CAPITOL OBSERVATIONS

The Goal: A More Perfect Union

America is at a crossroads today, and we are in a battle to save our democracy. Recently Flag Day was celebrated in our country, and it should have made us take stock of where we are in America. The American Flag offers a shared symbolism of patriotism, and it embraces the American spirit. The United States of America, a Republic, is relatively young, having come into existence less than 250 years ago. The question now is how long will our Republic last?

While our flag’s patriotic value and symbolism have remained the same over the years, there has been a marked demise of patriotism in the country. We are more divided today than ever. Patriotism should not be conflated, as it has been recently, with nationalism. Patriotism is support and devotion to your country. While nationalism has a similar basis, it is often expressed in a way that excludes or is detrimental to other nations or people of different nationalities.

The amalgamation of patriotism and nationalism has led to a shift in discourse in our country. What once was a healthy debate among varying opinions on the national stage has become bloated with animus-filled diatribes. This shift has taken us to the brink of a dark abyss filled with far too much fear and hate resulting in the weakening of our Republic. This does not reflect all that our country has stood for nearly two-and-a-half centuries.

We must support our country during the good and bad times. While we can disagree, we must work together in critical areas of concern for the common good. We must strive to make things better for our country and all Americans. As we stand at this crossroads, now is the time, as a nation, that we take a step back and assess where we are and where we want to go.

Two recent examples of patriotism have demonstrated that it isn’t too late for our country to turn things around.

A More Perfect Union

A movement born in Lee County, Alabama, has gained national prominence and support. The group is spearheading an initiative called “A More Perfect Union,” prompted by the vision of the late Lieutenant General (LTG) Hal Moore, who resided in Lee County until his death in February 2017. Toby Warren, also a longtime Lee County resident, promised his mentor, LTG Moore, that he would continue the work the two had championed – to create a better future for the country, especially for veterans and youth.

Eleven months after LTG Moore’s death, Toby drafted the Declaration for a More Perfect Union to honor the Preamble of the U.S. Constitution. Since then, he established the United States Trust (U.S. Trust) to compliment the efforts of the National Endowment for the Humanities in preparation for the country’s 250th-anniversary celebration in 2026. Toby has also been on a quest to secure signatures from leaders in every state. Alabama State Supreme Court Chief Justice Tom Parker is one of the many Alabamians who have signed the tribute, which was notarized on National Constitution Day in September 2020. There are over 190 signatures from U.S. citizens reflecting diversity in race, religion, politics, age, gender and vision for the future. I am proud to have been an early signer.

A five-year master strategy will involve engaging signers in a planned National Joint Blue-Ribbon Commission for A More Perfect Union. There will be seven working groups. Each group will represent one of the seven parts of the Preamble, and each working group will include three components – research, decision-making and action plan. Toby explains:

The U.S. Trust pledges to advance a needed emphasis for A More Perfect Union. To this end, we shall honor our Constitution in these most important pursuits and practices to promote the general welfare and to secure the blessings of liberty to ourselves and our posterity.

This Sept. 13–17, the group plans to celebrate “A More Perfect Union Week for the General Welfare of the People.” It will encourage activities each day that are designed to promote a more perfect union.

America is not perfect, but it is a nation that has survived a bloody civil war, two world wars and several regional wars with Americans participating in them. Each war has left its mark on our union. But those marks, recognized and appropriately addressed, can shine as symbols of a maturing nation – exhibiting the strength and unity demanded of a more perfect nation.

While we live in a country where “freedom and justice for all” is promised to all of its citizens, that hasn’t always been the case. Slavery in America is one of the ugliest scars our nation bears. But we should let that scar serve as a reminder of our failure and embolden us to strive together to do better. It is our obligation to make “freedom and justice for all” a reality in America.

Juneteenth

Last month, President Biden signed legislation formally recognizing Juneteenth as a national holiday. It was another patriotic effort to move the U.S. towards a more perfect union. The holiday commemorates June 19, 1865, which was the day Union Major General Gordon Granger announced the end of slavery in Galveston, Texas, in accordance with the Emancipation Proclamation President Abraham Lincoln had created two years earlier. Juneteenth has been celebrated for 149 years, and formalizing the day as a federal holiday was a symbolic step towards remembering and admitting a part of our country’s history that is painful and regretful.

In signing the law, President Biden urged Americans to make the day about reflection and action, saying, “We can’t rest until the promise of equality is fulfilled for every one of us in every corner of this nation. That to me is the meaning of Juneteenth.”

Like our flag, Juneteenth now stands as a symbol for a turning point in our country. One that we hope will serve as an enduring reminder of patriotism and a recommitment to the principles and values on which our country was founded.

“Old Glory” has seen our country through good times and bad. Our flag has stood the test of time, and we should look to it with reverence and appreciation for its meaning of freedom and love for the country regardless of the political party in power. We must strive together to truly make America “the land of the free and the home of the brave” and a nation where “liberty and justice for all” is a reality. The goal is for a more perfect union. I am confident America will survive the current division, but we must all work together and strive to make that goal a reality.

Sources: East Alabama Living and CNN

THE TALC LITIGATION

Talcum Powder Litigation Update

Beasley Allen’s Talc Litigation Team continues to progress in both the MDL and state courts. There are numerous trials rapidly approaching in state courts throughout the country. The MDL team has finished up the plaintiff, fact witness and expert depositions for the bellwether cases.  The bellwether cases are a mix of plaintiff picks, defense picks and random selections from the court. The MDL has continued to work on corporate liability discovery depositions, with several additional depositions taken in May, including continuing a number of depositions that have gone for multiple days. Other liability depositions are planned for July. Some former and current Johnson & Johnson employees were identified and researched for this project.

In state court, Beasley Allen’s trial schedule has been moving forward without any further Covid delays.  In St. Clair County, Illinois, the Cadagin case is set to begin on July 12.  Preliminary hearings are complete, and discussions continue about the jury selection process as well as Covid-related accommodations.

In Philadelphia, the Kleiner case’s July 29 start remains on track, with preliminary hearings and conferences ongoing. The Beasley Allen team has several additional trial-ready dates in Philadelphia, with the Wilson case to be set within 90 days of May 5th and additional settings possible throughout the year.

In Georgia, the Brower retrial is still being reset, with plans to retry this case as soon as it can be safely scheduled in 2021. While working on getting the Brower retrial set, additional discovery efforts have continued against Johnson & Johnson’s longtime talc packager/manufacturer PTI, which has a significant presence in Georgia and Missouri. The multi-plaintiff trial in St. Louis, Missouri, involving three plaintiffs, remains set in August, with several additional potential trial dates in St. Louis throughout the rest of the year and into 2022.

Along with multiple trials already set in Missouri, Illinois, and Pennsylvania for 2021 and the potential trial in Georgia in 2021, the Beasley Allen team is now moving forward with the Carl and Balderrama trials in Atlantic City, with potential trial dates in early 2022. The team is also exploring South Florida as a potential venue for additional trials in 2021 and 2022. It has been working on discovery efforts against various retailers of talcum powder throughout the states.

For additional information on these cases, contact Ted Meadows, Leigh O’Dell, or Brittany Scott at 800-898-2034 or by email at [email protected], [email protected], or [email protected].

U.S. Supreme Court Denies J&J Petition To Review Talcum Powder Verdict

Nearly seven months after the Missouri Supreme Court declined to review the matter, Johnson & Johnson received another defeat. The U.S. Supreme Court refused to take on its challenge to a $2.1 billion verdict awarded in Missouri to almost two dozen women who blamed the asbestos in its talcum powder for their ovarian cancer. The company argued that too many claims were combined for a single trial. Still, the Court followed precedents in both state and federal law regarding due process and plaintiffs’ ability with common claims to come together in seeking justice.

Among other arguments, J&J asserted that the consolidation of claims from 22 women, led by named plaintiff Gail Ingham, violated its due process rights and that the trial court lacks personal jurisdiction over plaintiffs who never lived in Missouri nor purchased or used the products there.

The high court’s decision comes nearly three years after jurors awarded $550 million in compensatory and $4.14 billion in punitive damages against J&J and its subsidiary Johnson & Johnson Consumer Inc. over claims their talcum powder products contained asbestos, which caused the women to develop ovarian cancer.

A Missouri appeals court reduced the verdict to $2.1 in June 2020. The court dismissed the awards for two out-of-state plaintiffs on jurisdictional grounds as they only used products manufactured in Georgia while finding jurisdiction concerning the other 15 non-Missouri plaintiffs. That was because J&J had contracted with a Missouri-based business to manufacture a product the women used. The Missouri Supreme Court later refused to wade into the dispute.

The plaintiffs are represented by Kenneth W. Starr, W. Mark Lanier, Kevin P. Parker, Arthur R. Miller, Benjamin T. Major, Harvey Brown and K. Rachel Lanier of The Lanier Law Firm; David C. Frederick, Ariela M. Migdal and Matthew N. Drecun of Kellogg Hansen, Todd Figel & Frederick PLLC; Thomas C. Goldstein and Kevin K. Russell of Goldstein & Russell PC; Eric D. Holland and Patrick R. Dowd of Holland Law Firm; and John D. Ashcroft. The case is Johnson & Johnson et al. (case number 20-1223) in the Supreme Court of the United States.

Beasley Allen Talc Litigation Team

The Talc litigation continues around the country at a record pace, as indicated above, with no quick end in sight. The lawyers on our Talc Litigation Team have been very busy preparing for upcoming trials. Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Will Sutton and Charlie Stern are on the team, but they are exclusively handling mesothelioma claims. Will and Charlie are looking at cases of industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

The Talc Litigation Team at Beasley Allen has followed closely to the filings of the U.S. Supreme Court in Ingham v. Johnson & Johnson, et al.  Beasley Allen lawyers Ted Meadows and Leigh O’Dell (Co-Lead Counsel in the MDL) stated:

As we move forward in the MDL, thousands of women and families who have been devastated by a deadly disease because they used talcum powder products will have their voices heard. The scores of peer-reviewed medical studies demonstrating the link between ovarian cancer and talc-based powders will be further validated. Soon New Jersey juries will have the opportunity to hear and see evidence of Johnson & Johnson’s reprehensible conduct in hiding the cancer-causing propensities of the company’s products for decades, needlessly putting at risk millions of mothers, sisters, and daughters.

Members of the Talc Litigation Team include Leigh O’Dell ([email protected]), Ted Meadows ([email protected]), Kelli Alfreds ([email protected]), Ryan Beattie ([email protected]), Beau Darley ([email protected]), David Dearing [email protected]), Liz Eiland (Liz.Eilan[email protected]), Jennifer Emmel ([email protected]), Jenna Fulk ([email protected]), Lauren James ([email protected]), James Lampkin ([email protected]), Caty O’Quinn ([email protected]),  Cristina Rodriguez ([email protected]), Brittany Scott ([email protected]), Charlie Stern ([email protected]), Will Sutton [email protected]), Matt Teague ([email protected]) and Margaret Thompson ([email protected]).

THE JUUL LITIGATION

An Update On The JUUL Litigation

JUUL has agreed to pay North Carolina $40 million to settle the first of several lawsuits brought by states involving the company’s marketing practices that fueled widespread addiction among young people to its high-nicotine e-cigarettes. The settlement was announced on June 28 by North Carolina Attorney General Josh Stein, who sued the company in May 2019.

The consent decree requires JUUL to sell its products only behind the counter in North Carolina stores, and to use third-party age verification systems for online sales. The order also commits JUUL to sending teenage “mystery shoppers” to 1,000 stores each year, to check whether they are selling to minors. It also bars the company from using models under age 35 in advertisements and states that no advertisements should be posted near schools.

The North Carolina complaint accused JUUL of designing, marketing and selling e-cigarettes to attract young people, and of misrepresenting the potency and danger of nicotine in the company’s products, in violation of the state’s Unfair and Deceptive Trade Practices Act.

Thirteen states, including California, Massachusetts and New York, as well as the District of Columbia, have filed similar lawsuits. The central claim in each case is that JUUL knew, or should have known, that it was it was “hooking teenagers on pods that contained high levels of nicotine.” Some of the youths in the cases claimed serious harm, including possible lung damage and mood disorders.

A group of 39 attorneys general have spent the past 16 months investigating JUUL for its marketing and sales practices, as has the Food and Drug Administration (FDA). JUUL also faces other legal threats. The Federal Trade Commission (FTC) is suing JUUL, Altria and related parties, seeking to unwind the 2018 deal which gave Altria 35% of JUUL. Altria, the nation’s largest tobacco company, paid $12.8 billion for that stake, but has since written down the value of the investment to $1.5 billion.

The FTC says that the two companies entered into a series of agreements, including Altria’s investment, that eliminated competition in violation of federal antitrust laws. The Commission also claims that Altria and JUUL started as competitors in the e-cigarette markets, but that as JUUL became more popular, Altria dealt with the threat by taking its own Mark Ten e-cigarette off the market in exchange for a share of JUUL’s profits.

There is also multi-district litigation in U.S. District Court for the Northern District of California. That extremely important litigation consolidates cases on three tracks: personal injury, which includes plaintiffs claiming addiction, lung injuries and other health problems; a consumer class action track, claiming that individuals paid too much for a product that addicted them; and a government entity track, consisting of school districts and counties seeking monetary reimbursement for vaping-relating damages. Investors in JUUL, like Altria and other entities, are also involved. Depositions have begun, and the first case is scheduled to go to trial in February 2022.

Beyond all the legal challenges, the company is awaiting a decision from the FDA on whether its products can remain on the market. The agency must decide by early September whether JUUL and other new tobacco and vaping products are “appropriate for the protection of public health” and can continue to be sold.

The JUUL MDL has been very active. Three of the four personal injury bellwether cases in the MDL are Beasley Allen clients. Our firm is honored to represent these three individuals in the three cases who were lured by JUUL’s conduct as minors and became severely addicted to nicotine. Beasley Allen looks forward to working with the JUUL Plaintiff Steering Committee (PSC) to present our clients’ cases to juries. The bellwether trials are scheduled to start in February 2022, with five trials to take place in 2022.

Approximately 2,187 cases are pending in the JUUL MDL, consisting of individual personal injury and government entity public nuisance cases. A total of 2,734 cases are pending in the California state court litigation pending in Los Angeles Superior Court.

Beasley Allen’s Joseph VanZandt serves on the JUUL PSC. He and Mass Torts Section Head Andy Birchfield heads our firm’s efforts to hold JUUL accountable for the damage they have done to thousands of youth around the country. Beasley Allen’s Beau Darley serves on the PSC for the California state court litigation. Lawyers at Beasley Allen continue to take new JUUL cases for individuals, school districts, and other government entities that JUUL has impacted. You can contact Joseph VanZandt ([email protected]) or Beau Darley ([email protected]) if you want to discuss a case.

New Book Details The Rise Of JUUL

Big Vape: The Incendiary Rise of JUUL, largely completed over 2019 and 2020 by Times magazine journalist Jamie Ducharme, was published on May 25, 2021. Ducharme is a staff writer at the magazine and covers health, science, and medicine. Before publishing Big Vape, she reported on JUUL and the e-cigarette industry for several years.

Ducharme synthesized the book from her prior reporting on JUUL, visits to JUUL Labs, Inc.’s (JLI) San Francisco headquarters, sixty interviews with former and current JUUL personnel, interviews with doctors, researcher, public health officials, vaping industry insiders, and lawmakers. Her reporting interviews included the company’s founders, James Monsees and Adam Bowen, and other executives such as former CEO Kevin Burns. During the book’s preparation, these three declined to give further interviews.

The book brilliantly tells the origin story of JUUL Labs, Inc. (JLI), or PAX Labs, Inc, as it was initially called. Ducharme details the relevant biography of Monsees and Bowen, their studying of big tobacco tactics as Stanford students, and their e-cigarette prototypes, objectives, and early business moves. Ducharme skillfully weaves the key players, warning signs, government actions, public reactions, and consequences of all kinds into a reliable and reserved chronicle.

Big Vape reveals the naivety and false assumptions of JUUL’s founders, as well as their academic and engineering genius. The book shows that warnings about the addictiveness and youth appeal of JUUL were regularly ignored within the young start-up, as the company seemed to have instead intentionally amplified and benefited from these qualities and other misrepresentations.

Big Vapes’ online listings have uniformly four or five-star ratings by the public, and its review from critics has been equally as positive. The book has been called “a landmark piece of investigative reporting,” “brilliantly reported and elegantly written . . . an exceedingly important story,” and “an instructive tale.”

As Big Vape details, JUUL created a super-charge nicotine product with maximum youth appealability and intentionally marketed this product to youth. Beasley Allen continues to play a leading role in multidistrict litigation against JUUL. Beasley Allen has devoted a team of talented lawyers to work on this critical litigation. The firm represents hundreds of youths who became severely addicted to nicotine because of JUUL and suffered other serious physical injuries. The firm also represents hundreds of school districts suing JUUL for the public nuisance its products have caused in schools around the country. Beasley Allen’s Joseph VanZandt serves on the plaintiff steering committee (PSC) in the federal JUUL MDL, and Beasley Allen lawyer Beau Darley serves on the PSC in the California state court consolidated litigation against JUUL. If you or a loved one has experienced physical, mental, or emotional harm from using a JUUL product, call 800-898-2034 or email [email protected] or [email protected].

FTC Administrative Trial On Altria – JUUL Deal

The Federal Trade Commission (FTC)’s administrative trial on antitrust claims in the Matter of Altria Group/JUUL Labs, Inc. (Case #: 191-0075) began on June 2. Typically, this type of proceeding takes place at the FTC’s headquarters in Washington, D.C., but this trial is being conducted remotely because of the ongoing public health concerns and is the FTC’s first entirely virtual administrative trial. A key question at trial is why Altria, when it was in talks with JUUL, stopped selling its e-cigarettes.

In October 2018, Altria announced it was halting the sale of its pod-based and fruity-flavored e-cigarettes in response to the Food and Drug Administration’s call for e-cigarette makers to help stem a surge in vaping among children and teens. Then in December of that year, two weeks before Altria acquired a 35% stake in JUUL, Altria pulled its remaining e-cigarettes off the market.

The FTC’s enforcement action alleges that the Altria-JUUL deal was part of an illegal agreement between the companies not to compete. In opening remarks at the antitrust trial, the FTC argued that Altria pulled its e-cigarettes off the U.S. market illegally at the insistence of JUUL as the two companies were discussing a deal. Altria argued that its e-cigarettes were failures, and it dropped them amid regulatory pressure and an internal reckoning about the company’s inability to develop a vaping product that consumers liked. JUUL and Altria argued that since the deal was struck, competition in the e-cigarette market has increased, not decreased. JUUL’s market share has fallen, as have e-cigarette prices.

If the FTC prevails, it could unwind Altria’s 35% interest in JUUL, which the cigarette maker bought in December 2018 for $12.8 billion. The agency is seeking to force Altria to divest its stake and terminate the companies’ noncompete agreement. The case is being heard by an administrative law judge, who will make the initial decision; the agency’s commissioners will then vote on the matter.

Stay tuned!

