Booz Allen Hamilton Inc., case number 16-1911, in the U.S. District Court for the District of Columbia.
KBR Settles Iraq War FCA Case for $109 Million
KBR Inc. has settled a False Claims Act (FCA) lawsuit brought against the company for $108.75 million after whistleblowers accused the company of overcharging the U.S. Army. Specifically, the whistleblowers alleged that the company charged the Army for unnecessary materials under the Logistics Civil Augmentation Program (LOGCAP III) contract, despite having abundant materials stored in warehouses.
The litigation against KBR has been ongoing for over 12 years. The $108.75 million settlement the company will pay is the largest to date in any fraud or wasteful spending case associated with the Iraq War, according to the firms representing whistleblowers Geoffrey Howard and Zella Hemphill Anderson. Howard and Anderson will receive 29% of the settlement. The whistleblowers’ lead counsel, Eric Havian of Constantine Cannon, said:
For years, we have heard that KBR and other contractors ripped off the Army for billions of dollars during the Iraq War, yet this is one of the only cases to recover any of that money for taxpayers. It is especially notable that these courageous whistleblowers, not the Government, held KBR to account for its fraud.
The Government awarded KBR the LOGCAP III contract in 2001 to support the “war on terror.” The work performed under the contract assisted the Army during the Afghanistan War, Iraq War and in other countries.
The whistleblowers alleged that KBR failed to assess its current inventory before ordering more, as required by the contract. The whistleblowers further alleged that KBR lied to the Army about the inventory checks.
Howard, who previously worked in KBR’s IT department, and Anderson, who supervised KBR’s inventory assessment, accused the company of ignoring their complaints.
Howard and Anderson also said that KBR was unconcerned with the extra inventory because the company was reimbursed by the Army and profited from the excess materials. The company sometimes went so far as to hide inventory in its management system so that anyone accessing the inventory list would be unable to see it, according to the whistleblowers.
In total, KBR ordered approximately $340 million in unnecessary materials during the Iraq War, Howard and Anderson claimed. For example, the company placed orders for electrical wire despite having 65 years’ worth of inventory already.
At the end of the war, KBR gave some of the extra inventory to the Iraqi Government. The company also abandoned some of it, the whistleblowers said.
Evidence indicated that KBR managers and executives knew about the excess inventory and were aware of the steps taken to cover up the fraudulent scheme.
The whistleblowers are represented by Eric Havian of Constantine Cannon LLP, David Chizewer of Goldberg Kohn and Edward Arens and George Collins of Phillips & Cohen LLP.
The case is U.S. ex rel. Howard and Hemphill v. KBR Inc. et al., case number 4:11-cv-04022, in the U.S. District Court for the Central District of Illinois.
Former Nursing Home Owner, 2 Workers Settle Medicare Scam Suit for $1.38 Million
A former nursing home owner and two of its occupational therapy assistants settled a federal lawsuit for $1.38 million. Federal prosecutors claimed they submitted false claims to Medicare.
Diversicare Healthcare Services, LLC, owns 43 healthcare facilities across five states, including Canterbury Health Care Facility in Phenix City, before March 3, 2023. The facility employed therapy assistants Kellie S. Lemons and Charles M. James. The parties agreed to pay $1.38 million to the federal government to resolve claims they violated the False Claims Act. Sandra Stewart, U.S. Attorney for the Middle District of Alabama, announced the settlement.
A former Diversicare employee blew the whistle on Lemons and James, claiming the two falsified occupation therapy records by clocking in to work at Canterbury Health Care Facility but leaving to work at other home health care companies at the same time. Lemons and James then billed Medicare for working those hours at Canterbury Health Care when they weren’t actually there.
The whistleblower also claimed Diversicare condoned the employee’s behavior and “knowingly submitted false claims to Medicare for reimbursement of these services.” The whistleblower should receive over $200,000 of the settlement by coming forward. Under the False Claims Act (FCA), the whistleblower is usually entitled to a share of the recovery if money is recovered for the government in a qui tam case.
The Beasley Allen Whistleblower Litigation Team
Beasley Allen lawyers remain heavily involved in the handling of whistleblower cases. Fraudulent conduct in Corporate America continues to cause huge problems in many industries in this country. Due to the case volume, we significantly increased our firm’s healthcare whistleblower practice months ago. Currently, our lawyers are handling cases throughout the country involving fraud against governments at both the federal and state levels.
If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below.
The experienced lawyers on the Whistleblower Litigation Team are dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group.
Hundreds Of Investors Impacted By Texas Clean Energy Ponzi Scheme
In early May, the U.S. Securities and Exchange Commission (SEC) filed a complaint in U.S. District Court for the Western District of Texas, alleging that a Texas lawyer, Roy W. Hill, and Pennsylvania dentist, Eric N. Shelly, used a pair of companies they control, Clean Energy Technology Association Inc. (CETA) and Freedom Impact Consulting LLC (FIC) to bill investors for over $155 million since 2020.
Hill and Shelly told investors that CETA would use their funds for the purchase and deployment of patented carbon capture units used in oil and gas extraction. Investors would purchase the carbon capture units from CETA for approximately $1.5 to $1.65 million each. CETA claimed it would then lease the units back from investors so that they could be deployed to oil and gas operations in Texas.
Instead, the whole operation was a Ponzi scheme. In a declaration filed with the complaint, an SEC Senior Enforcement Accountant who reviewed CETA’s financial records stated that new investments were used to pay off prior investors, adding that he “saw no evidence of any revenue or income” from oil and gas production. Hill claimed CETA had a contract with ExxonMobil for the use of the machines, but a declaration from Exxon staff states the company has no record of any contract with, or payments to, CETA. Additionally, the U.S. Patent and Trademark Office has no record of any patents on any of the carbon capture equipment.
Hill promised high investment returns from CETA’s carbon capture units – as much as 10% per quarter. Shelly, who has never been registered to deal in securities, created funds to pool investor money and purchase the units from CETA. According to the SEC accountant’s declaration, Shelly sent nearly all investors’ funds to CETA, where they were used to pay investors and keep the scheme going.
Not all investors went through Shelly’s funds, however. Some investors sent large sums of money directly to CETA. One group of investors purchased carbon capture units directly from CETA with the aid of federally guaranteed U.S. Small Business Association (“SBA”) loans that were provided by UniBank, a regional bank based in Lynnwood, Washington.
On June 29, 2023, attorneys with Beasley Allen’s Consumer Fraud & Commercial Litigation Section filed a complaint in federal court in Washington state on behalf of this group of investors. UniBank, its directors and officers, and U&I Financial, UniBank’s parent holding company, are named as defendants. The complaint alleges multiple claims, including, among others, violations of the Securities Act of Washington, the Consumer Protection Act of Washington, and the federal Racketeer Influenced and Corrupt Organizations (“RICO”) Act. UniBank provided loans to these investors totaling over $18 million.
The complaint details federal regulations and procedures that exclude “passive” investments from eligibility for SBA loans and alleges that UniBank pushed the loans through even though it knew that the CETA transactions should not have qualified for the loans. The SBA loan program is operated by the federal government to help small businesses obtain credit that otherwise might be hard to obtain. The loans are funded by banks, but the federal government guarantees the bank it will cover between 75-85% of the loan in the event of default, thus lowering the risk on the bank’s books.
