Beasley Allen Montgomery, Alabama Office

The Jere Beasley Report December 2022

CAPITOL OBSERVATIONS

Katie Britt Becomes Alabama’s First Female Elected To U.S. Senate

The self-declared “Mama on a mission” – Republican Katie Britt – defeated Democratic challenger Will Boyd and Libertarian John Sophocleus on Nov. 8. She takes over long-time Senator Richard Shelby’s seat, becoming Alabama’s first female elected to the U.S. Senate. Two other females, both Democrats, served as U.S. Senators for the state after being appointed to this office.

Katie defeated her Republican challenger, six-term Representative Mo Brooks, in the Republican Primary runoff earlier this year. Her campaign was a model of perfection.

In her inspiring acceptance speech before a huge crowd of supporters on Nov.8, Katie said:

No one will work harder than me in the United States Senate. I am going to listen to you, not lecture you. I know that every one of you is not going to agree with me on every single issue and that’s OK. I am going to be a voice for parents and families and hard-working Alabamians across this state, and I’m going to work tirelessly every single day to make Alabama proud.

Sen. Shelby retired after 35 years in the Senate and early on endorsed Katie, his former employee, for the seat. Katie recognized Sen. Shelby as “Alabama’s greatest statesman” and thanked him for giving her an opportunity 20 years ago. I totally agree with her on Sen. Shelby. Nobody will fill his shoes, and Katie will be the first to admit it.

Katie, 40, stepped down as President and Chief Executive Officer of the Business Council of Alabama (BCA) to focus on the campaign. She took the position in 2018 when the organization was struggling to retain members. Susan Carothers, a spokeswoman for BCA, explained that in 2019 the BCA expected a $635,000 deficit, but under Katie’s leadership, the group “ended with a surplus of $447,000.”

The Enterprise, Alabama, native gained experience in politics when she worked as an intern in Sen. Shelby’s office while in college. She eventually became Deputy Press Secretary and later Press Secretary, serving as head of the department when she was only 23. Katie would later serve as Sen. Shelby’s Deputy Campaign Manager and Communications Director before rejoining his team as Chief of Staff in 2016.

Katie reiterated her campaign promise to keep “Alabama First.” To do so, she said she is a “Mama on a mission” to get things done in Washington. I predict that Katie will be an outstanding Senator and will quickly make her own mark in the Senate. Alabama is blessed to have her representing all Alabamians.

Sources: Associated Press

THE CAMP LEJEUNE LITIGATION

An Update On The Camp Lejeune Litigation

After the Camp Lejeune Justice Act was signed into law, several legacy cases were quickly filed in the U.S. District Court for the Eastern District of North Carolina. These legacy cases involve individuals who previously filed for relief from Camp Lejeune-related injuries under the Federal Torts Claims Act and were subsequently denied. It is critical to note that these cases were all denied under the Federal Torts Claims Act and before the Camp Lejeune Justice Act was passed.

Because of these factors, the government moved to dismiss these legacy cases because there is a lack of subject matter jurisdiction since these cases have not filed an administrative claim under the exclusive Camp Lejeune Justice Act process. The government claims that these individuals have not exhausted the administrative claims process proscribed by the Camp Lejeune Justice Act but have complied with the administrative process for the Federal Torts Claims Act, which the government claims are unrelated to this current litigation.

In response, the plaintiffs claim that the plain language of the Camp Lejeune statute simply requires that an administrative claim be denied. In support, plaintiffs assert that their claims have been denied, and any additional administrative claim should be seen as a re-exhaustion of the administrative claims process and, therefore, redundant and outside the statute’s text. This issue has been fully briefed as of Nov. 17, 2022, but an order is still pending. Despite the contentious view between the parties, the government and the plaintiffs who filed these legacy cases have filed a joint motion to consolidate these cases, but the courts denied the motions pending resolution of the administrative claims issue. 

Camp Lejeune: A Practice Tip On The Administrative Claim Process

There are currently three options to file an administrative claim with the Judge Advocate General’s office (JAG) for claims made under the Camp Lejeune Justice Act.  The first option is for a claimant, or a law firm on behalf of a claimant, to file a claim form individually.  

The second option is to save the form on a CD-Rom and mail it to the JAG’s office.  Law firms should submit claim forms for multiple clients via this CD-Rom process or the CSV process that is outlined below.

The third option is to submit a batch claim submission via CSV.  Law firms must register for batch filing.

  • [email protected] with the subject line “Batch Filing Request” for additional instructions.

The administrative claims process outlined above is not final.  There have been discussions by JAG that an online portal process is being developed, but it is not available at this time.

Beasley Allen has an entire team of lawyers and staff dedicated to investigating, filing, and establishing causation for Camp Lejeune claims. The team is led by Julia Merritt and Leslie LaMacchia, lawyers in the Toxic Torts Section. Rhon Jones heads up the Section and works with the team. The timetable for filing claims for the exposure to toxic water at Camp Lejeune is limited to two years from the date the Act was put into law on Aug. 10, 2022. 

Beasley Allen Camp Lejeune Litigation Team

If you need help on a potential claim or more information on our Camp Lejeune litigation, contact one of the lawyers on the litigation team at 800-898-2034 or by email.

The Camp Lejeune Litigation Team consists of Julia Merritt and Leslie LaMacchia, who co-lead the team. Other members are Matt Pettit, Trisha Green, Will Sutton, and Elizabeth Weyerman. Rhon Jones (Section Head) works closely with the team. Additional lawyers will be added to the team as needed.

SOCIAL MEDIA LITIGATION

Beasley Allen Attacks Meta on Two Fronts of Litigation

Beasley Allen lawyers have filed two separate types of litigation against Meta, which owns Facebook, Instagram, and several other electronic information service companies. We are reporting on both sets of the Meta litigation below, but a brief explanation of each seems in order so as not to confuse the class action case with the personal injury cases.

Lawyers in our Consumer Fraud & Commercial Litigation Section have filed a consumer class action lawsuit in the U.S. District Court for the Northern District of California against Meta. The case alleges that Meta’s internet tracking code, called a pixel, is embedded into hospital websites and patient portals, illegally gathering personal health information that Meta uses to sell its targeted advertising. 

Through the pixel, Meta has access to certain private information, such as some communications with physicians and possibly diagnoses. This information may allow Meta to profit from sales of targeted advertising to various businesses, including pharmaceutical manufacturers and other medical professionals. The primary lawyers on this consumer fraud class action are Rebecca Gilliland, Rachel Minder, Ali Hawthorne and Dee Miles, the Section Head.

Our Mass Torts Section is involved in the In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation. This litigation is not a class action, but many individual lawsuits are centralized into a single court for purposes of the litigation, known as a multidistrict litigation (MDL). Plaintiffs in this litigation allege that the social media defendants, which include not only Meta (Facebook, Instagram, etc.), but also TikTok, Snap, and YouTube, encouraged addictive and harmful use of social media as a result of algorithms deliberately designed to capture addictive behavior of its users.  Social media addiction results in various emotional and physical harms, including depression, anorexia, mental trauma and even suicide, according to plaintiffs.  This litigation is handled by lawyers in our Mass Torts Section led by Joseph VanZandt.

Details of each of these important cases being handled by our firm are presented below for our readers.

Litigation Against Meta And Facebook For Violating Patient Privacy with Data Tracking Tool

Several class action lawsuits have recently been filed against Meta, Facebook’s parent company, alleging illegal harvesting of sensitive health data. Specifically, the lawsuits involve the “Meta Pixel”—a tracking tool that can be embedded in the code of websites to provide analytics for use in selling Facebook and Instagram ads to third parties. This tool has been installed on the websites of several medical centers and doctors’ offices nationwide, including 33 of the top 100 hospitals in the U.S. 

Meta Pixel is coded onto these third-party websites to track users’ actions as they navigate the website.  Not only is it on the public website, but in some cases, it is embedded inside the patient portal. The harvested information, which can include patient health conditions, doctor’s appointments, and medication allergies, is then sent to Meta, where it can be stored for years. Meta relies on this tool to earn advertising revenue, which makes up about 97% of its total revenue. 

By adding this tracking tool to the websites of medical care providers, when a user enters sensitive health and personal information on the page, the Meta Pixel sends some of that data to Meta, where it is used to advertise targeted products to consumers.  Users’ sensitive health information is thus being harvested through the Meta Pixel without users’ knowledge or consent anytime they enter information on these websites. 

As a result of this illegal data harvesting, individuals are receiving targeted advertisements specifically related to the medical information they believe is secure on their medical care providers’ websites.  However, “under the medical privacy law HIPAA, healthcare organizations need patient consent to share personally identifiable health information with outside groups,” according to The Verge.  While Meta claims it requires groups using the Meta Pixel tool “to have the right to share data before sending that data to Facebook, the lawsuits allege that Meta is knowingly not enforcing those policies,” The Verge explained. 

Further, despite Meta’s assertion that the Meta Pixel filters out sensitive health data, the lawsuits claim Meta knowingly permitted the use of “the Pixel on healthcare organizations’ websites despite knowing it would collect personal health information,” The Verge reported. 

Beasley Allen lawyers are vigorously pursuing these claims against Meta for such egregious infringement on sensitive personal information. If you believe you may have a similar claim or would like more information, contact a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section. Dee Miles heads up the Section. Ali Hawthorne, Rebecca Gilliland, and Rachel Minder, lawyers in the Section, make up the team that handles these cases. Dee also works with the team.

Source: The Verge

Social Media Litigation Update – Beasley Allen Appointed to Plaintiff Steering Committee

On Aug. 1, 2022, the Beasley Allen Social Media Litigation Team, led by Joseph VanZandt, filed a motion before the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate a multitude of lawsuits against Facebook, Instagram, and other related subsidiaries (collectively Meta) to redress product liability harms suffered by adolescents.

The suits claim that Meta designed platform algorithms to take advantage of human psychology —especially that of minors whose developing brains make them more impulsive and more likely than adults to be harmed by using social media.

The lawsuits further allege that Meta failed to warn underage users and their parents about the risks of addiction and a number of other injuries, including suicidal ideation, self-harm, eating disorders, anxiety and depression. Meta does not take reasonable precautions to keep children under 13 off its platforms, as the platforms have long been regarded as lacking effective age-verification protocols.

After Beasley Allen filed its consolidation motion, dozens of additional cases were designated (or tagged) before the JPML as related actions. Many of these cases included as defendants TikTok Inc., Snap Inc., and YouTube, LLC, which also operate social media products that caused similar injuries to adolescents. On Oct. 6, the JPML issued a transfer order, instructing all social media cases involving defendants Facebook, Instagram, Snap Inc., TikTok Inc., and YouTube, LLC be transferred to a multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California, Oakland Division, before Judge Yvonne Gonzalez Rogers. So far, at least 84 suits have been filed against social media companies over addiction claims, most of which have now been consolidated in the MDL.

U.S. District Judge Gonzalez Rogers recently appointed a team of 22 lawyers from around the country to lead this litigation on behalf of all plaintiffs. Beasley Allen’s Joseph VanZandt was appointed by Judge Gonzalez Rogers to serve on the Plaintiff Steering Committee Leadership Counsel. Joseph and Beasley Allen’s Social Media Litigation Team will work with this national group of lawyers to seek justice for the plaintiffs in this litigation.

Source: Law360.com

A New Frontier For Product Liability Law

Parents of teenagers who became addicted to social media platforms, such as Facebook and TikTok, and subsequently suffered mental health problems are testing a novel claim in their lawsuit against the tech giants who own the platforms. They’re claiming that the intangible algorithms the companies used to trap teens in their social media webs can be treated like products, making the platforms liable for the damages they caused youth.

Previously, any product liability and personal injury claims targeting social media companies have focused on the content as the cause of injury to viewers. Those cases have not held up because of Section 230 of the Communications Decency Act, which grants tech giants immunity from harm caused by third-party content posted to their sites.

This new strategy targets the technology instead — the algorithms that track users’ habits and then choose which content comes up on each user’s feed.

In October, lawsuits targeting Meta and other tech companies were consolidated into a multidistrict litigation. The question arose whether the algorithms were products for which their owners would face liability laws or are these laws a modern form of free speech protected by the First Amendment. If the former, then, in a world where many everyday products have algorithms that interact with users, just where is the line drawn?

Beasley Allen is handling lawsuits for teenagers who became addicted to social media and suffered serious mental health consequences, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm, and suicidal ideation.

Source: Law360.com

The Social Media Personal Injury Litigation Team

If you need help on a case or more information on the personal injury part of our Meta litigation, contact a lawyer on the firm’s Meta Litigation Team at 800-898-2034 or by email. Members of the team are:

Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding.  Andy Birchfield, who heads our Mass Torts Section, also works with the team.

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.

AN UPDATE ON MOTOR VEHICLE LITIGATION

Defect Class Wants Treble Damages From GM After $100 Million Win

Beasley Allen’s Clay Barnett and lawyers from two other firms, represents the vehicle owners who have asked a California federal judge to award treble punitive damages following a $100 million verdict. In the class action against General Motors LLC, the vehicle owners argue that the vehicles have an oil-guzzling engine defect. The class members say awarding treble damages is “necessary to deter this kind of behavior from GM and other companies in the future,” Law360 reported.

In a motion filed on Nov. 15, the class, led by named plaintiff Raul Siqueiros, told the court that the $2,700-per-vehicle payout essentially puts the class back where they would have been if GM had fixed the defect years ago but doesn’t do enough to punish the company’s violations of the Idaho Consumer Protection Act or ICPA. The class wrote:

A potential bad actor looking at this case will understand that if compensatory damages is all that they will have to pay for their ICPA violations, however egregious, then there is little economic downside in violating the act so long as there is any reasonable chance that they can avoid detection or liability.

The ICPA allows the court discretion to award punitive damages in cases of “repeated or flagrant” violations. The class argued that the class action nature of the suit in itself satisfies the “repeated” requirement.

The class further stated that the company’s conduct was flagrant and offensive because GM knew about the defect, the cost of the vehicles and how much people rely on them. The automaker sold thousands of people a product that it knew was inferior to what it advertised.

Only by making this conduct “uneconomical” can further violations be deterred, the class wrote, saying while the ICPA does not specify treble damage, it is up to the court’s discretion, other state consumer protection laws do recommend treble damages, and it is a good “rule of thumb” for deterrence. Dee Miles of Beasley Allen, representing the class, told Law360 on Nov. 16:

We believe that because of GM’s knowledge of this defect for years while they continued to sell these cars to consumers, punitive damages are more than warranted in this class case.

The trial started on Sept. 19 with class counsel claiming that GM knowingly hid a defect in an engine introduced in 2007 that results in excessive oil consumption, while the company’s counsel countered that GM disclosed that a problem was discovered and offered a solution to it.

The case involves certain SUVs and trucks made and sold by GM from 2011 to 2014 that had a particular engine — called the Generation IV Vortec 5300 LC9. The vehicles in question are Chevrolet’s Avalanche, Silverado, Suburban and Tahoe, as well as GMC’s Sierra, Yukon and Yukon XL.

During the two-week trial, a GM engineer testified that a cleaning process the automaker chose over a costlier solution didn’t prove effective, while an economics expert for the plaintiffs estimated that owners were owed $2,700 in damages per vehicle.

Jurors also heard from the class representatives, one of whom testified that he stopped driving his truck long distances due to its excessive oil consumption, saying, “If I wanted an in-town commuter car, I would have kept my Prius.”

In early October, the jury returned a verdict in favor of the class, finding that GM had violated state consumer protection laws and awarding just over $100 million to the class.

The plaintiffs and proposed classes are represented by Dee Miles​, Clay Barnett, Mitch Williams, Rebecca Gilliland and Dylan Martin of Beasley Allen,  Christopher S. Stombaugh, John E. Tangren, Adam J. Levitt, Daniel R. Ferri, Mark Abramowitz and Joseph Frate of DiCello Levitt LLC, Jennie Anderson of Andrus Anderson LLP and Anthony Garcia of AG Law PA.

The case is Raul Siqueiros et al. v. General Motors LLC, case number 3:16-cv-07244, in the U.S. District Court for the Northern District of California.

Source: Law360.com

Criminal Probe And Shutdowns Shake Self-Driving Vehicle Technology

Several years of flawed presumptions and inflated promotional claims about the safety of autonomous driving technology appeared to implode in recent weeks upon the news that Tesla and its executives have been under a criminal investigation.

More than a dozen crashes involving Tesla vehicles, some resulting in death, triggered the U.S. Department of Justice (DOJ) probe. What attracted the attention of federal investigators to these crashes? Reports that they allegedly occurred while Tesla’s much-touted Autopilot was engaged. For years, Elon Musk has repeatedly touted the system that is supposed to assist drivers and help them avoid crashes.

