The Jere Beasley Report December 2024

CAPITOL OBSERVATIONS

Be Thankful To Live In America

As we celebrated Thanksgiving on November 28, it was a good time to reflect on the events of the past few years. Needless to say – we live in a badly divided country. There is an urgent need for unity. I have to believe the vast majority of Americans want our leaders at every level of government to work for the common good and to be real “leaders.” America is a blessed country despite the division and ill will that clearly exists. We all have an obligation to do our part in the unifying of our country. We should be thankful to live in America. Let’s carry the spirit of Thanksgiving throughout the holidays and on into the new year.  

TALC LITIGATION

Talcum Powder Litigation Update

When our firm first began investigating cases against the manufacturers of Talcum Powder, our investigation included claims against Imerys Talc America, the company responsible for mining the talc used by Johnson & Johnson (J&J) in Johnson’s Baby Powder and Shower to Shower. Imerys knew of the risks associated with genital application of talcum powders, yet still provided their product to J&J for that exact purpose. Our firm was the only one ever to get verdicts against Imerys in ovarian cancer cases.

In February 2019, Imerys filed for Chapter 11 Bankruptcy, largely in response to increasing lawsuits against the company. Since 2019, our firm has remained involved in the litigation and resolution of Imerys’s bankruptcy through our representation of one of eleven members of the Official Committee of Tort Claimants (the Committee), which serves to protect the interests of all personal injury talc claimants in the bankruptcy. 

In 2021, Imerys and the Committee put forth a proposed Reorganization Plan and sought to obtain votes in approval of that plan.  The 2021 plan did not achieve the necessary approval, and the parties returned to negotiations.

On November 5, 2024, Imerys filed a new Plan of Reorganization and Disclosure Statement, which the Bankruptcy Court has now approved.  The Plan is the result of negotiations among the Committee, Imerys Talc, and other interested parties, and seeks approval of a number of settlements that were reached during the course of the Chapter 11 Cases. Together, these settlements work to fund a trust, expected to total approximately $1.3 billion, from which talc personal injury claimants may be eligible for resolution.  Holders of Talc Personal Injury Claims now have an opportunity to vote on this Plan.  We will keep you updated on the results of the vote.

Insurers Ask Judge To Reject J&J’s Bankruptcy Plan

A group of Johnson & Johnson (J&J) insurance carriers, including Travelers, Chubb, and Ace units, have asked a Texas judge to reject the Chapter 11 plan disclosure statement for J&J’s Red River Talc unit. They argue that the plan is unconfirmable and that J&J intends to make its insurers pay for bankruptcy-related claims.

The insurers say the disclosure statement is incomplete, confusing, and misleading. They want the court to reject it, order revisions, and require Red River to re-solicit votes on the revised plan. The insurers, who provided various liability policies to J&J from 1957 to 1986, were excluded from plan negotiations and allege that J&J is trying to push through a prepackaged plan with questionable support.

Red River filed for bankruptcy on September 20, aiming to create a nearly $9 billion fund to settle claims that J&J’s talc-based baby powder caused cancer. This is J&J’s third attempt to use bankruptcy to resolve talc claims, with previous cases dismissed due to insufficient financial distress.

The insurers argue that J&J is using illegitimate claims to gain votes for the plan and that paying invalid claims to secure a release is against the Bankruptcy Code. They compare this case to the opioid-related claims against Purdue Pharma, where the Supreme Court ruled against using bankruptcy to release third-party claims. The insurers believe J&J’s plan exceeds what the Bankruptcy Code allows.

The insurers are represented by lawyers from Gray Reed, Simpson Thacher & Bartlett LLP, Plevin & Turner LLP, Duane Morris LLP, Kennedys CMK LLP and Ifrah PLLC.

The official committee of talc claimants is represented by Sander L. Esserman and Peter C. D’Apice of Stutzman Bromberg Esserman & Plifka PC.

The Coalition of Counsel for Justice for Talc Claimants is represented by Melanie L. Cyganowski, Adam C. Silverstein, Sunni P. Beville and Jennifer S. Feeney of Otterbourg PC and David J. Molton, Jeffrey L. Jonas, Eric R. Goodman, Gerard T. Cicero and Susan Sieger-Grimm of Brown Rudnick LLP.

The case is In re: Red River Talc LLC, case number 4:24-bk-90505, in the U.S. Bankruptcy Court for the Southern District of Texas.

Source: Law360

$15 Million Verdict Against J&J In Mesothelioma Suit

A Connecticut jury awarded $15 million in compensatory damages to real estate developer Evan Plotkin, who claimed his mesothelioma was caused by exposure to asbestos in Johnson & Johnson’s talcum powder and art supplies. Plotkin, who operates a real estate business in Massachusetts, alleged that his and his children’s use of talcum powder, as well as his use of art supplies, led to his diagnosis.

The jury also decided that Plotkin should receive punitive damages, though the amount was not specified. The lawsuit included claims of strict liability, negligence, failure to warn, breach of warranty, recklessness, fraudulent misrepresentation, and conspiracy.

Johnson & Johnson and its subsidiaries, including Johnson & Johnson Holdco (NA) Inc., Pecos River Talc LLC, Kenvue Inc., and LLT Management LLC, were the defendants in the case. Johnson & Johnson says it will appeal the verdict.

American International Industries Inc., the maker of Pinaud Clubman barbering powder, settled with Plotkin before the trial. The defendants contended that their talc products did not contain asbestos and did not cause Plotkin’s mesothelioma.

Plotkin is represented by Benjamin D. Braly, Ethan A. Horn and Dana Casselli Simon of Dean Omar Branham Shirley LLP and by Brian P. Kenney of Early Lucarelli Sweeney & Meisenkothen LLC.

The case is Evan Plotkin et al. v. Johnson & Johnson et al., in the Connecticut Superior Court.

Source: Law360

Beasley Allen Talc Litigation Team

The battle with Johnson & Johnson (J&J) is still in progress. Beasley Allen remains totally committed to battling J&J on every front. The ongoing third bankruptcy attempt is the focus. We will continue to fight the good fight in the right way and for the right reason to the very end. I am confident this litigation will eventually wind up in a manner with justice being done for J&J’s victims. 

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head our Talc Ovarian Cancer Litigation Team. From the beginning, they have been directly involved in all phases of the talc litigation. Andy Birchfield, who heads up our Mass Torts Section, has also been actively involved with the team in all aspects of this litigation. Andy has become J&J’s target, and they have tried very hard to intimidate him. That has not worked. 

This has been a tough battle, but it is a critically important and necessary one, and our lawyers do not intend to back down.

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 Sutto and Matt Teague.

CAMP LEJEUNE LITIGATION

Bellwether Trials Move Closer Towards Critical Expert Phase

The Camp Lejeune Justice Act (CLJA) formally acknowledges the toxic nature of the water at Camp Lejeune and its harmful effects on veterans and their families. The Veterans’ Administration has confirmed that veterans stationed at Camp Lejeune between 1953 and 1987 were exposed to harmful, toxic chemicals, including vinyl chloride, benzene, TCE, and PCE, which are known to cause various health conditions, such as cancers. The United States Agency for Toxic Substances and Disease Registry (ATSDR) also acknowledges the link between these chemicals and various diseases, stating:

It is ATSDR’s position that past exposures from the 1950s through February 1985 to trichloroethylene (TCE), tetrachloroethylene (PCE), vinyl chloride, and other contaminants in the drinking water at Camp Lejeune likely increased the risk of cancers (kidney, multiple myeloma, leukemias, and others), adverse birth outcomes, and other adverse health effects of residents (including infants and children), civilian workers, Marines, and Naval personnel at Camp Lejeune.

Despite all this, the Department of Justice (DOJ) continues to challenge the connection between these chemicals and the bellwether diseases. With its experts in tow, the DOJ aims to demonstrate that there is insufficient evidence linking these chemicals to the specific diseases or that the chemicals were not present at Camp Lejeune in harmful concentrations.  The outcome of these upcoming Daubert hearings and general causation phases of the litigation are expected to have a profound impact on all administrative claims and global resolution efforts. 

The Congressional Attempt To Provide Jury Trials

We will do a brief recap of the Camp Lejeune Litigation at this juncture which will put things in perspective for our readers, especially our new readers. For decades, service members and their families at Marine Corps Base Camp Lejeune in North Carolina were exposed to toxic water. This exposure led to serious and often terminal conditions like cancer, Parkinson’s disease, infant deformities, and miscarriages.

In 2022, the Camp Lejeune Justice Act became law as part of the PACT Act. This was an important and significant step for those affected. However, due to technical issues with the law’s language, only a few of the over 500,000 claims have been settled. Victims have waited years, grieving the loss of loved ones linked to the contaminated water. Those affected should not have to wait any longer.

There is an urgent need for Congress to clear up one area of concern. The Camp Lejeune Technical Corrections (HR 8535) and the Ensuring Justice for Camp Lejeune Victims Act (S. 5257) should be passed by Congress. These are bills to clarify the law’s ambiguities and cap attorneys’ fees. The following are the key issues the new law will address:

1. Ensuring a Jury Trial: Recent court rulings have eliminated jury trials for these claims, but jury trials are a right all Americans deserve. The new law would reinstate this right for those sickened at Camp Lejeune.
2. Faster Trials: The new law would help clear the backlog of cases, allowing veterans to have their long-awaited day in court.
3. Fair Litigation Fees: By capping litigation fees, the law would ensure veterans and their families have access to strong legal representation and fair compensation.

Hopefully, Congress will pass all of these measures quickly. The medical and psychological impacts of the toxic water at Camp Lejeune are severe and enduring. Veterans and their families face significant health challenges, and delays in compensation add insult to injury. It’s high time for this litigation to get moving and in the right direction. Beasley Allen lawyers are committed to that mission. 

Camp Lejeune Litigation Team

Beasley Allen Toxic Torts lawyers are heavily involved in all aspects of this litigation, including bellwether trial work. If you need help with a claim, have questions about the litigation, or would like to co-counsel with us on one of your cases, contact a lawyer on our litigation team. 

The lawyers on the Camp Lejeune Litigation Team include Ryan Kral, Matt Griffith, Jeff Price, Elliot Bienenfeld, David Diab, Gavin King, Tucker Osborne, Elizabeth Weyerman, Saima Khan, Travis Chin, Wesley Merillat, and Miland Simpler.

Toxic Torts Section Head Rhon Jones is heavily involved in all aspects of the litigation, including the resolution committee. Rhon is in leadership as a member of the Plaintiff’s Executive Committee.

The lawyers on our litigation team will be honored to work with you if you need help with a claim or have questions about the litigation. You can contact Tracie Harrison, Director of our Toxic Torts Section. She will have one of the lawyers on the litigation team respond to you.

SOCIAL MEDIA LITIGATION

Social Media Addiction/Personal Injury Litigation Update

In a recent hearing in the Social Media Multi-District Litigation (MDL), U.S. Magistrate Judge Peter H. Kang issued an order requiring attorneys general offices to hand over certain documents to defendants from a multitude of state agencies. The Attorneys General argued that they did not have the statutory legal authority to force state agencies to hand over documents. 

Defendants were reprimanded in the hearing for interfering with prior negotiations to facilitate the production of the requested documents. 

MDL Judge Yvonne Gonzalez Rogers urged both sides to come to an agreement on how to efficiently work through this process so that the Court can proceed.

The State Attorneys General specifically assert various consumer protection, fraudulent concealment, and other claims brought under their respective statutes.  

Lawyers at Beasley Allen are currently pursuing claims on behalf of individuals arising out of their addiction to the defendants’ Social Media Platforms. Defendants include Facebook, Instagram, Snapchat, TikTok, and YouTube. Injuries include, but are not limited to, depression, anxiety, eating disorders, suicidal ideation, etc. 

Beasley Allen lawyers are also representing school districts for expenses they have incurred due to problems related to their students’ social media addictions. Lawsuits are being filed in the Northern District of California, Oakland Division, and in the Superior Court for the County of Los Angeles (overseen by the Honorable Judge Karen Kuhl). 

Social Media Giants Will Face Claims Brought By Schools

Judge Yvonne Gonzalez Rogers has ruled that Meta Platforms and other social media giants must face most public nuisance claims brought by school districts and local governments. These claims allege that the companies designed their platforms to addict children.

The judge largely denied the companies’ motion to dismiss, stating that public nuisance law can address evolving harms. She rejected the argument that public nuisance claims must be linked to land use or overlap with product liability law. However, the claims from Illinois, New Jersey, Rhode Island, and South Carolina were dismissed due to those states’ reluctance to expand public nuisance law.

The multidistrict litigation involves hundreds of actions alleging that platforms like Facebook, Instagram, YouTube, TikTok, and Snapchat foster compulsive use by minors, harming children and public health. Judge Gonzalez Rogers has issued multiple opinions, including the recent ruling that allowed most negligence claims to proceed.

The school districts claim they have incurred increased costs to address social media’s disruptive effects, such as hiring mental health personnel and developing resources to limit access to these platforms. Judge Gonzalez Rogers found that these injuries are distinct from those suffered by students and that the plaintiffs have the authority to seek abatement of the alleged nuisance.

The first bellwether trials are set for October 2025. 

The plaintiffs are represented by Lexi J. Hazam of Lieff Cabraser Heimann & Bernstein LLP, Previn Warren of Motley Rice LLC, Michael Weinkowitz of Levin Sedran & Berman LLP and Melissa L. Yeates of Kessler Topaz Meltzer & Check LLP.

The 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

Claims Dismissed Against Zuckerberg In Social Media MDL

Judge Yvonne Gonzalez Rogers has dismissed the claims filed against Mark Zuckerberg in a multidistrict litigation case. It was alleged in the case that Meta concealed the risks of social media to young users. Judge Gonzalez Rogers found that the plaintiffs failed to show that Zuckerberg directly participated in or authorized the alleged concealment, despite his control over the company.

