The Jere Beasley Report December 2023

CAPITOL OBSERVATIONS

First-Ever Code Of Conduct For Supreme Court

The U.S. Supreme Court has released its first-ever code of conduct. The code outlines many principles the justices claim they have long adhered to. It’s evident that the justices did this to dispel the public’s concerns about the court’s ethics rules. The code comes as some justices face probes by federal lawmakers about their relationships with wealthy political donors. 

The code proposes major court reforms, such as requiring justices to “maintain and observe high standards of conduct to preserve the integrity and independence of the federal judiciary.” The eight-page code also says that justices should not allow family, social, political, or other relationships to influence their conduct or judgments.  

All nine justices agreed to follow the new code of conduct, which allows them to continue most of their extrajudicial activities. However, it fails to set an enforcement scheme for those who violate the code. 

The Supreme Court’s code of conduct closely aligns with the rules for judicial disqualification in 18 U.S.C. Section 455, with some exceptions. The code allows justices to accept “reasonable compensation and reimbursement of expenses for permitted activities,” provided the payments don’t give the appearance of influencing their official duties. They must refrain from political activity and consider whether speaking to or appearing before a particular group would “create an appearance of impropriety in the minds of reasonable members of the public.” 

Recent media reports about Clarence Thomas and Samuel Alito have highlighted the close relationships those justices have with billionaire Republicans and activists who reportedly paid for fishing trips, annual vacations, luxury RVs and even more. 

I have never understood why justices on the Supreme Court were not under the same code of conduct as other public officials. In fact, the justices should be under a very high code of conduct. That’s because of what they do as justices on the highest court in the Land. In any event, adoption of this code, while long overdue, is at least a step in the right direction. Let’s see how it works. 

Stay tuned!

Source: Law360

THE CHAD STEWART AWARD

TALC LITIGATION

Following nearly two years of delays because of Johnson & Johnson’s two attempts to shift its talc liabilities into bankruptcy through the use of the Texas Two-Step, the talcum powder litigation is finally returning to the tort system. In October 2021, just prior to J&J’s first bankruptcy attempt, the parties were scheduled for numerous trials over the following eighteen months. However, a stay of litigation related to that initial bankruptcy attempt, as well as a second attempt filed hours after a judge dismissed the first filing, have had trials on hold across the country. 

With the bankruptcy dismissed, Beasley Allen lawyers are working to get trials rescheduled across the country.  In federal court, the multidistrict litigation (MDL) entered an updated scheduling order that is anticipated to have trials ready to begin in the Fall of 2024. Additionally, numerous mesothelioma and ovarian cancer personal injuries are scheduled for trial at the state court level throughout next year. Our talc litigation lawyers are looking forward to returning to the courtroom in 2024 to hold Johnson & Johnson accountable for the deadly harm its products have caused to thousands of innocent women who trusted J&J.  

During the pendency of the bankruptcies, our lawyers have also been working to strengthen our case theories even further. In response to the bankruptcy filings, they have identified several potential new defendants and are working to amend existing and future complaints to include these new parties. Our lawyers are also conducting additional discovery on Johnson & Johnson, as well as third parties, to identify the full scope of the company’s bad conduct. 

There will be a large number of cases set for trial in 2024. As a part of our getting ready for the cases to be tried, we are working with another good law firm to make sure plaintiffs will be ready for trials and well-prepared to try the cases. I will explain that effort in more detail below. 

Plaintiffs’ Lawyers Will Be Ready For 2024 Trials

Johnson & Johnson talcum powder trials will be taking place simultaneously in multiple jurisdictions from coast to coast in 2024 and beyond. At least 18 talc-ovarian cancer trials are scheduled to be heard in state courts next year. Beasley Allen lawyers are a part of the effort – referred to as a boot camp – to ensure the cases will be ready for trial and tried in a common effort.

The talc litigation boot camp precedes Johnson & Johnson’s LTL Management subsidiary’s anticipated third bankruptcy filing, through which the pharmaceutical giant tries again to further delay all current and future talc trials in the talcum powder products liability litigation. Currently, more than 50,000 plaintiffs in the multidistrict litigation (MDL) say that Johnson & Johnson’s talc products caused claimants to develop ovarian cancer.

Mike Papantonio and Andy Birchfield are leading the boot camp. Johnson & Johnson’s bankruptcy strategy is nothing but a stall tactic that stops the wheels of justice in these talc-cancer lawsuits and attempts to underpay plaintiffs. Mike Papantonio had this to say:

Johnson & Johnson has its strategy, and we have ours, too. We’re building a massive law firm. A machine that will put 60 seasoned, trained trial lawyers, schooled on J&J’s disastrous history, in courtrooms on the same day anywhere in America. It’s a trial strategy that will spread J&J thin. It will also show J&J shareholders again how badly J&J management is squandering billions with billable time payments to slick defense firms.

Andy stressed the importance of talc plaintiffs’ lawyers learning from Johnson & Johnson’s twice-failed bankruptcy efforts (Case No. 21-30589 and Case No. 23-12825). He says: 

Bankruptcy is too powerful a tool to be used irresponsibly by corporate giants like Johnson & Johnson. We must be in a place where we can stand up as a Plaintiffs’ bar on behalf of our clients against J&J’s sinister tactics like bankruptcy. That’s what this boot camp is all about. Equipping plaintiffs’ lawyers to do right by their clients.

Both Mike and Andy are committed to a central belief–that lawyers representing cancer victims can turn back Johnson & Johnson’s abusive tactics and get fair and reasonable compensation for clients in the tort system, but the lawyers for all plaintiffs have to band together and equip themselves with the required knowledge and expertise.

Everybody involved in the massive talc litigation owes a great deal to Leigh O’Dell, Michelle Parfitt, and the MDL leadership team for their hard work and commitment to keeping the talc case moving forward in spite of several years of delay. Clearly, as Andy says:

It’s now time to return to the tort system. We are ready, and we will not be deterred.

The talc litigation bootcamp started on November 6 and took place through November 8 at the law offices of Levin Papantonio Rafferty in Pensacola, Florida. Faculty included top-flight litigators and lawyers with a deep, comprehensive understanding of talc-ovarian cancer claims and the J&J MDL (MDL 2738, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices).

The boot camp was well attended, and it was highly successful. J&J’s victims will be well represented as a result. This was a major step in the right direction. 

Stay tuned!

Ovarian Cancer Victims Support Sen. Richard Blumenthal In Urging Johnson & Johnson To Accept Responsibility 

Sen. Richard Blumenthal, D-Conn, last month sharply criticized Johnson & Johnson (J&J) during a recent news conference for not owning up to the harm its talcum powder products caused women. The Senator was joined by ovarian cancer victims Joan Kiley and Lynn Skoda, who shared their stories and emphasized the impact J&J’s wrongdoing caused women and families.

It’s highly significant that Sen Blumenthal attacked J&J’s evasive “Texas Two-Step” legal maneuver it attempted to use in October 2021. As previously reported, the powerful company had tried to move its litigation liabilities from the talc lawsuits to a newly formed subsidiary LTL Management without providing sufficient assets to cover even the basic economic damages of those harmed. Sen. Blumenthal commented:

The Judiciary Committee recently convened a hearing on this sordid matter. There was a clear bipartisan agreement on the urgency to address the matter. 

Sen. Blumenthal noted that Ms. Kiley and Ms. Skoda’s cancers are believed to be caused by their use of Johnson & Johnson’s talcum powder. Independent testing of iconic Johnson’s Baby Powder revealed it contained asbestos, a known carcinogen. Internal J&J documents reveal that the company knew its talc powder was causing ovarian cancer. Yet, the huge consumer healthcare company failed to adequately warn women about these risks. As a result, tens of thousands of women are suffering from ovarian cancer, and thousands have died. Sadly, the giant company had active knowledge of the cancer risks related to the talc products for years but intentionally withheld that information from the public and specifically its victims. 

Sen. Blumenthal is part of a growing number of concerned lawmakers challenging Johnson & Johnson to rise to the occasion and do what is morally and legally the right thing. It’s essential that our leaders reinforce that J&J has a moral and legal obligation to address the company’s talcum powder problems. 

Source: Business Wire 

Andy Birchfield Supports Call To Rethink Legal Strategies In Light Of Failure of Texas Two-Step 

Beasley Allen lawyer Andy Birchfield, who has been directly involved in the Talc Litigation since the beginning, supports the call to rethink legal strategies in light of the repeated failures of the Texas two-step. Andy supports an article written by James F. Colson. Let’s look at a November 2 report in Business Wire on the content of the article. 

Leading mass tort lawyer Andy Birchfield of the Beasley Allen Law Firm is expressing strong support for a thought-provoking article in Bloomberg Law authored by James F. Conlan, a seasoned expert in corporate restructuring and the former Global Practice Leader of Sidley Austin’s worldwide Restructuring Practice. Mr. Birchfield and others in leadership have led the fight on behalf of more than 50,000 women and men and their families against Johnson & Johnson’s (NYSE: JNJ) controversial attempt to use bankruptcy to avoid legal and financial liability for conditions such as ovarian cancer and mesothelioma that are associated with the company’s tainted talc products.

In the commentary, Mr. Conlan rightfully points out that the Texas Two-Step bankruptcy approach, employed by several solvent and highly profitable mass tort defendants, has yielded a series of high-profile failures. In a Texas Two-Step, an otherwise profitable company moves some or all its liabilities into another company and then places the second company into bankruptcy. This strategy includes two recent bankruptcy attempts involving LTL (Johnson & Johnson) which federal courts found were filed in bad faith. These failures have underscored the need for a more balanced and effective approach to resolving mass torts that respects the interests of both public companies and claimants.

During his 32-year career at Sidley, Mr. Conlan pioneered what is called “structural optimization” of mass tort defendants, which seeks to appropriately transfer legal liabilities to “disaffiliated” entities and new owners with more than adequate funding to meet the legacy liabilities, including future claims.

Plaintiffs’ lawyers in talc-related ovarian cancer cases share Mr. Conlan’s concerns that the Texas Two-Step has “polluted” the narrative and dialogue around the legitimate interests of a public company in obtaining finality and the legitimate interests of claimants to have their claims determined (or settled) in the tort system and paid in full.

Advocates who represent mast tort plaintiffs agree that achieving a fair and just resolution for claimants while addressing the legitimate interests of public companies is essential. Mr. Conlan writes that structural optimization, followed by disaffiliation has previously proven effective and fair in several cases involving mass tort liabilities.

According to Mr. Birchfield, “This approach should be appealing to shareholders at a company such as J&J where talc liabilities have materially depressed the price of its stock and overall value. Mr. Conlan provides a roadmap for a process that can be fair to both corporations and victims and finally provide an avenue for relief for thousands of women and their families who merely want justice and the ability to pay for their medical costs and lost wages.”

Plaintiffs’ lawyers supporting ovarian cancer victims believe that Mr. Conlan’s insights provide a valuable perspective on how mass tort defendants can achieve the much-desired “finality” without resorting to bankruptcy. They share his vision of a win-win solution where claimants can pursue their claims in the tort system while companies divest themselves of these liabilities. Mr. Conlan’s commentary can be found here.

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head the Beasley Allen Talc Ovarian Cancer Litigation Team. They have been directly involved in all phases of the talc litigation from the beginning. It has been a tough battle but a necessary one. The team handles claims of ovarian cancer linked to talcum powder and mesothelioma cases. Several key team members continue to focus on Johnson & Johnson’s blatant abuse of the bankruptcy system. That battle is not over. The team continues to fight for our clients in an effort to see that they obtain justice.

Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.

Charlie Stern and Will Sutton are on the litigation team but 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. 

ASBESTOS LITIGATION

Expert Depositions In Asbestos Litigation: Can Discretion Be The Better Part Of Valor?

Charlie Stern, who heads up Beasley Allen’s Asbestos Litigation Team, has some observations that will help other lawyers who may be new to this area of law. Charlie says in asbestos litigation it’s not uncommon to have 20-25 defendants in one case.  The number of defendants in the same case can make preparing and trying the case more difficult.  This is particularly true for trial preparation during the expert discovery phase.  

It is not rare for each of the separate defendants to retain their own experts.  This can result in dozens of defense experts being retained in one case. So, the plaintiff lawyer and firm handling the case must evaluate how to handle such a situation.

This situation recently unfolded with Beasley Allen’s mesothelioma lawyers.  The expert discovery period, pursuant to the court’s scheduling order, lasted 60 days.  During that time, the 20 or so defendants offered up over 40 experts to be deposed.  How should the plaintiff lawyer handle this? 

First, it is crucial to determine who the experts are and what their opinions are.  This sounds obvious, but some lawyers wait to review reports or disclosures until it is too late.  

Experienced mesothelioma lawyers will recognize many of the experts whom defendants disclose because of their repeated work in asbestos cases.  Some of these experts do not provide case-specific opinions, but instead offer the same general reports in each case.  If some of those are disclosed, and the plaintiff lawyer knows their opinions, has previous transcripts, and/or has deposed them before, it may not be prudent to re-depose them because their opinions are known. 

A deposition could just offer the defense expert an additional opportunity to prepare for a trial setting and work on delivering testimony.  Instead, the experienced mesothelioma lawyer will identify the new and crucial experts, along with those who have case-specific opinions, and focus on those.  This, in the end, strengthens a plaintiff’s case. 

Only experienced mesothelioma lawyers have the ability to evaluate the expert landscape and make the best decisions for their clients.  Charlie and the other lawyers on the Asbestos Litigation Team do this at Beasley Allen every day. If you need more information or need help on a case, contact Charlie or another team member. 

The Beasley Allen Asbestos Litigation Team

Our Asbestos Litigation Team continues to take cases around the country. Case filings in the asbestos litigation are increasing nationwide. The Beasley Allen Asbestos Litigation Team is led by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation and is a perfect fit to lead the team. Other team members include Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, also works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by using the contact form at the bottom of this page.

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Update – Litigation Is Proceeding

There have been a huge number of developments this Fall in the Camp Lejeune Water Litigation. On November 14, Plaintiff’s Leadership and the United States Government filed a joint status report in the Eastern District of North Carolina. This report revealed that 129,158 claims have been filed with the Navy, and 1,419 lawsuits have been filed in federal court. Rhon Jones, who heads up our Toxic Torts Section, serves on the Plaintiffs Executive Committee for this litigation.

Camp Lejeune’s water contamination spanned decades and potentially sickened millions of people. Leaking underground storage tanks, waste disposal sites, and industrial spills released several harmful chemicals into the base’s water supply, including trichloroethylene, perchloroethylene, benzene and vinyl chloride. 

Exposure to the toxins at Camp Lejeune is linked to several forms of cancer, birth defects, miscarriage, other pregnancy problems, neurological disorders, liver and kidney disease or damage, among others.

All claims must be filed with the Navy no later than August 10, 2024. Filing a claim is a statutory requirement that must be met prior to filing a lawsuit in federal court. 

On September 26, the court entered Case Management Order No. 2 (CMO2) and its subsequent Amendment, which provided instructions, deadlines, and directives on how the Camp Lejeune litigation will proceed.   Since the entry of this Order, Plaintiff’s Leadership has filed a Master Complaint with individual plaintiffs utilizing a Short Form Complaint (which was attached to the CMO2) for filing purposes.  

Most importantly, the CMO2 declared that staging discovery and trials by “tracks” would be the most efficient way to advance the litigation and support a global resolution of all claims, creating a Track 1, Track 2, and Track 3 for claims.  As of November 6, 2023, Plaintiffs’ Leadership had assembled the potential discovery pool of plaintiffs participating in “Track 1” trials. These are trials involving five conditions: 

• bladder cancer, 
• kidney cancer, 
• leukemia, 
• Parkinson’s disease, and 
• Non-Hodgkin’s lymphoma.  

On or before December 6, Leadership and the government will each propose ten cases of each illness from this discovery pool to the Court to participate in Track 1 trials.  After proper discovery is conducted in accordance with CMO2, trials should commence in 2024.

The court has also indicated a willingness to expediently rule on key issues brought before the court, including issues relating to general and specific causation, base-wide water modeling, and probate.  The court recognizes the value of a global resolution and has ordered both the Plaintiffs’ Leadership and the government to meet and confer regarding that process. 

Federal Government Settles Three Camp Lejeune Water Contamination Cases

The U.S. Government has started compensating people sickened by contaminated water at Camp Lejeune Marine training base. The Department of the Navy has made its first payouts to claimants under the Camp Lejeune Justice Act.

The Navy agreed to pay $850,000 to three claimants. Two claimants received $300,000 each, and the other received $250,000. Claimants who accept the proposed payout end their claims against the government. Two of the early claimants accepted the Navy’s compensation offer.

Thus far, Camp Lejeune claimants have filed over 1,300 lawsuits seeking compensation for water contamination illnesses as of early November. The Navy is also facing another 117,000 administrative claims. The U.S. Department of Justice says that the government could face up to a million Camp Lejeune lawsuits from veterans, their family members, and others who lived or worked on the base between 1953 and 1987.

The cases are In Re: Camp Lejeune Water Litigation v. United States of America, case number 7:23cv-00897, in the U.S. District Court for the Eastern District of North Carolina.

Source: Law360

Beasley Allen Camp Lejeune Litigation Team

Beasley Allen lawyers remain hard at work in the Camp Lejeune litigation, with the number of cases being handled by the firm continuing to increase dramatically. There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com. 

Currently, our firm has 10 lawyers and a large number of staff working on this litigation, including Toxic Torts Section Head Rhon Jones. You can contact any of the lawyers on our litigation team if you need help with a claim or have questions. The lawyers include co-leads Leslie LaMacchia, and Julia Merritt, along with Will Sutton, Ryan Kral, Trisha Green, Matt Pettit, Tucker Osborne, Marion Brumma and Khadiga Carr.

