The Jere Beasley Report January 2024

CAPITOL OBSERVATIONS

Looking Back At 45 Years Of Changing Consumer Law

The four and a half decades since I started what is now Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. in 1979 have witnessed a dynamic and sometimes tumultuous interplay of ideologies and policies. Competing ideas of what is fair and just have left both fleeting footprints and seismic shifts in the landscape of consumer rights, protections, and laws in the United States.

When I opened the doors of my firm in Jan. 1979, much of the regulatory framework protecting the everyday American from defective products and corporate fraud was new. Consumer advocacy had gained momentum in the 1960s, eventually leading to the establishment of agencies like the Consumer Product Safety Commission and the passage of the Fair Credit Reporting Act in 1970.

Back then consumers injured by dangerous products had relatively little recourse in seeking justice. When I founded the firm, the principle of “helping those who need it most” was to be my goal. At that time few established law firms wanted to take on the huge and powerful corporate interests. In fact, there were virtually no real plaintiff firms in the Montgomery area. Those injured or wronged by no act of their own were virtually powerless to seek justice against corporate wrongdoers.

Today, decades later, “helping those who need it most” stands as a guiding principle that has gotten Beasley Allen and our clients through many difficult challenging times. I was encouraged to open a firm in Montgomery as a sole practitioner by Judge Frank M. Johnson. That came about when I went to the judge asking for advice. Judge Johnson told me in clear, understandable language that I needed to get out of politics and open a firm in Montgomery. That was good counsel!

As a country, we have made remarkable progress in the past 45 years to better protect consumers. But we have also seen many dangerous setbacks. The deregulatory fervor of the 1980s and 1990s introduced lax regulatory oversight and paved the way for the financial crisis and housing market collapse of 2008.

Those devastating events propelled the creation of the Dodd-Frank Act of 2010. That landmark piece of legislation introduced sweeping reforms in the financial industry, including the creation of the Consumer Financial Protection Bureau, enhanced whistleblower incentives and protections, and breakthrough changes in the mortgage lending, banking, and credit industries, among others.

But as we know, those badly needed consumer protections and many others came under strong attack when Donald Trump occupied the Oval Office. The systematic and reckless regulatory rollbacks under the Trump administration left impacts that the American people will feel for years to come.

The truth is that pro-consumer advancements have always been in peril. We must keep in mind that various forces are always lurking in the Halls of Congress and state houses across the country, poised to strip consumers of their rights and protect Corporate wrongdoers. At the core, these threats are always the result of all too many in Corporate America putting profits over people.

The need for better consumer protections should be evident in our constantly and rapidly changing world, where technological developments are occurring at warp speed, and globalization blurs international borders.

The increasing interconnectedness of economies has led to a global marketplace. Consumers now have access to products and services from around the world, requiring changes in consumer protection laws to address international trade and cross-border disputes.

The rapid development of technology, particularly the internet and e-commerce, has transformed how consumers access goods and services. This has raised new challenges for online privacy, data security and electronic payment methods, prompting the need for ever-evolving consumer fraud protection.

As trial lawyers, we stand on the front lines of a never-ending battle to safeguard and enhance the policies and laws that protect consumers, increase transparency, reduce systemic risk, and promote financial stability for all people.

At Beasley Allen we do things the right way and for the right reason. I am proud and honored to be “a trial lawyer.”

TALC LITIGATION

Talc Litigation Update

In October 2016, a multidistrict litigation (MDL) was consolidated before U.S. District Judge Freda Wolfson in the District of New Jersey against Johnson and Johnson and its subsidiary J&J Consumer Inc. (collectively, J&J). The plaintiffs alleged perineal use of Johnson’s Baby Powder with talcum powder and Shower-to-Shower body powder caused ovarian cancer. Trials also proceeded in state courts, with a notable $2.24 billion award in a 22-plaintiff trial in 2020. By 2021, there were over 38,000 ovarian cancer cases pending against J&J. 

Using a legal maneuver called the “Texas Two-Step,” J&J Consumer Inc. restructured and created two entities, one into which they transferred talcum powder litigation liabilities (LTL) and a second entity that received the operating assets. LTL declared Chapter 11 bankruptcy within 48 hours after formation. The bankruptcy was upheld by Judge Michael Kaplan of the District of New Jersey, but the ruling was reversed January 30, 2023 by the U.S. Third Circuit Court of Appeals. Hours after the initial bankruptcy was dismissed on April 4, LTL filed for a second bankruptcy, which Judge Kaplan dismissed on August 11 with a finding that the company was not in financial distress.

During the pendency of the bankruptcies, proceedings were stayed, and only one talcum powder trial was allowed to proceed against J&J – a California case involving mesothelioma that resulted in a $18.8 million verdict for the plaintiff in July 2023. Since the Court’s dismissal of the second LTL bankruptcy, two talc trials, also mesothelioma cases, were set in November 2023. The first case settled in the middle of the trial, and the second case was settled after jury selection. There are currently over 53,000 ovarian cancer lawsuits pending against J&J for their talcum powder products.

Prior to the initial  bankruptcy filing, a number of representative claims underwent pre-trial discovery and were narrowed to a pool of six potential bellwether cases. During the stay, the MDL litigation was transferred to U.S. District Judge Michael Shipp. After the second bankruptcy stay was lifted, Judge Shipp indicated the intent to quickly move the talcum powder cases forward and issued a new pretrial schedule for the six bellwether cases. The schedule sets forth expert reports and deposition timing, with all briefing on dispositive and Daubert motions to be submitted by June 26, 2024. 

Additionally, the Court is contemplating dates for an upcoming “Education Day,” which will be used as a tool to educate the Court on the background of the litigation and issues encompassed therein. Cases are now proceeding in state courts as well, and our talc litigation team is looking forward to holding J&J accountable for the harmful effects of its products in the courtroom in 2024.

Beasley Allen has been in this ongoing battle against J&J since the very beginning and we will be in it until justice is fully and completely done. We started the battle by trying the case of Mrs. Jackie Fox, a close relative of the legendary Rosa Parks, in St. Louis, MO in 2016. I will never forget Ms. Fox’s answer to this question in her deposition by a J&J lawyer: “Ms. Fox, tell the jury, you are just in this case for the money, isn’t that correct?” Her answer was, “I am not in it for the money. I am dying with ovarian cancer, and I don’t want Johnson & Johnson to keep killing innocent women who trusted them.” We will give a complete update on the J&J litigation in the February issue. Stay tuned!

Beasley Allen Talc Litigation Team

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

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

Charlie Stern and Will Sutton are on the litigation team, but they exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

ASBESTOS LITIGATION

Prepping The Client & Understanding Their Asbestos Exposure Profile

For a trial lawyer handling asbestos litigation, understanding a client’s asbestos exposure profile is critical to developing the client’s case. The lawyer can easily miss crucial information about the client’s exposure history without establishing a good rapport and trust with the client. So, the more a trial lawyer immerses in a client’s history from the beginning, the better chance all of the pieces to the puzzle will be seen and put together. Will Sutton, one of the Beasley Allen lawyers who handle asbestos litigation, has the following recommendations that trial lawyers should follow initially when they take on an asbestos case.

Immersing yourself in your client’s history means starting your investigation early and continuing it as the case advances. Every place a person has been in their life can be a potential exposure site. Ask the questions that get you the specifics about those locations and periods. Provide context to your client that most courts look to the frequency, regularity, and proximity of exposure in determining whether a defendant’s asbestos products were a substantial factor in causing his or her injury. 

Collect any available documents related to the client’s exposure, such as employment records, medical reports, and witness information. These can corroborate your client’s exposure history during the deposition or later at trial and ensure you have the proper parties from the beginning.

The Beasley Allen Asbestos Litigation Team

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

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Update – Litigation Is Proceeding

The Camp Lejeune Water Litigation continues to bring new developments weekly. Track 1 discovery, as dictated by the Eastern District of North Carolina’s Case Management Order No. 2 (CMO2), is progressing rapidly. Track 2 discovery will not be far behind.

On December 5, Plaintiffs’ Leadership and the government filed a joint notice identifying their selections for Track 1 Discovery Plaintiffs. Each party selected 50 cases to participate in Track 1 trials for the following diseases: bladder cancer, kidney cancer, leukemia, Parkinson’s disease and Non-Hodgkin’s lymphoma. Discovery for these 100 Track 1 cases will begin immediately with a deadline of March 24, 2024, with Track 1 trials anticipated to start in late Spring/early Summer 2024.

Track 2 will follow similar procedures to those governing Track 1. Plaintiffs’ Leadership will assemble the potential discovery pool of plaintiffs to participate in Track 2 trials. Both Plaintiffs’ Leadership and the government have submitted proposals for which conditions are to be considered for Track 2 and will be decided by the Court soon.

Rhon Jones, who heads up our Toxic Torts Section, serves on the Plaintiffs Executive Committee for this litigation. Rhon and his team are ready to help you with any aspect of administrative claims or lawsuits.

Beasley Allen Camp Lejeune Litigation Team

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

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

SOCIAL MEDIA LITIGATION

Zuckerberg Rejected Safety Policy And User Well-Being Concerns

Litigation is proceeding in both the federal multidistrict litigation (MDL) and the California Judicial Council Coordination Proceeding (JCCP) against social media platforms Facebook and Instagram (Meta), YouTube, Snapchat and TikTok. Plaintiffs seek compensation for the harmful health effects of their addiction to these platforms, including depression, anxiety, insomnia, eating disorders, self-harm, and suicide.

Meanwhile, in October, a coalition of 42 State Attorneys General filed parrel claims against Meta in state and federal courts. These unredacted (Massachusetts) and partially redacted (California) complaints expose the decisions of Mark Zuckerberg to reject the safety concerns and policy recommendations of his senior personnel. For example, Zuckerberg rejected a 2019 safety policy supported by Mosseri (Instagram’s CEO), Karina Newton (Instagram’s head of public policy), Fidji Simo (head of the Facebook app) and Margaret Gould Stewart (Meta’s vice president of product design).

Senior executives expressed concerns over a lack of investment in user well-being and proposed disabling beauty filters that simulate the effects of plastic surgery. Despite Meta executives presenting Zuckerberg with recommendations from academics and outside advisors, he responded in April 2020 that there was a “demand” for the filters and “no data” suggesting the filters were harmful.

California Attorney General Rob Bonta asserted:

Meta knows that what it is doing is bad for kids — period[.] . . . Thanks to our unredacted federal complaint, it is now there in black and white, and it is damning.

Beasley Allen lawyer Joseph VanZandt serves on the Plaintiff Steering Committee for the MDL and is Co-Lead Counsel of the JCCP. If you need more information or need help with a case, call one of the lawyers on our Social Media Litigation Team, and they will respond to you. 