SBA loans are meant for small businesses that are “actively involved in conducting business operations,” with limited exceptions on using loan proceeds for passive investments. Per SBA guidelines, if the borrower is a passive company, an operating company must be a guarantor or a co-borrower on the loan. According to the complaint, Hill refused to provide basic business information to UniBank, such as CETA’s audited or reviewed financials, bank statements, tax returns, or copies of the purported Exxon contract. Still, UniBank funded the SBA loans without including CETA as a guarantor or co-borrower, even though the bank knew that the investors would not be operating the equipment.
The complaint further claims that UniBank employees engaged in conduct going beyond that of a mere lender providing financing. UniBank staff allegedly provided guidance to borrowers on whether they qualified for the SBA loan programs and how to ensure the SBA would approve their businesses and loan documents. The Plaintiffs relied on UniBank’s knowledge and experience to ensure they were qualified for the loans. Further, UniBank employees allegedly made material misrepresentations and omissions about the CETA investments to the plaintiffs, including preparing financial projections for the carbon capture units, which were then provided to the plaintiffs and the SBA. The complaint claims that this conduct goes beyond lending and is more like that of a securities promoter or seller, thus subjecting the bank to liability for securities fraud.
The case is Brodie L. Bowman, et al. v. UniBank, et al., Case No. 2:23-cv-00971, in the U.S. District Court for the Western District of Washington.
Beasley Allen Securities Litigation Team
Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are very active in securities cases. This area of our practice has continued to grow. As predicted, there has been a marked increase nationally in securities litigation. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation.
You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following lawyers: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached by clicking the button below.
MASS TORTS LITIGATION
Philips Provides Report To FDA On Testing Of CPAP Machines; Plaintiffs’ Counsel Claims Report Is “Science For Hire” And Incomplete
The litigation against Philips Respironics involving its recalled sleep and respiratory care devices continues to move forward. Hundreds of personal injury cases are currently pending before U.S. District Court Judge Joy Flowers Conti in the United States District Court for the Western District of Pennsylvania. The personal injury cases and several class action cases are part of Multidistrict litigation (MDL) as ordered by the Judicial Panel on Multidistrict Litigation. In addition to the personal injury plaintiffs who have filed suit, tens of thousands more have been added to a Census Registry where plaintiffs can toll the statute of limitations for their claims.
On June 14, 2021, Philips issued a voluntary recall notification for certain sleep and respiratory care devices. The recall was to address identified potential health risks related to the sound abatement foam in these devices. Philips has utilized polyester-based polyurethane (PE-PUR) sound abatement foam to dampen device vibration and sound during routine operation.
Following the recall, the FDA issued an order requiring Philips to release information about the data from test results and findings from testing the PE-PUR foam used in recalled devices for volatile organic compounds and particulate matter. Several months ago, Philips provided a report to the FDA consolidating what they claim is a complete set of data. Philips also released a much more abbreviated report to the public and healthcare providers titled “Update on PE-PUR Testing Results and Conclusions Available to Date.”
In its report, Philips now claims that at the time the recall was issued, it relied on an initial, limited data set and toxicological risk assessment. Philips states that since the recall, it has collaborated with independent, certified laboratories to conduct “a comprehensive test and research program on the PE-PUR foam to better assess and scope the potential patient health risks related to possible emission of particulates from degraded foam and [volatile organic compounds].” Philips claims that the assessment concluded that exposure to foam particulates and volatile organic compounds is unlikely to result in an appreciable harm to patients.
Counsel for plaintiffs has criticized Philips’ report as “science for hire” because the testing was conducted by a paid third party for the purposes of litigation and only contains conclusions. Plaintiffs’ counsel has also pointed out that the FDA is still in the process of evaluating the data and that the discovery process in this litigation has only just begun.
Beasley Allen lawyers are currently investigating claims related to the devices recalled by Philips where users have developed lung cancer, asthma, chronic respiratory injuries, or kidney disease. However, our lawyers are currently only investigating claims for plaintiffs who reside in states with statutes of limitation of three years or longer. For more information, contact Beau Darley, Alexa Wallace or Melissa Prickett.
Sources: In re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Liab. Litig., MDL No. 3014, Philips.com
Infant Formula Litigation Update
Beasley Allen lawyers continue to investigate cases involving the development of Necrotizing Enterocolitis (NEC) in premature infants who were fed cow’s milk-based infant formula products. NEC is a dangerous gastrointestinal condition that damages developing intestinal tissue, often causing intestinal perforations that allow bacteria and other harmful substances to leak into the abdomen and bloodstream. Many of these stricken babies require surgery to repair the necrotic intestinal tissue, and 20-30% do not survive.
A number of lawsuits against formula manufacturers are currently pending in federal court and have been centralized into a multidistrict litigation (MDL), which is currently pending before Judge Rebecca R. Pallmeyer. The MDL continues to move toward scheduling initial bellwether trials. Last month, the parties submitted a proposed scheduling order to Judge Pallmeyer. The proposed order allows for continued discovery over the next several months, with a selection of four initial bellwether trial cases this fall. The proposed schedule also anticipates the completion of expert discovery and qualification hearings over the course of 2024, with a decision on final trial dates to come in the last quarter of 2024. This proposed order has not yet been approved by Judge Pallmeyer.
There are also many lawsuits filed against formula manufacturers in state courts, including many handled by Beasley Allen. In March of this year, Judge Dennis Ruth denied several of Defendant’s Motions to Dismiss, as well as motions to transfer venue, in cases pending in Madison County, Illinois. Those cases are currently stayed, pending defendants’ appeal of Judge Ruth’s rulings. Cases currently pending in St. Clair County, Illinois continue to move forward and are currently focusing on document discovery and depositions. We are hopeful that these pending cases will soon begin moving toward a trial date.
David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, are currently investigating and filing these cases.
Acetaminophen And Autism/ADHD MDL Court Dismisses Plaintiff’s Claims In “Safe Harbor” State
On May 15, 2023, the Acetaminophen and Autism/ADHD MDL Judge Denise Cote dismissed a Texas plaintiff’s claims based on a statutory “safe harbor” provision for defendants who label drugs in compliance with federal requirements. Judge Cote determined that she would apply the state substantive law for states like Texas that have a safe harbor provision based on a “most significant relationship” conflict of law analysis.
Judge Cote ruled that Texas law had the most significant relationship to the case at issue because it involved a Texas plaintiff who purchased the store-brand acetaminophen products in Texas. The Texas plaintiff’s claims were ultimately dismissed due to the court’s application of Texas’ safe harbor provision that creates a rebuttable presumption that the defendant manufacturer is not liable when in compliance with federal labeling requirements.
In the same opinion, Judge Cote denied dismissal of another case based on a similar safe harbor law in California.
Beasley Allen lawyers in our Mass Torts Section are investigating cases involving prenatal exposure to acetaminophen who have subsequently been diagnosed with ASD or ADHD. For more information, contact Mary Raybon or Melissa Prickett, lawyers in our firm’s Mass Torts Section.
Source: In re: Acetaminophen – ASD-ADHD Prods. Liab. Litig., 22-md-03043-DLC, Doc. 634
Hair Relaxer Litigation Update
Beasley Allen lawyers have continued advancing chemical hair relaxer litigation in both state and federal court venues. The litigation began following the October 17, 2022 publication of a study from the National Institutes of Health that found that women who frequently use hair relaxer products are more than twice as likely to develop uterine cancer compared to those who don’t.