Sources: FTV.gov, Law360.com and WSJ.com

The JUUL Litigation Team

Beasley Allen lawyers, led by Joseph VanZandt, are heavily involved in the JUUL litigation. They currently represent individuals who are suing JUUL, the top U.S. vape maker, for the negative impact its products have had on their lives. Beasley Allen also represents *a number of school systems in the JUUL litigation. Lawyers on our firm’s JUUL Litigation Team have filed JUUL lawsuits on behalf of school districts nationwide. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation team at 800-898-2034 or by email. Members are [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected]. Andy Birchfield ([email protected]), who heads up the firm’s Mass Torts Section, works with the team on the JUUL litigation.

OPIOID LITIGATION

Opioid Litigation Update: Ongoing Cases To Follow

The pressure cooker of opioid litigation continues to heat up with long-awaited trials across the country along with some very recent settlements. There are several trials set for the coming weeks and months. It doesn’t appear that COVID-19, which delayed some trials that were ready to go in 2020, is now a major problem in getting trials set.

A major development took place as we were sending this issue to the printer. Johnson & Johnson (J&J) reached a $230 million settlement with New York state and two Long Island counties in the case that was set to go to trial on June 28. The settlement payments will be made over nine years. The two Long Island counties in the settlement are Suffolk and Nassau. This changes the makeup of defendants in the nation’s first jury trial over the crisis.

J&J’s settlement includes the company’s agreement to end its national sales of opioids. New York Attorney General Letitia James announced the settlement, which was negotiated in coordination with a larger global settlement. Talks are still ongoing among additional parties.

The announcement of the J&J settlement came a day after Walmart, CVS and Rite Aid settled and were severed from the trial. These pharmacies all reached settlements with the state and counties for an undisclosed amount.

The remaining defendants in the trial are Walgreens (the sole remaining pharmacy defendant), Endo Pharmaceuticals, Teva Pharmaceuticals, Allergan, Cardinal Health, AmerisourceBergen, McKesson Corp. and Anda Inc.

Opening arguments were set to start on June 29 in the trial, to be held at Touro College’s Jacob D. Fuchsberg Law Center. If it goes forward now against the remaining defendants, will be not only the first case over the opioid epidemic to be heard by a jury, but also the first trial against defendants across the opioid supply chain. The counties and New York state contend that the companies accelerated the opioid crisis by playing down the risks of addiction and turning a blind eye to suspiciously large drug orders.

There are two other ongoing bench trials over the opioid epidemic, one in California state court and the other in West Virginia federal court. J&J lost the first opioid trial in 2019 in Oklahoma state court when a judge concluded that it owed a $465 million judgment for creating a public nuisance in the state for its opioid marketing.

The trial in California, which began in mid-April, pits the counties of Los Angeles, Orange, and Santa Clara, along with the City of Oakland, against pharmaceutical manufacturers Johnson & Johnson, Endo Pharmaceuticals, Teva Pharmaceuticals, and Allergan PLC.

Another ongoing trial started in May in West Virginia federal court, is ongoing.  Cabell County and its seat, Huntington, are up against the Big 3 pharmaceutical distributors: AmerisourceBergen Corp., Cardinal Health Inc., and McKesson Corp.  The trial’s first few weeks featured testimony from a wide range of witnesses, including drug company executives, fire and police professionals, academics, regulators, and doctors.  The trial could continue until August.

The State of Alabama’s case against Endo Health Solutions and McKesson Corp. has a trial set for November 1, 2021.  Beasley Allen and the Tuscaloosa firm Price, Glover and Hayes, have joined Alabama Attorney General Steve Marshall to represent the State of Alabama in the case.

There are other upcoming opioid trials to take place over the next few months. One will start on July 26 in Tennessee state court, and another on October 4 in Ohio for the first multidistrict litigation trial against pharmacies. I believe these cases will likely be settled because of the overwhelming evidence that juries will see and hear if the cases are tried. Stay tuned!

Source: Law360.com

A Look At Purdue’s New Chapter 11 Plan Docs And Claims Trust Framework

Purdue Pharma has asked U.S. Bankruptcy Judge Robert Drain to extend the injunction pausing suits over opioid sales against the company and its owners, the Sackler family. Purdue requested a 75-day extension, saying they need protection as they seek confirmation of its Chapter 11 plan.

On May 26, Bankruptcy Judge Drain gave preliminary approval to Purdue’s Chapter 11 plan disclosure, holding an approval order until Purdue clears up some settlement details.  The preliminary approval came after a virtual hearing that scrutinized Purdue’s disclosures intended to inform creditors on how to vote regarding Purdue’s bankruptcy plan.

In its filings, Purdue’s plan provided new information about how private claims against the company will be handled under its Chapter 11 plan, including how a personal injury trust will be funded and disbursed. The three funds are described below:

  • The personal injury trust will receive between $700 million and $750 million, depending on the amount of proceeds Purdue receives from its insurers, and the lion’s share of that money will be directed to cover the claims of those who suffered a personal injury from their opioid use. Those claimants are projected to receive between $3,500 and $48,000 each, depending on the nature and severity of their claimed injury.
  • A group of claimants suffering from neonatal abstinence syndrome (sometimes referred to as NAS babies) will share a $45 million portion of the personal injury trust funds. Each claimant is projected to receive about $7,000 under the plan.
  • A third fund will be created under the plan to cover the claims of third-party payors to the tune of $365 million, with a third, $250 million trust to cover the claims of hospital systems. About $60 million will be set aside to provide funding for NAS monitoring services to track the needs of the NAS babies who were exposed to opioids while in the womb.

Personal injury claimants will have the option to opt-out of the trust distribution plans and pursue their claims against Purdue in the civil court system. If a claimant chooses to seek recovery through the courts and receives a judgment, those judgments will also come out of the trust funds and would likely reduce the recoveries available to other claimants.

We have mentioned before that the plan includes releases of claims against Purdue and also its owners — the Sackler family. So, claimants won’t be able to sue those entities if they opt to litigate their claims. It appears the opt-out suits would be against the trust itself.

As previously reported, Purdue filed for Chapter 11 protection in September 2019 in the wake of a tentative settlement with 24 states that sued to hold the company responsible for damages caused by opioid addiction. Under the deal, Purdue would be turned over to a public trust and share profits with claimants against the estate and fund programs addressing the opioid crisis.

You will recall that in March, Purdue filed its proposed Chapter 11 plan of reorganization that is largely premised on the Sackler family giving up their ownership in the company and contributing $4.275 billion to a trust set up to pay out on opioid-related claims. The company would be owned by an opioid abatement trust and run for the public benefit, using profits to address issues created by the opioid crisis.

As stated above, the Sacklers seek releases of all claims against them in exchange for their contributions. The family has made it clear there will be no settlement without the releases, and claimants would be forced to bring their claims through individual litigation.

Judge Drain has given preliminary approval to Purdue’s Chapter 11 plan disclosure statement and, on June 3, entered an order giving Purdue approval to send the plan to its creditors for a vote. The order sets July 14 as the voting deadline, July 19 as the deadline for plan objections and Aug. 9 as the beginning of the plan confirmation hearing.

An examiner has been approved for appointment by Judge Drain, a decision that came on the heels of a filed examiner motion that questioned the integrity of the bankruptcy proceedings.  Temple University’s Beasley School of Law professor Jonathan C. Lipson, in his examiner motion on behalf of an opioid victim’s father, alleged that Purdue’s board of directors was unduly influenced by the Sacklers when presenting the Chapter 11 plan currently under consideration.  The examiner, appointed by Judge Drain, will be limited to the narrow task of assessing the independence of the Purdue board of directors from the Sackler family when it approved the submission of the Chapter 11 plan featured in the settlement.

The case is In re: Purdue Pharma LP (case number 7:19-bk-23649) in the U.S. Bankruptcy Court for the Southern District of New York.

Source: Law360.com

Opioid Bellwether Trials Against Pharmacies To Be Bifurcated

U.S. District Judge Dan Polster has split five upcoming bellwether trials in the opioid multidistrict litigation against pharmacies into two phases. The public nuisance claims by local governments alleging that the pharmacies created a public nuisance by overlooking suspicious orders will go first. All other claims will be stayed. Judge Polster says this will simplify the trials and make the cases more manageable. He says that bifurcating the claims allows the local governments and the pharmacy chains to give a “more coherent presentation” of the legal issues surrounding the companies’ alleged liability for making a public nuisance. Judge Polster said further:

Bifurcating the public nuisance claims asserted against the pharmacy defendants will allow the court to focus its attention on development and litigation of these issues and claims, which are likely to be applicable in many other MDL actions against these and similar defendants on a bellwether basis. This may also help facilitate settlement.

The order applies to five new bellwethers recently selected by Judge Polster in April. Those cases are Durham County, North Carolina, in the Fourth Circuit; Tarrant County, Texas, in the Fifth Circuit; Montgomery County, Ohio, in the Sixth Circuit; Santa Fe County, New Mexico, in the Tenth Circuit; and Cobb County, Georgia, in the Eleventh Circuit.

The pharmacies had opposed bifurcation, instead suggesting that the cases be remanded to their original districts, and the judges there would decide whether to split them. The trial had been delayed due to COVID-19; in December, Judge Polster pushed back a May start date to the fall.

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

Source: Law360.com

JPML Sends McKinsey Opioid Cases To New MDL

The Judicial Panel on Multidistrict Litigation (JPML) on June 7 created a new MDL in California federal court for a number of lawsuits over the role of McKinsey & Co. in prescription opioid marketing. This will keep the cases out of the existing Opioid MDL in Ohio federal court.

This development follows oral arguments on May 27 over how to handle dozens of pending lawsuits from cities, counties and tribes in the wake of $640 million in settlements that McKinsey reached with states over its consulting for OxyContin seller Purdue Pharma LP and other drugmakers.

Most plaintiffs had wanted McKinsey’s cases sent to the existing MDL, with some other plaintiffs recommending the Southern District of Illinois. McKinsey advocated a new MDL in the Southern District of New York. So California’s selection came as a surprise. The panel wrote in selecting the California court:

In the unique circumstances that are presented by this nationwide litigation, we are persuaded that the Northern District of California is the appropriate transferee district for this litigation. In selecting [U.S. District] Judge Charles R. Breyer as the transferee judge, we are choosing a jurist who is familiar with [the existing MDL], as he was a member of this panel when that docket was initially centralized.

The JPML noted that Judge Breyer is presiding over a bellwether case brought by San Francisco in the existing MDL. That role “likely has afforded Judge Breyer granular insight into the federal opioid litigation that few other judges have obtained,” the panel wrote, adding:

Judge Breyer has presided over a total of 11 MDL dockets, and he possesses tremendous insight into the conduct of multidistrict litigation.

It should be noted that the existing MDL primarily involves lawsuits against drug manufacturers, distributors and pharmacies. McKinsey is a management consulting firm. The company has argued that it is a unique defendant and an improper target for lawsuits seeking money to deal with rampant abuse of prescription and illicit narcotics.

The matter is In re: McKinsey & Co. Inc., National Prescription Opiate Consultant Litigation (case number 2996) in the Judicial Panel on Multidistrict Litigation. The new MDL is In re: McKinsey & Co. Inc., National Prescription Opiate Consultant Litigation (case number 3:21-md-02996) in the U.S. District Court for the Northern District of California.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Our Opioid Litigation Team has a heavy workload, and they continue to be very busy. As we stated in the last issue, activity in opioid litigation has intensified nationally. There has been no slowdown, but it appears more settlements will be happening.

Lawyers in our firm’s Opioid Litigation Team continue to work in the national opioid MDL. Beasley Allen lawyers represent the State of Alabama, the State of Georgia, and numerous local governments and other entities and handle individual claims on behalf of victims in this litigation.

The team includes Rhon Jones ([email protected]), Parker Miller ([email protected]), Ken Wilson ([email protected]), David Diab ([email protected]), Rick Stratton ([email protected]), Will Sutton ([email protected]), Jeff Price ([email protected]), Gavin King ([email protected]), Tucker Osborne ([email protected]) and Matt Griffith ([email protected]). This team of lawyers represents the State of Alabama, the State of Georgia, numerous local governments and other entities, and individual claims on behalf of victims.

If you need more information on the Opioid Litigation, contact one of the lawyers on the team at 800-898-2034 or by email.

THE WHISTLEBLOWER LITIGATION

Whistleblower Asks U.S. Supreme Court To Review Dismissal Standard For FCA Claims

Whistleblower Cimznhca LLC, represented by Beasley Allen, has petitioned the Supreme Court of the United States to review a Seventh Circuit Court of Appeals decision that dismissed its case centering around a kickback scheme for doctors to prescribe defendant’s drug treatment for Crohn’s disease. However, at the end of May, the federal government requested that the Supreme Court not review the Seventh Circuit decision.  Cimznhca’s case centered around allegations that the defendant provided multiple kickbacks to doctors, who would then give out prescriptions for brand-name prescription drug Cimzia over competing treatments.

The Seventh Circuit decision added to several other court decisions grappling with how courts should consider the federal government’s motion to dismiss an FCA case after it declines to participate in the litigation. After the 2018 Granston memo — a DOJ directive for government lawyers to reduce FCA cases –the DOJ has sought to dismiss numerous whistleblower cases in addition to simply declining to participate. In the case at hand, the government refused to intervene in late 2017, yet more than one year later decided to ask the court to dismiss the case in December 2018.

Almost all cases have been analyzed using one of two standards: the D.C. Circuit’s Swift standard, which essentially gives the DOJ an “unfettered right” of dismissal, and the Ninth Circuit’s Sequoia Orange standard, which requires the dismissal to be related to a valid government purpose. The Seventh Circuit, however, declined to apply either of these standards.

Cimznhca argued that the Seventh Circuit lacked jurisdiction to review a lower court’s denial of the government’s motion to dismiss the case because it failed to meet the standards for review of an interlocutory appeal. Still, the Seventh Circuit decided to treat the government’s motion as a motion to intervene (despite the government expressly noting numerous times that it was declining to intervene).

In doing so, the Seventh Circuit improperly sidestepped analysis of the standard entirely and wrongfully exercised appellate jurisdiction.  By treating the motion to dismiss as a motion to intervene, the Seventh Circuit analyzed the motion under an inapplicable standard. Worse, although the Seventh Circuit dismissed the case, it did so without prejudice to the government, yet with prejudice to the whistleblower. On behalf of our clients, Cimznhca, we argue that doing so dramatically undermines the purpose behind the FCA and deprives whistleblowers of due process rights.

In addition to jurisdiction, on behalf of Cimznhca, we have asked the Supreme Court to apply the Sequoia Orange as the uniform standard for government dismissals and permit the district court’s ruling to stand.

The whistleblower Cimznhca is represented by Beasley Allen lawyers Lance Gould and Leslie Pescia. The Petition for Writ of Certiorari was docketed for the court’s June 24, 2021 conference. We will keep our readers posted on the progress of this appeal.

Navistar Defense Agrees To Pay $50 Million To Settle FCA Case

Navistar Defense LLC (Navistar) has agreed to pay the Government $50 million to resolve allegations that Navistar used falsified documents to induce the U.S. Marine Corps to purchase Navistar products at artificially inflated prices.  According to the lawsuit, Navistar violated the False Claims Act (FCA) by fraudulently inducing the Government to enter into a contract to produce Mine-Resistant, Ambush-Protected (MRAP) vehicles.

During contract negotiations with the Government, Navistar was asked to provide commercial sales information on the contract parts to assess the reasonableness of Navistar’s proposed prices.  The government alleges Navistar created and presented fraudulent commercial sales invoices to artificially inflate the cost of the MRAP vehicles.  According to the Department of Justice, the government relied on these fake invoices in deciding to accept the inflated rates of the contract.

The settlement resolves a whistleblower lawsuit brought by a former Navistar employee under the qui tam provisions of the FCA. The FCA allows private individuals with knowledge of fraud against the government to bring a lawsuit on behalf of the government and to share in the recovery.  As part of the resolution with Navistar, the whistleblower will receive approximately $11 million of the money Navistar is returning to the Government.

If you are aware of fraud committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, please contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim.  There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team:  Lance Gould, Larry Golston, Leslie Pescia, Paul Evans, Lauren Miles or Tyner Helms.

Source: Department of Justice News Release

Contractor In Nuclear Cleanup Settles False Claims Suit

A U.S. Department of Energy contractor has agreed to pay more than $3 million to resolve claims that it falsely presented two subcontractors as HUBZone small businesses in billing for a nuclear waste remediation contract worth $7 billion.

The settlement, announced on June 4 by the U.S. Attorney’s Office for the Eastern District of Washington, is set to resolve and end more than seven years of False Claims Act litigation against CH2M Hill Plateau Remediation Co., a unit of CH2M Hill Cos. Ltd.

The whistleblower in the case, Savage Logistics LLC, is also expected to receive more than $865,000 from the settlement. DOE Inspector General Teri Donaldson said in a statement:

This settlement affirms the [Office of Inspector General’s] commitment to protecting the integrity of the Department of Energy’s procurement process to provide opportunities for small and disadvantaged businesses.

The case involved CH2M’s contract to clean up the central plateau of the DOE’s Hanford site in Washington, where plutonium for U.S. nuclear defense programs was produced for more than 40 years. The five-year remediation contract was valued at $4.5 billion when CH2M landed its prime contractor role in 2008. That figure later increased to $7.16 billion to cover CH2M’s operations into December 2020, according to a summary of major contracts the Office of Environmental Management published in September.

As part of its winning submission, CH2M included a small-business subcontracting plan that outlined its approach to “meeting or exceeding socioeconomic goals specified by the DOE.” The contractor said it would subcontract a percentage of its work to companies registered with the Small Business Administration, including firms involved in its Historically Underutilized Business Zone (HUBZones) program. However, at least one of CH2M’s subcontractors, Indian Eyes LLC, had already been disqualified from the program when it started working for CH2M. Indian Eyes settled its part of the FCA litigation with the whistleblower, Savage, in October.

The whistleblower also challenged CH2M’s subcontract award to Phoenix-ABC A Joint Venture, a company Savage Logistics claimed was set up by a much larger firm, Federal Engineers and Constructors, “for the sole purpose of obtaining federal contracts as a HUBZone contractor.” Despite that aim, Savage said that minimal due diligence — such as calling the SBA or checking its HUBZone database — which CH2M committed to in its subcontracting plan would have informed CH2M that the joint venture was not certified.

Litigation in the case was temporarily halted in 2016 while the U.S. Supreme Court reached a decision in Universal Health Services Inc. v. Escobar and resumed after the justices determined that firms could face FCA liability for billing the federal government while out of compliance with regulations that aren’t explicit conditions of the payment. An initial notice of settlement issued in April fell apart that same month when the parties couldn’t agree on the wording of the settlement. But in a joint status report, the parties now say they have settled their differences and resolved the matter.

Savage is represented by Bruce P. Babbitt and Matthew T. Adamson of Jameson Pepple Cantu PLLC and Brad J. Moore and Karen K. Koehler of Stritmatter Kessler Whelan Koehler Moore Kahler.