Sources: CBS News, State of California Department of Justice, Commonwealth of Massachusetts 

The Beasley Allen Social Media Personal Injury Litigation Team

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

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

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

Class Actions At Beasley Allen Involving The Social Media Litigation

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

BEASLEY ALLEN FILES AN IMPORTANT CASE AGAINST MINDGEEK

A Look At The Fast-Moving Pornhub Litigation

On December 12, 2023, Chief U.S. District Court Judge Scott Coogler certified a class action lawsuit against MindGeek and its affiliates, owners of the website Pornhub. This certification arose from a single plaintiff whose video of her being sexually assaulted as a minor child was posted to the massive pornography platform Pornhub. Any victim from February 12, 2011, to now with similar circumstances can join the lawsuit against MindGeek. 

Beasley Allen lawyers have filed a similar, individual suit in the U.S. District Court of Alabama’s Middle District seeking damages from MindGeek, and its affiliated entities on behalf of an Alabama mother whose 12-year-old child was filmed while being sexually assaulted on multiple occasions. The lawsuit also named Rocky Shay Franklin, the individual who contracted with MindGeek to upload the pornographic videos onto Pornhub’s website where users could pay to download and share them. Franklin is now in federal prison after being convicted of various sexual abuse crimes, distribution of child pornography, and sexual exploitation of a child. 

Similar to the claims in the class action lawsuit, the Beasley Allen lawsuit seeks to hold MindGeek responsible for violating numerous state and federal laws relating to child trafficking and exploitation, including the Trafficking Victims Protection Reauthorization Act. This Act allows victims to sue entities in civil court who financially benefit from the sexual exploitation of minors. 

The videos at issue depict Franklin’s disturbing and sexually explicit conduct towards the minor children. The titles of each video, which are too graphic to report, confirm that Franklin was clearly capitalizing on the fact our client was a young child. The twenty videos generated more than 188,000 views, and 1,100 viewers subscribed to Franklin’s account. 

For at least five months, the sexually explicit videos were made available for purchase, viewing, downloading, and sharing all around the world and the United States. As the lawsuit alleges, Franklin entered into an agreement with MindGeek as a PornHub “actor.” Franklin had done his research and discovered PornHub actually pays its “actors” on a commission basis for the number of views their uploaded content receives. 

MindGeek sold the child molestation videos for $5 to $20 per download. In September of 2021, the Alabama Law Enforcement Agency (ALEA) received 67 CybeTips from the National Center for Missing and Exploited Children (NCMEC) that an email address, eventually traced back to Franklin, was being used for the dissemination of sexually explicit images of minor children. 

After this discovery, ALEA authorities made repeated requests to MindGeek to remove the videos because they contained child pornography. After a lengthy and deliberate delay, MindGeek finally took the videos down. Our civil lawsuit contends that the MindGeek defendants, despite their duty to do so, never informed authorities about Franklin, his sexual violence towards children, or the fact that their website was being utilized as a platform for child sexual violence, which was for profit and to their mutual financial benefit. 

It’s quite evident that the whole purpose of PornHub’s website is to drive traffic. MindGeek designed its business model to generate and optimize views by using search terms, tag lines, and short phrases. The terms within the video titles, the explicit nature, and the clear depiction of child sexual assault all should have been indicators that MindGeek was engaged in the distribution of child pornography. MindGeek should have identified this disturbing material and removed it immediately. It will be proved in both civil lawsuits that defendant MindGeek and its affiliates knew they were clearly distributing and facilitating the distribution of child sexual abuse material.

In a late development on December 21, Aylo Holdings S.A.R.L. (previously known as MindGeek), Pornhub’s parent company, acknowledged in federal court in Brooklyn that it had profited for years from pornographic content that depicted sex trafficking victims. The company pleaded not guilty to a charge of engaging in unlawful monetary transactions involving sex trafficking proceeds. The company avoided prosecution criminally.  But, by way of a settlement agreement with prosecutors, the company agreed to pay damages to women who said they were forced to appear in pornographic videos that were then posted to the company’s websites without their consent.

The settlement (known as a deferred prosecution agreement) coming out of the criminal case, requires the company to pay a fine of over $1.8 million and be assigned a monitor who will assess Aylo’s protocols for screening content and addressing reports of illegal content on its platforms. In return, it would allow the charge against Aylo to be dropped after three years. 

In 2009, Aylo began hosting pornographic videos created by the production companies GirlsDoPorn and GirlsDoToys. Aylo was also aware of a 2017 lawsuit filed by victims of the companies. It also knew that a GirlsDoPorn videographer had testified that he lied to women to persuade them to appear in the videos. Nevertheless, the company continued to host the videos and profit from its partnership with the production companies.

In 2019, several of the operators of GirlsDoPorn and GirlsDoToys were charged in California with sex trafficking and other offenses related to “deceiving and coercing” young women to appear in pornographic videos that were then posted online without their consent. Aylo did not completely remove the videos from its platforms until late 2020.

It should be noted that Ethical Capital Partners, a Canadian private equity firm, acquired Aylo earlier this year.

The Alabama case is only the second lawsuit to be certified as a class action against MindGeek and its affiliates in the entire country. Beasley Allen lawyers are honored to pursue an individual civil case against these defendants, all of whom must be held fully accountable for their wrongful and shameful actions. Activity in the criminal case came about just as this issue was being prepared to go to the printer. Beasley Allen lawyers are getting familiar with the charges in the criminal cases to see if it affects the civil case and, if so, how and to what degree. 

Stay tuned with us as this extremely important litigation progresses.

Sources: New York Times, U.S. Department of Justice, Bloomberg Law News, and Reuters 

MOTOR VEHICLE LITIGATION

Toyota Airbag Failure

Chris Glover, who heads our Atlanta office, recently filed suit on behalf of the family of a man who was tragically killed in a single-vehicle collision. The decedent was an occupant of a Toyota Highlander, where the airbag system prematurely deployed in the crash. As a result, the airbag was deflated upon point of impact and thus unable to protect the decedent as intended. The death was preventable had the airbags functioned correctly, not deployed prematurely, and provided protection upon impact. Sadly, the airbags failed. 

Toyota manufactured, distributed, or sold certain vehicles, including the Toyota Highlander involved in the crash, containing defective airbag inflators, which caused complete failure or premature deployment. Moreover, Toyota defendants designed the passenger airbag system with such a defect that it might prematurely deploy in a frontal collision and not perform safely. 

Airbag systems are designed to deploy in medium to severe frontal collisions. According to the National Highway Transportation Safety Administration (NHTSA), frontal airbags have saved over 50,000 lives.  Airbag system defects can cause the airbag to deploy with too much force, not deploy at all, or untimely deploy, causing horrible injuries like brain damage, blunt force trauma, and even death. 

This case was recently filed in the Northern District Court of Georgia. The guilty plea entered on Dec. 21 will definitely affect the civil litigation.  We will keep our readers informed of any developments in this litigation as it moves forward. Stay tuned!

Tesla Autopilot Flaw Prompts Sweeping Recall

Tesla is recalling nearly every vehicle it has sold in the United States since 2012 after identifying a deficiency in its autopilot software. According to federal regulators, the current software provides inadequate controls to ensure drivers remain engaged with the wheel while driving. 

Tesla said it would recall its vehicles two days after a December 10 Washington Post report uncovered at least eight serious crashes, including some that were fatal, in which Autopilot should not have been allowed to activate. Tesla began installing the updates remotely on December 19.

Tesla’s basic autopilot system assists drivers with autosteer, automatic speed controls, and other traffic sensors that help drivers avoid collisions. While designed to protect drivers, these autopilot controls may encourage drivers to take their hands off the wheel and their eyes off the road. Insufficient monitors to ensure drivers stay actively in control increase the risk of a crash.

Tesla is releasing a software update that improves the driver monitoring system. The update varies slightly by model and includes stronger alerts and a simpler method to activate and deactivate the autopilot feature. According to Tesla, drivers who repeatedly fail to remain attentive and in control will have the autopilot system suspended. 

According to the National Highway Traffic Safety Administration, the software update includes alerts drivers will see and hear whenever Autosteer turns off, provides limited functionality, or fails to activate due to environmental conditions and other factors. The Autosteer update also restricts speed and warns the driver to intervene immediately in certain circumstances. 

Sources: Law360, AL.com, NHTSA, Washington Post

Analysis Shows Tesla Has Highest Accident Rate Of Any Auto Brand

A recent analysis of 30 car brands by LendingTree revealed that Tesla drivers have the highest rate of accidents compared to drivers of any other brand. The study found that Tesla drivers experienced 23.54 accidents per 1,000 drivers. Ram and Subaru were the only other brands with over 20 accidents per 1,000 drivers for every brand.

Although the study did not investigate the cause of an incident, it is worth noting that Tesla has recently recalled over 2 million of its vehicles due to a safety concern related to its Autopilot software. The recall pertains to a driver-assistance feature called Autosteer, and it affects almost all Tesla cars sold in the U.S.

According to a statement by the National Highway Traffic Safety Administration, there are certain circumstances where the Autosteer feature’s controls may not be sufficient to prevent driver misuse of the advanced driver-assistance feature. Tesla, the electronic car manufacturer, is the world’s most valuable automotive company. It is led by Elon Musk, the richest man in the world. He has long envisioned cars that are fully self-driving and has been pushing the envelope on this technology.

Tesla is recalling their Autopilot system to improve its ability to ensure drivers remain alert while using it. The Autopilot feature doesn’t allow the driver to completely disengage from their responsibility to operate the vehicle, as they must be ready to take control if necessary. Simply put, the driver cannot read a book or nap while the vehicle is in Autopilot mode.

The Autopilot feature on Tesla’s vehicles has been the cause of accidents due to over-reliance by some individuals. The Department of Justice launched a criminal investigation over a year ago after over a dozen crashes happened while the software was engaged. The NHTSA reviewed 956 such crashes. 

The largest recall in Tesla’s 20-year history was criticized by experts who argued that the new warnings and alerts won’t solve Autopilot’s fundamental flaw. The agency had investigated 322 Autopilot-related accidents, including frontal collisions and unintended disengagement of the system.

Matthew Wansley, a professor at the Cardozo School of Law in New York, made this observation: 

What a missed opportunity. I have yet to see Tesla, or anyone defending Tesla, come up with an argument for why we should be letting people use [Autopilot] on roads that could have cross traffic. That’s how a lot of these crashes are happening.

LendingTree, which is an online lending marketplace, has the capability of collecting a vast amount of data. As part of their research, analysts examined tens of millions of insurance quotes provided by QuoteWizard through LendingTree between November 14, 2022, and November 14, 2023.

There will be much more written on both the perils and advantages of autopilot. Hopefully, the good will outweigh the bad. Stay tuned!

Source: Forbes

TRUCKING LITIGATION

Telematics Can Often Provide Smoking Gun In Trucking Cases

In 2022 alone, over 75,000 people were injured in trucking accidents.  Even worse, over 5,000 people were killed. Alabama saw 143 of these fatal trucking accidents.  When a crash occurs between a tractor-trailer and a passenger car, the truck driver typically walks away.  The occupants of the passenger car are usually not so lucky – approximately 72% of fatalities in these crashes are in the smaller passenger car.  

