Fred Gray Deserves The Medal Of Freedom
Fred Gray and I have been good friends for a very long time. I am pleased to report it has been recommended that Fred receive the Presidential Medal of Freedom. At critical times in our nation’s history, Fred, a dedicated and highly successful lawyer, argued numerous segregation and discrimination cases before the U.S. Supreme Court. He was also the personal lawyer for Dr. Martin Luther King Jr. and Rosa Parks.
Bob Methvin, President of the Alabama State Bar, got the ball rolling when he wrote President Biden, requesting this honor for Fred. In his letter, Bob wrote: “There are very few people, if any, more deserving of this honor.” Rep. Terri Sewell, on Feb. 17, has added her support, calling Fred “a true American patriot.” I join with Bob and Terri and urge President Biden to make this honor happen quickly.
This is one of the most prestigious civilian awards that any American could receive. Fred definitely deserves this honor. He has spent his life fighting for the civil rights of African Americans. His has been a lifetime battle for justice, inclusion and equality for all.
I totally agree with the following statement written by Bob in his letter to President Biden:
Mr. Gray became a lawyer because he understood that lawyers help people. For over 60 years, he has done just that and has made this country a better place by following through on his commitment to destroy everything segregated that he could find.
Aside from his civil rights work, Fred was also the first Black president of the Alabama State Bar from 2002 to 2003. The Tuskegee resident also served with distinction in the Alabama Legislative during the 1970s.
I can think of no person who is more deserving of this honor than my long-time friend Fred Gray. He has been in the trenches fighting the good fight for years, and all Americans owe him a great deal. This is one way to repay and honor a great American. Hopefully, President Joe Biden will quickly make this happen.
THE ROLE OF TRIAL LAWYERS TODAY
Trial lawyers, as mentioned in the February issue, play a highly significant role in the actual regulation of corporate America, a role that is critically important to the safety of products, health issues and consumer protection. We at Beasley Allen know from experience that courts and juries have played a major role in bringing about needed changes that would never have happened if left to Corporate America. Over the past 42 years, Beasley Allen lawyers have successfully handled a huge number of important cases that have brought about many of these changes. I will mention below some of the cases that made a huge difference in consumer fraud. Those cases were handled by lawyers in our Consumer Fraud & Commercial Litigation Section.
Beasley Allen cases that have made a difference
- Vanishing Premium Life Insurance Policies – The first Vanishing Premium insurance case began in the early 1990s involving Prudential Insurance Co. The company’s agents were lying to policyholders about purchasing Whole-Life insurance policies and only having to pay premiums for the policies for a period of eight to ten years. The company made a fortune off of these policies knowing when consumers figured out the limited premium payments were a lie, they would drop the policies, profiting the company, or they would pay more premiums than they had bargained to pay, also profiting the insurance company. After a huge verdict, the company contacted all policyholders and corrected the policy language on payment of premiums. That lead case was known as Gallant v. Prudential Life Insurance Company.
We then brought cases against many other insurance companies for the same or similar conduct, such as Met Life, MONY, Manulife, New York Life and many others. We uncovered that the sales illustrations used to sell the policies were based on unrealistic, sometimes fraudulent economic factors. All the companies settled the cases for various and undisclosed amounts, but we were able to help over 10,000 clients who had fallen victim to the vanishing premium scam. As a result of this litigation, the NAIC (National Association of Insurance Commissioners) passed a new regulation prohibiting using inflated sales illustrations to sell life insurance policies and now require a signature and disclaimers if used in a life insurance policy sale. These cases totally changed the landscape of how life insurance was sold. There are no more vanishing premium policies.
- Race-based Premium cases – In the early 2000’s we discovered that some insurance premiums for Life insurance were based purely on race. For decades many major insurance companies charged minorities higher insurance rates for life insurance than they charged to Caucasian policyholders. We were one of the lead counsels in the American General Race-Based Premium MDL in Columbia, S.C. It was an honor to lead the charge on these cases. We were able to rectify this injustice by demanding a refund for all overcharges to minorities and issue paid-up insurance policies to all the victims. There were dozens of other companies that settled similar claims on similar terms. Thousands of minority clients were helped by our firm as a result of the insurance industry’s racist practices, and all such minority rate scales were prohibited.
- Fraudulent Pharmaceutical Pricing cases (AWP) – We were fortunate to have had the privilege of representing eight (8) states and its Attorneys General against the entire pharmaceutical industry for fraudulently reporting inflated prices to the State Medicaid programs, which resulted in millions of overcharges to already financially struggling programs. The price measure being abused by the industry was known as the “Average Wholesale Price,” known as (“AWP”). We uncovered that “AWP” was a price no one ever paid for a drug. It was a made-up price reported to the states to enhance reimbursement rates. We successfully tried seven of those cases, recovered over $1.5 billion for the Medicaid programs through settlements and jury verdicts, and changed how pharmaceutical companies report their prices to Medicaid agencies by essentially abandoning AWP as a primary price measure.
- Auto Defect Class Actions – Our most recent “difference-maker cases” are in the auto defect class action arena. Cases such as the Toyota sudden unintended acceleration (SUA) class cases where vehicles would speed out of control due to some alleged defects found in the vehicles’ electronic control center’s software. The litigation forced a massive recall to repair the defect. We also recently handled the Eco Diesel Fraudulent emissions cases against VW / Audi / Porsche, Chrysler – Fiat and Mercedes. These companies were using “cheat devices” to fake emission standards on their vehicles and using this information to sell more vehicles. These companies are paying fines to Federal, state and local governments as well as a class settlement that essentially bought back most of the vehicles involved.
These are the latest consumer cases having an impact on the market, and many more are in the works, too many to list, but we are working hard in continuing our efforts to protect consumers from fraudulent practices and to make consumer products safer.
In the April issue, we will feature significant litigation that made a difference handled by lawyers in the firm’s Mass Torts Section – stay tuned!
THE TALC LITIGATION
Talc Litigation Update
Beasley Allen’s talc team continues to advance the talc litigation in both the MDL and state courts. The MDL team has taken a large number of depositions for plaintiffs, fact witnesses and experts for those cases selected as bellwether cases. The bellwether cases are a mix of plaintiff picks, defense picks and random selections from the court. Both parties are working on getting these depositions completed in February. The MDL team is also continually working on discovery issues with the defense and will be conducting additional corporate liability discovery depositions to start the new year. Numerous Johnson & Johnson witnesses have been identified and researched, with these depositions slated to be taken in the first half of 2021.
In state court, Beasley Allen remains on track to try numerous cases in 2021. Many trials were originally scheduled in 2020 but were reset throughout the year. In St. Clair County, Illinois, the Cadagin case has been rescheduled for a July 12th trial start date after continuing coronavirus issues in the area. The multi-plaintiff trial in St. Louis, Missouri, involving three plaintiffs, has been moved to August. There was also an additional case set for trial in St. Louis in May, but that has been postponed. There are several additional potential trial dates throughout the second half of 2021.
In Philadelphia, coronavirus has affected several of the trial settings. The Kleiner case, originally set in 2020, is now slated to begin July 29th. The Beasley Allen team has several additional trial-ready dates in Philadelphia, with the Wilson case set to start trial on May 5 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 large presence in Georgia and Missouri.
Along with multiple trials already set in Missouri, Illinois, and Pennsylvania for 2021, the team continues to look at Atlantic City and South Florida as potential venues for additional trials in 2021. 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].
New Jersey Justices Allow Johnson & Johnson Talc Cases To Proceed
The New Jersey Supreme Court has declined to review a lower court’s decision to revive talcum powder lawsuits brought by two women against Johnson & Johnson. The lawsuits allege that their use of Johnson & Johnson talcum powder products caused them to develop ovarian cancer.