SOCIAL MEDIA LITIGATION

The Social Media Litigation

Lawyers at Beasley Allen are heavily involved in the huge social media litigation. A great deal is happening in this litigation and at a very fast pace. We won’t give an update in this issue but will have a complete and detailed update in the January issue.

Social Media MDL Judge Allows Parents’ Negligence Claims To Go Forward

U.S. District Court Judge Yvonne Gonzalez Rogers has ordered Meta and other social media companies in the multidistrict litigation to face negligence claims for allegedly addicting and harming young people. The decision came after Judge Rogers ruled that certain features of the platforms, such as image filters, could be treated as products. 

Judge Rogers trimmed other claims, but she refused to take an “all-or-nothing” stance as to whether Section 230 of the Communications Decency Act of 1996 and the First Amendment barred claims that the content pushed by the platforms’ algorithms causes mental health issues in young users. Judge Rogers said the issues were too complex for such an approach. The judge chose instead to look at the functions of the features of the platforms that the parents are targeting in the litigation. 

For instance, the parents claimed that filters used on images can harm young users’ mental health by promoting unrealistic beauty standards. Judge Rogers said that the defendants referred to the filters as “tools,” which is a concession that there is a distinction between a function that allows users to alter their images and the content on the platforms. 

Furthermore, Judge Rogers said that the filters are not entitled to First Amendment protection since they are “neutral, non-expressive tools.” 

The ruling by Judge Rogers comes just weeks after a hearing on the motions to dismiss by platforms in the litigation over claims by parents that their children suffered mental health problems due to their addiction to social media. 

The MDL case is In re: Soc. Media Adolescent Addiction/Personal Injury Products Liability Litigation, case number 4:22-md-03047, in the U.S. District Court for the Northern District of California. 

Source: Law360

States Claim CEO Zuckerberg Knew Facebook Filters Harm Children

A lawsuit against Meta Platforms Inc., led by California and a coalition of 32 other states, alleges that CEO Mark Zuckerberg personally rejected his company’s proposed policy to ban image filters on its social media platforms that are known to be damaging to mental health. 

The lawsuit contends that Meta and Zuckerberg know that millions of underage children use Facebook and Instagram, yet the platforms continue to employ technology they know has destructive effects on mental health, especially to women and girls. The states emphasize filters that simulate the effects of plastic surgery. 

The states further contend that Meta unlawfully collects the personal data of millions of children younger than 13, misrepresents its platforms as safe, and prioritizes making it harder for children to leave the platforms with algorithms, constant alerts, infinite scrolling, and other methods. Whenever the company makes major changes to its platforms, it evaluates how they will impact engagement among young users.

The complaint cites internal documents and data to support its claims. Many of the internal communications directly contradict the testimony that Zuckerberg gave before Congress in 2021 about keeping underage children off Meta platforms. The lawsuit contends that Meta considers very young children a component of its user base and business model while publicly denying it. 

The lawsuit accuses Meta of violating the federal Children’s Online Privacy Protection Act, California’s False Advertising Law, and other federal and state statutes. The accusations echo allegations previously made in the ongoing multidistrict lawsuit. Those cases maintain that Facebook, TikTok, Snapchat, and YouTube should be held responsible for the detrimental impact their platforms have on the mental health of teenagers.

Source: Law360

Judge Names Plaintiffs’ Leadership In Social Media MDL 

U.S. District Judge Yvonne Gonzalez Rogers, the judge overseeing the social media multidistrict litigation (MDL) accusing Facebook and other social media platforms of harming youth by purposely making their platforms addictive, has named four lawyers representing school districts in the MDL to the plaintiff steering subcommittee. 

Judge Rogers said she consulted with other judicial colleagues and “strongly” considered the need for geographic diversity and the current clients participating in the MDL when choosing attorneys to fill the leadership slots. The leadership includes lawyers from Northern and Southern California, Washington, New Jersey, Pennsylvania, New York, Washington, D.C., Florida, Alabama, Louisiana, and Texas.

Seattle Public Schools was the first school district in the social media MDL. Now, more than 200 districts have joined the litigation. The school districts are suing social media companies Meta Platforms Inc., ByteDance Inc., and Alphabet Inc., the tech giants that operate Facebook, Instagram, TikTok, and YouTube. 

The school districts say the tech companies failed to adequately warn users about the mental health risks of using their social media platforms. Specifically, they say the companies failed to warn of the dangers of addiction, suicidal ideation, anxiety, depression, and eating disorders. 

States and individuals are also suing the social media companies on similar claims. But lawyers for the Seattle District Schools argued that while their lawsuits are similar to those filed by individuals and states, there are critical differences in the claims brought by schools. Therefore, they say school districts’ counsel should be ensured a seat at the leadership table. 

The plaintiffs are represented by Lexi Hazam of Lieff Cabraser Heimann & Bernstein LLP, Previn Warren of Motley Rice LLC and Chris Seeger of Seeger Weiss LLP.

The MDL case is In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, case number 4:22-md-03047, in the U.S. District Court for the Northern District of California.

Source: Law360

Alabama Senator Katie Britt Takes A Stand To Help Protect Kids On Social Media

Sen. Katie Britt has called for legislation as part of a bipartisan group of senators who are pushing for tighter restrictions on social media platforms to protect youth from the harm they cause. The Alabama Senator referenced U.S. Surgeon General Vivek Murphy’s May 23 advisory warning the public of the harms social media pose to the mental health of youth. 

The Protecting Kids on Social Media Act aims to prohibit the use of social media among children under 13 and prohibit platforms from recommending content using algorithms to users under the age of 18. Katie Britt said: 

There is no doubt that our country is facing a growing mental health crisis and a deteriorating culture of violence. Children and teenagers across our nation are dying, families are being devastated, and our society is withering. The only beneficiaries of the status quo are social media companies’ bottom lines and the foreign adversaries cheering them on.

Also named on the legislation as co-sponsors are Senators Chris Murphy (D-Conn), Brian Schatz (D-Hawai’i), and Tom Cotton (R-Ark.). All of these senators, including Sen. Britt, are parents of young children and teenagers. 

Several proposals in Congress seek to make the internet safer for U.S. youth. Despite the unusual bipartisan support, observers say the legislation faces an uphill battle. Congress thus far has been unable to agree on just how to regulate the behemoth industry.  Hopefully that will change since the public is becoming aware of the severity of the problem and are outraged. Contact your senators and house members and urge them to pass this needed legislation. 

Sources:  Alabama Political Reporter, CBS42

The Beasley Allen Social Media Personal Injury Litigation Team

Joseph VanZandt, who leads our firm’s Social Media Personal Injury Litigation Team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California state court. Joseph is also a member of the Plaintiffs Steering Committee, helping lead the federal social media multidistrict litigation (MDL).

If you need help on a case, or more information on the personal injury part of our social media litigation, contact a lawyer on the firm’s Social Medial Litigation Team by using the contact form at the bottom of this page. 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.

Class Actions At Beasley Allen Involving The Social Media Litigation

The class action aspect of the Social Media Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. Class actions are separate from the personal injury aspect of this litigation. If you need more information, or need help on a class action case, contact Michelle Fulmer, Section Director, by using the contact form at the bottom of this page. She will have a class action lawyer respond to you. 

MOTOR VEHICLE LITIGATION

Dangers Of Distracted Driving

Beasley Allen lawyers know first-hand that distracted driving claims lives every single day. The National Highway Traffic Safety Administration (NHTSA) reports that 3,522 lives were lost to distracted driving in 2021 alone. As technology has advanced, distracted driving has soared to an all-time high. Sadly, texting while driving is a leading cause of motor vehicle accidents in the United States. The NHTSA summarized it best: 

Sending or reading a text while driving takes a driver’s eyes off the road for five seconds. If driving at 55 miles per hour, that is the equivalent of driving the entire length of a football field with closed eyes.

While cell phone usage is the most commonly referred-to distraction, the Center for Disease Control and Prevention has identified three types of distracted driving.

• First, drivers may be distracted by visual distractions outside of their vehicle, such as billboards, scenery, or other cars. 

• Second, drivers may be distracted by factors within their vehicle such as changing the radio station, eating, or reaching for an item inside the vehicle. 

• Finally, drivers may be distracted by their own cognitive functions such as stress or fatigue. 

Forbes further reported that the most distracted driving occurred between 6 and 11 in the evening. This is likely due to commutes home from work and school, as well as evening social gatherings. It is imperative that drivers are made aware of the dangers of distracted driving so that they may make informed decisions for their own safety and the safety of those around them. 

Lawyers at Beasley Allen are honored to represent individuals nationwide and even internationally.

Sources: National Highway Traffic Safety Administration, Forbes

Ford Brake Class Action Returns To Lower Court For Review

The Sixth Circuit Court is sending a class-action lawsuit against Ford Motor Co. back to a Michigan federal court for closer review, finding that the lower court did not establish whether claims about an alleged brake cylinder defect in Ford F-150 pickups had enough in common to constitute a class action. 

Ford asked the Sixth Circuit to review the lower court’s decision, allowing the case to proceed as a class action. The lawsuit alleges seals in Hitachi step-bore master cylinders can fail prematurely, allowing brake fluid to leak externally or internally and causing front braking power loss and potentially causing a crash. The alleged defect affects 2013-2018 F-150 trucks. 

The lower court allowed the lawsuit to proceed as a class action, certifying three main issues: the alleged brake defects in class trucks, whether Ford was aware of the defects before it sold the trucks, and whether the information about the defects Ford allegedly withheld would have been material to buyers. 

The Sixth Circuit found that the lower court did not sufficiently examine if the cases had enough in common to be a class action. Ford argued Hitachi had made several design and manufacturing changes to the brake cylinders that would have affected the class vehicles. The Sixth Circuit Judicial Panel observed: 

Perhaps those changes were immaterial, meaning any defect would persist despite the alterations. But we cannot say so with any certainty because the district court did not detail its reasons for rejecting Ford’s arguments.

Dee Miles, one of the Beasley Allen lawyers handling the case for the driver class, says the case remains on solid ground. He adds: 

We are confident that the issues the Sixth Circuit identified as needing to be addressed by Judge Drain are correctable and the class will remain intact and move forward.

The drivers are represented by Dee Miles, Clay Barnett and Mitch Williams of Beasley Allen Crow Methvin Portis & Miles PC, E. Powell Miller, Sharon S. Almonrode and Dennis A. Lienhardt of The Miller Law Firm PC, Adam J. Levitt and John E. Tangren of DiCello Levitt Gutzler LLC, and Mark P. Chalos, Annika K. Martin and Phong-Chau G. Nguyen of Lieff Cabraser Heimann Bernstein LLP.

The district court case is Paul Weidman et al. v. Ford Motor Co., case number 2:18-cv-12719, in the U.S. District Court for the Eastern District of Michigan.

The Sixth Circuit case is In Re: Ford Motor Co., case number 22-0109, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360 

$980 Million Verdict Against Mitsubishi In Pennsylvania Car Crash Case

A Philadelphia jury has awarded $980 million to a man who was paralyzed when the defective seat belt in his Mitsubishi failed to restrain him during a 45-mph rollover crash. The award includes $180 in compensatory damages and $800 million in punitive damages. 

According to the complaint, Francis Amagasu and his son, Katsutoshi Amagasu, were in Francis’ 1992 Mitsubishi 3000GT in Buckingham Township on November 11, 2017, when the crash occurred. Both were wearing their seat belts, but Francis’ seat belt failed during the rollover event. Francis suffered catastrophic spinal cord injuries that left him without the use of his arms or legs. 

Plaintiff Francis and his family sued Mitsubishi, alleging the company had designed a defective seat belt in the vehicle. Had it been designed correctly; the belt would have prevented the driver from being partially ejected or crushed in a rollover. 

During the trial, held in the Philadelphia Court of Common Pleas before Judge Sierra Thomas Street, Plaintiff Francis’ lawyers asked the jury to focus on whether the seat belt allowed excessive “slack,” preventing it from adequately restraining its wearer even if used correctly. Mitsubishi contended that the seat belt was crashworthy, and that Francis’ injuries were caused by his “reckless operation” of the vehicle. 

It should be noted that the jury deliberated four and a half hours on the compensatory award. But it took them just 20 minutes to decide on punitive damages. The Amagasu family had already settled with the car dealership named in the original complaint. 

Source: Law360

Hyundai, Kia Drivers Get Preliminary Approval On $145 Million Car Theft Settlement 

A California federal judge has agreed to preliminarily approve a $145 million settlement to resolve claims by Hyundai and Kia owners that their vehicles had design flaws that made them easy to steal. The sprawling multidistrict litigation accused the manufacturers of putting profits over safety for failing to equip over 9 million vehicles with industry-standard immobilizers that prevent cars from being started without keys. 

According to the amended settlement agreement, Hyundai and Kia will pay at least $80 million to a common fund that will pay approved consumer claims, with a maximum of $145 million for all defendants combined.  

In 2020, “amateur thieves” and “teenagers” began sharing viral videos on TikTok and other social media platforms showing techniques to easily steal Hyundai and Kia vehicles using a USB cable. Consumers, insurance companies, and U.S. cities filed lawsuits seeking to recoup damages from the mounting thefts of the vehicles. 

The vehicle owners’ settlement does not include claims by U.S. cities and insurance companies. Insurers, including Progressive, Nationwide, Liberty Mutual, Geico, and Allstate, claimed Hyundai and Kia sold consumers “thief-friendly vehicles” that increased their risk of claims.

A free software upgrade will be available to owners of certain eligible class vehicles. The software is designed to prevent vehicles locked with a key or a key fob from starting without the key.  

The consumer class plaintiffs are represented by Steve W. Berman of Hagens Berman Sobol Shapiro LLP, Elizabeth A. Fegan of Fegan Scott LLC, Kenneth B. McClain of Humphrey Farrington & McClain PC, and Roland Tellis of Baron & Budd PC.

The MDL is In Re: Kia Hyundai Vehicle Theft Litigation, case number 8:22-ml-03052, in the U.S. District Court for the Central District of California.

Source: Law360

VW, Porsche Oppose Objections To The $80 Million Emissions Settlement

Volkswagen and Porsche told the Ninth Circuit Court that a lone plaintiff should not be allowed to upend an $80 million settlement in a consolidated consumer litigation. The settlement resolves claims that the automakers manipulated emissions and fuel-economy tests for nearly a half million gas-powered Porsche vehicles to make them appear more eco-friendly than they actually are. 

Volkswagen and its luxury brands, Porsche AG and Porsche Cars North America Inc., filed an answering brief to the circuit court to reject plaintiff Wesley Lochridge’s objections to the settlement. 

Since the deal was approved by the district court last year, it’s paid out benefits to hundreds of thousands of class members. Under the agreement, class members are divided into three groups — fuel economy, Sport+, and other class vehicles. Consumers in the fuel economy group who said they were misled into overpaying for vehicles marked with high fuel-economy ratings would get $250 to $1,109 per vehicle, depending on their car’s revised fuel economy rating and how long they have had their car. 

Class members in the Sport+ group, who claimed they bought their cars with a high-performance mode that emitted pollutants above legal limits, would receive an automatic cash payout of $250. Those in the other class vehicles group could receive up to $200 per vehicle. 

Lochridge, a member in the fuel economy class, claimed that the other class vehicles group, which suffered the least damages, being by far the largest, would drain the settlement funds. 

Source: Law360

GM Cruise Halts Driverless Operations

     Cruise LLC, a General Motors subsidiary and a leader in self-driving car technology, has voluntarily paused its driverless car operations nationwide. This came after California suspended its permits following a crash that seriously injured a pedestrian. It’s said this accident underscores an unclear regulatory framework at the federal, state and local levels. It also leaves Cruise and others in the industry uncertain about how to balance safety with innovation. 

     Some industry experts see the collision and resulting suspension as a telltale sign that autonomous vehicle manufacturers and tech developers are rolling out self-driving vehicles too quickly. States and municipalities where the vehicles operate have yet to fully work out the safety and liability issues the driverless vehicles introduce. 

The California Department of Motor Vehicles suspended permits that Cruise needs to test and deploy its fleets of driverless vehicles in that state. The suspension prompted Cruise to voluntarily halt its other operations in Austin, Dallas, Houston, Miami and Phoenix. Separately, the California Public Utilities Commission suspended a permit issued in August that allowed Cruise to operate robotaxis in San Francisco. 

The incident at the center of the suspensions occurred in October when a car with a human driver struck a female pedestrian, throwing her into the path of the driverless Cruise car. The driver of the regular car fled the scene, and the injured pedestrian became trapped underneath the Cruise vehicle, which dragged her for about 20 feet at a speed of 7 mph. With no drivers to interview, investigators are trying to determine why the driverless vehicle kept traveling after striking the pedestrian.

Sources: Law360, San Francisco Chronicle, YouTube

Toyota Recalls 1.8 Million RAV4s Due To Fire Risk

Toyota Motor Corp. is recalling over 1.8 million RAV4s in the U.S. because their batteries could shake loose during “forceful turns” and pose a fire risk. The recall affects model year 2013 to 2018 vehicles. The announcement comes nearly three years after the National Highway Traffic Safety Administration (NHTSA) launched a probe into the crossover SUVs after receiving 11 complaints from drivers, some of whom said engine fires from the 12-volt battery resulted in a total loss of their vehicle. 

Toyota said the problem stems from some replacement 12-volt batteries “of the size specified” for the vehicles, which appear to have smaller top dimensions. This creates a less-than-tight fit after hold-down clips are applied. If a driver makes a forceful turn, the movement could cause the positive battery terminal to contact the hold-down clamp and short circuit, posing a fire risk. 