Like the typical car accident, trucking accidents involve accident reconstruction, liability, and damages.  However, trucking accidents involve one crucial difference: the role of telematics in proving each of these areas.  Trucking companies with a large fleet now use one or more telematics systems to monitor their trucks and drivers.  

Telematics is simply the technology and software that collects and analyzes the information on the truck and driver. For instance, the truck typically has an ECM (electronic control module) that tracks important data like GPS location, speed, harsh braking, fuel levels, and idling time.  The truck may also have a dash cam system that records pictures and videos of harsh events and crashes.  

All of this information is typically uploaded to a Cloud that the trucking company can access.  Some trucking companies may pay for a telematics service that analyzes this data to create safety scores, safety reports, speed alerts, and detailed vehicle activity reports to help managers coach unsafe driving habits.  

This information is crucial when a truck driver causes injuries or deaths on our country’s highways.  The video of a crash can tell us how fast the driver was going, what the weather conditions were at the time, and what the surrounding vehicles were doing.  This can be evidence of negligent or wanton driving.  The driving trends can tell us what the trucking company knew or should have known about the driver’s habits.  This can help prove a claim of negligent and wanton training, supervision, and retention.

Telematics can also tell us whether the driver was over the hours of service and whether fatigue played a role in the crash.  Hours of service are determined by the federal government and dictate that most truckers not exceed a 14-hour workday and be off duty for ten consecutive hours before driving again.  In addition, truckers cannot drive for longer than 11 hours in a day.  

The truck activity can be compared with driver logs to determine when, where, and how long the truck starts, idles, and stops.  When cross-matched, you can see when the driver was actually working versus when the driver reported working. 

Exceeding 14 hours a day can lower the trucker’s perception/reaction time to a crash ahead, lower the trucker’s ability to concentrate, and affect safety decisions.  This information can show that the trucker never should have been on the road in the first place.   

Preservation, diligence, and thoroughness are key to telematics discovery.  First, send a preservation letter for the telematics immediately upon receiving your trucking case.  Second, diligently research the telematics system the defendant trucking company is using and demand the telematics relevant to the subject truck and driver.  Finally, thoroughly go through the data you receive and follow up on discrepancies.  The smoking gun to liability and punitive damages may just be hiding in the telematics data. 

Beasley Allen’s Mobile, Alabama Office Resolves Trucking Case for $1.25 Million

Wyatt Montgomery, a lawyer in Beasley Allen’s Mobile office, recently resolved a trucking case for $1.25 million.  The lawsuit alleged negligent and wanton inspection and maintenance of a commercial trailer.  On the date of the wreck, a dual wheel-end and tire assembly detached from the subject trailer and collided with our client’s vehicle, resulting in a broken toe for the client. The fourth metatarsal was broken at the knuckle.  The bone was reset in surgery, but it did not heal. So a rod was inserted into the toe until it achieved proper union.  However, the toe injury still resulted in significant pain, altered gait, etc. which caused pain throughout the client’s leg and hip.

After filing suit against the driver of the tractor-trailer unit and their employer, Wyatt discovered the subject trailer involved had been leased by a separate entity that retained control and responsibility for routine and preventive maintenance on the subject trailer.  Therefore, that entity was added as a defendant to the litigation. 

Several rounds of document requests and multiple depositions revealed the leasing company had performed preventive maintenance on the subject trailer less than one month before the wheels fell off.  At the time the leasing company’s technician performed the preventive maintenance, he had been on the job for less than one month and had not been trained by the leasing company on how to properly perform preventive maintenance on commercial equipment.  Therefore, it was not discovered the wheel-end and tire assembly that detached from the trailer had not been lubricated for quite some time, resulting in its failure.  

Many wrecks are attributable to mechanical failures that result from negligent or wanton inspection, repair, or maintenance of a commercial motor vehicle.  Federal regulations require motor carriers to systematically inspect, maintain, and repair all motor vehicles subject to their control.  These regulations also require that the truck and its component parts must be in safe operating condition at all times.  

Locating all parties who bear responsibility for maintaining commercial motor vehicles in accordance with Federal Motor Carrier Safety Regulations (FMCSR) is vital to ensuring our clients are adequately compensated for their loss.  The lawyers and investigators at Beasley Allen have extensive experience in investigating and litigating these cases to their full value.  If you have a case involving a commercial motor vehicle, we would like to have the opportunity to work with you.

PRODUCT LIABILITY

Tire Pressure When The Weather Turns Cold

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

Beasley Allen has an office in metro Atlanta, and during the month of October, this area saw temperatures from near freezing to about 80 degrees Fahrenheit within a 24-hour period.  Such wide variations in temperature can have a drastic effect on tire pressure.  

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

Driving a vehicle in which the tires are grossly below the recommended PSI can be very dangerous as it relates to vehicle handling.  If tire pressure is significantly low, a greater amount of the tire’s surface will come into contact with the road, which consequently increases friction.  This can change vehicle dynamics in a way not intended by the manufacturer.

Vehicle owners may want to have a tire specialist check tires during drastic changes in temperature.  It is very important to have the tire pressure checked regularly by a tire professional.  Owning and utilizing a tire pressure gauge can provide peace of mind that you are driving a vehicle with tires that are functioning as optimally as possible, regardless of the weather. I suggest you get one and use it when cold weather comes. 

Source: Consumer Reports

Silent Recalls: A Deadly Practice

Product and design defects can compromise the performance and overall safety of a motor vehicle. Motor vehicles must meet the Federal Motor Vehicle Safety Standards in order to be deemed safe for use. These standards work to regulate performance requirements for vehicles and are intended to protect the public. When a manufacturer discovers or is made aware of a defect in a vehicle they have put on the market, they are required to notify consumers of this defect and are responsible for fixing the problem. However, companies are often permitted to utilize Technical Service Bulletins (silent recalls) to get around this reporting requirement.

A silent recall allows an automotive company to bypass government safeguards by claiming to work directly with the public in fixing the dangerous product defect in their vehicle. Unfortunately, this practice enables manufacturers to avoid formally recalling their vehicles while also avoiding contacting affected consumers. Instead, companies are permitted to silently repair defective parts without properly notifying the public. 

As a result, individuals unknowingly drive vehicles every day that have been recalled for safety concerns. Consumers should be proactive, and monitor recalls on their vehicles to ensure that they are made aware of important information about their own safety. Drivers can check the recall status of their vehicle by visiting the National Highway Traffic Safety Administration website at http://www.nhtsa.gov/recalls.  

Beasley Allen’s first experience with a “silent recall” involved a 1991 Alabama case, Johnston v. G.M. In that case, a pickup truck had a serious stalling defect that was present in a large number of GM vehicles. GM had hidden the defect from the public. We were able to learn in discovery that the stalling problem was caused by a defective computer chip (the PROM) and that the problem had been known by GM. A decision was made by GM not to recall the vehicles which included the  2500 series Chevrolet pickups. 

Thus GM did not issue a recall in that case even though it knew about the stalling problems. Instead, the automaker notified GM dealers and informed them about the problem. The instructions to dealers were: “If a vehicle owner comes in with a stalling problem, fix it. The customer is to pay, but if necessary do the fix at no charge.” 

This case involved the death of a child riding as a passenger with his grandfather in a GM pickup. The vehicle stalled in a busy intersection in a rural area. A log truck came into the intersection and crashed into the pickup that couldn’t be restarted. We represented the family, tried the case, and a jury ruled for the family. 

Beasley Allen lawyers work diligently to hold companies accountable and advocate for public safety.

The Recent Amendments To Federal Rule 702

As of December 1, changes to Rule 702 that govern the admissibility of expert testimony are in effect. The amended Rule 702 now reads:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The revisions were intended only to clarify that: (1) a court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence, and (2) a court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury.

In its Note regarding the amendments, the Advisory Committee emphasized that “[n]othing in the amendment imposes any new, specific procedures.” The preponderance standard was previously implied in Rule 702.  However, according to the Advisory Committee, express language was needed to correct certain courts’ failure to correctly apply the rule.

These revisions may necessarily shift practitioners’ approaches to Daubert challenges and the use of experts at trial. Any time there is a change in a Rule, some courts apply a more discerning eye when confronted with the application of the changed rule. Therefore, lawyers should take greater care in selecting, preparing, and defending their experts.  When an expert is properly selected and prepared, the changes to the Rules should have little impact. 

The focus of the Rule is still on the reliability of the experts’ methodology, the factual support for the opinion and the reliable and relevant application of the methodology to the facts of the case. 

In Vanzant v. Hill’s Pet Nutrition, for example, the Northern District of Illinois rejected defendants’ argument that the pending amendments to Rule 702 justified the exclusion of plaintiffs’ proffered expert testimony. See No. 17-C-2535, 2023 WL 6976988, at *6, *11 (N.D. Ill. Oct. 23, 2023) (holding that “even if the language of the pending amendments to Rule 702 is considered,” “Plaintiffs have shown that it is more likely than not that [their experts’] opinion[s] reflect a reliable application of the principles and methods to the facts of the case.”); id. at *6 (“As the advisory committee explains, “[n]othing in the amendment imposes any new, specific procedures.”) (quoting Fed. R. Evid. 702 advisory committee’s notes to 2023 amendments).

Now that the amended rule is in effect, opposing lawyers may try to use these amendments to their advantage in Daubert motions, challenges, and at trial. However, well prepared experts and lawyers should be able to successfully navigate the new amended rule. 

Source: Proskauer

AVIATION LITIGATION

5th Circuit Upholds Boeing – DOJ 737 Max Deal

The Fifth Circuit refused to force the U.S. Department of Justice to rework its deferred prosecution agreement with Boeing, stopping for now a bid by families of the 737 Max crash victims challenging the deal. 

The court’s December 15 decision marks a pivotal moment in the ongoing legal saga surrounding the two Boeing 737 Max 8 crashes, which killed 346 people in Ethiopia and Indonesia. While the Fifth Circuit did not grant the immediate requests of the victims’ families, it set the stage for future judicial considerations of the DPA’s implications, victims’ rights, and, in a broader context, the public interest.

Families of the crash victims challenged the DOJ’s deal with Boeing, arguing that it violated their rights under the Crime Victims’ Rights Act (CVRA), which ensures that victims can confer with prosecutors. They contend that the government struck a deal with Boeing without their consent or input. Concerned that the deal could release Boeing from criminal charges, the families asked the court to withhold approval of the DPA, subject Boeing to an independent compliance monitor, and strike parts of the $2.5 billion deal that shields Boeing from criminal prosecution.

U.S. District Judge Reed O’Connor rejected the families’ request, expressing his “immense sympathy” for the crash victims and their families. But while the judge had earlier found that the government violated the CVRA because it didn’t talk to the families before it made its agreement with Boeing, he said legal precedent established that a district court couldn’t reject a DPA just because it doesn’t like the details of the settlement or doesn’t agree with the government’s choice to make the agreement. 