U.S. and California authorities have already been investigating whether Tesla’s Autopilot gives drivers a false sense of security. The system, so often hailed as fully self-driving, has the potential to be an effective safety backup for the human driver. Yet drivers who become too comfortable with Autopilot’s capabilities may leave the driving up to the vehicle, often with deadly consequences. One of the ongoing investigations, which NHTSA launched in August 2021, is looking into a series of 16 crashes involving Teslas crashing into roadside emergency and maintenance vehicles.

Has Tesla lured drivers into making these fatal mistakes? That is one of the questions driving the criminal probe. Musk has described Autopilot as “probably better” than human drivers. Ahead of last month’s rollout of Tesla’s “Full Self-Driving (FSD) v11 update,” Musk said that the software would allow customers to drive “to your work, your friend’s house, to the grocery store without you touching the wheel.”

Tesla’s website also conveys that customers can safely let their vehicles drive themselves. Images on the website of the vehicles’ interior show movies displayed on the dashboard next to the navigation panel. One of the videos explains:

The person in the driver’s seat is only there for legal reasons. He is not doing anything. The car is driving itself.

No doubt, such claims entice customers and give them the confidence to disengage from driving, but evidence suggests that statements like this are deceptive and misleading. While there are several Autopilot crashes backing this theory, Tesla issues contradictory warnings telling drivers to keep their hands on the wheel and maintain control of the vehicle and disclaimers that the vehicles actually aren’t fully autonomous.

News of Tesla’s criminal investigation wasn’t the only setback for self-driving tech. The probe was announced on the same day that Argo AI, a multi-billion joint venture between Ford and Volkswagen, was shutting down. The company said some of its employees and resources would be reabsorbed by the two carmakers, which planned to develop advanced driver assistance systems, not self-driving vehicle technology.

Argo disbandment deals a heavy blow to the push for fully self-driving vehicles, but it wasn’t the first. Zoox, which in 2018 became the first company allowed to operate self-driving transport services to the public in California, became a unit of Amazon in 2020. Shortly after, Uber gave up its self-driving unit, which became part of Aurora.

Beasley Allen lawyers will continue to monitor developments in this area of concern. If you need more information or help with a case, contact our firm’s Personal Injury & Products Liability Section.

Sources: Tesla, Claims Journal, Tech Crunch, Uber,

$32.8 Million Verdict Against Hyundai In Seat Defect Suit Stands

Hyundai lost its appeal of a $32.8 million verdict awarded to a Wisconsin man who alleged a defective seat in his Elantra malfunctioned when his vehicle was struck from behind, leaving him paralyzed from the waist down.

A three-judge panel of the Wisconsin Court of Appeals upheld the lower court’s verdict in October, rejecting Hyundai Motor America’s claims that the trial court shouldn’t have allowed certain expert testimony and evidence about previous Hyundai recalls.

Plaintiff Edward Vanderventer sued Hyundai after being severely injured in a July 2015 crash. He was driving his 2013 Elantra when another vehicle struck him from behind. The force of the collision caused Mr. Vanderventer to sustain a fractured vertebra, rendering him paraplegic. Three others in the Elantra, including Mr. Vanderventer’s wife, suffered only minor injuries.

Mr. Vanderventer sued Hyundai and the driver who rear-ended his car. His court arguments included the testimony of a biomechanics engineer and a neurosurgeon, who demonstrated how the vehicle’s seat allegedly malfunctioned to cause Mr. Vanderventer’s injury.

The jury sided with Mr. Vanderventer ad awarded him $32.8 million, finding Hyundai 84% responsible for his injuries and the other driver 16% at fault. Hyundai appealed the verdict, challenging the expert witnesses’ methodology, expertise, and validity and asserting that the court should have excluded their testimony.

The Wisconsin Court of Appeals rejected Hyundai’s arguments, finding the expert testimony credible and appropriate and that the trial court did not abuse its discretion in allowing it. The judges also found that the court acted with discretion when it allowed evidence of prior Hyundai recalls involving different cars, as it demonstrated that vehicles may comply with federal transportation safety standards and still be defective.

Hyundai said it will ask the Wisconsin Supreme Court to review the appellate court’s decision.

Vanderventer is represented by Susan R. Tyndall, Timothy S. Trecek and Jesse Blocher of Habush Habush & Rottier SC. The case is Vanderventer et al. v. Hyundai Motor America et al., case number 2020AP1052, in the Court of Appeals for the State of Wisconsin, District II.

Source: Law360.com

Contested Liability Personal Motor Vehicle Litigation

Ben Keen, a lawyer in our Atlanta office, recently settled a motor vehicle collision lawsuit for insurance policy limits. Our client, the plaintiff, was driving her child to school at the time of the accident. She was paying adequate attention to the roadway, driving within the speed limit, and had a green traffic signal providing her the right of way through an intersection. At that moment, as the plaintiff approached the intersection, the defendant driver attempted to make a left-hand turn, crossing the plaintiff’s lane of travel. The defendant collided with the plaintiff’s vehicle, causing her injuries.

We know that when a driver intends to turn left without a green left-hand traffic arrow, the driver is required by law to yield the right of way to oncoming traffic. This is true even if the plaintiff was speeding. However, in this case, she was not speeding.  

The defendant’s insurance carrier contested liability, and a suit was filed. In the deposition of the defendant, it was evident there was no evidence to support the defenses in the case. While the defendant acknowledged that, his lawyers then attempted to direct fault upon construction workers who were positioned partially in the roadway where the defendant intended to drive. The defendant admits that he had a duty to scan the roadway for hazards and to keep a proper lookout ahead to ensure that the area of the roadway he intended to enter could be entered safely. He also acknowledged he had a duty to ensure that if he intended to turn across lanes of oncoming vehicles, he had to be sure that he made it across the roadway before attempting this maneuver.

The testimony from the defendant resolved the liability dispute, and a policy limit settlement resulted. If you have questions concerning litigating contested liability motor vehicle accidents, contact Ben Keen in our Atlanta office.

BIG TRUCK ACCIDENT LITIGATION

Beasley Allen And Goldstein Hayes Settle Tractor Trailer Case For $17.25 Million

Beasley Allen Atlanta-based lawyer Parker Miller and Jonathan Hayes with the Atlanta law firm Goldstein Hayes & Lina have secured a $17.25 million settlement on behalf of the family of a 54-year-old woman killed in a tragic tractor-trailer accident. The lawsuit was settled just before the trial was to begin last month.

The victim was driving on a rural Alabama highway when she was struck and killed by a commercial motor vehicle. Her four adult children hired the Hayes firm and our firm to represent them in a lawsuit against the out-of-state motor carrier and the driver of the tractor-trailer, who was from Tennessee. Parker had this to say:

When these wrecks happen, they are almost always fatal, and this accident was no exception. Obviously, you can never replace what was lost, but you can do your best to deliver justice to the clients, and that is exactly what we did here.

While the settlement amount is public information and is available, the specific terms of the settlement, including the parties’ names, are confidential. The claims were vehemently contested, with the defendants disputing liability and blaming another driver for causing the wreck. In the end, justice prevailed. Jonathan Hayes of Goldstein Hayes, our co-counsel, observed:

This was such a tragic case. However, we were able to help our clients bring some amount of closure and hold the trucking company and driver accountable. I can think of only a few instances where a major truck wreck like this did not lead to a fatality, which is why it is so important that trucking companies follow the mandated safety rules and properly supervise their drivers.

If you need more information about big truck litigation or help with a case, contact Parker Miller.

PRODUCT LIABILITY UPDATE

Judge Refuses To Dismiss A Georgia Wrongful Death Lawsuit Against Ford

Last month, Georgia Federal Judge Clay D. Land rejected Ford Motor Co.’s motion to dismiss our clients’ case involving a defective tire that allegedly caused a rollover accident in a Ford Explorer Sport Trac vehicle. The accident killed the teenage driver and injured one of our clients.

In a Nov. 9 order, Judge Land said that plaintiffs Felicia Christian and Julia Alexandria Morris followed state law precisely when they voluntarily dropped their state court lawsuit and refiled it in federal court.

Ms. Morris was injured in the 2017 accident when a tire tread separation caused driver Jalin Lawson to lose control of the Explorer Sport Trac, which his grandfather owned. Jalin was killed in the rollover.

Ms. Christian filed the lawsuit against Ford, Goodyear Tire & Rubber, the automotive center that installed the tire, and Jalin’s grandfather in the Superior Court of Clay County, Georgia. All the defendants moved for summary judgment, but the trial judge granted it only to Goodyear in March.

We voluntarily dismissed the suit against the remaining defendants without prejudice the next day. Our clients refiled it in Federal Court within a week before any witnesses were called. Ford’s lawyers motioned to dismiss the federal lawsuit, pointing to an old real estate fraud case, Guillebeau v. Yeargin, that was decided in 1984. Ford contended that Georgia law does not allow an action to recommence after a codefendant has been granted summary judgment.

However, Georgia law couldn’t be any clearer when recommencing a voluntarily dismissed lawsuit. According to the statute, “When any case has been commenced in either a state or federal court within the applicable statute of limitations, and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action.”

Judge Land rejected Ford’s motion on several grounds, finding “the facts and holding of (Guillebeau v. Yeargin) are distinguishable from the present action. He said Ford’s rationale in seeking to have the case tossed was “wholly unpersuasive.”

We followed the Georgia statute to the letter in dismissing the case and refiling it in Federal court. Judge Land’s ruling is on a solid legal footing. We feel very comfortable that the ruling is the correct one and will be upheld if appealed. This is a very tragic case involving the death of a star athlete. Jalin Lawson was a scholarship student and attending a College in North Carolina when this crash occurred.

The plaintiffs are represented by Greg Allen, Stephanie Monplaisir and Chris Glover of Beasley Allen, Shane Seaborn and Charles Hudson of Penn & Seaborn LLC, and Jesse G. Bowles III of Bowles & Bowles.

The case is Christian et al. v. Ford Motor Co., case number 4:22-cv-00062, in the U.S. District Court for the Middle District of Georgia.

Sources: Law360, WRDW

Failure Of Seat Belt Retractors Can Cause Safety Problems

A seat belt is a safety device that is supposed to protect you in the event of a crash. However, in some circumstances, your seat belt may have a defective component that, over time, fails and can have devastating consequences.

A seat belt retractor is a component within the seat belt system that allows the seat belt webbing to extend out but also functions to pull the webbing back in. With respect to pulling the webbing back in, this occurs both when the seat belt is taken off and stowed and when you are wearing the seat belt, and it tightens up against you. Specifically, within the retractor is a spring that performs this function. Some manufacturers, however, intentionally make the spring force of the retractor weak for the comfort of the occupant wearing the seat belt. This can pose safety problems over time, causing the retractor spring to fail and, in some cases, within the first year of a vehicle being purchased.

So, what are the signs that your retractor spring may be failing?

Typically, this condition is first noticed when your seat belt has issues retracting to stowage, which leaves it hanging loose after taking it off. This condition can also be recognized when the belt is worn. The retractor spring is supposed to tighten the belt against you; however, if you put the belt on and the seat belt remains loose and fails to tighten, there is likely an issue with your retractor spring. Failure of your seat belt to tighten against you when worn can have devastating consequences, as the seat belt will not protect you as intended in the event of a crash due to the fact you have too much belt webbing in your seat belt, allowing more movement in a crash than intended.

Beasley Allen lawyers recently represented the family of a man who was fatally injured due to a defective retractor spring. He was wearing his seat belt, yet it had additional webbing in the system, which allowed him to be partially ejected out the driver’s side window in a low-speed, single-vehicle crash when the vehicle tipped onto the driver’s side. Sadly, the man’s head was crushed between the ground and the driver’s side roof rail.

If your seat belt is either failing to retract to stowage and hangs loose or remains loose when worn, it is crucial to take your car for service as you likely need to have the retractor of the seat belt system replaced. Failing to do so can have fatal consequences.

If you have questions or need help on a case, contact Mary Leah Miller, a lawyer in our Atlanta office who handles product liability lawsuits.

The Danger Of Reclining Seats

Think about how many times in your life you have been a passenger in a car and decided to lay your seat back to take a nap. You wore your seatbelt, so you assumed it was safe.  Unfortunately, many people are unaware that simply reclining their seat is putting their lives at risk.

Once a seatback is reclined, the standard seatbelt becomes much less effective, if not completely useless, because the shoulder harness of the belt moves away from the body.  People do not realize or understand that the more space between the seatbelt and a person’s body, the greater risk of death or serious injury in an accident. 

The seatbelt is designed to be worn snugly against the body to couple the body to the seat and safely ride down the forces of an accident. For this restraint plan to work effectively, the body must be securely seated in the chair at an upright angle so that the belt can secure the person’s body.

The general public’s lack of knowledge on this topic should not be blamed on ignorance. Automobile manufacturers actively lobby against regulation of seatback recline standards despite being very aware of the dangers of reclining seats for nearly six decades. 

At a 1964 Stapp Car Crash Conference crash conference, two safety-equipment engineers presented a report analyzing the effect lap belts have on reclined-seat occupants.  The report discussed sled testing in which the seatback was reclined almost fully.  When the sled stopped suddenly, the test dummy submarined under the lap belt, or slid from beneath the belt, nearly 10 inches, driving the belt into the dummy’s abdominal cavity. 

In 1988, the National Transportation Safety Board (NTSB) conducted a safety study where one of the issues was the effect of reclining seatbacks.  The NTSB examined 167 collisions involving passengers who had worn three-point restraints.  The result showed that three-point restraints offered good protection only if worn properly. An occupant who wears a seatbelt while his seat is reclined is not “centered” in the belt, rendering the belt ineffective for spreading crash forces over the body. 

The NTSB stated that the protection offered by any seatbelt is compromised when the seat is reclined, presenting a “potentially dangerous combination in a moving vehicle.”  The NTSB noted, “since vehicles had been marketed with reclining seats, most adults and children were tempted to combine belt use with a reclined seat.”  The study concluded that “at best, lap/shoulder belts, indeed, any type of seatbelt, offered reduced effectiveness when used with a reclined seat.  At worst, a lap/shoulder belt in a reclined seat may be a potentially dangerous combination in a moving vehicle – proper fit is impossible.” 

Despite all of this knowledge, the Automotive Industry continues its efforts to prevent important safety warnings from reaching consumers.

Although some vehicle owners’ manuals warn of the dangers of reclined seatbacks in moving vehicles, the warnings do not state specifically what degree of recline is dangerous.  There are ways for the industry to address this dangerous problem.  A simple warning pointing out the danger of reclining seats can be inexpensively incorporated into a vehicle design. Yet, it would convey the needed information to alert the passengers of the danger. 

A warning label can be the first step toward educating the public.  But a warning would be unnecessary if the industry would start designing its restraint system in such a manner to alleviate the problem. 

For example, GM has long incorporated into some of its vehicles, such as the Trailblazer, a seat design that mounts the seatbelt system within the seat itself.  Known as “all belts to seat,” this design allows the shoulder harness to stay in position even when the occupant reclines the seat. 

Another design incorporates an interlock within a vehicle’s gearshift, preventing the driver from putting the car in gear if a seatback is reclined.  Interlocks are not yet used in any vehicles. 

Automakers could also add a device that would warn the vehicle passengers of the hazards of reclined seats.  In fact, years ago, a major manufacturer of seatbelts patented a device that would give a visual or audible warning if a passenger were to recline his seat to a dangerous degree.  Emison, Kent J., “Reclining Seats Trade Safety for Comfort,” TRIAL, Vol. 39 No. 2 (Feb. 2003). 

A Jacksonville, Florida jury recognized this hidden danger and held Ford accountable when it awarded $16.9 million to a young college student who was rendered paraplegic in an accident.  The student was a belted passenger who had reclined her seatback in a Ford Windstar.  During the trip, the Windstar was involved in a low-impact collision.  Because the seat was reclined, the passenger’s seatbelt did not hold her in place.  As a result, this young college student was rendered paraplegic in a minor accident.

Another jury in Maryland awarded $59 million to a belted passenger in a Toyota vehicle who was also riding with his seat reclined.  The car was involved in a frontal collision.  During the crash, the belted passenger flew forward at the time of the impact.  It resulted in the amputation of both of the passenger’s legs below the knee. 

Each of these cases spotlights this dangerous practice that automobile manufacturers have known about for decades.

People are needlessly injured and killed due to the automobile industry’s inaction on this subject.  The industry knows that vehicle motoring public does not understand or recognize the danger of reclining the seat while the vehicle is in motion. Yet, the industry blames the public for their own injuries, taking a “they should have known” approach.