The government is represented by Tyler Tornabene and Daniel H. Fruchter of the U.S. Attorney’s Office for the Eastern District of Washington. The case is U.S. et al. v. CH2M Hill Plateau Remediation Co. et al. (case number 4:14-cv-05002) in the U.S. District Court for the Eastern District of Washington.

Source: Law360.com

Avis Car Rental To Pay $10 Million For Overcharged Insurance

Car rental giant Avis Budget Group Inc. will pay $10.1 million to settle claims that it overcharged the U.S. government over vehicle liability and accident insurance payments. The U.S. attorney’s office said that from January 2014 to December 2019, Avis Budget filed false claims to the government requesting overpayment and charged extra amounts for supplementary car insurance. These payments were already included in the government’s car rental payment, according to acting U.S. Attorney Rachael A. Honig.

The U.S. Department of Justice (DOJ) said Avis Budget received “unallowable” additional charges from the U.S. government, including collision damage waiver insurance, supplemental liability coverage, personal accident insurance, and late turn-in fees.

According to the settlement agreement, Avis Budget provided rental car services to the U.S. government, including the DOJ, under a deal managed by the U.S. Defense Travel Management Office. Under the agreement, military service members and government employees can rent vehicles from the company. But the Department of Defense and Defense Criminal Investigative Service later discovered that the company overcharged government employees for car insurance payments for five years.

Avis Budget has agreed to pay over $10.1 million for the claims, including $6 million in restitution to be transferred back to the government. The United States is represented by Assistant U.S. Attorney Mark C. Orlowski of the U.S. Attorney’s Government Fraud Unit in Newark.

Source: Law360.com

Jury Awards Former AstraZeneca Sales Manager $2.4 Million In Whistleblower Retaliation Case

AstraZeneca and a former sales manager have each scored partial wins in the case of Suzanne Ivie, who alleged the company fired her after she raised concerns of off-label marketing.  While a federal jury in Oregon found that AstraZeneca violated the whistleblower statute by firing Ms. Ivie after she made a “good faith” report of alleged marketing misconduct, jurors rejected allegations of age discrimination. Neither did the jury hold the drugmaker liable under the False Claims Act for marketing violations.

After a trial that started in mid-June, jurors awarded Ms. Ivie, the whistleblower, $2.4 million. She will receive $1.87 million in damages plus another $510,423 for wages lost. Ms. Ivie lost her job in 2019 after 19 years with the company. During her career, Ivie worked in the company’s respiratory division. After a new director took over in 2018, the director allegedly pushed the team to promote certain AstraZeneca drugs for uses that the FDA didn’t approve. When Ms. Ivie refused to play ball and complained to the company, a pattern of retaliation emerged.

After raising concerns, Ms. Ivie said she was removed from leadership roles, had her bonus slashed and more retaliatory measures imposed. AstraZeneca claimed she was fired for failing to do her work as a district sales manager.

The Beasley Allen Whistleblower Litigation Team

Our prediction that there would be no slowdown in the False Claims Act (FCA) litigation now appears to have been squarely on target. Lawyers on Beasley Allen’s Whistleblower Litigation Team continue to be very busy handling cases around the country under the FCA. Fraud against the federal government by all too many industries in this country, especially in the health care field, remains a huge problem. During the pandemic, fraud against the federal government has increased dramatically. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed has been a significant factor in the increase in FCA violations.

We continue to stress that whistleblowers are essential and the key to exposing corporate wrongdoing and government fraud. Their role has intensified dramatically and will continue in that direction in the immediate future and beyond. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other misconduct – before you “blow the whistle” – it is essential to make sure you have a valid claim and that you prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

If you are aware of any fraudulent activity in Corporate America against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen’s Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is also a contact form on the Beasley Allen website that you can use.

The Beasley Allen lawyers set out below are on the Whistleblower Litigation Team: Larry Golston ([email protected]), Lance Gould ([email protected]), James Eubank ([email protected]), Paul Evans ([email protected]), Leslie Pescia ([email protected]), Leon Hampton ([email protected]), Tyner Helms ([email protected]) and Lauren Miles ([email protected]). Dee Miles ([email protected]) heads our Consumer Fraud & Commercial Litigation Section, participates in whistleblower litigation, and works with the Litigation Team.  The lawyers can be reached by phone at 800-898-2034 or by email.

PRODUCT LIABILITY UPDATE

Tire Aging And Used Tires Produce Catastrophic Results

Many people do not think of tires as a safety device; however, they are one of the most important safety devices on a vehicle. Tire failures, such as blowouts and tread separations, can lead to loss of vehicle control and result in serious and fatal injuries. The condition and age of a tire can be contributing factors leading to tire failures.

Often tires are kept on a vehicle well past their service life. Many consumers are aware of the importance of looking at the tread depth of a tire, but many are unaware that the tire’s age is a factor that should be considered when replacing tires. It is recommended within the industry that tires be replaced at six years of age and no later than age ten. This is because the rubber components begin to break down over time, allowing oxygen to permeate the rubber, resulting in internal damage to the tire.

While many people are familiar with dry rot on the outer appearance of a tire, the internal components are what hold the tire together. Those components suffer from age and exposure to oxygen over time. This increases the likelihood of a tread belt separation, leading to losing control of a vehicle and serious injury or death to vehicle occupants.

While tires are an essential safety device on a vehicle, they can also be costly to replace. Thus, leading to the growing number of used tire dealers and the purchase of used tires by consumers. If the tread depth appears sufficient and the outer appearance of the tire seems to look satisfactory, neither the used tire dealer nor the consumer pays attention to the tire’s age. A consumer could purchase a fourteen-year-old tire that should never have been sold and instead should have been taken out of service.

Compounding the problem are automobile service centers that will place these used tires on vehicles without checking the tire’s age when they should be doing so and warning the consumer that the tire is past its service life. In addition to service centers that place the tires on vehicles, many service centers will service the vehicle, including the tires, yet fail to provide the customer information on the tire’s age.

Beasley Allen has successfully litigated cases against tire manufacturers for design and manufacturing defects. It has also litigated cases against service centers that installed tires well past their service life or serviced vehicles and failed to inform the customer their tires needed to be replaced.

For instance, our lawyers resolved a case for a client whose son suffered an amputated leg when his mother’s vehicle sustained a tread belt separation and overturned. One week before the crash, the vehicle’s brakes had been serviced, the tires were removed for servicing, and the client inquired if the tires needed to be replaced. She was told the tires were in good condition and did not need replacing. In reality, the tires were over ten years old and should have been taken out of service.

Our product liability lawyers successfully handled another case where a service center placed 14-year-old tires on a vehicle. Two weeks later, one of the tires suffered a tread belt separation leaving the client with a severe spinal cord injury.

Such tragedies could be avoided if the service centers would warn consumers about the age of their tires. Moreover, many consumers do not know how to read the DOT number of a tire. The last four digits of a DOT number on a tire sidewall provide the week and year of manufacture. For instance, DOT Y2XX PQRT 3109 means that the tire was manufactured on week 31 of 2009. Therefore, in tire defect cases, not only does liability rest with the tire manufacturer, but in many cases, the used tire dealer and service center are liable for selling, servicing and / or failing to warn the consumer of the age of a tire.

If you need more information or have questions, contact Mary Leah Miller, a lawyer in our Personal Injury & Products Liability Section. She handles product liability cases at 800-898-2034 or by email at [email protected].

Split Decision In Two 3M Bellwether Trials Alleging Faulty Earplugs

There have now been two more bellwether trials against 3M. The second trial resulted in a win for the defendant, with the third ending with a $1.7 million plaintiff’s verdict. The cases are a part of the class action over claims that 3M’s combat earplugs didn’t protect service members’ hearing the way they were supposed to.

The federal jury in the trial in Pensacola, Florida, found that 3M was not responsible for the hearing loss of Dustin McCombs, an Afghanistan veteran. He experienced an IED explosion there in 2009, which started a tinnitus problem that worsened when McCombs was later stationed at Fort Richardson in Alaska. McCombs said the earplugs made by 3M predecessor Aearo were supposed to protect him better.

A Florida federal court jury on June 18 said that Lloyd Baker, a service member, sustained $1.7 million in hearing loss damages from 3M’s combat earplugs. The jury noted that 3M was 62% responsible, finding that 3M failed to warn of issues with the earplugs. But the jurors also said that plaintiff Baker was 38% at fault.

Some 235,000 service members have brought claims in the nation’s largest-ever MDL, saying the earplugs failed to protect their hearing in ultra-loud training and combat environments. In this third trial, Baker, a former infantryman and M240 machine gun operator said he experienced muffled hearing and ringing beginning when he had training at Fort Lewis in Washington state in 2005 and 2006 before going to Iraq. Baker was diagnosed with hearing loss in both ears and tinnitus in 2009.

In the first bellwether trial earlier this year, a jury found 3M responsible for the injuries of three service members and awarded a total of $7.1 million.

The MDL is 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida.

If you have any questions, contact Will Sutton, a lawyer in our firm’s Toxic Torts Section, at 800-898-2034 or by email at [email protected].

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

Heavy Trucking Litigation Update

Beasley Allen continues to pave the way for heavy truck litigation nationwide. Our firm’s lawyers specialize in handling tractor-trailer and commercial vehicle wreck cases. One particularly troubling factor encountered in trucking litigation is the presence of fatigued drivers on our nation’s roads. Commercial truck drivers are required to comply with specific regulations while operating a commercial vehicle. Drivers are permitted to drive for up to eleven consecutive hours, only following a ten-hour break. Studies show that many drivers violate these regulations by driving for more extended periods than permitted. [1]

In the “Driver Fatigue and Alertness Study” conducted by C.D. Wylie et al. in 1996, the largest study ever conducted on commercial vehicles, it was found that fatigue leads to increased lapses of attention; slower information-processing and decision-making; longer reaction time to critical events; more variable and less effective control responses; decreased motivation to sustain performance; increased subjective feelings of drowsiness; decreased watchfulness, and decreased alertness to danger.

According to data from the U.S. Department of Transportation’s Fatality Analysis Reporting System, 4,119 people died in 2019 due to large truck crashes. Of this total, 67% were occupants of cars or other passenger vehicles. Too often, trucking companies allow drivers to violate protocol and work for longer-than-allowed hours, putting the public in danger. Fatigued driving is a nationwide crisis. Lawyers in our firm’s Personal Injury & Products Liability Section have worked diligently to hold trucking companies accountable and prevent fatigued driving from continuing.

Chris Glover, who manages our Atlanta office, had the honor of representing the family of an individual who was tragically killed when a tractor-trailer swerved into the family’s vehicle. The impact caused the trailer to run over the vehicle, tragically killing one and seriously injuring two others. Our investigation revealed that the tractor-trailer owner had a history of serious violations of various motor vehicle regulations, including operating with fatigued drivers. Further testing revealed that a conscientious, well-rested driver most certainly would have easily recognized the danger of moving their tractor-trailer into an occupied lane of travel.

Chris also represented the families of two sisters who were tragically killed when an 18-wheeler driver drove his truck into the back of their stalled vehicle stopped on the side of Interstate 65. As a result of the collision, both vehicles caught on fire and both passengers burned alive.  An eyewitness to the crash testified that the truck driver had been swerving in the miles leading up to the impact.  The truck driver himself testified that he never saw the disabled vehicle.

Our investigation revealed that the defendant’s truck driver suffered from sleep apnea and lied about this fact to his employer. The truck driver also took medication to combat daytime sleepiness and shift work disorder, which he also failed to disclose to his employer. The defendant driver testified in his deposition that he deliberately withheld this information, fearing he would not get a commercial driving job. The trucking company lacked any fatigue-management program to ensure the safe practice of their drivers. Chris Glover was honored to represent the families, securing for them a settlement in a confidential amount.

Beasley Allen will continue to push for safer roadways by holding trucking companies accountable for violating laws designed to keep fatigued drivers off the roadway. If you would like more information about trucking cases or the issues presented in this article, contact Chris Glover at 800-898-2034 or by email at [email protected].

[1] McCartt, A.T.; Hellinga, L.A.; and Solomon, M.G. 2008. Work schedules of long-distance truck drivers before and after 2004 hours-of-service rule change. Traffic Injury Prevention 9:201-10.

AAA Study Finds Americans Are Fearful Of Driverless Vehicles And For Good Reason

AAA’s annual automated vehicle survey finds that only 22% of people feel manufacturers should focus on developing self-driving vehicles. Most drivers (80%) say they want current vehicle safety systems, like automatic emergency braking and lane-keeping assistance, to work better.  AAA found that some systems, particularly those that provide the highest level of automation available to the public, do not always work as expected – automotive technology defects that our firm is already litigating.

Lawyers in our Consumer Fraud & Commercial Litigation Section have filed a class action against Nissan and Infiniti for false activation and deactivation of their automatic emergency braking technology in 2015-2019 models.  The false activation aspect of the defect is particularly dangerous as our plaintiffs’ vehicles have stopped abruptly and needlessly, with no hazards in sight.  For instance, some plaintiffs’ cars’ automatic braking systems false activated when approaching train tracks and low overpasses. Clearly, these phantom-breaking events put our clients and those on the road around them at significant risk. Spontaneous deactivation of the automatic breaking software is a separate yet unacceptable failure mode of the beleaguered Nissan and Infinity technology.

According to AAA, nearly 96% of 2020 vehicle models came equipped with at least one advanced driver assistance system (ADAS) such as automatic emergency braking, blind-spot warning or lane-keeping assistance. Consumers who buy new will likely have at least one type of vehicle safety system, and in many cases, this could be their first interaction with more advanced vehicle technology.

Self-driving vehicles are still years away from mass production, but drivers will likely interact with this emerging technology as testing on public roads expands.  According to AAA, 38 states and the District of Columbia have active programs that allow self-driving test vehicles to operate on public roads without consumers’ knowledge.  Although road testing of this developing technology is the only true vetting method, the testing is fraught with risk.

The firm’s automatic braking defect class action against Nissan and Infiniti is entitled In re Nissan North America, Inc. Litigation 3:19-cv-00843, filed in the Middle District of Tennessee.   Dee Miles, Clay Barnett, and Mitch Williams, lawyers in our Consumer Fraud & Commercial Litigation Section, are litigating for the firm along with co-counsel from Bursor & Fisher, DiCello Levitt Gutzler, Bailey Glasser and Branstetter, Stranch & Jennings.

Our lawyers are interested in reviewing instances of driver-assisted technology malfunctioning in the field. Contact Clay Barnett in the Atlanta office and Mitch Williams in Montgomery with any inquiries. These lawyers can be reached by phone at 800-898-2034 or by email at [email protected] or [email protected].

Tesla Sued Over Fatal Wreck Blamed On Autopilot System

A wrongful death lawsuit filed against Tesla Inc. alleges that the autopilot feature in a Tesla vehicle failed to detect a parked truck and that, as a result, the Tesla vehicle hit the truck at nearly 70 mph. Naibel Benavides Leon, who was standing next to the truck, was struck and killed. In the suit, filed in April and then removed to Florida federal court, the decedent’s family alleged that the driver assistance systems in the Tesla Model S involved in the crash are dangerously defective and that the company fails to warn drivers about those defects.

The complaint makes two claims, one for strict liability and the other for failure to warn. The suit alleges:

  • the autopilot systems in Tesla’s vehicles fail to monitor driver engagement;
  • the system failed to detect the truck in the road in front of the Tesla (McGee) vehicle;
  • George McGee was behind the wheel of the Tesla on April 25, 2019, and had activated the autopilot function.
  • McGee relied on the ability of the autopilot to detect obstacles in the roadway.
  • McGee looked at his phone and did not notice his vehicle was approaching a T-intersection, where a Chevrolet Tahoe was parked, with 22-year-old Ms. Leon standing next to it.
  • McGee’s car did not detect the Tahoe and failed to initiate the brakes.
  • As a result, the Tesla crashed into the truck at nearly 70 mph, causing it to rotate and strike Ms. Leon.
  • After Ms. Leon’s death, Tesla added additional programs, systems and components that provide automatic collision avoidance and emergency braking. Tesla could add such features, which would have prevented the crash.

The complaint further names alternative designs that could have been incorporated into the Tesla vehicles earlier, such as driver-facing cameras to monitor the driver’s eyes, lidar and other systems to detect obstacles, and reworkings of Tesla’s software.

Tesla and its driver assistance features have come under scrutiny in recent months, following other fatal crashes that have been blamed on those features. One such occurrence was in Texas in April, where authorities initially reported that no one was behind the wheel when a Tesla vehicle crashed and killed its two occupants. The National Transportation Safety Board (NTSB) later said that the autopilot couldn’t have been fully engaged during the crash.

A number of Legal experts have said that as vehicles become more autonomous and driver assistance transitions toward fully automatic driving, vehicle manufacturers will face more liability following accidents than they have in the past. It’s believed the litigation will trend more toward product liability than personal injury.

The family, in this case, is represented by Todd Poses of Poses & Poses PA. The case is Benavides v. Tesla Inc. (case number 1:21-cv-21937) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

Texas Appeals Court Allows $194 Million Damages Against Toyota

A split Texas appellate court has affirmed the majority of a $209 million damages award against Toyota in a lawsuit involving defective front seats in a Lexus. The defect caused two children to suffer severe head trauma in a rear-end collision. The appeals court rejected Toyota’s argument that the verdict wasn’t supported by the evidence.

In a 2-1 decision last month, a panel of the Court of Appeals for the Fifth District of Texas, ruled Toyota Motor Corp. must pay $194.4 million in damages; but the court rendered a “take-nothing judgment” against the car company’s sales arm, Toyota Motor Sales USA Inc., at the request of plaintiffs Benjamin and Kristi Reavis, the parents of the injured children.

Toyota appealed the damages award in December 2019, arguing it should be reversed on six grounds, including that the Reavis family’s state court design defect claims were preempted by federal law and the evidence was insufficient to support a jury finding that the front seats were defective.

The panel’s majority disagreed, finding Toyota hadn’t properly preserved its preemption claim on the record. The majority also found the evidence was sufficient to support the jury’s finding. Justice Erin A. Nowell wrote for the majority:

Courts are particularly reluctant to substitute their own sense of justice for that of a jury selected from a cross section of the community. The jury heard evidence that Kristi felt betrayed as a parent, she was shocked by the evidence Toyota Motor knew of danger and could have avoided it. The jury reasonably could have agreed with her.

Justice David Schenck authored a dissent, saying that Toyota had properly preserved its preemption issue and that the evidence was insufficient to support the jury’s finding. The justice said the plaintiffs having provided evidence of another design that would reduce or eliminate risk was insufficient to sustain their design defect claim.

The Reavis family filed suit against Toyota in November 2016, saying that the accident happened while Benjamin Reavis was driving his family’s 2002 Lexus ES 300 on a state highway, with all family members properly restrained, when they were rear-ended by the car driven by Michael Mummaw.

Mummaw, his passenger and the Reavis adults all came out of the accident without major injury. But during the “otherwise survivable collision,” the two front seats in the Lexus collapsed backward, hitting the Reavis children in the head and causing skull fractures and other severe and permanent injuries.