When the families appealed, the Fifth Circuit found their petition to block the DPA was “premature.” The court said the proper time for the families to challenge the DPA was when the DOJ and Boeing moved to dismiss the criminal charges.

Source: Law360

WORKPLACE LITIGATION

Commercial Driver on the Job Injuries

  Injuries in the workplace occur every day and are compensable under the Workers Compensation Act in the subject state. If a worker is involved in an automotive accident while in the course and scope of his or her employment, that person has the right to bring a worker’s compensation claim in addition to a personal injury claim, assuming a negligent third party caused the wreck and accompanying injuries. Additionally, third-party claims against an auto product manufacturer may also be brought by the worker.

While not unique to tractor-trailer drivers, Beasley Allen lawyers often litigate personal injury cases on behalf of injured tractor-trailer drivers who were struck by another tractor-trailer. In litigating these claims, the trial lawyer has a unique opportunity to establish valid claims against a defendant or defendants whose wrongdoing caused the collision. 

This strategy may be employed for hiring, training, and supervision claims. However, it is important to ensure that your plaintiff and his or her employer are each fit for establishing the respective duty. Working with comp counsel for plaintiffs and the lawyer for the employer will allow you to obtain information as to your driver’s fitness. It is important to understand that the information you obtain is discoverable.

PREMISES LIABILITY LITIGATION

Out Of State Investors’ Harmful Business Practices Affecting Georgia Tenants

Large out-of-state private equity firms and hedge funds have taken over public housing in Georgia, including government-subsidized apartment complexes. These businesses operate under the same tactics and motives with no interest in protecting tenants’ health, safety, and welfare, many of whom have no other place to go. It is a never-ending cycle, or at least appears that way. 

Generally, these out-of-state investors purchase dilapidated apartment complexes with subsidized rent and promise to use those taxpayer dollars for renovations. Instead, they typically raise rent, get more subsidized money, perform some minor level of cosmetic renovations, and spend little to none on management and security. Once they make a return on their investment, they turn around and sell the property to another similarly situated investor, doubling the money invested. Fostering and/or creating dangerous apartment complexes with deplorable living conditions, squalor, and rampant criminal activity is collateral damage in the grand business scheme. 

With little to no government intervention or protection, these tenants are subject to deplorable conditions with no alternatives or means to fight back against these powerful, corporate landlords. The Atlanta Journal-Constitution (AJC) conducted a lengthy investigation into dangerous apartment complexes in metro Atlanta, finding that out-of-state owned complexes accounted for at least 281 homicides and 20,000 serious crimes in Clayton, Cobb, Dekalb, Fulton, and Gwinnett counties over the past five years. 

The investigation overturned at least 250 apartment complexes where absentee landlords have turned a blind eye to gang violence, drug dealings, shootings, robberies, and horrible living conditions like mold, rodent infestation, and lack of basic plumbing facilities. 

The AJC lists Forest Cove, Trestletree Apartments, and Woodland Heights as the top dangerous apartment complexes in metro Atlanta, which are all owned by private investment companies with out-of-state headquarters. 

Georgia’s tenant protection laws are amongst the weakest in the nation. The lack of protection from the legislature allows these corporate landlords to disregard health and safety concerns, charge excessive rent, and evict those who cannot pay. In Georgia, there is no law to allow withholding rent over uninhabitable living conditions. These tenants lack protection and the power to call upon government agencies for help in forcing these private owners to comply with basic habitability standards. 

Many tenants are single mothers, elders, or disabled veterans who rely on subsidized rent due to disability, age, extreme poverty, or other qualifying reasons. Moving to a new apartment complex requires hundreds of dollars in application fees, security deposits, and other expenses, things these tenants cannot afford. Thus, they are trapped in these dangerous complexes with nowhere to go.  

Currently, Parker Miller in our Atlanta office is taking on some of these powerful landlords, including Forest Cove’s owners Millennia and Phoenix Ridge, on behalf of tenants who have fallen victim to the complexes’ dangerous conditions.

The Georgia Supreme Court Invites Opportunity To Clarify Premises Liability Law

Something unremarkable happened in Givens v. Coral Hospitality-GA, LLC, 317 Ga. 282 (2023) – the parties reached a settlement, and the plaintiff dismissed her appeal which was pending before the Georgia Supreme Court. What happened next, though, was significant for premises liability practitioners. 

Justice Andrew Pinson, joined by Justice Nels Peterson, authored a thirteen-page concurrence in which he agreed to dismiss the appeal but lamented that the high court did not have the opportunity to address the merits of the case before it settled. Justice Pinson explained that the Georgia Court of Appeals’ decision below – which granted summary judgment to the defendant occupier – misapplied binding precedent regarding a premises liability plaintiff’s duty to exercise ordinary care for her own safety.

In Givens, the plaintiff suffered injuries after she tripped over a raised portion of asphalt. The trial court denied summary judgment, but the Court of Appeals reversed holding that the asphalt lip was open and obvious and, as a result, the plaintiff could have avoided it if she exercised ordinary care. To reach this decision, the Court of Appeals relied on testimony from the plaintiff that she did not see the hazard because she “was not looking down” at the time of the incident.

Justice Pinson’s concurrence called the Court of Appeals’ analysis and the line of cases it relied on into question. He explained that evidence indicating that an invitee would have seen a hazard if they had been looking – by itself – “does not give courts license to routinely decide the question whether an invitee failed to exercise ordinary care for her personal safety as a matter of law.” That question – except in rare circumstances – is for the jury to decide, not the court.

Justice Pinson further explained that Georgia’s high court – in Robinson v. Kroger Co., 268 Ga. 735 (1997) – had already rejected the “this hazard was visible, and she didn’t look down reasoning” employed by the Court of Appeals in Givens.

Because the Court of Appeals’ decision conflicted with Georgia Supreme Court precedent and concerned a legal issue which is frequently litigated, Justice Pinson expressly stated that he remained “open to granting review again” in an appropriate case so that the high court could resolve any inconsistency in Georgia law.

The Robinson decision, coupled with the Givens concurrence, arms premises liability practitioners with powerful authority to overcome a summary judgment argument that the plaintiff failed to exercise ordinary care simply because she failed to look for and avoid a given hazard.  

Class Action Litigation

GM Airbag Non-Deployment Class Action Proceeds To Discovery

Beasley Allen lawyers Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin represent consumers who purchased or leased a 1999 through 2018 GM truck or SUV in California for a serious defect that causes the airbags to fail to deploy in a collision. This case is often referred to as the “GM Airbag Sensors” class. 

In the class action lawsuit, the plaintiffs allege that whether the airbags in these GM trucks and SUVs will deploy is managed by an electronic control unit called the Sending and Diagnostic Module (SDM). In some collisions, the SDM prematurely closes the time window to deploy the airbags or seat belt pre-tensioners. 

Specifically, the plaintiffs allege the software that controls the SDM is calibrated such that, in some real-world crashes, deployment of the airbags and seatbelt pre-tensioners is stopped even though the need for deployment was detected within the 100-millisecond minimum threshold. 

Because of the failure of the airbags and seat belt pre-tensioners to deploy, plaintiffs and other class members are at an increased risk of injury or death in the event of a collision. 

GM previously moved to dismiss the lawsuit. Judge Tigar granted GM’s motion to dismiss but gave the plaintiffs leave to amend to cure some deficiencies in the pleadings. GM again moved to dismiss after the plaintiffs filed their amended complaint. This time, Judge Tigar denied GM’s motion in full.

In so doing, Judge Tigar stated that “[t]he Court agrees that GM mischaracterizes plaintiffs’ complaint” and that plaintiffs “have provided ample detail and evidence of their allegations.” Judge Tigar further stated: 

Plaintiffs here adequately explain how GM’s SDM system works and identify the alleged software defects that create a risk of injury for GM automobile users.

Judge Tigar also found that the plaintiffs had adequately pleaded that GM knew of the defect. Specifically, the complaint “is replete with allegations that necessarily imply GM’s knowledge,” Judge Tigar stated, “including that GM intentionally maintained a strategy of programming premature shutoff times despite knowing its dangers.” 

The Beasley Allen lawyers working on this case are Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin, along with lawyers from Lieff Cabraser Heimann & Bernstein, LLP, Baron & Budd, P.C., Seeger Weiss LLP, Birka-White Law Offices, Carrela, Byrne, Cecchi, Olstein, Brody & Angello, P.C., Kessler Topaz Meltzer & Check, LLP, Levin, Sedran & Berman, LLP, The Miller Law Firm, P.C., and The Sultzer Lw Group, P.C. 

The case is Milstead, et al., v. General Motors, LLC, 21-CV-06338-JST, pending in the Northern District of California. 

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers remain heavily involved in class action litigation in all parts of the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:

Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin. They can be reached by using the contact form at the bottom of this page.

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

COMMERCIAL LITIGATION

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section handle cases for businesses that have claims of a commercial nature. 

Disputes between businesses can be very different from other types of cases. They can involve substantial case expenses for accounting and other experts. Most of this litigation involves disputes over contracts, misrepresentations or other business torts. State and federal courts or arbitration are often involved. 

Some business cases we are handling or have handled in the past include:

• Large churches and businesses with substantial termite damage
• Over 4,000 business clients with BP oil spill claims
• A farmer was sold bad feed, and most of his herd was killed.
• An engineering business was sold defective manufacturing equipment that disrupted plant operations.
• A State Insurance Commissioner sought recovery from a major reinsurance company for fraudulent reserves reported on several companies.
• A wood processing plant sought damages from a major chemical company’s misrepresentations and contract breaches over demands for wood products. 
• Eight State Medicaid agencies sought and recovered more than $1.5 billion for false price reporting to the states.

We have a team of experienced business dispute lawyers handling these cases. If you have a client involved in this type of case, you know how much is at stake and how difficult the cases can be to prepare and try. 

EMPLOYMENT AND WHISTLEBLOWER LITIGATION

Judge Denies Motion Claiming Whistleblower FCA Suit Is Unconstitutional

 U.S. District Judge Scott Coogler of the Northern District of Alabama has denied an August 2023 Motion filed by healthcare defendant Exactech, Inc. asking the court to dismiss a False Claims Act (FCA) case. It was alleged by the defendant that the FCA statutory provision allowing “whistleblowers” to bring FCA claims is unconstitutional. Earlier this fall, Beasley Allen, representing the Relators, and the Taxpayers Against Fraud coalition, vehemently argued against Exactech’s Motion and ultimately prevailed. 

Defendant’s arguments were based in part on the dissenting opinion from a Supreme Court of the United States (SCOTUS) decision from earlier this year., U.S. ex rel. Polansky v. Executive Health Resources. Justice Thomas wrote that “there are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” He added that executive power, as defined in Article II, “can only be exercised by the President and those acting under him.” 

In the Opinion and Order,  Judge  Coogler was not moved by these defendants’ arguments, noting that each circuit to review this issue has come to the same conclusion, which the judge found persuasive: “the FCA does not violate Article II [of the United States Constitution].” Thus, in his Order, Judge Coogler determined that the FCA does not violate the Appointments Clause nor the Take Care Clause of the United States Constitution.