In 2016, the trial judge assigned to the centralized talcum powder cases in New Jersey state court ruled in two cases that the plaintiffs’ key experts were unreliable. As a result, the trial judge granted summary judgment in favor of the defendants. The plaintiffs appealed those decisions and, in August 2020, a New Jersey state appeals court issued an opinion concluding that the trial judge had improperly made credibility determinations about expert witnesses. The 86-page opinion stated that the trial judge’s duty was only to assess whether the expert opinions were based on sound scientific methodology, and his actions went beyond his duties as a judge.
The New Jersey state appeals court reinstated the plaintiffs’ expert testimony and reversed the summary judgment. Johnson & Johnson petitioned the New Jersey Supreme Court to review the decision, but it declined. With the appeals court decision left in place, these two talcum powder lawsuits will be able to proceed.
Johnson & Johnson continues to face thousands of talcum powder lawsuits in state courts across the country and the Multidistrict Litigation in New Jersey Federal Court. For additional information on these cases, contact Ted Meadows ([email protected]), Leigh O’Dell ([email protected]), or Brittany Scott ([email protected]).
Sources: Law360.com and Lexology
Talc: Asbestos Lurking In Everyday Consumer Products
At this point, many people are aware that talcum powder-based products, like Johnson & Johnson’s Baby Powder, contained asbestos for years, and use of those products can lead to the deadly asbestos-caused cancer of mesothelioma. However, many people are not aware of how many everyday consumer products contain talc that may be contaminated with asbestos. People routinely use these products, which can expose them to deadly asbestos-contaminated talcum power. Examples of these products include:
Independent lab testing found major accessories retailers have sold makeup containing tremolite asbestos. These sorts of products can be found at malls across the country and via online retailers because the U.S. government does not require cosmetics products and ingredients to go through a Federal Drug Administration (FDA) premarket approval process prior to the sale. The lack of such a regulation process puts people at risk of exposure to deadly asbestos in these products.
According to the U.S. Public Interest Research Group Education Fund, crayons sold at some retailers tested positive for asbestos. Crayon manufacturers use talc as a binder in the wax. Additionally, four brands of crayons made in China have been found to contain asbestos fibers. While U.S. laws regulate the amount of asbestos in drinking water and schools, there are no regulations on the amount of asbestos allowed in children’s products such as crayons. As a result, parents and schools may be unwittingly providing their children with toys that contain deadly asbestos fibers.
Ceramics and Tiles
Talc is used in the production of all sorts of ceramic products. These products include ceramic tableware, roofing tiles, flooring tiles, and bathroom appliances, along with many more. Talc improves thermal shock resistance allowing ceramic products to withstand sudden temperature changes. Not only are the individuals who use and install these products at risk for asbestos exposure, but the workers who manufacture these products can be exposed to massive amounts of asbestos during the manufacturing process.
The above-listed items are just a few of the everyday items that people use and come into contact with that may contain deadly asbestos. Talc is also used in the production of plastics, paper, and rubber. Companies are responsible for informing the public and product-users of their products’ potential risks by using reasonable and informative warning labels. If they fail to do this and people are injured, the manufacturers and distributors must be held accountable. Unfortunately, many companies continue failing the public by not properly disclosing this information.
If you have any questions or would like to discuss a potential claim, contact Charlie Stern, a lawyer in our firm, who has successfully handled a number of Meso cases, at 800-898-2034 or by email at [email protected].
Beasley Allen Talc Litigation Team
Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The talc litigation for years has been one of the most active areas of litigation in the firm. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Lawyers Will Sutton and Charlie Stern also are on the team, and 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. Members of the Beasley Allen Talc Litigation Team include:
Ted Meadows ([email protected]), Leigh Odell ([email protected]), Kelli Alfreds ([email protected]), Ryan Beattie ([email protected]), Beau Darley ([email protected]), David Dearing ([email protected]), Liz Eiland ([email protected]), Jennifer Emmel (Jennife[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]).
McKinsey & Co. To Pay $573 Million To Settle Opioid Marketing Claims
McKinsey & Co., one of the world’s largest consulting firms, will pay $573 million to settle nationwide allegations that it “turbocharged” opioid sales for Purdue Pharma LP and reeled in profits stemming from the epidemic.
A consent judgment with a coalition of more than 50 attorneys general was filed in early February along with a complaint in Boston’s Suffolk Superior Court. The nine-figure payout will be used to fund opioid treatment, prevention and recovery efforts.
The settlement, which is subject to a court’s approval, is the first multistate opioid settlement to result in a large payment to states trying to tackle the health crisis. Massachusetts Attorney General Maura Healey said in a statement:
Today’s agreement sets a new standard for accountability in one of the most devastating crises of our time. As a result, our communities will receive substantial resources for treatment, prevention, and recovery services, and families who have seen their loved ones hurt and killed by the opioid epidemic will have the truth exposed about McKinsey’s illegal and dangerous partnership with Purdue Pharma.
The settlement requires McKinsey to turn over tens of thousands of internal documents detailing its work for Purdue. The consulting firm has agreed to court-ordered restrictions on its work with some types of addictive narcotics. McKinsey will also retain emails for five years and disclose potential conflicts of interest when bidding for state contracts. It will also put tens of thousands of pages of documents related to its opioid work onto a publicly available database.
The following allegations relating to the charges against McKinsey were made in the complaint:
- McKinsey advised Purdue on how to boost sales by focusing on higher, more lucrative dosages and increased sales rep visits to high-volume opioid prescribers.
- The company pressed physicians to prescribe more OxyContin to more patients and encouraged drugmakers to “band together to ‘defend against strict treatment by the FDA’ on risk mitigation efforts that could have reduced high doses and saved lives.”
- McKinsey helped Purdue skirt retail pharmacy restrictions on high-dose prescriptions that could arouse suspicion by delivering OxyContin directly to patients through mail-order pharmacies.
McKinsey may still face more claims in the coming months. In some states, the agreements do not bar local governments from suing. Mingo County in West Virginia, one of the hardest-hit states in the country, recently filed suit against McKinsey. The Biden administration could also take action against the firm.
States will use the civil penalties — $478 million of which must be paid within 60 days — for opioid treatment, prevention and recovery programs. This will be the first money that states will see after Purdue Pharma in October agreed to pay $8.3 billion and plead guilty to federal criminal charges over OxyContin’s marketing. Purdue declared bankruptcy, meaning the states party to that agreement will have to line up with other creditors.
Massachusetts and many other states, including Alabama, were dissatisfied with the October settlement agreement, which the Trump administration’s Justice Department reached only days before Trump was defeated in the November election.
The settlements are significant because it overcomes the distance that McKinsey — which argues that it only makes recommendations — has put between its advice and its clients’ actions. For decades, the firm has avoided legal liability for the high-profile failures of some clients. A prime example is the energy company Enron and its massive wrongdoing.
Making McKinsey and its competitors even more vulnerable is the fact that they have aggressively moved into a new line of work in recent years, not only offering management advice but also helping companies implement their suggestions.
Alabama Attorney General Steve Marshall announced that Alabama would receive $9,229,421 from the settlement with McKinsey & Company. He said in a press release:
The opioid crisis has wrought tremendous suffering upon its victims throughout Alabama over the last 20 years. It is appropriate that [the companies involved in the crisis] be held to account through settlements such as this.
A separate lawsuit against Purdue, Endo Pharmaceuticals and McKesson Corporation, filed by Attorney General Marshall, involves the role of those companies in the opioid crisis. The case is currently pending in Montgomery County Circuit Court. Lawyers from Beasley Allen and Prince Glover Hayes represent the State of Alabama, along with Michael Dean from the Attorney General’s office, in the litigation.
Sources: Law360.com, Yellowhammer News and Wall Street Journal
Purdue Sues In Bankruptcy Court To Access Insurance Funds
Certain Purdue Pharma entities and two creditor committees jointly have filed an adversary suit in the New York bankruptcy court seeking access to at least $3.3 billion in insurance funds as the pharmaceutical giant moves closer to filing a Chapter 11 plan.