Judge Gonzalez Rogers stated that control over corporate activity alone is insufficient to hold Zuckerberg liable as a corporate officer. The plaintiffs did not provide specific instances where Zuckerberg directed or participated in the concealment of the addictive designs of Meta platforms. The judge noted that while discovery might reveal more active participation by Zuckerberg, the current allegations do not meet the standard for corporate-officer liability in the thirteen states involved.

The litigation involves hundreds of actions brought by personal injury plaintiffs, school districts, local government entities, and state attorneys general, alleging that social media platforms like Facebook, Instagram, YouTube, TikTok, and Snapchat are designed to foster compulsive use by minors, causing various harms.

Despite the dismissal of claims against Zuckerberg, the lawsuit against Meta continues. Previn Warren, one of the lawyers for the plaintiffs, emphasized their commitment to uncovering the truth about Big Tech’s prioritization of profits over children’s safety. At press time, Meta had declined to comment on the court ruling.

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

The 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

Meta Faces Reduced Antitrust Trial

Meta Platforms Inc. will face a reduced antitrust trial after a federal judge dismissed some of the U.S. Federal Trade Commission’s (FTC) claims. However, the core issue remains.

U.S. District Judge James Boasberg narrowed one of the FTC’s claims, accepting Meta’s contention that some Facebook restrictions had legitimate business reasons. However, the judge rejected Meta’s main defense that acquiring Instagram and WhatsApp benefited consumers, leaving this issue for trial. Judge Boasberg also ruled that Meta cannot argue it needed these acquisitions to compete with Apple and Google.

The lawsuit, filed in 2020, aims to limit the power of major U.S. tech platforms. Meta maintains its acquisitions were beneficial, while the FTC argues the case is crucial for protecting innovation and competition in social media.

A trial date has not been set, but it’s anticipated a date will be set soon.

The case is Federal Trade Commission v. Meta Platforms Inc., 20-cv-03590, US District Court, District of Columbia (Washington).

Source: Claims Journal

Supreme Court Fails To Consider The Issue Of Limiting Disclosure Requirements In Meta Investor Case

Beasley Allen lawyers have been watching to see what the U.S. Supreme Court would do in the investors’ case before the court involving Meta Platforms Inc., Facebook’s parent company. Some observers had predicted a partial win in the case relating to the Cambridge Analytica scandal. They were wrong.

Instead, the Supreme Court dismissed the case which sought to limit the types of risk disclosures corporations must make to investors. The justices unanimously decided they shouldn’t have taken the case, sending it back to the California federal district court. Meta expressed disappointment. But at press time the investors’ lawyers had not commented publicly on the outcome.

Meta had asked the Supreme Court to dismiss the lawsuit from investors claiming the company failed to disclose risks from the Cambridge Analytica scandal. The Ninth Circuit had revived the case, and Meta argued that companies shouldn’t need to disclose past events with no known future risks. The investors contended there was ongoing harm and that Meta’s disclosures were insufficient.

The case had attracted attention from the SEC and the solicitor general, who supported the investors. The Supreme Court’s decision leaves the issue unresolved, with further proceedings expected in the lower court.

Beasley Allen lawyers had hoped the high court would clear up any area of concern. That obviously didn’t happen. It will be interesting to see what happens as the case goes back to the lower court. 

The investors are represented by Kevin K. Russell and Daniel H. Woofter of Goldstein Russell & Woofter LLC, Salvatore J. Graziano and Jeremy P. Robinson of Bernstein Litowitz Berger & Grossmann LLP, and Luke O. Brooks, Joseph Daley and Darryl J. Alvarado of Robbins Geller Rudman & Dowd LLP.

The government is represented by Megan Barbero, Michael Conley, Jeffrey Berger, Emily True Parise and Allison Bitz of the U.S. Securities and Exchange Commission, and Elizabeth Prelogar, Malcolm Stewart and Kevin Barber of the U.S. Office of the Solicitor General.

Source: Law360

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 in the MDL, helping lead the federal social media multidistrict litigation.

Social Media Personal Injury Litigation Team

Members of Beasley Allen’s Social Media Litigation Team are:

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

MOTOR VEHICLE & TRUCKING LITIGATION

Telematics: The Key To Unlocking Crucial Evidence In Trucking Cases

In 2022 alone, over 75,000 people were injured in trucking accidents, with more than 5,000 fatalities. Alabama alone accounted for 143 of these tragic incidents. When a crash occurs between a tractor-trailer and a passenger car, the truck driver often walks away unscathed, while the occupants of the passenger car are usually not so fortunate—approximately 72% of fatalities in these crashes involve the smaller vehicle.

Trucking accidents, like typical car accidents, involve accident reconstruction, liability, and damages. However, they have a crucial difference: the role of telematics in proving these aspects. Many trucking companies now use telematics systems to monitor their fleets and drivers.

Telematics technology collects and analyzes data from the truck and driver. For instance, the truck’s ECM (electronic control module) tracks important data such as GPS location, speed, harsh braking, fuel levels, and idling time. Additionally, dash cam systems may record pictures and videos of harsh events and crashes.

This data is typically uploaded to a cloud service accessible by the trucking company. Some companies invest in telematics services that analyze this data to create safety scores, reports, speed alerts, and detailed vehicle activity reports, helping managers coach drivers on safer habits.

This information becomes crucial when a truck driver causes injuries or deaths on the road. Video footage of a crash can reveal the driver’s speed, weather conditions, and the actions of surrounding vehicles, providing evidence of negligent or reckless driving. Driving trends can indicate what the trucking company knew or should have known about the driver’s habits, supporting claims of negligent training, supervision, and retention.

Telematics can also reveal whether the driver exceeded hours of service limits, contributing to fatigue-related crashes. Federal regulations dictate that most truckers should not exceed a 14-hour workday and must be off duty for ten consecutive hours before driving again. Additionally, they cannot drive for more than 11 hours in a day.

By comparing truck activity with driver logs, one can determine when, where, and how long the truck was in operation. This cross-matching can reveal discrepancies between actual and reported working hours, showing if the driver was overworked.

Exceeding the 14-hour limit can impair a trucker’s reaction time, concentration, and decision-making, indicating that the driver should not have been on the road.

Stephanie Monplaisir, a lawyer in our Personal Injury & Products Liability Section, wrote this article. She has the following suggestions for lawyers relating to telematics discovery:

Preservation, diligence, and thoroughness are key to telematics discovery. First, send a preservation letter for the telematics data immediately upon taking on a trucking case. Second, research the telematics system used by the defendant trucking company and demand relevant data. Finally, thoroughly review the data received and follow up on any discrepancies. The smoking gun for liability and punitive damages may be hidden in the telematics data.

Recent Georgia Court Of Appeals Opinion In Hill v. Ford Case

The Georgia Court of Appeals recently issued a significant opinion in the matter of Hill v. Ford Motor Company. This case originates from a devastating automobile accident that claimed the lives of Melvin Hill and his passenger, Voncile Hill, when their Ford truck lost control and rolled over. In the wake of this accident, Kim Hill and Adam Hill, the surviving children and co-executors of the estates, filed a product liability lawsuit against Ford Motor Company and other parties, alleging that the truck’s roof was defectively designed and dangerously weak.

The first trial in this case ended in a mistrial after the court found that Ford had deliberately violated several pre-trial orders, known as orders in limine, which are intended to limit certain evidence and arguments during the trial. As a result, the trial court imposed sanctions on Ford, declaring certain facts established by law and requiring Ford and its lawyers to pay jury costs. This set the stage for a second trial, where a jury awarded the plaintiffs over $24 million in compensatory damages and a staggering $1.7 billion in punitive damages. 

Ford appealed the trial court’s sanctions order, the evidentiary rulings, and the punitive damages award. On appeal, Ford challenged the trial court’s sanctions and several evidentiary rulings. The Court of Appeals found that while Ford did violate an order preventing their expert from testifying about the cause of death, the trial court erred in finding violations of two other orders. 

The appellate court vacated the jury’s verdict and judgment, remanding the case for a new trial. Additionally, the court reversed the trial court’s order that prevented Ford from presenting evidence on the Hills’ improper seatbelt use and vacated the exclusion of two scientific studies on rollover injuries and roof deformation.

With respect to the seatbelt evidence, the Court of Appeals found that the seatbelt statute only precludes the introduction of evidence that no seatbelt was worn, it does not preclude the introduction of evidence that a seatbelt was worn incorrectly. This ruling that evidence of improper seatbelt use is not excluded under Georgia law could have important implications for how similar motions in limine on this issue are treated in the future. The court also found that the trial court had applied the wrong standard in excluding certain scientific studies and ordered a reevaluation of this evidence under the correct legal standard (i.e., trial court failed to make the appropriate Rule 403 analysis).

The Court of Appeals also declined to address certain issues that might recur in the retrial. For instance, Ford argued that the trial court erred in admitting 79 other similar incidents, claiming they constituted hearsay. However, the Court of Appeals concluded that Ford had abandoned this claim of error because its briefing did not provide sufficient information or argument to address the issue. 

Secondly, Ford contended that the trial court erred in excluding evidence of driver fault, which included claims that Melvin Hill requested the wrong tire be installed on the truck, mishandled the truck after its tire blew out, and had multiple substances in his blood that exceeded therapeutic ranges. 

The Court of Appeals noted that the evidentiary posture might change upon remand and that the trial court may choose to reconsider its rulings on this evidence. Therefore, the court did not address Ford’s arguments concerning the exclusion of driver fault evidence in detail. 

Ultimately, the appellate court vacated the jury’s verdict and judgment and remanded the case for a new trial. The Court of Appeal’s decision underscores the importance of adhering to pre-trial orders and the potential consequences of violating them. For those practicing in Georgia, or when dealing with similar legal issues, this case is a crucial reference point. The Court of Appeal’s rulings in the case will likely influence future judicial decisions.

The Hills are represented by James E. Butler Jr., Ramsey B. Prather, Daniel E. Philyaw and Allison B. Bailey of Butler Prather LLP, by Gerald Davidson Jr. of Mahaffey Pickens Tucker LLP, by Michael B. Terry and Frank M. Lowrey of Bondurant Mixson & Elmore LLP, and by Larry Walker and Michael G. Gray of Walker Hulbert Gray & Moore.

Thomas, Evans, Eady, Boorman, Henderson, Berland and Malek are represented by Patrick T. O’Connor and Timothy D. Roberts of Oliver Maner LLP.

The cases are Ford Motor Co. v. Kim Hill et al., case number A24A0657; State of Georgia v. Ford Motor Co. et al., case number A24A0658; and Alan Thomas et al. v. Kim Hill et al., case number A24A0659, all in the Georgia Court of Appeals.

$129 Million Awarded To Family After Six-Year-Old Run Over At School

A Louisiana jury awarded $129 million in damages to the family of Emma Savoie, a 6-year-old who was struck and killed by a car in 2022. The child was participating in a running club at Our Lady of Lourdes Catholic School in Slidell. Emma’s mother, Amy Savoie, called the verdict “validation,” emphasizing that it showed her daughter was not responsible for her own death.

The jury’s decision included $50 million for Emma’s brother, Beau, for emotional damages, $29 million for Emma’s pain, and $25 million each for her parents, Amy and Brent. Frank Swarr, a lawyer for the family, noted that this award is a record for general damages in St. Tammany Parish.

The lawsuit named the school and its insurers as defendants. The Archdiocese of New Orleans, which is in bankruptcy, was not a defendant in the case. The jury found the school’s traffic safety practices led to Emma’s death and caused significant emotional distress to her brother.

Emma and her brother were part of the school’s run club, which required crossing two lanes of traffic. Emma was hit by a vehicle while trying to catch up with her brother. The family’s lawsuit highlighted previous near-misses involving other students.

In response to Emma’s death, the family started the Emma Bell Foundation to advocate for school traffic safety and lobbied for related state legislation. Amy Savoie hopes to use any awarded damages to further fund these advocacy efforts nationwide.

Source: Nola.com

NHTSA Death Investigation Opened After Tesla Car’s Pedestrian Crash

The National Highway Traffic Safety Administration (NHTSA) is investigating Tesla’s self-driving systems after several accidents, including a fatal pedestrian crash. The investigation covers Tesla’s Model 3, Model S, Model X, Model Y, and Cybertruck vehicles, focusing on their performance in various weather conditions like sun glare, fog, and dust.

NHTSA is reviewing the timing, purpose, and safety impact of Tesla’s software updates, particularly their effectiveness in low-visibility conditions. The investigation involves approximately 2.4 million Tesla vehicles produced since 2016.

In August, NHTSA sought information on a fatal Cybertruck crash in Texas, marking the first known death involving this model. The Cybertruck, which went on sale in November, has had four recalls, including issues with trim pieces and windshield wipers.

Earlier, in April, NHTSA began another investigation into Tesla’s software update aimed at improving driver attentiveness warnings in the Autopilot system. Tesla had agreed to a recall, but it did not fully concur with NHTSA’s analysis. The company added more controls and alerts to address concerns about driver monitoring.

NHTSA’s ongoing “recall query” will examine why Tesla’s subsequent updates were not included in the recall or deemed sufficient to address safety risks. Andrew McDevitt, a lawyer representing a family in an Autopilot crash lawsuit, criticized Tesla’s reliance on cameras without radar or ultrasonic sensors, highlighting potential safety issues. Beasley Allen lawyers handling these cases agree with this assessment. 

Source: Law360

GM Cruise Owes $500,000 In Criminal Fines After Robotaxi Crash

Cruise LLC, a subsidiary of General Motors, has agreed to pay $500,000 in criminal fines for making false statements to federal highway investigators. The company failed to disclose that one of its autonomous vehicles dragged a pedestrian over 20 feet after an accident. This agreement follows a $1.5 million civil penalty paid to the National Highway Traffic Safety Administration (NHTSA) for the same incident.