Over the last couple of months, additional cases have been filed in Illinois state courts, where a number of defendant corporations are located. With the increased number of cases in Illinois state courts, the cases have been consolidated for pre-trial and discovery matters. Initial discovery efforts are ongoing. Following discovery, these cases will be reassigned to trial judges in their original venues.
In Georgia state courts, plaintiffs have successfully fought off Defendants’ initial Motions to Dismiss. Discovery is stayed while these rulings are currently under appeal. Hearings on motions to dismiss in other cases are scheduled to take place over the next few weeks.
In the federal court multidistrict litigation (MDL), Beasley Allen has been heavily involved as part of the Plaintiff Expert Committee and otherwise assisting to advance the Plaintiff Steering Committee’s positions. Initial discovery requests were sent out to the primary six defendants identified in the MDL during the last week of June. Additional defendants have started to make appearances in the case. It is likely that the number of defendants will increase as the litigation progresses.
Beasley Allen lawyers have filed cases in Georgia state court, Illinois state court, and the federal court MDL in the Northern District of Illinois, with many more filings to follow. Our lawyers are actively investigating cases of women who developed uterine cancer, endometrial cancer, and ovarian cancer after using chemical hair relaxers. For more information or need help on a case, contact Melissa Prickett or Aigner Kolom, lawyers in our Mass Torts Section, by clicking the button below.
TOXIC TORT LITIGATION
A Look At The Opioid Litigation In Alabama
The Alabama Legislature is set to hold several public hearings later this year to help decide how to spend opioid settlement money. Alabama is slated to receive a total of $249 million from the latest four Settlements with CVS, Walgreens, Teva, and Allergan, to be divided between the State, subdivisions, and public hospitals. This is in addition to the settlements with McKesson and Johnson & Johnson, which total $230 million that the State, in conjunction with law firms Beasley Allen and Prince Glover Hayes, have already received and finalized.
The Opioid Settlement Oversight Committee is expected to allocate a large portion of the settlement money toward community-based treatment programs for opioid addiction victims. Alabama was hit very hard by the opioid crisis. Alabama consistently has the highest per capita opioid prescription rate in the United States.
Funds from these settlement agreements are restricted and must be spent on programs designed to abate the opioid crisis. That would include spending on treatment and prevention programs, Narcan for first responders to treat overdoses, and fellowship training programs for physicians to train in addiction medicine.
House-Joint Resolution 204 proposed creating the Opioid Settlement Oversight Committee as a means to make recommendations for allocating money from opioid settlements. The committee will include state and medical leaders or their designees.
The State of Alabama continues to litigate claims related to the opioid crisis against AmerisourceBergen and Cardinal Health in a Montgomery County Circuit Court. The State’s team is comprised of the following lawyers:
- The Attorney General’s Office: Michael Dean, Clay Crenshaw, and Lindsay Dawson.
- Beasley Allen: Rhon Jones, Matt Griffith, Jeff Price, Elliot Bienenfeld, Rick Stratton, Gavin King, and Elizabeth Weyerman
- Prince Glover Hayes: Josh Hayes, Bob Prince, and Blake Williams
We will keep our readers up to date on this very important litigation. If you have any questions, contact Rhon Jones.
AFFF MDL Settlement Alert
The worldwide leader in PFAS manufacturing, 3M Company, has agreed to terms to settle litigation brought on behalf of water utilities for pollution caused by firefighting foams (AFFF) containing PFAS chemicals. This announcement comes on the heels of 3M competitor DuPont’s similar settlement announcement last month.
The proposed settlement is for up to $12.5 billion to resolve a class of nearly every water utility in the country. On July 3, 2023, Plaintiffs filed a Motion for Preliminary Approval of Class Settlement, Certification of Settlement Class, and Permission to Disseminate Class Notice. Generally, the class of water utilities affected are all utilities with PFAS detections or currently required to test for PFAS. Class members generally assert a damages theory that seeks recovery of costs incurred in testing, monitoring, remediating, and/or treating water to remove PFAS from drinking water.
While these announcements seem to bring resolution to many utilities with much-needed funds to remediate PFAS contamination, a number of studies indicate the announced settlement will be far from enough to cover the actual expenses incurred by the nationwide class of utilities. In fact, Beasley Allen lawyers believe the amount is grossly inadequate. One study estimated that the removal of PFAS from public water utilities nationwide could cost nearly $400 billion.
Every eligible water utility will have an opportunity to opt out of the proposed settlement. Beasley Allen currently represents water utilities pursing independent legal action for PFAS contamination. If you know of any water utility that would like to protect and retain their legal rights against PFAS manufacturers, contact David Diab. He will be glad to help you.
Beasley Allen is also accepting claims on behalf of firefighters exposed to AFFF and individuals exposed to drinking water containing PFAS.
Sources: In re: City of Camden v 3M Company, Civil Action No.: 2:23-cv-03147-RMG (D. S.C. 2023), Mem. of Law in Supp. of Pls.’ Mot. for Prelim. Approval of Class Settlement, For Certification of Settlement Class, and For Permission to Disseminate Class Notice, 1-62, ECF No. 3370-1, Dupont, American Water Works Association
Paraquat Litigation Update
Two major events are quickly upcoming in the ongoing Paraquat litigation. Currently, the multidistrict litigation has a trial date set in October of this year. The JCCP in California has a trial date set for January of 2024. These trials will play a crucial role in shaping the paraquat litigation. Before these dates, however, both courts are evaluating the expert witnesses proffered by both sides. These rulings will determine the scope of testimony and evidence allowed in at trial.
As we approach closer to trial, Leslie LaMacchia and Julia Merritt, Beasley Allen’s lawyers leading the paraquat cases, are preparing our client’s cases aiming toward a successful result. Matt Pettit is also working closely with Leslie and Julia for our paraquat clients. These lawyers have hosted numerous webinars to help other lawyers with complicated issues that these paraquat cases involve. If you have a case, or even a potential case, that you would like to discuss with either Leslie, Julia, or Matt feel free to reach out to them. They are more than willing to assist in case review or offer suggestions on how to move forward with a case.
Beasley Allen lawyers continue the intake and filing processes for paraquat applicator cases for claimants with Parkinson’s disease or Parkinson’s-like symptoms. If you have any questions about the paraquat litigation or want to work with us on a case, contact Julia Merritt, Leslie LaMacchia, or Matt Pettit.
22 States Oppose 3M’s $12.5B PFAS Settlement
A group of 22 states has asked a South Carolina court to reject a $12.5 billion settlement offered by 3M to end litigation related to per- and polyfluoroalkyl substance (PFAS) contamination. Public water utilities sued 3M over the “forever chemicals” leaked into the water supply because they can cause health problems in humans, including thyroid disease, cancer and weakened immunity. The states argue that 3M’s offer is not worth $12.5 billion.
The states filed a motion to intervene in the litigation and raised opposition to the settlement offer, which would provide money for the water companies to treat the PFAS contamination. In their opposition, the states focused on the offer’s indemnification clause that would hold water utilities liable. Providing an example, the states said that if water contaminated with PFAS causes a cancer cluster and those affected sue 3M, 3M would likely be able to sue the water companies in turn. The states said:
As such, the proposed settlement is worth far less than the advertised $10.5 billion to $12.5 billion.
The water companies and other plaintiffs allege that 3M’s firefighting foam contains PFAS, which leaked into the local water supply people use for drinking and bathing.
3M and the water utilities reached the settlement agreement in June before a trial began.