A Dallas County jury, in August 2018, determined the two Toyota companies were 95% responsible for the children’s injuries, while Mummaw was 5% responsible. The jury awarded a combined verdict of more than $242 million, including roughly $144 million in punitive damages against Toyota.

Two weeks after the verdict, the Reavis family asked a Dallas County District Court judge to reduce Toyota Motor Corp.’s punitive damages in order to keep the verdict within state caps on damages. The verdict was reduced to $194.4 million against Toyota Motor Corp. and $19.4 million against Toyota Motor Sales — totaling $208.9 million after accounting for a shared $5 million liability.

On appeal in April, after oral arguments in the case, the Reavis family filed a motion with the Fifth Court of Appeals to render a take-nothing judgment against Toyota Motor Sales in an effort to streamline the appeal by reducing the number of issues the appellate court had to address.

The Reavis family is represented by Frank L. Branson and Debbie Branson of Law Offices of Frank L. Branson, Eugene A. “Chip” Brooker Jr. of Brooker Law PLLC, and Harry M. Reasoner, Marie A. Yeates, Michael A. Heidler and Thomas S. Leatherbury of Vinson & Elkins LLP. The case is Toyota Motor Sales USA Inc. et al. v. Benjamin Thomas Reavis et al. (case number 05-19-00075-CV) in the Court of Appeals for the Fifth District of Texas. Toyota says it will appeal to the Texas Supreme Court.

Source: Law360.com

Class Action Lawsuit Filed Against Hyundai Over Genesis ‘Defects’

A proposed class action has been filed against Hyundai Motor Co. in federal court by a Maryland driver, claiming that the Genesis GV-80 shakes uncontrollably and veers off the road at speeds above 40 mph. The plaintiff Dr. Barbara Feinstein said she leased the luxury SUV crossover this spring — the same model Tiger Woods was driving during his life-altering accident earlier this year — intending to drive from Maryland to Florida with her husband. But once on the road, the car started shuddering violently and pulling to the left at only moderate speeds, “causing a continual struggle to keep the SUV from veering off the road,” according to her complaint.

Dr. Feinstein took the vehicle to a dealership in Delray Beach, Florida, where a local service manager said he was directed to hold off on repairs to the GV-80 “because corporate had been receiving a series of inquiries from dealers around the country with this kind of problem.”

After about 40 days in the shop and three separate attempts to fix the problem — replacing the tires, an axle and a driveshaft — the stability and steering problems persisted. And despite numerous requests, Hyundai has refused to take the car back and offer Feinstein a refund.

Repair specialists in both the Maryland and Delray dealerships have allegedly acknowledged that the problem is real. Dr. Feinstein is suing Hyundai and its luxury vehicle division, Genesis, for violations of statutory consumer protection laws, breach of express warranty and breach of implied warranty.

According to her lawyers, Dr. Feinstein is not the only Genesis GV-80 driver reporting these dangerous issues. They point to a number of other customers with similar complaints about driving instability and failed repairs on public message boards such as genesisowner.com.

The 2021 Genesis GV-80 is the first SUV offered by Hyundai’s luxury vehicle division and promises top-of-the-line safety features, according to the Genesis website. However, there were some signs of initial trouble last year as Korean media outlets reported that the automaker delayed distribution of the vehicle due to engine vibration problems. The complaint alleges:

  • Instead of the high-performance capabilities promised in Hyundai’s luxury line of vehicles, customers instead experienced dangerous instability, shuddering, vibrations and uncontrolled veering,
  • Hyundai misrepresented and concealed the defective conditions, Feinstein said, in violation of Maryland state consumer protection laws, and similar statutory laws around the country; and
  • Hyundai expressly warranted, through direct‐to‐consumer marketing, advertisements, and promotion, that the class vehicles were safe, free of defects and provided high-performance driving capabilities.

The proposed class includes nationwide consumers who have bought, leased or owned a GV-80 in the U.S., excluding individuals with personal injury claims due to the alleged defects. The complaint alternately proposes a state class of Maryland consumers.

Dr. Feinstein is represented by Marcus Corwin and Stephen Conteaguero of Corwin Law. The case is Dr. Barbara Feinstein v. Hyundai Motor Co. (case number 1:21-cv-01436) in the U.S. District Court for the District of Maryland.

Source: Law360.com

AVIATION LITIGATION

FAA Fines Boeing $17 Million Over Substandard Parts In 737 MAX

The Federal Aviation Administration (FAA) has fined Boeing $17 million over claims that the planemaker used substandard parts in the wings of the 737 MAX planes. This is only one of the issues that have plagued the beleaguered aircraft. As part of the settlement reached with the agency, Boeing also agreed to correct the issues.

The fine results from three civil penalty letters the FAA sent Boeing between December 2019 and March 2020, totaling $28 million. In recognition of corrective action Boeing has completed, the agency decreased the fine by $1 million and deferred an additional $10 million, which will be added back to the total should Boeing fail to take the other corrective measures. The manufacturing giant was required to pay the fine within 30 days after executing the agreement with the oversight agency.

The plane parts at issue were slat tracks, which are found on the wing. They guide the movement of the wing’s panels to provide additional lift during takeoff and landing. The agency reported that Boeing installed equipment with unapproved sensors on 759 jets. It also submitted 178 jets with nonconforming slat tracks for airworthiness certification. The FAA said that public safety is its top priority and is nonnegotiable.

The 737 MAX has been highly scrutinized after Boeing misled U.S. regulators over the MAX’s flight control system. Regulators failed to test the defective system adequately before the aircraft entered commercial service. The deception and poor oversight led to the fatal crashes of two of the jetliners, including Lion Air Flight 610, which crashed in the Java Sea in October 2018, killing 189 people. Within five months, Ethiopian Airlines Flight 302 crashed, killing 157 people.

Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, focuses much of his practice on aviation litigation. He represents a number of families in the Boeing litigation. If you would like more information on the Boeing litigation, or any other aspect of aviation litigation, contact Mike at 800-898-2034 or by email at [email protected]. Mike also has written a book on litigating aviation cases to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.

Sources: Law360.com

PREMISES LIABILITY LITIGATION

Gun Violence Is Putting Property Owners On Notice To Take Measures

According to the Atlanta Journal-Constitution, the number of deaths in Atlanta has increased by 60% since last year. Many of those deaths are attributed to gun violence, with many incidents taking place at apartment complexes. Apartment complexes should be safe places that families can call home, and they are often advertised as such.

But we find the companies can be some of the most dangerous places to frequent. Last month, a woman visiting Atlanta from out of town was killed at an apartment complex that markets to college students. Days later, law enforcement responded to a gunshot victim at a gas station. The officers followed a bloody trail back to a nearby apartment building and discovered a female resident had been shot to death, the Macon Telegraph reported.

These are only two examples of residents being gunned down on the premises of places they rightfully should expect better protection. These types of incidences beg the question, “Is this due to negligent security?”

A negligent security case is a type of premises liability involving a crime committed by a third-party assailant that causes serious injury or death to a person when a property owner fails to take reasonable measures to prevent criminal activity. While acts of violence can occur anywhere, property owners in most states – including in Georgia  – have a duty to provide security measures that adequately protect invitees and their guests from foreseeable harm while on the property (i.e., apartment complex, bar, shopping mall, etc.). To hold property owners accountable, courts typically will determine whether a property owner knew or should have known about risks based on prior crimes in and around the same location and whether the owner took reasonable security measures to prevent or deter crime from occurring.

While many cities have endured an increase in crime as a consequence of the pandemic, amongst other reasons, this does not mean property owners can sit idly by while people are victimized. Suppose crimes such as sexual assaults, shootings or robberies repeatedly occur on or near a property owner’s premises. In that case, property owners are or should be aware that such crimes are happening. A court will likely determine that the risks of harm to invitees on the property were foreseeable to the property owners and that they should be held liable for any resulting injuries or damages.  And clearly, they should be. Failure to take basic security measures can lead to crime that disrupts the economy, overwhelms police departments, and causes needless injury and death to victims.

Apartment complexes are not the only commercial properties experiencing these tragedies. Unfortunately, criminal activity can occur in malls, spas, gas stations, restaurants and bars throughout the city. Atlanta malls have been a frequent target of criminal activity recently, and while metal detectors may keep weapons out of malls, they won’t protect patrons in the parking lots of these facilities. Property owners are on notice of risks and should take measures to better protect the patrons and others who are lawfully on their property.

Parker Miller and Donovan Potter, lawyers in our Atlanta office, have expertise in negligent security cases. They are currently handling numerous major cases across the State of Georgia and beyond. For more information relating to these cases or premises liability generally, contact Parker Miller or Donovan Potter at 800-898-2034 or by email at [email protected] or [email protected].

Sources: Atlanta Journal-Constitution and Macon Telegraph

WORKPLACE HAZARDS

When Manufacturers Ignore Safety, Bad Things Happen

Several months ago, Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, wrote an article focusing on safety changes made after an injury or death. Kendall had this to say about handling litigation involving defective products and bringing about safety changes in the design and manufacturing of products:

Few results are more satisfying than litigation influencing a specific manufacturer or an entire industry to adopt a design change for safety.  The clients and the attorneys can take pride in knowing their actions could save lives and limbs.  Product liability deals with the design of products and how the designs affect the safety of the people using the products.  When manufacturers fail to design their products with safety in mind, people get injured and sometimes killed. Unfortunately, some manufacturers and some industries ignore safety even after injuries and deaths. There is nothing more frustrating than knowing a simple and inexpensive design change could save lives; yet, the manufacturer does not improve safety.

Several years ago, Kendall represented a client who worked for a car wash in Arkansas. The car wash used a railing system and rollers to push the car through the automated car wash. His client sustained a very serious injury after his foot was entangled in one of the rollers. The client’s leg was forced into the railing system resulting in the traumatic amputation of his foot. He barely survived the ordeal. After medical treatment, his leg was amputated just below his knee, requiring him to use a prosthesis for the rest of his life. During litigation, Plaintiff’s expert explained the defect, and more importantly, how the railing system should be redesigned to prevent entanglement and injury. Kendall settled the client’s case, with the amount of settlement being confidential.

A few weeks ago, Kendall received a call from a lawyer in Texas who represents the family of a man killed by the same car wash system. Her client’s foot was also entrapped by the roller. Unfortunately, this victim did not survive the ordeal. After a short conversation, Kendall discovered that the car wash manufacturer had not redesigned the system after his client’s traumatic injury. The manufacturer’s failure to act caused the unnecessary death in Texas. Upon request, Kendall and his staff provided counsel with his entire case file, including the contact information for our client to facilitate the Texas family’s claims against the manufacturer. Kendall says:

There is nothing we won’t do to assist the attorney in holding the manufacturer responsible for this death. The car wash should have been properly designed before it was ever sold. Indeed, after my client’s incident, the manufacturer could have and should have revisited safety.  Its failure to do so resulted in a preventable death. We hope our case information and experience will influence the car wash manufacturer to redesign its system so that others are not unnecessarily maimed or killed in the future.

If you need more information or have questions about any of the above, contact Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email [email protected].  Kendall handles product liability cases, including workplace injuries and deaths, for Beasley Allen.

Pulp And Paper Manufacturing

The United States is a world leader in the production of pulp, paper, and paperboard products. The production of these products and the supporting industries are one of the nation’s largest industries. You do not have to spend much time driving country roads in the Southeast before catching the distinctive and pungent smell of papermills scattered throughout the area. Although these paper mills are great economic drivers of rural economies, their operation does not come without a price. Countless workers are injured each year operating the heavy equipment necessary to process and manufacture paper products.

The manufacturing process for paper and paper products is one of the world’s oldest and largest industries but has changed dramatically over time. Pulp and paper manufacturing is a highly hazardous industry. Workers may be struck by massive paper rolls, cut by machinery, caught in pinch points, and suffer chemical exposure in the manufacturing and handling process. The Occupational Safety and Health Administration regulates pulp and paper mills under the OSH Act’s General Industry standards.

These standards can be found at 29 CFR 1910.  One of the most often cited OSHA violations and a major cause of on-the-job injuries and death in the paper processing industry involves 29 CFR 1910 Subpart O, which deals with machine guarding. Paper and pulp processing equipment requires intricate presses, rollers and conveyor systems. This machinery has its inherent dangers or hazards that must be addressed from the design phase.  It cannot be left to mills, users, or operators to identify and address safety hazards associated with automated machinery.

When a hazard within a machine is identified, there are typically three options available to mitigate that hazard. The safety engineering hierarchy gives machine designers a series of steps to evaluate in mitigating a given hazard. The design engineers can:

  • redesign the machine to eliminate the hazard;
  • guard against the hazard; or
  • warn the user of the hazard.

The preferred method for dealing with a hazard is to, when possible, redesign the machine to eliminate the hazard. When a machine poses a hazard that cannot be eliminated, the appropriate course of action is to guard against the hazard. If a hazard cannot be eliminated or guarded against, the final course of action is to develop adequate warnings alerting the user of the hazard.

This process of identifying a hazard and choosing the best method for eliminating that hazard is known as a safety hierarchy. It is well known within the engineering field that designing a machine to eliminate a hazard and then guarding against the hazard are far superior methods for safeguarding operators than warning about the hazard.  However, all too often, we see design engineers skip immediately to the third rung of the hierarchy and merely warn of hazards.

Over the years, lawyers at Beasley Allen have handled countless product liability cases involving defective pulp and paper machinery.  Operators are often subjected to operating machinery with hazards that have not been eliminated or guarded.  Unguarded pinch and nip points are a recipe for disaster no matter how carefully an employee works or how many warnings they receive.  Hazardous, unguarded pulp and paper machinery have cost many workers a finger, hand, arm, or even their life.

If the manufacturer takes appropriate steps to design and implement guards on pulp and paper machinery, the guards must remain in place and in good working order to be effective.  In Alabama, if an employer removes a safety device incorporated by the designers of the machine, the injured may sue their employer outside of workers’ compensation.  Under Ala. Code § 25-5-11(c)(2), an injured employee may bring an action in tort if a safety device is intentionally removed from a machine.

These cases are prevalent and are easily overlooked unless a detailed investigation is conducted. Every serious on-the-job injury involving a pulp or paper machine must be examined on a case-by-case basis.  Just because guards are incorporated into a particular machine does not necessarily mean that the user or operator was adequately protected.

If you have any questions or need more information, contact Evan Allen at 800-898-2034 or by email at [email protected]. Evan, who is in our Personal Injury & Products Liability Section, and is located in our Mobile office, handles product liability cases, including workplace litigation, for the firm.

MASS TORTS LITIGATION

Zantac Lawyers Accuse Sanofi Of ‘Widespread’ Email Destruction

Lawyers representing more than 70,000 former users of the heartburn drug Zantac are accusing one of Zantac’s makers, Sanofi, of “widespread” destruction of employee emails connected to the 2019 recalls of Zantac and other medicines containing ranitidine due to the presence of a probable carcinogen. The drugs were pulled from the U.S. market on April 2, 2020.

Former Zantac users have filed lawsuits against Sanofi and other ranitidine makers, claiming the companies covered up Zantac cancer risks. The first trials are to start next year, but the lawyers say the company’s email deletion antics have “resulted in the delay and / or postponement of many key Sanofi depositions.” As such, the lawyers have asked for more time to prepare for the first trials.

GlaxoSmithKline (GSK), Boehringer Ingelheim, and dozens of other manufacturers of ranitidine products are also facing Zantac lawsuits. The Zantac lawyers singled out GSK for initially producing redacted documents. Both Sanofi and GSK are named in a Zantac lawsuit filed by the New Mexico Attorney General alleging the companies of false advertising, public nuisance, and negligence and violating the state’s unfair practices.

In 2019, online pharmacy Valisure announced it had discovered the presence of the probable human carcinogen N-Nitrosodimethylamine (NDMA) in Zantac and other ranitidine products in levels above what the Food and Drug Administration (FDA) considers safe for daily human consumption. The discovery led to sweeping recalls of Zantac and other ranitidine-containing products beginning in 2019. The FDA ordered all ranitidine products to be removed from the U.S. market on April 2, 2020, after new testing revealed that levels of NDMA in Zantac could increase even under normal storage conditions and could increase significantly the longer it sat on store shelves or in a consumer’s medicine cabinet.

Beasley Allen lawyers in our Mass Torts Section are currently investigating cases involving persons who developed certain types of cancers after taking brand-name Zantac. For more information, contact Frank Woodson or Melissa Prickett at 1-800-898-2034 or by email at [email protected] or [email protected].

Source: Fierce Pharma

Zofran MDL Judge Issues A Fact-Specific Preemption Ruling, Appeal To Follow

On June 1, 2021, the U.S. District Judge presiding over the Zofran MDL dismissed over 420 lawsuits claiming that Zofran causes birth defects.  The plaintiffs are expected to appeal the ruling to the U.S. First Circuit Court of Appeals.  The summary judgment decision was based on “impossibility preemption,” which is rooted in the Supremacy Clause of the U.S. Constitution.  Simply put, impossibility preemption exists in circumstances where it would be impossible for a private party to comply with both federal and state law requirements.

This sometimes becomes an issue in drug cases since Congress entrusted the FDA to ensure that drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.”  When the FDA exercises that authority, it makes judgments about what warnings should be on a drug’s label.

Under states’ products liability laws, plaintiffs injured by a drug may bring failure to warn claims alleging that the drug’s label is inadequate because it should have included a specific type of warning.  But what if a drug manufacturer had already requested that the FDA allow it to add that particular type of warning, but the FDA said no—could the manufacturer comply with both federal and state law? This is an issue that the U.S. Supreme Court has addressed on a few occasions recently.

The U.S. Supreme Court has held that impossibility preemption only applies if the drug manufacturer shows “clear evidence” that the FDA rejected the specific type of warning at issue in the plaintiffs’ lawsuits. The Supreme Court recently addressed this standard and held: (1) judges, rather than juries, should decide whether there is “clear evidence” and (2) the “clear evidence” standard means an “irreconcilable conflict” between federal and state law—it is not a “clear and convincing” evidentiary standard.  In short, the Supreme Court has set the bar high for manufacturers to prove that the FDA rejected the exact type of warning at issue in the plaintiffs’ lawsuits.

Here, the Zofran MDL judge previously decided that this question of preemption (i.e., “clear evidence”) should go to a jury.  Since the Supreme Court later decided that whether “clear evidence” exists is a question for the judge, the defendants in the Zofran MDL filed supplemental briefing.  The defendants argued that there was “clear evidence” that the FDA prohibited them from adding a birth-defect warning for Zofran.  They presented facts showing that the FDA addressed this type of warning in 2010, 2013, 2015, 2019, and again in 2020.  The Zofran MDL court ruled that “the FDA had been provided with every study and piece of scientific literature on which plaintiffs rely in this case to establish that Zofran causes birth defects,” and there is clear evidence that the FDA rejected proposed pregnancy warnings.  The plaintiffs in the Zofran MDL are now exploring their options for appeal.