In the analysis of the Appointments Clause, Judge Coogler first determined that Qui Tam Relators are not officers under the Clause as the authorization to litigate is only temporary and Relators do not have governmental power. Additionally, Judge Coogler found that the Relators, in Qui Tam cases, are limited by the government in several ways, including intervening, monitoring and limiting discovery, and settling the case without the Relators’ consent.

Judge Coogler also found in assessing the Take Care Clause, that the limitations that the Relators face, including that their powers of a civil litigant rather than “criminal investigatory or prosecutorial powers,” allow the Executive branch to keep sufficient control to ensure that the President can perform his duties under the Take Care Clause.

On December 12, 2023 these same Exactech defendants asked Judge Coogler to Certify an Interlocutory Appeal of his decision so they could have the Eleventh Circuit review his denial of their motion to dismiss the Qui Tam case against them based on the “standing” issue raised by Justice Thomas in his dissent in Polansky. On December 16^th, 2023 Judge Coogler denied the defendants’ request to appeal. The case is now set for trial on April 15^th, 2024. 

     We will keep our readers posted on any new developments involving this case. Stay tuned!

Source: Law360 

California Skilled Nursing Group Reaches $45.6 Million FCA Settlement

A California skilled nursing management company (Paksan Inc.), its owner, and six skilled nursing facilities reached a $45.6 million False Claims Act (FCA) settlement to resolve allegations that they submitted or caused the submission of false claims to Medicare by paying kickbacks to physicians to induce patient referrals.  The AntiKickback Statute (AKS) prohibits offering or paying remuneration to induce the referral of items or services covered by Medicare, Medicaid, and other federally funded healthcare programs. Due to the defendant’s “lack of ability to pay,” they will make payments over time. 

The government alleged that from 2009 to 2021, the defendants systematically entered into medical directorship agreements with physicians that purported to provide compensation for administrative services but, in reality, were vehicles for the payment of kickbacks to induce the physicians to refer patients to the six skilled nursing facilities. The government said in the complaint:

In executing this kickback scheme, defendants sought to and did contract with physicians with large patient bases and active practices at local acute care hospitals because those doctors were in a position to refer patients to the SNF defendants and agreed to do so in return for contractual stipends.  

The settlement stems from a whistleblower complaint filed in 2015 by Paksn’s former Vice President of Operations and Chief Operating Officer pursuant to the qui tam provisions of the FCA. The qui tam provisions of the FCA allow private parties to bring suit on behalf of the government for false claims. Under the FCA, whistleblowers receive 15% to 25% of proceeds in cases that the government joins. 

Many healthcare workers see different types of billing abuses occurring in their offices and are often reluctant to report these fraudulent activities. If you are aware of fraud being committed against the federal or state governments, your reporting is confidential and protected by the False Claims Act statute. Under that same statute, you could be rewarded for reporting the fraud you have witnessed. 

If you have any questions about whether you qualify as a whistleblower, contact a lawyer in our Consumer Fraud & Commercial Litigation Section for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may email one of our lawyers on our Whistleblower Litigation Team.  Lance Gould, Larry Golston, Leon Hampton, Paul Evans, Lauren Miles, or Tyner Helms.

Source: Department of Justice 

Indiana Healthcare System Reaches $345 Million Settlement

Community Health Network agreed to pay $345 million to settle False Claims Act accusations that it conspired to generate referrals to facilities within its network by paying physicians much more than the market rate. The Indiana healthcare system was also accused of awarding bonuses based on the physicians’ volume of referrals.  

The settlement agreement agreed to with the federal government marks a significant settlement under the Stark Law, which bars physicians from making referrals to places where they have financial interests. The law also requires hospitals to pay doctors fair market value if the hospital is billing Medicare, regardless of the number of referrals doctors make. 

However, the former chief financial officer of the healthcare system and the U.S. Department of Justice (DOJ) claimed Community Health Network paid physicians significantly more than the fair market value for their services to benefit from referrals they’d made to other facilities within the network. The healthcare system also paid bonuses based on the number of referrals its physicians made, the DOJ said. 

Brian M. Boynton, the principal Deputy Attorney General of the DOJ’s Civil Division, commented: 

Today’s recovery demonstrates the department’s resolve to protect the integrity of federal healthcare programs and to safeguard the taxpayer dollars used to support these important programs.

The federal government is represented by Arthur Di Dio, Kelly McAuliffe, Claire Horrell and David Finkelstein of the U.S. Department of Justice’s Civil Division, and Justin Olson and Shelese Woods of the U.S. Attorney’s Office for the Southern District of Indiana.

The case is U.S. ex rel. Thomas Fischer v. Community Health Network Inc., case number 1:14-cv-01215, in the U.S. District Court for the Southern District of Indiana.

Source: Law360

The Beasley Allen Whistleblower Litigation Team

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

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

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

SECURITIES LITIGATION

Dollar General Hit With Investor Suit Over Understaffing Woes

On November 27, 2023, Dollar General was hit with a proposed class action by an investor alleging the discount retailer used a fraudulently devised growth plan to inflate the company’s share price while ignoring obvious consequences for company profits going forward. The suit claims Dollar General opened stores at an unsustainable pace, chronically understaffed these stores, and overcharged shoppers for products to pump up the share price, which at Dollar General, like most publicly traded companies, increases executive pay. Employees at understaffed stores could not complete basic tasks, leading to a decline in shoppers and merchandise losses on a grand scale, which in turn led to a drop in share prices after the issues became known. 

The Washtenaw County Employees’ Retirement System filed the lawsuit in Tennessee federal court against Dollar General, its CEO Todd Vasos, its former CEO Jeffrey Owen, its Chief Financial Officer Kelly Dilts and its former CFO John Garratt.  The proposed class includes all purchasers of Dollar General common stock between May 28, 2020, and Aug. 30, 2023. 

The complaint states that over the past decade, Dollar General has expanded its stores, distribution centers and sales exponentially despite the large shift by consumers to online retail sales. According to the complaint, between 2012 and 2022, Dollar General increased its store count by more than 90%, its net sales rose 9% per year, and its earnings per share grew by 14% per year. Share prices increased by more than 40% over this time, reaching a class period high of $262 per share in April 2022. 

However, the retirement system claims these favorable results and expansions were the result of a fraudulent scheme and that, in reality, Dollar General stores were “chronically understaffed,” logistical problems were hardly ever remedied, and the company faced operational difficulties that led to the buildup of unwanted inventory and the destruction and loss of tens of millions of dollars of merchandise. 

According to the complaint, Dollar General executives knowingly limited store labor hours, which put employees in situations where assigned tasks were impossible to complete within the allotted time of their shifts. Employees did not have enough time to update merchandise pricing or deal with inventory issues as they arose, and new merchandise often arrived at stores with no place to display it, the complaint states. 

“Items which were not selling at Dollar General steadily piled up. Stores became so crowded with disorganized merchandise that some were closed by fire marshals for being dangerously over-packed, preventing safe ingress and egress,” and causing shoppers to go elsewhere, the complaint also states.

The retirement system says there was also a systematic practice of overcharging customers, which “dropped directly to the bottom line as profits.” The complaint states that the practice was so pervasive that in November 2022, Ohio’s attorney general brought a lawsuit against the company, and an audit found “error rates ranging from 16.7% to 88.2%” in pricing at Dollar General stores located in Ohio. According to the complaint, the company was also fined in other states for similar pricing irregularities.

The complaint states that Dollar General’s stock price remained artificially inflated, though, and the individual defendants took advantage of this by selling their stock during the class period. According to the complaint, Vasos sold more than $283 million worth of his Dollar General shares at prices as high as $244 a share, and Garratt sold more than $31 million worth of his shares at prices as high as nearly $245 per share.

The scheme first began to unravel this past February when Dollar General pre-released its preliminary fourth quarter 2022 and fiscal year 2022 financial results and disclosed that sales and earnings would be below what investors had been told to expect. On this news, the complaint states that Dollar General stock declined more than $8 per share, closing at just over $217 per share. 

Soon afterward, the company announced a one-time “‘incremental investment of approximately $100 million in our stores, primarily in incremental labor hours, as we look to build on our sales momentum and capture additional market share by further enhancing store standards and the in-store experience,’” the complaint states. On this news, Dollar General’s stock decreased by $6.47 per share on March 16, 2023.  

But the retirement system says the defendants continued to materially misrepresent the company’s 2023 business operations and financial results by failing to disclose the effect Dollar General’s “dilapidated stores” had on customer spending, the substantial write-down of existing inventory due to theft and expiration losses, the impact of regulatory enforcement actions, and the reduction in revenue that would come when customers were no longer overcharged.

In June, these truths began to come to light when Dollar General reported “deeply disappointing” first quarter 2023 financial results, revealing revenue $130 million below analyst estimates, according to the complaint. “The company slashed its fiscal year 2023 earnings forecast” according to the complaint, telling investors that same-store sales for 2023 were expected to rise between 1% and 2%, drastically lower than the 3% to 3.5% originally forecasted, and that sales growth in 2023 would be 3.5% to 5%, compared to 5.5% to 6% disclosed in March 2023. After the news, Dollar General’s stock declined by more than $39 per share (nearly 20%) on June 1, 2023. 

In August, Dollar General again cut its sales and profit outlook but told investors it was taking steps to address its inventory and store issues. One of those steps was the deployment of “smart teams” that would move between multiple stores, organizing excess inventory and cleaning up stores. However, a report published by Business Insider on August 31, 2023 revealed that smart teams were usually sent to stores right before they underwent annual inventory reviews and that many times, items intended to be thrown out were marked down to one penny and remained on shelves due to understaffing. Dollar General’s stock declined again after the Business Insider article was published, falling another $19.16 per share (12%) on Aug. 31, 2023. 

Cases like these provide good examples of why securities laws, including public investor rights of action, are crucial to functioning markets and investor protection. It is common that executive compensation at publicly traded companies is tied to stock price. Logically, executives should be rewarded for providing value to shareholder owners. But stock-based compensation also provides incentive to engage in practices that pump stock prices up in the short-term without regard to whether investors will be better off in the long or even near future.  Without oversight or the threat of accountability to stockholders, the lure of a golden parachute could be too great for many.  

The case is Washtenaw County Employees’ Retirement System v. Dollar General Corporation et al., case number 3:23-cv-01250, in the U.S. District Court for the Middle District of Tennessee.

Securities Litigation Team At Beasley Allen

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

Lawyers in the section who handle these claims welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. 

You can contact a member of our Securities Litigation Team concerning any securities cases or issues. The team includes the following lawyers: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached by using the contact form at the bottom of this page.

MASS TORTS LITIGATION

Infant Formula Litigation Update

Necrotizing enterocolitis (NEC) is a serious and often fatal condition of the intestinal tract. It results in the degradation and subsequent perforation of the bowels and is found most commonly in premature, underweight infants who were fed cow’s milk-based formula. Studies clearly show that premature, underweight infants are at a much higher risk of this often fatal condition when given infant 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.