As we have 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 as well as fund programs addressing the opioid crisis.
A suit against more than 20 insurance carriers filed recently in the U.S. Bankruptcy Court for the Southern District of New York. Certain Purdue debtor entities, the official committee of unsecured creditors, and an ad hoc committee of governmental and other litigation claimants asked the court to declare that Purdue is eligible for coverage under various insurance policies to help pay mass opioid tort claims in the Chapter 11. The suit said:
The debtors’ insurance policies provide sweeping coverage for claims against the debtors seeking to hold the debtors liable for injuries for which the debtors are alleged to be responsible. Coverage under the debtors’ insurance policies is subject to limits of liability, where applicable, of at least $3.3 billion.
That coverage is said to be in addition to the $1.9 billion in consolidated assets that debtors have disclosed. The courage is also in addition to any value that the debtors’ estates will secure on causes of action held by the debtors’ estates.
Purdue and the committees are seeking a court declaration to clarify “the present and future rights, duties, and liabilities of debtors and the defendant insurers under the debtors’ Insurance policies with respect to the opioid mass tort claims” and to direct the insurers to “indemnify debtors for, or pay on their behalf, damages suffered by debtors arising out of the opioid mass tort claims.” They said the suit is intended “to give all parties in interest clarity about the scope of insurance coverage and the availability and amount of proceeds under the debtors’ insurance policies for or with respect to opioid mass tort claims.”
Also, Purdue and the committees said the suit is intended to help “advance ongoing negotiations” among stakeholders in the Chapter 11 as the debtors move toward filing a reorganization plan to make distributions to creditors.
The Beasley Allen Opioid Litigation Team
Beasley Allen’s Opioid Litigation Team continues to be hard at work and has overcome the roadblocks caused by the pandemic. The team includes Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King and Tucker Osborne. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments and other entities, as well as individual claims on behalf of victims.
If you need more information on the opioid litigation, contact one of the lawyers on the Beasley Allen Opioid Litigation Team. You can reach them by phone at 800-898-2034 or by email.
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Alabama Lawmakers Pass COVID-19 Liability Protection Law
All of us at Beasley Allen commend Alabama lawmakers for passing the COVID-19 Liability Protection Law, which began as Senate Bill 30 (SB30). The law offers reasonable liability protection to businesses and nonprofit entities, including churches, health care providers, and educational entities that followed federal and state health and safety guidelines regarding COVID-19 (coronavirus). The firm also is pleased that Governor Kay Ivey, who backed the legislation, signed it into law.
This law provides the balance necessary for both consumers and business entities as our state emerges from the COVID-19 pandemic. It is important to preserve consumers’ access to justice when they are exposed to the virus due to a company’s greed or recklessness. However, businesses that are trying to do what is right based on guidance from state and federal agencies to protect consumers should not be forced to fend off lawsuits that have no merit and are considered to be frivolous.
I want to be very clear – Beasley Allen lawyers don’t file frivolous lawsuits. That rule at the firm applies to all litigation, not just those of the COVID variety. Actually, I don’t believe any legitimate law firm would file a lawsuit knowing it was without legal merit. There is a law already on the books in Alabama that would allow lawyers who file frivolous lawsuits to be “punished” monetarily. “The Litigation Accountability Act” has been on the books for several years.
The bill, sponsored by Senator Arthur Orr (R – Decatur), also protects cultural institutions operating in Alabama and governmental entities. For health care providers, the law specifies that immunity will be provided “for certain health care providers during the performance or provision of health care services or treatment that resulted from, was negatively affected by, or was done in support of or in response to the Coronavirus pandemic or the state’s response to the pandemic.” Further, the law is retroactive, applying to coronavirus-related lawsuits filed on or after March 13, 2020, when Gov. Ivey first declared a state of public health emergency in Alabama due to COVID-19.
Senator Orr explained that the new law does not offer blanket protection. The new law still allows lawsuits involving “wanton, reckless, willful or intentional misconduct” related to the coronavirus if plaintiffs prove such conduct by clear and convincing evidence. This law will not protect any entity that intentionally or wantonly ignores laws, rules, or regulations designed to protect workers and putting workers at great risk of injury or death.
The COVID-19 Liability Protection Law is needed as it protects both businesses and consumers while protecting workers’ rights to receive benefits under the Alabama Workers Compensation Act for work-related sickness.
If you need more information on this new law, contact Ben Baker, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].
THE WHISTLEBLOWER LITIGATION
DOJ Recovers $1.6 Billion With The Help Of FCA Whistleblowers
The Department of Justice (DOJ) recently released statistics regarding False Claims Act (FCA) whistleblower recoveries for fiscal year 2020. The department recovered $2.2 billion in the past year as a result of FCA cases. Significantly, $1.6 billion of the recoveries by the DOJ were recovered under the qui tam or whistleblower provision of the federal statute.
It’s important to know that under the whistleblower provision of the FCA, private citizens can disclose original information about a fraudulent scheme to the DOJ. In exchange, the private citizen/whistleblower will receive a share of the government’s funds successfully recovered.
Although the government saw some limited recoveries in 2020 without the help of private citizens, whistleblowers remain the best source for information about fraudulent schemes for the federal government. Overall, whistleblowers filed 672 qui tam lawsuits in 2020. During this period, the government paid out $309 million to these individuals for exposing fraud perpetrated against the federal government.
The largest FCA recoveries in the past year came from the health care industry. In a press release, the DOJ commented that the government uses the recoveries to “restore funds to federal programs such as Medicare, Medicaid, and Tricare, which is the health care program for service members and their families.” The DOJ states it in the press release: “Without courageous whistleblowers, these federal healthcare programs would lose hundreds of millions of taxpayer dollars each year.”
The largest recovery in 2020 came when Novartis Pharmaceutical Corporation paid over $591 million to settle claims that it paid kickbacks to doctors to induce them to prescribe certain drugs. The drug maker was accused of paying high-volume prescribers as paid “speakers” to encourage them to write more Novartis prescriptions. Additionally, the government also resolved significant FCA allegations against Universal Health Services (UHS). Multiple Relators accused UHS of knowingly submitting false claims for inpatient behavioral health services that were not reasonable or medically necessary. UHS paid $117 million to resolve the allegations.
The government also saw significant recoveries from fraudulent defense procurement contractors. For example, QuantaDyn Corporation agreed to pay $37 million to resolve both civil and criminal allegations that it was engaged in a bribery scheme in exchange for government contracts to supply the government with training simulators. Additionally, one of the largest engineering firms in South Korea paid $7.8 million to resolve allegations that it paid millions of dollars to a high-ranking Army official to receive a large construction contract in South Korea.
In sum, as illustrated by the DOJ’s 2020 statistical report, the whistleblower provision of the FCA remains one of the greatest tools for the government to recover federal funds lost due to fraud. Our law firm is honored to continue efforts to prosecute these whistleblower cases because of the public good they represent. You can contact any of the lawyers on our Whistleblower Litigation Team if you have a matter concerning a potential False Claim Act case.
Important New Ruling On Liability For Healthcare Billing Consultant Under FCA
A recent ruling from the U.S. District Court of Northern Illinois denying a summary judgment motion to a hospital reimbursement consultant alleged to have violated the federal False Claims Act (FCA) may be a new area of liability for third-party billing consultants in the business of patient claims submissions to Medicare.
In United States ex rel. Graziosi v. R1 RCM, Inc., the Defendant, a third-party billing consultant, is alleged to have caused its healthcare clients to submit false claims for reimbursement to Medicare by revising patient admission statuses for the exclusive purpose of collecting additional revenue.