The automaker said it was working on a fix where dealers could replace the clamps, battery tray, and positive terminal cover. Toyota will replace these parts at no cost to the consumers. 

NHTSA launched its investigation in February 2021 after receiving reports from drivers of sudden loss of electrical power, vehicles stalling, and fires erupting from the engines. 

One driver reported that his 2018 RAV4 stalled while driving but started back up. He went a half-mile to an appointment. After parking his car and entering a building, he looked out the window to see flames billowing from the hood of his car. The fire destroyed his vehicle and two others parked close by. 

Source: Law360

Ford Recall: 45,000 cars Affected, Door latches breaking

Due to a problem with door latches that may fail to latch in warm weather conditions, Ford is recalling about 45,000 vehicles. The recall pertains to specific models such as 2015 Ford Fiestas, 2016 Ford Fusions, and 2016 Lincoln KMZs. This recall is an extension of Ford’s 2020 recall of the same issue.

According to a letter sent to Ford by the National Highway Traffic Safety Administration on November 30, a component located within the door latches has the potential to break. This may result in difficulties latching the door or even cause the doors to open while driving.

The recall is limited to the following locations: Alabama, Arkansas, Arizona, California, Florida, Georgia, Hawaii, Louisiana, Mississippi, New Mexico, Nevada, Oklahoma, Oregon, South Carolina, Texas, Utah, Washington, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands (Saipan), and the U.S. Virgin Islands.

If your car is affected by this malfunction, you may initially notice that the door fails to latch, or see a “door ajar” signal on the dashboard, along with a possible increase in wind noise. In 2020, Ford recalled two million vehicles after admitting that even after repair, the doors may not have been fixed properly.

Starting from the week of December 4th, Ford will contact all the owners of the vehicles that are newly affected by the issue. Alternatively, impacted vehicle owners can reach out to Ford customer service at 1-866-436-7332. They can also seek assistance from the NHTSA’s Vehicle Safety Hotline at 1-888-327-4236 (TTY 1-800-424-9153) or visit the NHTSA website for further help.

The recall number for Ford’s recent door latch issue is 20S15. If your vehicle is included in the recall, you can take it to any Ford or Lincoln dealer to examine the door latch date codes, which will be replaced free of charge if it falls within the reported time frame. Owners who previously paid for the repair out of their pocket may be eligible for reimbursement. 

To check if your car is affected by the recall, you can either call the hotline or visit the NHTSA website and enter your VIN number.

Source: ALcom

TRUCKING LITIGATION

The “Trucking Opportunity Act” Seeks To Eliminate Direct Actions

Georgia law provides a powerful statutory tool to individuals harmed by the negligence of commercial motor vehicle carriers:  The ability to name the commercial motor vehicle carrier’s liability insurer as a party defendant in an action against its insured. This is commonly known as a “direct action.”

Pursuant to the Georgia Motor Carrier Act, the General Assembly enacted two separate provisions allowing for direct actions against liability insurers – O.C.G.A. §§ 40-1-112(c) and 40-2-140(d)(4). For example, § 40-1-112(c) provides that “[i]t shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier whether arising in tort or contract.” Section 40-2-140(d)(4) contains substantially similar language. 

Georgia courts have explained that the “purpose of permitting joinder of an insurance company in a claim against a motor carrier is to further the policy of the Motor Carrier Act, that is, to protect the public against injuries caused by the motor carrier’s negligence.” Hughes v. Ace Am. Ins. Co., 888 S.E. 2d 341 (Ga. App. 2023). Indeed, direct actions allow “injured persons to recover compensation more efficiently and quickly and encourages insurers to resolve legitimate claims by settlement.” Id.

Despite the obvious and valuable benefits of direct actions – furthering public safety and promoting judicial economy – the Senate passed the Trucking Opportunity Act of 2023 (S.B. 203) in the last legislative session. This bill sought, in part, to eliminate direct actions against motor carrier’s liability insurers. Fortunately, the bill died in the House of Representatives and was not enacted into law. It is likely, however, that the General Assembly will revive the bill during the upcoming legislative session, given that the Senate passed it in 2023. 

Thus, it is critical that constituents lobby their elected representatives to ensure that direct actions remain part of Georgia law. Should direct actions disappear, the motoring public will be deprived of a meaningful avenue of relief for harm suffered on Georgia roadways.   

If you need more information, contact Sloan Downes, Director of the Personal Injury & Products Liability Section, and she will have a lawyer in the section respond. Sloan can be reached by using the contact form at the bottom of this page.

Sources: Fleet Forward and Samsara

PRODUCT LIABILITY

A Look At Tire Tread Separation Issues

Lawyers in our Personal Injury & Products Liability Section have handled a huge number of cases involving serious motor vehicle crashes that resulted in deaths and severe injuries. Many of these cases involved tire problems. Tire failure increases the chance of losing vehicle control and thus causing fatal accidents. Unfortunately, tire failure cannot always be detected and thus prevented. Therefore, it is important to know the causes and signs of tire failure. 

One cause of tire failure is a manufacturer’s defect. While not easy to determine by a layperson, it is possible for something to go wrong in the chemical process when a manufacturer makes a tire, and other integral components can be improperly placed inside the tire, causing the tread and casing to not bond properly. This can also occur due to other manufacturing defects.

Another cause of failure is improper design.  Again, not something a layperson can determine.  A defectively designed tire can cause a number of problems for a tire while in use.  If a tire is not designed to be robust enough with a reasonable margin of safety, it can fail prematurely.

Tire age is another problem, and it occurs when a tire outlives its usefulness. The average age recommended by most automakers to remove a tire is six years. After six years, tires can break down from the inside which can cause the tires to lose treading. To check the age of your tire, check the date code. The date code is the last four digits of the 12-digit number on the tire, beginning with DOT. The first two numbers indicate the week, and the last two numbers indicate the year.  For example, if the date code reads “3619,” that means the tire was manufactured in the 36^th week of 2019.  Oftentimes, even tire dealers are unaware of tire age being an issue.

Abnormal vibration, an off-balance feeling, or bumps in the tread area are signs that the tire could be experiencing a tread/belt separation. Have a tire professional check your tires by regularly doing visual checkups as well as feeling for any abnormalities. An old tire could also look brand new and still have tread issues, so if you are unsure, have a tire professional check your tires for problems. 

Beasley Allen lawyers have successfully handled a huge number of cases involving fatal and non-fatal accidents caused by tire failures. For more information, or if you have any questions, contact Cole Portis or Ben Baker, lawyers in our Personal Injury & Products Liability Section. Cole and Ben are among the Beasley Allen lawyers in the Section who handle tire-related litigation for our firm.

A Manufacturer’s Fear Of Fixing A Defect

When a defective product causes injury, you may hear: “Don’t say we didn’t try to warn you.” Beasley Allen lawyers in the Personal Injury & Products Liability Section have learned that product manufacturers make desperate attempts to try and avoid liability by over-warning or under-warning. On one side of the spectrum, there are the well-known “not for consumption” or “don’t try this at home” blanket warnings that are found everywhere on all kinds of food products that consumers would never try to eat. More worryingly, on the other hand, is the fear of manufacturers running off paying customers. As a result, the manufacturers err on the side of “less is more” by omitting important details about a product’s potential dangers and the risks it creates. 

While it should be a “you put it on the market, you take it off” situation; unfortunately, it’s not. Our lawyers have learned that not all companies can be trusted to keep their defective products off the market. Nor should they be trusted, based on our experience. More often than not, many manufacturers have their financial interests in mind, not the safety of consumers. 

Currently, manufacturers use warning labels or signs in an attempt to absolve themselves from liability rather than to educate consumers about the product’s safety risks. Before purchasing a product, you should determine whether the manufacturer is credible. Have they made a statement against their financial interest, like admitting their product is defective and/or has insufficient or inaccurate warnings? You should also check the safety history of both the product and the manufacturer. 

Manufacturers are ultimately the ones who bear the costs of defective product-related accidents and are in a position to disperse those costs amongst consumers. Instead of manipulating the consumer to purchase a product by overwhelming them with a litany of warnings or omitting serious, foreseeable risks, manufacturers should fix the problem by providing adequate warnings that make the product safer and less at risk for tort liability. 

Manufacturers are charged with knowing the products they put on the market will be used as a necessary part of our daily routine, and many will be brought into our homes. Thus, manufacturers must be held accountable to ensure the safety of the general public when using the products. 

Beasley Allen lawyers are honored to represent persons who have been adversely impacted by defective products.

CPSC Warns Against Baby Loungers Sold On Amazon, Posing Suffocation And Fall Risk 

The U.S. Consumer Product Safety Commission (CPSC) has warned parents to discontinue the use of Miracle Baby Loungers, which are available exclusively on Amazon, due to the risk of suffocation and fall that they pose to babies.

According to the CPSC, the loungers are deemed unsafe for baby use as they fail to comply with several safety regulations. Specifically, such loungers do not have a stand and thus create an unsafe sleeping environment for babies. Additionally, they do not meet the marking, labeling, and instructional requirements outlined in the regulation.

The CPSC has notified the seller, Yichang Lanqier Garment Co. Ltd., of China, regarding the issue with the loungers. However, the business has not yet committed to recalling the loungers or providing a solution to consumers. Those who have purchased the lounger will receive a notice with further instructions.

The loungers were made available for purchase on Amazon’s website from June 2022 to November 2022. CPSC evaluated the loungers in the New Bear printed fabric and is aware that the company also sold loungers in other printed fabric options, including Bee, Blue Star, Cat, Deer, Elephant, New Blue Star, New Panda, New Pink Star, Pink Cross, Sea, Whale, and White Cross. The loungers have a tag sewn onto the exterior with the name “Miracle Baby” printed on it.

Parents and caregivers are advised by the CPSC that the safest place for babies to sleep is on a firm and flat surface, such as a crib, bassinet, or play yard. When placing the baby to sleep, only a fitted sheet should be used, and no other items, including blankets, pillows, or crib bumpers, should be present in the sleeping area. Infants should always be placed to sleep on their backs to ensure their safety.

Source: Consumer Product Safety Commission

ALABAMA WRONGFUL DEATH VERDICTS

A Review Of Wrongful Death Verdicts Upheld By The Alabama Supreme Court 

Dana Taunton, one of the Beasley Allen lawyers who handle appellate work for the firm, wrote a piece on Alabama wrongful death verdicts for this issue. 

On August 4, 2023, the Alabama Supreme Court released an opinion that upheld a single wrongful death remittitur award of $10 million in a medical malpractice case. Springhill Hospital v. West, 2023 WL 4984768 (Ala. August 4, 2023) The facts were egregious. 59-year-old John West accidentally sliced the tip of his left thumb off while using a table saw. He went to Springhill’s ER for treatment. The orthopedic surgeon removed the injured part of his thumb, retaining most of his left thumb up to his nail bed. The surgery lasted 23 minutes.  Mr. West was kept overnight because of it being an open wound and to minimize the risk of bone infection. What happened at the hospital that night should not even happen in one’s nightmares.  

Mr. West died of an overdose of Dilaudid, a pain medication that is at least seven times more powerful than morphine. He was given two 4-milligram doses of Dilaudid in a span of less than 2 hours despite the records documenting that Mr. West’s pain had been decreasing. Witnesses for both parties testified that the doses given were “egregious,” “extremely high,” “excessive,” “ridiculous,” “not appropriate,” “unacceptable,” and a “gross violation” of the standard of care. 

According to the testimony at trial, Springhill had no policies regarding opioid administration by IV, no training for nurses in IV opioid/hospital-patient safety, no dosing guidelines, and no monitoring policies in place. 

Springhill also inexplicably failed to order a forensic pathology autopsy that would include a finding as to Mr. West’s cause of death even though the hospital had a policy that, in sudden and unexpected death situations, ordering such an autopsy from a medical examiner was required. 

Thus, the evidence supported the trial court’s inference that Springhill attempted to cover up the mistakes that led to Mr. West’s death. 

The jury was outraged by the conduct and returned a verdict in favor of West for $35,000,000 million.  The trial court ultimately remitted the verdict to $10 million after doing an exhaustive Hammond/Green Oil/Gore analysis. The Alabama Supreme Court upheld the $10 million award.

This case comes on the heels of a previous medical malpractice case where our Court upheld a large, remitted jury award. In Bednarski v. Johnson, 351 So. 3d 1036 (Ala. 2021), a Lee County jury returned a verdict of $9 million against the Bednarski defendants. The trial court then remitted the verdict to $6.5 million after conducting a post-trial hearing.  

These critical holdings of the Alabama Supreme Court have begun a much-needed discussion about the state of Alabama’s Wrongful Death law.  The two cases are a positive sign for the Court moving forward.  The Springhill Court expressly upheld the use of a “cost of inflation adjustment” when looking at “comparative cases” in determining whether the damages awarded are in line with other wrongful death awards. A comparison of decades-old jury awards without a cost of inflation adjustment would have diluted the value of the jury awards and weakened the punitive aspect of Alabama’s Wrongful Death Act. 

To put the “cost of inflation adjustment” in perspective, below is a chart that was included in one of the Bednarski’s appellate briefs on what the present-day value of decades-old awards would be with a cost of inflation adjustment.

Case Name and Citation	THEN	NOW
Black Belt v. Sessions, 514 So.2d 1249 (Ala. 1986)	$3,500,000	$8,200,000
Industrial Chem. & Fiberglass Corp. v. Chandler, 547 So.2d 812 (Ala. 1989)	$5,000,000	$10,400,000
Burlington N. R.R. v. Whitt, 575 So. 2d 1011 (Ala. 1990)	$5,000,000	$10,100,000
G.M. v. Johnson, 592 So.2d 1054 (Ala. 1992)	$7,500,000	$13,900,000
Atkins v. Lee, 603 So.2d 937 (Ala. 1992)	$6,900,000	$12,800,000
Sears Roebuck v. Harris, 630 So.2d 1018 (Ala. 1993)	$4,000,000	$7,200,000
Campbell v. Williams, 638 So.2d 804 (Ala. 1994)	$4,000,000	$7,000,000
Mack Trucks v. Witherspoon, 867 So.2d 307 (Ala. 2003)	$6,000,000	$8,500,000

Furthermore, the Supreme Court emphasized that “comparative cases” included all types of wrongful death awards.  In other words, a court does not have to compare a medical malpractice award solely to other medical malpractice awards. In the Springhill case, the opinions say: 

This is because ‘in Alabama there is but one cause of action for wrongful death’. . .. Allegations in a wrongful-death action that specify different types of conduct leading to the wrongful death are “‘mere variations of legal theory’” underlying [a plaintiff’s] single wrongful-death claim.”  Springhill at *19.

The Plaintiffs’ Bar has long been advocating for the cost of inflation adjustment. In the Spring of 2020, Richard Riley wrote a persuasive article on this issue entitled “The Effects of Inflation on Alabama Wrongful Death Verdicts.” Richard Riley, The Effect of Inflation on Alabama Wrongful Death Verdicts, American Journal of Trial Advocacy, Spring 2021. Vol. 43, p. 361. His article explained that the framework developed to guide the comparison process used to determine whether a wrongful death verdict is excessive is the very structure that prevents the natural expansion of verdicts.  

Using old verdicts as the comparator created a self-imposed and unnecessary limitation on the framework used to gauge the proportionality of contemporary verdicts by failing to consider the change in valuation of those verdicts.  Lower punitive verdicts weaken the effectiveness of the punishment for taking another person’s life.  It creates a paradox where, despite the Court’s long-held position that all life is precious, the value of human life appears to be less today than it was a few decades ago.  Riley’s compelling explanation demonstrated how unjust the comparable case factor is without a cost of inflation adjustment.  

The Alabama Supreme Court has long held that “no arbitrary cap can be placed on the value of human life.”  However, the wrongful death comparison tether can only stand the test of time and continue to punish and deter future tortfeasors if the effects of inflation on previously approved awards are considered in the analysis.  

Otherwise, over time, this tether will remain permanently and ridgely taut and fixed in an ancient place, unfairly restricting the amount of future damages for causing a death as market factors and inflation continue to move on. 

Consequently, the economic worth of a life over time will cheapen and diminish, making it more economically palatable for tortfeasors to engage in dangerous behavior as the punishment for taking a life will continue to decrease.  

Not only is this scenario inconsistent with the Alabama Supreme Court’s long-standing pro-life interpretation of the Wrongful Death Act, it is also inconsistent with fundamental fairness and common sense, which have been the hallmarks of the Supreme Court’s punitive damage review procedures for decades.

The Springhill decision is a recognition of the need to incorporate inflation in the process for considering wrongful death verdicts in Alabama.  Incorporating inflation in the process will allow a natural expansion of verdicts over time.  