In addition to the states, three towns in New York seek settlement rejection. The towns claim that the proposed offer fails to consider them, arguing that they should be included because they’ve covered the cost of PFAS cleanup.
In their opposition, the states point out that almost all public water utilities would be bound by the settlement regardless of whether they have sued 3M. Many utilities have yet to test for PFAS in their water supplies. The State Coalition said:
Individual water providers would be bound by the proposed settlement unless they proactively opt out, whether or not they have sued 3M or already tested for PFAS. Troublingly, they would have to make their opt-out decisions without knowing how much they would actually receive and, in many cases, before knowing the extent of contamination in their water supplies and the cost of remediating it.
California Attorney General Rob Bonta argued that the offer fails to “adequately account for the pernicious damage that 3M has done in so many of our communities.” He continued:
I have both a moral and legal obligation to voice my opposition, and I thank the court for considering our concerns.
Bonta indicated that California sued 20 PFAS manufacturers last year, alleging the endangerment of public health. The state further alleged that the manufacturers harmed natural resources and lied to the public. The case is pending.
Colorado Attorney General Phil Weiser said that Colorado has also sued PFAS manufacturers. He said:
Coloradans now suffer degraded water quality and public health injuries on account of the actions of 3M and other companies who manufactured and marketed PFAS. By taking action today, we are standing up for our citizens and fighting for an adequate and appropriate resolution of the ongoing litigation.
New York Attorney General Letitia James agreed with the settlement opposition, saying the current offer “would allow 3M to skirt responsibility for their pollution and could leave taxpayers on the hook for expensive cleanup efforts.”
The state has spent tens of millions of dollars cleaning up PFAS contamination already, according to James. She stated:
New Yorkers have a basic right to clean drinking water, and I will not allow corporate polluters to avoid their responsibility to clean up their messes
The respective attorneys general represent the states. Napoli Shkolnik LLP, Baron & Budd PC, Douglas & London PC, Weitz & Luxenberg, Morgan & Morgan PA and Levin Papantonio represent the other plaintiffs.
The case is In re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.
EMPLOYMENT AND FLSA LITIGATION
U.S. Supreme Court Addresses Religious Discrimination Standard, Requires Business Owners To Show “Substantial Increase Costs”
On June 29, 2023, the Supreme Court of the United States (SCOTUS) in Groff v. DeJoy unanimously determined that Title VII requires employers who deny religious accommodations to show that granting the accommodation would result in “substantial increased costs” in conducting business. This opinion overrules the previously relied upon “de minimus standard” found in Trans World Airlines, Inc.
The instant case, filed by Gerald Groff, stemmed from his employment with the United States Postal Service (USPS). Originally, USPS’s schedule naturally allowed him to abide by his Evangelical Christian Beliefs that Sundays are to be devoted to worship and rest, as the workers did not work on Sundays. However, when USPS and Amazon agreed to an agreement, wherein USPS would facilitate Amazon’s Sunday deliveries, Sunday deliveries would have been required on Groff’s assigned route.
To resolve potential conflicts with his religious beliefs, Groff transferred to a rural route where Sunday delivery would not be required of him. Then, when his rural route was also affected, USPS, for a time, transferred Geoff’s Sunday packages to other carriers for delivery. Groff was disciplined for not working on Sundays, as other carriers – including the postmaster – had to deliver the packages that otherwise were on Groff’s route.
As a result, Groff ultimately resigned from his position. He then filed a Title VII lawsuit for religious discrimination for USPS’s failure to provide reasonable accommodations. His Title VII lawsuit was dismissed at the summary judgment stage of the litigation, and the Third Circuit affirmed the lower court’s ruling, as it applied the “de minimus standard.” SCOTUS took this opportunity to address that some lower courts have “latched on to ‘de minimus’” as the standard for hardship, which was not the intention of the court in its initial determination. SCOTUS vacated the lower court’s opinion and remanded the case.
Beasley Allen handles a variety of discrimination cases and our lawyers are ready and able to review cases involving religious discrimination by employers. Our lawyers will be monitoring case law changes as they relate to this opinion, including the ultimate decision on the Groff claims.
You can contact lawyers on our Employment Litigation Team, Larry Golston, Leon Hampton, Jessi Haynes, and Lauren Miles. They will be happy to review your potential case. They can be reached by clicking the button below.
Source: In re: Groff v. DeJoy, Post Master General, No. 22-174, In re: Trans World Airlines, Inc. v. Harrison, 432 U.S. 63
THE CONSUMER CORNER
Bank of America to Pay $250 Million for Illegal Practices, Junk Fees
Bank of America customers who paid excessive overdraft fees will receive a refund following a government order ending the bank’s “double-dipping” scheme and other unlawful practices.
In a July 11 announcement, the Consumer Financial Protection Bureau (CFPB) said it ordered Bank of America to return more than $100 million to its customers for the overdraft fees. The agency said the bank would charge customers $35 for insufficient funds and another $35 overdraft fee when a payee attempted to recharge the customer’s account.
Bank of America must also pay $150 million in penalties for the double-dipping overdraft fees and other unnecessary and exploitative practices. The CFPB said the bank illegally withheld credit card cash and point awards it had promised customers. Bank of America also misused consumers’ personal information to unlawfully enroll them in credit card accounts without their knowledge or consent.
The CFPB said the bank’s practices violated rules prohibiting unfair and deceptive acts and practices. Additionally, the bank violated the Fair Credit Reporting Act by obtaining and misusing customers’ info to open unauthorized accounts. It also violated the Truth in Lending by issuing credit cards without its customers’ knowledge or consent.
Bank of America said it has changed its practices and reported that its income from overdraft fees is down 90% since 2021. While that is good news for BofA customers, it indicates that many people struggling to make ends meet at the height of the COVID pandemic were hit with excessive and unlawful charges.
Source: Consumer Finance
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
The Structure Of Beasley Allen And How It Works
We wrote in the February issue about how Beasley Allen has grown from its start-up by me as a sole practitioner in 1979 to a rather large firm today. It was discussed how the division of the firm into sections came about. In this issue, we will expand on how the litigation sections have worked and continue to work on behalf of our clients.
The Mass Torts Section
Andy Birchfield heads our Mass Torts Section, while Melissa Prickett serves as the section’s Director. With over 50 years of combined legal experience, Andy and Melissa lead the firm’s largest section in the medical devices, medication and other practice areas. The section currently handles cases involving acetaminophen, CPAP devices, hair relaxers, heavy metals in baby food, NEC baby formula, social media and talcum powder.
The Toxic Torts Section
Rhon Jones leads our firm’s Toxic Torts Section with Director Tracie Harrison’s assistance. The section focuses on toxic exposure cases. Recent cases involve Camp Lejeune water contamination, mesothelioma, paraquat and firefighting foam.
The Consumer Fraud & Commercial Litigation Section
Dee Miles is the Section Head of our Consumer Fraud & Commercial Litigation Section. Michelle Fulmer is the Director and assists with Business Litigation, Class Action, Consumer Protection, Employment Law and Whistleblower cases.
The Personal Injury & Products Liability Section
Cole Portis heads our Personal Injury & Product Liability Section with Sloan Downes serving as the Director. The section handles auto accident, aviation accident, defective tire, negligent security, on-the-job injury and truck accident cases.
Finally, the Administrative Section includes Accounting, Human Resources (HR), Information Technology (IT) and Marketing. Michelle Parks is the Director of Accounting, while Kimberly Youngblood serves as the Director of HR, IT and Marketing.