Presently the federal litigation is consolidated in Chicago. A national multi-district litigation court has been established in the Northern District of Illinois with the Honorable Rebecca Pallmeyer presiding. The court recently held a “science day” wherein attorneys from both sides offered their views on the science and causation. Discovery is ongoing as we march toward a trial schedule.

Beasley Allen has also filed cases in Madison County, IL. Those cases are presently stalled as the defendants appeal several jurisdictional decisions by Presiding Judge Dennis Ruth. All briefs have now been filed with the appellate court, and we await the court’s ruling. We hope those appeals will be resolved by year’s end, so we can resume our trial schedule. In the meantime, experts are being deposed, and discovery continues. 

MDL Judge Disqualifies Plaintiff’s Experts In Acetaminophen MDL

U.S. District Judge Denise Cote, the federal judge overseeing In re Acetaminophen – ASD-ADHD Products Liability Litigation (the Acetaminophen MDL) in the U.S. District Court for the Southern District of New York, granted defendants’ motions to exclude plaintiff’s experts for general causation, finding insufficient evidence to allow a jury to hear cases alleging that acetaminophen use during pregnancy is linked to autism and/or ADHD. Both sides had fully completed briefing regarding the testimony of each potential expert in early November, and oral arguments were held in December

The MDL Court ultimately found that although the experts were well qualified, there was no scientific consensus that prenatal acetaminophen use causes autism and/or ADHD based on the methodology plaintiffs’ experts used to make their conclusions. 

Although this development is not good in this litigation for federal court plaintiffs, most intend to pursue their cases in state courts throughout the country.  There are currently 441 cases pending in the Acetaminophen MDL, all of which may have the opportunity for their case to be heard in these various state courts. Lawyers for the plaintiffs are also exploring the possibility of appealing Judge Cote’s decision. 

Novo Nordisk Pays U.S. Doctors To Promote Ozempic And Wegovy For Weight Loss

A Reuters special report found that Novo Nordisk paid U.S. health professionals at least $25.8 million between 2013 and 2022 for consulting, speaking, and other expenses related to its diabetes and weight loss drugs like Ozempic and Wegovy. At least $12.38 million of that was paid to speakers to promote Wegovy or similar drugs. Novo Nordisk concentrated its money on groups of obesity specialists, who then advocated for prescribing the drug to tens of millions of Americans for both Type 2 diabetes management and weight loss. 

The ongoing promotion of drugs like Ozempic and Wegovy is a subject of fierce debate after studies have consistently shown an increased risk for gastrointestinal issues such as severe gastroparesis, ileus, and bowel obstruction requiring surgery or other medical intervention. Sadly, some individuals have died from complications related to these injuries. Despite these known risks, Novo Nordisk continues to promote these drugs to physicians and their patients. 

Beasley Allen lawyers in our Mass Torts Section are investigating cases involving brand-name Ozempic, Wegovy, and Rybelsus users who were subsequently diagnosed with gastrointestinal issues or suicide.

Source: Reuters

New Investigation Reveals That More Than 580 Floridians Died From Kratom

The Tampa Bay Times has released results from its new investigation that found that more than 580 people in Florida have died from kratom-related overdoses during the past decade. “Hundreds died using kratom in Florida. It was touted as safe,” reads the title of Part 1 of the Tampa Bay Times investigation. The journalists reported that most of the deaths were caused by a fatal mixture of kratom and at least one other substance, but 46 people overdosed solely on kratom. The Times also released its methods for determining these numbers, which shows a reliable step-by-step process wherein the Times examined numerous medical examiners’ decisions.

Researchers and medical professionals have linked kratom to seizures, organ failure, overdoses, and deaths. Kratom comes in either as a pill or liquid extract. The liquid extracts are usually more potent than the pill form. Kratom is currently illegal in Alabama, Arkansas, Indiana, Rhode Island, Vermont, and Wisconsin. Kratom is widely popular in many states, however, such as Florida and Georgia. Kratom is usually available in those states right by the counter at the local gas station. The problem is that kratom is not adequately labeled in many respects.

Beasley Allen lawyers Roger Smith, Ryan Duplechin, Jennifer Emmel, and Mary Cam Raybon are currently litigating a products liability case involving kratom in Fulton County, Georgia. That case involves a former nurse who suffered a severe seizure and brain injury due to kratom companies failing to warn about such severe risks and side effects. 

Beasley Allen lawyers will continue representing people who seek to hold kratom companies accountable for their deceptive marketing and sales practices, which has led to serious injuries to many individuals who were unaware of its dangerous side effects.

Source: Tampa Bay Times

FDA Warns Of New Safety Issues Involving The Philips’ DreamStation 2 CPAP Machines

On November 28, 2023, the FDA (Food and Drug Administration) issued a statement cautioning the use of the Phillips’ DreamStation 2 CPAP machines due to multiple reports indicating these machines are at risk of overheating. From August to November 15, 2023, the FDA received approximately 270 reports of this medical device overheating, which can lead to fire, smoke, burns and other signs of overheating while using the machine. The FDA received approximately 270 reports of problems with this device between August and November 15, 2023, compared to less than 30 reports in the previous three years. 

The DreamStation 2 CPAP machines were distributed as replacements for recalled DreamStation 2 CPAP machines, which are included in ongoing personal injury lawsuits for injuries related to CPAP machines with defective foam insulation known to degrade and injure its user. The FDA has not indicated there is any reason to believe this issue is related to the foam used in the machine. However, there may be new concerns related to an electrical or mechanical malfunction causing it to overheat in certain situations.

The FDA is warning DreamStation 2 CPAP users to reduce the risk of overheating by regularly cleaning the device, using it on a flat surface and avoiding flammable materials when in use, unplugging the machine when it is not in use, emptying the device’s water reservoir regularly, letting the heater plate and water tank cool for at least 15 minutes before removing the tank and checking the device for unusual smells before each use.

Hair Relaxers Litigation Update

The hair relaxer litigation is moving along at a fast pace. Recently, Judge Mary Rowland denied the defendants’ motion to dismiss multiple counts in a pending complaint. Right now, there are more than 8,000 cases filed in the MDL by women alleging that manufacturers of hair relaxers advertised, manufactured, and sold toxic hair relaxer products that caused them to develop cancers and other injuries. The National Institutes of Health (NIH) found women who frequently used chemical hair straightening or hair relaxer products were more likely to develop uterine cancer. Manufacturers of hair relaxers intentionally targeted Black and Brown women as customers for their unsafe hair relaxer products.

Defendants filed a joint motion to dismiss the plaintiffs; master long-form complaint, arguing that certain claims are preempted by the Food, Drug, and Cosmetic Act (FDCA). However, the MDL court concluded that the claims are not preempted. The court also addressed the defendants’ arguments against the negligence, design defect, and failure to warn claims and found that plaintiffs have alleged sufficient facts to avoid dismissal. The court did dismiss the fraud-based claims by plaintiffs but found that the plaintiffs’ warranty claims were adequately pleaded. The court also denied the defendants’ motion to dismiss claims for unjust enrichment, punitive damages, and derivative claims.

TOXIC TORT LITIGATION

An Update On The Opioid Litigation

The U.S. Supreme Court has heard a challenge to the Purdue Bankruptcy resolution wherein the Sackler family, owners of Oxycontin manufacturer Purdue Pharma, received a liability shield for their own wrongdoing, in return for a contribution of 6 billion dollars to the bankruptcy estate, which ultimately will be paid out to victims of the opioid crisis.

The challenge is being led by the United States Trustee, a government watchdog for the bankruptcy court, not an actual creditor of the estate. The liability shield, a “nonconsensual release of third party claims,” extinguishes a creditor’s claim against a person or entity that did not file bankruptcy without that creditor’s permission. In this case,

close to 100% of the creditors of the estate voted to permit the nonconsensual release in return for the 6 billion dollar contribution.

Although there is no express statutory provision for such a release, the Bankruptcy Code allows “appropriate relief” in certain circumstances. Such releases are a longstanding practice in Bankruptcy Court. However, such a release extinguishes personal property rights – the rights of injured persons to have their day in court, raising serious Constitutional concerns since the Sacklers are not part of the bankruptcy. On the other hand, it empowers, at least in the instant case, a few loan dissenters to torpedo a 10 billion dollar settlement.

Paraquat Litigation Update

There has been no ruling thus far on the Daubert issues presented in the paraquat multidistrict litigation in the Southern District of Illinois. These motions were briefed and argued in August and September of 2023. The Daubert rulings will have an impact on more than just the multidistrict litigation. In California, Judge Treat, who is overseeing the judicial council coordination proceedings in the Superior Court of Contra Costa, has vacated the January 2024 trial date in a recent order. Judge Treat ordered the January 2024 trial dates vacated because the MDL court has not yet ruled on the pending Daubert motions. Until these pending Daubert motions are resolved, the trial date will not be reset.

Cases are still being filed, however. There are over 4,500 cases filed in the multidistrict litigation centralized in Illinois. Further, there are close to 350 active paraquat cases in the California court system, most of which have been consolidated into the JCCP proceeding. Leslie LaMacchia and Julia Merritt, who are both on the Plaintiff’s Executive Committee, are leading Beasley Allen’s Paraquat litigation. Beasley Allen is working with numerous firms to offer advice on case screening and acquisition for these cases. As the litigation continues to move forward, our Paraquat Litigation Team at Beasley Allen is working with a number of firms to advance these cases to resolution. These cases, in particular, have many areas that require experience, so reach out to our team of lawyers for assistance or to work together on Paraquat cases. 

PFC Water Settlement Update

Two groups of settling defendants, 3M Company (3M” and E.I. Du Pont de Nemours and related companies (collectively, Dupont), have current proposed class action settlements designed to resolve claims for PFAS contamination in Public Water Systems’ Drinking Water. 

These proposed settlements in the AFFF multi-district litigation have received preliminary approval from the United States District Court for the District of South Carolina, but are still subject to final approval by Judge Richard M. Gergel. There have already been notable deadlines, including the deadline to submit objections to either settlement on November 11, 2023, and deadlines to submit requests for exclusion from the settlements on December 4, 2023 for DuPont and December 11, 2023 for 3M. 

The court’s final fairness hearing focused on the Dupont settlement on December 14, 2023, while the fairness hearing focused on the 3M settlement will be on February 2, 2024. After these deadlines, the process of submitting public water system settlement claims forms, special needs claims forms, baseline testing, and supplemental fund claims forms will begin. Unless the public water system timely opted out, they will be precluded from pursuing claims against 3M and Dupont if those claims are within the scope of the settlements. These systems will be bound by any judgment or other final disposition of the settlement, including the releases set forth in the settlement agreements.

Source: PFAS Water Settlement

AFFF Litigation Update

The billion-dollar settlement of the water contamination cases has left many individuals frustrated, wondering when the court would address the remaining AFFF personal injury and wrongful death lawsuits. The time has now arrived. The MDL is beginning to shift its focus to resolving cases for victims who developed cancer due to the effects of occupational exposure from AFFF.