Finally, the Springhill and Bednarski decisions take a step towards bringing Alabama’s Wrongful Death Awards in line with the rest of the country. Within the last five years, numerous state appellate courts have upheld wrongful death verdicts in excess of $10 million. Below is a sampling of affirmances within the last five years, but the list is by no means exhaustive:  

• Chrysler Group, LLC v. Walden, 812 S.E.2d 244 (Ga. 2018) – $40 million jury verdict affirmed.
• Kennison v. Mayfield, 856 S.E. 2d 738 (Ga. App. 2021)  – $33.4 million jury verdict affirmed 
• Philip Morris USA, Inc. v. Ledoux, 230 So. 3d 530 (Fla. App. 3 Dist. 2017) – $10 million jury verdict affirmed.
• Florida Light & Power Company v. Dominguez, 295 So. 3d 1202 (Fla. App. 2 Dist. 2019) – $12.5 million jury verdict affirmed
• R.J. Reynolds Tobacco Company v. Schleider, 273 So. 3d 63 (Fla. App. 3 Dist. 2018) -$14.7 million jury verdict affirmed
• Gregory v. Chohan –615 S.W.3d 277 (Tex. App. 2020)- Almost $17 million jury verdict affirmed  
• Beamers Private Club v. Jackson – 2021 WL 1558738 (Tex. App., 2021)-$24 million jury verdict affirmed
• Keene v. CNA Holdings -827 S.E.2d 183 (S.C. App. 2019)- $14 million jury verdict affirmed
• Laramie v. Philip Morris USA Inc, -2021 WL 4188553 (Mass. 2021)-  $21 million jury verdict affirmed
• Finch v. Covil Corporation -972 F.3d 507 (4th Cir. 2020)- $30 million jury verdict affirmed
• Poage v. Crane Co. – 523 S.W.3d 496 (Mo. App. E.D. 2017) -$10.8 million jury verdict affirmed 
• Ingham v. Johnson & Johnson –608 S.W. 3d 663 (Mo. App. E.D. 2020)- awarded $25 million to each consumer and $4.14 billion in total punitive damages

We believe this to be the start of a new era of justice for those families who have lost loved ones due to the egregious acts of a company or a tortfeasor. It is the dawn of a new day for accountability against those corporations that would neglect to create safe policies and procedures or make safe products but instead would simply look at their bottom line- profits.  This is unacceptable and the Supreme Court recognizes that to be the case. 

If you have questions, or need more information on the subject discussed above, contact Dana Taunton by using the contact form at the bottom of this page. Dana is an extremely talented and experienced lawyer. She does excellent work. Dana wrote the above piece. Alabama lawyers will find the information to be most helpful. 

WORKPLACE LITIGATION

Evan Allen In Our Mobile Office Has Filed On The Job Injury Case Involving Improper Lock Out Tag Out

Lock out tag out (LOTO) is a common practice used in industrial settings to isolate hazardous energy.  The Occupational Safety and Health Administration (OSHA) is very specific regarding lockout/tagout procedures.  The requirements of the Control of Hazardous Energy can be found in Title 29 Code of Federal Regulations (CFR) Part 1910.147.  The lockout/tagout procedures set forth establish the employer’s responsibility to protect workers from hazardous energy.  

Employers are also required to train each worker to ensure that the workers know, understand, and are able to follow the applicable provisions of the hazardous energy control procedures.  

Failure to enact or enforce LOTO procedures are some of the most commonly cited OSHA violations in the industrial setting.  More importantly, failure to properly enact and enforce LOTO procedures can lead to serious injury and death.

OSHA requires employers to set LOTO procedures to account for hazardous energy.  The first step in setting lockout/tagout procedures is identifying hazardous energy sources.  Hazardous energy sources can take many forms.  The most common are electrical, mechanical, hydraulic, pneumatic, chemical, thermal, or other sources that can cause machines and equipment to move.  Once the hazardous energy source has been identified, it is imperative to set a plan of action to de-energize and mitigate that hazard.    

Specifically, OSHA requires three things that an employer must do as part of an energy-control plan.  

• First, the employer must establish energy control procedures for removing the energy supply from machines and for putting appropriate LOTO devices on the energy isolating devices to prevent unexpected re-energization.  This requires that the machinery or equipment is disconnected from the energy source by isolating the energy to prevent the release of hazardous energy.  Lockout devices hold energy-isolation devices in a safe or off position.  The devices are positive restraints that can only be removed with a key or unlocking mechanism. 

• Next, the employer must train employees on the energy-control program, including the safe application, use, and removal of energy controls.  

• Finally, the employer must inspect these procedures at least once per year to ensure that they are being followed and that they remain effective in preventing employee’s exposure to hazardous energy.  

Evan Allen, who is in our Mobile office, recently filed a case in the Circuit Court of Mobile County, Alabama, after a man was shocked due to uncontrolled hazardous energy within a steel plant.  Unfortunately, the young man suffered catastrophic and life-altering burn injuries due to the company’s failure to enact and enforce proper LOTO techniques.  

A Look At A Workplace Accident Case Handled By Kendall Dunson

October 13, 2021, started as a normal workday for Ron Nichols, a foreman for McAbee Construction. He was leading a team tasked with providing manpower to U.S. Steel to move and install gearboxes and heat shields at the Pipe Mill. 

These gearboxes can weigh more than 300 lbs, and U.S. Steel uses cranes to move them into place so that workers can weld and attach them securely to their positions. It was the job of U.S. Steel’s operator to move the gearboxes with the crane. Mr. Nichol’s crew was doing the welding and labor work where the gearboxes were to be installed. 

U.S. Steel failed to utilize the correct equipment to secure a heavy crane load. The gearboxes were being lifted by attaching the crane to the equipment with an eye bolt, a type of lifting bolt that requires specific applications of strictly inline, rather than angular, lifting force. This eye bolt broke during the lift, and the gearbox fell onto one of Mr. Nichols’ s’ crewmembers, pinning his legs against a pipe. 

When one co-worker failed to remove the gearbox using a pry bar, Mr. Nichols stepped in to help. His first attempt failed, and with his co-worker in pain, not knowing the extent of the injury, Mr. Nichols elected to move the gearbox. He said:

God, give me strength.

And he put everything he had into it. He was able to move the gearbox enough to free his co-worker. 

Mr. Nichols’ heroics did not come without a cost. Immediately, he knew he had injured his back. Conservative treatment failed, and Mr. Nichols ultimately had to undergo a series of surgeries to his lower back, including a hemilaminectomy, literally grinding his vertebra’s bone off to relieve pressure on his spinal cord. His back will never be the same. 

Rather than take responsibility for their lack of preparedness and safe operation of a heavy crane load, U.S. Steel is determined to minimize their liability by whatever means necessary, even going so far as to hire surveillance that we are sure they will try to use against Mr. Nichols, even though they were unable to film him doing anything he said he couldn’t do. We think Mr. Nichols deserves to be recognized for his emergency actions, not ridiculed by a large corporation looking to deny responsibility. 

AVIATION LITIGATION

Boeing Settles More Cases In 737 Max Ethiopian Crash 

More families who lost loved ones in the crash of Ethiopian Airlines flight 302 have reached an agreement with Boeing days before their cases went to trial. The agreement settles six wrongful death lawsuits seeking compensatory damages from Boeing over the March 2019 crash of its 737 Max jet that killed 157 people.

The cases are part of a group of nearly 50 selected cases prepared for trial in a bellwether process in groups of six. The first batch of six cases settled in March. A second group consisting of two cases and four backups was resolved days before going to trial in June. None of the cases headed for trial in U.S. District Court in Chicago have gone before a jury. 

Boeing accepted liability for the Ethiopian Airlines crash in Nov.  2021. For months, the company had deflected blame to the pilots while also acknowledging the role that software failures played in that crash, and the crash of Lion Air in Indonesia five months earlier. 

Boeing’s acceptance of liability opened the door for families to seek compensatory damages under Illinois law for loss of economic support, pain and suffering, emotional distress and others. However, under the agreement, families waived the right to claim punitive damages against Boeing. 

U.S. District Judge Jorge L. Alonso permitted families to argue for the preimpact pain and suffering of the passengers, acknowledging the emotional distress and physical injuries suffered by the victims during the six minutes the malfunctioning jet was airborne.

The crash of Ethiopian Airlines Flight 302 was truly a global tragedy. Passengers and crew hailed from 35 countries. Eight of the victims were U.S. citizens. About 70 cases remain to be tried or settled.

On Nov. 28, Judge Alonso gave Boeing one week to make settlement offers to all remaining Ethiopian Airlines lawsuits. U.S. District Judge Jorge Alonso added that he would wait before setting more trial dates until the aerospace giant requested “a chance” to negotiate with parties without a trial date looming overhead. 

Judge Alonso said that allowing Boeing to resolve the 46 remaining Ethiopian Airlines Flight 302 cases is appropriate. He had already set three rounds of trials, all ending in settlements. He recognized that some families may reject any offers because they want their case to go to trial, but he added that they need to figure out who they are. 

The lawsuits accuse Boeing of prioritizing profits over people’s lives by making shortcuts on safety to meet design and development deadlines for the 737 Max aircraft, specifically its automated feature, the Maneuvering Characteristics Augmentation System (MCAS), that affected the jet’s flight handling and controls. 

The consolidated case is In re: Ethiopian Airlines Flight ET 302 Crash, case number 1:19-cv-02170, in the U.S. District Court for the Northern District of Illinois.

Source: Law360

PREMISES LIABILITY LITIGATION

Prayer And Preparation: Why Taking Action Matters

It has been normal over the years for a person in the U.S. to go to bed at night and not even consider that an active shooter could possibly attack that individual’s school, church, or business. At least, that’s the way it used to be. Now we pray this sort of thing won’t happen in our city or town. But what if we adjusted our mindset, and in addition to praying for the best, we also prepared for the worst? Just turn on the news on any given day, and after a mass shooting, you will see parents, siblings, co-workers, and spouses wishing somebody had done something to keep that tragic event from happening. 

On October 25, 2023, mass shooter Andrew Card walked into a bowling alley and a bar in Lewiston, Maine, shooting and killing eighteen innocent people, making this the 36^th mass killing in the United States this year alone. Leading up to the attack, Card’s mental health was concerning at a minimum. His family reported to federal investigators that he was hearing voices in his head and focusing more and more on the bowling alley and bar. Just last summer, Card underwent a mental health evaluation where he remained in the mental facility for two weeks after hearing voices and threatening to shoot up a military base. 

At the time, Card was training with the Army Reserve’s 3^rd Battalion, where commanders became concerned about his statements and erratic behavior. A state-wide alert was sent to every Maine policeman, warning them of threats made by Card while on base. Warnings signs were clearly evident. 

With expectations changing after all the mass shootings, two questions are raised: Are active shooters like Andrew Card preventable, and who is legally liable for the attack? 

Historically, mass shootings were so infrequent and remote that no one could possibly consider that a business or property owner should have foreseen these attacks. In those times, coverage of a mass shooting would never be associated with words like “liability” or “inadequate security.” Now, as mass shootings are on the rise and becoming increasingly more deadly, more legal exposure to third parties must be considered.  

Under federal and state law, property and business owners have a legal duty to ensure that their premises are reasonably safe and secure from foreseeable hazards, including third-party criminal attacks (which include mass shootings). Business and property owners violate the standard of care by failing to prevent these foreseeable attacks in instances of failure, including, but not limited to the following: 

• Failure to provide adequate security measures;
• Failure to hire qualified security guards;
• Failure to have a security plan in place; and
• Failure to adequately train employees on the policies and procedures relating to safety.

It is past time for us, as a nation, to admit mass shootings are not remote or unexpected to fall outside a business or property owner’s general duty to protect patrons and invitees from foreseeable criminal acts. No longer are the attacks just senseless or motiveless. There is now much more to consider. Mass shooters, like the Lewiston mass shooter, show clear warning signs leading up to the attack, but they are met with no action. The devastating frequency, repercussions, public policy and awareness now press upon businesses, schools, institutions, and corporations a greater duty to act affirmatively in efforts to prevent these mass shootings. 

Class Action Litigation

Dee Miles Appointed Interim Co-Lead Counsel In NFL Race Norming Class

       Maryland Federal District Judge Julie Rubin has appointed Beasley Allen’s Dee Miles as co-lead counsel,  along with Tom Sinclair of the Sinclair Law Firm, on the class action lawsuit involving African American NFL players who allegedly were denied or received reduced disability benefits as a result of race. The case was filed last September against the National Football League’s benefit plans and administrators alleging various violations involving the adjustment of disability claims. 

      Co-lead counsel is responsible for the management of the entire litigation, including discovery, trial and settlement. Both Dee and Tom were selected based on their vast experience in class action litigation and pension/benefit plans. 

     The class will now move forward with several other lawyers assisting Dee and Tom with developing the evidence for trial or resolution. We will keep our readers apprised of any new developments in this important class action case. Stay tuned!

$102.6 Million GM Engine Defect Verdict Heading To Final Judgment

As we have previously reported, lawyers from Beasley Allen’s Consumer Fraud & Commercial Litigation Section, along with co-counsel from Dicello Levitt, secured a sizeable verdict against GM in federal court in the Northern District of California in October 2022.  In the year following, GM filled Judge Edward Chen’s docket with numerous post-trial motions seeking to undo the verdict.  Fortunately, for the class members, GM’s final attempt to unravel the verdict failed on November 2, 2023. 

Our California, Idaho, and North Carolina class members at trial brought claims against GM for knowingly selling vehicles with a defect that caused the engine to aggressively consume oil and fail at high frequency during the warranty period. The eight-person jury ruled in favor of the drivers, finding that all class members had proved that their claims were tolled, and awarded $2,700 to each member of the classes. That was the exact amount our trial team had requested.

In its final post-trial attack, GM claimed that further post-trial proceedings were necessary to protect its due process rights, claiming that most class members filed their claims too late to collect damages. GM urged Judge Chen to set aside the verdict, arguing that there wasn’t enough evidence for the jurors to find that every driver’s claims were timely filed.  Despite the jury’s detailed finding, GM argued that plaintiffs had not proved their claims with respect to “all” class members.

Our trial team fiercely pushed back in its briefing citing that the timeliness issue had been fully resolved by jurors. They noted that GM had insisted on jury instructions and a verdict form that resolved the statute of limitations (and all other issues) on a common, class-wide basis.  GM’s strategic move played heavily in Judge Chen’s November 2 written decision.

In his order, Judge Edward Chen found that when GM pressed for — and obtained — a single trial addressing every issue arising from a three-state class of consumers who purchased vehicles with Generation IV Vortec 5300 engines, GM gave up the chance to scrutinize post-trial whether some absent class members had stale claims. Judge Chen stated:

GM affirmatively chose to engage in a winner-take-all trial. And this strategy was a legitimate one, heightening the burden for plaintiffs to succeed at trial. But GM, having been permitted to pursue a trial according to its chosen strategy, cannot now claim a due process violation. GM made clear in its all-or-nothing trial strategy that the jury trial was intended to address every issue regarding tolling and timeliness, as it concerned each member of the classes. 

Judge Chen noted that GM hadn’t submitted any evidence indicating that absent class members were on notice of the engine defects but didn’t act on their rights. The judge went on to write that “GM’s failure on this point is particularly poignant, given that GM need only present one absent class member with notice to make its point.” GM did not do that.

Judge Chen separately denied GM’s renewed motion for final judgment as a matter of law, ruling again that there was enough evidentiary support that car buyers who exercised reasonable diligence wouldn’t have been aware of the engine defect. The judge wrote: 

trial evidence supports the conclusion that GM and the dealerships obfuscated the existence of a defect by representing that the vehicle problems were fixable through repair. To that end, a reasonably jury could conclude that even highly knowledgeable and diligent class members would have been misled into thinking the issues they faced were not the result of a defect.

Our lawyers look forward to advancing the case to final judgment and getting for the class the damages that they have been awarded.  Considering that class cases so rarely go to trial, Clay Barnett, who led the trial team, expects that this order will provide guidance to courts and litigants on how class trials should be managed, and how class verdicts should be applied.

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.

The class is represented by Dee Miles, Clay Barnett, Rebecca Gilliland, Mitch Williams, Dylan Martin of Beasley Allen, along with co-counsel from DiCello Levitt LLP, Anthony Garcia Law and Andrus Anderson LLP. If you have any questions, contact Clay Barnett by using the contact form at the bottom of this page. 

Bumble BIPA Class Action Over Photo Verification Feature Moves Forward

In July, U.S. District Judge Andrea Wood refused to dismiss a class action lawsuit accusing the business that runs Bumble, a popular dating app, of violating the Illinois Biometric Information Privacy Act (BIPA). Plaintiff Dario Dzananovic sued Bumble, Buzz Holdings, and Bumble Trading in Cook County Circuit Court, alleging the app collected facial scans from users without complying with BIPA regulations regarding consent and data retention policies. The defendants then removed the complaint to federal court and filed a motion to dismiss.

Plaintiff Dzananovic alleged in the complaint that Bumble advertised its photo verification tool as a means for users to connect while “knowing the person you’re talking to is exactly who they say they are.” Users must upload a photo to use this feature, after which Bumble conducts facial scans of the photo through artificial intelligence. The scan extracts biometric data to create a facial template in the process.

Buzz denied specifically targeting the photo verification feature to Illinois residents, instead arguing it merely operated a global internet site that residents could have equal access to. But the court quoted a Seventh Circuit Court of Appeals opinion which held “a defendant’s deliberate and continuous exploitation of the market in a forum state, accomplished through its website as well as through other contacts with the state, can be sufficient to establish specific personal jurisdiction.”

In support of dismissal, Bumble, and Buzz Holdings argued that they do not conduct operating business and are only holding companies. In response, Plaintiff Dzananovic cited a declaration from Bumble Trading’s chief of staff in a separate lawsuit in 2021. The declaration states that “Bumble Inc. is the parent company of Bumble Trading, is involved in the marketing decisions of its subsidiaries, and is a party to the Bumble App’s terms and conditions.”

Third, the defendants argued that the BIPA claims lacked a sufficient link to Bumble’s business model. However, the court sided with Dzananovic’s “position that Bumble’s marketing strategy includes a perception of greater safety and privacy than other dating apps and, in particular, promotion of the optional image-based verification.”

Finally, the court rejected the defendants’ claim that it would be unfair to keep the case in Chicago, ruling that because the defendants directed business activities intentionally at Illinois residents, they were required to make a compelling case for a venue switch. The defendants failed to make that case. In addition, the court held that “Illinois has an interest in providing a forum for its residents, such as Dzananovic and other class members, to seek redress for the collection of their biometric information in violation of BIPA, an Illinois statute.”