The industry also knows that millions of families drive miles on the road every year.  The industry also knows that the occupants in its vehicles will recline their seats to take naps, and by doing so, the occupants are all at great risk of serious injury or death in an accident. 

Even with this knowledge, the automobile manufacturers turn a blind eye to this danger knowing there are simple approaches they could take to educate the public and prevent such needless injuries and deaths each year.

If you need more information or help with a case, contact Personal Injury & Products Liability Section. Dana Taunton and Shelby Andrews, lawyers in the Section, contributed to this article.

Source: National Transportation Safety Board

A New Ford Death Due To Faulty Air Bag Inflator

A defective airbag made by Takata exploded in a 2006 Ford Ranger pickup truck, killing a 23-year-old Navy officer and prompting U.S. auto safety regulators to issue another urgent consumer warning.

On Nov. 17, the National Highway Traffic Safety Administration confirmed the July 2022 death was linked to faulty Takata airbag inflators, which are prone to explode with deadly force. The agency said it is aware of other suspected Takata airbag explosions in vehicles made by other automakers.

The latest confirmed death occurred when the Ford Ranger was involved in a collision near Pensacola, Florida. The vehicle was already included in a “do not drive” warning that the NHTSA first issued in 2018 when regulators found Takata airbags in many older vehicles posed an immediate threat to safety.

Takata airbags can deploy with excessive force, including during minor bumps and fender benders that don’t warrant airbag deployment. The force of the rupture blasts metal airbag fragments toward the vehicle’s occupants.

Earlier last month, Stellantis STLA.MI, the parent company of Chrysler, urged owners of about 276,000 U.S. vehicles to stop driving them immediately. The warning came after the company became aware of three additional deaths linked to Takata airbags in seven months.

Takata airbags have been tied to at least 23 deaths in the U.S. and more than 400 injuries, including critical injuries to the eyes and other parts of the head, neck, and face. Takata and automakers worldwide have recalled more than 100 million Takata airbags inflators, including more than 67 million in the U.S.

Before the most recent Takata crash death, Ford confirmed sending a hundred recall notices to the owner’s home. The company said it also sent multiple text messages and a canvasser visited the home to try and schedule the repair for this vehicle. Ford said:

We are urging all remaining affected owners not to drive these vehicles and to contact Ford to schedule a free repair.

Law360 reported that last year, NHTSA opened an investigation into 30 million additional vehicles built by nearly two dozen automakers with potentially defective Takata inflators. The agency’s Acting Administrator Ann Carlson said:

We need everyone to check right now for open Takata recalls – and if you have one, to schedule an appointment at your dealership immediately for a repair. Every day that passes when you don’t get a recalled airbag replaced puts you and your family at greater risk of injury or death. Don’t let an open recall cost you or your passengers your lives.

Sources: National Highway Transportation Safety Administration, Claims Journal, The Columbian and Auto News

Tire Pressure When The Weather Turns Cold

There are two things that people will generally notice in their vehicles when the weather turns colder: their batteries die, and the pressure in their tires decreases.  Particularly in the southeastern U.S., the vacillating temperatures as fall progresses to winter can compromise tire safety.

Beasley Allen has an office in metro Atlanta, and during October, this area has seen temperatures near freezing to nearly 80 degrees Fahrenheit within 24 hours.  Such wide variations in temperature can have a drastic effect on tire pressure. 

It is estimated that tire pressure drops about one pound per square inch for every 10 degrees Fahrenheit drop in temperature.  A freeze warning at night but sunny and warm conditions the next day creates a perfect storm for people to get into their vehicles while entirely unaware of their tire pressure.

Driving a vehicle in which the tires are grossly below the recommended PSI can be very dangerous.  If tire pressure is significantly low, a greater amount of the tire’s surface will come into contact with the road, increasing friction.  This can cause damage to the tire if the side wall is in contact with the road for an extended time.

Vehicle owners may want a tire specialist to check tires during drastic temperature changes.  It is imperative to have tire pressure checked regularly by a tire professional.  Owning and utilizing a tire pressure gauge can provide peace of mind that you are driving a vehicle with tires functioning as optimally as possible, regardless of the weather.

If you have questions about any aspect of tire safety or need help with a case, contact Ben Baker.

Source: Consumer Reports

WORKPLACE LITIGATION

Beasley Allen Lawyers Investigate On-The-Job Death

Beasley Allen lawyers Kendall Dunson and Wyatt Montgomery are investigating the death of a city employee who was killed while performing his duties as a waste collector on the job.  The death occurred when the deceased employee was run over by a reversing sanitation truck.  When catastrophic injuries or fatalities occur to employees on the job, the facts surrounding the injury or death must be thoroughly investigated to determine whether a potential third-party products liability case or co-employee case exists – especially when, as here, a piece of equipment or other machinery is involved in the incident.

Workers’ compensation laws provide medical care and death benefits to a deceased’s dependents; however, the compensation provided under the Workers’ Compensation Act falls drastically short of the amount often needed to compensate the worker or his family completely.  Workers’ compensation laws typically do not account for damages such as mental anguish, pain and suffering, loss of consortium, loss of value of life, the full amount of lost wages, or punitive damages against those responsible.  Inadequate compensation for the injured worker or their family makes investigating other avenues of recovery for the worker or their family imperative.

 In the case of the sanitation worker, several potential avenues of recovery need to be investigated.  For instance, commercial vehicles such as sanitation trucks should be equipped with back-up alarms to alert workers and others the vehicle is backing up to avoid injury.  If the back-up alarm was inoperable or had been disconnected, the employee’s family has a potential co-employee claim for the removal of or failure to repair a safety device. 

Suppose the sanitation truck was not equipped with a backup alarm.  There may be a potential products liability case against the designer and manufacturer of the sanitation truck.

Any time a catastrophic injury or death occurs to a worker while on the job, and the incident involves a piece of equipment, potential third-party avenues of recovery must be thoroughly investigated.

If you know someone who has been catastrophically injured or killed while on the job or need help on a case, contact Kendall Dunson or Wyatt Montgomery. They would be glad to work with you. 

On-The-Job Injury In A Tobacco Plant

In our firm’s Personal Injury & Products Liability Section, one type of case that our lawyers and support staff investigate quite often involves on-the-job injuries.  Ben Locklar in our Montgomery office has one such case now.

In April 2019, our client was employed at a tobacco processing facility in Tennessee.  On April 5, he was tasked with putting dust plates on four machines within the facility called hogshead breakers.  These machines had been transferred from another facility and were being set up for use in the tobacco plant. 

Fastening these dust plates required our client to crawl inside each machine.  Our client and a co-employee had placed the plates on three of the four machines with bolts.  Our client was required to stand inside the machine while his co-employee stood outside the machine.  Our client had to stand near four large cylinders called doffers to install the plates.  The doffers were equipped with sharp teeth, which were used to grind up bales of tobacco to process the product. 

When our client and his co-employee began installing the plates, they believed there was no electrical power to any of the machines.  As our client climbed into the fourth machine, a person near the machine told him there might be power to that machine.  Our client climbed out of the machine, notified his supervisor of what he had been told, and expressed concern about continuing to work in the machine. 

The plant manager walked over to two individuals who were programming the fourth machine and requested that they halt the process until our client and his co-employee finished what they were doing. The two individuals worked with outside contractors and were engaged to complete the setup of the hogshead breakers. 

Our client was assured that it was safe for him to continue, and he climbed back into the machine to complete the installation of the final dust plate.  Rather than stop the process, the programmer flipped a breaker inside the control panel but continued with the machine’s programming.  As a result, the rotating cylinders were turned on, and our client was pulled into the machine. He suffered serious injuries to both legs, requiring partial amputation of his left leg and a portion of his right foot.

In the case of this tragic event, the two contractors who were engaged in programming the subject machine failed to follow recognized standards by blocking power to the machine so that no parts would move while our client and his co-employee finished their assigned task of installing dust plates.  Knowing that people were working on and in the machine, the two outside contractors continued forward with their process, resulting in our client being seriously and permanently injured.

Employee safety must be a top concern in these types of workplace environments, which contain heavy industrial equipment.  When individuals fail to follow instructions and block energy to machines,  people can and do get hurt.  In such cases, the responsible parties must be held accountable.  Our Beasley Allen lawyers work diligently every day to secure justice for people like Ben’s client. He entrusted his wellbeing to his supervisor and fellow employees. His life was irrevocably changed as a result of their failures.    

If you have questions or need help on a case, contact Ben Locklar, a lawyer in our Personal Injury & Products Liability Section.

Evan Allen Shares On-The-Job Product Liability Knowledge With Fellow Lawyers

Evan Allen, a lawyer in our Mobile office, handles on-the-job product liability cases. Those cases involve both personal injury and death. During a Lunch and Learn Event, Evan recently discussed some of these cases with the Mobile Bar Association’s Workers’ Compensation Section. Evan advised his fellow lawyers on identifying and tackling workplace injury cases.  

Defectively designed machinery causes accidents in the workplace, often resulting in permanent, lifelong disabling injuries. Many workers are injured because the machinery lacks or has poor safety guards. Workplace injuries include all sorts of bodily injuries and even result in deaths. Workplace injuries lead to medical expenses, the inability to perform normal activities, lost wages, compromised earning potential, severe pain, mental anguish, disfigurement, permanent physical impairment and lasting vocational impairment. Also, as stated above, some of the injuries result in the death of an employee.

Recently, Evan helped Walter Robinson obtain a settlement for injuries he sustained while operating a machine during the ordinary course of his job duties at Thermalex, Inc. The Granco Clark Inc. manufactured machine dropped an aluminum log, crushing the worker’s foot. His foot required partial amputation.

Evan also helped secure a $500,000 verdict for Gregory and Althea Bell after Mr. Bell stepped into the unguarded opening of a furnace at Union Foundry Co. The worker’s foot fell into hot melted iron and required partial amputation.

In addition, Evan led a team that obtained a $774,000 verdict for John Dees, who lost the use of his left arm and suffered disfigurement following a workplace accident. The worker in the case caught his hand in a Tenax SPA-manufactured machine.

Evan shared with his fellow Mobile Bar Association lawyers that workplace accidents caused by defective machinery can be minimized or avoided. Machine manufacturers should follow The Order of Design Precedence – The Engineer’s Bible. It provides:

  • First, manufacturers should design for minimum risk.
  • Second, they should incorporate safety devices.
  • Next, they should provide warning devices.
  • Finally, they should develop and institute operating procedures and training.  

If you have any questions or need help on a case, contact Evan Allen, who is in our Personal Injury & Products Liability Section.

AVIATION LITIGATION

Judge: 346 Killed In Boeing 737 MAX Crashes Are Crime Victims

A Texas federal judge ruled last month that the 346 people killed in two Boeing 737 MAX crashes are “crime victims” under federal law. In an Oct. 21 ruling, U.S. District Judge Reed O’Connor said that the crash victims’ families should have been told about closed-door meetings between Boeing and federal prosecutors that resulted in a January 2021 plea agreement. In addition to a $244 million penalty for defrauding the FAA, $1.77 billion in compensation to airlines, and establishing a $500 billion fund for crash victims, the agreement also sheltered Boeing from further criminal prosecution.

Angered by the deal, some crash victims’ families argue that the government “lied and violated their rights through a secret process.” They are asking Judge O’Connor to revoke Boeing’s immunity and allow the company to face criminal charges for the crash. Beasley Allen lawyer Mike Andrews specializes in aviation litigation and represents some of the families of the Ethiopian Airlines crash victims. He observed:

Boeing must be held fully accountable for the Ethiopian Airlines and Lion Air crashes, and that means ensuring the company owns the criminal wrongdoing that led to such a widescale loss of human life.  These families have gone through the unimaginable, and it’s only fair that they have a voice in future proceedings against Boeing.

The full impact of Judge O’Connor’s ruling is yet to be seen, but it will determine what legal remedies the families will get. Addressing families angered by the secret settlement agreement, the U.S. Department of Justice said the relatives were not informed because they weren’t crime victims. However, Judge O’Connor said the 737 MAX crashes were a foreseeable result of Boeing’s misconduct, making family members the representatives of crime victims. Judge O’Connor wrote:

In sum, but for Boeing’s criminal conspiracy to defraud the FAA, 346 people would not have lost their lives in the crashes.

Months of federal investigations of the Bowing 737 MAX crashes found that Boeing had secretly installed its Maneuvering Characteristics Augmentation System (MCAS) in the 737 MAX plans. The function of the MCAS was primarily to counter the new aircraft’s tendency to pitch upward automatically. Judge O’Connor said further:

Had Boeing not committed its crime the Ethiopian Airlines and Lion Air pilots would have received training adequate to respond to the MCAS activation that occurred on both aircrafts.

Lawyers for the families contend that the DOJ’s secret deferred prosecution deal with Boeing violates the law and plans to take legal action. They hope to scrap the part of that deal that allowed Bowing to escape prosecution for lying to the FAA about the MCAS – lies that led to the deaths of 346 people.

Sources: Reuters and U.S. Department of Justice 

Judge Dismisses Suit From Pilots Harmed By Boeing’s 737 MAX Deception

An Illinois federal judge has granted Boeing’s motion to dismiss a proposed class-action lawsuit brought by pilots who claimed their careers were sidelined because Boeing lied to aviation regulators and airlines worldwide about the safety of its 737 MAX jets.

U.S. District Judge Steven C. Seeger, a Donald Trump appointee, also denied a second bid by the pilots to have him recuse himself from the case over alleged conflicts of interest.

The pilots claimed that Boeing’s deceptive statements and actions after two deadly crashes involving its MAX 8 jets dealt a serious blow to their careers and income. MAX 8 jets were grounded worldwide following the Oct. 2018 crash of Lion Air Flight 610 in Indonesia and Ethiopian Airlines Flight 302 five months later in Ethiopia. The grounding had a ripple effect throughout the airline industry that pilots certified to fly the MAX 8 experienced.

Judge Seger issued a blistering rebuttal of the pilots’ claims, calling them an example of how liability can be stretched beyond reasonable limits. He also painted the pilots in a way that belittled their complaints, comparing their suffering to that of the passengers aboard the doomed 737 MAX flights and their families. “Unlike the poor people on those planes, plaintiffs had everything, and they lost nothing,” the judge said.

The international group of pilots that filed the lawsuit accused Boeing of strict liability, negligence, fraudulent concealment, and fraudulent misrepresentation. While the judge was dismissive of their claims, the complaint nonetheless represents how hard and far-reaching fraud is felt when a corporation commits it as fundamental to the world economy as Boeing.

The pilots also said that Judge Seeger served as senior trial counsel with the U.S. Securities and Exchange Commission when he was confirmed to the federal bench in September 2019. At that time, the agency was investigating Boeing’s alleged misrepresentations of the safety of its 737 MAX aircraft. The judge rejected the recusal bid, calling it “way off base.”

Lawyers representing the pilots said that Judge Seeger’s multiple derogatory comments about the case show that he was incapable of ruling without prejudice and bias. The plaintiffs’ counsel said:

He is no expert at aeronautical engineering yet clearly presumes to be and overlooks the inherent design flaw in the Max, the reason it was selected and ramifications that had in human life and, albeit to a lesser extent, the effects it had on our clients’ lives and livelihoods too. This cannot be the view of a reasonable judge and is the style of dealing with plaintiffs that will underscore the impending appeal.

It will be interesting to see what happens further in this case. Stay tuned!

Source: Law360.com

THE TALC LITIGATION

Talc Litigation Update

Beasley Allen clients and lawyers are awaiting an order in an important appeal in the ongoing talc litigation involving Johnson & Johnson (J&J). The following story involving an email message received by one of our lawyers illustrates why the appeal involving J&J’s LTL Bankruptcy, pending before the Third Circuit Court of Appeals, really matters to thousands of women.

On Nov. 4, Matt Teague, one of the lawyers on the Talc Litigation Team handling the Talc litigation, received an internal email from a co-worker sharing that one of our talc ovarian cancer clients had passed away the day before in an emergency room.

We wish I could report that such types of phone calls and emails are rare, but lawyers on our Talc Litigation Team receive these types of phone calls and emails regularly. While our clients come to us from all different walks of life, each of them is journeying down the same treacherous road of ovarian cancer after years of continued use of J&J’s Baby Powder.

It is an unfortunate reality that many of our talc clients have died while waiting to exercise their constitutional right to confront J&J and its subsidiary, Johnson & Johnson Consumer Inc. (JJCI), in a jury trial. Unlike these brave women who chose to stand up and seek justice while suffering from a dreadful disease, this powerful 130-year-old pharmaceutical giant has chosen to hide behind a bankruptcy stay that is currently preventing all trials against J&J involving talcum powder products. Preserving the constitutional right to trial by jury and allowing these women to tell their stories truly is what is at stake in this appeal to the Third Circuit. 