The incident occurred when a driverless Cruise vehicle ran over a woman who had been pushed into its path by another car. The vehicle’s report omitted that it dragged the woman at 7 mph because it didn’t detect her underneath. This omission made the report inaccurate, violating NHTSA regulations.

Cruise also agreed to pay a $112,500 penalty to California regulators and disclose additional data after initially offering $75,000 to avoid a public hearing. The California Public Utilities Commission and the Department of Motor Vehicles had suspended Cruise’s permits for ride-hail operations and autonomous vehicle testing in the state.

The government is represented by Lloyd A. Farnham of the Department of Justice.

The case is USA v. Cruise, LLC, case number 3:24-cr-00572, in the United States District Court for the Northern District of California.

Source: Law360

Quality Issues: Two New Ford Recalls

U.S. auto safety regulators are investigating two recent recalls by Ford Motor Co. as the company grapples with ongoing quality issues. The National Highway Traffic Safety Administration (NHTSA) is looking into an April recall of over 450,000 Bronco Sport SUVs and Maverick pickup trucks due to risks of engine power loss and electrical failure. 

NHTSA has received 15 reports of vehicles losing engine power even after being repaired under the recall. Additionally, the agency is examining a February recall of more than 100,000 Expedition SUVs for potentially faulty seat belt systems.

Ford stated it is cooperating with the investigations. These inquiries highlight Ford’s persistent quality challenges, which have led to increased costs and impacted earnings. We mentioned below Ford’s agreement to pay a $65 million fine as part of a settlement with NHTSA over delayed recalls of vehicles with defective rearview cameras. As part of the settlement, Ford will also face additional scrutiny from NHTSA regarding its compliance with U.S. auto safety regulations and will review all its recalls from the past three years.

CEO Jim Farley has acknowledged that rising warranty expenses are putting Ford at a disadvantage compared to its competitors.

Source: Claims Journal

Ford Fined $165 Million By NHTSA

The National Highway Traffic Safety Administration (NHTSA) has fined Ford Motor Co. up to $165 million for not recalling vehicles with defective rearview cameras promptly. This is the second-largest civil penalty in NHTSA’s history, following a $200 million fine issued to Takata for defective airbags.

An investigation revealed that Ford delayed recalls and failed to provide necessary recall information. Ford must pay $65 million upfront, with an additional $55 million in deferred payments and $45 million for performance obligations.

Under a three-year consent order, Ford must develop a safety data analytics infrastructure, create a document platform for safety investigations, build a test lab for low-voltage electronics, and implement a system to track car components by vehicle identification number. Ford must also review past recalls to ensure all affected vehicles were included and improve its recall decision-making process.

A third party will monitor Ford’s compliance, and Ford will meet with NHTSA quarterly. Ford has expressed its commitment to improving safety and compliance, with several enhancements already underway.

Source: Law360

NHTSA Initiates Investigation Into 1.4 Million Honda & Accura Vehicles

The National Highway Traffic Safety Administration (NHTSA) has initiated an investigation into 1.4 million Honda and Acura vehicles due to engine failures, specifically focusing on failed rod bearings. This action follows the receipt of over 100 reports, with NHTSA confirming 173 instances of failing connecting rod bearings as of September 8. One of these incidents involved a crash, though fortunately, no injuries were reported.

The vehicles under investigation were not part of a previous recall from a year ago, which addressed the same issue in approximately 250,000 vehicles. The NHTSA’s Office of Defects Investigation is now examining whether the scope of that recall was sufficient.

The rod bearings in question may wear out prematurely, potentially causing the engine to seize. The investigation includes the following models equipped with 3.5-liter V6 engines:

• 2018-2020 Acura TLX
• 2016-2020 Acura MDX
• 2016-2020 Honda Pilot
• 2018-2019 Honda Odyssey
• 2017-2019 Honda Ridgeline

Honda has acknowledged the investigation and a spokesperson stated that the company is committed to safety. Honda has been in communication with NHTSA regarding the alleged defect and the recall’s scope, and says the company will continue to cooperate throughout the investigation process.

Source: Law360

GM Issues Recall For Pickup Trucks And SUVs

General Motors has recalled nearly 462,000 diesel-engine pickup trucks and SUVs in the U.S. due to a risk of rear wheel lockup, which could lead to crashes. The recall affects certain Chevrolet Silverado and GMC Sierra models from 2020-2022, as well as the 2021 Cadillac Escalade, GMC Yukon, and Chevrolet Tahoe and Suburban.

The issue stems from a transmission control valve that can wear out and potentially fail, causing the rear wheels to lock up. Drivers might experience harsh shifting before this occurs. GM will update the transmission control software to monitor the valve and detect wear early, limiting the transmission to fifth gear if necessary to prevent lockup. Affected owners will receive notification letters on December 9.

GM’s investigation, which began in July, found 1,888 reports of wheel lockups and 11 related incidents, including minor property damage and three minor injuries. However, these injuries were not linked to crashes.

Source: Associated Press

Volkswagen Initiates Recall Due To Airbag Concerns 

Volkswagen has recalled 114,478 vehicles in the United States due to concerns over the driver-side airbag. The National Highway Traffic Safety Administration (NHTSA) announced the recall which affects certain Beetle and Passat models from the years 2006 to 2019.

The safety issue involves the driver’s side frontal airbag inflator, which may explode. This risk arises from propellant degradation, a problem that can occur after prolonged exposure to high absolute humidity, elevated temperatures, and significant temperature fluctuations. The NHTSA highlighted that these conditions could lead to the airbag inflator malfunctioning, posing a serious safety risk to drivers.

Volkswagen says the company has outlined a plan to address the issue. As part of the recall, Volkswagen dealers will replace the driver’s side front airbag module at no cost to the vehicle owners. The company says this measure aims to ensure the safety and reliability of the affected vehicles.

Persons who own one of the impacted models should contact their local Volkswagen dealer to arrange for the necessary repairs. Safety recalls like this one are crucial for maintaining vehicle safety standards and protecting drivers on the road.

A look at Georgia Law on UM/UIM Coverage

UM/UIM Coverage In Georgia

Alyssa Baskam, a lawyer in our Atlanta office, writes this month on an area of Georgia law dealing with auto liability insurance coverage. Georgia law generally does not require UM/UIM coverage on automobile policies.  Uninsured or underinsured motorist coverage (hereafter referred to as UM coverage) is an optional additional coverage insureds may elect to purchase to cover themselves and other members of their family and household in the event they are struck by an individual without insurance or without adequate insurance.  

O.C.G.A. § 33-7-11 (Requirements for motor vehicle liability policies; coverage of claims against uninsured motorist) sets forth the definition for “uninsured” motor vehicles and conditions precedent to recovery for uninsured/ underinsured motorist claims.  Insurers must offer UM coverage equal to the liability coverage on a given policy, but insureds may reject UM coverage or select reduced UM coverage.  

An insurer’s obligation to tender UM coverage is not triggered until the underlying limits are exhausted, so an initial analysis of UM coverage begins with a thorough analysis of the underlying available liability insurance. 

Georgia requires all drivers to carry at least $25,000 per person/ $50,000 per incident in liability insurance.  O.C.G.A. § 33-7-11(a)(1)(A).  Unfortunately, not all drivers on Georgia roads obey this requirement.  Fortunately, there are other potentially available pots of coverage beyond policies directly covering that driver or that vehicle.  

You must assess those potentially available pots of liability coverage, including whether there is (a) liability coverage on the striking automobile; (b) a commercial policy that somehow attaches to the striking vehicle; (c) an umbrella policy attached to the liability driver’s home or business that may apply; or (d) a relative living with your insured who has their own stackable insurance policy. 

Many states have avenues for discovering this information pre-suit.  In Georgia, the statute is O.C.G.A. § 33-3-28(a).  You may direct those requests to an insurer directly (if known) (see O.C.G.A. § 33-3-28(a)(1), which provides 60 days for an insurer to respond); or to the striking driver (see O.C.G.A. § 33-3-28(a)(2), which provides 30 days for the insured to respond). 

When evaluating the amount of UM coverage available you should consider your own client’s insurance policies, policies that attach to the vehicle (where for example your client is driving a vehicle they do not own), and the policies of relatives who live with your client. 

You must also consider the type of UM coverage selected.  Georgia law permits UM insurers to provide either “set off” or “add on” coverage.  “Set off” or “reduced by” UM coverage is reduced by or decreased by the liability amounts paid out on that claim.  “Add on” coverage is tacked onto the top of the liability coverage (and is thus preferable/ superior coverage). 

If your client’s policy contains no UM coverage or UM coverage that is less than the liability coverage provided on the policy, you should request from the insurer all documentation related to this selection.  Georgia law requires this selection by your client to have been in writing – meaning if there is no signed document by your client electing to reject UM coverage or take reduced UM coverage compared to the liability policy, the insured may be on the hook to provide UM coverage up to the level of liability coverage.  See O.C.G.A. § 33-7-11(a)(1)(B) and (a)(3). 

If your client pays for UM coverage (or you can otherwise prove that the insurer failed to satisfy its statutory obligations concerning the rejection of UM coverage), that UM coverage applies to your client’s UM claims regardless of the vehicle they were driving.  It also applies even if your client is not in a vehicle at all.  

The triggering event for UM coverage is injury by a motor vehicle, it does not require your client to be in a motor vehicle.  If your client was driving a vehicle that was not theirs, but which is listed on another policy providing UM coverage, that policy should also apply (barring explicit restrictions in the policy language).  

If your client lives with a family member and that family member has their own insurance coverage that would provide UM coverage, that UM coverage should apply to your client’s claims even if your client is not a named insured in that policy (so long as they live together and are related – there are relevant analyses to both elements that must be considered).  

Various applicable UM policies will “stack” onto each other so long as the coverages are from separate policies – coverage for different vehicles on the same policy do not stack onto each other.  But they may also be subject to set-off depending on the election made by the UM insured at the time of policy purchase or renewal.  Typically, the duty to pay first on multiple UM policies applies to the policy under which your client actually pays the premium.  If all policies are “set off” policies, then the last responsible policy gets the benefit of that reduction.  

PRODUCT LIABILITY

Two Types Of Premises Liability Litigation

Lawyers in our firm’s Atlanta office have handled a large number of premises liability cases over the years. The types of cases vary greatly and involve defendants of all sorts, such as property owners, business owners and operators, and security providers. Georgia law evaluates premises liability cases by determining whether the harm was caused by a dangerous condition on the property or by the direct actions of an employee or employees. 

When most people think of “premises liability,” they likely think of the first type of case. That would be a case where a dangerous condition exists and a property owner knew or should have known about it, yet still allowed the safety risk to exist. An example of such a case would be if a retail store knew or should have known that a customer or employee spilled a foreign substance on the floor, but the store failed to clean up the spill or put a warning sign up, resulting in another customer slipping and falling, and sustaining injuries as a result. 

In these types of cases, the owner of the premises must have had some degree of control over the defective condition. One of the main questions courts must consider in these cases is whether or not the injured victim also knew, or should have known, about the dangerous condition, or whether the owner or employees of the store had superior knowledge of the dangerous condition.  

The second type of case is when the victim is injured by the direct actions of an employee of the owner or operator. This is often referred to as active negligence. Going back to our spilled foreign substance example, the store could also be liable for active negligence if one of their own employees had spilled the foreign substance during their employment, as opposed to another customer having caused the hazard. These types of cases are evaluated just like any other simple negligence case. The liability threshold is lower in matters such as this, and the superior knowledge doctrine should preclude business owners from obtaining summary judgment. 

Regardless of which type of case, however, an individual may have a viable claim if they were injured either by a hazardous condition at a business orthe direct actions of an employee of a business. 

Amazon Held Accountable For Unsafe Products

It’s important to reflect on the recent ruling from the Consumer Product Safety Commission (CPSC) relating to Amazon. After a three-year legal battle, the Commission ruled that Amazon is responsible for unsafe products sold by third-party sellers on its platform. Consumer Reports, an American nonprofit consumer organization dedicated to independent product testing, consumer-oriented research, and consumer advocacy, had been supporting the need for the Commission’s action for over two years. The Commission advocates for online marketplaces like Amazon to be held accountable for defective and hazardous products. Oriene Shin, policy counsel at Consumer Reports, observed:

There’s no good reason for a company to be exempt from these sensible requirements just because it hosts an online marketplace; otherwise, products that could injure or kill people might slip through the cracks.

The CPSC found that Amazon, as a “distributor” under federal law, must recall over 400,000 defective or noncompliant products. These include such products as carbon monoxide detectors that fail to alarm, hair dryers without electrocution protection, and children’s sleepwear that violates flammability standards. Amazon is now required to notify purchasers and the public about these hazards and provide refunds or replacements.

Beasley Allen agrees with Consumer Reports. Clearly, it’s the responsibility of companies, not customers, to ensure that online shopping is safe. This victory sends a strong message to other online marketplaces to prioritize customer safety and actively manage the products sold on their sites.

Source: Consumer Reports

The Statute Of Repose Defense In Auto Products Liability Cases

In Georgia, as with most personal injury claims, generally there is a two-year statute of limitations to file a products liability claim. See O.C.G.A § 9-3-33. However, Georgia’s discovery rule serves as an exception to the general rule in limited circumstances. Pursuant to the discovery rule, the statute of limitations does not run until the date the plaintiff discovers the injury and what caused it, or the date the injury and the cause should have been discovered. But the statute of repose bars product liability claims brought more than 10 years after the date the product was first sold or leased for use or consumption. See O.C.G.A § 51-11-11(b)(2). 

In other words, if a plaintiff is injured due to poorly designed product and attempts to file suit within two years from the date of injury, but it is determined that the product was sold for consumer use 13 years prior, the statute of repose would bar the claim. This holds true no matter how dangerous the product nor how diligent the plaintiff was in bringing the claim. It is important when reviewing products liability claims to be aware that the two-year statute of limitations is not the only time limit applicable to the claim.  