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are available and ready to review potential BIPA violations. Contact lawyers Rebecca Gilliland or Tyner Helms lawyers in our Consumer Fraud & Commercial Litigation Section. Rebecca or Tyner will be glad to assist you with the case. 

Source: Cook County Record

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers remain heavily involved in class action litigation in all parts of 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. They can be reached by using the contact form at the bottom of this page.

If you need help on a case that would qualify as a class action, you can contact one of these lawyers. You can also contact Michelle Fulmer, Section Director, and she will have one of the lawyers contact you.Michelle can be reached using the contact form at the bottom of this page.

WHISTLEBLOWER LITIGATION

The False Claims Act: Empowering Whistleblowers To Combat Fraud

Whistleblower advocate U.S. Senator Chuck Grassley once said, “Going after waste, fraud, and abuse without whistleblowers is about as useful as harvesting acres of corn with a pair of rusty old scissors.” The False Claims Act (FCA), enacted during the Civil War to combat rampant fraud against the government, has now become the greatest fraud-busting weapon in America’s legislative arsenal. It’s how private individuals are empowered and incentivized to expose fraud, waste, and abuse affecting taxpayer-funded agencies and programs. 

At the core of the FCA is the qui tam provision, a unique mechanism that allows private individuals, known as “relators” or “whistleblowers,” to file lawsuits on behalf of the government against those committing fraud. Whistleblowers receive 15% to 30% of any recovery their case brings about as a reward. Successful qui tam cases usually recover several millions of dollars, providing a substantial incentive for whistleblowers to take the risks that go along with exposing wrongdoing.

Most whistleblower cases Beasley Allen lawyers see and handle involve a variety of fraudulent activities, including overcharging for goods or services, delivering substandard goods, misrepresenting the product or service provided, or knowingly failing to comply with government regulations. Contractors and others most commonly target U.S. healthcare programs, defense contracting, and government construction projects. 

Over the last century, U.S. legislators have amended the FCA several times to sharpen its teeth. These amendments have clarified the definition of a false claim, reduced the evidentiary burden on whistleblowers, and enhanced whistleblower protections against retaliation, among other enhancements. Most recently, in June, a bipartisan group of Senators introduced a bill that would ensure anyone who knowingly defrauds the government cannot escape liability.

The FCA benefits U.S. taxpayers enormously. Empowering and incentivizing private citizens to act as watchdogs helps promote greater accountability and transparency by uncovering and deterring fraud that likely would go undetected otherwise. The False Claims Act recovers billions of taxpayer dollars year after year and has served as a model for similar laws both in the U.S. and in several nations worldwide. 

If you need help with a whistleblower case, contact Michelle Fulmer, Director of our firm’s Consumer Fraud & Commercial Litigation Section by using the contact form at the bottom of this page. She will have a lawyer in the Section respond to you. 

Source: The National Law Review

Senate Proposes Bi-Partisan Bill To Strengthen The False Claims Act

On July 25, 2023, Republican Senators Charles Grassley, John Kennedy, and Roger Wicker joined Democratic Senator Dick Durbin to introduce the False Claims Amendments Act of 2023. If enacted, the bill would strengthen the False Claims Act (FCA), ensuring that the nearly 200-year-old statute remains the government’s greatest tool in the fight against government fraud. The amendment proposes three significant changes to the FCA. 

First and perhaps most significant, the bill would clarify what constitutes “materiality” under the FCA. In 2016, the U.S. Supreme Court held in Universal Health Services, Inc. v. United States ex. Rel Escobar that the government’s decision to pay a claim despite knowing about the alleged fraud is strong evidence that the violation was not material to the government’s decision to pay the claim.  The proposed amendment essentially reverses the Court’s decision. The bi-partisan amendment states: 

in determining materiality, the decision of the Government to forego a refund or to pay a claim despite actual knowledge of fraud or falsity shall not be considered dispositive if other reasons exist for the decision of the Government with respect to such refund or payment.

Secondly, the bill would extend the retaliation provision of the statute (Section 3730 (h)(1)) to protect “former” employees who were discharged, demoted, suspended, threatened, harassed, or discriminated against for attempting to stop the entity from violating the FCA. Lastly, the amendment would require the U.S. Comptroller General to submit a report to Congress on the effectiveness of the statute since the enactment of the False Claims Amendment Act of 1986. 

If enacted, the legislation would help whistleblowers and the government continue to recoup taxpayer dollars lost to fraud, waste, and abuse. Beasley Allen lawyers are currently handling numerous False Claims Act cases against healthcare providers and, more specifically, skilled nursing facilities. If you have a matter concerning a potential False Claim Act case, contact Larry Golston, a lawyer in our Consumer Fraud & Commercial Litigaiton Section. You can also contact another of the lawyers on our firm’s Whistleblower Litigation Team. The names of team members are listed below. 

An Important Ruling

Recently, Beasley Allen lawyers received some good news on the constitutionality front. The U.S. District Court for the Northern District of Alabama issued an opinion in U.S. ex rel. Wallace v. Exactec last month, finding that relators are not “officers” for the purposes of the Appointments Clause and further that the government exercises sufficient control over declined litigation so that the qui tam provisions of the FCA do not violate the Take Care Clause. 

Additionally, the U.S. District Court for the District of Arizona issued an opinion on November 9 in U.S. ex rel. Thomas v. Mercy Care rejecting the defendants’ constitutional arguments finding that the court would “abide by the binding precedent of the Ninth Circuit in United States ex el. Kelly v. Boeing Co., 9 F.3d 743 (9th Cir. 1993). In Kelly, the Ninth Circuit held that the qui tam provisions in the FCA are constitutional and do not violate the aspects of the Constitution referred to by defendants.” 

Beasley Allen lawyers Dee Miles, Larry Golston, Leon Hampton, Jessi Haynes, and Lauren Miles are handling the case. Paralegal Amy Ross and Legal Secretary Valerie Scroggins worked on this important case. Ali Hawthorne, a lawyer in the Section, assisted with “mock” trials. 

If you have any questions, or need more information, contact Michelle Fulmer, Director of our firm’s Consumer Fraud & Commercial Litigation Section. She will have one of the lawyers handling the Exactec case respond to you. 

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers remain heavily involved in the handling of whistleblower cases. Fraudulent conduct in Corporate America continues to cause huge problems in many industries in this country. Due to the case volume, we significantly increased our firm’s healthcare whistleblower practice months ago. Currently, our lawyers are handling cases throughout the country involving fraud against governments at both the federal and state levels. We will give another update in the January issue on this litigation, specifically as it relates to Beasley Allen’s involvement. 

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below. 

The experienced lawyers on our Whistleblower Litigation Team are dedicated to handling whistleblower cases. Members of the Team are Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Mile and Jessi Haynes. Dee Mile heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can also be reached by using the contact form at the bottom of this page.

SECURITIES LITIGATION

Plaintiffs’ Bar Warns Of “Dire Consequences” If FINRA Nixed

On November 2, 2023, the Public Investor Advocate Bar Association (PIABA) — an international bar association of legal professionals who represent savers, investors, and retirees in disputes with their financial professionals — submitted an amicus brief to the U.S. Court of Appeals for the D.C. Circuit in a case that could have “dire consequences” for the investing public.  PIABA was joined by the North American Securities Administrators Association (NASAA), which filed an amicus brief in the matter on November 3.  Several other amicus briefs were filed in the case from various exchanges and the National Futures Association, which also backed FINRA.  

In its brief, PIABA urged the D.C. Circuit not to “erode essential guardrails” by finding the Financial Industry Regulatory Authority (FINRA) unconstitutional, warning of “calamitous effects” for investors if FINRA ceases its regulatory and enforcement functions.  FINRA is a private corporation created to act as a self-regulatory body to detect, punish, and deter fraud in equity markets when the National Association of Securities Dealers and the New York Stock Exchange merged their enforcement functions in 2007.  Prior to that date, the NASD and NYSE had overseen the securities industry in the same manner since the late 1930s.  FINRA sets its own rules for securities markets and professionals and procedures to enforce them. It also has the power to bring enforcement actions against violators like Alpine, similar to what the U.S. Securities and Exchange Commission (SEC) does.  

The brief comes in a suit brought against FINRA by Alpine Securities Corp., which has argued FINRA is exercising government power without constitutional checks on its authority.  In 2022, FINRA expelled Alpine from the securities industry for breaching a prior cease-and-desist order.   That prior order was entered in 2019 after FINRA found Alpine had violated FINRA rules by fraudulently stealing more than $54 million from its customers’ accounts.  FINRA brought another enforcement action in 2023 for violation of the order.  Alpine responded by filing suit claiming FINRA’s enforcement authority is unconstitutional and seeking an injunction to keep FINRA from taking action until Alpine’s claims are decided.  

PIABA argued in its brief that Alpine seeks to erode guardrails that have existed for decades to protect the public from securities violations committed by “bad actors” such as Alpine.  PIABA argued:

Simply put, if FINRA’s regulatory and enforcement power were taken away, there would be no government agency or [self-regulatory organization] with regulatory and enforcement powers over the securities industry members that could readily take over FINRA’s functions.  

PIABA argued that FINRA’s regulatory and enforcement powers are valid because they are subject to final review by the U.S. Securities and Exchange Commission.  It claimed that Alpine was trying to eliminate the securities industry’s watchdog and “set the industry back to its pre–1934 days of unethical, fraudulent, and manipulative acts and practices that Congress, the SEC, and [National Association of Securities Dealers]/FINRA have sought to eradicate.”  

NASAA similarly argued in its amicus brief that the appellate court should affirm a district court’s denial of a preliminary injunction and “not disrupt the existing framework of securities regulation created by Congress and implemented over the past 90 years.”  NASAA argued that FINRA serves a critical role in the U.S. securities regulatory framework and that it is essential to the efficient functioning of securities markets in the U.S., pointing to the substantial volume of trading data that FINRA takes in, saying it surveils billions of securities transactions every day for potential fraud.  NASAA said:

FINRA provides essential services like these that state and federal securities regulators, thousands of firms, hundreds of thousands of registered persons, and millions of American investors rely upon. If this court were to find that FINRA’s rule writing and enforcement mechanisms were unconstitutional, this court could disrupt the essential functioning of securities regulation and the nation’s securities markets, harming the economy.  

NASAA is a voluntary association of state and provincial securities administrators from the U.S., Canada, and Mexico.  According to their website, NASAA’s members’ “fundamental mission is protecting consumers who purchase securities or investment advice.”  

At the heart of the dispute is whether constitutional claims can be leveled at an organization like FINRA, which maintains some independence in pursuing members who allegedly violate securities laws while still being overseen by the SEC.  Numerous cases have challenged the regulatory authority of federal agencies and industry regulators since the Supreme Court issued its decision in Lucia v. U.S. Securities and Exchange Commission in 2018, finding that the SEC’s use of administrative law judges violated the constitution.  Alpine argues, in part, that FINRA’s hearing officers are likewise unconstitutional because they are not subject to presidential oversight.   

However, FINRA is a private entity, not a government actor whose hearing officers are subject to constitutional restraint.  FINRA said that Alpine could, for example, appeal any expulsion order to the SEC.  The regulator said it is instead akin to Nasdaq, another self-regulatory organization which the Fifth Circuit recently ruled is not subject to constitutional lawsuits after a pair of conservative organizations tried to overturn the exchange’s board diversity rule.  

FINRA cited the ruling as one among a “uniform body of court of appeals decisions,” rejecting claims that FINRA is unconstitutionally exercising government authority.  

The case is Alpine Securities Corp. et al. v. Financial Industry Regulatory Authority Inc., case number 23-5129, in the U.S. Court of Appeals for the D.C. Circuit.  

Securities Litigation Team At Beasley Allen

Beasley Allen’s Consumer Fraud and Commercial Litigation Section has a skilled group of lawyers dedicated to handling cases where individuals become victims of fraud, including securities fraud.  Lawyers on the Securities Litigation Team at Beasley Allen are actively involved in multiple securities fraud actions in courts around the country and in FINRA arbitration proceedings.  If you need more information or have comments, contact James Eubank. James, who worked for years as a securities regulator with the Alabama Securities Commission, is leading the Securities Litigation Team and securities fraud investigations.   

As previously reported, this area of our practice has continued to grow. The marked increase nationally in securities litigation has come as no surprise to Beasley Allen lawyers. They were well aware of how widespread fraud has become in Corporate America.  

Lawyers in the section who handle these claims 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 cases or issues. The team includes the following lawyers: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached by using the contact form at the bottom of this page.

MASS TORTS LITIGATION

New Lawsuits Filed Over Ozempic Side Effects

We have all seen the commercial “oh, oh, oh, Ozempic.”  As you probably know, Ozempic has become increasingly popular over the past few years, with millions of views on social media platforms like Instagram and TikTok. The popularity has come about largely because of social media exposure. 

Novo Nordisk’s Ozempic is an injection that is FDA approved to treat type 2 diabetes. However, it should be noted that Ozempic has not gained widespread popularity due to it being just a diabetes treatment.  Ozempic is trending on social media platforms for weight loss, an indication that is not approved by the FDA.  

While Ozempic has not been FDA-approved for weight loss, Novo Nordisk has been touting Ozempic’s ability to treat weight loss since its initial commercials aired in 2018.  Medical literature has since linked the popular injection to serious complications like gastroparesis and other severe injuries.

Consumers who have experienced these types of injuries have started filing lawsuits against Novo Nordisk.  The first of its kind was filed in the U.S. District Court for the Western District of Louisiana a few months ago.  A few weeks ago, Novo Nordisk was hit with a class action filed in British Columbia on behalf of all Canadians.  The Canadian class action alleges that Novo Nordisk failed to warn them about some of the many side effects named above. 

Beasley Allen lawyers in our Mass Torts Section are currently investigating cases involving Ozempic, as well as other similar drugs and injections with the same active ingredient called semaglutide.  Those other drugs and injections are Wegovy, Rebelsus, and Mounjaro.  Our lawyers are currently taking potential cases where individuals were diagnosed or treated for gallbladder removal, severe or permanent stomach paralysis, gastroparesis, other gastrointestinal injuries, intraoperative pulmonary aspiration, ileus or bowel obstruction, pancreatic cancer, or suicide.  

Philips CPAP Litigation – Proposed Class Settlement For Economic Loss Claims Will Not Impact Personal Injury Claims

The litigation against Philips Respironics related to its recalled sleep and respiratory care devices continues to move forward. Hundreds of personal injury cases are currently pending before Judge Joy Flowers Conti in the United States District Court for the Western District of Pennsylvania. The personal injury cases and several class action cases are part of multidistrict litigation as ordered by the Judicial Panel on Multidistrict Litigation.  In addition to the personal injury plaintiffs that have filed suit, tens of thousands more have been added to a Census Registry, where plaintiffs are able to toll the statute of limitations for their claims.

In September 2023, Philips announced that the parties had agreed to a class settlement to resolve all economic loss claims.  The proposed settlement was granted preliminary approval by Judge Joy Flowers on October 10, 2023.  Under the terms of the settlement agreement, Philips will provide $100 for each recalled device returned to Philips.  In addition to the $100, Philips will also provide an award based on the specific type of recalled device returned.  These awards range in value.  For example, the award for DreamStation CPAP machines will be $55.63.  The award for a System One 60 Series Base will be $68.24.

The decision of whether or not to participate in the Economic Loss Claims settlement will be completely up to each individual who purchased and used one or more of Philips’ recalled devices.  If an individual has a pending personal injury claim or a potential personal injury claim, they are free to participate in the Economic Loss Claims settlement, and their participation will not have any impact whatsoever on their potential personal injury claim. The claim filing period will open on December 8, 2023, with a Final Approval Hearing scheduled for April 11, 2024. The deadline to file a claim form is currently set for August 9, 2024. 

In light of the preliminary approval of the class settlement, individuals who choose to participate will be responsible for returning their device to Philips and submitting a claim on the website that has been created at https://www.respironicscpap-elsettlement.com/.

As to the personal injury litigation against Philips, discovery, including extensive document review and coordination with experts, is ongoing.  In October 2023, the U.S. Food and Drug Administration (FDA) reported in an update that it was unhappy with Philips’ progress following its June 2021 recall.  After the recall, the FDA issued an order requiring Philips to release information about the data from test results and findings from testing the PE-PUR foam used in recalled devices for volatile organic compounds and particulate matter.  In April 2023, Philips provided a report to the FDA consolidating what it claimed was a complete set of data.  

In its report, Philips claimed that at the time the recall was issued, it relied on an initial, limited data set and toxicological risk assessment.  Philips stated that since the recall, it has collaborated with independent, certified laboratories to conduct “a comprehensive test and research program on the PE-PUR foam to better assess and scope the potential patient health risks related to possible emission of particulates from degraded foam and [volatile organic compounds].”  Philips claimed that the assessment concluded that exposure to foam particulates and volatile organic compounds is unlikely to result in appreciable harm to patients.

However, in its October 2023 update, the FDA stated it does not believe that the testing Philips has provided so far is adequate to fully weigh the health risks posed by the breakdown of the sound-insulating foam.  The FDA stated it believes more testing is needed, which Philips has agreed to provide. 

Beasley Allen lawyers are currently investigating claims related to the devices recalled by Philips where users have developed lung cancer, asthma, chronic respiratory injuries, or kidney disease.  Our lawyers are currently only investigating claims for plaintiffs who reside in states with statutes of limitation of three years or longer.

Sources:  Class Settlement Agreement and Release of Economic Loss Claims, Doc. 2213-1, In re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Prods. Liab. Litig., MDL No. 3014 (W.D. Pa. Sept. 7, 2023), Law360, Philips, Respironics CPAP El Settlement

Infant Formula Litigation Update

Beasley Allen lawyers continue to investigate cases involving the development of Necrotizing Enterocolitis (NEC) in premature infants who were fed cow’s milk-based infant formula products. NEC is a dangerous gastrointestinal condition that damages developing intestinal tissue, often causing intestinal perforations that require surgery to repair. Unfortunately, 20-30% of these infants do not survive.