But how is a bankruptcy stay even possible for a worldwide company worth an estimated half a trillion dollars that reported sales growth of 1.9% to $23.8 billion in the third quarter of 2022 alone? Currently, J&J victims are being blocked from litigating their cases, accusing the company of causing thousands of cases of ovarian cancer, mesothelioma and, in many instances, death based on a bankruptcy filing. But it’s not J&J’s own bankruptcy filing but that of LTL Management, a subsidiary company that J&J created for the sole, selfish purpose of shielding itself from all potential talc litigation liabilities.

About 48 hours after its incorporation, LTL filed for bankruptcy. This legal maneuver, called the “Texas Two Step,” is now facing legal scrutiny before the U.S. Court of Appeals for the Third Circuit. The stakes could not be higher for each and every brave woman who has taken a stand against corporate profit over consumer safety. 

On Sept. 19, 2022, the Third Circuit heard oral arguments on whether it is proper for a solvent company, such as J&J, to attempt to limit its tort liability by moving its litigation expenses and liability into a new company and then promptly bankrupting that company. The appeals court also heard an argument on using LTL’s bankruptcy stay applied to non-bankrupt companies such as J&J and JJCI. 

Jeffrey Lamken, representing the Official Committee of Talc Claimants, argued that LTL’s bankruptcy and the “Texas Two-Step” that preceded it had no valid, good faith purpose. Instead, Jeffrey argued that J&J’s filing of the LTL bankruptcy was for the sole purpose of gaining a litigation advantage. This strategy is considered per se bad faith under bankruptcy law. He correctly argued that this violated core principles of bankruptcy law because it placed only “one class of creditors [talc plaintiffs] at risk” and allowed J&J the benefits of bankruptcy without having to comply with the burdens and accountability of the bankruptcy court.

A U.S. Department of Justice lawyer added, “LTL or Johnson & Johnson is trying to turn what should be that shield of bankruptcy into a sword by not complying with any of [its] obligations.”

While our clients wait for the Third Circuit to rule on these legal matters, I am reminded of the J&J credo that states in its first line: “We believe our first responsibility is to the […] mothers and fathers and all others who use our products and services.”  The credo closes by addressing its stockholders and noting that “mistakes [must be] paid for.” For decades, J&J has ignored its credo, selling J&J’s Baby Powder with talc despite clear knowledge that it can cause ovarian cancer and mesothelioma, both deadly cancers. Its actions have resulted in needless death and suffering.  J&J should reverse course, follow its credo, take responsibility, and reasonably compensate the thousands of women and men and their families who are suffering or who have died from ovarian cancer or mesothelioma.

Hopefully, the Third Circuit will reverse the bankruptcy court’s decision, dismissing the bankruptcy and allowing trials to move forward, and ultimately, justice and fairness will prevail. 

Sources: Johnson & Johnson and Law.com

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head the Beasley Allen Talc 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 abuse of the bankruptcy system. The following Beasley Allen lawyers are members of the Talc Litigation Team:

Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.  While Charlie Stern and Will Sutton are on the team, they 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.

OPIOID LITIGATION

Walmart Confirms $3 Billion Settlement Over Pharmacies’ Opioid Sales

Walmart proposed a $3.1 billion settlement to resolve over 2,000 lawsuits against the company for its role in the nation’s opioid crisis. The settlement offer from the world’s biggest corporation and America’s third-largest pharmacy business falls in line with settlements involving CVS Pharmacy and Walgreens. 

The settlement also covers any potential legal claims the government may bring in the future. Walmart, plaintiffs’ counsel, state attorneys general and the 238-page settlement agreement confirm the offer details. Local government lawyers said:

Walmart has agreed to expedite its payment so that our nation’s communities can access the vast majority of these funds within one year of the agreement’s effective date.

The proposal allots $2.4 billion for addiction treatment and related services, $325 million in attorney fees and costs, and credits for previous opioid settlements. This includes $215 million for Florida.   

The $3.1 billion offer amounts to less than two days of total revenue for Walmart worldwide. In 2022, the corporation reported a fiscal year income of over $570 billion.

CVS and Walgreens indicated they would pay approximately $5 billion each to resolve opioid litigation.

Multidistrict litigation in Ohio federal court encompasses most of the opioid suits against pharmacy chains. One of the MDL’s bellwether trials resulted in a $650 million verdict against Walmart, Walgreens and CVS in Ohio. The Sixth Circuit is reviewing the verdict.

Plaintiffs have also sued drug manufacturers and wholesale distributors, the largest of which have agreed to settlements totaling $50 billion. Actual settlement payouts could be lower due to smaller drugmaker bankruptcies.

Entities in addition to Walmart, Walgreens and CVS have announced proposed and final settlements, including wholesale distributors AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp.; consulting firm McKinsey & Co. and drugmakers Johnson & Johnson, Teva Pharmaceuticals Industries Ltd. Allergan PLC, Purdue Pharma LP, Endo Pharmaceuticals Inc., Insys Therapeutics Inc. and Mallinckrodt PLC. The barrage of opioid cases has caused the latter four drugmakers to declare bankruptcy.

The focus moving forward is on pharmacies and drug companies that have avoided scrutiny. The MDL lawyers said their work “is far from finished,” and they “will continue to work to hold all those responsible for this epidemic fully accountable and obtain some measure of justice for its catastrophic effects.”

Simmons Hanly Conroy LLC, Farrell & Fuller Law LLC, Motley Rice LLC, Baron & Budd PC, Lieff Cabraser Heimann & Bernstein LLP, Robbins Geller Rudman & Dowd LLP, Levin Papantonio Rafferty, Seeger Weiss LLP, Napoli Shkolnik PLLC and Skikos Crawford Skikos & Joseph LLP are the lead firms in the MDL. 

Opioids killed approximately 50,000 people annually in the U.S. when the MDL began. During the COVID-19 pandemic, deadly overdoses increased. About 80,000 people in the U.S. die from opioid use each year.

The Department of Justice has sued Walmart in separate litigation, asserting that “Walmart’s failures helped to fuel a national opioid crisis.” The DOJ seeks recompense under the Controlled Substances Act.

Like previous settlements, Walmart’s agreement requires state and government entity involvement. A minimum of 43 states must sign on before 2023.

New York Attorney General Letitia James said that she and other state attorneys general “are optimistic that the settlement will gain the support of the required 43 states by the end of 2022, allowing local governments to join the deal during the first quarter of 2023.”

The state attorneys general who helped negotiate the settlement are from California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Nebraska, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Texas.

The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.

Source: Law360

Teva And Allergan Finalize Multibillion-Dollar Global Opioid Settlements

Teva reported on Nov. 22 that it had finalized a global settlement worth up to $4.25 billion to end claims brought by states and local governments that it fueled the opioid crisis by downplaying the risks of addiction. It was also reported that Allergan had finalized its own deal worth up to $2.02 billion.

This will complete the settlement with states attorneys general and lead attorneys in multidistrict litigation that was first announced in July. AbbVie unit Allergan also said it tied up its settlement terms, which will fund efforts to resolve the crisis and reimburse attorneys’ fees and costs.

Now that the terms have been finalized, a sign-on process will begin for states to join the settlement, according to Teva.

Source: Law360

The Beasley Allen Opioid Litigation Team  

Beasley Allen’s Opioid Litigation Team continues to work on a large number of existing cases. There has been no slowdown at Beasley Allen in this litigation. As previously stated, Beasley Allen lawyers represent the State of Alabama and the State of Georgia, numerous local governments and other entities. Our lawyers are also handling individual claims on behalf of victims in this litigation. Our Opioid Litigation Team includes

Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne, Elliott Bienenfeld, Matt Griffith and Elizabeth Weyerman.  

If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above. 

THE WHISTLEBLOWER LITIGATION

U.S. Supreme Court Refuses To Review Qui Tam Pleading Standards

The U.S. Supreme Court has rejected three recent petitions asking the Justices to address the federal appeals courts split relating to pleading standards in the False Claims Act (FCA), often referred to as “whistleblower lawsuits” or “qui tam” lawsuits. Under Fed. In R. Civ. P. 9(b), plaintiffs involved in FCA cases must state “with particularity” the circumstances surrounding the fraud claims alleged in a complaint.

As we have previously reported, the federal circuit courts’ “split,” which was described in each of the three petitions, is based on the more stringent standard applied, which requires specific examples of fraudulent billing versus allowing cases to survive while providing less specific, but still reliable sources of the fraud. For instance, Judge Diane Wood wrote for the Seventh Circuit Court of Appeals, in her majority opinion, that while 9(b) requires specificity, “it does not insist that a plaintiff literally prove his case in the complaint.”

This pleading standard issue has been weighed in on by the Solicitor General in 2010 and 2014 but remains fluid. Also, in 2014 the federal government agreed that there have been “inconsistent conclusions” about the Fed. R. Civ. P. 9(b) issues in lower courts. At that time, the government suggested that the Supreme Court not step in to determine the 9(b) standard. So, the issue remains unsettled for now.

Beasley Allen’s Whistleblower Litigation Team is monitoring issues related to the Fed. R. Civ. P. 9(b) federal circuit split. Although the High Court has not decided to weigh in on the 9(b) standard at this time, it is still possible that the Court will address the issue in due time. We had hoped that the High Court would settle matters now, but that didn’t happen.  

If you have a client who is alleging violations of the False Claims Act, we are ready to review these claims. Contact our qui tam team leaders Larry Golston or Lance Gould.

Source: Law360.com

Whistleblower, Georgia Clinic Settle FCA Suit Mid-Trial

An Athens, Georgia-based orthopedic clinic reached an agreement to settle a whistleblower lawsuit bought by its former chief operating officer, who accused the company of engaging in unlawful conduct and defrauding government healthcare programs.

Whistleblower Rebecca Hockaday filed the False Claims Act lawsuit against Athens Orthopedic Clinic and several doctors in 2015. The lawsuit alleged that the clinic and its related businesses violated the Physician Self-Referral Law (Stark Act) and anti-kickback statute, which are designed to discourage medical professionals from placing profits over the patient’s best interest when deciding treatment.

In an amended complaint filed in 2018, Hockaday said the Athens Orthopedic Clinic’s corporate culture was characterized by “cheating and maximizing profits over compliance and professionalism,” billing coverups, and noncompliance with health care regulations.

The parties unsuccessfully petitioned the court to rule on some or all of the claims without going to trial first, but jury selection and trial started on Oct. 31. The parties reached an agreement to settle the case about halfway through the trial. The terms of the agreement are confidential.

It is uncommon for False Claims Act lawsuits to proceed to trial and rarer still for them to go to judgment without being settled first. Most defendants settle False Claims Act cases before trial because judgments can be harsh. Under the law, damages are automatically tripled, and every false claim or fraudulent bill to the government can result in a penalty of at least $11,000 each.

The case is U.S. ex rel. Hockaday and State of Georgia ex rel. Hockaday v. Athens Orthopedic Clinic PA et al., case number 3:15-cv-00122, in the U.S. District Court for the Middle District of Georgia.

Source: Law360

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers continue to be heavily involved in handling whistleblower cases. Fraudulent conduct continues to cause huge problems in many industries in this country. We significantly increased our healthcare whistleblower practice months ago. Our lawyers continue to handle cases throughout the country involving fraud against governments.

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 above.

The experienced group of lawyers on the Whistleblower Litigation Team is 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.

SECURITIES LITIGATION

Jenzabar Investors Awarded $26 Million In Stock Rights Lapse Suit

Delaware’s Court of Chancery ordered the founder of Jenzabar Inc. to pay co-investors $25.5 million for allegedly engaging in unlawful and deceptive practices that allowed their stock purchase warrants to expire and robbed them of the opportunity to invest in follow-on opportunities. 

Vice-Chancellor Lori Will’s order resolves allegations brought by three investors from New Media Investors II-B LLC – a Jenzabar Investment group – and its founder and manager, Robert A. Maginn Jr., who served as Jenzabar CEO until 2019. Jenzabar is an educational media company that creates products and services for higher education.

The court noted that some of the damage claims arose too late. However, it found that Maginn effectively barred other investors from participating in a subsequent “II-C” securities series after he attempted to tie releases of liability for himself to payments in 2013 that amounted to an involuntary cash-out of II-B rights.

According to Law360, the investors accused Maginn “of discouraging exercise of the warrants in order to prevent dilution of his own shares in Jenzabar, as well as concealing details about the conflict and valuation of the warrants.” They also accused Maginn of hiding or destroying records related to the long-running dispute.

Vice Chancellor Will wrote:

After trial, I find that Maginn breached his duty of loyalty when he usurped from New Media II-B the opportunity to obtain the new warrants. I award rescissory damages to remedy that harm.

She added that the “obscure and obfuscatory” transactions foiled other investors from accessing the new securities and that Maginn’s “furtive behavior” underscored the scheme.

The Vice-Chancellor also said that more proceedings would be needed to determine how aspects of the case will be handled, including how the payouts will be administered and locating the eligible investor beneficiaries besides the three that filed the complaint.

Additionally, considering the court’s previous ruling, it said the court had not found the three plaintiffs properly removed Maginn from the investor group. The court also explained that Deleware’s Limited Liability Company Act does not include provisions that support the investors’ request to have a receiver administer the process. Vice Chancellor Will determined that the court’s equitable powers extend to actions needed to “prevent further harm and carry out the court’s judgment.”

In addition, the court found the court had not found the three plaintiffs properly removed Maginn from the investor group. While Delaware’s Limited Liability Company Act lacks provisions supporting the investors’ request for the appointment of a receiver to oversee the process, Vice Chancellor Will wrote that the court’s equitable powers extend to actions needed to “prevent further harm and carry out the court’s judgment.”

The investors are represented by David H. Holloway, Colin R. Hagan and David J. Shlansky of Shlansky Law Group LLP.

The case is Deane et al. v. Maginn Jr. et al., case number 2017-0346, in the Court of Chancery of the State of Delaware.

Sources: Law360 and Justia

Beasley Allen Securities Litigation Team

Beasley Allen lawyers in our firm remain very active in securities cases as this area of our practice continues to grow. 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:

James Eubank heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team.

THE JUUL LITIGATION

JUUL Update On FDA Decision; Efforts To Avoid Bankruptcy

Earlier this year, the U.S. Food and Drug Administration (FDA) denied JUUL Labs Inc.’s application to sell its products, stating they were concerned there was insufficient evidence of the product’s toxicology to allow them to market to protect public health. JUUL appealed this decision, asking for their product to remain on the market while a final decision is made. 

JUUL recently published its administrative appeal of the marketing denial order (MDO), explaining FDA’s position on the ruling was substantively and procedurally flawed. JUUL believes that the deficiencies listed in the MDO were improperly evaluated. 

JUUL requests in the appeal that the FDA do a complete review of the science and evidence presented in its initial application to determine whether the product is appropriate for the protection of public health. This appeal, known as a 10.75 appeal, continues to be reviewed by the FDA.

Additionally, JUUL has recently expressed concerns about a potential bankruptcy due to the FDA ruling, regulations on flavors, legal challenges, and subsequent loss in sales. In November, JUUL reached a financing deal to stave off that bankruptcy. In doing so, the company intends to lay off 30% of its employees to reduce its operating budget.

The multidistrict litigation (MDL) against JUUL, JUUL’s founders and key company directors, Altria, Inc., is still underway. Currently, there are nearly 4,000 suits in the MDL, including personal injury suits and claims brought by school districts, government entities and tribes. The first personal injury bellwether trial is set to begin in January 2023. The first school district trial, previously set to start last month, has now been moved to April 2023. The lawsuit was brought by San Francisco United School District.

Sources: Tobacco Report and CNBC

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers in the Mass Torts Section, led by Joseph VanZandt, continue to be heavily involved in the JUUL litigation. The lawyers represent individuals suing JUUL Labs, the top U.S. vape maker, for the negative impact its products have had on the lives of victims. Our lawyers also represent a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team has filed lawsuits nationwide on behalf of school districts. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

Beasley Allen lawyers continue to file cases for individuals suffering from personal injuries and claims on behalf of school districts and government entities across the country. Joseph VanZandt, who heads up our firm’s JUUL Litigation Team, serves on the JUUL Plaintiff Steering Committee and is trial counsel for the first bellwether trial. Joseph and Mass Torts Section Head Andy Birchfield lead our firm’s efforts to hold JUUL accountable for the damage it caused to thousands of youths and communities around the country. Beasley Allen’s Beau Darley also serves on the PSC for the California state court litigation.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team at 800-898-2034 or by email. Members are:

Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding or Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and works closely with the team on the JUUL litigation.