The Defendant claims that it charges their healthcare provider clients a nominal fixed fee-for-service per patient case, recommending to “upgrade” status in 30-40% of all observation cases wherein the healthcare client collects approximately ($5,000.00) for each upgrade from the government. The Defendants even represent to potential healthcare clients that their services as a consultant provide a “payment lift” or “return on investment” to hospitals, but that the classification of a patient does not affect the “quality of care” or the services provided by the treating physician or hospital staff. Defendants principally argue that their practice is in the hospital client’s self-interest.
However, the glaring problem is this practice also serves the defendant third-party billing consultant’s self-interest because successful “upgrades” made their service more attractive to clients and induced the Federal Illinois Court to find sufficient evidence in the record that the fixed review fee paid to consultants for their recommending changes to a client’s patient’s admission status, thus increasing the reimbursement a client would receive from Medicare, could encourage – and could be interpreted as trying to encourage – a novel opportunity to pursue solicitations of fees-for-recommendations/services in clear violation of the Federal Anti-Kickback Statute (AKS) under the False Claims Act (FCA). The Court determined that at a minimum, there are material factual disputes and multiple inferences that could be drawn from the record concerning whether:
- Defendant was paid remuneration in return for recommending “upgrades” to inpatient status;
- if so, whether Defendant acted knowingly and willfully; and
- whether Defendant conspired with its hospital clients to commit FCA violations.
By denying the Defendants Motion, the Court in United States ex rel. Graziosi v. R1 RCM, Inc., Case No. 13-cv-1194 (N.D. Ill. Nov. 30, 2020) challenges the presumption that contracting with a third-party billing consultant company, like the Defendant here, provides protection from liability for fraudulent billing practices. The Court’s opinion also expressed concern as to liability for representations made by billing consultants in validating their worth when soliciting business for healthcare providers concerning their Medicare claims.
This ruling is important because it questions the symbiotic relationship between reimbursement consultants and healthcare providers that spawns profit through both the consultant and healthcare provider’s self-interest. Imposing liability is the essential foundation in demanding fraudulent practices are reformed and those harmed are compensated. We will keep a close watch on this important case as it develops.
Beasley Allen has successfully represented whistleblowers in qui tam lawsuits against fraudulent actors overcharging the government for services for many years. Lawyers on our Whistleblower Litigation Team welcome the opportunity to investigate suspected false claims, fraudulent actions and unfair and deceptive practices.
Florida Business Owner Settles $400 Million Health Fraud Case
A Florida businesswoman settled the criminal and civil charges arising out of what prosecutors say was a health care scheme involving the submission of $400 million worth of false medical equipment claims to Medicare and other federal health care programs. The U.S. Department of Justice (DOJ) announced the settlement in which Kelly Wolfe agreed to conspiracy to commit health care fraud and filing a false tax return in 2017. These charges in the plea deal carry an up to 13-year prison sentence.
Ms. Wolfe, according to the DOJ, also agreed to pay $20.3 million to end a related whistleblower suit. According to the DOJ, Ms. Wolfe used her business, Regency Inc., to set up dozens of durable medical equipment supply companies. The DOJ said those businesses were fronts, controlled by Ms. Wolfe, placed under “straw owners.” Ms. Wolfe and her affiliates used the companies to submit thousands of claims for medically unnecessary orthotic braces to Medicare and a U.S. Department of Veterans-run program intended to provide health care to families of disabled veterans.
Former Regency employee Conda Albright filed the civil case against Ms. Wolfe in March 2019. The government intervened in her case, which was brought under the False Claims Act and the Anti-Kickback Statute.
The government is represented by Carolyn B. Tapie of the U.S. Attorney’s Office of the Middle District of Florida and Daniel A. Schiffer of the DOJ’s Civil Division. The case is U.S. v. Wolfe (case number 8:21-cr-00028) in the U.S. District Court for the Middle District of Florida.
The Beasley Allen Whistleblower Litigation Team
Lawyers on Beasley Allen’s Whistleblower Litigation Team have not seen a slowdown in activity and are still busy handling cases under the False Claims Act (FCA). Fraud against the federal government by all too many industries in this country, especially in health care, remains a huge problem. Because of the pandemic and the history of the Trump Administration and individuals close to the former president, we expect the amount of fraud against the federal government to increase greatly during the coming months. A combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed will also be a major factor in the increase in litigation.
Whistleblowers are the key to exposing corporate wrongdoing and government fraud, and their role has intensified greatly. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is important to make sure you have a valid claim and that you are prepared 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. The following Beasley Allen lawyers are on the Team:
Larry Golston ([email protected]), Lance Gould ([email protected]), Leon Hampton ([email protected]), James Eubank ([email protected]), Paul Evans ([email protected]), Leslie Pescia ([email protected]), Tyner Helms ([email protected]) and Lauren Miles ([email protected]).
Dee Miles, who heads up our Consumer Fraud & Commercial Litigation Section, also participates in the whistleblower litigation and works with the Litigation Team. The lawyers can be reached by email or by phone at 800-898-2034.
PRODUCT LIABILITY UPDATE
Safety Change Made To A Street sweeper During Litigation
Product liability claims deal with the design of products and how design affects the safety of humans in relationship to the product. It is well known that vehicles and other products must be designed and manufactured with the safety of people at the forefront of the process. When manufacturers fail to design their products with safety in mind, people get injured and sometimes killed. Beasley Allen lawyers have influenced numerous safety changes by filing suits on behalf of persons and families adversely affected by a defectively designed product. Oftentimes, the manufacturer will claim credit for the change knowing a large verdict and the threat of future large verdicts was the primary motivating factor. While most design changes for safety are made after the litigation has concluded, some manufacturers are forced to act sooner.
Along with the Cooper Law Firm in Georgia, Beasley Allen represents a family of a man killed by a street sweeper in 2017. The decedent was using the street sweeper in Gwinnett County, Georgia, as part of a paving project. The street sweeper began to experience issues, so he pulled into a QuikTrip gas station parking lot and called for assistance. While waiting, he noticed smoke emanating from the back of the street sweeper and got out to investigate. While searching for the issue and standing on the vehicle’s body, his leg inadvertently contacted a switch that caused the hopper to move forward, resulting in his entrapment and death from mechanical asphyxia.
After the product liability lawsuit was filed against the manufacturer of the street sweeper, we conducted discovery which included relaying our product defect claims. We employed a mechanical engineer with design experience as an expert who opined that the controls were in the wrong location because it created an opportunity for an inadvertent activation. Our expert testified that the manufacturer could leave the control in its present location if it simply guarded the controls to prevent an inadvertent activation. The manufacturer, as most do, claimed the location of the controls was proper and blamed our client for the incident.
During his deposition, our expert expressly detailed how to change the controls and/or guard the controls to prevent an inadvertent activation. Instead of acting on this advice, the manufacturer continued to defend its design and seek to place the blame on anyone or anything but its defectively designed product. In late 2020, Defense counsel for the manufacturer notified us of another incident in Arizona where another person was entrapped and crushed to death happened in our case following an inadvertent activation of the hopper. This was exactly like what happened in our case.
Shortly after this second unnecessary death, the manufacturer modified the controls to guard the switches to prevent inadvertent activations. This design change now makes it impossible for anyone else to be crushed and asphyxiated to death. In addition to implementing the design change, the manufacturer added a warning on the vehicle about the need to guard the controls to prevent death or serious bodily injury following an inadvertent activation.
Manufacturers are required to identify hazards before their products are placed into the stream of commerce. This particular manufacturer waited to take steps to make its product safe. That failure to act resulted in two unnecessary and preventable deaths. It is comforting to know that our pursuit of justice for our clients contributed to the safety of others. At the same time, it is frustrating to know that the death in our case could have and really should have been prevented.