There are some exceptions to the statute of repose. The statute of repose does not apply to claims against products which cause disease or defects or claims against manufacturers for willful, reckless, or wanton disregard of life or property. See O.C.G.A § 51-11-11(c). Likewise, the statue of repose does not apply to failure to warn cases. 

The Georgia Supreme Court has held that failure to warn cases are “outside the ambit of the statute of repose, thereby precluding use of the statute to relieve manufacturers of their liability for failing to warn of a danger arising from the use of a product whenever that danger becomes known to the manufacturers.” Chrysler Corp. v. Batten, 264 Ga. 723, 727, 450 S.E.2d 208, 213 (1994). 

The knowledge required of a manufacturer that gives rise to a duty to warn is not actual knowledge, but rather constructive knowledge. That is, the manufacturer reasonably should have known of the particular danger. 

It is imperative that a lawyer take proactive steps when investigating auto product liability cases. If you have an auto wreck case with catastrophic injuries, Beasley Allen’s product liability lawyers are able to assist in evaluating the potential to bring an auto products liability claim.

Litigation Involving Tree Stand Accidents 

Lawyers in our Mobile office continue to focus on product liability claims that involve serious injury or death.  Our Mobile lawyers are currently litigating and investigating multiple product liability cases stemming from tree stand defects.  Unfortunately, tree stand accidents continue to be a recurring issue.  With deer season being in full swing nearly nationwide, reports of tree stand accidents are occurring at alarming rates.  In fact, more hunters are injured and killed as a result of falls from height than mishaps with firearms.  Falls from tree stands are the most common type of hunting-related accidents.  

One study found that nearly 10% of hunters who use tree stands are injured annually.  Of those accidents, it was found that more than 75% occur while using commercially manufactured fixed position or climbing tree stands.  As most stands are placed at a height greater than 15 feet, falls from this distance can result in high-impact injuries. Another study revealed that 80% of tree stand fall victims required operative interventions, and nearly 10% of falls resulted in permanent neurological deficits or death.  

Despite awareness campaigns, tree stand accidents are on the rise.  One of the most widely accepted methods for preventing tree stand injuries and death is the use of safety harnesses.  Most commercially manufactured tree stands come with a safety harness.  Unfortunately, harnesses that come with the tree stands are often cheap, difficult to use, uncomfortable, and subsequently, rarely used.  It seems as though they are merely provided so that after an accident occurs, the manufacturer can pat themselves on the back for providing a safety harness.  

Additionally, more and more tree stands suffer from defects, rendering them unsafe.  As with so many industries, there seems to be a race to make the lightest, cheapest product in the category with nearly all manufacturing occurring overseas.  This has resulted in dangerous and inadequate materials and products.  Many tree stand accidents are a result of structural failures to the stand, or to the locking mechanism to the tree.  

Like most products, you get what you pay for.  A cheaper tree stand will likely be made of cheaper materials and by companies that cut corners when it comes to safety. 

Identifying Product Liability Holt Demand Opportunities In Georgia

Georgia “bad faith law” is a broad term used to describe the laws that protect insured parties from the wrongful acts of their own insurance companies. When an injured party sends a time-limited settlement offer for policy limits to an insurance company, the law requires that insurance company to act as a prudent insurer; that is, the insurance company cannot take actions that create an “unreasonable risk” for the insured by denying the settlement offer. In Georgia, time-limited settlement offers are frequently called “Holt demands”, in reference to the seminal bad faith case of Southern General Insurance Co. v. Holt, 262 Ga. 267 (1992). Specific requirements for these demands are codified by statute at O.C.G.A. § 9-11-67.1.

We will take a look at how the Georgia bad faith law can be used effectively in the settlement of claims. At this juncture, it provides the tools for successful pre-suit success in product liability cases. Beasley Allen lawyers use those tools for client success. The following are two of the tell-tale signs that our lawyers look for in order to determine whether a catastrophic injury case is ripe for a pre-suit resolution:

1. Workplace Injury: product servicers, fabricators, and designers that service industrial workspaces are seldom wholly uninsured – and, on the other hand, are seldom excessively insured. In our experience, these third-parties frequently carry somewhere in the range of $1 million – $5 million in coverage. In other words, look for policies big enough to mean something for the client, yet small enough to generate real pre-suit concerns in a catastrophic injury context.
2. Cooperative Facility Controller (usually, employer): when a client is seriously injured at a factory, it is understandable for the employer to have some resistance to a group of attorneys coming out to inspect the premises! However, if you as counsel, can settle those concerns by reminding the employer of their shield under Georgia’s Exclusive Remedy Provision (i.e., “Neither I nor my client could sue you if we wanted to!”), the employer can become a tremendous asset for the client by enabling a pre-suit inspection and collection of affidavits.

In some cases, a catastrophically injured client will find more value in obtaining a substantial amount of money in settlement early in the process rather than obtaining the full value of their claim after 2-3 years of litigation. Of course, a good value for the claim must be reached in an early settlement for the amount to be adequate and acceptable to the client under the circumstances to justify an early resolution. But it must be understood that at Beasley Allen our goal in every case is to obtain the very best result for the client. 

EMPLOYMENT LITIGATION

SCOTUS Cases With Potential Employment Law Impacts

The Supreme Court will take up key issues in employment law this term as it granted certiorari in E.M.D. Sales, Inc. v. Carrera and Stanley v. City of Sanford, Florida. Both cases may significantly impact workers’ rights.

In E.M.D. Sales, Inc. v. Carrera, the question before the Court is whether employers must demonstrate that employees are exempt from overtime under the Fair Labor Standards Act (FLSA) by clear and convincing evidence or a mere preponderance of the evidence. The Fourth Circuit’s decision that employers must present clear and convincing evidence is an outlier from six other circuits that employ the preponderance of the evidence standard. 

An amicus brief jointly filed by the Departments of Justice and Labor urges the court to restate the presumption that the preponderance of the evidence standard applies in civil monetary disputes. 

The court expressed skepticism of the heightened evidentiary standard during oral arguments, questioning why the FLSA should impose a higher burden than similar statutes such as Title VII. Because the clear and convincing evidence standard is difficult for employers to satisfy, the court’s decision may appreciably affect employees’ access to overtime pay. 

In Stanley v. City of Sanford, Florida, the Court will consider whether the Americans with Disabilities Act (ADA) protects disabled individuals from discrimination with respect to distribution of post-employment retirement benefits. 

Petitioners request reversal of the Eleventh Circuit’s determination that former employees are not “qualified” to bring ADA claims for disability bias. Amicus curiae AFL-CIO argues that the statute’s prohibition of discrimination “on the basis of disability” demonstrates Congress’ intent to protect former employees. 

Stanley is expected to resolve a circuit split between the Sixth, Seventh, and Ninth Circuits, which track the Eleventh Circuit’s holding, and the Second and Third Circuits, which allow both current and former employees to file ADA suits for benefits. 

The court’s ruling could expand the reach of the ADA and affect millions of currently disabled Americans who rely on retirement benefits earned during employment, as well as those who will become disabled in the future.

Beasley Allen’s team of employment lawyers consistently monitors changes related to employment law issues. These lawyers are available to investigate claims of employment discrimination.

The Beasley Allen Employment Litigation Team

   Lawyers on our firm’s Employment Litigation Team handle employment-related litigation for the firm. They also handle the firm’s Qui Tam Litigation (Whistleblower cases). Many whistleblowers will also have a retaliation claim related to their False Claims Act (FCA) claim. Quite often, an employee as a whistleblower will be the “original source” of an FCA claim.

Our Employment Litigation Team has had some tremendous success in both employment cases and qui tam cases. Currently, the team is pursuing some high-profile cases in courts around the country.

Dee Miles, who heads our Consumer Fraud & Commercial Litigation Section, also works with the litigation team.

Whistleblower Litigation

Walgreens Settles False Claims Act For $106.8 Million

On September 13, the Department of Justice (DOJ) announced that it reached a settlement with Walgreens Boots Alliance, Inc. and Walgreen Co. (together, Walgreens) to resolve allegations of a decade’s old fraudulent healthcare scheme.  The government alleged that since 2009 Walgreens fraudulently billed Medicare for prescription drugs that were never dispensed to customers, making the prescriptions ineligible for reimbursement by Medicare and Medicaid.  The settlement resolves three qui tam cases that were filed by whistleblowers in New Mexico, Texas, and Florida. 

It’s good to be reminded that the qui tam provision of the False Claims Act allows individual whistleblowers, also called Relators, to file a civil lawsuit on the government’s behalf. In exchange, they are awarded a Relator’s share of the funds recovered by the government. The relator’s share ranges between 15-30 percent of the recovery. 

In this case involving Walgreens, two former pharmacy supervisors filed separate qui tam complaints exposing Walgreen’s fraudulent scheme. As a result of the settlement, the relators will collectively receive over $16 million. 

The settlement came just weeks before Walgreens agreed to pay an additional $100 Million to resolve allegations in a class action lawsuit that it overcharged insured patients for prescription drugs.

Each year the Department of Health and Human Services (HHS) receives more than $2 trillion in budget appropriations to fund its 14 subparts.  Most of that funding is used by Medicare and Medicaid services to pay for medical costs for people with limited resources. Every year, the government uses the False Claims Act to recover taxpayer funds that have been lost to fraud. In 2023 alone, the government recovered $2.3 billion from qui tam cases. 

If you have a client who is aware of a fraudulent scheme being perpetrated on the federal government, contact a lawyer at Beasley Allen who handles whistleblower cases to learn about a person’s rights under the False Claims Act. We have a team of lawyers handling whistleblower litigation. 

$4.3 Million Dell & Iron Bow Army Overcharge Settlement

Dell Technologies and Iron Bow Technologies have agreed to pay over $4.3 million to settle allegations of overcharging the U.S. Army by submitting noncompetitive bids for a computing contract. Dell will pay $2.3 million, while Iron Bow will pay $2.05 million.

From May 2020 to April 2024, Dell allegedly ran a “deal registration program” that gave Iron Bow favorable pricing to sell Dell hardware to the Army. Dell also submitted higher bids to create a false sense of competition, allowing Iron Bow to overcharge the Army.

The settlement resolves a lawsuit filed by Brent A. Lillard under the False Claims Act, who will receive $345,000 for his role in exposing the scheme. The DOJ emphasized the importance of competition in government contracts to ensure value for taxpayers.

The government is represented by Samson Asiyanbi of the U.S. Department of Justice Civil Division’s Commercial Litigation Branch and Sarah Blutter of the U.S. Attorney’s Office for the Northern District of Alabama.

Lillard is represented by Lance Gould and Tyner Helms of Beasley Allen Crow Methvin Portis & Miles PC.

The whistleblower case is United States ex rel. Brent A. Lillard v. Dell Technologies Inc., case number 5:20-cv-01613, in the U.S. District Court for the Northern District of Alabama.

Source: Law360

The Beasley Allen Whistleblower Litigation Team 

Beasley Allen lawyers continue to represent whistleblowers across the country in claims against multiple bad corporate actors. The widespread Whistleblower litigation continues to increase at a rapid pace. 

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, or you need help with a case, a Beasley Allen lawyer will be glad to make a free and confidential evaluation of your claim.

Lawyers on our Whistleblower Litigation Team are listed below. You can contact Michelle Fulmer, Director of our Consumer Fraud & Commercial Litigation Section. Members of the team include: Lance Gould, Larry Golston, Lauren Miles, Leon Hampton, Jessi Haynes and Tyner Helms.

Insurance Litigation

Emergency Providers Object To $2.8 Billion BCBS Settlement

A group of emergency clinic medical providers have attempted to object to the $2.8 billion settlement reached between a broader class of medical providers and the Blue Cross Blue Shield (BCBS) network of insurers. The putative objectors, including emergency doctors and nurse practitioners, argued that out-of-network providers were not adequately represented in the settlement talks and might have to release their claims under the proposed agreement, despite fund distributions ignoring out-of-network rates.

U.S. District Judge David R. Proctor acknowledged that the proper time to object is AFTER the court has preliminarily approved of the settlement and notice of the settlement has been issued to all class participants, not before that time. The judge denied the objectors’ motion to delay the preliminary approval hearing, which was filed just hours before the hearing. 

Judge Proctor instructed the parties to discuss whether a formal objection at this stage was even necessary. The judge noted that the objectors’ claims, being litigated in Virginia and Florida, might not be released if they involve state regulations. Additionally, the objectors might be covered under distributions for in-network providers if they were in-network with BCBS at some point since 2009, and they could opt out of the settlement without releasing their claims.

Christopher Albright, representing the objectors, stated that his clients wanted to be part of the settlement but with distributions accounting for out-of-network rates. Joe Whatley Jr., part of the class counsel, criticized the timing of the objection but defended the settlement as one of the largest in history, promising significant relief and changes for providers.

The proposed settlement, reached after over a decade of litigation and nine years of negotiation, aims to resolve claims that BCBS insurers conspired to create exclusive geographic coverage areas, driving up costs and reducing reimbursement rates for providers. The settlement promises transparency, efficiency, and accountability, with BCBS spending hundreds of millions on compliance over a five-year monitoring period.

              Dee Miles from our firm participated in the hearing on behalf of the providers and has played an important role in this historic settlement. We expect that the judge will issue a Preliminary Approval order shortly, and the process of notifying all class members with formal notice will begin soon. We look forward to moving this class settlement along so that the needed relief the class offers to providers can be implemented as soon as possible.