THE ASBESTOS LITIGATION

Honeywell To Pay $1.3 Billion To End Asbestos Exposure Claims

Honeywell International Inc. agreed to pay more than $1.3 billion to resolve asbestos exposure claims in the Chapter 11 case of its former subsidiary, North American Refractories Co. (NARCO), according to a November U.S. Securities and Exchange Commission Filing.

As part of the agreement, Honeywell will make a one-time lump sum payment of $1.325 billion to the NARCO Asbestos Personal Injury Settlement Trust. The trust was established on April 30, 2013, and began accepting claims on Oct. 15, 2013. In exchange, the company will be released from all further and future asbestos claims regarding exposure to asbestos-containing products manufactured, sold, or distributed by NARCO or its predecessors, Honeywell said in the filing.

NARCO, which was founded nearly a century ago, filed for bankruptcy in 2002 after being hit by more than 250,000 asbestos lawsuits. The company emerged from bankruptcy in April 2013. The company manufactured refractory materials containing asbestos. The heat-resistant products were used to make furnaces, brake pads, and other products.

Honeywell owned NARCO for several years in the 1980s. The company is responsible for funding the asbestos trust, including $140 million in annual payments to cover asbestos claims and expenses for the administration of the trust, totaling about $21 million in 2021.

The case is Honeywell International Inc. v. Narco Asbestos Personal Injury Settlement Trusts, adversary case number 21-02097, as part of In re: North American Refractories Co., case number 15-00204, in the U.S. Bankruptcy Court for the Western District of Pennsylvania.

Sources: Law360, Narco Asbestos Trust and Honeywell

Employer Of Family Member Agrees to Pay $5 Million to Victim of Secondary Asbestos Exposure

Beasley Allen’s mesothelioma lawyer Charlie Stern secured a $5 million settlement on behalf of a 56-year-old woman diagnosed with mesothelioma due to secondary asbestos exposure. Our client’s father had worked for the company for nearly 30 years in various positions, during which he was exposed to the known carcinogen. 

Our client’s father worked with and around asbestos-containing products and materials, during which his bib overalls would become covered in tiny asbestos fibers. Growing up, our client frequently rode with her mother to pick up her father from work. Upon seeing him approach, our client would jump out of the car to greet and hug him while he was still dressed in the same bib overalls he’d worked in all day. Additionally, our client routinely helped launder her father’s work clothes while growing up, resulting in her unwitting exposure to the deadly asbestos fibers.

 Secondary asbestos exposure — exposure to the cancer-causing mineral on the clothes of someone who worked in an environment contaminated with asbestos — can be just as dangerous as primary asbestos exposure. A 1997 study by Durham and Duke University Medical Centers among women diagnosed with mesothelioma found that half of them were victims of secondary asbestos exposure from either their spouse, parent, or child who worked in an asbestos-contaminated environment.

Charlie had this to say about the settlement:

Decades after the dangers of asbestos were widely known, some companies continued to cover up the fact that their workplaces were toxic to workers and their families. A lot of law firms shy away from cases like this. But we were not going to let our client down. This settlement is a small remedy to an otherwise terrible and unnecessary situation.

If you have any questions or need help with an asbestos case, contact Charlie Stern.

Court Orders Ford To Pay $6 Million In Asbestos Death Case

A Missouri Circuit Court ordered Ford Motor Co. to pay $6 million to the family of a woman who developed mesothelioma and died after years of repeated exposure to asbestos in the factory where she worked.

Linda Behling died from the rare, uncurable cancer in July 2019. She had spent decades working for Springfield, Missouri-based Executive Coach Builders Inc., which transformed new Ford Towncars into limousines.

According to the family’s lawsuit, Ms. Behling worked at the limousine factory from 1985 to 2014. Her work there exposed her to dust from Ford-manufactured brakes, which contained asbestos fibers. The family alleged that repeated asbestos exposures stemmed from the “materials, products, equipment, conditions and activities” of her work, which caused her to inhale and ingest the fibers.

The family argued that Ford was liable for the deadly exposures because it failed to warn the public of the presence of asbestos in the brake dust emitted during brake repairs. Ford’s lawyers argued that Ms. Behling’s exposures were limited and that the role Ford allegedly played in her death could not be proven.

“After examining the evidence, the jury found that Ford was a fault,” said the law firm representing Ms. Behling’s family in the case. “Nothing will bring Linda back. But this verdict is a statement that our system can hold companies accountable.”

Ms. Behling was 70 years old when she received her mesothelioma diagnosis. According to the family, Ms. Behling should have been enjoying retirement after decades of hard work at the factory. Instead, she had to cope with the debilitating effects of “asbestos-related diseases,” including mesothelioma, that eventually led to her death. She left behind two children, five grandchildren and one great-grandchild.

The Behlings were represented by Andrew Murrie and Brian J. Cooke, lawyers in the Simmons Hanly Conroy firm.

The case is Howard Behling et al. v. Ford Motor Co. et al., case number 1922-CC12004, in Missouri’s 22nd Judicial Court in St. Louis.

Sources: Law360 and Fox2Now

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to spread across the country. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation. He was a perfect fit to lead the team. Thus, Charlie was selected to lead the Beasley Allen 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 phone at 800-898-2034 or via the form at the bottom of this page.

MASS TORTS LITIGATION

New Philips Respironics Devices Recalled Due To Safety Issues With Magnets

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the United States. Now, over one year later, the company is facing a new recall for the face masks of the recalled devices. Certain face masks for the CPAP and BiPAP machines have serious safety concerns due to the magnetic headgear clips that hold the mask in place.

The recalled devices are Amara View Full Face Mask, DreamWisp Nasal Mask, DreamWear Full Face Mask, Wisp and Wisp Youth Nasal Mask, and Therapy Mask 3100 NC/SP. The clips in these masks can potentially cause injury or death for people with specific implanted metallic medical devices or magnetic objects in the body.

What is even more concerning is that it is not just the users of the mask that are in danger. Even those near a person using a recalled mask are at risk. Philips Respironics issued a press release on Sept. 6, 2022, recommending users of the recalled masks to stop their use immediately and switch to a non-magnetic mask if available. The list of devices placing users and those near a user at risk is extensive and includes pacemakers, insulin pumps, and implanted cardiovascular defibrillators.

Forty-three complaints, fourteen of which are classified by the FDA as serious injuries, were associated with this safety concern as of Sept. 9, 2022.

Beasley Allen lawyers are investigating claims for the users of the recalled CPAP machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information, contact Alexa Wallace or Melissa Prickett.

Source: Food and Drug Administration

Hair Relaxers Linked to Uterine, Ovarian, Breast And Endometrial Cancers, Endometriosis And Uterine Fibroids

Beasley Allen is handling lawsuits for women who regularly used chemical hair relaxers and developed uterine, ovarian, breast and endometrial cancers, endometriosis and uterine fibroids. A National Institute of Environmental Health Sciences (NIEHS) study recently found that women who used chemical hair straightening products, also called hair relaxers, more than four times per year were more than twice as likely to develop uterine cancer than those who did not. This is particularly shocking for the African American community, who use these products more than any other group.

The study relied on data from the Sister Study, a nationwide project of the National Institutes of Health (NIH), to learn how the environment and genes may affect a woman’s risk of developing breast cancer. For the latest study: Researchers identified 33,947 racially and ethnically diverse women aged 35-74 who had a uterus (also called the womb) when they enrolled. The researchers asked the women about the hair products they were using.

According to the research conducted over nearly 11 years, women who reported using chemical relaxers were almost twice as likely to have been diagnosed with uterine cancer than those who did not. Women who reported being frequent users of straighteners (defined as more than four times in the previous 12 months) were about 2.5 times more likely to develop uterine cancer than those who did not use the products.

Hair relaxers are made by manufacturers such as L’Oréal, ORS, Revlon, Strength of Nature Global, Softsheen-Carson and many others. The hair relaxers are used to straighten, flatten and smooth hair. Most hair relaxers contain toxic chemicals such as formaldehyde, metals, phthalates, and parabens, which are associated with a higher risk of cancer, particularly hormone-sensitive ones such as breast and ovarian cancer.

Key risk factors for uterine cancer include exposure to excess estrogen and a hormonal imbalance of estrogen and progesterone. It is believed that synthetic estrogenic compounds, such as endocrine-disrupting chemicals (EDCs), may contribute to uterine cancer risk because of their ability to alter hormones. Hair products that contain EDCs may provide a pathway for these chemicals to enter the body through scalp burns and abrasions often caused by chemical hair relaxers.

Previous studies involving data from the Sister Study have linked hair dye and chemical hair relaxers to breast cancer cases. Even more, hair relaxers aren’t just causing uterine cancer and breast cancer.  The endocrine-disrupting chemicals, such as the phthalates, are also causing conditions such as endometriosis and uterine fibroids, which have been linked to infertility and pre-term deliveries.

Manufacturers raked in over $700 million in sales from hair relaxers in 2021 alone. The overwhelming share of users of chemical hair-relaxing products is Black women. Yet, manufacturers failed to warn women about the chemicals’ dangers despite studies dating back to 2011 that identified this risk.  The FDA regulates cosmetics, including hair relaxers, based on the Federal Food, Drug, and Cosmetic Act and the Fair  Packaging and Labeling Act for products marketed for retail. Companies and individuals manufacturing or marketing hair relaxers are responsible for the safety and labeling of products and ingredients.

Beasley Allen lawyers in our firm’s Mass Torts Section are actively investigating cases of uterine, ovarian, breast and endometrial cancers, endometriosis and uterine fibroids in women who developed these conditions after using chemical hair relaxers. For more information, contact Aigner Kolom or Melissa Prickett.

Sources: National Institute of Environmental Health Sciences and National Institutes of Health

Energy-Based Vaginal Rejuvenation Procedures Linked To Severe Injuries

Beasley Allen lawyers in our Mass Torts Section are handling cases for women who have been injured from laser treatments. A vaginoplasty is a minimally invasive procedure designed to tighten the vagina and correct pelvic organs that drop from their normal positions.  An alternative to vaginoplasty is a non-invasive vaginal tightening through heating tissues with radiofrequency waves or lasers.  Laser treatments date back to the 1960s for various skin conditions, but beginning in the early to mid-2000s, the use of these lasers for vaginal rejuvenation procedures became increasingly popular. Laser vaginal rejuvenation companies boast that the process can improve vaginal dryness and urinary incontinence and also claim to create a firmer and more youthful vaginal area. Several manufacturers also claim that the procedure is painless. 

Despite these claims, many women experience severe pain in their vaginal areas due to thermal burns from lasers.  The burns can subsequently cause scarring, muscle spasms, urinary issues, painful intercourse, infections, and inflammation.  Several studies have investigated the use of laser vaginal rejuvenation procedures, and all are skeptical that they are safe and effective.  In July 2018, FDA Commissioner Scott Gottlieb, M.D., released a statement that laser devices used for these procedures have only been approved for removing precancerous cervical or vaginal tissue and genital warts, have not been formally approved for vaginal rejuvenation procedures and voiced concerns about inappropriate marketing of several devices used for these procedures.

Sources: Statnews.com and Food and Drug Administration

An Update On The Acetaminophen Litigation

A leadership team of 22 lawyers has been selected for the acetaminophen litigation. The cases involve the prenatal use of the medications such as Tylenol, saying it causes autism and ADHD in children. U.S. District Judge Denise Cote, overseeing the acetaminophen multidistrict litigation in New York’s Southern District, approved the leadership team on Nov. 16. These lawyers will lead the multidistrict litigation (MDL) and include the following:

Plaintiffs’ Executive Committee

  • Ashley Keller of Keller Postman LLC as Co-Lead Class Counsel
  • Mikal Watts of Watts Guerra LLC as Co-Lead Class Counsel
  • Mark Lanier of The Lanier Law Firm as Co-Lead Class Counsel
  • Ashley Barriere of Keller Postman LLC leads the Law & Briefing Subcommittee
  • Daniel Sullivan of Hollwell Shuster & Goldberg LLP leads the Administrative Functions & Common Benefit Reporting Subcommittee
  • Sean Tracey of Tracey Fox King & Walters leads the Early Vetting/Bellwether Selection Subcommittee
  • Eric Holland of the Holland Law Firm leads the Discovery/ESI Subcommittee
  • Roger Smith, III of Beasley Allen leads the Science & Expert Subcommittee
  • Zoe Littlepage of Littlepage, Booth & Leckman leads the Settlement/Lien Resolution Subcommittee

Plaintiffs’ Steering Committee

  • Tricia Campbell of Krause & Kinsman
  • Charles J. Cooper of Cooper Law Partners
  • Eric Cracken of the Tor Hoerman Law Firm
  • David P. Matthews of Matthews & Associates
  • Neal Moskow of the Moskow Law Group, LLC
  • Rick Paul of Paul LLP
  • Ruth Riskalla of the Carlson Law Firm
  • Lawrence S. Robbins of Friedman, Kaplan, Seiler & Adelman LLP
  • Lindsey Scarcello of Wagstaff & Cartmell

The lawsuits are against Johnson & Johnson, manufacturer of Tylenol. They are also filed against more than a dozen retailers, including Walmart Inc. and CVS Pharmacy Inc., which sell store brands of acetaminophen.

The litigation, which alleges acetaminophen caused children to be diagnosed with autism spectrum disorder or attention deficit hyperactivity disorder, is among the country’s most closely watched mass torts, given its potential size. Acetaminophen is practically the only pain reliever that doctors say is safe for pregnant women. A huge number of cases will likely be filed.

The litigation references findings published in scientific journals in 2021 and 2020. Judge Cote taking up two cases in which dismissal motions were pending, found that U.S. Food and Drug Administration regulations did not preempt claims alleging Walmart failed to warn of the prenatal health risks connected to its generic version of acetaminophen, Equate. This was a big win for the plaintiffs.

Judge Cote wrote, “a manufacturer is responsible for the adequacy of the warnings on its drug label. The regulation of acetaminophen generally and the pregnancy warning regulation, in particular, do not alter that responsibility.” She noted that the existing label says nothing about autism or ADHD, only stating: “If pregnant or breast-feeding, ask a health professional before use.”

The litigation primarily focuses on retailers, but in October, three lawsuits named Johnson & Johnson, the only manufacturer in the case.

The retailer defendants include Costco Wholesale Corp., Dollar General Corp., Dollar Tree Inc., Family Dollar Inc., Rite Aid Corp., Safeway Inc., 7-Eleven Inc., Target Corp., The Kroger Co. and Walgreen Co.

We will write more on this litigation in the January issue. If you have questions or need help with a case, contact Roger Smith, a lawyer in our Mass Torts Section. Roger was appointed to the Plaintiffs Executive Committee by Judge Cote.

Source: Law.com

First Set Of Bellwether Cases Chosen In Infant Formula Multidistrict Litigation

In prior issues of this Report, we wrote about our involvement in litigation surrounding the development of Necrotizing Enterocolitis (NEC) in premature infants fed cow’s milk-based infant formula products.  Last month, we wrote that Judge Rebecca R. Pallmeyer, overseeing the multidistrict litigation, approved moving forward with the selection of twelve initial bellwether cases.  Bellwether cases allow a small selection of representative “test” cases to move through discovery and litigation for the parties to have a better understanding of how the cases will be viewed by juries.

On October 20, Judge Pallmeyer entered an order approving the selection of the first eight initial bellwether cases. Four cases were selected by plaintiffs, and four cases were randomly selected by the parties using a random number selection. Defendants will choose the remaining four bellwether cases for twelve initial bellwether cases. In the coming months, these twelve cases will be narrowed down to four, which will proceed to trial.

David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, are aggressively investigating and filing these cases. 

EMPLOYMENT AND FLSA LITIGATION

Google Agrees to Pay 40 States The Largest Privacy Settlement in U.S. History

Google has agreed to pay the largest privacy settlement in U.S. history to 40 states, including Alabama and Georgia. The $391.5 million settlement will resolve claims that the company used misleading and deceptive practices regarding users’ data. It is the largest privacy settlement of its kind by state attorneys general in the nation’s history.

Google also agreed to be more transparent about its practices and to provide users with more detailed information about the kinds of location data it tracks and how they are used.

The attorneys general accused Google of misleading consumers into believing they could opt out of location tracking. Meanwhile, another Web & App setting continued to collect that data.

Among the states included in the agreement, Connecticut will receive about $6.5 million; New Jersey, $17.79 million; Florida, $26 million; Georgia, more than $12.4 million; and Delaware, $4.3 million.

“With this historic settlement, we believe that Google is working to correct the situation by taking the necessary steps to enhance its privacy standards,” said Georgia Attorney General Chris Carr in a news release.