Our case is not yet set for trial due to COVID. When Georgia Courts resume civil trials, we are ready to proceed to trial and will hold this manufacturer accountable for its egregious conduct by seeking compensatory damages for the loss of our client’s life and punitive damages for this manufacturer’s willful and reckless failure to protect the public from an obvious and deadly hazard.
Kendall Dunson and Lance Cooper are handling this case. If you need more information, contact Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].
Appliance And Household Good Fires
According to the U.S. Fire Administration (USFA), there were approximately 380,000 residential building fires in the US in 2018 alone. Of those causing injuries, 6.2% were determined to be caused by appliances and household goods. It may come as a surprise, but many of the most common household appliances are causing fires at surprising rates. The most common appliance fires are from washing machines, dryers, dishwashers, refrigerators, toasters, microwaves, and TVs. This is not a new problem, but instead of getting better, statistical evidence suggests it is getting worse. Unfortunately, these appliances often catch fire with no warning and all too often result in tragic outcomes.
Although appliance design has come a long way from first-generation models, the complexity can also lead to other problems. In older models, a given appliance had simple wiring and often a single on/off switch. Now, almost every appliance has complex circuitry, switches, wiring, and microprocessors. Simply put, there is a lot more to go wrong. Additionally, these more complex systems often generate more heat than their predecessors.
In 2009 1.6 million Maytag refrigerators were recalled because of an electrical failure in the relay that controlled the compressor. Refrigerators run continuously, and once the electrical components catch fire, plastics in the unit’s insulation provide more fuel. From 2006-2010, refrigerators and freezers were the cause of 1,710 home structure fires. In 2007 2.5 million GE dishwashers were recalled due to overheated wiring causing short circuits, which could ultimately lead to fires.
Not only are appliances becoming more complex, but manufacturers are also sourcing cheaper and cheaper components from overseas. According the Underwriters Laboratory, which tests and certifies appliances and other goods indicated that appliances suffering from safety hazards could often be traced back to substandard overseas parts. According to the Consumer Product Safety Commission, China and other Asian countries heavily involved in manufacturing consumer appliances do not have stringent regulations. The CPSC has sent technical experts to Beijing to do training sessions with many manufacturers.
The CPSC recommends that consumers register all new appliances to be notified of any safety recalls or other problems. Additionally, it is important to research appliances currently in use that have not been registered. A full list of recalled appliances can be found by searching the make and model on the CPSC website, saferproducts.gov. If you have any questions, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].
Hazardous Guardrails Are A Threat To The Public
Over the past few years, our firm has had the opportunity to represent families across the nation in cases involving hazardous guardrails. In our experience, accidents involving hazardous guardrails are some of the worst accidents imaginable because they often involve the guardrail penetrating (or impaling) into the passenger compartment.
The federal government, in conjunction with numerous leading experts in the field, has spent millions of dollars over the last thirty years to evaluate guardrail performance in vehicle crashes. From that work, guardrail technology has advanced significantly. For the past two decades, state and federal standards have been implemented to require guardrail end terminals to be crashworthy and capable of absorbing a vehicle’s energy while protecting vehicle occupants in many crash scenarios.
Industry expert crash testing has further determined how guardrails must be installed and what could happen if they are not installed properly. All of this information is available to road contractors, either through Federal Highway Administration memoranda or through the AASHTO Roadside Design Guide, which accumulates safety literature.
Unfortunately, Beasley Allen lawyers continue to find that road contractors fail to make themselves knowledgeable on the safety literature even though this information has existed and been available for years. For instance, a few years ago, our firm filed a lawsuit against a road contractor that installed a guardrail end terminal that had been banned from use for almost 10 years before its installation. The guardrail end terminal was banned because it was known to impale vehicles that hit it. Federal and state guidance instead installed one of the many alternative designs that were known to absorb a vehicle’s energy while protecting the occupants of the vehicle under almost identical crash dynamics. The result of that case, which resolved satisfactorily before trial, was our client suffered catastrophic injuries when the end terminal penetrated her seat just as the federal government warned it would.
Lawyers in our firm are currently handling a case in Alabama where a guardrail’s posts were installed in thick asphalt with no room for the posts to rotate in the soil. Years before, industry literature and crash testing confirmed that an installation like this would cause the guardrail to impale vehicles instead of cushioning and redirecting them to safety. This is because post-rotation in the soil serves the critical purpose of absorbing the crash’s energy, so the guardrail can cradle the vehicle and safely redirect it. However, the contractor installing this guardrail, a proclaimed “guardrail specialist,” failed to educate itself on the proper installation technique. The contractor installed a hazardous guardrail that ultimately impaled a vehicle just as the literature said it would, killing our client’s father.
While guardrails appear to be simple devices, they are specialized equipment and a result of rigorous study and crash testing. Failure to select the right guardrail for the job, or to install the guardrail properly, can have horrific consequences to the public. Because guardrails are normally installed in bunches along a roadway by the same contractor as part of one large project, we find that if one defective guardrail exists, there are likely many more along the same roadway.
Parker Miller, a personal injury & product liability lawyer in our Atlanta office, has successfully handled various guardrail defect cases. If you have questions about these cases or believe you may have a case that involves a defective guardrail, contact Parker at [email protected], or at 800.898.2034.
Autonomous Emergency Braking Technology May Not Work As Intended
Beasley Allen lawyers represent owners and lessees of Nissan and Infiniti vehicles equipped with Automatic Emergency Braking Systems (AEB), which can cause the vehicles’ braking system to engage falsely or otherwise not work as intended.
The AEB system uses radar technology to gauge the vehicle’s proximity to the vehicles ahead. The system gives the driver audible and visual warnings to brake when detecting an unsafe distance between the vehicles. If the driver fails to respond, the AEB system can apply the brakes and help the driver avoid a collision or diminish the impact if a crash is unavoidable.
However, in 2015 or newer Nissan and Infiniti model cars and SUVS, the AEB system detects non-existent obstacles. These false detections trigger the brakes and cause the vehicles to slow down or stop unnecessarily. Consumers complain that the unexpected slowing down or braking has happened to them in a spectrum of circumstances, including while driving on highways at high speeds.
In some circumstances, the AEB System has deactivated itself for no reason, rendering it useless and distracting the driver. Subsequently, the system presents an unpredictable and unreasonable safety hazard rather than provides the safety feature drivers expect.
The National Highway Transportation Safety Administration (NHTSA) has endorsed AEB as “the next wave of potentially significant advances in vehicle safety.” Many manufacturers—such as Ford, GM, Toyota, Lexus, Honda, Accord, Subaru, Volkswagen, Audi, Volvo, BMW, and Mercedes-Benz—use AEB Systems.
However, studies reveal that AEB technology may be “undercooked” and rushed to market. A recent study by the Highway Loss Data Institute, an affiliate of the Insurance Institute for Highway Safety, found that many driver-assistance technology systems raise questions about their safety and effectiveness.
If you have experienced problems with a vehicles’ AEB system or would like more information on the lawsuit our firm has filed, contact Clay Barnett or Mitch Williams, lawyers in our firm, at 800-898-2034 or by email at [email protected] or [email protected].
AN UPDATE ON THE BOEING LITIGATION
Boeing Suspends 777 Aircraft With Pratt & Whitney Engine
Boeing is grounding more aircraft, and this time it is the 777 jet that has been in service since 1990. Late last month, CNN reported that the company suspended all 777s powered by the Pratt & Whitney-4000 engines. The company’s move came just after United Flight 328, aboard a Boeing 777, from Denver, Colorado, to Honolulu, Hawaii, experienced engine failure minutes after takeoff. Residents of a Denver suburb reported hearing a loud boom just before seeing aircraft engine debris fall from the sky. After an initial examination, the National Transportation Safety Board (NTSB) reported that two of the engine’s fan blades were fractured and that the remaining blades showed damage “to the tips and leading edges.” The aircraft experienced an uncontained engine failure.