The Zofran ruling in the instant case was fact-specific and will likely have no sweeping effects on the future of mass torts litigation.  The decision did not change the law but instead applied existing law to a narrow set of facts. For drug manufacturers to prove impossibility preemption, they must still prove that the FDA expressly rejected the exact type of proposed warnings at issue. Those circumstances are extraordinarily rare.  It will be interesting to see if drug manufacturers submit proposed changes to the FDA as a sincere attempt to add required safety information or whether they intend to submit proposed changes as a sword for impossibility preemption. If drug manufacturers intend to submit proposed label changes to the FDA after lawsuits are filed, the manufacturers will have to weigh the risk of the FDA accepting those changes.

The plaintiffs are represented by Tobias L. Millrood of Pogust Millrood, Kimberly D. Barone Baden of Motley Rice LLC, M. Elizabeth Graham of Grant & Eisenhofer PA, Robert K. Jenner of Jenner Law PC and James D. Gotz of Hausfeld LLP. The case is In re: Zofran (Ondansetron) Products Liability Litigation (case number 1:15-md-02657) in the U.S. District Court for the District of Massachusetts.

Benzene, Known Carcinogen, Found In Sunscreen Products

On May 25, 2021, independent pharmaceutical laboratory, Valisure announced its findings of potent carcinogen, benzene, in household sun protection products.  This public announcement follows Valisure’s Citizen’s Petition to the Federal Drug and Food Commission filed on May 24, revealing high levels of benzene in sunscreens.

Benzene is a compound found naturally in volatile environments and a commonly used chemical in drug manufacturing.  Valisure’s research indicates benzene has long been known to cause cancer in humans and animals, with studies ranging from the 1800s to more recent studies issued by the American Cancer Society and World Health Organization. Specifically, acute myeloid leukemia and acute lymphocytic leukemia are associated with this hemotoxic compound. Due to benzene’s carcinogenicity, the Food and Drug Administration classifies benzene as a “class 1 solvent”, establishing concentration limits for the amount in finished drug products.

Valisure found benzene contamination in both sunscreens and after-sun products, triggering concern for drug and cosmetic product oversight.  Valisure’s battery of tests revealed 48% of the products tested significantly surpass the FDA’s benzene concentration limit of 2 parts per million (ppm).  Products tested range from popular brand names like Neutrogena to store-brand products. Excessive benzene levels were found in sprays, lotions, and gel applications alike.

Because sunscreen is typically applied over most skin surface areas, a product with an excessive concentration of a carcinogen is especially concerning. One application can potentially expose the entire body to the cancer-causing agent. This concern is multiplied due to the typical repeated application rate of sunscreen.

Valisure’s sunscreen testing follows its investigation into another skin product vulnerable to benzene contamination, hand sanitizer.

To date, mandatory testing or recalls of sunscreens have not been issued.  For more information about benzene-contaminated sun care products, visit https://www.valisure.com/blog/valisure-news/valisure-detects-benzene-in-sunscreen/.

For more information on benzene-contaminated hand-sanitizer, visit https://www.valisure.com/blog/valisure-news/valisure-detects-benzene-in-hand-sanitizers/. For information about Beasley Allen’s active cases involving contaminated products, visit our website or contact Melissa Prickett at 1-800-898-2034 or by email at [email protected].

Belviq Fiasco Raises Questions About Newly Approved Diet Pill

Last month, the Food and Drug Administration (FDA) approved a new weight management treatment—the first such treatment since 2014. Wegovy (semaglutide) is a glucagon-like peptide-1 (GLP-1) receptor agonist, the same ingredient in the type 2 diabetes brand-name drugs Ozempic and Rybelsus.

Researchers are calling the new drug a “game-changer” in weight management. But whether patients will trust these medications is another story. The announcement comes 16 months after the weight loss drug Belviq was pulled from the market after long-term studies showed that patients taking the medicine had an increased cancer occurrence.

Belviq contains the active ingredient lorcaserin, which works by helping a person feel full after eating and, as a result, eat less and lose weight. But there were early safety concerns even before the drug was approved. Laboratory rats exposed to lorcaserin developed mammary and brain tumors.

Belviq’s maker, Eisai, managed to convince drug regulators that the medication was safe. But the FDA’s approval was contingent on Eisai conducting post-market safety studies on Belviq.

Researchers found that cancer was diagnosed more often in Belviq users than people who did not use the drug when those results were released. The FDA said Belviq accounted for one additional cancer diagnosis per 470 patients taking Belviq for one year. The cancers most often linked to Belviq use were pancreatic, colorectal, and lung cancer. But Belviq users may also be at increased risk for other cancers, including liver cancer and leukemia. Belviq users also had a higher rate of cancer-related death, multiple primary tumors, and metastatic disease.

The FDA called for the removal of Belviq and advised consumers to talk with their doctors if they had any concerns. The agency is not recommending special screening for patients who used Belviq but did recommend they follow standard screening recommendations.

Beasley Allen lawyers in our Mass Torts Section continue actively investigating cases against Belviq. If you or a loved one has been diagnosed with cancer after taking Belviq for weight loss, contact Roger Smith or Ryan Duplechin, lawyers in the Section, at 800-898-2034 or email [email protected] or [email protected].

Sources: WebMD, FDA Safety Communication

SHAREHOLDER LITIGATION

Bristol Myers Squibb Sued For Defrauding Shareholders

Bristol Myers Squibb Co (BMS) has been sued by its shareholders for $6.4 billion. A lawsuit was filed on June 3 against BMS for allegedly delaying the FDA approval of its Breyanzi (chemical name lisocabtagene maraleucel) cancer drug to avoid making milestone payments to the shareholders of the former Celgene Corp, which the drugmaker bought for $80.3 billion in cash and stock in November 2019. The case was brought by UMB Bank NA, acting as a trustee for Celgene’s former shareholders in the Southern District of New York. The case is UMB Bank NA v. Bristol-Myers Squibb Co. et al., U.S. District Court, Southern District of New York, No. 21-04897).

According to a Contingent Value Rights agreement tied to BMS’s purchase of Celgene, the pharmaceutical giant would have owed former Celgene shareholders $9 per share contingent on winning FDA approval by specified deadlines for three drugs that Celgene had been developing. BMS won FDA approval for the two of the Celgene drugs, Zeposia for multiple sclerosis and Abecma, to treat multiple myeloma by the specified deadlines.

But, liso-cel, also known as Breyanzi, a new CAR-T drug to treat non-Hodgkin lymphoma, didn’t make it past the FDA finish line of December 31, 2020. By missing the deadline, BMS was excused from owing any additional payments, enabling it to acquire Celgene at an “enormous discount” and enjoy a “windfall,” the complaint said.

Essentially, BMS failed to use contractually required “diligent efforts” to win FDA approval for the drug by the deadline, including withholding or belatedly submitting critical information to the FDA for Breyanzi’s approval and failing to prepare its manufacturing plants for required inspections. Ultimately, BMS won FDA approval for Breyanzi on Feb. 5, 2021.

Comments surrounding the lawsuit have focused on its inevitability and similarity to BMS’s history of questionable business practices, settlements and regulatory violations. Beasley Allen has been involved in some of these claims. In 2001, BMS reportedly persuaded wholesale customers to purchase about $2 billion more of drugs than they needed so the company could meet its sales goal that year.

The accounting gimmick, known as “channel stuffing,” resulted in a sharp drop in revenue the next year and investigations by the U.S. Securities and Exchange Commission and the U.S. Justice Department demanding $839 million in restitution and the former chief financial officer indicted on securities fraud charges.

In 2007, BMS agreed to pay more than $515 million to resolve a broad array of cases involving its drug marketing and pricing where, in addition to overcharging the government for drugs, BMS was also accused of promoting off-label use of the antipsychotic Abilify and setting inflated prices for a wide array of drugs.

In 2010, the FDA sent a warning letter to BBMS demanding compliance with regulations, citing microbiological contamination of drug products, environmental contaminations in facilities, and a lack of a scientifically sound standard for sampling plans and test procedures. Some of these infractions were repeat violations from inspections in 2005 and 2009.

Finally, in April 2021, BMS agreed to pay the United States and participating states a total of $75 million, plus interest to resolve allegations brought under the False Claims Act that it knowingly underpaid rebates owed under the Medicaid Drug Rebate Program. BMS underreported Average Manufactures Prices (AMPs) for many of its drugs by improperly reducing the reported AMPs for service fees paid to wholesalers and improperly excluding the declared AMP’s additional value received under price appreciation provisions in its contracts with wholesalers. As a result, BMS allegedly underpaid quarterly rebates owed to the states and caused the United States to be overcharged for its payments to the states for the Medicaid program.

This latest suit is yet another example of corporate misconduct tied to nothing short of just pure unadulterated monetary greed. Here, BMS appears to have intentionally drug its feet just long enough for about 60 days to gain a substantial multi-billion dollar windfall at the expense of well-intentioned shareholders. Fortunately, we have a solid court system to stop this sort of corruption.

Beasley Allen lawyers are privileged to have litigated against companies and corporations like BMS, whose misconduct fueled by greed has resulted in injuries to individuals, both physical and financial.  When big corporations take advantage of those who oppose their financial interests, whether it be one man or a board of companies they considered their equals, there will be harm done because of the injustice. The only real avenue of redress affecting these bad actors is litigation by serious lawyers that threatens the companies’ bottom line. That is what corporations like BMS understand.

If you have knowledge or information relating to these types of practices in Corporate America, you can contact Dee Miles, who heads our Consumer Fraud & Commercial Litigation Section. Lawyers in the Section are always eager and interested to pursue justice on behalf of those wronged by corporate wrongdoing and abuse. You can reach Dee by phone at 800-898-2034 or by email at [email protected].

TOXIC TORT LITIGATION

An Update On The Paraquat Litigation

A milestone was reached last month in the paraquat litigation. After a hearing, the Judicial Panel of Multidistrict Litigation (JPLM) granted the request to consolidate these cases into a single multidistrict litigation (MDL) in the Southern District of Illinois. Chief Judge Nancy J. Rosenstengel, who is already presiding over 20 related cases against Defendants Syngenta and Chevron in the Southern District of Illinois, will oversee the MDL.

Although this is Chief Judge Rosenstengel’s first MDL, she has presided over mass actions in the past. The JPML sees her previous work as a great “opportunity to select a skilled jurist who has not yet served as a transferee judge.” Further, the JPML believes that the Southern District of Illinois is the appropriate transferee district because Illinois ranks in the top five states for paraquat usage. Additionally, paraquat litigation has proceeded in Illinois state court for several years, and one Illinois state case is nearing trial.

The pending Illinois state court case in St. Clair County before Judge Hoerner was set to begin a bench trial on May 10, 2021. However, the parties requested a continuance and pushed the trial date back to June 1, 2021. The June 1 trial date was canceled, and at this time, no new trial date has yet been set.

Beasley Allen’s Toxic Tort lawyers hosted a webinar on paraquat that provides a background on the herbicide, the parties involved, the legal issues in the case, and the current state of litigation. This webinar is available for viewing on the firm’s YouTube Channel, https:www.youtube.com/c/BeasleyAllen.

Beasley Allen’s Toxic Torts Section is accepting paraquat cases for investigation and evaluation. Contact Rhon Jones ([email protected]), Charlie Stern ([email protected]), Matt Pettit ([email protected]), or Julia Merritt ([email protected]) for more information at 800-898-0234 or by email.

Source: Law360.com

PFAS Found In Makeup And Breastmilk

Previous issues of the Report discussed the contamination of our nation’s drinking water from the toxic “forever chemicals” known as per- and polyfluoroalkyl substances (PFAS).  These chemicals can bioaccumulate in humans over time and have been linked to cancer, thyroid disease, liver damage, decreased fertility, and hormone disruption.   Two new studies published by the Environmental Science & Technology Journal show how truly pervasive these chemicals are in our society.

One study found PFAS were present in 52% of 231 makeup products purchased in the United States and Canada. Some of the highest levels were found in foundations (63%), waterproof mascara (82%) and long-lasting lipstick (62%). The findings are shocking because most cosmetic products with high concentrations do not disclose PFAS on the ingredients list.  The study is also a concern for experts because the products with higher concentrations are often used around the eyes and lips, where PFAS chemicals are more readily absorbed or accidentally ingested.

This disturbing development is seen in the second study, which found alarming levels of PFAS in the breast milk of American mothers, which presents a potential threat to newborns’ health. All 50 samples tested contained levels ranging from 50 parts per trillion (ppt) to more than 1,850 ppt of 16 different PFAS compounds. While there are no standards for PFAS in breastmilk, the federal Agency for Toxic Substances and Disease Registry recommends as little as 14 ppt in children’s drinking water. The study questions the chemical industry’s claim that its newer generation of PFAS do not accumulate in humans. If you need more information or have questions, contact Ryan Kral, a lawyer in our firm’s toxic Torts Section, at 800-898-2034 or by email at [email protected].

FDA Approves New Treatment For Mesothelioma

For decades, a mesothelioma diagnosis has been considered a death sentence.  Unfortunately, this asbestos-caused cancer, which usually forms around the lining of the lungs, kills most of its victims within about 14 months.  With limited surgical and pharmaceutical options, mesothelioma usually results in patients swiftly deteriorating for a year to 14 months before passing away.

While much of the preceding paragraph remains true today, mesothelioma patients received some welcome good news towards the end of 2020 when the FDA, for the first time in 16 years, approved a new drug combination for treating mesothelioma. This drug combination therapy was evaluated. The analysis showed that patients who received the new combination survived a median of 18.1 months, while patients who underwent traditional chemotherapy survived a median of 14.1 months. Richard Pazdur, M.D., director of the FDA’s Oncology Center of Excellence and acting director of the Office of Oncologic Diseases in the FDA’s Center for Drug Evaluation and Research, stated:

Today’s approval of nivolumab plus ipilimumab provides a new treatment that has demonstrated an improvement in overall survival for patients with malignant pleural mesothelioma.

While an additional four months of survival time may not sound overly impressive at first blush, that extra time can be very meaningful for the victims and their families.  This extra time can also ensure that victims and their families recoup more compensation in states that reduce available compensation once a plaintiff dies. Just as important, this extra time will ensure more mesothelioma victims get to have their day in court and see that the wrongdoers who exposed them to asbestos and caused their suffering are held accountable.

If you have any questions or need more information, contact Charlie Stern, a lawyer in our Toxic Torts Section, who handles mesothelioma cases for the firm, at 800-898-2034 or by email [email protected].

Source: FDA.gov

The ONGOING Roundup Litigation

An Update On The Roundup Litigation

We will give a complete update on the Roundup litigation in the August issue of the Report. However, for now, we will mention a few items of interest, one being an important development in the MDL. U.S. District Judge Vince Chhabria has rejected Monsanto’s latest attempt to get a global settlement approved.  

The preliminary class approval proposed by certain plaintiffs’ counsel and Monsanto in the Roundup multidistrict litigation was denied in its entirety by Judge Chhabria. He broke down the request into two classes of potential clients: Class 1 is the group of clients who have been exposed to Roundup, have developed Non-Hodgkin’s Lymphoma, but who have not yet retained counsel; Class 2 is the group of clients who have been exposed to Roundup but have not yet developed Non-Hodgkin’s Lymphoma.

The rejection of the proposed settlement by Judge Chhabria was a major blow to Monsanto and Bayer. To say it was bad news for the companies would be a gross understatement.

Contact Rhon Jones, who heads Beasley Allen’s involvement in the Roundup litigation, for more information on the above. He can be reached by phone at 800-898-2034 or by email at [email protected]. You may also contact Charlie Stern ([email protected]), Will Sutton [email protected]), or Matt Pettit ([email protected]), lawyers in the Toxic Torts Section.

Bayer May End Glyphosate Retail U.S. Sales

The day after U.S. District Judge Vince Chhabria rejected Bayer AG’s settlement to cover future claims that Roundup causes cancer, the company said it considering taking the weedkiller’s active ingredient off the U.S. residential market. However, Bayer said talks about taking the ingredient glyphosate off the retail market won’t extend to stopping its agricultural sales. Stay tuned!

Source: Law360.com

Monsanto To Pay Up To $45 Million To Settle Roundup Labeling Suits

A group of consumers has asked a Delaware federal court to give preliminarily approval to a settlement under which Monsanto Co. has agreed to pay up to $45 million to resolve nationwide proposed class claims alleging the agrochemical giant fraudulently marketed its weed killer Roundup without disclosing its potential cancer links. A motion for preliminary settlement approval was filed by the proposed class of consumers.

If approved, the settlement would end a nationwide proposed consumer class action filed by eight plaintiffs in August, along with multiple other related actions, potentially including the high-profile, hotly contested case of Ezcurra v. Monsanto currently pending on appeal before the Eleventh Circuit Court of Appeals. The lawsuits accuse the Bayer AG subsidiary of violating state consumer protection and false-advertising statutes by selling glyphosate-containing Roundup weedkiller products without disclosing that they may cause cancer or other health effects. The consumers argue they would not have paid as much, or they would not have purchased the products if warnings had been on the products.

The motion for approval puts the settlement fund between $23 million and $45 million. It clarifies that the proposed settlement does not involve the injury and death liability claims, only those for fraud.

The consumers are represented by William J. Rhodunda Jr. and Chandra J. Williams of Rhodunda Williams & Kondraschow LLC and by Gillian L. Wade, Marc A. Castaneda and Sara D. Avila of Milstein Jackson Fairchild & Wade LLP.

The case is Scott Gilmore et al. v. Monsanto Co. (case number 1:20-cv-01085) in the U.S. District Court for the District of Delaware.

Source: Law360.com

Class Action Litigation

Fisher-Price Rock ‘N Play Litigation Update

On June 7, 2021, the U.S. House of Representatives Committee on Oversight and Reform issued a scathing report detailing its findings after a two-year investigation into Mattel/Fisher-Price’s development,  marketing and sale of the Rock ‘n Play Sleeper, an infant sleeping hammock that places an infant at a thirty-degree incline for overnight sleep.  During its investigation, the Oversight Committee reviewed thousands of documents, interviewed former and current Fisher-Price employees and staff from the Consumer Protection Safety Commission (CPSC).

Based on the evidence uncovered in its exhaustive investigation, the Committee concluded that Fisher-Price brought the Rock ‘n Play Sleeper to market in 2009 without first ensuring that it was safe for infant sleep, and, beginning in 2010, ignored pointed warnings from foreign regulators, pediatricians and parents that the product was dangerous, ignored reports of an increasing number of infant deaths, and instead marketed the product for extended infant sleep, raking in hundreds of millions of dollars in sales in the process.

The Committee’s findings confirm the accuracy of Plaintiffs’ allegations and claims in the Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation.

At a hearing that followed the Committee’s report, Congresswoman Carolyn B. Maloney (D-NY), Chairwoman of the Oversight Committee, stated the Committee’s investigation made clear that Mattel and its subsidiary Fisher-Price “put profits over people with tragic results,” that their conduct is “absolutely shocking” and “a national scandal.” While the report states at least 50 infants died in the Sleeper before Fisher-Price was forced to recall it in April 2019, Ynon Kreiz, Mattel’s CEO, and Chuck Scothon, the general manager of Fisher-Price, testified at the hearing that, in fact, more than 90 infants had died in the Rock ‘n Play Sleeper. Nonetheless, these top executives cravenly continued to insist their deadly Sleeper was safe.