The sections include support staff ranging from paralegals and secretaries to nurses and investigators. The number of support staff in each section varies based on the type of litigation handled. For example, the need in Mass Torts is greater because the lawyers in the Section help so many clients all across the country.
Throughout the years, our firm’s structure has contributed to its success. Section Heads and Directors have been able to concentrate on a smaller number of cases and quickly recognize when additional resources are needed. Lawyers have been able to focus their efforts on achieving favorable client results. The efficiency and teamwork generated by sections have resulted in our firm being recognized as one of the best in the country.
The Latest Look At Case Activity At Beasley Allen
Our BeasleyAllen.com website provides the latest information on the current case activity at Beasley Allen. The list can be found on our homepage, the top navigation, or the Practices page of our 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
- Toxic Exposure
- Whistleblower Litigation
The cases in the categories listed below are handled by lawyers in the appropriate Litigation Section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website.
- Auto Accidents
- Aviation Accidents
- Camp Lejeune
- CPAP Devices
- Defective Tires
- Hair Relaxers
- Heavy Metals in Baby Food
- NEC Baby Formula
- Negligent Security
- Social Media
- Talcum Powder
- Truck Accidents
We will give a brief explanation for each category below:
Beasley Allen handles cases of mothers who took acetaminophen while pregnant and gave birth to a child later diagnosed with autism or ADHD. Cases also include children treated with the drug during the first 18 months of life who developed autism or ADHD.
- Auto Accidents
Our lawyers handle life-altering and deadly automobile accident cases caused by defective products and driver negligence. Crashes may involve single vehicles, multiple vehicles, motorcycles, recreational vehicles, transit vehicles or trucks.
- Aviation Accidents
We investigate aviation accidents resulting from mechanical failures, human error and other causes. Crashes injure hundreds, sometimes thousands, of victims onboard aircraft and on the ground every year.
- Camp Lejeune
Our firm handles cases of victims exposed to contaminated water supplies at U.S. Marine Corps Base Camp Lejeune between 1953 and 1987. Exposure to toxic water caused serious injuries, including cancer, adult leukemia, Parkinson’s disease, major cardiac birth defects and others.
- Defective Tires
Defective tires can lead to automobile accidents resulting in injury or even death. Beasley Allen lawyers investigate these accidents caused by blowouts, tread separation and other tire failures.
- Firefighting Foam
We investigate cases of Aqueous Film Forming Foam exposure. This firefighting foam contains highly toxic PFAS chemicals that can lead to cancer, liver damage, decreased fertility and other health risks.
- Hair Relaxers
Our lawyers handle cases for women injured by toxic chemicals in hair relaxers. Women who frequently use hair relaxers may develop uterine cancer, endometriosis, uterine fibroids or breast cancer.
- Heavy Metals in Baby Food
Beasley Allen investigates cases of infants exposed to toxic heavy metals in baby foods. Many baby food brands contain arsenic, cadmium, lead or mercury, which can lead to serious, irreversible damage in babies’ developing brains.
We handle cases of asbestos exposure resulting in malignant mesothelioma, a type of cancer that can lay dormant for years. Millions of U.S. workers may have been exposed to asbestos decades ago.
- NEC Baby Formula
Our firm investigates cases of premature babies who developed necrotizing enterocolitis after consuming infant formulas manufactured by brands like Enfamil and Similac. Necrotizing enterocolitis is an intestinal disease that can lead to long-term complications and even death.
- Negligent Security
Establishment owners and managers are responsible for maintaining safe premises. When someone is injured or killed as a result of negligent security, Beasley Allen lawyers hold owners and managers accountable.
We investigate workers’ compensation cases, often finding that defective industrial products are to blame for workers’ injuries or deaths. Industrial products include manufacturing, farming, construction or other types of equipment.
Our firm handles cases for victims injured by paraquat, a popular herbicide linked to Parkinson’s Disease that has been banned or partially banned in at least 92 countries. Paraquat remains legal in the U.S., risking the health and safety of workers on over 2 million U.S. farms.
- Social Media
Our youth are facing a mental health crisis caused by social media addiction. Beasley Allen advocates for these youth who have suffered harms, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm and suicide.
- Talcum Powder
We handle cases for women diagnosed with ovarian cancer after regular use of talcum powder. For decades, companies like Johnson & Johnson knew that talcum powder might cause cancer but failed to warn consumers.
- Truck Accidents
Our firm handles accident cases involving tractor-trailers, commercial vehicles and other large trucks. These cases often involve multiple, well-funded defendants and complex insurance issues.
Resources to Help Your Law Practice
Beasley Allen is a litigation firm. Our lawyers only handle litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. The firm’s lawyers don’t do defense work of any kind, civil or criminal, and there are no exceptions. Beasley Allen only represents companies in Corporate America when they are victims and become plaintiffs in civil litigation. I made that decision when our firm was founded in 1979, and that has been the firm’s policy ever since.
All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers representing only victims of wrongdoing.
All of us at Beasley Allen have truly been blessed. We understand the importance of sharing resources and teaming up with peers in our profession. The firm is committed to investing in resources that will help our fellow trial lawyers in their work. For those looking to work with Beasley Allen lawyers or simply seek information that will help their law firm with a case, the following are among our most popular resources.
Beasley Allen sends out a Co-Counsel E-Newsletter 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 essential 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.
Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for live presentations. To register for upcoming events or to access past webinars on-demand, you can visit the Events and Webinar page of the Beasley Allen website at https://www.beasleyallen.com/events/.
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 and online, to a huge number of people.
You can reach Beasley Allen lawyers in the four litigation 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 our publications, visit our website at www.BeasleyAllen.com.
PRACTICAL TIPS FOR TRIAL
This month, we are providing some valuable trial tips from Mike Andrews, a lawyer in our Personal Injury & Products Liability Section. Mike is a tremendously talented lawyer whose background provided him with a great deal of technical knowledge relating to products of all kinds. Mike will discuss a recent case below and provide information that we believe will be helpful to trial lawyers.
Recently I was fortunate to try a complex product liability case with two of my very skilled law partners, Evan Allen and Kendall Dunson. Following a successful verdict, I was asked to write a brief article on trial and practice tips that served us well at trial. It goes without saying that your clients are best served when you fully prepare your case as if it will go to trial and you develop a plan and stay focused on that plan. As a result, the single most important rule for me is to prepare every single case as if it is definitely going to trial.
Trial preparation begins when you meet your client for the first time and begin evaluating how they will present to a jury and continues through every deposition all the way through trial. How a jury will view your client, the accident fact pattern, client injuries, defects, alternative designs, and witnesses should all play a role in developing your case and what aspects you choose to emphasize and use as anchors for your case. Always try to video any depositions of treating physicians who will likely be unavailable to come live at trial.
Prepare your direct questions as if the witness is on the stand testifying to the jury, and remind yourself that the testimony will be played at trial. Develop meaningful demonstrative exhibits (enlargements of X-rays or CT scans, photographs, 3D printed models of scans, etc.) that can be used during a videotaped deposition and again then later at trial.
This will help the physician explain complex treatment, will help establish continuity of the evidence and exhibits that the jury sees and is particularly important to help focus both the physician and the jury on the severity and permanence of injuries. There will be words, phrases, abbreviations and more in the medical records that are unfamiliar to you – google and learn what they mean BEFORE the deposition so that you are prepared to follow up on the significance of each one as it comes up in testimony.