A number of lawsuits against formula manufacturers are currently pending in federal court and have been centralized into a multidistrict litigation (MDL), which is currently pending before Judge Rebecca R. Pallmeyer. Last month, the parties selected four initial bellwether cases. Case-specific and general discovery will continue over the next several months, including review of millions of pages of documents produced by the defendants and expert witness discovery.  At this time, we anticipate the first trials to take place in the last quarter of 2024.

There are also many lawsuits filed against formula manufacturers in state courts, including many handled by Beasley Allen lawyers. Unfortunately, cases in Madison County, Illinois, are currently on hold pending defendants’ appeal of Judge Ruth’s rulings on several of their motions to dismiss and motions to transfer venue. Cases currently pending in St. Clair County, Illinois, continue to move forward and are currently focusing on document discovery and depositions.  We are hopeful that these pending cases will soon begin moving toward a trial date.  

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

Judge Sets Rule 702 Hearing In Acetaminophen Autism/ADHD MDL

On November 7, 2023, MDL Judge Denise Cote in the Southern District of New York ordered the parties to present oral arguments regarding their Rule 702 Motions on December 7, 2023. The arguments will, among other things, present each side’s arguments on general causation as to whether prenatal acetaminophen use can increase the risk of autism and ADHD in children.  The parties will be given a total of three (3) hours to divide between both sides.  Both parties’ expert challenges are to be concluded in October.  

The Judicial Panel on Multidistrict Litigation (JPML) consolidated cases to Judge Cote on October 5, 2022, due to the increasing number of filings across the country alleging a link between prenatal acetaminophen exposure and autism and/or ADHD.  Beasley Allen’s Roger Smith is the MDL Chair of the Plaintiff’s Science and Expert Committee.

Beasley Allen lawyers in our Mass Torts Section continue to investigate cases involving prenatal exposure to acetaminophen who have subsequently been diagnosed with autism or ADHD. 

Source:  In re: Acetaminophen – ASD-ADHD Prods. Liab. Litig., 22-md-03043-DLC, Doc. 1343

FDA Announces Potential Ban On Certain Chemicals In Hair Relaxers

Litigation against the various hair relaxer manufacturers continues to heat up. As a result of the 2022 National Institute of Environmental Health Sciences (NIEHS) study, many consumers were first made aware of the strong association between hair relaxer users and serious health issues, including uterine cancer and ovarian cancer. To date, over 8,000 lawsuits have been filed in federal and state courts around the country against the manufacturers of these products. 

The hair relaxer cases are still in the early stages of discovery. However, Beasley Allen lawyers and lawyers from other firms who are bringing these claims, continue to build evidence to prove that the manufacturers knew or should have known of these dangers yet continued to sell these products without the proper warnings to consumers. The U.S. Food & Drug Administration (FDA) is now weighing in by announcing a potential ban on chemicals within these products. 

The proposed ban would remove any hair-straightening chemical products containing formaldehyde and other formaldehyde-releasing chemicals from the market. Other chemicals known to release formaldehyde include methylene and glycol. The Expert Panel for Cosmetic Ingredient Safety is an independent scientific body that has previously deemed these ingredients in hair smoothing/relaxing products unsafe. 

The identified chemicals are only part of the totality of chemicals that formulate the toxic soup of ingredients in the hair relaxers. However, the FDA taking a closer look at these chemicals and products is a good step in the right direction for consumer safety. 

TOXIC TORT LITIGATION

Opioids Litigation In Alabama And Georgia

Beasley Allen lawyers continue to vigorously pursue claims against pharmaceutical wholesale distributors for their role in the opioid crisis that has engulfed our nation. Our lawyers have been heavenly involved in this litigation. We will discuss two aspects below involving the litigation in Georgia and Alabama. 

In Georgia, Beasley Allen is Special Counsel to the Attorney General’s Office. After litigating against multiple manufacturer and distributor defendants, our lawyers have attained settlements for Georgia citizens against all but one defendant: regional distributor JM Smith. Trial is currently stayed pending settlement discussions with that defendant. Our lawyers expect a positive result for Georgians in the near future. Stay tuned!

Meanwhile, in Alabama, Beasley Allen Lawyers are also Special Counsel to the Attorney General’s Office. After already receiving excellent settlement outcomes for Alabamians from multiple defendants, the Beasley Allen lawyers are currently readying for trial against two of the “Big 3” wholesale distributors: Cardinal Health, Inc. and AmerisourceBergen Drug Corporation. After taking and defending dozens of fact and expert depositions, and after combing through millions of documents produced by the defendants, the State is set for trial on February 26, 2024. 

After months of preparation in the Alabama litigation, Beasley Allen lawyers, in concert with the Attorney General’s Office, have built an extensive and very strong case against both defendants. In consultation with numerous Alabama state agencies, our lawyers have set forth a detailed damages model that specifies areas for abatement in Alabama, such as increased access to Medically Assisted Treatment, increased care for Opioid Use Disorder, and much-needed aid to first responders and medical facilities. 

Stay tuned!

Alabama Entities Seek Portions Of The State’s Opioid Settlement Funds

Alabama lawmakers established the Opioid Settlement Committee in June to ensure Alabama’s $270 million settlement with the drug companies is used effectively to combat the state’s opioid problem. 

Several entities made presentations to the Opioid Settlement Oversight Committee seeking a portion of the more than $270 million in opioid settlement money Alabama will receive over the next few years. Most of the entities asking for the state’s funds are state agencies. 

However, several “seekers” have been private firms, including rehabilitation organizations.  Drugmakers also made bids. One company, Southern Research, outlined plans to develop non-addictive painkillers as an alternative to opioids. Emergent Bio Solutions presented a plan to use the money to manufacture Narcan, an opioid overdose treatment. 

Alabama was hit hard by the nation’s opioid epidemic. Despite increased awareness and tighter prescribing restrictions in recent years, the state saw 4,375 opioid-related overdoses in 2022 — a 76% increase over 2018. Drugmakers have faced increased scrutiny for their role in fueling the opioid crisis. Several have paid tens of billions in settlements to states across the country. 

The committee plans to have settlement money recommendations ahead of the 2024 legislative session, which begins in February.

Source: AL Daily News

PCB Contamination And Litigation Persists 

Beasley Allen lawyers in our Toxic Torts Section have been handling PCB litigation for a number of years. It started in 2003 when Monsanto Co. and Solutia, Inc. agreed to pay $700 million to settle two lawsuits that accused them of polluting Anniston, Alabama, for decades with polychlorinated biphenyls (PCBs). PCBs, like those manufactured in Anniston, were widely produced and utilized as coolants, lubricants, and electrical insulators until the federal government prohibited the production of PCBs due to growing health concerns in 1977.  

Rhon Jones and David Byrne from our firm, worked with the legendary Johnnie Cochran in the Anniston litigation. This was Beasley Allen’s first experience with PCBs. The good news is that we were able to get an excellent result for our clients. 

The Environmental Protection Agency (EPA) classifies PCBs as a likely carcinogen for humans. Internal documents have revealed that Monsanto executives were aware of the health risks associated with PCBs and the widespread contamination in the Anniston community. 

Thousands of municipalities have sued over PCB contamination of waterways, and Attorneys General of several states have sued over contamination of schools and other properties. So far, Bayer has agreed to pay approximately $650 million to a class of all local governments with EPA permits involving water discharges impaired by PCBs. Bayer has entered into separate agreements with the Attorneys-General of New Mexico, Washington, Oregon, and the District of Columbia to resolve similar PCB claims which total over $800 million. 

Last year three teachers won $185 million in a lawsuit against Monsanto in Monroe, Washington, alleging they suffered brain damage from PCBs in fluorescent lights at the school where they worked. From the same school, ten students and parents who suffered from serious neurological injuries were awarded a $275 million verdict. The series of trials took place at the King County Courthouse. 

Sources: Centers for Disease Control and Prevention, Bayer, Reuters, Washington State Office of the Attorney General, The Guardian

$165 Million Verdict Against Monsanto In Latest School PCB  Loss 

A Seattle Jury ordered Monsanto spinoff Pharmacia LLC to pay $165 million to a group of former school employees who claimed that the company’s chemicals in light fixtures at the school slowly poisoned them. The verdict brings Monsanto’s total trial losses involving the school to $880 million. 

The jury found that Pharmacia sold its toxic polychloride biphenyls (PCBs) to Sky Valley Education Center near Seattle but failed to adequately warn them of the chemicals’ dangers. As a result, six teachers, a librarian, and a custodian who had worked at the school suffered injuries. 

Pharmacia manufactured PCBs from 1935 to 1977 and sold them for a variety of commercial and industrial uses, including in-light capacitors. The employees claimed that the chemical company knew PCBs were toxic and potentially fatal but continued to sell them without warning of the risks. 

The jury allocated $49.8 million in compensatory damages plus $115 million in punitive damages to the surviving school workers. The jury awarded $29.5 million of that total to Johnson’s estate. 

In July, a jury awarded $12 million in compensatory damages and $60 million in punitive damages to two former Sky Valley students harmed by Monsanto’s PCBs. 

The plaintiffs are represented by Friedman Rubin PLLP, Pfau Cochran Vertetis Amala PLLC and Pipinich Law PLLC.

The case is Heit et al. v. Pharmacia LLC, case number 18-2-55641-4, in King County Superior Court.

Source: Law360

Paraquat Litigation Update

The Honorable Nancy J. Rosenstengel, Chief Judge of the United States District Court of the Southern District of Illinois, has presided over the Paraquat MDL since it was formed in June 2021.  The court has created additional safeguards to reduce the number of dual representations by law firms, which is an unfortunate reality in mass tort litigation.  Before filing a new case, in addition to searching on PACER to confirm that your client’s case has not been previously filed by another firm, the court’s website identifies current plaintiffs filed in MDL 3004 via the following link: 

https://ecf.ilsd.uscourts.gov/cgi-bin/mobile_query.pl?search=pty&caseid=87805&caseNum=3:21-md-03004-NJR.

The court has asked that plaintiff’s counsel routinely check this site and, if a client’s name matches, conduct due diligence in determining whether a filed plaintiff may be the same as your unfiled client by checking the state of residence, states of exposure, and dates of exposure on the filed complaint. This is a proactive solution by the court to maintain an orderly docket.  The court’s website is a good resource to stay up to date with recent filings as we await the much anticipated Daubert rulings, with a repository of Court Orders, Minutes of Proceedings, and New Case Filing Instructions which can be found at:  http://www.ilsd.uscourts.gov/mdl/mdl3004.aspx

Beasley Allen lawyers continue the intake and filing processes for paraquat applicator cases for claimants with Parkinson’s disease or Parkinson’s disease-like symptoms.

An Update On The Stone’s Throw Landfill Litigation

Beasley Allen lawyers continue to investigate claims on behalf of individuals and businesses who own property in proximity to the Stone’s Throw Landfill in the Ashurst-Bar Smith Community in the southern portion of Tallapoosa County just north of the Macon County line. Several decades ago, the landfill was placed in a location that made it likely to contaminate surrounding waters with hazardous chemicals originating from the waste in the landfill. Stone’s Throw Landfill—which is located off Washington Boulevard, just east of Tallassee—was placed on porous soil that sits atop an aquifer. 

Additionally, the landfill was placed at the head of two creeks (Mill Creek and Gleeden Branch), which eventually find their way to the Tallapoosa River. What is worse is that portions of this landfill are not properly lined. As a result, leachate—or the liquid that a landfill produces—is migrating from the landfill through the ground and the water. It has contaminated creeks, rivers, and wells throughout the community. Property owners in both southern Tallapoosa County and northern Macon County have been affected.

Our lawyers are proud to have filed a case on behalf of a Tallapoosa County man who owns property in the affected area. They are working diligently to hold the owners and operators of Stone’s Throw Landfill responsible for the contamination that they have caused to the creeks, rivers, and groundwater in the area surrounding the landfill. 

EPA Finalizes Rule To Require Reporting Of PFAS 

PFAS (forever chemicals) have been linked to a number of health problems.  PFAS are a class of nearly 10,000 individual chemical compounds used in things like nonstick cookware, stain-resistant carpet, and other consumer goods.  PFAS have been linked to increased cholesterol levels, blood pressure, low birth weights, liver damage, kidney and testicular cancer. These chemicals have come under increased regulatory scrutiny as their hazards have become better understood in recent years.

The new final reporting rule under the Toxic Substances Control Act (TSCA) requires all manufacturers (including importers) of PFAS and PFAS-containing articles in any year since 2011 to report information related to chemical identity, uses, volumes made and processed, byproducts, environmental and health effects, worker exposure, and disposal to the Environmental Protection Agency (EPA). In its press release, the EPA states:

this rule will produce actionable data that can be used by EPA, as well as state, local, and Tribal governments to craft policies and laws that protect people from dangerous ‘forever chemicals.’

PFAS have been the subject of ongoing litigation on behalf of water utilities, cities, states, and personal injury victims alleging harm caused by the manufacturers and users of the chemicals.  This final rule will help victims obtain justice by identifying those responsible for existing and potentially ongoing contamination and exposure

Source: U.S. Environmental Protection Agency

DuPont, Corteva Agree To  $110 Million Settlement To End Ohio PFAS Lawsuit

DuPont de Nemours, Corteva, and the Chemours Co. have agreed to pay Ohio $110 million to settle claims over “forever chemical” contamination from a Teflon facility in neighboring West Virginia. 

Ohio Gov. Mike DeWine filed the lawsuit against DuPont in 2018, when he was the state’s attorney general. He called the deal a victory for all Ohio residents — especially those living along the Ohio River near the company’s Washington Works facility in Parkersburg, W.V. Governor DeWine said in a news release: 

DuPont ignored the fact that the chemicals they were releasing were toxic, and this settlement ensures that they are held responsible for the pollution they knowingly caused to the environment. I applaud Attorney General Yost for aggressively pursuing this case and for bringing it to a successful conclusion.

Ohio accused E.I. Du Pont De Nemours And Co., which later split into DuPont, Corteva, and Chemours Co., of dumping PFOA-containing emissions and discharges into the air despite knowing that the chemical posed risks to human health and the environment. 

The $110 million settlement establishes an environmental restoration fund. Eighty percent of that fund will be allocated toward pollution from the Washington Works facility, 16% will go toward damages from firefighting foam (also known as aqueous film-forming foam, or AFFF), and 4% will be saved to mitigate damage to natural resources. Dupont will pay $39 million, Corteva $16 million, and Chemours Co. will pay the remaining $55 million. 

Ohio is represented by Aaron Farmer, Gregg Bachmann and Mark Navarre of the Ohio Attorney General’s Office, John D.S. Gilmore, Bill Jackson, Melissa Byroade, David Reap, David Zalman, LeviDowning, Nancy Yanochik and Curt Marshall of Kelley Drye & Warren LLP, Bill Markovits and Terry Coates of Markovits Stock & DeMarco LLC and Rob Bilott of Taft Law.

The companies are represented by Squire Patton Boggs LLP, McCarter & English LLP, Bartlit Beck LLP and Norris McLaughlin PA.

The case is State of Ohio et al. v. E.I. Du Pont De Nemours And Co. et al., case number 180T32, in the Court of Common Pleas for Washington County, Ohio.

Source: Law360

Judge Halts Georgia City’s PFAS Lawsuit

U.S. District Judge Thomas Thrash Jr. has partially suspended the City of Summerville’s case against 3M and DuPont over per-and polyfluoroalkyl chemicals in local water sources. The chemical giants had asked the judge to stay the litigation fully while they worked toward finalizing the separate water contamination settlement involving water systems nationwide.

While Judge Thrash halted depositions in the Summerville case until February, he allowed plaintiffs to continue collecting written discovery. The parties agreed on the arrangement as a compromise while the defendants finalize the multi-billion-dollar settlement in the multidistrict litigation involving thousands of nationwide water systems.  

Summerville resident Earl Parris Jr. sued 3M, DuPont and several other companies in Feb.  2021, alleging they illegally released toxic PFAS in a creek the city uses for its drinking water. Traditional water treatment systems do not filter out the substances, known as “forever chemicals” for the way they remain in the environment and accumulate in the human body and other living organisms. As we have reported, PFAs are linked to several forms of cancer and other serious illnesses. 

The City of Summerville intervened in the Parris case, but an injunction order issued in the MDL paused the city’s claims against the chemical companies. After 3M and DuPont settled cases for $12.5 billion and $1.1 billion, respectively, they asked the Georgia federal judge for a full suspension of the Summerville case. The city responded that it was opting out of the settlements, prompting the companies to offer to move ahead with some discovery, but pausing the depositions. 

Gary A. Davis and Keith A. Johnston of Davis Environmental Attorneys PC and Thomas C. Causby represent Mr. Parris. J. Anderson Davis of Brinson Askew Berry Seigler Richardson & Davis LLP and Jeffrey E. Friedman and Lee Patterson of Friedman Dazzio & Zulanas PC represent Summerville.

The case is Earl Parris Jr. et al. v. 3M Co. et al., case number 4:21-cv-00040, in the U.S. District Court for the Northern District of Georgia.

Sources: Law360, News Channel 9

AFFF And The Increasing Science In The Link To Cancer From Forever Chemicals 

As the foam cancer claim litigation moves forward, the public is beginning to get a heightened awareness of the devasting link between toxic PFAS exposure found in firefighting foam and the laundry list of health risks that we have written about.