The providers are represented by Whatley Kallas LLP, Beasley Allen Crow Methvin Portis & Miles PC, Dominick Feld Hyde PC, Hayes Hunter PC, Wood Law Firm LLC, Wiggins Childs Pantazis Fisher Goldfarb, Podhurst Orseck PA, Reich & Binstock LLP, U.W. Clemon LLC, Eyster Key Tubb Roth Middleton & Adams LLP, White Arnold & Dowd PC, The Law Offices of David A. Balto, Bonnett Fairbourn Friedman & Balint PC, Bunch & James, Axelrod LLP, The Frankowski Firm LLC,  the Law Office Of John C. Davis, Glast Phillips & Murray PC, Gray & White, Michael E. Gurley Jr., The Law Offices of Stephen M. Hansen, Jinks Crow PC, Kozyak Tropin & Throckmorton PA, Penn & Seaborn LLC, The Pittman Firm PA, Strom Law Firm LLC, Shelby Roden LLC, Horn Aylward & Bandy LLC, Whitfield Bryson & Mason LLP, Cusimano Roberts Mills & Knowlton LLC, Bailey Glasser LLP, Wojtalewicz Law Firm Ltd., Sears & Swanson PC, Archie Lamb & Associates LLC, Dillon & Findley PC, Lundberg Law PLC, Heidman Law Firm PLLC, and Simons & Associates Law PA.

The case is In re: Blue Cross Blue Shield Antitrust Litigation, case number 2:13-cv-20000, in the U.S. District Court for the Northern District of Alabama.

Source: Law360

Next Up In The $2.8 Billion Blue Cross Payout

As we reported, a settlement was reached on October 14 in the Blue Cross Blue Shield (BCBS) Antitrust Litigation. Healthcare providers accused BCBS of suppressing competition and underpaying them. BCBS will pay $2.8 billion to a settlement fund and implement measures to prevent future anticompetitive behavior.

This settlement with providers follows a $2.67 billion settlement with subscribers earlier this year. Providers must now decide whether to join the settlement or opt out and pursue their own claims.

For 12 years, subscribers and providers alleged BCBS violated antitrust laws by fixing prices and allocating markets, leading to overcharges for subscribers and underpayments for providers. BCBS agreed to settle to end the litigation, including a $2.8 billion fund and operational changes.

Providers who treated BCBS patients between July 2008 and October 2024 can participate. Payments depend on the type of provider and reimbursement amounts during the relevant period.

Class attorneys requested 25% of the fund for distribution and expenses, leaving about $2 billion remaining to distribute to class members. In addition, there is injunctive relief provided by the settlement that has been estimated to be worth hundreds of millions of dollars in value to class members.  Economists estimate the impact on facilities was 3.5 times larger than on individual practitioners. 92% of the fund will go to facilities, with the remaining 8% for practitioners who didn’t join the earlier settlement.

Providers can choose between default and alternative methods to determine allowed amounts. Experts will adjust these amounts using a regression model to estimate the impact of BCBS’s conduct.

Other Terms:

• Hospitals can renegotiate contracts with BCBS.

• Increased transparency on third-party data access.

• Real-time messaging system for provider issues.

• BCBS cannot require participation in non-Blue networks.

• A monitoring team will oversee compliance.

Providers should consider the potential recovery from the settlement versus opting out and pursuing their own claims, factoring in the type of provider, volume of BCBS-treated patients, and the risk of success of individual claims as well as the litigation costs associated with the same.

       Dee Miles from our firm played a key role in the leadership of this class case and served on the settlement committee that achieved this historic settlement. Dee commented, “Class members in this settlement are receiving substantial cash payments and equally valuable injunctive relief in the millions without ever having to go to court themselves. This is a remarkable settlement for medical providers and one we are anxious to implement.”

Source: Law360

SECURITIES AND SHAREHOLDER Litigation

Vanguard Investors Reach $40 Million Settlement

On November 6, Vanguard investors asked a Pennsylvania federal judge to grant preliminary approval of a $40 million class action settlement reached with Vanguard related to its Target Retirement Funds.  The plaintiffs in the case alleged that Vanguard breached its fiduciary duty when it altered investment minimums for some of its funds to boost sales, triggering a sell-off of assets that left retail investors with massive tax bills.  

Along with the motion, the proposed class of investors also filed a supporting memorandum for preliminary approval and a finalized settlement agreement.

Investors say the settlement agreement should be approved because it resulted from arms-length and fair negotiations that produced a reasonable and immediate result for the class in light of the risks of continued litigation. The investors said in the motion:

Plaintiffs faced several significant obstacles if litigation were to continue, including prevailing on class certification, defendants’ anticipated motion(s) for summary judgment, defendants’ potential defenses, plaintiffs’ ability to prove a novel damages theory, and the risks of prosecuting this litigation through trial and appeals.

The investors said the “best case scenario” would have been securing roughly $259 million in damages. The $40 million settlement represents about a 15% recovery, according to the memo, which the investors said is an excellent result.

Class counsel from The Rosen Law Fim PA intends to seek attorney fees of no more than one-third of the settlement amount, or approximately $13 million, plus litigation expenses of no more than $985,000. Additionally, lead plaintiffs will seek service awards of up to $20,000 each.

The investors asserted that the class should be certified for settlement because it meets all the necessary requirements, such as numerosity, typicality and adequacy, among others.

The putative class action was first filed in March 2022, accusing Vanguard of failing to protect its smaller investors in an attempt to lower its fees.  The Target Retirement Funds were known as “set-it-and-forget-it” funds.  They were structured to rebalance holdings as the target year approached, allowing investors to know their retirement savings would automatically shift to more conservative holdings as they aged.  

But in 2021, Vanguard’s decision to lower the investment minimums for their “Institutional” funds forced a sell-off of as much as 15% of fund assets to cover redemptions.  Because of this sell-off, investors who held the Funds in taxable accounts were hit with an immediate and substantial capital gains tax liability.  

The latest amended complaint was filed in March by a dozen investors from 11 states and added a plaintiff from Massachusetts, which in 2022 reached a $6.25 million settlement with a Vanguard subsidiary after an investigation into the sell-off by state regulators.

In November 2023, a federal judge allowed the suit to move forward, saying investors’ claims that the trustees overseeing the funds had “adopted a ‘we don’t care about the risks’ attitude” were plausible. When Vanguard lowered the minimum investment amount required to access its institutional, lower-fee funds in December 2020, about 8,500 401(k) retirement plans, with 3.2 million participants, left its retail fund to join, according to the opinion.

In order to leave one fund for another, investors first needed to redeem their shares. While target date funds usually keep enough money on hand to satisfy such redemptions, the retail fund had so many redemption requests it was forced to sell an unprecedented amount of assets, which generated capital gains that by law had to be distributed to the shareholders who didn’t leave the retail fund, according to the opinion.  Later, Vanguard merged the two funds and lowered the fees for all investors.  Plaintiffs pointed out in their complaints that if Vanguard had done this originally, the tax liability suffered by retail investors could have been avoided completely.  

The proposed class spans all U.S. investors who held shares of Vanguard’s investor Target Retirement Funds in taxable accounts and received capital gains distributions from those funds in 2021, according to the memo.

Beasley Allen has been involved in the Vanguard litigation since early in the process. It started after we filed a complaint on behalf of a Colorado investor who held several of the funds in a taxable account for years without issue but was hit with a $325,000 capital gain for the 2021 tax year. Beasley Allen lawyers continued to work with other plaintiffs’ lawyers throughout the litigation on key pleadings and discovery matters which helped secure this settlement for all class members.   

The investors are represented by Joshua Baker, Phillip Kim, Jonathan Stern and Jacob A. Goldberg of The Rosen Law Firm PA, Dee Miles  and James Eubank of Beasley Allen Crow Methvin Portis & Miles PC, Jonas B. Jacobson and Simon Franzini of Dovel & Luner LLP, Mark C. Rifkin and Matthew M. Guiney of Wolf Haldenstein Adler Freeman & Herz LLP, Richard M. Golomb and Kevin W. Fay of Golomb Spirt Grunfeld PC and Timothy Brown of The Brown Law Firm PC.

The case is In re: Vanguard Chester Funds Litigation, case number 2:22-cv-00955, in the U.S. District Court for the Eastern District of Pennsylvania.

Securities Litigation Team At Beasley Allen

Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section are currently working on a number of cases involving corporate security issues including shareholder litigation. James Eubank, who leads the Securities Litigation Team, worked for years as a securities regulator with the Alabama Securities Commission. James was involved in a number of important securities fraud investigations while he was with the state.  

You can contact a member of our Securities Litigation Team concerning any securities cases or issues relating to securities. The team includes the following lawyers: James Eubank, who heads the team, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. 

Premises Liability Litigation

Hilton’s $30 Million Damages Award Reduced To $10 Million

A New York federal judge has reduced a jury’s punitive damages award from $30 million to $10 million in the case against Hilton Hotel Worldwide Holdings Inc. The case involved a hotel guest, Kim Curtis, who suffered severe spinal and knee injuries when a defective bathroom door fell on her. Judge Edgardo Ramos ruled that the original award was excessive.

The lawsuit claimed that Hilton knew for a year about the faulty “barn doors” in guest rooms at the Hilton Garden Inn New York/Central Park but failed to fix them. The jury awarded Ms. Curtis $2.1 million in compensatory damages and $30 million in punitive damages.

Judge Ramos upheld the punitive damages, but reduced the amount, citing that Hilton’s conduct, while reckless, was not as severe as in other cases. He emphasized that Ms. Curtis’s injuries were life-altering, and that Hilton showed a reckless disregard for guest safety. Curtis had until November 11 to accept the reduced award or face a new trial on punitive damages.

The plaintiff is represented by Shannon M. Pennock of Pennock Law Firm LLC, Jonathan D. Sneed of Abraham Watkins Nichols Agosto Aziz & Stogner and James C. Tecce and David Cooper of Quinn Emanuel Urquhart & Sullivan LLP.

The case is Curtis v. Hilton Worldwide Holdings Inc. et al., case number 1:18-cv-03068, in the U.S. District Court for the Southern District of New York.

Source: Law360

Property Owners and Occupiers Beware – Your Insurance Company May Be Looking to Hang You Out To Dry

As we have reported previously, Beasley Allen lawyers are investigating and litigating numerous serious negligent security and premises liability cases across the State of Georgia. In the last two years, we have noticed a decisive shift in the way insurance companies are treating their insureds in these cases. Some insurance companies are going out of their way to craft agreements (whether enforceable or not) to avoid paying claims – especially if they are serious claims. The companies are also looking for any reason to deny coverage. 

This is notwithstanding the fact that property owners and occupiers specifically take out policies to cover them for these very incidents. If you own or occupy a property, and you have taken out insurance when the worst-case scenario happens, the following are some important points you need to know.

Expectations

You may have a long-running relationship with a broker or insurance company, but don’t expect that they will have your best interest in mind. We have seen all too often where experienced brokers procure insurance that does not adequately cover liability events for property owners and occupiers. In addition, we have read policies that make it almost impossible for a property owner or occupier to meet terms that would allow them to receive the coverage they pay for. We see, on almost a daily basis, insurance policies that are so full of exclusions it makes one wonder what they were intended to cover in the first place.

Understanding Insurance Coverage

1. Types of Coverage: Apartment complexes typically require various types of insurance, including property and liability insurance. Each type of coverage protects against different risks, from physical damage to the property to liability for injuries occurring on the premises.  Make sure you take out the appropriate coverage and sufficient limits to cover you if a liability event occurs.  It is advisable if you have people coming on your property to take out as much coverage as possible.

1. Policy Details: It’s vital to know the specifics of what each policy covers, and how that coverage occurs. This includes understanding the limits of coverage, deductibles, exclusions, and any additional endorsements, as well as the fact these can change. Most importantly, this includes understanding your reporting requirements when an incident occurs on the property.

Importance of Incident Reporting

1. Timely Reporting: Insurance policies often have strict requirements for reporting incidents that could give rise to a claim. Reporting requirements can vary. Some insurance contracts require reporting within a “reasonable time”, while others state “as soon as practicable” or the strict “immediately”. Some policies even mandate the time that an incident has to be reported down to the number of hours from the incident. Critically, while an incident often requires investigation and reporting to determine whether it will result in a claim, to be on the safe side, you should report the incident to your company as soon as possible, regardless of whether you believe it will ultimately result in a claim or not. Delayed reporting can result in denied claims for failure to comply with the contract’s requirements for reporting incidents, leaving the complex financially vulnerable.

1. Documentation: Proper documentation of any incident is crucial. Conduct an internal investigation and collect as much information as possible. This includes taking photographs, gathering witness statements, and keeping detailed records of the event. That way you can provide a comprehensive report to the Insurer.

1. Communication with Insurers: Regular communication ensures that the insurer is aware of any changes or potential risks, which can be crucial in the event of a claim. Provide any additional information they request promptly and keep them updated on any developments. Don’t simply rely on your broker to communicate to your insurers. We have seen numerous instances where the broker mishandled the claim and failed to put all insurers on notice. Remember, just because one insurer was put on notice may not mean all of them were, which could cause a denial of coverage from those unnotified insurers. 

Best Practice for Incident Reporting

1. Training Staff: Educating management personnel and employees about the importance of incident reporting can significantly impact the availability of coverage. Ensure that all management personnel and employees are trained on how to promptly report incidents. This includes knowing who to report the incident to, what information to gather, how to document the incident, and when to report the incident.

1. Standardized Procedures: Implement standardized procedures for incident reporting. This ensures consistency and thoroughness in how incidents are handled and reported.

1. Resident Awareness: Informing residents about safety protocols and encouraging them to report any incidents can also help in effective reporting to the Insurer.

1. Know All the Players, and Follow Up with Them:  Make absolutely sure that all insurers are independently notified of an event that could potentially end in a claim, particularly if it involves serious injury or death. 

No Insurance Coverage Means No Lawsuit, Right Or Wrong.

This is a commonly held belief, but it is WRONG. It only means that if the property owner or occupier has no coverage, they will have to pay for any liability that results. We are aware of numerous cases that are proceeding forward where the property owner or occupier is either underinsured, uninsured, or has experienced a denial in coverage. In many of those cases, the exposure is significant and the defendants are regretful of how the case turned out. 