On December 5, 2023, MDL Judge Mark Gergel issued a new Case Management Order that outlines a schedule for Bellwether test cases. This order includes a “science day” and sets out a detailed schedule that lends guidance on the selection process for AFFF personal injury claims for potential bellwether trial candidates.

The parties were to have provided the court with a list of the plaintiffs with personal injury claims by December 11, 2023. A group of 28 cancer cases will be selected to go through case-specific fact discovery. Once that is finished, there is a strong possibility that there will be a global settlement of these cancer cases before these parties can even see a courtroom.

This litigation is unique in that, in most instances, there has never been a roadmap to predict how defendants will respond to the pressure of a trial, but here we do have one. In the water contamination lawsuits, these same defendants raced to the settlement table in lieu of facing trial. Beasley Allen lawyers are hopeful this mounting pressure will compel defendants to reach a settlement agreement as they move toward individual trials in 2024.  

Beasley Allen lawyers are currently accepting and investigating claims on behalf of firefighters exposed to AFFF and other individuals exposed to PFAS in drinking water. 

Microplastics – Investigating The Viability Of Claims

You may have heard the term “microplastics” in the news recently. Microplastics are tiny bits of plastic created when larger plastic items (like bottles, fabrics, plastic bags, and containers) break down in the environment after being thrown away or recycled. They are often too small to be seen with the naked eye. The New York Attorney General recently filed a suit against PepsiCo, in part for its role in microplastics pollution. 

Microplastics pollute the water we drink and the air we breathe in ways that we are just starting to learn more about. Microplastics have been found in food and drinks, as well as tap water. A recent study found that nearly 80% of subjects tested had microplastic particles in their bloodstream. The effect on human health is not yet fully known, but plastics often contain additives, such as stabilizers or flame-retardants, and other possibly toxic chemical substances that may be harmful to the person ingesting them.

Lawyers in our firm’s Toxic Torts Section are investigating this topic to identify potential harms that microplastics may cause and areas where we can stop this pollution. We are consulting with toxicology and epidemiology experts to determine how we can address this new and expanding field of research. Beasley Allen remains committed to being a national leader in toxic pollution litigation – stay tuned for more details and information. 

Climate Change Litigation End Of Year Review 2023

Climate change has been a subject of litigation in nearly 2,000 cases dating back to the 1980s. Climate change lawsuits in the United States have taken on many different forms, such as federal statutory claims, regulatory claims, constitutional claims, and state common law claims, and have even included criminal law for climate change protestors. There have also been many climate change lawsuits outside the U.S.

The relief sought in climate change litigation varies greatly as well. Industry challenges to regulations seek more lenient regulations. Environmentalists seeking more stringent regulations. Cities, Counties, and States seeking abatement damages for climate change resiliency measures and natural resource damages. The list goes on. Leading the way on some of the most consequential climate change lawsuits are those brought by state and local governments. 

In April, the U.S. Supreme Court denied certiorari to allow fossil fuel companies to remove dozens of state claims to federal courts. This allows many claims to proceed into substantive issues not yet tested in courts, such as the role that fossil fuel companies played by promoting the use of fossil fuels, as well as causation theories, such as the role global climate change plays in wildfires and droughts. 

There have been many new climate change related cases in 2023. There have been new challenges to logging projects, pipelines, oil and gas leasing, livestock grazing, and endangered species listing. Challenges continue to mount against utility companies and public service commissions over the continued use of fossil fuels in the electricity sector. Also, the tragic fires in Hawaii renewed focus on personal injury claims related to climate change. 2024 will likely bring more new cases and new developments in the realm of climate change litigation.

THE CONSUMER CORNER

The Scope and Strength of the AAJ and Its Members Working Together in 2023

The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America, is a nonprofit advocacy and lobbying organization for U.S. plaintiffs’ lawyers. In 2023, AAJ continued to uphold the foundational pillars of AAJ — advocacy, community, and education. 

AAJ Advocacy

AAJ advocates for clients’ rights in Congress, federal regulatory agencies, and courts. The organization continuously monitors these arenas and the concerns of AAJ members to anticipate and respond to issues regarding insurance, safety, and consumer protection. Last year, AAJ advocated on several issues involving consumer safety/products, healthcare, Medicare/Medicaid, transportation, and workplace/labor. 

AAJ’s latest report, highlighted in Politico, found that corporations increasingly use forced arbitration against their customers to take away their legal rights, with claims surging a startling 467% over last year. AAJ supports legislation to end forced arbitration. More than 100 consumer, racial justice, and labor rights groups; 170 law professors; and 17 military and veterans’ organizations support an AAJ and consumer coalition-filed Consumer Financial Protection Bureau (CFPB) petition asking the Bureau to issue a rule to rein in forced arbitration. 

AAJ Community

In 2023, many AAJ members supported the association’s community efforts by contributing to depositions and other documents from their successful cases to help AAJ staff attorneys develop and update Litigation Packets on topics including mass torts, slip and fall accidents, police misconduct, and motor vehicle cases. 

These packets help AAJ members with case evaluation and preparation to save valuable time and level the playing field for plaintiffs’ lawyers up against large defense teams. 

AAJ Education

AAJ members also help empower AAJ education programs. Last year, AAJ presented eight seminars, 12 colleges, and nine webinars. Nearly 250 members volunteered as faculty in education programs. 

AAJ has even more plans for 2024, continually focused on fighting for the rights of its members’ clients.  

I encourage all of our readers to learn more about AAJ. You can go to their website at https://www.justice.org/. Beasley Allen supports AAJ, and we appreciate all their hard work and dedication on behalf of consumers and working men and women. They have helped make our products and workplaces safer.

Michigan Governor Signs Law Repealing Immunity For Drug Manufacturers

On December 7, 2023, Michigan Governor Gretchen Whitmer signed Senate Bill No 410. This bill repeals a 1995 law that provided immunity to drug manufacturers from product liability. Previously, the Michigan Product Liability Act (1995) exempted drug manufacturers and sellers from liability if the drug in question obtained FDA approval with compliant labeling. The only exception to immunity was if the FDA determines that fraud or bribery influenced the approval process. 

For nearly 30 years, this law prohibited citizens and governments from recovering in state courts for injuries caused by prescription drugs. The law has also prevented citizens of Michigan from participating in national settlements resolving federal litigation against drug manufacturers. 

Under the new law, this immunity is repealed. Instead, if a pharmaceutical product conforms to injury-relevant FDA standards and regulations while in the company’s control, there is a rebuttal presumption that the product was not defective. Plaintiffs are now afforded the opportunity to claim and prove a product defect. However, the bill is not retroactive to prior claims. The law also requires plaintiffs to prove that the product was “not reasonably safe” and there existed a “practical and technically feasible alternative production practice” to establish the product was defective.

Michigan Attorney General Dana Nessel celebrated the new law in a statement: 

The Michigan Product Liability Act has been used for far too long to shield pharmaceutical companies from accepting responsibility when they knowingly defraud and harm the public[.] . . . While my Department was ultimately successful in litigating claims against a host of opioid defendants, the existence of this unique provision greatly complicated the approach. I applaud the legislature for finally addressing this one-of-a-kind bill that placed protections for large corporations over the safety of Michigan residents.

It’s really good to see state legislators taking action when there is a clear need for change in existing law. This was a prime example of facing up to a serious deficiency in existing law and acting to bring about needed change. 

Sources: Michigan Advance, Mid Michigan Now, State Net

HISTORY OF THE BEASLEY ALLEN LAW FIRM

Beasley Allen will celebrate its 45^th Anniversary this month. The following was written by our JLB Report Team. Tom Methvin, our Managing Attorney, felt a historical feature on the firm for our 45^th Anniversary was needed for this issue.  

Forty-Five Years of Helping Those Who Need it the Most

Beasley Allen Law Firm’s storied history is a testament to the power of unwavering dedication to the founding principle: “Helping those who need it the most.” 

When Beasley Allen was in its infancy, it was unfathomable for Jere Beasley to believe the firm would grow beyond five lawyers. His primary goal was to build a good law firm, one that would represent people from all walks of life who both needed and deserved justice. 

Humble Beginnings

In a small office on Hull Street, Jere Beasley established what would become known as Jere Beasley Law Firm in 1979. Frank Wilson, a former law clerk for U.S. District Judge Bob Varner, became Jere’s first law partner and remained with the firm for 19 years. Georgia native and law student Greg Allen joined the firm as a law clerk and eventually became Jere’s second partner. Following close behind, in the same manner, was Mike Crow. 

By 1981, the firm was beginning to make a name for itself in the wake of tort law changes in the decades prior that improved victims’ access to justice through the U.S. court system. But the political landscape was changing. Operatives backed by large, deep-pocketed corporations waged a political opinion war on trial lawyers in an attempt to reclaim the judicial advantage they once had over the so-called “little man.” These campaigns failed to recognize the critical role that trial lawyers have in improving the health and safety of the public by holding corporate bad actors accountable. 

Meeting Challenges Head-On

The evolving political climate posed unique challenges, prompting Tom Methvin, who joined the firm in 1988 and later assumed the role of Managing Attorney, to devise innovative solutions. Tom expanded the firm’s reach beyond Alabama, and under his leadership, the firm delved into national cases, pioneering Mass Torts focused on dangerous drugs and medical devices. The firm’s first case to reach the national arena involved the diet drug Fen-Phen. Beasley Allen successfully obtained sizable compensation for victims who developed long-term heart valve problems after using the drug. 

Additionally, Tom and the board of directors restructured the firm, inspired by the success of the Mass Torts Section. Tom recognized the potential for lawyers to specialize in specific areas of law, enhancing the firm’s ability to fulfill its mission of aiding those in need. This innovative approach also allowed lawyers to stay at the forefront of emerging legal trends and maintain innovation in their practice, even when confronted with substantial challenges.

Over the years, Beasley Allen has played a pivotal role in securing some of the largest civil litigation verdicts in the country. The firm holds U.S. records for the largest verdict against an oil company, pharmaceutical drug settlement, state Medicaid fraud litigation, individual environmental settlement, and predatory lending verdict. 

Commitment to Justice

What started as a one-lawyer firm headquartered in Montgomery, Alabama, has grown into a team of dedicated lawyers and support staff across four locations — Montgomery, Mobile, Atlanta, and Dallas. Through the years, Beasley Allen has become one of the world’s most prominent civil litigation firms, representing hundreds of thousands of people, not just in Alabama, Georgia, and Texas but across the entire country. 

Reflecting on Beasley Allen’s remarkable journey, it is evident that its legacy of advocacy, commitment, and success will continue to inspire and guide the legal profession in the pursuit of justice for those in need. The Beasley Allen Law Firm remains a shining example of how legal professionals can use their expertise and resources to make a meaningful difference in the lives of others by helping those who need it the most. 