Beasley Allen lawyers are currently handling class action and individual claims against Meta, including Facebook and Instagram, for using private information for profit. For example, Meta is accused of improperly using medical information from patients who registered at patient portals at their physician’s office when visiting for an appointment.

Our investigation reveals that the patient data was sold to pharmaceutical marketers for profit. If you have any questions or need help with a case, contact Lauren Miles, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section.

Source: Law.com

PREMISES LIABILITY LITIGATION

Violent Crime In Apartment Complexes – The Slippery Slope Of Poor Management And The Inevitable Dangerous Conclusions Springing Therefrom

On the evening of July 17, 2022, 21-year-old Jason Escroffery was shot and killed at the pool of the MAA West Village apartments in Smyrna, Georgia. When reading about such a tragedy in the news, especially one involving the taking of such a young life, the reader’s initial thoughts may be something along the lines of, “How could this have happened?!” For residents of the complex where the shooting occurred, however, such violence may unfortunately not be all that unexpected. These criminal acts are often the result of a long history of failures by management to properly enforce their polices and procedures and ensure the safety of residents and others visiting the complex. Parker Miller, the lead negligent security and premises liability lawyer in our Atlanta office, explained it this way:

Most complexes with a history of rampant crime do not start out that way. Instead, management first fails to monitor the property and be knowledgeable of what takes place in the complex. If the complex places a priority on staying knowledgeable and then quickly and consistently responds to the conduct in a meaningful way, then bad actors get the message that this is not a good place to carry out bad deeds. Outside observers may be led to believe that a troubled community is full of bad actors, but many times, that is not the case at all. A community full of decent people can live a life of torment when a complex let a few bad eggs terrorize it with impunity.  Poor training and low priority for the quality of living for tenants are major culprits here. Unfortunately, the longer the complex tolerates bad conduct, the worse it will get, as bad actors will start targeting the complex because they do not fear reprisal there.

There are various ways a complex can head this bad conduct off, including enforcing the lease agreement promptly and consistently, following common-sense policies and procedures, and implementing security measures as needed. “Criminals want to conduct their activity in the most convenient place possible. If a complex is troubled, that is not a coincidence. They are selecting that complex because they know they can enter, remain, and then exit the property after carrying out their business without ever being confronted or detected.”

Parker Miller and Houston Kessler, lawyers in our Atlanta office, have handled numerous premises liability, third-party criminal acts and other catastrophic injury cases across the State of Georgia and other states. They are currently investigating the tragic shooting of Jason Escroffery. If you have any questions or need help with a case, you can contact them at 800 898-2034 or by using the form at the bottom of this page.

Beasley Allen Investigates Wrongful Death Case At Atlanta Apartment Complex Said To Be “Notorious”

Beasley Allen is investigating a wrongful death shooting case at the notorious Forest Cove Apartments in Atlanta. Parker Miller, our lead premises liability lawyer, is heading up the investigation for the firm. A 13-year-old child was fatally shot on July 18, 2022, when a group entered the property, firing into a large crowd. The gunfire reportedly hit four other people.

Forest Cove’s history as a poorly maintained Complex is unprecedented. Since 2009, there have been 19 homicides at Forest Cove. From 2018 to 2019, reports show that police responded to violent crime – including shootings, stabbings and rape, an astounding 130 times. The Complex was in such poor condition that an Atlanta municipal judge condemned the Complex in 2021 after reports that the units were falling apart inside and suffering from an infestation of rats and roaches. Over 200 families had to be relocated from the Complex. Parker says:

Our investigation is in the early stages, but we can already tell that the conditions were horribly unacceptable. This is a perfect example of what happens when an apartment complex ignores the safety of its residents and their guests.

Beasley Allen lawyers in our Personal Injury & Products Liability Section have previously handled numerous negligent security cases. They are determined to make a difference in the lives of our clients, their families, and the community by holding apartment complex owners and managers accountable for conditions like this.

If you have any questions about this case, contact Parker Miller or Houston Kessler.

Sources: 11 Alive, Atlanta Journal-Constitution

TOXIC TORT LITIGATION

New Wave Of PFAS Lawsuits

The persistent, toxic, and bio accumulative chemicals known as PFAS have been the subject of numerous lawsuits for over a decade.  Recently updated EPA interim health advisories and ongoing discovery of contamination have brought a new wave of litigation against PFAS manufacturers, users, and disposers.

PFAS have been used in a variety of industries since the 1950s.  More recently, PFAS have been used in fracking. In areas where fracking is common, new contamination has been discovered. Recently a homeowner in Washington County, Pennsylvania, has sued after discovering PFAS in their drinking water.  The homeowner’s family had been suffering from various health problems, and the PFAS levels in their drinking water were hundreds of times higher than the EPA advisory levels.

California joined many other states by suing PFAS manufacturers 3M and DuPont over statewide contamination. Many states have sued to recover natural resource damages resulting from either PFAS use in AFFF firefighting foam or other products containing the harmful chemicals. 3M and DuPont continue to defend the onslaught of litigation by claiming they have acted responsibly with their environmental stewardship surrounding these “forever chemicals.”

PFAS were dubbed forever chemicals because the never breakdown in the environment and can only be destroyed through high temperature incineration.  Recent studies published in academic journals have concluded that even in the most remote locations on earth, the PFAS levels in rainwater even exceed the current EPA advisory level for drinking water.  PFAS can only be removed from drinking water with expensive advance filtration methods such as reverse osmosis.

Beasley Allen lawyers stand ready to represent current and future clients faced with installing and maintaining costly filtration to obtain clean drinking water free from PFAS.

If you have any questions or need help with a case, contact David Diab, a lawyer in our firm’s Toxic Torts Section.

Sources: WTAE and California Attorney General

3M’s Appeal Of The Baker Trial Verdict

3M recently asked the Eleventh Circuit Court of Appeals to reverse a $1.7 million bellwether verdict awarded to Lloyd Baker in the Combat Arms Earplug litigation. The June 2021 jury found 3M 62% responsible for Baker’s hearing loss and tinnitus due to inadequate warnings concerning the imperceptible loosening of the Combat Arms Earplugs (also known as CAEv2).

Counsel for 3M argued the district court improperly denied 3M’s government contractor defense, which would have made 3M immune from product liability claims related to the defective earplugs. 3M also argued the district erred in instructing the jury that the company violated a “clear legal duty” to give the plaintiff’s Combat Arms Earplugs instructions and a noise reduction rating.

Aside from the district court’s supposed “fundamental” legal errors, 3M’s Lawyers argued there were other prejudicial evidentiary errors relating to the admission of hearsay documents and “irrelevant allegations about manufacturing irregularities” that warranted a new trial.

In response, Baker’s counsel explained how the district court correctly ruled that the government contractor defense did not apply, that hearing protection regulations extended to 3M’s Combat Arms Earplugs, and the district court’s evidentiary rulings were within its discretion.

3M continues to defend itself in more than 230,000 lawsuits claiming the Combat Arms Earplugs failed to protect military service members’ hearing in training and combat situations. Most of the lawsuits are consolidated in multidistrict litigation before Judge Casey Rodgers in the Northern District of Florida. The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court, Northern District of Florida, No. 19-md-2885.

If you have any questions or need help with a case, contact Will Sutton, a lawyer in our firm. Will is the lead lawyer handling the 3M litigation for our firm.

Source: Law360.com

The Guardian: An Expose Published About Internal Corporate Documents For Paraquat

The Paraquat Products Liability Litigation MDL was formed on June 8, 2021 (Case No. 3:21-MD-3004), with Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois presiding.

On Thursday, Oct. 20, 2022, The Guardian published a revealing article entitled “Secret Files Suggest Chemical Gian Feared Weedkiller’s Link to Parkinson’s Disease.”  The article exposes “a cache of internal corporate documents dating back to the 1950s” that “suggests that the public narrative put forward by Syngenta and the corporate entities that preceded it has at times contradicted the company’s own research and knowledge.” 

These documents “show a corporate focus on strategies to protect product sales, refute external scientific research and influence regulators.”  Further, “the documents show that insiders feared they could face legal liability for long-term, chronic effects of paraquat as long ago as 1975.” 

To read the entire article and review the documents and associated timeline of what Syngenta knew and when see https://www.theguardian.com/us-news/2022/oct/20/syngenta-weedkiller-pesticide-parkinsons-disease-paraquat-documents.

Beasley Allen lawyers Julia A. Merritt and Leslie B. LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL.  Our Paraquat Litigation Team would be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire.

Beasley Allen continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact us if we can assist you in your paraquat applicator cases. The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases.

The lawyers on the team are Julia Merritt and Leslie LaMacchia, who head the team, and members Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact a lawyer on the team by phone at 800-898-2034 or via the form on this page for more information on the litigation, including the MDL.

Source: The Guardian

CLASS ACTION LITIGATION

The $102.6 Million Class Action Jury Verdict Against GM

Beasley Allen lawyers learned of a GM V8 engine defect in the summer of 2016, and that defect became the first auto defect class action that Clay Barnett investigated, developed and filed.  Fast forward to October 4, 2022; our trial team, led by Clay, won a rare class-action jury trial in California federal court against General Motors.  The following is the rest of the story.

From December 2016 through the present, U.S. District Court Judge Edward M. Chen of the U.S. District for the Northern District of California shepherded this case on its long journey that featured an intervening U.S. Supreme Court decision concerning personal jurisdiction, a probing discovering period, multiple class certification arguments and spirited motions to limit evidence and expert testimony. It was quite the journey and immensely satisfying to our trial team when the jury announced a victory for the truck and SUV owners.

On Sept. 13, the firm’s trial team of Clay Barnett, Rebecca Gilliland, Mitch Williams and Dylan Martin, and co-counsel from the DiCello Levitt firm, selected a jury of four women and four men from the Northern District of California. We selected an educated and intuitive jury, including a small business owner, two software engineers, one carpenter/craftsman, one accountant, one recruiting coordinator and two nurses.  Because our evidence involved technical mechanical engineering principles, Clay and the team knew their jury needed a technical lean – and they got just that from the jury selection process.

Our three plaintiffs started the trial on Sept. 19,representing tens of thousands of purchasers and lessees from California, North Carolina and Idaho. The issue: whether GM breached the implied warranty of merchantability in California and North Carolina and violated Idaho’s consumer protection act. The subject of the class action: 2011-2013 Chevrolet and GMC SUVs and pickups equipped with the GM 5.3L V8 LC9 engine with its defective design that caused it to suffer aggressive and premature internal wear and component failure.  Through GM engineers, technical expert testimony and plaintiffs Garet Tarvin, Gabriel Del Valle and William Davis, our trial team demonstrated to the jury that GM knowingly produced the defective engine for years and hid the defect from consumers.

GM brought three GM 5.3 V8 LC9 engineers to trial, and our team called them each to the witness stand and presented the plaintiffs’ case through those very GM engineers as adverse, hostile witnesses in our case-in-chief. With these witnesses appearing in person, the jury studied them closely as they attempted to walk back admissions made in videotaped deposition testimony and their written communications generated during the vehicle production period. The jury was not fooled by the self-serving and scripted qualifying answers the witnesses offered to explain away their prior damaging admissions.

Our technical expert, Professor Werner Dahm, educated the jury on engine combustion, lubrication and heat exchange principles, concluding with a plain-spoken analysis of how engines break down when one or more of those principles is compromised by a design or materials defect. Dr. Dahm’s mechanical engineering tutorial applied to all internal combustion engines, not just GM’s 5.3L V8s, making him impervious to cross-examination. When the jury saw clear evidence of GM’s 5.3L V8s failing in the way Dr. Dahm described and for the reasons he assigned, their decision on the existence of a defect must have been easy.

Our three plaintiffs brought the defect home to the jury in terms of its human impact.  Tarvin, Del Valle and Davis all had to change their driving behavior and maintenance regimens due to the engine defect – as in, all three became full-time caretakers of their engines when they had purchased them intending to simply be owners. Our three plaintiffs didn’t ask the jury for a windfall; they asked the jury for GM’s internally assigned cost of a corrected part design – nothing more. This cost was $2700.00 per engine.  This is what Clay Barnett requested in the final closing argument.

The jury responded with a unanimous verdict for exactly what the plaintiffs and the trial team requested for the three plaintiffs and the class members. The jury also agreed with the plaintiffs that GM knew of the defect, failed to disclose it and that the defect made the vehicles unfit for ordinary use.  The jury heard that at least 38,000 5.3L V8 LC9 engines were owned and operated by purchasers from the three states and awarded those class members $2700.00 each.  The total verdict was $102,600,000.00. Our trial team did some great work on this class trial.

This same trial team is prosecuting sister class actions alleging the same defect in other states around the nation. Beasley Allen’s litigation team is confident that this Northern District of California jury verdict will stand and that other juries will agree with our California jury. If you would like more information or need help with a case, contact Clay Barnett.

Dell Settles Suit Over Stock Swap Deal For $1 Billion

Dell Technologies founder Michael Dell, other company directors and controlling investors agreed to pay $1 billion in cash to settle a lawsuit in Delaware Court of Chancery brought by public stockholders who claimed they suffered losses due to a $23.9 billion conversion of Dell stock in 2018.

If the court approves the agreement, the parties will avoid a trial set for early December. The case involves Dell’s efforts to exchange Class V stock for shares of Dell stock. The Class V stock was created to pay for most of Dell’s $67 billion acquisition of EMC Technologies in 2016.

Public shareholders claimed they were shortchanged at least $6 billion in December 2018, when Dell Technologies paid $14 billion in cash and issued nearly 150 million shares of its Class C common stock for the Class V shares.

“Today is a great day for Dell shareholders,” said attorneys for the shareholders. “This settlement underscores a landmark victory, as one of the largest cash settlements in Delaware Chancery Court history on behalf of shareholders. We were ready to bring this case to trial … and are confident that our strong pre-trial position helped secure this historic settlement for the class.”

In June 2020, Chancellor J. Travis Laster refused to dismiss claims against Michael Dell or the four directors, finding “sufficiently reasonable arguments that the defendants were players in a deal with multiple conflicts that was ineligible for a review standard that gives deference to the business judgment of those involved.”

Quinn Emanuel served as co-lead counsel to the lead plaintiff, the Steamfitters Local 449 Pension Plan, and to the entire class, along with Labaton Sucharow LLP. Robbins Geller Rudman & Dowd LLP, Friedman Oster & Tejtel PLLC and Andrews & Springer LLC served as additional counsel.

The class is represented by these firms: Labaton Sucharow LLP; Quinn Emanuel Urquhart & Sullivan LLP; Andrews & Springer LLC; Robbins Geller Rudman & Dowd LLP; Labaton Sucharow LLP; and Friedman Oster & Tejtel PLLC.

The case is In re: Dell Technologies Inc. Class V Stockholders Litigation, case number 2018-0816, in the Court of Chancery of the State of Delaware.

Sources: Law360

Another Request By Apple And iPhone Users For Approval Of $500 Million Settlement

Apple Inc. and iPhone users hope to end multidistrict litigation in a California federal court with a $500 million settlement. Users sued over the device’s software updates because they slowed the phone’s performance. The parties filed a joint motion on Nov. 11 to request settlement approval again following a September Ninth Circuit decision.

The circuit court found that District Judge Edward J. Davila applied the incorrect standard when approving the settlement in 2021. The panel determined that the judge should have used heightened scrutiny, which requires courts to ensure that a settlement is sufficient based on the strength of the plaintiffs’ case. Courts cannot simply presume that a settlement is fair under the standard. Ninth Circuit precedent dictates the use of heightened scrutiny for pre-certification settlements.   

When asking the court to approve the multimillion-dollar settlement in the Nov. 11 motion, Apple and the users agreed the amount was “fair, reasonable, and adequate” under the heightened scrutiny standard.

Apple iPhone users have brought dozens of lawsuits against Apple, accusing the company of releasing software updates to deplete the phone’s battery life. The cases allege that the phone’s slow performance caused some customers to purchase new phones for hundreds of dollars. By May 2018, the suits were transferred to Judge Davila’s courtroom and consolidated.   

The Ninth Circuit indicated that the settlement’s final approval order referenced an outdated, inapplicable “presumption of fairness” standard. Apple and the users stated in their joint motion that the settlement should be approved without the presumption. The motion stated:

All that stands between the settlement class and the material benefits under this deal is another order approving the fairness, reasonableness, and adequacy of the settlement.

The amount Apple would pay under the deal could be as high as $500 million, depending on the number of iPhone users participating. The company would also pay each class member $25. In addition, class members could receive up to $500 each if the payouts, attorney fees and expenses are less than $310 million. Attorney fees of $80.6 million were also included in the settlement.