The bottom line for any property owner or occupier is that insurers are hunting for ways to deny coverage or exclude it altogether in the fine print. For property owners and occupiers, understanding and managing insurance policies is not just about compliance, but it’s also about safeguarding the property and guests on the property. By knowing the details of their insurance coverage, promptly reporting incidents, and implementing an effective incident reporting procedure, property owners and occupiers can ensure they are well-protected against any potential liabilities. 

Class Action Litigation

Class Action Lawsuit Filed Against Honda For Defective Engine Block

Beasley Allen lawyers Dee Miles, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann, along with our co-counsel from Blood Hurst & O’Reardon, have filed a Class Action lawsuit representing California residents who own or lease a 2018-present Honda Accord, Civic, or CR-V (the Class Vehicles) equipped with the 1.5-liter turbo direct injection engine. The class defendants are American Honda Motor Company, Inc. and Honda Motor Company, Ltd. (Honda).

Specifically, the lawsuit alleges that Honda manufactured, promoted, and sold the Class Vehicles, which suffer from a defective engine block where coolant leaches through the cylinder head, causing degradation of the engine’s gasket seals, eventually resulting in the coolant leaking into the engine’s cylinders (the Sealant Defect or Defect).

The Sealant Defect results in scores of issues, including reduced engine efficiency, stalling while driving, excess engine wear, increased upkeep and repair costs, coolant leaks, and, in the worst cases, catastrophic engine failure. The defect often occurs at low mileage, within the warranty period, and is inconspicuous until engine damage levels are critical. The defect renders class vehicles inoperable and unusable. 

The lawsuit alleges that, despite knowledge of the defect, Honda kept it from the public. The automotive manufacturer has not recalled the Class Vehicles to repair the Sealant Defect, nor has Honda extended the warranty of Class Vehicles, offered customers a suitable repair or replacement or reimbursed consumers who incurred out-of-pocket expenses to repair the defect.

We will keep our readers informed on the progress of this important litigation. If you have questions or need help with a case, contact Michelle Fulmer, Director of our Consumer Fraud & Commercial Litigation Section.

ARC MDL Update: NHTSA Issues A Supplemental Report

As we reported previously, lawyers in Beasley Allen’s Consumer Fraud & Commercial Litigation Section, are pursuing an important class action multidistrict litigation case against ARC, a manufacturer of defective airbag inflators, the suppliers of the airbag modules, and eight automakers, including Ford, GM and VW, whose vehicles are equipped with airbags with defective ARC inflators.  Demet Basar, a lawyer in the Section, is currently serving as one of the co-lead counsel in the case. 

On August 5, 2024, the National Highway Traffic Safety Administration (NHTSA) issued a “Supplemental Initial Decision That Certain Frontal Driver and Passenger Air Bag Inflators Manufactured by ARC Automotive Inc. and Delphi Automotive Systems LLC, and Vehicles in Which Those Inflators Were Installed, Contain a Safety Defect.” 

In its supplemental initial decision (Supplemental Decision), NHTSA confirmed the findings in its September 5, 2023, initial decision (Initial Decision) that the approximately 51 million hybrid toroidal driver and passenger airbag inflators made by ARC and Delphi between 2000-2018 contain a defect related to motor vehicle safety, and that they and the vehicles in which they are installed should be recalled. 

Delphi stopped manufacturing the defective inflators in 2004. Delphi was acquired by Autoliv ASP, Inc., which claims it did not acquire legal liability for the inflators.

In its Initial Decision, NHTSA described the ARC inflator defect as the presence of loose weld “flash” inside the defective inflators, which can become dislodged during a crash and block the ventilation port. NHTSA found that “ARC’s inflator design is such that during a triggered deployment, the stored gas, excited by the propellant, has a single path through the exit orifice to exit the inflator and fill the air bag cushion.” 

If a piece of loose weld flash blocks the exit port during deployment, the large volume of gas trying to travel from the inflator to the air bag cushion over-pressurizes the metal inflator, which causes a rupture that can result in “metal fragments being forcefully propelled into the passenger compartment.” 

As NHTSA noted in its Supplemental Decision, “[b]y forcefully propelling metal shrapnel into the occupant compartment, often aimed directly at an occupants’ face, the rupturing inflator creates a high risk of severe injury or death, potentially converting a minor crash into a life-threatening event.”

Interestingly, in the Supplemental Decision, NHTSA states that the inflator ruptures are not just caused by port blockage from excessive weld flash as reported in its Initial Decision, but are also caused by insufficient welding bonds during the friction welding process used to manufacture the ARC inflators. NHTSA states that “[d]uring its investigation, NHTSA obtained evidence of issues in the friction welding process of the subject inflators that resulted in either overpressurization or weld failure when the inflators were commanded to deploy.” It noted that the seven known field ruptures in the U.S. and 23 lot acceptance testing ruptures occurred due to either of these two causes. 

The seven known ruptures in the U.S. resulted in one fatality and injured seven people.  There are also four known ruptures of ARC inflators that occurred outside the U.S., which resulted in one driver fatality and injured two people. These ruptures led to lot-based recalls of a small fraction of affected vehicles by various automakers and a bigger recall by GM that was limited to certain model years and models of vehicles. 

In its Supplemental Decision, NHTSA rejected the automakers’ contention that lot-based or limited scope recalls are sufficient, calling them “reactionary” and “narrowly focused,” and noted that its investigation revealed “ruptures have occurred in inflators manufactured during different time periods, plants, and manufacturing lines, thus warranting a broader recall.”  

Further, NHTSA once again squarely rejected ARC’s argument that seven field ruptures are “insufficient” to determine that a defect exists in the inflators, writing that “while inflator ruptures will continue to be rare, the severity of the rupture renders the risk unacceptable under the Safety Act.” 

The MDL, which is pending before U.S. District Judge Eleanor L. Ross in the United District Court for the Northern District of Atlanta, is still in the pleadings stage. All defendants moved to dismiss, plaintiffs vigorously opposed the motions, all of which were fully submitted on February 19, 2024. Plaintiffs have moved the court to permit oral argument on the motions. 

The multidistrict litigation is In re: ARC Airbag Inflators Products Liability Litigation, Case No. 1:22-md-03051-ELR (N.D. Ga.). Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, and Dylan Martin of the firm’s Consumer Fraud & Commercial Litigation Section are handling this litigation for the firm. 

As referenced earlier, Beasley Allen lawyer Demet Basar serves on the Leadership Committee, together with lawyers from Lieff Cabraser Heimann & Bernstein, LLP, Baron & Budd, P.C., Motley Rice LLC, Carella, Byrne, Cecchi, Brody & Angello, P.C., Cotchett, Pitre & MacCarthy, LLP, and Levin, Papantonio, Rafferty, Proctor, Buchanan, O’Brien, Barr & Mougey, P.A.

We look forward to providing continuing updates on this important litigation as well as on NHTSA’s continuing investigation.

Honda Idle Stop Class Action Lawsuit Preparing For May 2025 Trial

Beasley Allen and Dicello Levitt represent the plaintiffs and Class members in a certified class action lawsuit against American Honda Motor Co., Inc. (Honda). This case is filed in the Central District of California. Plaintiffs allege that Honda’s model year 2015-2021 Pilot, Ridgeline, and Passport vehicles, and Acura TLX and MDX vehicles, equipped with a 3.5L NP0 engine, nine-speed automatic transmission, and an A52 starter motor assembly (the Class Vehicles), contain a defect in their Automatic Idle Stop (AIS) technology that places them at an unreasonable risk of shutting down, but not restarting as the drivers expect. Honda referred to the defect internally as “AIS no-restart”.

In 2015, Honda introduced the AIS feature to increase its products’ fuel economy and improve the brand’s image. The AIS feature is designed to momentarily shut off the gasoline engine during periods of vehicle rest, such as while waiting at a stop light. Upon release of the brake pedal, the system should restart the engine and provide mobility. 

This feature invites a problem, Honda’s starter motors suffer accelerated wear and torque loss from the frequent engagement. For instance, vehicles without the AIS technology will exercise their starters only one time per trip, whereas a Honda vehicle with AIS might exercise its starter a dozen times in a single trip. 

Despite discovering the defect in pre-release testing, Honda sold the Class Vehicles and never issued a safety recall to repair them. To this day, Honda refuses to provide Class Members with an effective uniform repair – which is an upgraded and adequately robust starter motor that Honda designed years ago to correct the weakness. 

Instead, Honda put class members through a software update campaign that masked the defect but did not cure it. After that, class members who sought repair for no-restart in software-updated vehicles were not given the upgraded replacement starter unless their vehicle demonstrated no-restart behavior during a Honda technician inspection. 

Honda continues this practice today and most Class Members are turned away because of Honda’s intentional and unreasonably high threshold for warranty repair.

On October 3, 2024, U.S. District Court Judge Mark C. Scarsi, finding the requirements of Fed. R. Civ. P. 23 satisfied, granted class certification to current and former drivers of Class Vehicles in 13 states, including Alabama, California, Connecticut, Indiana, Louisiana, Maryland, New Hampshire, New York, Pennsylvania, Rhode Island, Texas, Virginia, and Washington.

On September 9, 2024, Honda filed its motion for summary judgment as a matter of law and a motion to exclude certain opinions of plaintiffs’ technical expert. Clay Barnett and Mitch Williams defended the motions before Judge Scarsi on November 18th at the First Street Courthouse in Los Angeles, California. Pending the outcome of Honda’s motions, the final pre-trial conference is scheduled for May 5, 2025, and a jury trial on May 19,2025. 

The plaintiffs are represented by Clay Barnett, Demet Basar, Rebecca Gilliland, Mitch Williams, Dylan Martin, and Trent Mann of Beasley Allen, along with Andrew T. Trailor, P.A. and lawyers with Dicello Levitt, LLP. 

The Honda Idle Stop case is In re Honda Idle Stop Litigation, and is filed in the United States District Court for the Central District of California. 

Walgreens Agrees To $100 Million Settlement Over Generic Drug Pricing

Walgreens has agreed to pay $100 million to settle a proposed class action lawsuit accusing it of overcharging customers for generic drugs over the past decade. The lawsuit claimed that Walgreens required insured customers to pay more than members of its Prescription Savings Club. Those members could purchase over 500 generic drugs at discounted rates without using insurance.

In a filing in federal court in Chicago, lawyers for the plaintiffs described the settlement as an “excellent result” for the class. Walgreens, however, denied any wrongdoing, stating through a spokesperson:

We admit no liability and believe these claims never had any merit. This resolution allows us to focus on our turnaround strategy that will benefit our patients, customers, team members, and shareholders.

The lawsuit alleged that Walgreens reported inflated prices to insurers for reimbursement while charging lower “usual and customary” prices to its savings club members. Insured customers, who believed they would not pay more than out-of-pocket customers, ended up paying higher copays and deductibles.

The lawsuit sought damages for insured customers nationwide since 2007, when the Prescription Savings Club was launched. As part of the settlement, Walgreens agreed to end the savings club, which it did in August.

The plaintiffs are represented by Paul Geller of Robbins Geller Rudman & Dowd, Joseph Guglielmo of Scott and Scott and others

The case is Russo et al v. Walgreen Co., U.S. District Court for the Eastern District of Illinois, No. 1:17-cv-02246.

Source: Reuters

Nissan Automatic Brake Classes Remanded Back to the Trial Court By 6th Circuit

A Sixth Circuit panel vacated class certification for Nissan drivers who claimed their cars’ automatic braking system activated unnecessarily. The panel found that the trial judge did not adequately consider software upgrades that may have fixed the issue for some vehicles.

Originally, Middle District of Tennessee Federal Judge William L. Campbell had certified 10 state classes of drivers, but while the appellate panel noted that the judge overlooked potential differences among class members and their state law claims, they did not foreclose Judge Campbell’s concept of a class certification. Nissan had provided evidence of two software upgrades that mitigated the braking issue for some vehicles, which the appeals court stated the district court should have considered before class certification. 

The panel emphasized that the district court must examine the impact of these upgrades on remand. If a jury could find the defect present in vehicles without the updates but not in those with the updates, the defect question is not common across the entire class and may be cause for modifying the class definition.

“We believed the efficacy of the upgrades should be addressed in the merits phase of that trial, not at class certification,” the court opined. However, the panel stated that understanding the defect’s various manifestations is crucial for assessing common evidence.

The panel also found that the district court did not perform a detailed analysis of the state claims, which vary in elements like consumer fraud and warranty. Additionally, the court must now evaluate the reliability of the expert testimony submitted by the class. That’s on the commonality issue.

The Sixth Circuit required a Daubert analysis of expert testimony relevant to class certification. The case involves drivers of 2017-2021 Nissan Rogues, Altimas, and Kicks from 10 states. It was alleged that the braking system’s radar detects nonexistent obstacles, causing unnecessary activation.

The class is represented by our firm, along with Stranch Jennings & Garvey PLLC, Bailey & Glasser LLP, DiCello Levitt LLP,  and Smith Krivoshey PC. The class will proceed in the lower court and we believe the class will be reinstated in due course. 

The case is In Re: Nissan North America, Inc. Litigation, case number 23-5950, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360

MASS TORTS LITIGATION

Kratom Litigation Update

Adverse events and deaths associated with kratom use have been the subject of emerging litigation against various kratom manufacturers and sellers. Plaintiffs filed a class action lawsuit on October 4 against kratom manufacturers in the Central District of California. On October 7 another class action lawsuit against a different kratom manufacturer was filed in the Northern District of California alleging that manufacturers failed to disclose that their products are as addictive as opioids, if not more. 

Three other class action lawsuits followed recently also alleging that the dangers of kratom are being concealed by manufacturers and sellers. On October 28, another class action lawsuit involving kratom was filed in the Southern District of California. On November 4, two other kratom class actions were filed – one in the Southern District of New York, and another in the Central District of California.