A few days before the hearing, presumably, to portray themselves as responsible corporate citizens, Mattel and Fisher-Price recalled two other inclined products marketed as soothers, not sleepers, admitting that one of them caused four infant deaths.

As the Committee’s report clarifies, there can be no credible argument that the Rock ‘n Play Sleeper was or could be safe. In 2005, four years before Fisher-Price began selling the product, the American Academy of Pediatrics (AAP), the definitive authority on pediatric care, issued a policy statement that infants should be placed wholly on their backs on a firm flat surface for every sleep.

Fisher-Price, which brands itself as the most trusted name in infant products, undoubtedly knew about AAP’s guidance, the purpose of which is to prevent infant sleep-related deaths. In fact, in 2008, an employee wrote a “safety audit report” about the Sleeper finding it to be “unacceptable” and stated that the company must ensure that the infant’s position in the product was proper.

Yet, Fisher-Price failed to consult a single pediatrician or conduct a single study to determine whether placing an infant at a thirty-degree incline for sleep could be harmful before it began selling it to unsuspecting parents. Instead, Fisher-Price consulted a doctor with no expertise in infant sleep or biomechanics who, when asked by a Fisher-Price employee whether it could be dangerous if an infant slid down in the sleeper seat and became “scrunched up,” gave the non-sensical response that babies spend time in the womb in a scrunched up position and therefore it was not a concern.

Without any medical guidance, Fisher-Price employees decided a thirty-degree incline was safe because it was less than forty-five degrees, the maximum incline for infant car seats. Marketing the Rock ‘n Play Sleeper as safe for infant sleep under these circumstances is, as a Committee member declared, “breathtakingly irresponsible.”

The Oversight Committee’s report also describes Mattel’s and Fisher-Price’s success in preventing the adoption of regulations and standards that would prevent Fisher-Price from marketing and selling the Rock ‘n Play Sleeper. For example, in 2010, the CPSC proposed a mandatory regulation covering infant sleep products that would limit the incline to five degrees. If this regulation were to be adopted, Fisher-Price would be forced to stop selling its new highly profitable Sleeper.

The head of Fisher-Price’s Safety Committee requested that the standard be revised to permit the Rock ‘n Play Sleeper, offering vague justifications of the purported lack of risk and consumers’ needs for an inclined sleep position for their infants. Instead of demanding proof that the thirty-degree incline was safe, the CPSC carved out inclined sleepers from the new regulation and stated that inclined sleepers should be part of a standard to be set by ASTM International.

ASTM is a non-governmental entity that sets voluntary safety standards and is effectively controlled by consumer goods manufacturers. In the Rock ‘n Play Sleeper case, a Fisher-Price employee led the ASTM committee responsible for developing the voluntary standard for inclined sleepers and, not surprisingly, the standard permitted sleepers at an incline of thirty degrees, the exact angle of the Rock ‘n Play Sleeper.

Mattel’s and Fisher-Price’s egregious conduct is a clear example of regulatory capture that resulted in the worst breakdown of societal norms – failing to prevent the unnecessary deaths of infants. The Oversight Committee made detailed recommendations to strengthen the role of the CPSC to enable it to take effective action to prevent dangerous products like the Rock ‘n Play Sleeper from being marketed and sold in the US in the future. Mattel and Fisher-Price, for their part, continue to pay for high-priced lawyers to defend themselves in the Rock ‘Play Litigation and the thirty or more wrongful death actions pending against them instead of taking responsibility for their grave misconduct.

Plaintiffs and the proposed classes are represented by lead counsel Demet Basar, from Beasley Allen, along with Dee Miles, Lydia Keaney Reynolds, Leslie Pescia, James Eubank and Paul Evans. All of these lawyers are in our firm’s  Consumer Fraud & Commercial Litigation Section.

The case is In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation (Case No. 1:19-md-02903) in the United States District Court for the Western District of New York.  If you have any questions or have information needed by the class, contact Demet Basar at 800-898-2034 or by email at [email protected].

11th Circuit Leaves Equifax Data Breach Settlement Mostly Intact

The Eleventh Circuit Court of Appeals has upheld all but one element of the $425 million settlement over the 2017 Equifax data breach. This came over the objections of several class members, cutting only the service awards to class representatives. Service or incentive awards for class representatives are prohibited, a three-judge panel said in its published opinion, citing an Eleventh Circuit ruling from September in Johnson v. NPAS Solutions. The incentive awards would have provided each class representative at least $2,500 and top off at $250,000.

A Georgia federal judge approved the settlement in January 2020 for an estimated 147 million class members, eliciting objections from 388 of them. But the objectors’ broad array of issues with the deal, from jurisdictional challenges to concerns over the trial court’s processes, don’t warrant its reversal, the Eleventh Circuit said. The panel said in its opinion:

Absent the settlement, the class action could have faced serious hurdles to recovery, and now the class is entitled to significant settlement benefits that may not have even been achieved at trial. And you need not take our word for this. The Federal Trade Commission, the Consumer Financial Protection Bureau, and the attorneys general for 48 states, the District of Columbia, and Puerto Rico all support the settlement.

Under the agreement, Equifax will pay $380.5 million into a settlement fund to be used for class members’ benefits, and $77 million of that would go to attorneys’ fees. It would also pay litigation costs and notice and administration expenses. Each class member could be reimbursed up to $20,000 for out-of-pocket losses related to the data breach, compensated up to $25 per hour for up to 20 hours spent dealing with the breach, and receive up to 10 years of credit monitoring and identity protection services.

Equifax additionally agreed to compensate class members who already had credit monitoring by up to $31 million and provide seven years of identity restoration services to those who had stolen personal information. The company further agreed to pay $125 million if needed to satisfy claims for out-of-pocket losses and potentially $2 billion more if all 147 million class members signed up for credit monitoring. Finally, it must spend at least $1 billion on data security over five years.

The trial judge hailed the settlement as the largest and most comprehensive recovery in a data breach case in U.S. history, the Eleventh Circuit noted. It resolves more than 300 class actions that were filed against Equifax throughout the country that were consolidated into a multidistrict litigation in the Northern District of Georgia, where the company is headquartered.

Some objectors said the class plaintiffs lacked standing because the class plaintiffs didn’t have their identities stolen. Still, the Eleventh Circuit rejected that argument, saying it didn’t matter because all plaintiffs and class members were at imminent risk of harm. The Eleventh Circuit cited the extent of the information exposed in the breach to support its reasoning that all plaintiffs and class members were at risk of having their information used illegally. The panel wrote:

Those who suffered identity theft had numerous unauthorized charges and accounts made in their name; incurred specific numerical drops in their credit scores; had their ability to obtain loans affected; purchased credit monitoring; and spent time, money, and effort trying to mitigate their injuries, including disputing fraudulent activity, filing police reports, and otherwise dealing with identity theft.

A vast number of plaintiffs whose identities had not yet been stolen nonetheless spent time, money and effort mitigating the risk of identity theft by purchasing credit freezes, monitoring their financial accounts and buying credit monitoring, the judges said.

The panel also rejected arguments from objectors that the settlement didn’t remedy plaintiffs’ injuries, that the trial court lacked authority to approve the settlement, and that it imposed unfair requirements on objectors. The panel said the lower court fairly directed plaintiffs’ counsel to draft an order summarizing the case and seek Equifax’s approval, despite concerns from objectors about the ghostwritten order. The Eleventh Circuit said “ghostwriting remains most unwelcome,” but in the Equifax case, there was no resulting prejudice. The appellate judges said:

Our court has not enforced a per se rule prohibiting this practice.  We have continued to approve courts’ adoption of proposed orders, some even verbatim.

The opinion urged the Northern District of Georgia to review its rule allowing ghostwriting but noted the trial court allowed its order to be amended upon objection. The panel rejected as unnecessary the objectors’ contention that the draft order be included in the appeal record. The panel also denied objectors’ request to reassign the case to a different trial judge, saying they lacked proof of any bias and that reassigning the “colossal” case comprising more than 1,200 docket entries “would create enormous waste and duplication.”

The Eleventh Circuit found the certification of the class and award of attorney fees to be fair and reasonable. It declined to vacate the whole settlement based on its reversal of incentive fees for class representatives, and it instructed the trial court to vacate the incentive awards on remand but otherwise leave the settlement intact.

Equifax and class counsel urged the Eleventh Circuit in April to uphold the settlement.  Objectors are asking for an embank rehearing, and an appeal was also suggested if the rehearing fails.

The case is Huang v. Spector et al. (case number 20-10249) in the U.S. Court of Appeals for the Eleventh Circuit.

Source: Law360.com

John Hancock Settles 401(k) Self-Dealing Suit For $14 Million

John Hancock will pay $14 million to settle a class action claiming it cost investors in its 401(k) plan tens of millions of dollars through bad management and the selection of high-fee, underperforming funds.

In addition to the settlement amount, John Hancock Life Insurance Co. agreed to hire a third-party investment consultant to monitor the plan for five years and bring on a separate outside consultant to negotiate plan fees. If approved by U.S. District Judge Richard G. Stearns, the settlement would resolve and end the Employee Retirement Income Security Act class action. It came as a result of mediation between the parties led by former U.S. District Judge Layn Phillips.

The class representatives, Jennifer Baker and Jean Greenberg are entitled to awards of up to $10,000 each. Ms. Baker filed the suit in February 2020 on behalf of current and former workers who participated in the insurer’s employee retirement plan from 2014 until 2019, demanding the company pay up for the tens of millions of dollars of investment returns allegedly lost by the plan’s bad management.

The suit said the company violated ERISA by reaping higher-than-average administrative costs from its employees, who only had the option of investing in John Hancock funds through their 401(k) plan. The lawsuit said John Hancock’s plan manages at least $1.4 billion of its employees’ retirement savings. The suit alleged:

  • Returns on the funds produced less in profits than benchmarks John Hancock had established.
  • A group of five funds that target different risk approaches to investing averaged 1.33% behind its benchmark over three years and 1.22% over five years.
  • John Hancock charged employees nearly three times more for plan record keeping than the plaintiff’s counsel found prudent — $163 per participant per year on average versus about $50.

In July, Judge Stearns denied John Hancock’s bid to dismiss the claims, saying that while the law lets companies use their funds for employees’ retirement plans, they are responsible for monitoring the investments’ performance.

The lead plaintiffs are represented by Jason M. Leviton of Block & Leviton LLP, and Paul J. Lukas, Kai H. Richter, Brock J. Specht and Jacob T. Schutz of Nichols Kaster PLLP. The case is Baker v. John Hancock Life Insurance Co. (case number 1:20-cv-10397) in the U.S. District Court for the District of Massachusetts.

Source: Law360.com 

Transamerica Settles ERISA Class Action Litigation

Transamerica Corp. has reached a $5.4 million agreement to settle an ERISA class action in which roughly 24,500 current and former workers accused it of stuffing its 401(k) plan with underperforming proprietary investments. The suit was certified as a class action last year. It alleged Transamerica let the investment funds it managed and placed in its 401(k) underperform their benchmarks by as much as 30% over 10 years.

If approved, the settlement will require Transamerica to deposit $5.4 million into a fund that will be distributed to class members after attorney fees and expenses are deducted, according to court paperwork. The settlement also will require the life insurance and financial services company to continue training the people who manage its 401(k) plan on how to uphold their responsibilities under the Employee Retirement Income Security Act.

The suit was filed in 2018, accusing Transamerica of abdicating its ERISA-imposed responsibility to make prudent investment decisions on workers’ behalf by letting six underperforming company-managed funds stay on its 401(k) plan’s lineup.

The class is represented by Charles Field, Kevin Sharp, Robert Van Someren Greve and Shaun Rosenthal of Sanford Heisler Sharp LLP and by J. Barton Goplerud, Brandon M. Bohlman and Brian O. Marty of Shindler Anderson Goplerud & Weese PC. The case is Karg et al. v. Transamerica Corp. et al. (case number 1:18-cv-00134) in the U.S. District Court for the Northern District of Iowa.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

NCPA Backs New Bill Intended To Shed Light On Consolidation And Anticompetitive Activity By PBMs

The Prescription Pricing for the People Act of 2021 (S.1388), a bipartisan bill focusing on the lack of competition in the Pharmacy Benefit Manager (PBM) industry, was reintroduced and referred to the Committee on the Judiciary. The bill would require oversight and investigation into possible anticompetitive behavior and how PBM activities affect pharmacies and patients.

The National Community Pharmacists Association (NCPA), which is considered the voice for the community pharmacist, has expressed its support for reintroducing the bill, mainly because the proposed policies are expected to help the many independent pharmacies survive.  Pharmacist and NCPA CEO, B. Douglas Hoey, MBA, RPh, commented:

Momentum is growing to reform and rethink antitrust enforcement in the United States. Independent pharmacists have been pressing for this for many years. There’s a severe lack of competition in the PBM market, and it is driving up the cost of prescription drugs. Unfortunately, patients, employers, and small business pharmacies suffer as this consolidation has so far gone largely unchecked by regulators and been permitted to grow.

The bill would require the Federal Trade Commission (FTC) to review the role of middlemen PBMs and study their mergers with a focus on how the business deals may be affecting patients and small independent pharmacies. The FTC would also be required to analyze trends and patterns in competition within the health care supply chain where payers are contracting with PBMs.

According to the bill, one year after the enactment of the law, the FTC would have to report to Congress pertinent information, such as whether PBMs are driving patients to their PBM-owned pharmacies, such as mail-order pharmacies, to increase their market share; accessing protected information such as patient information, dispensing data, and proprietary drug acquisition costs of non-PBM-owned pharmacies to use the information for their benefit to increase market share and profits; creating a spread by charging more for drugs than they are reimbursing pharmacies; and using strategic formularies intended to increase their market share of higher-cost drugs while dampening the market share of lower-cost drugs. The bill would also require the FTC to provide Congress with effective policy recommendations.

NCPA CEO Hoey further commented that the Prescription Pricing for the People Act would bring more transparency into health care and support Congress as it crafts evidence-based solutions to address high drug costs and patient challenges in accessing needed health care services from the pharmacy of their choice.

The bill was reintroduced by Senators Chuck Grassley (R-Iowa) and Maria Cantwell (D-Wash.). The NCPA has written to the senators expressing the organization’s support of the bill and their desire to work together to provide transparency concerning PBM practices and their impact on drug costs and patient choice.

Much of the country today has expressed concerns about PBMs’ anticompetitive practices and the consolidation, both vertically and horizontally, of the PBM market.  Currently, the three biggest PBMs— CVS Health, Express Scripts, and OptumRX— account for more than three-quarters of total equivalent prescription claims. Such a high level of consolidation arguably can suffocate fair negotiations, increase drug prices, and possibly threaten access to certain drugs. While legislation is certainly one way to regulate PBMs to mitigate anti-competitive practices and increased drug spending, plaintiffs across the country, including pharmacists and state attorneys general, are pursuing investigations and lawsuits against PBMs to combat their unlawful practices and recoup overspending.

Over the years, Beasley Allen has represented eleven states in various complex healthcare litigation and is currently investigating PBM claims on behalf of private and governmental plans.  If you have any questions about our firm’s healthcare litigation practice, contact Dee Miles, Ali Hawthorne, or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email [email protected], [email protected], or [email protected].

Sources: National Community Pharmacists Association; and Drug Topics Journal

Centene Settles PBM Claims With Two States And Sets Aside $1.1 Billion For Settlements

Centene Corp. has reached settlements with two states in the Pharmacy Benefit Manager (PBM) litigation. It has agreed to pay Ohio $88.3 million and Mississippi $55 million to settle claims that its pharmacy benefits manager, Envolve Pharmacy Solutions Inc., overbilled state agencies.  The health care company has set aside $1.1 billion for settlement purposes.

Centene said in a filing with the U.S. Securities and Exchange Commission (SEC) that no-fault agreements with the attorneys general resolve an Ohio state court suit and a case from the state of Mississippi related to “services provided by Envolve” and its “structure and processes” in 2017 and 2018.

Source: Law360.com

THE NATIONAL SCENE

ACA Survives Latest Republican Challenge At Supreme Court

Another legal attack on the Affordable Care Act (ACA) has failed. The U.S. Supreme Court ruled 7-2 that Republican states led by Texas lack standing to challenge the Act labeled “Obamacare.” This is the latest win for former President Barack Obama’s signature health law in the nation’s top court. The Supreme Court, for the third time, has rejected a Republican-backed challenge to the ACA. This badly needed law, which according to all polls, has now been in place for a decade. President Joe Biden, who has touted his role in helping pass the law as Obama’s vice president, called the ruling a “big win for the American people.”

Justice Stephen Breyer wrote the opinion for the seven-justice majority throwing out the challenge. Justices Samuel Alito and Neil Gorsuch dissented. Justice Breyer wrote:

We proceed no further than standing. Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain.

The fatal weakness of the states’ case, Justice Breyer said, is that they failed to show how the insurance mandate provision, now lacking any enforceable penalty, “will harm them by leading more individuals to enroll in these programs.”

According to Justice Breyer, the existence of an unenforceable mandate to buy health insurance has “nothing to do” with the government programs that the states say will hurt their pocketbooks, such as Medicaid services for children and pregnant women, emergency services, COVID-19 testing and more. Justice Breyer wrote:

Given these benefits, neither logic nor intuition suggests that the presence of the minimum essential coverage requirement would lead an individual to enroll in one of those programs that its absence would lead them to ignore. A penalty might have led some inertia-bound individuals to enroll. But without a penalty, what incentive could the provision provide?

Justice Amy Coney Barrett joined Justice Breyer’s decision dismissing the challenge on standing grounds. The cases are California et al. v. Texas et al. (case number 19-840) and Texas et al. v. California et al. (case number 19-1019) in the Supreme Court of the United States.

Source: Law360.com

THE CONSUMER CORNER

There Is No ‘Junk Science’ Epidemic In Consumer Litigation

Years of experience standing in the gap for consumer clients, who, through no fault of their own, have suffered injury or the death of a loved one as a result of corporate greed, teaches that messages supported by enough money can gain significant exposure. Not all corporations are bad, but those that sacrifice human health and safety for profit must be held accountable. Often, those same companies that put their bottom lines ahead of their customers’ health and safety take pride in demonizing lawyers who help consumers seek justice and accountability.

Currently, a popular messaging tactic attacks plaintiffs’ experts. It refers to the solid science behind their testimony as ‘junk.’  Leigh O’Dell, a lawyer in our firm’s Mass Torts Section, wrote an excellent article published in Law360 in May. Leigh did a very good job of making it clear that there is no junk science problem in consumer-related litigation. The article can be found on our website at https://www.beasleyallen.com/article/justice-prevails-over-junk-science-in-consumer-litigation/.

Wells Fargo Agrees To $500 Million Settlement To End Auto Protection Fee Litigation

Wells Fargo has agreed to refund so-called unearned guaranteed asset protection (GAP) fees to car buyers nationwide who paid off their auto loans early. This was in a proposed class action settlement tentatively approved by U.S. District Judge James V. Selna in California federal court on June 8. The group of consumer plaintiffs said that the settlement is worth nearly $500 million.