The issue that caused this incident relates to the design and inspection of the engine’s fan blades. The blades on this model Pratt and Whitney engine are hollow and are susceptible to stress fractures. Mechanics have been on notice for several years to closely inspect these blades due to at least two prior similar incidents. When at least one fan blade fractured and broke free, it then damaged other blades and was blown into the rear of the engine, where it destroyed the turbine blades and caused a fire.
Current standards for jet engines require that, in the event of an engine fire, the engine can burn for 15 minutes before “departing the wing.” The 15 minutes are intended to give pilots enough time to land the aircraft safely. Fortunately, the safeguard worked properly for United Flight 328 since the plane was still over land and not the ocean. The hydraulic control lines and wing fuel tanks are located immediately behind where the fire was burning.
Large jet engines are equipped with Kevlar containment rings designed to hold parts inside the engine if there is a failure. In rare events, the containment rings also fail, leading to an uncontained engine failure. Similar incidents have occurred in recent years with different engines than the one on last month’s United Flight 328. For example, in 2018, Southwest Airlines Flight 1380 experienced an uncontained engine failure. Approximately 20 minutes into the flight, a fan blade of one of the Boeing 757-200 jet’s engines (a CFM56-7B model) broke off and caused the engine to explode. Engine components escaped the broken containment ring, pierced a window and caused a rapid depressurization in the passenger cabin. As a result, a passenger was partially ejected through the broken window and killed. The fatal flight led to changes in the process used to inspect the engine and fan blades for fatigue and fracturing.
For now, all 777 aircraft with the Pratt & Whitney-4000 engine have been grounded, while Boeing and the Federal Aviation Administration (FAA) decide how to proceed with more rigorous inspections and test each engine. CNN Business reported a statement by FAA Administrator Steve Dickson, who said:
Based on the initial information, we concluded that the inspection interval should be stepped up for the hollow fan blades that are unique to this model of engine, used solely on Boeing 777 airplanes.
Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, focuses much of his practice on aviation litigation. As previously reported, Mike represents a number of families in the ongoing Boeing litigation and is investigating other potential cases. If you would like more information on the Boeing litigation, or any other aspect of aviation litigation, including this most recent event, 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: Boeing, CNN and CNN Business
THE JUUL LITIGATION
JUUL Bellwethers Move Forward, Government Entities Partake
The JUUL litigation continues to progress as several government entities have been selected to serve as bellwethers in the multidistrict litigation (MDL) against Defendants JUUL Labs, Inc. and Altria, Inc.’s infamous e-cigarette. On February 1, 2021, U.S. District Judge William Orrick (Northern District of California) signed an order for parties to begin preparations for cases by several government entities, including the San Francisco Unified School District, Tucson Unified School District, The School Board of Palm Beach County, Florida, and Unified School District 265 Goddard in Kansas, as well as the City of Rochester, New Hampshire, and King County, Washington. The JUUL lawsuits were selected as the first wave of government entity bellwether trials, and a second wave of six more cases will soon follow.
The MDL concerns various claims against JUUL and Altria, alleging that they designed their e-cigarettes to give its users higher nicotine doses, all while misleading the public by claiming they are safer than traditional cigarettes. The entities also allege that JUUL and Altria pushed their e-cigarettes while hiding the health hazards associated with the product and ultimately targeted teenagers via social media and other advertising mechanisms to present JUUL’s e-cigarettes were safe and non-addictive.
The bellwether trials, in particular, come on the heels of an Order entered by the California court last October, dismissing plaintiffs’ claims that JUUL and Altria violated the Racketeer Influenced and Corrupt Organizations (RICO) Act. The court reasoned that plaintiffs’ RICO claims were not specific enough. Last month, JUUL and Altria asked the court to dismiss plaintiffs’ breach of warranty claims, also arguing that the claims were not specific enough to stand.
Beasley Allen’s Joseph VanZandt serves on the Plaintiff’s Steering Committee (PSC) in the federal JUUL MDL, and Beau Darley from the firm serves on the PSC in the California state court consolidated litigation against JUUL. Beasley Allen has devoted a team of talented lawyers to work on this critical litigation. Beasley Allen represents hundreds of school districts that have sued JUUL for the public nuisance its products have caused in schools around the country. The firm also represents hundreds of youths who became severely addicted to nicotine because of JUUL and suffered other serious physical injuries.
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]. You may also contact other members of Beasley Allen’s JUUL Litigation Team.
The MDL is In re: Juul Labs Inc. Marketing, Sales Practices and Products Liability Litigation (case number 3:19-md-02913) in the U.S. District Court for the Northern District of California.
Daily Vaping Amongst Teens In Decline
It’s become quite evident that the federal government dropped the ball in regulating vaping and e-cigarettes. But it’s also clear that the ongoing JUUL litigation has had a positive effect on the vaping industry. It’s most significant that for the first time in 3 years, daily vaping amongst teens is decreasing, according to a study published in the Journal of the American Medical Association.
As we have previously reported here and online, and as noted in the JAMA Pediatrics article, vaping among high school students doubled between 2017 and 2018. That was the single highest increase in smoking, drinking, and drug use ever recorded in the U.S. Not so coincidentally, this is the same period of time JUUL introduced its vaping device, flavored nicotine products, and advertising directed at teens. In fact, teen cigarette smoking declined before the introduction of JUUL and other vaping devices.
In 2020, 8660 10th and 12th-grade students responded to Monitoring the Future, an annual, cross-sectional, school-based survey that includes vaping along with other topics. The data culled from this survey indicates that from 2019 to 2020, daily nicotine vaping declined from 9% to 7%. Just as important, the use of JUUL products decreased from 20% in 2019 to 13% in 2020 There were other positive trends as well. The teenagers surveyed reported significantly less easy access to vaping products.
As noted in the Contemporary Pediatrics article, teens have less access to JUUL Brand products – “a major force in adolescent vaping.” Teens also recognize the high risk of negative health effects of vaping. In summary, the researchers concluded the increasing vaping trends from 2017 to 2019 stopped in 2020 and included a decline in daily vaping.
The CDC noted a similar statistical decline but cautioned that there is still work to be done. “It’s good news and bad news,” said Brian King, with the Centers for Disease Control and Prevention’s Office on Smoking and Health. Officials contextualized the results by noting that the decrease, while important, only lowers use to the 2018 level. King aptly stated: “We cannot rest on our laurels.”
The lawyers at Beasley Allen recognized early on that the critical threat to young people ensnared by nicotine addiction and its effect on our nation’s educational system and remains committed to ridding the health hazard introduced by JUUL from our youth and schools. Our firm joined other nationally recognized law firms in a combined effort to represent school districts and public entities in the fight to stop the school vaping crisis. Our lawyers also represent teens and adolescents involving nicotine poisoning, seizures, and strokes associated with JUUL pods.
If you have these types of cases and are considering filing a JUUL lawsuit, our lawyers would like to work with you. Members of the JUUL Litigation Team are available for a no-risk, free consultation.
The JUUL Litigation Team
Beasley Allen lawyers, led by Joseph VanZandt, are currently representing a number of individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives. These lawyers currently make up our firm’s JUUL Litigation Team: Joseph VanZandt, Sydney Everett, James Lampkin, Beau Darley and SooSeak Yang. Andy Birchfield, who heads up the firm’s Mass Torts Section, also works with the team. Lawsuits have also been filed on behalf of school districts nationwide, which seek 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 team at 800-898-2034.
Joseph VanZandt ([email protected]), Sydney Everett ([email protected]), James Lampkin ([email protected]), Beau Darley ([email protected]), Soo Seok Yang ([email protected]) and Andy Birchfield ([email protected]).