Kratom, sometimes referred to as “gas station heroin,” is an herb with opioid- and stimulant-like effects. The FDA has warned consumers about dangers associated with kratom and indicated in July that it has “serious safety concerns with the use of kratom in dietary supplements and conventional foods.” As kratom bans are becoming more widespread throughout U.S. cities, kratom manufacturers are attempting to take action to preserve their businesses. 

Beasley Allen lawyers continue to handle the Kratom litigation. They advocate for individuals who have suffered severe, life-threatening injuries from kratom.

Key Discovery Deadlines and Next Steps Issued in Hair Relaxer MDL

Individuals involved in the multidistrict litigation (MDL) over hair relaxer products are seeing movement as discovery deadlines were set by the MDL Court.  On October 10, MDL Judge Mary Rowland held a status conference to outline important next steps.  Here’s what you need to know about the current status of these cases and what to expect moving forward.

Key Discovery Deadlines

Written Discovery Deadline: February 28, 2025

Written discovery, which includes the exchange of documents, interrogatories, and requests for admission, is set to close at the end of February 2024. 

Oral Fact Discovery Deadline: September 30, 2025

Following written discovery, the court has scheduled a longer period for oral fact discovery, set to close on September 30, 2025. Once written discovery closes in February 2024, individuals involved can expect to see an uptick in depositions and oral discovery activity

Beasley Allen lawyers are actively investigating cases where clients were diagnosed with uterine cancer, endometrial cancer, and ovarian cancer from hair relaxer use.

New Study Highlights Concerns Over GLP-1s and Weight Loss-Induced Muscle Mass Loss

All Americans are seeing daily a tremendous amount of advertising on television promoting weight loss products. There is also a great deal of litigation ongoing against several companies in the ads. We will take a look at what’s going on in the litigation. 

Muscle loss can be an important factor in many of the over 1,000 plaintiffs’ cases now pending in the GLP1/Ozempic MDL in the Eastern District of Pennsylvania.  

A new study titled “Weight Loss–Induced Muscle Mass Loss” was recently published in the Journal of the American Medical Association (JAMA), shedding light on the often-overlooked consequences of weight loss, particularly in older adults. The study raises critical questions about the impact of glucagon-like peptide-1 (GLP-1) agonists, commonly used for weight management, on skeletal muscle mass.

The article emphasizes that while weight loss can be beneficial, it may also lead to significant muscle mass loss, which is poorly understood and inadequately measured. The authors argue that the assumption of a constant proportion of skeletal muscle mass relative to fat-free mass is misleading, particularly in older populations where muscle mass naturally declines with age.

Dr. Cummings and Dr. Evans concluded that “[t]here is an urgent need for studies that accurately measure muscle mass, strength, and mobility during GLP-1 agonist–induced weight loss and regain of weight after they are stopped, especially in older people.”

This publication is an important step in understanding the broader implications of muscle preservation when using GLP-1s for obesity management.  

Infant Formula Litigation Update

Beasley Allen lawyers continue to investigate and handle cases around the country where cow’s milk-based formulas and milk fortifiers have caused Necrotizing Enterocolitis in premature infants. Necrotizing enterocolitis (NEC) is a serious and often fatal condition that results in the degradation and subsequent perforation of the bowels.  

Studies clearly show that premature, underweight infants are at a much higher risk of this often-fatal condition when given cow’s milk-based formulas like Enfamil and Similac. 

Despite the overwhelming science, and the fact that virtually every pediatric medical organization worldwide recognizes the heightened risk of NEC from these formulas, these manufacturers offer no warning whatsoever on their products about the risk.  

In earlier issues of the Report, we shared with you about juries in Missouri and Illinois that found formula manufacturers liable for the development of NEC in two premature infants. 

Recently, another Missouri jury found in favor of Mead Johnson and Abbott Laboratories, two formula manufacturers, in the case of a seven-year-old boy who still suffers serious effects from the NEC he developed after consuming the defendant’s products as an infant. This recent case differed from prior jury cases in that both Abbott and Mead Johnson were included as defendants and that the defendants’ products were not the infant’s primary source of feeding while in the NICU.  

Despite the adverse result in the Missouri case, lawyers continue to work to hold these formula manufacturers accountable for the harm their products have caused thousands of infants. 

TOXIC TORT LITIGATION

Alabama Will Receive $19.8 Million In Kroger Settlement

Alabama Attorney General Steve Marshall, along with 30 other state attorneys general, recently announced a $1.37 Billion settlement with Kroger for its role in the opioid crisis. This settlement involves 33 states, the District of Columbia, and numerous counties, municipalities, and Native American tribes. Ohio, California, and Texas will receive the largest shares of the funds. Ohio will get 11.2%, California 10.1%, and Texas 6.4%. Alabama will receive approximately $19.8 million for opioid abatement. Payments will start early next year. 

Attorney General Marshall emphasized Alabama’s commitment to addressing the opioid epidemic and ensuring accountability. The settlement addresses claims that Kroger ignored warning signs of suspicious opioid prescriptions. As part of the agreement, Kroger will enhance monitoring and reporting of opioid prescription activities in its pharmacies.

Under the agreement, Kroger’s pharmacies will monitor and report suspicious opioid prescription activities. Kroger operates eleven stores in Alabama. Kroger initially announced the settlement in September 2023. It has now been finalized, resolving nearly all opioid-related claims against the company.

Previously, Alabama secured over $730 million in settlements with drug manufacturers and other companies involved in the Opioid crisis. Attorney General Marshall has urged local leaders to use the funds for long-term strategies to combat addiction and warned against misuse of the settlement money.

Sources: AL.com and Law360

Baltimore Awarded Over $266 Million In Opioid Case

Baltimore has been awarded over $266 million in damages from drug distributors McKesson and Cencora, found responsible for contributing to the city’s opioid crisis. The jury determined McKesson was 70% responsible and Cencora 27%, with the remaining 3% attributed to other actors. This case, led by Mayor Brandon M. Scott and the Baltimore City Council, argued that the companies created a public nuisance by oversupplying opioid pills.

Further proceedings could result in additional funds for the city to address the addiction crisis. Mayor Scott emphasized that the damages will be used to save lives and build a healthier Baltimore. The city has already secured over $668 million in settlements and damages from various companies involved in the opioid epidemic.

Both McKesson and Cencora are considering appeals, stating that they disagree with the jury’s verdict. The litigation continues with abatement proceedings scheduled for December, potentially bringing more financial support for Baltimore’s recovery efforts.

Baltimore was represented by City Solicitor Ebony Thompson and Bill Carmody, Sy Polky, Michael Kelso, Seth Ard, Katherine Drews, Cory Buland, Geng Chen, Max Straus, Adam Carlis, Rocco Magni, Tom Boardman, Jeff Melsheimer and Krisina Zuniga of Susman Godfrey LLP.

The case is Mayor & City Council of Baltimore v. AmerisourceBergen Drug Corporation and McKesson Corporation, case number 24-C-18-000515, in the Circuit Court for Baltimore City. 

Source: Law360

PFAS/ AFFF Litigation Update

As stated in our last issue, the Aqueous Film–Forming Foam (AFFF) litigation is pending before Judge Richard Gergel in the United States District Court of South Carolina. The current “presumptive injuries” in the litigation are kidney cancer, testicular cancer, hypothyroidism/thyroid disease, ulcerative colitis, liver cancer, thyroid cancer, and not pregnancy–induced hypertension or high cholesterol. 

On October 15, 2024, the court issued Case Management Order (CMO) No. 31 implementing the form, procedure, and schedule for service of the Plaintiff Profile Form (PPF). The PPF is in addition to the Plaintiff Fact Sheet (discussed in CMO No. 5). Per CMO No. 31, leadership is to agree on a vendor for the electronic submission of the PPFs and all law firms representing plaintiffs in the MDL must register with such vendor within 30 days of the entry of an order approving the same. 

Significantly, the PPF requires the plaintiff to identify at least one location of AFFF exposure through drinking water with approximate dates of exposure, be accompanied by medical records, and contain a signed and dated verification page from the plaintiff. The CMO also mentions that there is potential for a revised Plaintiff Fact Sheet and/or Defendant Profile Form in the future.

PFAS litigation is also underway with the U.S. Court of Appeals for the D.C. Circuit where water utilities and chemical companies have challenged a recent rule from the Environmental Protection Agency (EPA) regarding limits of the substances in drinking water. The EPA’s rule was finalized in April and limits the amount of certain PFAS chemicals found in drinking water. The challenges focus on the EPA’s science, cost analysis, and rulemaking process. 

Latest Developments In The Paraquat Litigation: A Steady Progression Amidst Challenges

As the Paraquat litigation landscape continues to evolve, recent developments indicate a persistent, albeit slow, progression. The total number of Multi-District Litigation (MDL) filings saw a decline for the second month in a row, dropping to 5,821 as of November 2024. This fluctuation in case filings reflects the challenges for plaintiff with weak cases.

One of the most significant updates in the ongoing litigation came in late October when MDL Judge Nancy Rosentengel selected two new bellwether cases. This decision was necessitated by the voluntary dismissal of claims by previous plaintiffs. 

In conjunction with these developments, Case Management Order (CMO) issued in February 2024, known as CMO No. 21, mandated that plaintiffs issue third-party subpoenas to gather documentary evidence supporting their allegations of Paraquat exposure. This requirement underscores the court’s intent to ensure that allegations of Paraquat exposures and/or use are properly supported. 

CMO21A, filed on October 28, 2024, provides much needed clarification regarding the obligations originally set out in February, This recent order comes after the defendants’ request to dismiss 586 plaintiffs for non-compliance with the original February order. This new order grants non-compliant plaintiffs an additional 21 days to meet the evidence requirements, providing a temporary reprieve from potential case dismissal. 

Importantly, CMO21A also establishes that any future plaintiffs must issue subpoenas within 60 days of filing a complaint, aiming to streamline the process and deter frivolous filings lacking adequate evidentiary support.

The overarching goal of these recent orders is to create a more efficient litigation process while ensuring that claims are substantiated with the necessary evidence which ultimately encourages a more focused examination of valid claims. As the Paraquat litigation continues to unfold, there is no doubt that stakeholders will need to remain vigilant and be prepared for the complexities that lie ahead.

An Update On The 3M Settlement

We have previously written on the settlement by 3M in the faulty combat earplugs litigation. A Florida federal judge has approved holding back 9% (up to $540 million) from 3M’s $6.01 billion settlement for fees and costs in the multidistrict litigation. This decision acknowledges the significant work of 68 plaintiffs’ firms in the case that led up to the settlement.

U.S. District Judge M. Casey Rodgers noted no objections to the special master’s report recommending the 9% hold-back. This ruling is part of ongoing litigation against 3M and its subsidiary Aearo Technologies, alleging their earplugs caused hearing loss and tinnitus in military members.

After 16 bellwether trials, mostly resulting in multimillion-dollar verdicts against 3M, the company agreed in August 2023 to a $6.01 billion settlement. This settlement aims to resolve over 250,000 claims in the MDL and coordinated suits in Minnesota state court.

The court had established a 9% hold-back in February 2021, which was reaffirmed in September 2023. In August, lead counsel requested the court to officially hold back 9% of the settlement’s common fund for fees, amounting to roughly $540 million.

The motion highlighted the extensive efforts of plaintiffs’ lawyers, who spent over 364,000 hours on the case, resulting in more than $220 million in verdicts. By next spring, 93% of claimants are expected to have received their base awards, making it timely to reserve funds for attorneys’ fees.

In October, the special master recommended granting the hold-back request, recognizing the substantial work by plaintiffs’ counsel and the reasonableness of the fee request. The court will review additional information on each firm’s fee allocation and can adjust the amount if necessary.

The plaintiffs are represented by lead counsel Bryan F. Aylstock of Aylstock Witkin Kreis & Overholtz PLLC, and co-lead counsel Shelley Hutson of Clark Love & Hutson GP and Christopher A. Seeger of Seeger Weiss LLP. 

The case is In Re: 3M Combat Arms Earplug Products, case number 3:19-md-2885, in the U.S. District Court for the Northern District of Florida. 

Source: Law360

CONSUMER CORNER

A Look At The Chevron Doctrine

We will take a look at the effect of the action in June when the U.S. Supreme Court overturned the Chevron deference. You will recall the Chevron deference was a 40-year-old doctrine that required courts to defer to federal agencies’ interpretations of laws when Congress was ambiguous or silent on an issue.

Consumer Reports, a nonprofit consumer organization, wrote that the change was expected to make it more difficult for federal agencies to protect the public. That’s because companies may now be more likely to challenge regulations not explicitly detailed by Congress. This could jeopardize protections in areas such as food and water safety, product safety, financial fairness, sustainability, and healthcare.

Consumer Reports hosted a webinar to discuss the ruling and its potential impacts. The discussion featured David Doniger from the Natural Resources Defense Council and Brian Vines, CR’s Deputy Editor, with 200 participants joining.

The overturning of the Chevron doctrine underscores the importance of the need to protect consumers. Consumer Reports remains committed to advocating for consumer rights. That advocacy will be extremely important and badly needed in the next year. 

Source: Consumer Reports

THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED BY THE FIRM

The Structure Of Beasley Allen Is Designed To Work For Clients

Beasley Allen operates in five separate sections: four litigation sections and one administrative section. The separate litigation sections concept has worked very well. It has definitely benefited Beasley Allen clients and has also allowed our lawyers to bring about national changes in product and workplace safety. 

Over the past 45 years, Beasley Allen lawyers have handled all sorts of civil litigation for plaintiffs. 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 proficiency within each 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. 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 medical devices, medication and other practice areas. The section currently handles cases involving Acetaminophen, Hair Relaxers, Kratom, NEC Baby Formula, Ozempic, 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, Dacthal, 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 of the Section. The section currently handles cases involving Business Litigation, Class Action, Consumer Protection, Securities cases, Employment Law and Whistleblower cases.