Military leaders have often said that “no plan survives first contact with the enemy”. Mike Tyson simplified that concept when he said, “Everyone has a plan until they get punched in the mouth”. You have to have a plan – a theme, a reason for the order you are calling witnesses (do you want a defiant defendant corporate representative on the stand first to show the jury how callous the defendant is from the start, or do you call your accident reconstructionist first to explain the accident and scene evidence), a consistent easy to understand explanation of the defect and how it could have been eliminated through simple engineering principles, etc.
However, do not become so rigidly attached to your plan that you cannot adapt or modify it when punched in the mouth. There is no substitute for knowing everything about your case. Everything. Read and reread every record and document so that not only are you prepared to confidently present your evidence at trial, but you are also prepared to respond and adapt when a defense witness misstates or “forgets” something important.
Pick your battles at trial with defense experts. Do you really want to lose credibility and bore a jury by attacking the qualifications of a qualified engineering expert, OR do you want to skip straight to an obvious mistruth and the reason for it (tell us again how much you have been paid by the defendant to testify in this case)?
Know everything there is to know about the product at issue, the differences between it and competitor (alternative designs) products and why those differences matter so that when a defense expert casually refers to “the frame rails of the striking vehicle” as part of an explanation of speeds and crush you are prepared to ask “why would you talk about frame rails when that vehicle has a unibody construction without rails??”.
Everything is not fodder for cross – pick the points that you need to and can make and establish them solidly. Develop and show bias of the defense witness, show errors in calculations and why it would be important for the defense witness to make an accident seem more severe than it actually was, use prior papers they have written or prior testimony, but focus your points to be meaningful and effective on cross.
Finally, at trial, you should be aware of the defense arguments and be prepared to counter them but stay focused on trying YOUR case. Do not surrender control of the trial and evidence to the defendant. Take control of the context and presentation of both helpful and troubling evidence so that you can frame the context and help explain why it is important or not. Stay focused on the evidence that matters in your case and present it plainly and simply so that the jury understands what it means and why it is important. The defense will have qualified experts and skilled lawyers and they do not need your help trying their case. Focus on trying your case. Do not overreach or misrepresent. The jury is listening and watching and depending on you to honestly present facts that support the verdict that you will ultimately ask them to award.
A large number of safety-related recalls were issued during July. We mentioned several in the Motor Vehicle Litigation Section in this issue. There are other significant recalls available on our website, BeasleyAllen.com/Recalls/. We attempt 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 Jere Beasley Report, 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.
Lawyer And Employee Spotlights
Ryan Duplechin joined Beasley Allen’s Mass Torts Section as a law clerk in August 2015. Since he started as a lawyer in September 2017, he has handled products liability cases involving pharmaceuticals and medical devices. Ryan has worked with lawyers in our Products Liability Section on appellate matters involving complex personal jurisdiction and sovereign immunity issues.
Ryan was born in Birmingham, Alabama, while his father was in law school. He says his desire to become a lawyer began when he visited his dad’s law office as a child. Seeing how grateful his father’s clients were for his dad’s help made Ryan want to do the same for people.
Ryan says he enjoys the intellectual challenge involved in the practice and strategy of law. He explains:
We get to learn the ins and outs of the most complex products and issues. Then we try to simplify them in a way that anyone who sits in the jury box can understand. When that work results in making peoples’ lives better, that’s the icing on the cake.
Ryan serves as Chair of Beasley Allen’s Summer Associate Program, sharing his love of the law with the law students each year. Ryan and other firm lawyers guide the law clerks as they research and write legal memos for active cases. Our lawyers also attend an oral argument with the law clerks before the Alabama Supreme Court. In addition, Ryan and our lawyers show the clerks around Montgomery, Alabama, often visiting The Legacy Museum and attending a Biscuits baseball game.
Ryan takes pride in practicing his profession as a trial lawyers at Beasley Allen. He says:
At our firm, people come first, always. ‘Helping those who need it most’ is not just a marketing slogan. It is something that resonates in the hearts of everyone who makes up this firm.
In 2020, the Alabama State Bar (ASB) presented Ryan with the President’s Award for his leadership role in creating the COVID-19 Legal Assistance Hotline. As an ASB member, Ryan has served on several committees and is the current Young Lawyers Section Vice President. He was also selected to the ASB’s Leadership Forum Class 17.
Ryan holds several additional leadership roles and is a member of multiple professional associations. He serves on the Birmingham Bar Association’s Young Lawyers Section Executive Committee. He is also a member of the American Association for Justice’s New Lawyers Division’s Publications Committee and Preemption Law Litigation Group. Ryan serves on Alabama Association for Justice’s Amicus Curiae Committee and as an Emerging Leaders Board member. He is also active in the Federal Bar Association, Montgomery County Bar Association (MCBA), and MCBA Young Lawyers Section. Finally, Ryan participates in the Montgomery Volunteer Lawyers Program and serves as a team member of the State Rules Project for the Electronic Discovery Reference Model (EDRM).
We are blessed to have Ryan at Beasley Allen. He is a tremendously talented lawyer who truly cares about his clients. Ryan’s an asset to the firm.
Marnie Nessen is a Paralegal in the firm’s Toxic Torts Section, supporting the Paraquat litigation team. In her role, Marnie enjoys connecting with witnesses and learning all of the details to support a client’s case. She also enjoys helping clients identify medical providers for evaluation to give them the best quality of life possible if diagnosed with a disease. Marnie joined the firm just over two years ago and has been a tremendous asset to her team and the firm!
Marnie has two children, a daughter, Raelin (12), and Eliott (9). She also has one “fur child,” Ruby, a 3-1/2-year-old 90-lb Bernese Mountain dog. The family finds much joy and much humor in watching Ruby exercise on the treadmill. Marnie enjoys weightlifting, indoor cycling, and hiking in her spare time. She and her daughter, Raelin, are a part of the National Charity League (NCL), where they regularly volunteer. Separate from NCL, Marnie and her family volunteer to prepare and deliver food for needy families, which Marnie says is extremely fulfilling.
Marnie says her favorite thing about working at Beasley Allen is her team and the firm’s faith-based culture. She says, “We work really well together and operate as a true team.” We are thankful to have Marnie, who is passionate and dedicated to the clients, she serves with us!
Cole Portis serves as the Section Head of Beasley Allen’s Personal Injury & Product Liability Section. He has practiced with the firm since 1991, representing mothers and fathers who have lost children, spouses who have lost lifelong mates, and children who have been severely injured by dangerous and defective products. He handles cases involving 18-wheeler wrecks, automotive product liability claims and third-party, on-the-job accidents.
Cole says a combination of experiences from Cole’s youth impacted his decision to become a lawyer. He explains:
From participating in youth legislature in high school to being active in SGA at Auburn to working for Judge Joe Phelps in college to loving works of literature, I was naturally attracted to learning about the law.
Judge Phelps encouraged Cole to attend law school. Studying the law helped Cole decide what type of law he wanted to practice. He earned his Juris Doctor from the University of Alabama School of Law in 1990 and joined Beasley Allen soon afterward.
Cole can’t imagine practicing at any other firm. He says that Beasley Allen’s people make it unique, explaining:
Our culture as a firm is to be filled with people who are marked with integrity. While I am sure I am the chief offender of failing to uphold the standard, I hope that generally my life is marked as one of integrity. If one possesses integrity as a lawyer, then a client can be confident that the lawyer will work very hard, possess wisdom and advise well.