MASS TORTS LITIGATION
Advanced Testing And Regulatory Oversight Will Likely Lead To More NDMA-Related Recalls Beyond Valsartan, Zantac And Metformin
Scientists have found the likely carcinogen N-nitrosodimethylamine (NDMA) in multiple drugs over the last few years. This has led to multiple recalls and resulting litigations. Since 2018, NDMA has been found in at least seven drugs consumed by tens of millions of people each year.
Researchers made their first discovery of NDMA in Valsartan. Valsartan is an angiotension II receptor blocker (ARB) used to treat high blood pressure. It was recalled in July 2018. In September 2019, the FDA alerted the public of NDMA in lots of ranitidine, available as over-the-counter Zantac, and manufacturers recalled it within the next few months. Both recalls led to nationwide lawsuits and the formation of multidistrict litigations (MDL) for both Valsartan and Zantac.
Mylan, another well-known drug manufacturer, recalled the heartburn medication Nizatidine in January 2020. A few months later, in May 2020, NDMA was found in certain lots of Metformin. Metformin is a diabetes drug taken by over 15.8 million people worldwide.
Why are scientists finding so many products containing NDMA over the last few years? The short answer is advanced testing. Scientists now have methods of analysis that can detect small amounts of NDMA. This advanced testing will likely lead to more recalls related to NDMA. According to the FDA, the source of NDMA is likely related to the drug’s manufacturing process, storage, or packaging. Increased awareness has already begun to lead to increased safety measures to reduce these potential carcinogens’ risks. In addition to the FDA’s actions on recent recalls, the European Medicine Agency (EMA) and Health Canada have already released guidance directing pharmaceutical companies to perform risk evaluations of all drugs to find NDMA-related impurities.
Beasley Allen lawyers 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: Chemical & Engineering News
INSURANCE INDUSTRY LITIGATION
An Update On Business Interruption Insurance Litigation
Over 1,4000 businesses have filed suit against their insurers nationwide, seeking coverage for the businesses’ lost income due to COVID-19 and the resultant stay-at-home orders issued across the country. To date, only a fraction of those cases have been decided by courts, but the initial rulings display there are hurdles policyholders will have to overcome.
In many cases granting motions to dismiss for policyholders, trial courts have held that business losses are not covered unless there is tangible physical damage to the property. Nonetheless, this has not been a consistent holding nationwide, with several courts finding a distinction between “physical loss” and “physical damage” and allowing policyholders to pursue their claims.
In a monumental win for policyholders, an Oklahoma state court recently granted partial summary judgment for the Cherokee Nation in its business interruption claim. The policy at issue provided coverage for “all risk of direct physical loss or damage,” which the Cherokee Nation contended was triggered when the property was “rendered unusable for its intended purpose.” Arguing established contract principles requiring every word term must be provided a meaning, the Cherokee Nation argued, as many policyholders nationwide have claimed, that a distinction must exist between “physical loss” and “physical damage.” The court agreed with this argument and concluded that the physical presence of COVID-19 depriving the Cherokee Nation of the use of the covered property for its intended purpose triggered a covered loss.
On the other hand, policyholders in at least eleven lawsuits whose cases have been dismissed have filed appeals, asking appellate courts to conclude that business losses arising from the COVID-19 pandemic are covered under their policies. Attorneys for policyholders in eight of these disputes in Pennsylvania have asked the Third Circuit to consolidate their appeals for argument, saying one combined proceeding will more efficiently resolve unaddressed issues of Pennsylvania law. The insureds have also requested the Third Circuit to ask the Pennsylvania Supreme Court to certify whether the pandemic causes “physical loss” covered in insurance policies.
Beasley Allen lawyers continue to monitor the development of these cases and proposed legislation. Dee Miles, head of our Consumer Fraud & Commercial Litigation Section, Rachel Boyd, and Paul Evans are spearheading the handling of business interruption litigation for our firm. They are monitoring any MDL developments that arise. You can contact them at [email protected], [email protected], or [email protected] if you have any questions or would like to discuss potential claims.
Robinhood Users Hit Trading App With Class Action Lawsuit
A group of Robinhood users has slung their arrows at the stock-trading app for blocking them from buying shares of GameStop and other companies. A class-action lawsuit was filed Jan. 28 in the Southern District of New York, stating:
Robinhood’s actions were done purposefully and knowingly to manipulate the market for the benefit of people and financial institutions who were not Robinhood’s customers.
Robinhood imposed stock-trading restrictions Jan. 28 due to “recent volatility.” Investors were only allowed to close out their positions in certain stocks, including GameStop (GME), AMC (AMC), Bed, Bath & Beyond (BBBY), and Nokia (NOK). Robinhood later said it would “allow limited buys” of the stocks starting Jan. 29.
The news sent GameStop stock reeling. Unable to ride the GameStop roller coaster, investors were deprived of potential gains and fought back by filing the lawsuit. GameStop’s stock had been on an unprecedented steady climb since Jan. 11, growing more than 1000% in a matter of weeks, prompted by the Reddit group WallStreetBets. Analysts were left scratching their heads in wonder.
Short-sellers betting against the stock were forced to buy shares, sending the stock price higher. Many day traders took advantage of Robinhood’s free trades to ride GameStop’s wave, putting Robinhood in a precarious position. Unable to support such elevated stock prices, Robinhood’s bubble burst, leveling traders who were banking on GameStop’s success.
Robinhood’s actions prompted a new Reddit forum, r/ClassActionRobinHood, which quickly grew to 31,000 users. WallStreetBets user Christopher Kardatzke, 21, told CNN Business that Robinhood’s acts were unfair. He said:
It seems a bit silly. The people of r/WallStreetBets were buying up GameStop and playing a game of Jenga, but it’s the same game that hedge funds have been playing for decades and decades. It’s a bit ridiculous.
Robinhood was founded in April 2013 to “provide everyone with access to the financial markets, not just the wealthy.” But this isn’t the first time the trading app has been in hot water by its users.
In March 2020, a group of Robinhood’s investors hit the company with a proposed class action for allegedly luring unsophisticated traders with its clever design and interface but never equipping them with information on how to access their accounts during several service interruptions. The app was down for nearly an entire day in March, the same day the Dow Jones Industrial Average recorded its largest single-day point gain in Dow history up to that time.
In July, U.S. District Judge James Donato appointed Beasley Allen lawyer Leslie Pescia to the Robinhood Outage Litigation executive committee and Liaison Counsel representing Robinhood users.
Judge Donato refused to dismiss a proposed class action alleging that Robinhood’s repeated service outages amid volatile market conditions harmed retail stock traders, finding that traders sufficiently alleged that they had been harmed by outages Robinhood has admitted are a problem. The judge ordered the parties to enter mediation.
At the end of a hearing held via Zoom, Judge Donato ruled from the bench, dismissing Robinhood’s parent company, Robinhood Markets Inc., from the suit with leave to amend but denying Robinhood’s motion to dismiss the consolidated litigation for good.
The judge also denied Robinhood’s motion to strike class claims. He acknowledged that although the proposed nationwide class of Robinhood users seems “a little over-inclusive,” the issue is a matter to be decided on a motion for class certification and not a motion to strike.
The case is In re Robinhood Outage Litigation (case number 3:20-cv-01626) in the U.S. District Court for the Northern District of California.
We will continue to update our readers on the progress of these two sets of litigation. If you have any questions, contact Leslie Pescia at 800-898-2034 or by email at [email protected].
$1.2 Billion Valeant Settlement Receives Final Approval
The landmark $1.21 billion settlement for Valeant investors has received final approval. The settlement is especially good considering the precarious financial position of the pharmaceutical giant now known as Bausch Health Cos. The sharp drop in Valeant share values took place amid a criminal indictment alleging the company used a clandestine network of pharmacies to push high-priced drug prescriptions.
This is the ninth-largest securities fraud settlement in the U.S. It received initial approval just three months before the COVID-19 pandemic sent the stock tumbling once more.