Some class members were displeased with the settlement in 2021, expressing that its terms didn’t compensate class members adequately. Further, the federal government believed the requested fees were extremely high. It did not object to the settlement, however.

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

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

Source: Law360

Class Action Lawyers At Beasley Allen

Beasley Allen is 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.

THE CONSUMER CORNER

Lawsuit Filed Against MindGeek For Distributing Child’s Sexual Abuse

Beasley Allen has filed a lawsuit against MindGeek and its affiliated entities on behalf of an Alabama mother who claims the information technology giant posted videos of her 12-year-old son’s sexual abuse on its massive pornography platform Pornhub. Videos on the site depicting the child’s molestation have been viewed more than 188,000 times worldwide and were available for download to users for a fee.

The lawsuit also names 36-year-old Rocky Shay Franklin of Greenville, Alabama. In May, Franklin was sentenced to 40 years in prison after pleading guilty to numerous child sex crimes, including the sexual abuse of a 12-year-old boy and distribution of child pornography.

The lawsuit was filed on Oct. 26 in the U.S. District Court for Alabama’s Middle District. A venture was formed between Franklin and MindGeek to disseminate and ultimately profit from child sexual abuse videos. The “victims depicted in these images were obviously children.” Yet, the videos were distributed to millions of viewers around the world. In the lawsuit, we claim that MindGeek violated the Trafficking Victims Protection Reauthorization Act, among other laws. As a result, the victim is entitled to bring a civil action against the company and its affiliates.

Franklin lived with the victim’s mother and her children for four months in 2018. During that time, he molested and “filmed” the molestation of the child. At least by May 2019, Franklin entered into an agreement or joint venture with MindGeek to be a MindGeek Modelhub Model, which included a stage name.

Numerous videos of the molestation were uploaded to MindGeek’s platform over a period of months and disseminated to the world by MindGeek’s platforms for viewing, purchasing, and downloading. Ultimately, the National Center for Missing and Exploited Children forwarded 67 tips to the Alabama Law Enforcement Agency (ALEA), which investigated. As part of that investigation, authorities repeatedly requested MindGeek to remove the videos because they contained child pornography. The videos were finally removed, but not until nearly a month later, in December 2019.

Beasley Allen’s Parker Miller, the lead lawyer in the case, had this to say:

This lawsuit concerns one of the most disturbing courses of conduct imaginable: the exploitation of child molestation for profit. The names of the videos describe what the videos themselves clearly showed – the sexual abuse of a minor child. Unfortunately, it does not appear MindGeek ever took any action to verify the identity or age of the child before these videos were shared with people across the world for viewing, download and purchasing.

These videos will likely circulate on the web forever. Parker’s client will live with the constant fear of the videos re-emerging at any time throughout his life. If you need more information or help on a case, contact Parker.

New Federal Law Removes Statutes Of Limitation For Child Sex Abuse

On Sept. 16, President Biden signed the “Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022” into federal law. The bipartisan legislation eliminates the statute of limitations for child sexual abuse survivors, allowing them to sue their perpetrators in federal court without respect to a time limit. Previously, child sex abuse survivors had until they reached the age of 28 or 10 years after the offense was discovered to file a lawsuit. The newly enacted legislation, however, guarantees that perpetrators are held accountable “on the survivor’s term – not by the trivial constraints of an arbitrary legislative timeline.”

While advocates for child victims applaud the law as a step toward justice for survivors, many argue that it falls short of holding those equally responsible for the sexual assault accountable, such as institutions that turn a blind eye to patterns of sexual misconduct. Furthermore, the statute makes no changes to the procedure for suing an offender in state court. On the other hand, advocates are cautiously optimistic that the newly enacted law would push states to repeal civil statutes of limitations for child sex abuse cases and serve as a model for state legislatures.

The statute is currently not retroactive, which means it does not resurrect claims that have already expired. However, if the survivor’s statute of limitations has not expired, victims can now sue their offender in perpetuity. The federal act applies to a wide range of sexual offenses, including sex trafficking, forced labor, sexual abuse, and sexual exploitation.

Sadly, child sex abuse is all too common in our society. Unfortunately, most victims never speak about their experiences for fear that no one will believe them or advocate for them.  Beasley Allen lawyers would be honored to join any person who deserves to pursue justice against those who conduct such heinous acts. If you are a victim of child sex abuse, feel free to contact our sexual abuse lawyers.

PBM Market Concentration And The Effect On Healthcare

The American Medical Association (AMA) has recently published its competition analysis on Pharmacy Benefit Managers (PBMs). To no one’s surprise, the data shows a high degree of market concentration in local markets across the U.S., where PBMs provide services to commercial health insurers. 

The AMA’s national and local market insight pertains to five different PBM services: (1) rebate negotiation; (2) retail network management; (3) claim adjudication; (4) formulary management; and (5) benefit design. The AMA’s analysis found that commercial insurers largely use a PBM for the first three services—rebate negotiation, retail network management, and claims adjudication, and just a handful of PBMs have a sizeable collective market share for these services. 

The data collected by AMA found that the top 10 PBMs held 97% of the market for these three services, and the top 4 PBMs held 66% of the market for these services. Last year, another source (Drug Source) reported that just for the service of claim adjudication, the top three PBMs—CVS Health (including Caremark and Aetna), the Express Scripts business of Cigna, and the OptumRx business of UnitedHealth Group—processed about 77% of all equivalent prescription claims. According to AMA, there is a high degree of market concentration at both the state and local levels, concluding that about 78% of states and 85% of metropolitan areas had highly concentrated PBM markets.

A highly concentrated PBM market causes significant problems in the healthcare industry, such as increased drug prices, reduced access to effective drugs, less consumer choice, and diminished competition.   AMA President Jack Resneck commented that the AMA “already has serious concerns about PBM business practices that can have a detrimental impact on patients’ access to—and cost of—prescription drugs.” 

The AMA collected data to assist lawmakers and regulators with handling future PBM practices, such as mergers, that may harm patients.  Jack Resneck added, “PBM markets require careful scrutiny as less competition and more vertical integration can embolden anti-competitive business practices to the detriment of patients.”

Previously this year, the AMA recommended to the Federal Trade Commission that there should be more transparency by the PBMs.  Among other things, the AMA recommended that PBMs should be required to disclose drug rebates, discounts, and other financial incentives.  The AMA also called for pharmacy and therapeutics (P&T) committees to disclose their work and report the reasons why a medication is chosen for or removed from a drug formulary, whether P&T committee members have financial or other conflicts of interest, and decisions related to tiering of drugs and drugs that can or cannot bypass prior authorizations.  

“In light of rising health care costs, PBMs are increasingly scrutinized for their role in high prescription drug costs and the lack of transparency around their revenue streams,” according to MedCityNews.com. “Governments have launched probes into prescription drug prices at the federal and local levels, and plan sponsors and their members are seeking greater transparency, accountability and affordability from PBMs.”

Over the years, Beasley Allen lawyers have joined the fight to combat the unfair and deceptive acts concerning drug pricing through our representation of states against drug manufacturers and PBMs. Our lawyers welcome the opportunity to investigate potential drug manufacturers and PBM misconduct. If you have any questions about PBMs and their unlawful practices, contact Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section.

Source: American Medical Association, MedCityNews.com

Takeaways from the First BIPA Verdict

The recent $228 million judgment against BNSF Railway for violating Illinois’ Biometric Information Privacy Act (BIPA) is a huge step in protecting privacy rights. It shows how important it is for employers and companies to comply with the law. On Oct. 12, a Chicago federal jury found that BNSF was liable for BIPA violations committed by Remprex, the third-party vendor it hired to process truck drivers.

Lead plaintiff Richard Rogers filed the class action lawsuit against BNSF for a class of 45,000 drivers. He claimed the railway company unlawfully scanned his and other drivers’ fingerprints to verify their identity. The plaintiff said the company collected the fingerprint scans without notifying the drivers or obtaining their written consent when they delivered and picked up loads at the BNSF railyards.

BNSF had unsuccessfully argued that Remprex was the only party to violate the law by collecting the drivers’ fingerprints. The rail company says it will appeal the verdict to the Seventh Circuit. The verdict will give plaintiffs with BIPA complaints more leverage in negotiating settlements. The BNSF verdict will put companies on notice that they must comply with the law when relying on third-party vendors to handle biometrics.

Some key takeaways from the case, based on several reports, are as follows:

Awards for BIPA damages could increase

The court did not ask jurors in the Rogers case to calculate damages. Instead, it instructed them to mark on the verdict form the number of times BNSF negligently violated BIPA or how many times it violated the statute recklessly or intentionally. The jurors found that BNSF recklessly or intentionally violated the law 45,600 times – the same number of drivers that defense experts estimated had their fingerprints collected and registered.

BIPA allows a maximum of $5,000 in damages for each willful or reckless violation and $1,000 per negligent violation. The court entered the judgment in Rogers based on one violation per plaintiff. In a separate case, the Illinois Supreme Court heard arguments in Latrina Cothron v. White Castle System Inc. on whether companies can be liable under BIPA each time a plaintiff has their biometric information collected or just the first instance. In this case, the Illinois Supreme Court’s ruling could have a massive impact on calculating damage for violations in future BIPA cases.

Appeals Regarding Vicarious Liability

BNSF’s attempt to appeal the issue of whether it could be held vicariously liable for violations committed by Remprex was rejected in the Seventh Circuit.  The district court had ruled a jury should decide the issue. The motion for an interlocutory appeal was denied. The Seventh Circuit can look at this issue on appeal.

This topic has not had much attention in case law since Illinois enacted BIPA in 2008. It should be noted that in the Rogers case that the court allowed BNSF to introduce evidence showing it was not liable for Remprex’s actions under vicarious liability theory. But the jury did not agree and rejected the company’s argument in favor of the statute’s plain text. The law states that companies cannot outsource their responsibility for following BIPA.

A Warning to Companies and Employers

Seeing BNSF get hit with such massive damages will serve as a warning for other businesses to review their privacy policies to ensure compliance with BIPA. Jason Stiehl of Crowell & Moring LLP called the verdict “an exclamation point on the risk that a lot of industries aren’t focused on,” even though BIPA potentially affects nearly everyone who does business in Illinois. 

Lauren Daming of Greensfelder Hemker & Gale PC said the Rogers case signals the care companies should exercise in contracting third parties like Remprex. She said companies should carefully vet vendors’ compliance with BIPA and ensure that contracts “secure indemnity language, assurances and insurance coverage.”

BNSF’s Own Requirements Were A Factor

It’s believed by some lawyers that BIPA’s own straightforward requirements were a factor in the jury finding BNSF liable for willful and reckless violations.

Beasley Allen lawyers are monitoring and investigating other BIPA cases like this one. If you have questions or need help with a case, contact Tyner Helms, a lawyer in our Consumer Fraud & Commercial Litigation Section.

Source: Law360

$2.7 Million In Fines For Dollar General Over Safety Issues In Alabama Stores

Federal inspectors issued Dollar General another fine after discovering safety violations in stores across Alabama, Florida and Georgia. The latest penalty was more than $2.7 million. In October, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) fined Dollar General and Dolgencorp $1.6 million over violations.  

The agency has been forced to fine the chain more than $12.3 million since 2017 due to “numerous willful, repeat and serious workplace safety violations.” The latest OSHA inspections revealed 31 violations similar to those found in Dollar General stores previously. The prior violations resulted in litigation. The violations include the following:

  • blocked exit hazards,
  • failure to make fire extinguishers accessible,
  • storing boxes in front of electrical panels,
  • exposing workers to electrocution by not keeping unused openings in electrical cabinets closed, and
  • not providing handrails on stairs.

“Dollar General has shown a pattern of alarmingly willful disregard for federal safety standards, choosing to place profits over their employees’ safety and well-being,” Assistant Secretary for Occupational Safety and Health Doug Parker said. “Neighborhood stores exist to support the needs of their communities – the same communities in which many Dollar General employees live – and that support must include following laws designed to keep workers safe from preventable injuries or worse.”

Dollar General and Dolgencorp employ over 150,000 workers in their 18,000 stores and 17 distribution centers across 47 states.

Dollar General has 15 business days to act. The company must comply, request a conference with OSHA’s area director or dispute the inspection results before the Independent Occupational Safety and Health Review Commission. 

Sources: AL.com and U.S. Occupational Safety and Health Administration

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.

Practices

  • Business Litigation
  • Class Actions
  • Consumer Protection
  • Employment Law
  • Medical Devices
  • Medication
  • Personal Injury
  • Product Liability
  • Retirement Plans
  • Toxic Exposure
  • Whistleblower Litigation

Cases

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 (BeasleyAllen.com/Recent-Cases/).

  • Acetaminophen
  • Auto Accidents
  • Aviation Accidents
  • Benzene
  • Camp Lejeune
  • CPAP Devices
  • Defective Tires
  • Hair Relaxers
  • Heavy Metals in Baby Food
  • JUUL Vaping Devices
  • Mesothelioma
  • NEC Baby Formula
  • On-the-Job-Injuries
  • Paraquat
  • Social Media
  • Talcum Powder
  • Truck Accidents
  • Vaginal Rejuvenation

RESOURCES TO HELP YOUR LAW PRACTICE

Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. 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 for victims of wrongdoing. Our firm does no “defense work” at all for Corporate America. I made that decision in 1979, and the firm has stuck to it ever since.  

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.

Co-Counsel E-Newsletter

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.

Webinars

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 get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/.  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 BeasleyAllen.com/Publications.

PRACTICAL TIPS FOR TRIAL

Evan Allen, a lawyer in our Mobile office, is a gifted trial lawyer who has handled a number of important cases. Evan says that he has learned a great deal in his trials and that it’s an ongoing learning process. He will give other lawyers some recommendations on how to try a case before a jury.

Practice tips for trial: give the jury what they need

I lost my first jury trial shortly after graduating from law school and passing the bar. I was prepared. I knew the law. I knew the facts. I knew it all…so I thought.  What ten years and quite a few trials later taught me is I was focusing on the wrong thing. I was worried about myself and not the jury.  A scene from an iconic movie (well, maybe just iconic to me), Joe Dirt, comes to mind. Joe encounters an entrepreneur who runs a firework stand.  He only sells “snakes and sparklers” because those are the only fireworks he likes. He cannot understand why no one visits his stand. Joe quickly points out to him, “it’s not about what you like; it’s about the consumer.”  Jury trials are no different. You must focus on the jury and what they need.  A jury needs comfort, truth, and purpose.  To give a jury what they need, it all comes down to trust.

 After receiving a summons, a potential juror is often annoyed and uneasy.  Where do I go, where do I park, and how long will this take me from my routine are questions that come to mind. A jury needs comfort and assurance first. From the moment the jurors arrive at the courthouse and are in your presence, making them feel valued and comfortable must be a goal.  Remind the jury of the importance of their role and the seriousness of the case and proceedings. This is not something you necessarily say but rather show through your demeanor. Serious and professional, yet humble. 

A jury comes into the trial untrusting of both sides. You cannot ask the jury to trust you. The only way to build trust is through your actions. To build trust, it is imperative to be yourself. As a young lawyer, it is easy to watch older, more experienced lawyers and want to act like them. It is also easy to try and act like a lawyer on TV or in movies. However, acting like another lawyer is just that, an act that will make a jury uncomfortable and untrusting. 

For a jury to trust you, you must be truthful with them. Truthful in the literal sense, but also genuine in who you are.  A jury can spot a phony. The importance of truthfulness and being yourself must be passed on to your client. A jury will not award a large verdict to a client they believe is dishonest or unlikeable. I always remind my clients how they come across and how you testify is more important than what you say. You must use your client’s time on the stand to build trust, even if some of the testimony is damaging to your case. 

In your opening statement, it is also important to confront weaknesses with the case head-on. Admit the weakness early and unabashedly.  Not only does this build credibility, but it also undercuts the defense. Do not promise facts or evidence in the opening you are not confident will come in. Trust can be lost way easier than it can be gained.  If a jury doubts your honesty at any point, it is very hard to regain their trust.

Finally, you must give the jury a purpose.  This purpose cannot be saved for closing arguments.  Instead, it must be injected into your theme from voir dire all the way to the second close.  Whether you follow the “reptile theory,” “rules of the road,” or some other technique, the jury must believe their role is righting a wrong.  If the purpose or theme has been developed throughout the trial, the closing arguments are the time to lean on the trust that has been built. Show emotion, show empathy, show vulnerability. If you have built the jurors’ trust by providing comfort and truth and maintaining a constant theme, they will understand their purpose.

RECALLS UPDATE

A large number of safety-related recalls were issued during November. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We are putting 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, at [email protected] if you have any questions or to let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.