Beasley Allen is full of these types of people. Further, our staff and lawyers are generally not marked with selfishness. Instead, the idea is to work together toward a common goal, not worrying about who receives the accolades.
The people at Beasley Allen are not the only ones who make the legal profession rewarding for Cole. First and foremost, he appreciates his clients and the opportunity to care for, advise, guide and share his wisdom with them. He also enjoys his interactions with judges and court personnel.
Ultimately, Cole thanks God for blessing him with talents to help people. He’s grateful to use his gifts every day to further Beasley Allen’s mission of “helping those who need it most.”
Bridgitte Pugh works in the firm’s Mass Torts Section as an Intake Specialist. This role is extremely important to the firm as Intake is our clients’ initial point of contact to Beasley Allen. Bridgitte is responsible for gathering pertinent information, assisting clients with the appropriate paperwork, and helping clients get answers to their questions or assistance with addressing concerns. Bridgitte began her career at Beasley Allen in April 2020 and has been invaluable to her team and the firm! We are thankful to have Bridgitte, a dedicated and hard-working employee with us!
Bridgitte and her husband, Carey, have two daughters Baylee (18) and McKenna (15), a son, Derek (29), and a grandson, Carter (8). The Pughs live in Millbrook and enjoy camping, fishing, baseball games with their grandson, Carter, and Equestrian riding and competitions with their daughter, McKenna.
Bridgitte says her favorite thing about working at Beasley Allen is taking to clients and assisting them in their time of need. She added: “We work as a team here. I like that Beasley Allen is passionate about clients and helping people in general.”
Holly Titus is a paralegal in the firm’s Personal Injury & Products Liability Section in our Atlanta office. She works with Beasley Allen lawyers Rob Register and Brook Ptacek. Holly assists these lawyers in the preparation of their cases for trial. Holly joined the firm in March 2022 and has brought a wealth of knowledge from her extensive experience working in the legal field, previously working in medical malpractice, catastrophic personal injury, and wrongful death litigation. We are grateful to have Holly with us and are excited to see the positive impact her work has had and will continue to have for our clients and for the firm as a whole!
Holly grew up in Pittsburgh but considers Georgia her home, as she has lived in Roswell for the past 20 years. She has two sons, Kameron (29) and LaMon (24), and a family of animal rescues, Mojo (Lab), Mufasa (Orange Tabby cat), Morticia (Long Haired cat), Pickle & Rick (Serengeti kittens), Lilith (Ball Python) and Geico & Godzilith (Leopard Spotted Geckos). Holly enjoys spending time with family and friends, painting, outdoors, and traveling. She says the beach is her happy place!
Holly says her favorite thing about working at Beasley Allen is the team environment. She says:
I have the honor of working with an incredible team dedicated to helping those whose lives have been turned upside down by the carelessness of others. In all my years, I have never experienced such a healthy and supported environment.
Cole Portis Receives The 2023 J. Anthony “Tony” McLain Professionalism Award
The Alabama State Board of Bar Commissioners named Cole Portis co-recipient of the 2023 J. Anthony “Tony” McLain Professionalism Award. The award recognizes living Alabama State Bar members for outstanding, long-term and distinguished service in the advancement of professionalism. The Bar presented Cole with this year’s award at its 146th annual meeting on July 15, celebrating his impact on the legal profession and community.
The Professionalism Award is named after Alabama State Bar General Counsel Tony McLain, who passed away in 2017. Cole served as Alabama State Bar President at the time of Tony’s passing, leading the association through a period of tremendous loss. Cole observed:
Tony McLain was an encourager. He possessed wisdom and he was a servant leader. These three traits are vital when one holds the position of general counsel for the Alabama State Bar.
I think his most important trait, though, was his ability as the prosecutor to show compassion even when discipline was being leveled against an attorney. In his role as general counsel, I am certain that Tony wasn’t beloved by every lawyer, but Tony, who was universally respected, became one of the icons in our bar.
Cole – Like Tony – is recognized as a leader in the legal profession and community. In addition to serving as President of the Alabama State Bar (2016-2017), he has served as President of the Montgomery County Bar Association (2022), Alabama Young Lawyers Association (2000-2001), Montgomery County Trial Lawyers Association (1999), Auburn University Bar Association (1999) and Montgomery County Young Lawyers (1993). Cole has also served as President of the Jimmy Hitchcock Award, a prestigious award honoring Christian student-athletes in Montgomery, Alabama. Further, he serves on the Fellowship of Christian Athletes Board of Directors and the Trinity Presbyterian School Board of Trustees. Cole is currently a Morningview Baptist Church lay elder.
Along with the Tony McLain Professionalism Award, Cole has received many accolades to recognize his legal accomplishments over the past 33 years. A Martindale-Hubbell AV-rated lawyer, he is selected to the Midsouth Super Lawyers and Best Lawyers in America lists annually. He has also been selected to Lawdragon 3000, Lawdragon 500 Leading Plaintiff Consumer Lawyers, and National Trial Lawyers Top 100. Cole was also a finalist for Public Justice’s 2014 Trial Lawyer of the Year Award and was featured on the 2015 National Law Journal Plaintiffs’ Hot List. In 2010, Cole was named Beasley Allen’s Litigator of the Year.
Cole is a tremendous asset to Beasley Allen. Cole is also a dedicated lawyer, a devoted follower of Jesus Christ and a good family man. We are blessed to have Cole with the firm. His high honor is definitely earned and to well deserved.
Gibson Vance Serves Successful Term As President Of The Alabama Bar Association
Gibson Vance has wound up a tremendously successful term as President of the Alabama Bar Association. He was a great president and a credit to our firm and the legal profession.
When Gibson became the 147th President of the Alabama State Bar (ASB) in June 2022, he knew he wanted to make a difference in the lives of bar members and the public as a whole. He began his term with plans to complete the “Drive for Five” initiative and encountered some unexpected opportunities to serve throughout the year.
Gibson visited all 41 Alabama judicial circuits to tell lawyers about his “Drive for Five” program, which offers ASB members five free hours of counseling per year. His goal has been to have a state full of healthy lawyers because “to be a good lawyer, one must be a healthy lawyer,” he says. Gibson advised lawyers of a 1-800 number they could call for confidential help if they experienced mental health issues, substance abuse, alcohol addiction or suicidal thoughts.
Gibson also led the ASB in several community service projects during his term, including the Alabama Legal Food Frenzy. The eighth annual food drive provided over 350,000 meals for food banks across the state. An unexpected opportunity to serve Alabama citizens arose in January after severe storms claimed lives and damaged property in Autauga County and Dallas County, Alabama. The ASB set up a toll-free legal aid hotline for low-income residents needing assistance with FEMA claims, insurance matters, home repairs and other legal issues.
Under Gibson’s leadership, the ASB hosted several legal aid clinics last October to celebrate Pro Bono Month. The clinics gave lawyers the opportunity to work with low-income individuals who had legal needs but could not afford to pay for assistance. In addition, the ASB set up programs to connect lawyers and law students with legal aid organizations for volunteer opportunities.
Gibson joined Beasley Allen in 2000 and practices in the firm’s Personal Injury & Products Liability Section and the Consumer Fraud & Commercial Litigation Section. He has secured multiple large verdicts for his clients. Gibson is a tremendously talented lawyer who truly has the interest of clients as his top priority.