GAP fees are paid toward waivers that shield car buyers from owing money on their auto loans if their vehicle is lost or totaled and their insurance payout doesn’t cover the remaining loan balance.

These waivers are included in overall loan amounts such that if a loan is paid off early, the borrower may be refunded for the unused coverage. But Wells Fargo has been battling consumers in the California federal court who accused Wells Fargo of wrongfully keeping hundreds of millions of dollars in “unearned” GAP fees that it was allegedly required to return.

The group of consumer plaintiffs in the 2018 case has settled with Wells Fargo and asked for tentative court approval of the settlement agreement. The settlement would obligate the bank beginning in 2022 to automatically refund unearned GAP fees to customers in all states who pay off their car loans early. This obligation would continue for four years, during which time the plaintiffs said they expect Wells Fargo to pay out more than $417 million in GAP fee refunds that might not have otherwise been returned.  The car buyers told the court:

Obtaining this business practice change was one of the primary goals of this lawsuit. While the change is not permanent under the terms of the settlement, class counsel anticipates that the four-year period will demonstrate to Wells Fargo that it should adopt this change on a permanent basis.

Judge Selna entered his order on June 8, analyzing the proposed settlement and giving it the initial approval to move forward. He said it “is clear that the adequacy of relief for the class weighs in favor of preliminary approval.” The bank had claimed that borrowers were supposed to seek these refunds from their car dealers or GAP policy administrators.

The plaintiffs said that Wells Fargo started issuing retroactive GAP fee refunds to certain customers beginning in 2019 and has already returned more than $33 million. Under the proposed settlement, the bank will also put another $45 million in a “supplemental” fund to be applied in part toward retroactive refunds for other customers, attorneys’ fees, additional settlement-related costs and litigation expenses.

Judge Selna had in a September ruling allowed some of the consumer plaintiffs’ claims against Wells Fargo to proceed and refused a bid by the bank to strike their proposed nationwide classes.

The car buyers are represented by Jason M. Frank, Andrew D. Stolper and Scott H. Sims of Frank Sims & Stolper LLP, Franklin D. Azar of Franklin D. Azar & Associates PC, and Charles E. Schaffer of Levin Sedran & Berman LLP.

The case is Herrera et al. v. Wells Fargo Bank et al. (case number 8:18-cv-00332) in the U.S. District Court for the Central District of California.

Source: Law360.com

Selsun Blue Maker And Buyer Reach Settlement In Shampoo Claims Case

A consumer and Sanofi-Aventis have settled to end litigation over claims that the company’s maximum-strength Selsun Blue anti-dandruff shampoos contain chemical compounds that can further exacerbate scalp issues and cause hair loss.

A stipulation of dismissal was filed in Illinois federal court by named plaintiff and Illinois consumer Emily Lewis. The suit will be dismissed with prejudice. Because no class was ever certified, any putative class claims are dismissed without prejudice. At press time, details of the settlement were not available.

The Lewis lawsuit, filed in February, alleged that Sanofi Aventis US LLC unlawfully markets its maximum-strength Selsun Blue shampoos with claims that they provide several benefits for consumers, including anti-dandruff and itchy scalp treatments, but fail to disclose that one of the product’s key ingredients contains chemicals that can cause further scalp irritation and hair loss. The suit alleged

  • Sanofi’s failure to tell consumers about the shampoos’ toxic chemicals violates Illinois consumer protection laws and constitutes unjust enrichment as well as a breach of various warranties.
  • She and other consumers bought the products because of Sanofi’s claims that they safely and effectively relieve dandruff and dry scalp, but they “would not have purchased them or would have paid materially less for them” if they had known about the chemicals.
  • At least 50 million Americans have dandruff and spend more than $300 million on products to treat the condition. Capitalizing on that market, Sanofi sells its maximum-strength Selsun Blue shampoos with labels that prominently promote their ability to help prevent and eliminate itchy scalp and flakes.
  • The company fails to disclose that one of the product’s key ingredients is selenium sulfide, which is “well known to cause increased scalp irritation and, critically, hair loss.”
  • Sanofi is silent on the fact that the shampoos contain the preservative DMDM hydantoin, a chemical that can cause skin irritation and slowly releases the toxic chemical formaldehyde, she claimed.
  • Sanofi’s use of the chemicals has caused thousands of consumers to experience irritated skin and hair loss. Even a small sampling of the company’s Amazon reviews makes clear that its Selsun Blue products fail to deliver on their marketed promises.

Lewis is represented by Eugene Turin of McGuire Law PC. The case is Emily Lewis v. Sanofi-Aventis US LLC (case number 1:21-cv-00616) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

Beasley Allen’s Mobile Office Is Investigating Fire Hazards In Home Appliance Cases

High-end appliance maker Sub-Zero is recalling about 42,000 Cove dishwashers because they pose a fire hazard. According to the Consumer Product Safety Commission (CPSC), the heating element in the dishwasher can fail to properly shut off and overheat. The company has received five reports of burning smells, flames, and smoking inside the dishwashers. Fortunately, no injuries have been reported to date. Beasley Allen’s Mobile office is currently investigating cases of fires involving other home appliances.

When lots of money is spent by a consumer on a luxury-brand appliance, that purchaser expects the product will be both efficient and safe. The Cove dishwasher recall is not only a huge inconvenience to consumers; it puts their homes and lives at risk.

Sub-Zero, which also makes Sub-Zero-brand refrigerators and Wolf ranges, introduced the Cove dishwashers to its lineup of luxury kitchen appliances in 2019. The recall was initiated on April 26, 2021, in cooperation with the CPSC and Health Canada. Affected dishwashers include Cove 24-inch built-in residential dishwashers with the model numbers DW2450 and DW2450WS and the serial numbers 20000100 through 20044445.

The model number, serial number, and date code are printed on the product rating plate located inside the dishwasher. “Cove” is printed on the outside of the door and the far-right side of the control panel, located on the top of the unit’s door.

Affected dishwashers were sold nationwide and some in Canada and Mexico, from February 2018 (before the product was officially launched) through May 2021 for between $2,400 and $2,500.

Sub-Zero instructed consumers with affected Cove dishwashers to stop using the appliances, unplug them from the power source immediately, and contact a Cove service representative to schedule an inspection and repair.

Beasley Allen’s product liability lawyers in our Mobile office are investigating sub-zero appliances for defects. Our lawyers work hard as advocates of consumer safety and rights. All too often, we have seen the life of a person forever altered by a debilitating injury or taken away too soon, all because a trusted product had a dangerous defect.

Many of our product liability lawyers have served, and a large number continue to serve, in leadership positions in some of the nation’s top consumer advocacy groups and law associations. Through our pursuit of justice, by holding wrongdoers accountable, Beasley Allen can play a role in building a better and safer world for people.

If you or a family member have been harmed somehow by a defective product – be it related to transportation, industrial machinery, or consumer product – call one of the Beasley Allen lawyers who handle product liability cases. Evan Allen, a lawyer in our Personal Injury and Products Liability Section, is located in our Mobile office and can be reached by phone at 800-898-2034 or email at [email protected].

Beasley Allen has a large number of lawyers who handle product liability litigation. Other product liability lawyers at Beasley Allen can be reached by contacting Sloan Downes at 800-898-2034 or by email at [email protected]. Sloan will put you in touch with a lawyer who deals with the product or defect in question.

Settlement Reached With County Jail Guard In Wrongful Death Case

In November 2013, Almus Taylor, a 38-year-old resident of Navarre, Florida, was involved in a one-vehicle car crash from a deer-hunting camp in south Alabama. He was arrested for DUI and placed in the Covington County Jail. Taylor was intoxicated, and he was put in a holding cell. The trooper who arrested Taylor told the guards that he was “checked by EMTs.” However, his family later learned that Taylor had three broken ribs, a lacerated liver, and a punctured lung.

Other detainees reported that for several hours, Taylor cried out in pain. He was said to have begged for medical help, complaining of abdominal pain throughout the evening and early morning hours. Yet, the detainees said the guards told Taylor to “shut up.”

After spending nine hours in a holding cell and failing to receive any medical care, Taylor was seen by a nurse when she arrived early the next morning. The nurse called an ambulance when she found Taylor spitting up blood. He died en route to the hospital from internal bleeding.

The case was initially assigned to Judge Keith Watkins in the U.S. District Court for the Middle District of Alabama. It was reassigned to Judge Keith Starrett of the U.S. District Court for the Southern District of Mississippi in Hattiesburg when the Alabama court was short-staffed in 2017-2018. Judge Starrett dismissed the case on the grounds of qualified immunity and state-agent immunity. The legal doctrine shields government entities, and in some instances, government employees, from liability in wrongful death actions such as the one brought by Taylor’s family.

The family appealed to the U.S. Court of Appeals for the Eleventh Circuit, which reversed the lower court’s ruling and allowed the case to move forward. The appeals court held that “a jury could conclude that the guards’ willful disregard of what they heard and observed during the night made them deliberately indifferent to Taylor’s serious medical needs.”

The case was set for trial before Judge Keith Watkins, who took the case back in 2020. Beasley Allen lawyers Mike Crow, Dana Taunton, and Parker Miller reached a confidential settlement for the Taylor family in their lawsuit against three Covington County jail guards over claims that the guards left Taylor to die in his jail cell after refusing to address his life-threatening medical needs.

The current Covington County Sheriff, Blake Turman, was instrumental in getting the case settled. Sherrif Turman was not in office when the incident occurred. After becoming sheriff, he implemented jail policies to prevent similar conduct by jailers in the future.

If you need more information, contact Mike Crow, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

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

Business Litigation

  • Antitrust
  • Commercial Disputes
  • Intellectual Property
  • States & Municipalities

Consumer Protection

  • Class Actions
  • Insurance Disputes
  • Pension Plans

Employment Law

  • Hostile Workplace
  • FSLA (Wage and Hours)

Medical Devices

  • Hip Replacements

Medication

  • Belviq Cancer
  • Proton Pump Inhibitors
  • Zantac Cancer

Personal Injury

  • Automotive
  • Aviation
  • Maritime
  • Motorcycle
  • Negligence
  • Premises Liability
  • Sexual Abuse
  • Transit
  • Trucking

Product Liability

  • Talcum Powder
  • JUUL Vaping Devices
  • E-Cigarette Explosions
  • On-the-Job Injuries
  • Recalls
  • Defective Airbags
  • Defective Tires
  • Heavy Truck Defects

Toxic Exposure

  • Environmental Exposures
  • Mesothelioma
  • Water Contaminations
  • Paraquat
  • Benzene

Whistleblower

The cases in the categories listed above are handled by lawyers in the appropriate section at Beasley Allen. The sections are Business Litigation, Consumer Protection, Employment Law, Medical Devices, Medication, Personal Injury, Product Liability, Toxic Exposure and Whistleblower.

A LOOK AT DAMAGES UNDER THE JONES ACT

The Jones Act: Maximizing Recovery

In most states, employees have minimal rights when attempting to hold their employers accountable for employer-caused injuries and harm. Recovery is usually limited to the workers’ compensation system, and the amount of compensation for serious or deadly harm often pales in comparison to compensation that can be available via the traditional tort system. While this is the case in most employee-employer scenarios, the federal government has carved out some employee-employer relationships that are exempt from the workers’ compensation system and can seek redress via the traditional tort system.

One of these situations is controlled by the Jones Act, which protects seamen and sailors working for non-governmental employers by providing them with rights in the event of injury or accidents on the job. Seamen often work in dangerous conditions and take risks when on the job. The federal government has statutorily imposed that their employers are expected to take all reasonable measures to create a safe work environment.  This responsibility includes minimizing asbestos exposure.

Seamen and sailors have rights under the Jones Act to sue a shipowner or employer if an injury or illness is caused by negligence. This includes illness caused by negligent exposure to asbestos.  Asbestos was used in countless applications associated with ships from the 1920s until the early 1980s.

Exposures to asbestos, even in relatively small amounts, can be deadly.  Because the responsibility for limiting exposure and training workers on ships with asbestos lies with the shipowner, negligence is often the root cause of exposure and resulting illness.

Knowing the law applicable to our clients’ claims, such as the Jones Act, ensures that at Beasley Allen, our lawyers can obtain the maximum recovery for our clients.  At Beasley Allen, lawyers in the Toxic Torts Section have the skill and experience to handle all kinds of asbestos lawsuits and maximize recovery for our clients.

If you have any questions or need more information, contact Charlie Stern, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at [email protected].

Source: 46 U.S.C. § 30104.

Resources to Help Your Law Practice

Beasley Allen has been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. We are both honored and humbled to have received that recognition. Beasley Allen has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources, including books authored by our lawyers, to help our fellow lawyers. For those looking to work with Beasley Allen or simply seek information that will help their law firm with a case, the following are among our most popular resources. The names of the books and the authors are set out below.

Co-Counsel E-Newsletter

Beasley Allen sends out a Co-Counsel E-Newsletter, which is specifically tailored with lawyers in mind. It is emailed monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.

Aviation Litigation & Accident Investigation

Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.

Tire Litigation: A Primer

Although tire failures, blowouts and detreads are foreseeable and preventable events, all too often, consumers are unaware of the potential dangers from defective, old, or degraded tires. Beasley Allen lawyer Ben Baker provides lawyers guidance on evaluating tire litigation and underscores the importance of inspecting the tires of all vehicles involved in a crash.

Nursing Home Abuse & Neglect Brochure

Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high underreporting rates. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect and advice about how to file a claim.

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, both in print form and online. You can get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/.

You can reach Beasley Allen lawyers in the four sections of our firm by phone toll-free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at beasleyallen.com/publications/.

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Trial Tips From Beasley Allen Lawyers

Charlie Stern, a lawyer in our firm’s Toxic Torts Section, writes this month on an area of law that Beasley Allen lawyers deal with quite often. I believe that which Charlie covers will be helpful for lawyers who have cases in other states and have to be admitted to handle a case by the court. So, let’s see what he has for us.

Side-Stepping Pitfalls Practicing with a Pro Hac Vice Admission

Historically, American lawyers practiced in their home states.  Many great litigators went their entire careers and never litigated anywhere else.  Today, that has changed. Most litigators are familiar with the process of Pro Hac Vice admission for lawyers seeking to practice in states where they are not licensed.  It is critical for Pro Hac Vice-admitted lawyers to familiarize themselves with local rules and customs.  While this is obvious, it is not always done in practice. And not doing so can have devastating results.  Some of the most common pitfalls that I have seen on my many trips to foreign courts to practice via a Pro Hac Vice admission include:

  • Deadlines – Most states have relatively similar timing requirements for things like service, filing a responsive pleading, bringing a motion, etc. But even minor differences in timing requirements can result in massive problems if a required deadline is missed.
  • Depositions and Objections – Most states’ rules of civil procedure detail the kinds of objections that are and are not permitted at a deposition. While certain states allow for an attorney to reserve non-form objections until the time of trial, other states do not.  Similarly, some states allow for a simple “form” objection, while others require more specificity. An attorney finding out after a deposition that they have waived all objections or failed to preserve them adequately can have catastrophic repercussions.
  • Causation Standards – Depending on one’s practice area, this can be the most crucial evidentiary issue in a case. For example, in toxic torts, causation standards differ from state to state, and the kind of evidence needed to prove causation depends on what states’ law applies.  Without a thorough and complete understanding of the causation standard, lawyers risk not obtaining the required evidence and losing their case.

It is crucial for lawyers to review local rules, customs and requirements personally.  Demonstrating one’s knowledge of them will engender a good rapport with the presiding judge, who no doubt knows you are not licensed in that jurisdiction.  More importantly, though, failure to know the rules and law can sink an entire case.

If you have any questions, contact Charlie Stern at 800-898-2034 or by email at [email protected].

RECALLS UPDATE

A large number of safety-related recalls were issued during June. Significant recalls are available on our website, https://www.beasleyallen.com/recalls/. We try to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Report, at [email protected] if you have any questions or to let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls.

BEASLEY ALLEN EMPLOYEE SPOTLIGHTS

Presley Blanks

Presley Blanks, a Legal Secretary in the Toxic Torts Section, has been with the Firm since January 2020.  She assists her team with meeting deadlines, speaking with clients, and assisting other staff in the office as needed.

Presley has four dogs, a boxer named Bella, a mixed breed named Kobe, a rottweiler named Oso, and a Great Dane named Caesar. When she has downtime, Presley loves watching old movies and television shows.  She says one of her favorites movies is Party Line with Doris Day.

When asked what her favorite thing is about working at Beasley Allen, Presley says, “is that I am surrounded by those that really do want to help others who need it most.  It is rewarding to see so many people care about their work and the people around them.” We are fortunate to have Presley, a hard-working and dedicated employee, with us.

Summer Cato

Summer Cato, who has been with the Firm since January 2017, is currently a Staff Assistant of the Talc Litigation Team in the Mass Torts Section.  She assists her team members with whatever assistance they need.

Summer’s family is Canadian-American. Her dad, Jon Teagan, is from Detroit and her mother, Shirl King, is from Ontario. Summer has three children.  Her oldest son Scott is a computer engineer, and his wife is a middle school teacher, and they live in Chelsea, Alabama. Her daughter Tori will graduate from the University of Alabama in the summer and move to Chicago to begin a master’s program in Literature and Publishing. Summer’s youngest son Ethan is a high school student, who she says claims to be a YouTube creator, but mostly regales her with random facts and jokes from his classes and the internet.

Summer says she enjoys reading stories and comics (Manhwa) and watching movies and television programs from around the world.

When asked what her favorite thing is about working at Beasley Allen, Summer says, “The people. I see everyday examples of how much the individuals who comprise the firm really care about people – our clients, our colleagues, and the world around us. Helping those who need it most.”

Summer is a hard-working, dedicated employee who has an important role in the firm. We are fortunate to have her at Beasley Allen.

Barbara Garfield

Barbara Garfield, a Medical Records Staff Assistant, has been with the Firm since February 2016. She assists the Mass Torts Section in getting medical records for use in cases for the section’s clients’.

Barbara and her son, Nick, moved to Montgomery in 2016 from Washougal, Washington. Her other family members currently live in Oregon. Nick is a Honda Technician who specializes in dirt bikes. Barbara has three cats, Mulder, Little Bit, and Leonardo DiCatprio.  But Barbara says she recently lost the love of her life, Lola, a huge English Mastiff, weighing 198 pounds.

Barbara says she loves to spend time outside in her garden planting flowers and enjoys grilling and listening to 70s and 80s classic rock music. She has developed an interest in Cryptocurrency this past year, and she says she is learning as much as possible about it.  Barbara says she also enjoys watching movies while “eating ice cream.”

When asked what her favorite thing is about working at Beasley Allen, Barbara says, “The people.  I am blessed to work with so many kind and supportive people.  I am thankful to work for a faith-based organization that cares so much about their employees and clients.”

We are fortunate to have Barbara with the firm. She is a dedicated, hard-working employee who provides a valuable service in the Mass Torts Section.