The Personal Injury & Products Liability 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 in 1998, Beasley Allen’s record speaks for itself. The structure has contributed greatly to our firm’s success. Section Heads and Directors have been able to concentrate on the volume of cases in their section. They quickly recognize when additional resources are needed. Lawyers in each Section have been able to focus on cases within their specialty. This has allowed them to achieve favorable 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 (BeasleyAllen.com/Recent-Cases/).

• Acetaminophen
• Auto Accidents
• Auto Products
• Aviation Accidents
• Camp Lejeune 
• Defective Tires
• Depo-Provera
• Firefighting Foam
• Hair Relaxers
• Kratom
• NEC Baby Formula
• Negligent Security 
• On-the-Job-Injuries
• Ozempic
• Paraquat
• Social Media 
• Talcum Powder
• Truck Accidents 
• Video Game Addiction

We will give a brief explanation below for each of the listed categories:

• 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. 
• Auto Products
  Our team will meticulously investigate your accident, examine vehicles for defects or product liability issues, identify responsible parties, file lawsuits, manage legal documents, and strive to maximize your compensation.
• 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. 
• Depo-Provera
  We are investigating cases for individuals who were given Depo-Provera shots for at least 1 year and developed cerebral or spinal meningiomas.
• 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.
• 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.
• Video Game Addiction 
  We are investigating cases of video game addiction caused by companies intentionally designing games to be highly addictive, especially for minors, using psychological tactics.

Resources to Help Your Practice

Beasley Allen is a civil litigation law firm solely handling cases for plaintiffs.  From the firm’s beginning in 1979, Beasley Allen has only represented victims of wrongdoing, and that will never change. 

The firm, by choice, only represents individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing of another. Our lawyers do not handle any defense work, neither civil nor criminal. 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.

We are honored and humbled that our firm has been consistently recognized as one of the leading law firms in the country representing only claimants involved in civil litigation, much of it being complex and complicated. 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

Practice Pointers – Voir Dire

Wyatt Montgomery, a lawyer in our Mobile office, writes this month on voir dire. Obviously, vior dire is a critically important part of a trial. All too many lawyers fail to take advantage of the opportunity to get a case off to a great start during voir dire. Let’s see what Wyatt has to say on the subject. 

Effective jury selection is one of the most valuable tools available to a trial lawyer. It is the only time during the trial when we can have a back-and-forth conversation with potential jurors. This is our opportunity to uncover any biases they may have towards us, our case, and our clients. Identifying these biases should be our top priority because they are extremely difficult to overcome.

One way to encourage potential jurors to discuss their biases is by normalizing the concept of bias. We’re all human, and we all have biases whether we want to or not. You want your potential jurors to feel comfortable admitting they have thoughts or opinions that could affect their ability to be fair and impartial in this case and there is nothing wrong with that. 

Encourage potentially biased jurors to open up by explaining that if bias were not a part of human nature, and if bias were not meant to be eliminated from the trial, there would be no need for the jury selection process. The court would simply summon 12 people to the courthouse and begin the trial. By being honest with the lawyers and the court about their negative opinions, they are fulfilling a crucial part of our justice system.

When someone on the panel expresses their bias, whether it is towards attorneys, personal injury cases, or lawsuits in general, commend their honesty. Thank them for being truthful with you, the other lawyers, and the court. Honesty is essential for the process to work. Then, ask the panel if anyone else shares similar opinions. Make the panel feel comfortable sharing their views. No one will be offended by their honesty. 

Do not worry about “poisoning the well” with the opinions of biased jurors. It is unlikely that potential jurors who do not harbor any bias against you, your client, or your case will develop a bias based on what someone else on the panel says. Identifying biased jurors to strike them from your jury is worth the risk of allowing them to express negative opinions during voir dire.  

I believe Wyatt’s comments will be helpful to all trial lawyers. I learned early in my career that properly done voir dire is critically important to success in a case. 

Beasley Allen Lawyer And Employee Spotlights

Makinsey Acosta

Makinsey Acosta is a Legal Secretary in the firm’s Toxic Torts section. She joined the firm just over 3-1/2 years ago and has certainly made positive contributions to the Roundup and Camp Lejeune litigations, providing essential support to her team and the lawyers working on the litigation. We are grateful to have Makinsey with us!

Makinsey shares that she comes from a large family, being the oldest of nine siblings. Her parents are involved in adoption and foster care, creating what Makinsey describes as a lively and bustling household. Her father, a lawyer, inspired her to pursue a career in the legal field. Makinsey also has a 26-pound cat named Ram, who is her best friend. In her free time, Makinsey enjoys going to the gym, playing the piano, and occasionally horseback riding. She also loves spending time with her friends and family, making the most of her leisure time.

Makinsey says her favorite aspect of working at Beasley Allen relates to her coworkers. She shares that she has formed strong friendships, making the work environment enjoyable and the tasks more meaningful. She also finds great satisfaction in helping clients, whether in small or significant ways, and takes pride in making a difference for those who have suffered.

Connor Chase

Connor Chase started his journey at Beasley Allen as a law clerk before being promoted to attorney in 2024. He focuses on cases involving toxic exposure, a field of litigation that is growing in scope and importance.

Connor is passionate about environmental law and policy. He’s great at listening to clients, making sure their voices are heard and their needs are met. Before attending law school, Connor worked as a project manager in the municipal water industry. This background gives him a unique insight into contamination issues, allowing him to truly understand and empathize with clients facing these challenges. Connor’s experience also provides him with a different perspective when handling cases, enhancing his ability to advocate effectively for his clients.

One of the most notable cases Connor worked on as a law clerk was in the Camp Lejeune litigation. This was his first case, and hearing clients share their stories strengthened his resolve to advocate for those in need. 

Connor says he loves spending time with family, friends, and his golden retrievers. In his free time, he enjoys cooking dishes from around the world and going outdoors whenever he can, whether it’s running, hunting, or fishing. Additionally, he never misses a chance to watch a Mississippi State game!

Connor earned his Juris Doctorate from Samford University Cumberland School of Law in 2024 after graduating from Mississippi State University in 2018. 

During his time in law school, Connor was actively involved in the negotiation and arbitration teams. In his final year, he served as the Alternative Dispute Resolution Board president. Additionally, Connor took on the role of an academic support advisor, mentoring first-year students and helping them establish a strong foundation for their law school journey.

Debbie Cunningham

Debbie Cunningham is a legal secretary to Gibson Vance, one of the most active lawyers at Beasley Allen. Gibson is the chief public relations lawyer at Beasley Allen. Debbie also works in the accounting department. In her role as a legal secretary, Debbie handles a variety of administrative tasks and helps maintain referral relationships with lawyers across the country. In accounting, she drafts distribution schedules, deposits checks, and manages unclaimed property and the firm’s personal property taxes.  Debbie joined the firm in 2008 and has been instrumental in everything she does.  We are thankful to have Debbie, such a hard-working and devoted employee, with us!

Debbie has been married to her husband, Jeffery, for over 38 years. They have two grown children, one residing in Atlanta and the other in Montgomery. In her spare time, Debbie and Jeffery enjoy taking short trips, particularly to North Georgia, a region they find beautiful and relaxing.

Debbie has multiple aspects of her job at Beasley Allen that she finds are her favorite. Firstly, she says that she cherishes the people she works with, describing her colleagues as thoughtful, kind, and always willing to help. She adds, “They form a supportive team that collaborates effectively.” Secondly, she enjoys her work in the accounting department, where she has learned new skills for which she is very grateful.

All of Debbie’s roles in the firm are very important. But Debbie says working with Gibson is a “real treat” and she finds it stimulating and instructive. We are blessed to have Debbie at Beasley Allen.

Leighton Johnson

Leighton Johnson also started her journey at Beasley Allen as a law clerk before being promoted to attorney in 2024. She focuses on complex litigation involving pharmaceuticals and dietary supplements.

Passionate about serving others, Leighton understands the importance of the behind-the-scenes work required to achieve successful client outcomes. Excelling in legal research, Leighton believes that reliable research is crucial for building strong cases and effective strategies. 

As a law clerk, Leighton worked on various litigations, with the Kratom cases being the most impactful. Her experience motivates her to be the best lawyer she can be so that she can help those who need it most. She also contributed to Beasley Allen’s involvement in the Ozempic, Wegovy, and Mounjaro litigation. During her second summer as a law clerk, Leighton conducted initial research on the injuries associated with these GLP-1 drugs and wrote a potential litigation memo. She says it was rewarding to see Beasley Allen pursue this litigation.

Leighton, a native of Vestavia Hills, Alabama, cherishes spending time with her family and friends. She has a passion for antiquing- whether in Birmingham or while traveling, she loves visiting local antique stores, discovering unique pieces, and restoring them in her home workshop, where she spends many weekends on projects. Additionally, Leighton is an avid cook who enjoys trying new recipes shared by friends. Leighton is also very active in her community. She volunteers at high school events and attends city council meetings, always eager to stay informed and find ways to serve her community.

Leighton earned her Juris Doctorate from Samford University Cumberland School of Law in 2024 after graduating from the University of Alabama in 2020. 

During her time at law school, Leighton earned the prestigious Cali Excellence for the Future Award in three challenging courses: Veterans Law, Employment Benefits and ERISA, and American Law, Procedure and Practice. Her dedication and hard work paid off again in 2024 when she received Cumberland School of Law’s Balch & Bingham / Harold A. Bowron, Jr. Labor and Employment Law Award, recognizing her outstanding achievements in Employment Law. 

While in law school, Leighton also served on C-VETS (Cumberland Veterans Legal Assistance Clinic), using her legal skills to support those who have bravely served our country. Reflecting on this, she describes her experience helping veterans as a great honor and something she intends to continue as a licensed attorney. 

Donielle Smith

Donielle Smith is a Staff Assistant in the firm’s Mass Torts Section, where she has worked for over two years. She plays a key role in the section by assisting clients who have personal injury claims at Beasley Allen. She works to maintain communication with clients, gathering additional information from them when needed, and checking on their well-being, making client support her top priority. Donielle also supports lawyers and paralegals by assisting with client files for court submissions and preparing for litigation proceedings.

Originally from Greensboro, NC, Donielle moved to Alabama nearly eleven years ago to care for her grandmother. She is the youngest of three siblings, and her father hails from Dadeville, Alabama. In her spare time, Donielle enjoys music, shopping, and fashion. She shares that she recently started attending Auburn games, which she finds very enjoyable. Additionally, Donielle is a senior at Auburn University at Montgomery, majoring in Criminal Justice with a concentration in Legal Studies. She says that furthering her education has been a significant source of enjoyment and personal growth.

Donielle values the nurturing atmosphere at Beasley Allen, where she says founder Jere Beasley instills principles of integrity, humility, and transparency. She values the morning devotion sessions, which she says help her start her day positively.  She also enjoys the supportive team dynamics within her section, where collaboration and mutual assistance are key. We are fortunate to have Donielle, a compassionate and hard-working employee, with us!

FAVORITE BIBLE VERSES

Several of our staff employees who are being featured in this issue share their favorite Bible verses with us.

Makinsey Acosta

Makinsey offers one of her favorite verses. She says it reminds her that Christ is her sustainer in all things.

My body and my heart may grow weak, but God is the strength of my heart and all I need forever. Psalm 73:26

Debbie Cunningham

Debbie’s favorite verse reminds her that nothing she does will ever separate her from the love of God and that He loves her and is with her no matter what. 

The Lord is the One Who goes before you. He will be with you. He will be faithful to you and will not leave you alone. Do not be afraid or troubled. Deuteronomy 31:8

Donielle Smith

Donielle shares two of her favorite verses with us. The first gives her strength through any obstacles she faces in life. With the strength of God, she is able to face her tomorrows.

I can do all things because Christ gives me the strength. Philippians 4:13

The second is a reminder that even though her parents may have introduced her to her faith, God has saved her throughout her life because of her personal relationship with Christ. 

I am not ashamed of the Good News. It is the power of God. It is the way He saves men from the punishment of their sins if they put their trust in Him. It is for the Jew first and for all other people also. Romans 1:16

CLOSING OBSERVATIONS

A Look At The Election Results And On To The Future

Donald Trump won a hard-fought battle on Nov. 5 and will become the 47^th President of the United States. Regardless of whether you voted for him or not, Trump had a huge win by carrying all of the key states. Hopefully, he will now seize the opportunity, retool his mindset as needed, and become a good and effective president.

There will be opposition when needed to the programs proposed by the Trump Administration. But the opposition must be based on the merits and not on a dislike for the man holding the office. Clearly, there will be vast differences of opinion from time to time on what’s best for America. But working together when possible has to be considered a good thing for both the President, his opposition, and more importantly for the country. 

The Rule of Law must be strictly enforced in our country, but on a non-partisan basis. The Constitution and the Bill of Rights must remain our nation’s firm cornerstone. The rights and privileges of all Americans must be recognized and protected. That’s a clear well-defined responsibility of the Executive, Legislative and Judicial branches of government. 

I want to believe Donald Trump, because of his tremendous ego, will want to go down in history as an outstanding president. He has the opportunity to make that happen. It’s my prayer that he will do the right thing and become such a president for his good and for the good of our country. 

MONTHLY REMINDERS

These reminders are for all of us at Beasley Allen. They are put in the Report for a purpose. The reminders are to be applied in the workplace, in our social life, and at home. While they are for all at Beasley Allen, we send them to all who get the Report. All persons in a leadership role, including those persons in government at every level, will benefit by reading the quotes and applying 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 Chronicles 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

There Is Hope For Our Future

We are blessed to live in America, the greatest country on earth. Unfortunately, our country has become sharply divided over the past 10 years with extremists on both sides of the division having to share the responsibility. I have to believe the vast majority of Americans fall in the middle. That’s why I have great hope for America. It’s time for the silent majority in the country to wake up, get actively involved, and help bring about positive changes that are needed to unify the American people. I have to believe that will happen, and that’s the real basis for my hope. God bless America!