Aqueous Film-Forming Foam (AFFF) is a slippery substance that contains poly-fluoroalkyl (PFAS) materials that are used to extinguish petroleum-based fires. Unfortunately, the same properties that make PFAS so effective at suppressing flames are what equally make it dangerous. PFAS that are linked to cancer contain man-made chemical compounds that do not biodegrade. This family of “forever chemicals” are immune to the natural processes in the environment, and once there, these chemicals only accumulate over time.

Individuals who are most at risk are those who had direct contact with the foam regularly. Exposure is not limited to the foam itself. Lawyers around the country, including Beasley Allen lawyers, have only recently learned that the gear firefighters use and rely on is laden with PFAS. A study from the National Institute of Standards and Technology tested 20 textiles used to manufacture the gear. The results detected the presence of between one and 17 PFAS in a single textile with higher concentrations of PFAS found in the outer layers of the gear. These alarming results would appear to explain the sharp increase in cancer rates among firefighters than the general public.

In 2019, the U.S. Environmental Protection Agency (EPA) increased regulations to eliminate the use of the highly toxic foam. However, by this point the damage from prolonged widespread exposure was overwhelmingly evident. Unfortunately, this is just the tip of iceberg and the long-term effects of chronic exposure remain unknown. As new evidence is uncovered, public health experts are optimistic that this information will lead to creative solutions that will aid in the efforts to contain, collect and control contamination, as well as offer companies different ways to provide safer alternatives. 

Sources: National Cancer Institute: Division of Cancer Epidemiology & Genetics, The National Institute of Standards and Technology

Delaware Sues 3M Over PFAS Problems 

The State of Delaware has filed a lawsuit against 3M and several other companies, alleging they have contaminated state land and water with PFAS (per- and polyfluoroalkyl substances), a family of toxic chemicals used in aqueous firefighting foam and other products. 

PFAS are commonly called forever chemicals due to their inability to break down in the environment. The chemicals also accumulate in the human body, causing cancer, thyroid problems, low birth weight in children, and several other serious effects.

In its complaint, Delaware asserts that firefighting foam containing PFAS made by 3M and the other defendants was used at two major airports in the state. Once sprayed, PFAS from the foam seeps into the waterways, bodies of water, aquifers, soil, fish and animal tissue. 

The state also accuses 3M of failing to warn the public about the dangers of its PFAS products, which it allegedly knew about since the 1970s but concealed from federal regulators. The suit further alleges that 3M knew that the chemicals spread far from places where firefighters used the foam and were more toxic than originally believed. The state contends that the company continued to produce and sell the chemicals even when products that were safer and just as effective were available.

Delaware seeks compensatory damages for ongoing environmental contamination, costs related to studying and repairing ecological damage, and punitive damages. Attorney General Kathleen Jennings said that despite understanding PFAS risks, 3M and the others prioritized profit over community welfare. She vowed to hold these companies accountable and to protect Delaware residents from bearing the enormous costs of corporate misconduct.

Source: Law360

Jury Returns $175 Million Verdict Against Monsanto In Philadelphia Roundup Case 

A Philadelphia jury has ordered Monsanto to pay $175 million to a cancer patient who claimed the company failed to warn about carcinogens in its weed killer, Roundup. The case marks the City of Philadelphia’s first trial on tort claims against Monsanto over its widely used glyphosate herbicide Roundup. 

The jury found that Monsanto was negligent in its design of Roundup and the consumer warnings associated with the weedkiller. The manufacturer’s negligence and its inadequate warnings about Roundup’s toxicity caused plaintiff Ernest Caranci to develop non-Hodgkin’s lymphoma, a type of cancer associated with Roundup exposure. 

The jury, in its verdict, awarded Mr. Caranci $25 million in compensatory damages and $150 million in punitive damages.

Mr. Caranci, who used Roundup heavily without protective gear from the early 1990s until 2014, estimated that he had more than 400 hours of Roundup exposure. All that time, he testified, he did not know of Roundup’s harmful effects on human health. He developed non-Hodgkin’s lymphoma in 2005 when he was in his 60s.

During the trial, Mr. Caranci’s lawyers contended that Monsanto continually challenged any scientific studies or scientists that found credible links between Roundup and cancer. Mr. Caranci and thousands of others sickened by Roundup exposure assert that Monsanto and its parent company, Bayer, chose not to warn consumers because they wanted to protect their lucrative Roundup sales. 

The Pennsylvania jury verdict was the second blow to Monsanto in October. Eight days prior, a Missouri jury awarded $1.25 million to a St. Louis man suffering from non-Hodgkin’s lymphoma that he blamed on his longtime exposure to Roundup.

Source: Law360

Judge Dismisses Over 3,500 Claims In 3M Earplug MDL

District Judge M. Casey Rogers, the Florida federal judge overseeing the 3M earplug multidistrict litigation, has shut down several claims in the MDL. Judge Rogers cited duplicated cases and overlapping representation for plaguing the cause. The decision comes after the judge had issued a deadline to drop duplicates and resolve overlapping counsel issues. 

An exhibit filed with the judge’s order shows 3,548 “unresolved overlaps” in which plaintiffs with the same name had different plaintiff ID numbers and law firms. Those cases were not resolved before the deadline. The claimants were found by Judge Rogers to be represented by the primary counsel firm that filed the earliest case, and all cases associated with the claimants, except for those filed first, were dismissed with prejudice. 

The MDL claimed 3M Co. earplugs led to hearing damage. 3M reached a tentative settlement in August, which could settle claims from hundreds of thousands of service members harmed by the defective earplugs. 

In September, Judge Rogers warned that scammers were contacting some of the 260,000 claimants in the tentative $6 billion settlement, pretending to be employees of Archer Systems LLC, the company assigned to administer the settlement, and asking claimants for their social security numbers and birth dates. 

The scammers took the contact number Archer had posted on Reddit to spoof Archer’s incoming call number and make it appear to be from the company. 

Judge Rogers’s actions were certainly necessary and quite appropriate. Hopefully, the “scammers” will also be dealt with. That sort of conduct can’t be tolerated in our courts. 

Source: Law360

EMPLOYMENT LITIGATION

Department Of Labor And National Labor Relations Board Strengthen Whistleblower Protections

On October 31, 2023, the United States Department of Labor (DOL) and the National Labor Relations Board (NLRB) announced an agreement to enhance the partnership between the U.S. DOL, the NLRB, and the Occupational Safety and Health Administration (OSHA). As part of this agreement, the agencies have created procedures related to “information-sharing, referrals, training, and outreach.” The purpose of the agreement, as outlined in the agencies’ Memorandum of Understanding (MOU), is to allow the agencies to better cooperate and enforce laws related to whistleblower protections, ultimately better protecting workers’ rights. 

As part of its campaign to strengthen whistleblower protections, OSHA provided three main rights that all workers have as related to health and safety. Those are: 

• First, workers have the right, at any time, to report health and safety concerns. Workers who report health and safety concerns have the right to protection from retaliation, as the retaliation violates both the OSH Act and NLR Act. Both agencies intend to “vigorously pursue” whistleblower enforcement actions where there is unlawful retaliation. 
• Second, workers have the right to “refuse to perform dangerous work” when the work meets circumstances under the OSH Act. Similarly, under the NLR Act, where there are unsafe working conditions, workers are able to strike without fear of retaliation. 
• Lastly, a company cannot enforce any rules, regulations, policies, procedures, or practices that interfere with a worker’s right to report health and safety concerns or to participate in any other protected activity under the OSH Act or NLR Act.

This new agreement will further ensure that workers and their rights are protected in the workplace, which is so important to our workforce in this country. It is great to see our government agencies affirmatively pursuing rules and regulations to better protect working men and women in the workplace. 

Beasley Allen lawyers closely monitor the ever-changing rules and regulations related to the U.S. DOL, NLRB, and OSHA and stand ready to evaluate cases related to whistleblower claims. 

Source: Occupational Safety and Health Administration

THE CONSUMER CORNER

Express Scripts Sued By Independent Pharmacies Over Alleged Price Fixing

A group of four retail pharmacies out of Wisconsin, Minnesota, and New Jersey has sued Express Scripts, Inc. in a Milwaukee, Wisconsin federal court. The plaintiff pharmacies are alleging that the Pharmacy Benefit Manager (PBM) conspired with Prime Therapeutics to charge higher fees to pharmacies while reimbursing them at lower rates.  

Express Scripts has the second-largest market share of PBMs in the United States, while Prime Therapeutics has the fifth-largest market share. In 2019, Express Scripts and Prime Therapeutics announced a three-year collaboration agreement between the companies, claiming that Express Scripts would be providing services to Prime in order to better serve consumers.  However, the plaintiff pharmacies allege in their complaint that the collaboration was actually intended to fix reimbursement rates and increase pharmacy fees with zero benefit to consumers. 

The complaint alleges that Express Scripts has always used its larger market share to collect higher fees from retail pharmacies than other PBMs while also reimbursing less for prescription drugs.  Yet, after the 2019 collaboration agreement between Express Scripts and Prime took effect, the pharmacies claim that Prime, who has less market share than Express Scripts, began paying the same reduced reimbursement rates to pharmacies as Express Scripts and started charging the same higher fees as Express Scripts. 

However, despite the supposed agreement that Express Scripts would provide services to Prime so that they may better serve customers under the new collaboration, the companies continue to deal separately with pharmacies in every material way except for reimbursement rates and fees. The lawsuit said:

The agreement does not, and is not intended to, achieve any efficiencies or economies of scale or procompetitive effects in the relevant markets, and the assertion of any such efficiencies or procompetitive effects by either Prime or ESI is pretextual. The agreement is simply a naked restraint on price competition with regard to reimbursement rates and transaction fees.

The plaintiff pharmacies filed the litigation in October of 2023 as a nationwide class of retail pharmacies seeking to recover damages under the Sherman Act, which is a federal antitrust law. 

Over the past year alone, there has been a great deal of state and federal legislation and litigation aimed at combating the deceptive practices of PBMs.  Since at least 2018 and continuing today, hundreds of bills each year related to PBM regulation have been introduced in state legislatures across the country, attempting to protect patients and pharmacies against some of the worst practices by PBMs.  

Beasley Allen has handled countless complex healthcare cases and continues to investigate PBMs for their unlawful conduct, which has ultimately led to increased costs of prescription drugs for consumers.  Our firm welcomes the opportunity to investigate potential PBM misconduct committed against private and governmental clients, including states and their health and pharmacy plans. 

Source: Reuters   

Missouri Jury Returns $1.8 Billion Verdict Against NAR In Case Involving Commission Rule 

A jury in Missouri has found that the National Association of Realtors (NAR) and two brokerages inflated commissions paid on home sales, resulting in $1.8 billion in damages to a class of home sellers. That number could be tripled under federal antitrust law.

Prior to the September trial, the class of home sellers reached a $139 million settlement agreement with Realogy Holdings Corp. (now Anywhere Real Estate Inc.) and Re/Max.

The home buyers in the Missouri case claimed that NAR conspired with HomeServices of America and Keller Williams to inflate commissions using the trade group’s rules that forced home sellers to pay commissions of brokers representing buyers. 

NAR issued a statement saying that its guidance for multi-listing services is intended to be transparent and that “brokerages of any size, service, or pricing model get a fair shot at competing.” The statement further said that NAR plans to appeal the verdict. 

The Missouri verdict comes as NAR and other real estate giants face similar claims from home sellers in the Northern District of Illinois. The previous settlements with Anywhere Real Estate and Re/Max also covered the claims against them in the Illinois case. 

The settlement agreement also called on the companies to not set any minimum commission requirements and to remove software that allows companies to filter home listings by a broker’s commission.  Anywhere and Re/Max also agreed to make it clear to sellers that broker commissions are negotiable and to remind agents of their obligation to show properties regardless of the commission. 

Source: Law360

COMMERCIAL LITIGATION

Businesses Need A Trial Lawyer When They Are Harmed By The Wrongful Conduct Of Others

Beasley Allen handles litigation where a business has been injured or harmed economically and becomes a plaintiff in a civil lawsuit. Litigation involving disputes between businesses can be very different from other types of litigation. Cases involving the disputes can involve substantial case expenses for accounting and the need for other experts. This litigation can involve disputes over contracts, misrepresentations, or other types of business torts. State and federal courts, and oftentimes arbitration, are involved. Some business cases Beasley Allen lawyers are currently handling, or have handled in the past, include: 

• Over 4,000 business clients with BP oil spill claims;
• Businesses, including large churches, with substantial termite damage; 
• A farmer was sold bad feed and most of his large herd of cattle were killed; 
• An engineering business was sold defective equipment, disrupting its plant operations; and 
• A large wood processing plant sought damages from major chemical companies. The cases involved misrepresentations and contract breaches over plaintiffs wood products 

Our firm has a team of experienced business dispute lawyers handling these types of commercial cases. A lawyer who has a business client involved in a case as a plaintiff may need help with the case. That’s because these cases are quite difficult. 

A LOOK AT THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

The Structure Of Beasley Allen Is Set Up To Work For Clients

We have written in prior issues about how Beasley Allen has grown from its start-up in 1979 as a one-lawyer firm to a very large firm today. It has been explained how the division of the firm into sections came about. The separate litigation sections concept has worked very well since the significant change was made. The section concept continues to work well on behalf of our clients. 

 Beasley Allen lawyers have handled all sorts of litigation for plaintiffs in civil litigation. However, that changed when the structure was changed in 1998, resulting in the firm operating in five separate sections. The Administrative Section supports the four litigation sections that could be described as “mini-firms” within Beasley Allen. Those four litigation sections are the Mass Torts Section, the Toxic Torts Section, the Consumer Fraud & Commercial Litigation Section and the Personal Injury & Products Liability Section. 

Each section has a team of lawyers and support staff working closely together, creating efficiency and case expertise within each section. The lawyers and staff develop expertise in the area of law handled by the section. Successful section performance leads to better firm performance overall, allowing us to expand our resources and enabling firm growth. Year after year, we believe our approach has allowed us to help more of those who need it most. 

The Mass Torts Section

Andy Birchfield heads our Mass Torts Section, while Melissa Prickett serves as the Section’s Director. With over 50 years of combined legal experience, Andy and Melissa lead the firm’s largest section in the medical devices, medication and other practice areas. The section currently handles cases involving acetaminophen, CPAP devices, hair relaxers, heavy metals in baby food, NEC baby formula, social media and talcum powder.

The Toxic Torts Section

Rhon Jones leads our firm’s Toxic Torts Section with Section Director Tracie Harrison’s assistance. The section focuses on toxic exposure cases. Recent cases involve Camp Lejeune water contamination, mesothelioma, paraquat and firefighting foam.

The Consumer Fraud & Commercial LItigation Section

Dee Miles is the Section Head of our Consumer Fraud & Commercial Litigation Section. Michelle Fulmer is the Director and assists with Business Litigation, Class Action, Consumer Protection, Employment Law and Whistleblower cases.

The Personal Injury & Products LIablity Section

Cole Portis heads our Personal Injury & Products Liability Section with Sloan Downes serving as the Director of the Section. The section handles auto accidents, aviation accidents, defective tires, negligent security, on-the-job injuries and truck accident cases.

The Administrative Section

Finally, the Administrative Section includes Accounting, Operations, Human Resources (HR), Information Technology (IT) and Marketing. Michelle Parks is the Director of Accounting, Michelle Fulmer is the Director of Operations, and Kimberly Youngblood serves as the Director of HR, IT and Marketing.

Since we reorganized the firm’s structure, our record speaks for itself; I am convinced the structure, as set up in 1998, has contributed greatly to our firm’s success. Section Heads and Directors have been able to concentrate on the cases in their section and they quickly recognize when additional resources are needed. Lawyers have been able to focus on clients within their specialty and on achieving favorable client results. The efficiency and teamwork generated by the sections concept has resulted in our firm being recognized as one of the best litigation firms in the country. This has been for the benefit of the folks we represented. 

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
• 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. 