A LOOK AT THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

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

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

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

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

The Mass Torts Section

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

The Toxic Torts Section

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

The Consumer Fraud & Commercial LItigation Section

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

The Personal Injury & Products LIablity Section

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

The Administrative Section

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

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

The Latest Look At Case Activity At Beasley Allen

Our BeasleyAllen.com website provides the latest information on the current case activity at Beasley Allen. The list can be found on our homepage, the top navigation, or the practices page of our website (BeasleyAllen.com/Practices/). The following are the current case activity listings for the Beasley Allen Sections.

Practices

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

Cases 

The cases in the categories listed below are handled by lawyers in the appropriate Litigation Section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website. 

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

We will give a brief explanation for each category below:

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

Resources to Help Your Law Practice

Beasley Allen, by choice, is a litigation firm representing only plaintiffs. This means the firm 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, whether civil or criminal, and there are no exceptions. The only time we represent companies in Corporate America is when they are victims of wrongdoing and are plaintiffs in civil litigation. This has been our policy since the firm’s establishment in 1979, and it will never be changed.

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

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

Co-Counsel E-Newsletter 

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

Webinars

Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for presentations. To register for upcoming events or access past webinars on-demand, visit the website and click on the Events and Webinar page.

Recalls Update

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

The Jere Beasley Report

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

TRIAL TIPS FOR LAWYERS

Practice Tips: The Path To Trial Begins With A Well-Pled Complaint 

Dylan Martin, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, will give trial lawyers some recommendations relating to the drafting of complaints. He will emphasize how important drafting a good complaint really is. 

Many lawyers have the skills required to effectively present a case at trial. However, getting to trial begins with an often-underappreciated part of litigation: the complaint. There are a lot of issues to keep in mind when preparing your complaints.

First, the complaint must be well-pled. In Federal Court, a complaint must allege facts—not conclusory legal statements—that, if true, state plausible claims for which relief can be granted. Take, for example, a common negligence case. Rather than baldly alleging a duty was breached, you should allege facts indicating specifically how a duty was breached. Moreover, some claims, such as those sounding in fraud, require more specific allegations. It is important to confirm the legal standard that will apply to your complaint at the onset so you can draft it accordingly. 

Second, your complaint should be clear and well organized. Judge Prettyman, a former Judge on the D.C. Circuit Court of Appeals, once stated “The lawyer’s greatest weapon is clarity.” The complaint is your first opportunity to frame your case, issues, and facts for your judge. Your complaint should clearly spell out who did what, when they did it, how they did it, and how that damaged your client(s). Often, your complaint will include multiple defendants. In those cases, in addition to your general factual allegations, it is best practice to have standalone sections for each defendant, laying out the facts applicable to each defendant and how those facts damaged your client(s). The standalone sections may be partly redundant to the general section, but it is best to err on the side of clarity rather than ambiguity. 

Third, when drafting your complaint, you should anticipate legal issues and think ahead to discovery and trial preparation. You should always think of the complaint as your toolbox. The allegations in your complaint are the tools you need to overcome motions to dismiss and open the door to discovery. The complaint must include all the necessary allegations to get past the pleadings stage. If you leave the necessary allegations out, you may not be able to satisfy the requirements of your legal claims, and thus, your case will be dismissed on the pleadings. 

With these three guiding principles in mind, let us share with you four tips for drafting a well-pleaded complaint:

1. After thoroughly interviewing your client and reviewing all relevant documentation in your client’s possession, thoroughly research the elements of your claims and the defenses you anticipate the defendant(s) will raise. 

2. With these necessary elements and related facts in mind, clearly and concisely state the factual allegations supporting your client’s claims. The best way to do this is to tell a story, and there is no better place to start than at the beginning. For example, in a product liability lawsuit, your complaint should start with your client’s product purchase. Then, it should transition into how they use and maintain the product. After that predicate is laid, you should tell the story of how the product was defective at no fault of your client, how the defect manifested, and the damage the defect caused to your client. 

3. You should also anticipate and plead around defenses or other legal issues in your complaint. For example, a statute of limitations defense can easily be overcome by alleging sufficient facts to trigger certain tolling doctrines, such as fraudulent concealment tolling or the discovery rule. 

  4. After the complaint is drafted and as part of the editing process, you should prepare a checklist for each element for each defendant, as well as any other issues your research indicates you should plead around or get ahead of. Once your checklist is prepared, go through the complaint and list the fact(s) that support each element or issue on the checklist. This process not only confirms your complaint is well-pled, but it will also help you prepare your opposition to any motions to dismiss that may be filed. 

SPECIAL RECOGNITIONS

Attorney Spotlight

Tom Methvin, our Managing Attorney, insisted on my being in the spotlight for this issue. Reluctantly, I agreed. The piece below was written by our JLB Report team.

Jere Beasley: A Life of Faith, Service, and Justice

Few figures stand as prominent and influential as Jere Beasley in the world of civil litigation and consumer law. As the founder of the Beasley Allen law firm, his life and legacy are intertwined with the highest standards of servitude, the pursuit of justice, helping those who need it most, and putting God above all else.  

Born in Tyler, Texas, in 1935, Jere Beasley’s journey in the legal field began at the University of Alabama, where he earned his law degree in 1962. His dedication to the principles of justice was evident from the outset. Jere would want all to know that he is a 1959 graduate of Auburn University. 

After practicing law for several years, Jere had another calling, and he stepped into the arena of Alabama politics when the state was still grappling with major political and social shifts born of the civil rights movement. In 1970, he was elected to become the 22nd Lieutenant Governor of Alabama, the youngest lieutenant governor at the time. He held that position until 1979, briefly becoming the acting Governor of Alabama in January of 1972 while Governor George Wallace was recovering from an assassination attempt.  

After an unsuccessful campaign to win the Governor’s office in the 1978 election, Jere left politics and returned to law. This decision was made after much prayer and contemplation and an important visit with Judge Frank M. Johnson. 

Placing God as his priority in everything he did, Jere soon found that everything would fall into place. In January of 1979, Jere opened a one-lawyer practice in Montgomery – a firm founded on the principle of helping those who need it most. This new firm, as it evolved, would provide justice for those injured or wronged through no fault of their own. 

At that time, few lawyers in the country had the desire or the courage to help the average, everyday American stand up to powerful corporations in a court of law. Under Jere’s leadership, the firm grew exponentially, both in terms of size and reputation. From its humble start as a one-lawyer firm, Beasley Allen has expanded exponentially with law offices in Atlanta, Mobile, and Dallas, in addition to its Montgomery home base. 

Throughout the last 45 years, Jere and Beasley Allen have litigated numerous landmark cases that have made a positive difference in the lives of all Americans, resulting in safety recalls, better safety rules and regulations, safer products, and settlements and judgments that have prompted companies to change the way they do business. Thousands of other cases have resulted in settlements and judgments that improved the lives of individual clients and entire communities.

Jere’s influence extends beyond the walls of his firm. He has been a mentor to many and shares with his staff the guiding principles of integrity, dedication and compassion. His legacy is evident not just in the cases won or the settlements secured. It lies in the countless people and communities he and his firm have helped through the pursuit of justice.

FAVORITE BIBLE VERSES

I am furnishing my favorite Bible verses for this issue. Having just celebrated Jesus’ birth on Christmas day and now getting ready for this New Year, it’s important for all of us to reflect on the things that are important in our lives.  While I have numerous verses that could be considered my favorites, those below top the list. 

For God so loved the world that He gave His only begotten Son, that whoever believes in Him should not perish but have everlasting life. John 3:16

I can do all things through Christ who strengthens me. Philippians 4:13

But Jesus looked at them and said to them, “With men this is impossible, but with God all things are possible.” Matthew 19:26

Teacher, which is the great commandment in the law?” Jesus said to him, “‘You shall love the Lord your God with all your heart, with all your soul, and with all your mind.’ This is the first and great commandment. And the second is like it: ‘You shall love your neighbor as yourself.’ On these two commandments hang all the Law and the Prophets.

Matthew 22:36-40

But those who wait on the LordShall renew their strength;They shall mount up with wings like eagles,They shall run and not be weary,They shall walk and not faint. Isiah 40:31

CLOSING OBSERVATIONS

This is another piece on our firm that reflects on the past and looks to the future. 

Envisioning The Next 45 Years

The Beasley Allen Law Firm was founded in 1979 and was based on the principle of “helping those who need it the most” — by providing strong legal representation to individuals and businesses harmed by no act of their own. That principle continues to serve as the foundation for the firm’s work 45 years later. 

Much has changed these past 45 years; the world has undergone a remarkable transformation, with advances in technology, communication, and globalization reshaping nearly every aspect of our lives. From the proliferation of the internet to the rise of smartphones and the profound shifts in political, social, and environmental landscapes, these decades have brought about an unprecedented rate of change, fundamentally altering the way we live, work, and connect with one another.

Yet, the more things change, the more they stay the same. Bad actors continue to find new ways to commit the same type of wrongs they have been doing throughout history. Many cases Beasley Allen lawyers handle today harken back to cases we have handled in the past that involve greed, corruption and other bad conduct.

Beasley Allen lawyers have obtained justice for those injured by defective General Motors ignition switches and defective Toyota fuel pumps, youth targeted by JUUL and lured into a vaping crisis, and for countless consumers injured or killed by defective drugs and medical devices. 

Beasley Allen has taken on pharmaceutical giants, such as Johnson & Johnson, a company that deceptively marketed its talcum powder, which is linked to an increased risk of ovarian cancer. Our lawyers have also challenged the predatory lending industry that preys on minorities, the economically disadvantaged, and the elderly. 

Our lawyers are also helping thousands of veterans, family members, and civilians harmed by contaminated water at Camp Lejeune military base obtain long-deserved compensation for their injuries through the Camp Lejeune Justice Act. 

We could list the thousands of other cases where our lawyers took on corporate giants and won for our clients. 

In our line of work as trial lawyers, we often sit with people going through one of the worst times of their lives. Often, they are up against a goliath — a giant corporation with vast resources to fight back. The true measure of our success is bringing these battles into the level playing field of the courtroom — where everyone can obtain real justice — and helping our clients prevail in the face of such overwhelming odds. 

Everyone at Beasley Allen remains committed to the firm’s legacy. As we look forward to the next 45 years and beyond, we will continue our unwavering dedication to “helping those who need it the most,” striving for justice and fairness in every case we take on. 

I am blessed to have been on board at Beasley Allen since day one. If I ever write a book, it may not be very good from a literary perspective, but I can guarantee one thing – it would be most interesting!

OUR MONTHLY REMINDERS

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

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

2 Chron 7:14

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

Edmund Burke

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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

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

PARTING WORDS

I have been blessed to have founded this law firm in January of 1979 and 45 years later to be further blessed by being allowed to be a part of Beasley Allen. In late 1978, I was a defeated politician, in debt, and unable to secure a job with any law firm. The visit with Judge Frank M. Johnson referred to in this issue, was the turning point in my career as a lawyer. His counsel and the prayers of many, including my wife Sara, led me to start a law firm in Montgomery on Jan. 7, 1979. The rest is history.