Lance Gould

Lance Gould began his legal career with Beasley Allen in 1997. His practice in the Consumer Fraud & Commercial Litigation Section focuses on class action cases, whistleblower litigation and wage & hour litigation. Lance has represented thousands of clients at Beasley Allen, resulting in multi-million dollar settlements, and his work in cases has influenced corporations to correct improper practices.

Lance explained that he chose law as a profession when he “realized that as an attorney I would have a more direct and effective way to help people, to seek justice for clients who wouldn’t otherwise be heard and to further the public good.”

The Phoenix City, Alabama, native initially focused his practice on consumer fraud litigation. He initially handled actions brought by individuals who were victims of predatory lending practices. Some of these deceptive practices included mortgage fraud, equity theft, loan flipping and insurance packing.

His current focus, whistleblower litigation, is a particularly important area of the Section’s work. Under the whistleblower provisions of the False Claims Act, a whistleblower is entitled to receive up to 30 percent of any money the government recovers. This is both an incentive and a reward for the tremendous sacrifices – both personal and professional – whistleblowers often make by reporting the truth about a corporation’s practices.

Lance was part of the trial team that secured a $14.7 million verdict on behalf of a whistleblower, Barry Taul, who suffered physical abuse and death threats by his employer for reporting the employer’s illegal kickback and false billing scheme. Most recently, Lance worked with the Kentucky Attorney General’s office and helped secure a $10.3 million settlement in its case against Fresenius Medical Care Holdings Inc., a Massachusetts-based dialysis company for Medicaid fraud.

Additionally, Lance was a trial team member in a landmark case involving a door-to-door sales and finance scam, which resulted in a $581 million jury verdict. As a result of this litigation, the finance company quit that sort of activity in Alabama.

Now, as a veteran litigator, Lance says he knows he is where he is supposed to be as far as a profession. He says:

Our profession provides us with the unique ability to do something when we see a need and to truly make a difference. The result has been personal satisfaction that I am not sure could have been achieved repetitively and on the same level doing anything else.

Lance has lectured on whistleblower litigation, employment law and trial strategies for various legal organizations, including Workers Injury Law and Advocacy Group, CLE Alabama and the Alabama Association for Justice. He was co-chair of the Wage and Hour Section of the Workers Injury Law and Advocacy Group for 10 years. The section provides assistance and guidance to lawyers helping employees recover wages and benefits to which they are entitled. Lance currently serves on the Alabama State Bar Member Benefits Committee and Alabama State Bar Disciplinary Rules & Enforcement Committee.

Lance is a Martindale-Hubbell AV Preeminent Rated attorney and received the Beasley Allen Consumer Fraud & Commercial Litigation Section 2009 Lawyer of the Year. He is a member of The National Trial Lawyers Business Tort – Top 10, an invitation-only professional organization composed of and limited to the Top 10 attorneys in each state or region representing individuals and families in the American legal system regarding Business Tort claims.

Lance is married to the former Connie Gardner, and they have three children, Madison, Jake and Caroline. They are active members of Saint James United Methodist Church. Lance serves on the Blue Gray National Tennis Classic board and the Board of Directors for the Friendship Mission in Montgomery, Alabama.

After practicing with the Beasley Allen for 24 years, Lance has observed that the way the firm is organized by practice areas is beneficial to the lawyers, translating into benefits for our clients. Lance said, “The firm’s organizational structure allows me and my law partners to specialize in specific areas of law. This approach effectively uses the wealth of knowledge, experience and talent within the firm.”   We are blessed to have Lance at Beasley Allen.

Wyatt Montgomery

Wyatt Montgomery, a lawyer in Beasley Allen’s Personal Injury & Products Liability Section, joined the firm on May 10, 2021. He is based in the firm’s Mobile office. Wyatt handles various types of personal injury cases, representing individuals who have been injured and family members of deceased victims. His practice focuses primarily on product liability actions and commercial vehicle wrecks. Since graduating from law school, Wyatt has devoted his career to representing plaintiffs who have been injured by the wrongs of others.

Wyatt explained that at a young age, he observed the impact lawyers have on others’ lives. When asked what he loves about being a lawyer, he said, “I was raised by an attorney, so from an early age, I was aware of the direct impact attorneys can have on the lives of not only their clients but also the community as a whole. Seeing that direct impact is my favorite part of practicing law.”

The University of Alabama graduate earned dual undergraduate degrees in political science and journalism in 2010. He graduated from Faulkner University Thomas Goode Jones School of Law in 2013. While in law school, Wyatt was very active in the trial advocacy program, competing in multiple trial competitions at the national level, including the Michigan State National Mock Trial Competition and the National Trial Competition. Additionally, Wyatt served on the Board of Advocates, an organization that participated in moot court competitions and hosted and coordinated inner-school competitions, including the J. Greg Allen Mock Trial Competition, named after our own Greg Allen.

Wyatt was elected to the Student Bar Association for all three years of law school, where he served as SBA Senator, Vice President and President. He was also awarded the prestigious Dean’s Scholarship. At graduation, Wyatt was honored with the Advocacy Award, an award voted on by the entire faculty and given to the student who most represents the ideals of Jones School of Law.

Wyatt is a member of the Alabama State Bar and the Alabama State Bar Young Lawyers Section, where he serves on the Executive Committee. He is also a member of the Alabama Association for Justice and the Birmingham Bar Association.

When he isn’t working as a lawyer, the Chatom, Alabama native says he enjoys hunting, fishing, playing golf and watching Alabama Football.

Wyatt says he is glad to be part of the firm, and he believes our lawyers’ work has positioned it as a standard-bearer nationally. He says:

Not only does Beasley Allen practice in the areas of products liability, medical devices, consumer protection and other fields, but Beasley Allen is the gold standard in each of the fields in which it litigates. That is what sets the firm apart.

            Wyatt is an important and valuable addition to our firm. He brings valuable experience to Beasley Allen and has hit the ground running. We are blessed to have Wyatt with the firm.

SPECIAL RECOGNITIONS

Beasley Allen Lawyers Teach Passion For Law To Students During Annual Law Day

Alabama Gov. Kay Ivey designated May 1 as “Law Day” in Alabama, an event celebrated nationally and organized locally by the Alabama State Bar’s Lawyer in Every Classroom committee.

The event celebrates the rule of law and provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to all Americans’ freedoms. This year’s theme was Advancing the Rule of Law Now.

When called on by the committee, more than 100 lawyers, judges, and law professors across their state volunteered to visit middle school classrooms either virtually or in person. Several Beasley Allen lawyers participated as well, including Gavin King and Skylar Sawyer. Gavin says:

I am convinced that part of raising the next generation of lawyers is convincing students that they can become lawyers. The opportunity to look at public school students and say, ‘I’ve been where you are,’ is a chance to capture the attention of a young person who may not have ever imagined that they could one day become a lawyer. Students these days are inundated with news about issues of justice and public policy, which has whetted their appetite for more information. Many have a real thirst for understanding more about how the law functions in our society.

Skyler agreed with Gavin, adding these comments:

The middle-school students I was able to meet through Law Day 2021 were not only eager but very engaged in discussions about the rule of law. This class was so quick on their feet—they could quote Supreme Court opinion language. The youth never ceases to amaze me!

Skylar asked her students to share their views on what is important about the law. She asked them to use quotes, draw, express that importance in any way they saw fit. Student after student provided drawings of lady-justice blindfolded. These students could recite the rights protected in all the amendments and express why they supported them. Skyler says from citing the second amendment to telling her about landmark Supreme Court cases, the students were a repertoire of interest. She observed:

I have no doubts some of these soon-to-be legal scholars will follow the footsteps of the trailblazers they mentioned, like Bryan Stevenson, for example. How far we have come from my day where ‘School House Rock’ sufficed as an overview of the legal system.  It gives me great hope in the ‘Advance of the Rule of Law Now.’

Many believe the rule of law is more important today than it has ever been. And I am in that number. There are lots of politicians on the national scene – and some locally – who could learn from the students who are mentioned above.

Beasley Allen Honored With LSA 2021 Pro Bono Fairness Award

It is an honor for Beasley Allen to be selected as the 2021 Pro Bono Fairness Award winner. This is an award sponsored by Legal Services Alabama (LSA). As mentioned in a previous issue of the Report, the annual award recognizes individuals or law firms in Alabama that demonstrated a consistent commitment to pro bono work and access to justice.

The firm’s motto is “helping those who need it most.” It is a shared principle and passion among our staff and lawyers, driving all of us to do what we do for our clients. That commitment includes providing pro bono legal services. Our lawyers donate hundreds of pro bono hours each year; through handling cases and projects organized by various Volunteer Lawyer Programs.

As the firm has grown, encompassing multiple office locations and many complex cases nationwide, it is essential to have a central repository of its pro bono work. Last year, the firm created a Pro Bono Coordinator position and selected Beasley Allen lawyer Leslie Pescia as the first Coordinator. Leslie manages the firm’s pro bono activities and serves as the point person for the firm’s lawyers handling pro bono cases across each of the firm’s practice sections and all office locations.

We are thankful for LSA’s support provided to our firm and other lawyers across that state as we all donate time, knowledge and skills. The organization serves low-income people by providing civil legal aid and promoting collaboration to find solutions to poverty-related problems. In 2004, LSA formed when three legal services organizations in Alabama – the Montgomery-based Legal Services Corporation of Alabama, the Metro Birmingham Legal Services, and the Huntsville-based Legal Services of North-Central Alabama – merged. Building on these three organizations’ incredible advocacy, LSA continues this legacy by providing high-quality advocacy to over 10,000 low-income Alabamians.

FAVORITE BIBLE VERSES

Jennifer Emmel, a lawyer in our firm’s Mass Torts Section, sent in three of her favorite Bible verses for this issue. Jennifer says:

It is easy to judge others by what we see, but we tend to forget that we do not know all the information and we cannot know another’s heart, which is why this role is God’s alone. These verses are a reminder to truly love others without judgment as we are commanded to do.

It is the Lord who judges me.  Therefore do not pronounce judgment before the time, before the Lord comes, who will bring to light the things now hidden in darkness and will disclose the purposes of the heart.”  1 Corinthians 4:4-5

But the Lord said to Samuel, “Do not look on his appearance or on the height of his stature, because I have rejected him.  For the Lord sees not as man sees: man looks on the outward appearance, but the Lord looks on the heart.”  1 Samuel 16:7

You, then, why do you judge your brother or sister?  Or why do you treat them with contempt?  For we will all stand before God’s judgment seat. It is written: “’As surely as I live,’ says the Lord, ‘every knee will bow before me; every tongue will acknowledge God.’” So then, each of us will give an account of ourselves to God. Therefore let us stop passing judgment on one another.  Instead, make up your mind not to put any stumbling block or obstacle in the way of a brother or sister. Romans 14:10-13

Tracy Edge, a Legal Assistant in the Mass Torts Section of our firm, sent in two of her favorite Bible verses. She says the verses are just two of her favorites, and to her, they coincide. Tracy says:

Life throws so many obstacles at us and these verses remind me that I have nothing to fear and God is always here to protect his children.  Because of that, I can “be still” in His peace knowing He is always in control.  Is it always easy, definitely not.  For me, when I get anxious or nervous about something, my first thought is to panic.  But then I remember…. He is God!

Be strong and courageous. Do not be afraid or terrified because of them, for the Lord your God is with you, He will never leave or forsake you. Deuteronomy 31:6

Be still, and know that I am God! Psalm 46:10

James Eubank, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, furnished two verses for this issue. James says:

In my opinion, kindness to others and forgiveness are the overarching themes of the New Testament and the teachings of Jesus. The verses below are good lessons on both of those practices. The first seems particularly relevant today when so much social interaction is impersonal over social media. People will say (type) things looking at a screen that they would never say in a face-to-face conversation.

A soft answer turns away wrath, but a harsh word stirs up anger. Proverbs 15:1

Love prospers when a fault is forgiven, but dwelling on it separates close friends.  Proverbs 17:9

CLOSING OBSERVATIONS

Alabama State Workforce Agency Receives Top Honor For National Workforce Program Of The Year

Over the years, I have watched with great interest all of the progress enjoyed by the Alabama Industrial Development Program (AIDT), Alabama’s state workforce development agency. My interest was for a reason that I will explain further later on in this writing.

It was announced last month that AIDT’s virtual reality training program was selected as the 2021 recipient of the Workforce Program of the Year award by the National Association of Workforce Development Professionals (NAWDP), the national association that represents more than 3,000 state and local workforce leaders in all 50 states. Ed Castile, Deputy Secretary of the Alabama Department of Commerce, who is also Executive Director of AIDT, stated:

During this period of change and uncertainty in the labor market and broader economy, it’s essential that we use every tool at our disposal to rethink workforce development and training, and our investments in immersive learning technology are reflective of that belief. We’re humbled to receive this national recognition. It’s reflective of the AIDT team’s focus and commitment to developing high-impact training pathways that are expanding access to good-paying jobs and meaningful careers in fast-growing industries for every Alabamian.

The distinction from NAWDP recognizes innovative workforce programs that are creating new ways of delivering high-quality workforce training services. The selection specifically recognized AIDT for its virtual reality training program, which is working to make job training in one of Alabama’s fastest-growing industries accessible to thousands of unemployed workers and aspiring manufacturing professionals across the state.

AIDT was established in 1971 to build a healthy state economy by recruiting and training a skilled workforce to attract new industries to the state and expand existing industries. AIDT provides a full range of customized technical training programs offered at no cost to employers or trainees. Leadership training programs are also available. In addition to training, AIDT offers services including trainee recruitment and screening, safety assistance, and industrial maintenance assessments.

I was privileged and extremely proud to have been directly involved at the very beginning of AIDT in 1971. For that reason, I was invited in 2012 to visit Tallassee for the 40th anniversary of Neptune Meters. The company came to Alabama in 1972 and was the first company to use AIDT’s training program. Looking back to 1971, while in state government, I had the opportunity to play a major role in creating AIDT. South Carolina had an ongoing training program and was successfully attracting to that state. I was asked by Dr. T.L. Faulkner to head the Alabama team that went to South Carolina to learn about that state’s program. At that time, I was the youngest Lt. Governor in the country.

From the outset, the program was very successful in Alabama. Interestingly, AIDT was opposed in the beginning by almost every segment of public education. Those in leadership roles, especially those with the two-year trade schools, couldn’t grasp the program’s concept since there was no building and no large staff.

The training for Neptune Meters in 1972 was done at night, and the trainees, who had jobs and were being upgraded, would walk from completion of training directly into the new employment at very good wages.

The team that I led in the trip to South Carolina to study its program included Fred Denton (Alabama Power Co. – who later became the top assistant in ADO); Sen. Jimmy Clark from Eufaula; and Tom Eden (Executive Director of the Alabama Textiles Association). We spent about a week in South Carolina and came back with the intent of duplicating the program in Alabama.

We all then went to work and put together a program like the one in South Carolina for our state. George Howard from South Carolina was hired as Director of AIDT, and to say he was great at his job would be a gross understatement. Under his leadership, the program got off to a very good start, and it has never slowed down.

In 1972 I was asked by management to participate in the groundbreaking at the Neptune Meters plant. So 40 years after leading the effort to get AIDT going in Alabama, it was good to go back and see firsthand what Neptune has accomplished over the years. I must say the plant is most impressive. Every major industrial plant coming to Alabama since 1972 has used AIDT to train its workforce. Each has said AIDT was a major factor in Alabama being selected for their plant.

I hope nobody minds my writing in the report on AIDT and specifically about my involvement in creating the program and getting it started in Alabama. That was my major contribution to the betterment of Alabama while I was in state government.

Our Monthly Reminders

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

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

Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

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

Bryan Stevenson, 2019

PARTING WORDS

“God-Driven:” Montgomery’s Valiant Cross Academy

Anthony and Fred Brock, two brothers from Montgomery, had a vision that took many persons in the community by surprise. Many believed it was just a vision that would never come to fruition. But the Brock brothers say they were raised in a household where “high expectations are everything.” They came from a long line of individuals who overcame challenges, so giving up isn’t in their nature. Anthony and Fred insisted their dream was “God-driven” and that the mission they had in mind for a private, all-boys, Christian school in their hometown was “His vision.” In 2015, the brothers established the school – Valiant Cross Academy. They intentionally recruit “scholars” (the collective name bestowed on each student at the school) from Washington Park neighborhoods and West Montgomery.

The brothers were recently recognized as Community Heroes by the Montgomery Advertiser, an award Beasley Allen is proud to sponsor. The Brocks were recognized for their impact on the community through the school. Anthony Brock was an educator and administrator in the nearby Autauga County school system for 13 years before opening Valiant Cross as co-founder and Head of School. Fred Brock is co-founder and now the Director of Operations.

After seeing “many obvious problems that plagued the community,” the brothers realized a need for an educational environment to “transcend the challenges facing young African American men” in the Capital City. For Anthony, the critical message to communicate to the community is that the problem isn’t an “achievement gap” but an “opportunity gap.” He explains that the school’s long-term goal is to produce scholars who will become lifelong learners and productive citizens. The Brock brothers and their staff provide a learning environment steeped in discipline and self-worth communicated throughout the day in love, caring and high expectations for the young scholars.

The scholars are 6th – 11th graders who start every day with “Morning Village.” This is a time, Anthony explained, where the young men recite their mottos in church. They pray at the altar and leave behind the challenges facing them beyond the campus doors. The schools’ mottos include:

  • We are Valiant Cross Academy.
  • Our God is mighty.
  • We will rise above with honor.
  • We will rise above with discipline.
  • We will rise above with integrity.
  • We will rise above with excellence.
  • We will rise above with love.
  • We are Valiant Cross Academy: in this place, young men will rise above.

These values are revisited by the students at Valiant Cross Academy throughout the school day.

Pastor Ken Austin, Executive Director of Mercy House, serves as a board member for Valiant Cross Academy. When Anthony and Fred were recognized as Community Heroes, Pastor Ken explained that the brothers’ involvement in the lives of their scholars goes beyond the school campus and school hours.

The school will celebrate its first graduating class at the end of the upcoming school year. Anthony has said, “I have an unwavering belief that Valiant Cross Academy will birth the next generation of great leaders.”

We at Beasley Allen agree with Anthony on his belief. We remain supportive of the school as it bridges opportunity gaps for the current scholars and many more scholars who will soon enter the campus doors. If you don’t know about Valiant Cross Academy, I encourage you to find out all you can about how it operates and the results achieved that are quite evident and impressive. The Brock brothers and all at Valiant Cross Academy are doing the Lord’s work!

About the Report

Consumer Protection Lawyer Jere Beasley

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

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. During his tenure he also briefly served as Governor, while Gov. George Wallace recovered from an assassination attempt.

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

It has been 40 years since he began the firm with the intent of “helping those who need it most.” Today, Beasley Allen has offices in Atlanta, Montgomery, and Mobile, and employs more than 275 people, including more than 80 attorneys. Beasley Allen is one of the country’s leading firms involved in civil litigation on behalf of claimants, having represented hundreds of thousands of people.

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