• Acetaminophen
• Auto Accidents
• Aviation Accidents
• Camp Lejeune 
• CPAP Devices
• Defective Tires
• Firefighting Foam
• Hair Relaxers
• Kratom
• Mesothelioma
• NEC Baby Formula
• Negligent Security 
• On-the-Job-Injuries
• Ozempic
• Paraquat
• Social Media 
• Talcum Powder
• Truck Accidents 

We will give a brief explanation for each category below:

• Acetaminophen
  Beasley Allen lawyers handle cases of mothers who took acetaminophen while pregnant and gave birth to a child later diagnosed with autism or ADHD. Cases also include children treated with the drug during the first 18 months of life who developed autism or ADHD. 
• Auto Accidents
  Our lawyers handle life-altering and deadly automobile accident cases caused by defective products and driver negligence. Crashes may involve single vehicles, multiple vehicles, motorcycles, recreational vehicles, transit vehicles or trucks. 
• Aviation Accidents
  Lawyers investigate aviation accidents resulting from mechanical failures, human error and other causes. Crashes injure hundreds, sometimes thousands, of victims onboard aircraft and on the ground every year.
• Camp Lejeune 
  Our firm handles cases of victims exposed to contaminated water supplies at U.S. Marine Corps Base Camp Lejeune between 1953 and 1987. Exposure to toxic water caused serious injuries, including cancer, adult leukemia, Parkinson’s disease, major cardiac birth defects and others.
• Defective Tires
  Defective tires can lead to automobile accidents resulting in injury or even death. Beasley Allen lawyers investigate these accidents caused by blowouts, tread separation and other tire failures. 
• Firefighting Foam
  Beasley Allen investigates cases of Aqueous Film Forming Foam exposure. This firefighting foam contains highly toxic PFAS chemicals that can lead to cancer, liver damage, decreased fertility and other health risks.
• Hair Relaxers
  Our lawyers handle cases for women injured by toxic chemicals in hair relaxers. Women who frequently use hair relaxers may develop uterine cancer, endometriosis, uterine fibroids or breast cancer.
• Kratom
  Beasley Allen is investigating cases of serious adverse effects experienced by individuals who have consumed products containing Kratom.
• Mesothelioma
  Our lawyers handle cases of asbestos exposure resulting in malignant mesothelioma, a type of cancer that can lay dormant for years. Millions of U.S. workers may have been exposed to asbestos decades ago.
• NEC Baby Formula
  Our firm investigates cases of premature babies who developed necrotizing enterocolitis after consuming infant formulas manufactured by brands like Enfamil and Similac. Necrotizing enterocolitis is an intestinal disease that can lead to long-term complications and even death.
• Negligent Security 
  Establishment owners and managers are responsible for maintaining safe premises. When someone is injured or killed as a result of negligent security, Beasley Allen lawyers hold owners and managers accountable.
• On-the-Job-Injuries
  We investigate workers’ compensation cases, often finding that defective industrial products are to blame for workers’ injuries or deaths. Quite often, the incident results in a product liability case. Industrial products include manufacturing, farming, construction or other types of equipment.
• Ozempic
  We investigate cases of gastroparesis, intestinal obstruction, deep vein thrombosis and pulmonary embolism related to the use of diabetes and weight loss drugs like Ozempic, Wegovy and Mounjaro.
• Paraquat
  Our firm handles cases for victims injured by paraquat, a popular herbicide linked to Parkinson’s Disease that has been banned or partially banned in at least 92 countries. Paraquat remains legal in the U.S., risking the health and safety of workers on over 2 million U.S. farms.
• Social Media 
  Our youth are facing a mental health crisis caused by social media addiction. Beasley Allen advocates for these youth who have suffered harms, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm and suicide.
• Talcum Powder
  Beasley Allen handles cases for women diagnosed with ovarian cancer after regular use of talcum powder. For decades, companies like Johnson & Johnson knew that talcum powder might cause cancer but failed to warn consumers. 
• Truck Accidents 
  Our firm handles accident cases involving tractor-trailers, commercial vehicles and other large trucks. These cases often involve multiple, well-funded defendants and complex insurance issues.

Resources to Help Your Law Practice

Beasley Allen by choice is a litigation firm for plaintiffs. This means the firm only represents individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing. Our lawyers do not handle any defense work, whether civil or criminal, and there are no exceptions. The only time we represent companies in Corporate America is when they are victims of wrongdoing and are plaintiffs in civil litigation. This has been our policy since the firm’s establishment in 1979, and it will never be changed.

We are honored and humbled that our firm has been consistently recognized as one of the leading law firms in the country for representing sole claimants involved in complex civil litigation. Being trial lawyers representing only victims of wrongdoing is a privilege for us. Our firm has been truly blessed.

We understand the importance of sharing resources and collaborating with our peers in the legal profession. We are committed to investing in resources that can help our fellow trial lawyers in their work. We have compiled a list of our most popular resources for those seeking to work with us, or seeking information to help their law firm with a case.

Co-Counsel E-Newsletter 

Beasley Allen sends out a Co-Counsel E-Newsletter specifically tailored with lawyers in mind. It features case updates, highlights key victories achieved for our clients, and informs readers about the firm’s latest resources. You can get it online by visiting our website, BeasleyAllen.com and clicking the Articles link.

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 presentations. To register for upcoming events or access past webinars on-demand, visit the website and click on the Events and Webinar page.

Recalls Update

We try our best to stay current on the latest significant consumer recalls. Contact our JLB Report Team at [email protected] if you have any questions or believe we may need to include a recall.

The Jere Beasley Report

We also consider The Jere Beasley Report a service to lawyers and the general public. We provide the Report at no cost monthly, both in print and digitally. Visit our website, BeasleyAllen.com and click the Articles link.

TRIAL TIPS FOR LAWYERS

Mary Leah Miller, a lawyer in our Atlanta office, is writing this month on the importance of using other similar “incidents” in litigation. Mary Leah, who is in our Personal Injury & Products Liability Section, has been involved in numerous cases where the use of similar incidents in the case was extremely important. Mary Leah will discuss this subject, and I believe you will benefit from what she has for you.

Importance of Other Similar Incidents

In product liability actions discovery of other similar incidents (OSIs) is extremely important. This is because the occurrence of other similar incidents holds great relevance as it tends to make the existence of a defect more probable than it would be without the evidence. Admission of OSIs is within the discretion of the court. Such evidence is admissible in product liability actions when it is offered to prove: (1) notice of a particular defect (2) the dangerousness of the defect (3) the manufacturer’s ability to correct the defect (4) lack of safety for intended uses (5) standard of care (6) strength of the product and/or (7) that the defect caused the accident or injury alleged. See Hessen v. Jaguar Cars, Inc., 915 F.2d 641 (11^th Cir. 1990) 

However, before such evidence can be admitted, it must be shown that the prior failures occurred under conditions substantially similar to those existing during the occurrence in question and the prior incidents must not have occurred too remote in time form the incident in question. See Weeks v. Remington Arms, 733 F.2d at 1491.; Jones v. Otis Elevator, 861 F.2d 655, 662-663 (11^th Cir. 1988); Ray v. Ford Motor Co., 2011 WL 6749034 (M.D. Ala. 2011). 

It is worth noting that “substantially similar” does not mean identical. It is predicated on the defect at issue and “substantial similarity” among the variables relevant to plaintiff’s defect theory. Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10^th Cir. 2000). 

It is important to gather evidence related to OSIs during discovery and to press the defendant for the information. The defendant holds the keys to discovery of other similar incidents. This information is typically in the form of lawsuits against the defendant, warranty claims, recalls, governmental investigation (NHTSA, CPSC, etc.), property damage claims, and customer complaints. It is important to begin establishing your library of OSIs early in litigation so you will be prepared at trial and so the defendant will know that you have an arsenal of other claims (this helps with negotiating a settlement). 

Defendants will do everything to limit the scope of OSI information that is produced and will likely redact customer information, which makes it difficult to track down OSI witnesses. Here are a few tips on establishing your OSI library:

1. Ask for OSIs in discovery, including but not limited to, lawsuits, warranty claims, recalls, governmental investigations, property damage claims and customer complaints. Ask for associated photographs, videos, expert reports, accident reports, product evaluation reports and similar type documents.
2. Ask for the information in an unredacted format. More likely than not, you will have customer complaints, warranty information and property damage claims produced in a redacted format. There is case law that establishes if a customer complains to a company their information is not considered private or confidential. Don’t let them hide behind privacy in getting this information.
3. Don’t let the defendant limit your OSI request to just your product. If are alleging a defect with an airbag, find out what other vehicles included that same airbag (see Takata airbag recall and the millions of vehicles) and get that information. Don’t let the defendant limit you to your vehicle if the component that is defective is used across vehicle lines.
4. Ask your expert. Your expert has likely had similar claims and you can use them to establish the claims are substantially similar.
5. Talk to other lawyers. Once you get lawsuit information in discovery reach out to other lawyers whose cases you think you could meet the “substantial similarity” hurdle and get non-protected information from their case. Their clients can also be a good source for an OSI witness.
6. Research claims, recalls and investigations with governmental entities.
7. Google! You will be amazed at what the internet will tell you about other lawsuits. From there you can contact the appropriate people and gather the necessary documents.
8. In discovery request information on how claims, lawsuits, customer complaints, etc, are stored and gathered by your defendant. You need to make sure you have appropriately asked for OSI information from all sources in discovery.
9. Ask for a corporate representative on OSI information. 
10. Take OSI witness depositions.
11. Don’t wait until the eve of trial to start locating and contacting potential OSI witnesses. Start your library early!
12. Fight, fight, fight to get the information you need and the scope of discovery you need to establish OSIs.

By insisting on OSI information early and building your library, you can ensure at the time of trial you have OSIs to present and competent evidence to establish substantial similarity and have the incidents admitted at the trial of your case.

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

Key Lamberth

Key Lamberth is a lawyer in our firm’s Personal Injury and Product Liability Section. She is involved in cases such as negligent security, premises liability, and trucking accidents. The Mobile native says she always knew she wanted to be a lawyer, following in the footsteps of both her parents. She adds:

During my childhood, I witnessed my father’s impact on other people’s lives. His work brought him a sense of satisfaction and joy, which shaped my career aspirations.

While in law school, Key clerked in Beasley Allen’s Personal Injury and Product Liability Section from Summer 2021 until her promotion to lawyer in September 2023. She worked on cases involving trucking accidents, defective products, negligent security, and premises liability.  Key achieved several accomplishments in law school, including serving as an Editor for the Journal of Law and Psychology, participating in the Trial Advocacy Competition, and receiving the Georgia Peach Taylor Award of Excellence in Trial Advocacy.

Key is a member of the Georgia State Bar.  She earned her Bachelor of Science in Marketing and International Business from the University of Alabama in 2020, graduating summa cum laude, and her Juris Doctor from the University of Alabama’s School of Law in 2023.

We are thankful to have Key with us. She is talented and dedicated to serving her clients. Key is a definite asset to Beasley Allen. She is steadfast in doing very good work and helping her clients receive justice.

Jackson McDuffie

Jackson McDuffie works as a Staff Assistant in the firm’s Toxic Torts Section, where he began at Beasley Allen as a temporary employee in 2022.  Jackson is primarily responsible for opening new case files with information collected by the intake team or referring lawyers. He also assists with other projects as needed. Jackson is a dedicated employee and an asset to the Toxic Torts Section.  We are thankful to have Jackson working with us!

Jackson and his wife, Gabby, live in Montgomery.  They have a black lab named Beauty and a Tabby cat named Bruce, whom they say they “adore!” In his spare time, Jackson enjoys painting miniatures, reading, and spending time with his family. 

Jackson says that his favorite thing about working at Beasley Allen is the feeling of making a positive difference by helping clients through some of the most difficult times in their lives. Jackson’s compassion and willingness to do a good job is such a blessing and highly valued!  

Lee McKee

Lee McKee has been with Beasley Allen for just over eight years. He works as the firm’s Maintenance Specialist in the Operations department, where he started in 2015.  Lee is responsible for all the day-to-day maintenance needs, which is instrumental in keeping up the appearance of our buildings in Montgomery. Lee assists with all sorts of projects, including roofing, solar panels, exterior walls, bathroom remodels, and painting where needed.  Lee also assists with other projects as needed.  His role is vitally important at Beasley Allen. Lee does a great job in that role. We are blessed to have him with us!  

Lee and his wife, Aleshia, have been married for 23 years and they live in Macon County.  They have two grown children, Travis and Elizabeth, and three “precious” grandchildren, Brody (12), Chesnie (9), and Cruz (3), whom Lee and Aleshia “adore!” Lee’s hobbies include bowling, golf, Auburn football, playing dominoes, throwing darts, and fishing with family and friends. When asked what his favorite thing about working at Beasley Allen was, Lee says: 

My favorite thing about working at Beasley Allen is the joy of doing things that continue a legacy here. I work with people who are the best at their jobs. I like teamwork and enjoy being a part of the Beasley Allen team. I also can’t wait to see what projects we will do in the future.

Leanna Pittard

Leanna Pittard is a lawyer in the firm’s Mass Torts Section, handling cases involving talcum powder.  Before joining Beasley Allen in October 2023, Leanna spent over two decades handling numerous mass torts and product liability cases at some very good law firms. Leanna says counseling clients is her favorite part of practicing law. She adds: 

I find it rewarding to help people solve problems, especially those who would otherwise have trouble navigating a complex legal system.

Leanna grew up in Mobile, Alabama. She then relocated to the Birmingham area, where she attended college earning a Bachelor of Science in Psychology from Birmingham-Southern College in 1998 and her Juris Doctor from the University of Alabama School of Law in 2003, graduating cum laude.  Leanna is a member of various professional groups, including the American Association for Justice, the Alabama Association for Justice, Women En Mass, the Society of Women Trial Lawyers, and Alabama State Bar’s Leadership Forum Class 13. 

During law school, Leanna was recognized with awards from the American College of Trial Lawyers, the International Academy of Trial Lawyers, George Peach Taylor and Bench & Bar. She has published articles in Alabama Law Review, The Alabama Lawyer and Georgia Bar Journal.

Leanna is a lector and Sunday school teacher at St. Francis Xavier Catholic Church. She also chairs the Community Outreach Committee of the Parent Teacher Organization and serves on the Birmingham-Southern Alumni Board.

When asked why she decided to join our firm, Leanna said she has long “admired Beasley Allen.” She adds: 

Beasley Allen has a reputation for integrity and excellence.

Leanna is a tremendously talented lawyer who is dedicated to her work and the task of seeking justice for her clients.  We are blessed to have Leanna at Beasley Allen. 

Sara Sandlin

Sara Sandlin works in the firm’s Mass Torts Section as a Staff Assistant where she is part of the Talc Litigation Team. She is responsible for communicating with clients, providing them with updates, and assisting them with necessary paperwork. Sara is also responsible for ordering medical records when needed and communicating the health status of clients to attorneys. Sara joined Beasley Allen almost three years ago and is a tremendous asset. We are truly thankful to have her with us!

Sara and her husband, David, have been together for almost 12 years. They have two children, whom Sara describes as “amazing!” Their oldest will be 14 in January and plays football, loves video games, and puts God first in everything, Sara says. Their 4-year-old daughter started preschool this year and loves to learn. Sara’s hobbies are reading, spending time with her family, cooking, and cars, especially Mustangs! 

When asked what her favorite thing about working at Beasley Allen was, Sara said:

My favorite thing would have to be the atmosphere at Beasley Allen. Everyone is encouraging and positive.  I also love the passion that everyone has for these cases and making sure justice is rightfully served.

Sara is a hard-working employee who is dedicated to helping clients in her section obtain justice. She does excellent work and we are blessed to have Sara at Beasley Allen.

FAVORITE BIBLE VERSES

Blake Hudson, Dean and Professor of Law at Samford University, provided a scripture this month. We appreciate very much his doing so. 

…[A]ct justly and to love mercy and to walk humbly with your God. Micah 6:8

Sara Sandlin, who is being featured this month, shared three of her favorite Bible verses for this issue. Sara provided these passages.

A generous person will prosper; whoever refreshes others will be refreshed. Proverbs 11:25

Now all has been heard; here is the conclusion of the matter: Fear God and keep his commandments, for this is the duty of all mankind. Ecclesiastes 12:13

Trust in the Lord with all your heart and lean not on your own understanding; in all your ways submit to him, and he will make your paths straight. Proverbs 3:5-6

CLOSING OBSERVATIONS

Kay Ivey: Balanced Leadership At A Critical Time In Our State

Governor Kay Ivey has garnered a reputation in Alabama as one of the best governors in the state’s history. I stand with the vast majority of Alabamians who regard Gov. Ivey as an extremely effective and fair leader. Her principled and balanced leadership and her record of accomplishments have ranked her among the top 10 governors nationally year after year. Personally, I would rank Gov. Ivey near the top of the list. 

When it comes to politics, competency often takes a backseat to personality these days. The rise of some most “unusual” leaders in recent years bears witness to this. Although I have not agreed with every single thing that Gov. Ivey has done during her six-and-a-half-year tenure as governor, I am in accord with her the vast majority of the time. Alabama has not only met many critical challenges during her time as governor, but the state, in record fashion, has greatly prospered during her tenure. 

Governor Ivey’s strong commitment to economic development has significantly influenced the success of our state. Her policies and economic initiatives have attracted numerous companies and investments to the state, generating impressive growth. Gov. Ivey has used the Rebuild Alabama plan effectively. For instance, the state made improvements to Mobile’s deep-water port. The port improvements helped smooth supply chain issues and boosted state exports by nearly 25 percent.

Our state excelled and prospered even amid the COVID-19 pandemic. Gov. Ivey’s pragmatic and methodical governance was exceptionally evident in her management of $1.5 billion in federal money Alabama received under the American Rescue Plan Act. Her actions will serve Alabama well for decades to come. Gov. Ivey’s efforts to improve Alabama’s education and healthcare systems were a vital part of this effort. The Ivey record, as it relates to the state’s economy and job creation, has been exceptional. 

Gov. Ivey is a prime example of how leaders, whatever their political stripe, can serve effectively when they set aside differences and work together for the common good of all people. I applaud her ability to work with diverse groups and for her focus on practical solutions over partisan politics.

On a personal note, I have known Kay for a very long time, and I consider her a good friend. Kay has put the best interests of all Alabamians first on her list of priorities as our governor. We are blessed to have Kay as Governor of Alabama. 

OUR MONTHLY REMINDERS

The following are the monthly reminders for all of us at Beasley Allen. These reminders are put in the Report for a purpose, and that purpose is for them to be applied both in the workplace and at home. The remedies are recommended for all at Beasley Allen and to our readers outside Beasley Allen, including our political leaders. In fact, any person in a leadership role should read the quotes and apply the lessons learned from them in their daily lives. 

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

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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

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

PARTING WORDS

Alabama Loses A Giant In Roger Bedford

My longtime friend Roger Bedford passed away on October 11. Roger was an outstanding lawyer and an extremely effective member of the Alabama Senate. He was universally recognized as one of the best Alabama legislators of all time. Roger loved the state of Alabama and he worked diligently to make our state better in many ways. I appreciated that folks would always know where Roger stood on any issue. He did not dodge any of the “tough issues” that he faced and there were many.

Roger graduated from the University of Alabama with a B.A. in political science with a minor in history in 1978. He graduated from Cumberland School of Law at Samford University in 1981. Moving home to Russellville, Roger began a career in law and politics that would span over four decades. This man left a legacy that few lawyers and political figures in Alabama will match. 

The good news is that Roger has joined his beloved wife Maudie in Heaven. Praise the Lord!