FIRM ACTIVITIES

Lawyer And Employee Spotlights

Alyssa Baskam

Alyssa Baskam joined Beasley Allen in July 2019. She practices with our Atlanta lawyers in the firm’s Personal Injury & Product Liability Section, representing injured individuals and families whose loved ones have been killed through no fault of their own.

Alyssa practiced Beasley Allen’s motto of “helping those who need it most” before joining the firm. Her experience helping others encouraged her to better serve her community by becoming a lawyer. She explains: 

In college, I volunteered on a crisis and suicide hotline, and sometimes all I could do for those who called in was to refer them to a lawyer. I never knew if they were able to resolve the problem they called about, and I wanted to be able to do more.  

Alyssa says that her favorite part of practicing law is resolving cases and securing client verdicts because it is meaningful to them. She continues:

Especially doing product liability, it is usually a long, hard fight up to that point, with the defendants fighting every step of the way to blame someone else instead of accepting responsibility. When they finally acknowledge the wrong, or when the jury says to our client – we believe you, and you deserve to be made whole – that is the most profound experience to witness and to know we were able to help make it happen. It is also the moment that our clients can finally have some closure and take real steps toward putting their lives back together.

Alyssa enjoys practicing law at Beasley Allen, saying:

I can’t think of another firm that has so many brilliant minds and deeply caring hearts in any room at any time. I am surrounded by lawyers I respect not just for their abilities in the Courtroom (which are vast) but also for the servants’ hearts that they have. I learn from my colleagues every day, and I am so grateful for them.

Alyssa is a member of the Georgia State Bar, South Carolina State Bar, Atlanta Bar Association, Lawyers Club of Atlanta and American Association for Justice. She is also active in the Georgia Trial Lawyers Association (GTLA), serving as an Executive Committee member and Co-Chair of the Community Outreach Committee. She is a GTLA Women’s Caucus member and an alumna of GTLA’s LEAD program. 

Alyssa, a tremendously talented lawyer, has been named to the Super Lawyers Rising Stars list since 2019. She was also selected to the Best Lawyers in America 2022 list. In addition, she was recognized in the Best Lawyers 2022 Women in the Law list for her accomplishments in Personal Injury & Product Liability Litigation.

Alyssa works hard to help her clients receive justice and is dedicated to the role of law. We are blessed to have her at Beasley Allen.

Frances Beasley

Frances Beasley is a Clerical Assistant in the firm’s Personal Injury & Products Liability Section in the Atlanta office. She assists the lawyers with various administrative duties, including printing, speaking with potential clients, opening and closing cases, data entry, scanning documents, and assembling files for upcoming trials. Frances joined the firm in February 2021. Her supervisors say she has been “a valued part of the team ever since.”

Frances grew up in Auburn, Alabama, with her two sisters. Sara and Erin. She graduated from Auburn University and The Institute of Culinary Education in New York City, New York. Frances described that experience in New York as amazing! She enjoys visiting family and loves being an aunt to four nieces and nephews! Frances also enjoys long-distance running, walking, roller-blading, cooking, baking, listening to music, reading, and hanging out with friends.

Frances says her favorite thing about working at Beasley Allen is the friendliness of all the staff and attorneys. Frances has an important role in the firm, and we are thankful to have her as part of the Beasley Allen team! I am also blessed to say that Frances is my granddaughter. For the record, I didn’t actually hire Frances, nor did I write the above. However, I can say I am very proud of Frances and predict great things for her.  

Cindy Lopez

Cindy Lopez is a Paralegal in the firm’s Toxic Torts Section, working with Beasley Allen lawyer Charlie Stern on asbestos cases. She assists Charlie with several aspects of the cases, including case filing, perfecting service, calendaring deadlines, requesting medical records, filing pleadings, and maintaining service lists. Cindy also communicates with the courts and clients and assists Charlie with drafts and reports. Cindy joined the firm in November 2020, and we are thankful to have her on the Beasley Allen team! 

Cindy and her husband have been married for 22 years. They have two sons and three granddaughters. Their eldest son lives in Oklahoma, and the youngest lives just 10 minutes away from her and her husband. Cindy and her family enjoy barbecuing, fishing, and spending time with each other every chance they get. Cindy says she tries to sneak in a movie and a little reading time in her spare time!

Cindy shares that her favorite thing about working at Beasley Allen is everything! She added to that by saying, “above all, the firm’s values and knowing that the work we do as a firm will contribute to making a client’s future a little less burdensome.”

Cindy is a hard-working, dedicated employee who enjoys her work as a paralegal. She strives to help the clients she serves receive justice. We are blessed to have Cindy with the firm.

Tucker Osborne

Tucker Osborne is a lawyer in the firm’s Toxic Torts Section. He joined Beasley Allen in September 2019. Tucker works on Roundup, paraquat and Camp Lejeune toxic exposure cases. He is also on the team of Beasley Allen lawyers representing the States of Alabama and Georgia in opioid litigation.

Tucker earned his Bachelor of Science degree in biomedical sciences from Auburn University in 2016. He then graduated with his Juris Doctorate and a Health Law certificate from the University of Memphis Cecil C. Humphreys School of Law in 2019.

During law school, Tucker participated in the Medical-Legal Partnership with Memphis Area Legal Services, which teamed with Le Bonheur Children’s Hospital to provide legal aid to hospital-referred clients. He also worked as a legal extern for Baptist Memorial Health Care Corporation and Medtronic in Memphis, Tennessee. In addition, he clerked for private Memphis and Birmingham, Alabama, law firms.  

Initially, Tucker says he didn’t realize he would become a lawyer. He explains: 

I decided to become a lawyer when I stopped pursuing the profession I thought I was supposed to pursue and started pursuing a profession that would afford me the opportunity to help people in need. I realized that, as an attorney, I could pursue my passion for helping others in an environment that calls for critical thinking toward creative solutions.

Tucker enjoys “helping those who need it most,” as our firm motto states. He also appreciates another aspect of the legal profession, saying:

My favorite part of practicing law is finding the path to meet our goals. Whether that goal is a positive outcome for a case or successful client management, I find great fulfillment in finding the best way to accomplish that and enjoy reaching each new stepping stone along the way.

Tucker recognizes Beasley Allen as a unique law firm. He says:

The culture at Beasley Allen is special. I know I’m not alone in saying that, but it deserves to be repeated. We work in a high-stakes world where people’s livelihoods are in our hands, making it easy for priorities to get out of line. Beasley Allen has fostered a culture that promotes the right priorities.

Tucker is a member of the Alabama State Bar, participating in its Health Law, Litigation, and Young Lawyers Sections. He is also a Birmingham Bar Association member and an Alabama Association for Justice Emerging Leader. Tucker is a hard-working lawyer who is dedicated to seeing that his clients receive justice. We are fortunate to have him with the firm.

Katherine Ronan

Katie Ronan is a Paralegal in the firm’s Mass Torts Section, where she works with Beasley Allen lawyer Joseph VanZandt on cases involving JUUL multidistrict litigation and Social Media multidistrict litigation. Katie started her career with Beasley Allen two years ago and is an asset to the firm!

Katie and her husband were recently married in Ontario, Canada, where she and her family moved from in 2000. Two of Katie’s siblings still live in Canada, while her parents and one brother live in Alabama. Katie and her husband live in downtown Birmingham with their two dogs, Georgia and Winston. She loves attending stand-up comedy shows, visiting art museums and galleries across the country, traveling, participating in and following progressive causes, and being home with her husband and their dogs while watching their favorite shows. 

Katie says her favorite thing about working at Beasley Allen is her team! She added, “I love working with this group of attorneys, paralegals, and staff! I appreciate the attorneys’ approachability and openness to their staff and giving us a seat at the table in discussion and the learning experiences of navigating mass torts cases!” Katie’s dedication and hard work are tremendously appreciated, and we are grateful that she is with us!

SPECIAL RECOGNITIONS

Kathy Eckermann

Kathy Eckermann will retire at the end of the year after working at Beasley Allen for 22 years. Kathy joined the firm as a Relief Receptionist spending time in each of the firm’s three Montgomery buildings. She says she loved getting to know so many different people throughout the firm, including lawyers, staff, as well as clients, and others who came to visit. Kathy became my Executive Assistant in January 2011. She spends her days, as she says, “helping Mr. Beasley with anything he needs.” I will add to that by saying that Kathy has extremely good “people skills” and has the ability to deal with folks who have problems and give them peace and comfort when needed.

Kathy says she looks forward to spending more time with her family when she retires. She and her husband, Eddie, have been married for 42 years. Eddie is a retired science teacher and was beloved by his students. They have one son, Aaron, who lives in Thousand Oaks, California. He is married, and they have an 18-month-old daughter named Winnie Love. Kathy and Eddie also have one daughter, Leah, who lives in Elmore County with her husband and their two children — 6-year-old Harper and 3-year-old Abel. Kathy says her grandchildren are “the most wonderful things to ever happen. We never knew how much we could love them until we had them.”

Kathy says she looks forward to having more time for new hobbies, such as soapmaking and growing herbs to use in cooking. She also hopes to volunteer with the elderly and help with activities for residents of the nursing home where her mother resides.

Kathy, who has been an outstanding, dedicated employee, says this about her 22 years at Beasley Allen:

I am so very grateful to have had the privilege of working at Beasley Allen for 22 years and that Mr. Beasley and the other leaders trusted me enough to handle the sensitive, confidential, and detailed work.

Kathy says her favorite Bible verse for work and her being the best employee possible is Colossians 3:23-24:  

Whatever you do, work at it with all your heart, as working for the Lord, not for human masters, since you know that you will receive an inheritance from the Lord as a reward. It is the Lord Christ you are serving.

I really hate to see Kathy retire, but fully understand her reasons. She has been a real blessing to me and has been an excellent employee. In fact, because of my diverse background, Kathy has had to deal with some interesting folks and some really challenging situations. She deserves all sorts of medals! I wish Kathy the very best in her retirement and know that God will continue to bless her!

FAVORITE BIBLE VERSES

Several lawyers and staff employees who are being featured this month share their favorite Bible verses in this issue.

Alyssa Baskam

Alyssa shares her two favorite verses.

For I am sure that neither death nor life, nor angels nor rulers, nor things present nor things to come, nor powers…

Romans 8:38

So now faith, hope, and love abide, these three; but the greatest of these is love.

1 Corinthians 13:13.

Tucker Osborne

Tucker says his favorite verse “reminds me how God wants us to grow. We should grow to be wiser and take care of our bodies. We should grow in our relationship with God and have positive interactions with the people around us. I had a little league baseball coach who encouraged me to write this verse on my glove, and it has been a verse I have relied on ever since as a checklist for the areas I need to continually work on.”

And Jesus grew in wisdom and stature, and in favor with God and man.

Luke 2:52

Cindy Lopez

Cindy says, “With the various situations I have faced throughout my life, this is the scripture that I always seek and find that it, the situation, truly does pass. Nothing stays the same.”

For this light momentary affliction is preparing for us an eternal weight of glory beyond all comparison, as we look not to the things that are seen but to the things that are unseen. For the things that are seen are transient, but the things that are unseen are eternal.

2 Corinthians 4:17-18

Frances Beasley

Frances shares her two favorite verses.

Be strong and courageous. Do not be afraid or terrified because of them, for the Lord your God goes with you; he will never leave you nor forsake you.

Deuteronomy 31:6

For nothing will be impossible with God.

Luke 1:37

CLOSING OBSERVATIONS

A Look At Election Results On Nov. 8

The results from last month’s general elections are not entirely final, nor did they end with a red wave many expected. While Alabama remains Republican-dominated, Democrats fared much better in elections for national offices than leaders in either party expected. Although Republicans regained control of the House, Democrats maintained their majority in the Senate. Statewide races in several states forced runoff elections, including a hotly contested U.S. Senate race in Georgia. The Georgia race won’t decide control of the Senate. Still, a win for Republicans will make the job of the Senate leaders much more challenging in securing votes for the party’s key legislative initiatives.

The following is a recap some of the key Alabama and national races.

Alabama

Alabama female Republican candidates captured local and national headlines for their wins in last month’s general election.

Katie Britt defeated six-term Representative Mo Brooks in the primary election and Democrat and Libertarian challengers in the general election, as discussed in a separate article in this Report. This historic win secured Katie’s place in history as the first female elected to the U.S. Senate in Alabama.

Governor Kay Ivey secured her second elected term. In 2017, Lieutenant Governor Ivey was appointed to serve the remainder of Governor Robert Bentley’s term after he resigned. Governor Ivey was first elected to the office in 2018 after defeating Democratic challenger and Tuscaloosa Mayor Walt Maddox. Low unemployment numbers were a critical part of Gov. Ivey’s re-election campaign platform and one of the highest approval ratings in the southeast.

Republican nominees maintained control of all nine statewide offices, including Lieutenant Governor Will Ainsworth, Attorney General Steve Marshall, and Secretary of State Wes Allen. It will be interesting to see which of these men run for Governor in 2026. Stay tuned!

When the state legislature reconvenes in 2023, Republicans will hold the majority in the Alabama Senate – 27 to eight Democratic state Senators. On a personal note, my brother Billy is the sole “white” Democrat in the Senate. He was re-elected for another term, receiving 82% of the vote. The GOP will also hold a majority in the House with 77 Republicans compared to 28 Democrats.

National

While the Republicans secured enough seats (220) to regain control of the U.S. House, the very thin margin (212 Democrats) likely guarantees a continuation of a divided government and a halt to President Biden’s legislative agenda. The Democratic party retained control of the U.S. Senate with 50 seats compared to the Republicans’ 49.

In the 36 states that held gubernatorial elections, 20 elected GOP governors and 16 Democratic governors, with four races seeing a change in parties. There were 34 state attorney general elections, with at least two states continuing their vote count as this Report is going to print. According to Ballotpedia, if there is no change in party control for the attorneys’ general offices in Arizona and Alaska, the distribution for this office nationwide among the parties is 28 Republicans and 22 Democrats. Elections for 35 of the 47 secretaries of state offices were held, and two offices changed partisan control from Republican to Democrat.

It’s my belief that a majority of Americans are sick and tired of the division in this country in politics that keeps elected officials from working together for the American people. This majority expects our elected leaders at every level to work together and to put aside all of the hate and division. The future of our democracy depends on it. If you agree, let your elected leaders know and demand action.

Sources: National Public Radio, Reuters, Politico, Ballotpedia

OUR MONTHLY REMINDERS

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land. 

2 Chron 7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.

Martha Washington (1732 – 1802)

The only title in our Democracy superior to that of President is the title of Citizen.

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.

The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.

Martin Luther King, Jr.

The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you’re willing to pay the price.

Vincent Lombardi

Kindness is a language which the deaf can hear and the blind can see.

Mark Twain (1835-1910)

I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country….corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.

U.S. President Abraham Lincoln, Nov. 21, 1864 

In his December 1902 State of the Union address, Theodore Roosevelt said of corporations: “We are not hostile to them; we are merely determined that they shall be so handled as to subserve the public good. We draw the line against misconduct, not against wealth.”

The ‘Machine politicians’ have shown their colors..I feel sorry for the country however as it shows the power of partisan politicians who think of nothing higher than their own interests, and I feel for your future. We cannot stand so corrupt a government for any great length of time.”

Theodore Roosevelt Sr., December 16, 1877

The opposite of poverty is not wealth; the opposite of poverty is justice.

Bryan Stevenson, 2019

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

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

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

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

PARTING WORDS

Having just celebrated Thanksgiving with family and friends, it’s good for each of us to reflect on our life and to put all things in perspective. We all have lots to be thankful for, and I realize how truly blessed we really are. That’s not to say we don’t have problems – we all do – and some of them can be extremely difficult to handle. However, when we have our priorities in life in the proper order, we can handle whatever comes our way. At Beasley Allen, those priorities for our lawyers and staff personnel are in this order “God, family and the firm.” When God is in control of our life, and he is our top priority, the other priorities on the list will be taken care of. At Beasley Allen, following those priorities assure our clients’ cases are handled the right way and for the right reason. God has blessed our firm and the clients we work for. Praise the Lord!

About the Report

Consumer Protection Lawyer Jere Beasley

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

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. His short-lived political career ended in 1978 when he ran, unsuccessfully, for Governor.

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

It has been more than 40 years since he began the firm with the intent of "helping those who need it most." Today, Beasley Allen's primary offices are based in Atlanta, Georgia; Dallas, Texas; Mobile, Alabama and Montgomery, Alabama. Beasley Allen is one of the country's leading firms involved in civil litigation on behalf of claimants. The firm has been privileged to represent hundreds of thousands of individuals who have been wronged by no act of their own.

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

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