Gibson is involved in numerous professional associations in addition to the ASB. Gibson has served as President of the American Association for Justice, Southern Trial Lawyers Association, Alabama Association for Justice, Montgomery County Bar Association, Montgomery Trial Lawyers Association and Alabama Civil Justice Foundation. In August 2019, Gibson was elected by the Troy University Board of Trustees to serve as its President Pro Temp.
We are blessed to have Gibson at Beasley Allen. He is a perfect example of doing things the right way and for the right reason. God placed Gibson with the firm for a purpose.
FAVORITE BIBLE VERSES
Several lawyers and staff employees who are being featured this month share their favorite Bible verses in this issue.
Ryan Duplechin offers two of his favorite verses. The first one reminds him that God never gives us more than we can handle.
I can do all this through him who gives me strength. Philippians 4:13
Ryan shares that another of his favorite scriptures provides encouragement. He says, “As a lawyer, there are many moments that require you to step out of your comfort zone. This verse helps me take that leap.”
For the Spirit God gave us does not make us timid, but gives us power, love and self-discipline. 2 Timothy 1:7
Marnie provided two of her favorite verses. She says the first one reminds her that with God by her side, she can do anything. She adds that we shouldn’t give the enemy power over us.
Be strong! Be fearless! Don’t be afraid and don’t be scared by your enemies, because the Lord your God is the one who marches with you. He won’t let you down, and he won’t abandon you. Deuteronomy 31:6
Marnie offers her second favorite verse about cheerfulness. She says, “State of mind is everything. Cheer attracts cheer. Broken spirit/attitude attracts just that. Nothing bad ever comes from having a cheerful heart. It attracts good and it feels good to have a cheerful heart.”
A cheerful heart is good medicine, but a crushed spirit dries up the bones. Proverbs 17:22
Cole shares three of his favorite passages.
Who shall separate us from the love of Christ? Shall tribulation, or distress, or persecution, or famine, or nakedness, or danger, or sword? As it is written, “For your sake we are being killed all the day long; we are regarded as sheep to be slaughtered.” No, in all these things we are more than conquerors through him who loved us. For I am sure that neither death nor life, nor angels nor rulers, nor things present nor things to come, nor powers, nor height nor depth, nor anything else in all creation, will be able to separate us from the love of God in Christ Jesus our Lord. Romans 8:35-39
Indeed, I count everything as loss because of the surpassing worth of knowing Christ Jesus my Lord. For his sake I have suffered the loss of all things and count them as rubbish, in order that I may gain Christ and be found in him, not having a righteousness of my own that comes from the law, but that which comes through faith in Christ, the righteousness from God that depends on faith—that I may know him and the power of his resurrection, and may share his sufferings, becoming like him in his death, 11 that by any means possible I may attain the resurrection from the dead. Philippians 3:8-11
Therefore do not be anxious, saying, ‘What shall we eat?’ or ‘What shall we drink?’ or ‘What shall we wear?’ For the Gentiles seek after all these things, and your heavenly Father knows that you need them all. But seek first the kingdom of God and his righteousness, and all these things will be added to you. Therefore do not be anxious about tomorrow, for tomorrow will be anxious for itself. Sufficient for the day is its own trouble. Matthew 6:31-34
Managing Attorney Tom Methvin Has Helped Make Beasley Allen A Successful Operation
Managing our firm has kept Tom Methvin busy for 25 years. When he joined Beasley Allen fresh out of law school 35 years ago this month, he never could have imagined his leadership helping propel the firm into the plaintiff powerhouse it is today. During the past quarter of a century, the firm has experienced exponential growth with the help of Tom’s outstanding leadership. It’s significant to note that the Eufaula native’s only real job has been at Beasley Allen. He hasn’t worked anywhere else, and we are thankful and blessed for his time at Beasley Allen. Tom became Managing Shareholder in 1998 and has been in charge since then.
Staying current on legal news and educating himself on legal trends, Tom drives the firm toward “helping those who need it most.” Even before becoming Managing Attorney in 1998, Tom envisioned our lawyers on a national stage. He first helped them get there by restructuring Beasley Allen into sections after taking on the managing role. He initially created the Mass Torts Section at a time when the Mass Torts concept was relatively new. Tom later added Toxic Torts, Consumer Fraud & Commercial Litigation, and Personal Injury & Product Liability Sections. Organizing the firm into sections helped lawyers and staff become more knowledgeable and remain up to date on cases they were handling while expanding firm resources to serve additional clients.
In addition to overseeing firm operations overall, Tom handles often overlooked day-to-day tasks that keep our firm running smoothly. He assists our Section Heads and Administrators with everything from finances to marketing. Lawyers and employees frequently catch Tom walking around the firm, ensuring everyone has what they need to operate successfully.
Tom’s role as Managing Attorney has not slowed him down outside the office. He has held leadership roles and has been active in numerous professional associations throughout his career. During his term as Alabama State Bar President, he improved and expanded the state’s pro bono services. In 2009, the Montgomery County Bar Association established the Thomas J. Methvin Volunteer Lawyer of the Year Award.
Tom is a fellow in the Alabama Law and American Bar Foundations. In 2011 and 2016, The Trial Lawyer selected him for “The RoundTable: America’s 100 Most Influential Trial Lawyers” list. He has also been named to The American Lawyer “Top Lawyers” list.
To say that Beasley Allen is blessed by God placing Tom Methvin at Beasley Allen is the gospel truth!
OUR MONTHLY REMINDERS
The following are the monthly reminders for all of us at Beasley Allen. They apply in the workplace and at home. They are also recommended for all of our readers outside Beasley Allen.
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.
Injustice anywhere is a threat to justice everywhere.
There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.
The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.
Martin Luther King, Jr.
Get in good trouble, necessary trouble, and help redeem the soul of America.
Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America
The opposite of poverty is not wealth; the opposite of poverty is justice.
Bryan Stevenson, 2019
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
The Need For Ethical Standards For U.S. Supreme Court Justices
The need for ethical standards governing U.S. Supreme Court justices has grown increasingly apparent over the last few months, as reports of extravagant gifts, luxury travel and other undisclosed “perks” received by some of the justices have surfaced. When you consider that lawyers, state and federal judges, executive branch employees and legislative branch employees all have to adhere to codes of conduct, why shouldn’t the justices on the highest court in the land abide by a similar code of ethics?
Reportedly, the justices purport to follow the code of conduct currently in place for all other federal judges. The problem, however, is that no enforcement mechanism holds the justices accountable. That’s because there is no code of conduct for the U.S. Supreme Court.
Although the justices claim to police themselves, they often defend their undisclosed receipt of expensive gifts and costly trips by indicating there are no reporting requirements. In addition, they have refused to recuse themselves from cases in which obvious conflicts of interest arise.
A solid foundation to avoid Supreme Court misconduct includes documented ethical standards, similar to the Code of Conduct for judges, but tailored to the high court justices. The code should include financial disclosure requirements covering gifts, travel, business transactions and outside income.
The second step to holding justices accountable is enforcement. Justices should answer to an entity as divorced from “politics” as possible. Clearly, self-regulation hasn’t worked and should no longer be permitted. Disciplinary action should also be taken for justices who violate the code.
All recent polls show that the Supreme Court has lost the respect of the American people. Taking these steps would begin to restore public opinion of the highest U.S. court and, ultimately, restore faith in our justice system. If put to a vote of the American people, I am convinced the result would be that the justices on the U.S. Supreme Court, the highest court in the land, should have to follow ethical rules and be accountable.
Sources: The New York Times, PBS, WBUR (NPR), Harvard Gazette