The legal team handling the litigation for the investors worked out an arrangement with an upfront payment followed by installments with interest that required Valeant, which had $825 million in cash on its ledger, to launch a private bond offering of $1.25 billion to fund the settlement payments. The settlement amounted to 146% of Valeant’s on-hand cash, said to be a remarkable outcome given analysts’ predictions that the Montreal-based company was teetering on the edge of bankruptcy.
Timing was said to be key in maneuvering Valeant’s financial volatility. Valeant’s stock price had fallen from more than $250 a share in 2015 to below $10 two years later when the price-gouging allegations surfaced. The stock had rebounded to $30 per share. Three months after the settlement got initial approval in December 2019, the stock price fell to as low as $11 per share as the global health crisis wreaked havoc on the markets.
Robbins Geller was lead counsel for the investors in the litigation. The case is In re: Valeant Pharmaceuticals International Inc. Securities Litigation (case number 3:15-cv-07658) in the U.S. District Court for the District of New Jersey.
Credit Suisse Pays $600 Million To Settle Toxic Residential Mortgage-Backed Securities Case
Credit Suisse will pay $600 million to settle decade-old litigation from a bond insurer that claims the Swiss bank misled it into insuring toxic residential mortgage-backed securities (RMBS) that imploded during the 2008 financial crisis. MBIA Insurance Corp. reached a confidential settlement agreement with the bank and will dismiss its suit, alleging that Credit Suisse’s false representations about the risk associated with the RMBS ultimately caused the insurer to pay out $386 million in claims.
Subsequently, Credit Suisse confirmed that the settlement amount was $600 million, which is close to the $604 million that a New York state court judge ordered the bank to pay in January in a post-trial order.
MBIA asserted breach of contract claims against Credit Suisse and subsidiaries DLJ Mortgage Capital Inc. and Select Portfolio Servicing Inc. back in 2009. It asserted that the bank repeatedly lied and doctored records to convince MBIA to insure risky residential mortgage-backed securities that ultimately imploded. According to the insurer, a sample of the nearly 1,800 loans found 85% of them failed to meet standards Credit Suisse promised it would deliver.
In a Nov. 30 post-trial decision, Justice Jennifer G. Schecter said that MBIA “convincingly proved” that more than half of the securitized loans were materially nonconforming and will be compensated for those losses. Then on Jan. 25, weeks after Credit Suisse said it had set aside an extra $850 million to cover litigation in the U.S. over RMBS, Justice Schecter issued an order making one of the Credit Suisse units liable for $604 million-plus interest.
MBIA is represented by Marc E. Kasowitz, Kenneth R. David and Michelle Genet Bernstein of Kasowitz Benson Torres LLP and Melissa Ginsberg, Catherine A. Williams, Stephanie Teplin and Jason Vitullo of Patterson Belknap Webb & Tyler LLP. The case is MBIA Insurance Corp. v. Credit Suisse Securities (USA) LLC et al. (index number 603751/2009) in the Supreme Court of the State of New York, County of New York.
EMPLOYMENT AND FLSA LITIGATION
Boeing Agrees To Pay $2 Million To Settle Wage Claims
Boeing has agreed to pay $2 million to a proposed class of hundreds of workers to settle their claims that the company failed to pay them overtime wages in violation of the Fair Labor Standards Act (FLSA) and Washington state wage laws. The proposed settlement class consists of approximately 770 current and former Boeing workers in Washington state who worked as facilities project administrators, facilities planners and staff analysts since April 2016 and are classified as exempt from overtime. The proposed class members will receive an average of just over $1,700 per member.
The workers filed the proposed collective and class action lawsuit in April 2019, alleging Boeing misclassified them as exempt from overtime pay. Counsel for the workers said, “getting money in the pockets of these hard-working employees now, as opposed to years from now, is especially important given the global pandemic.” Further, the settlement will provide relief on a class-wide basis in a case where Boeing would have challenged every issue in drawn-out litigation, as Boeing continues to deny the unpaid overtime claims.
This is just one example of labor abuses that occur daily in our country. The law provides protections from these types of wage and hour violations, but it requires courageous employees to come forward and challenge their superiors who are abusing the labor laws. Our firm has dedicated a portion of our law practice to helping victims of labor law abuse. For more information, contact our lead labor lawyers, Lance Gould or Larry Golston, at [email protected] or [email protected] or at our office at 1-800-898-2034.
Source: Law 360 Employment
Amazon Agrees To Settle Delivery Drivers’ Tips Case For $61.7 Million
Amazon has agreed to pay more than $61.7 million to settle Federal Trade Commission (FTC) charges that the e-commerce giant skimmed off customer tips to subsidize delivery drivers’ hourly wages. FTC Commissioner Rohit Chopra wrote in a statement:
The FTC is sanctioning Amazon.com for expanding its business empire by cheating its workers. In total, Amazon stole nearly one-third of drivers’ tips to pad its own bottom line.
Under the Amazon Flex program, which launched in 2015, independent contractors use their own cars to deliver Amazon packages and Amazon Fresh and Whole Foods groceries. The FTC alleges that Amazon lured in recruits for the Flex program by promising they would receive a base hourly wage between $18 and $25, as well as 100 percent of tips left by customers in the app.
However, between late 2016 and August 2019, Amazon allegedly lowered its hourly rate and started using tips to make up the difference without informing drivers. Even after drivers started to complain and the media began reporting on the tip pocketing, according to the FTC, the company took steps to “obscure” what was going on, telling drivers that they were still receiving 100 percent of tips. But Amazon employees at that time were privately referring to the situation as an “Amazon reputation tinderbox” and “a huge PR risk to Amazon.” The company allegedly only stopped this new pricing model when the FTC informed Amazon that it was investigating Flex pay practices.
The $61.7 million represents the total amount that Amazon allegedly withheld from Amazon Flex drivers, and will compensate those workers. Drivers who think they may have been impacted should sign up for FTC email updates, a spokesperson for the agency told Recode.
Interestingly, the settlement was announced on the same day that Jeff Bezos revealed he would be stepping down as Amazon CEO for a new role. Under terms of the settlement, Amazon has to be transparent about drivers’ pay rates and tips and must obtain express informed consent before making any changes to how tips are used as compensation going forward. The “gig economy” is rife with such tip-pocketing schemes. Delivery startups DoorDash and Instacart reversed similar pay structures after customers threatened to stop using the apps. Can these companies’ business models only work by exploiting labor?
It appears the FTC has done a poor job in dealing with companies like Amazon. But with this latest rebuke of Amazon Flex’s practices, the FTC may finally be moving to deter this behavior across the board. Per Recode:
FTC Acting Commissioner Rebecca Slaughter, a Democrat, and Commissioner Noah Phillips, a Republican, called on Congress to give the FTC the power to create gig-economy rules that more clearly explain what type of behavior is unlawful. The pair also are requesting that Congress give the FTC power to issue large civil penalties to first-time offending businesses as a further deterrent to engaging in schemes like Amazon’s, which FTC commissioners called “outrageous.”
“The Commission has historically taken a lax approach to worker abuse,” commissioner Chopra wrote in a statement. “I hope that today’s action turns the page on this era of inaction.”
PREMISES LIABILITY LITIGATION
How To Identify A Negligent Security Case
Generally, premises liability cases are easily identifiable by practitioners. For example, many lawyers can identify the typical premises case where a potential client explains that she slipped and fell at the local grocery store or fell down loose stairs at her apartment complex. It is also easy to evaluate liability for these types of cases due to the simplicity of the facts and the applicable state law. However, some lawyers often wonder what to do when a potential client calls about them or a family member being a victim of a shooting or sexual assault that occurred on a property and the perpetrator cannot be found. These are identified as negligent security cases, which is a subset of premises liability.
Negligent security cases may arise when a property owner fails to take reasonable and adequate security measures to prevent foreseeable criminal activity and a person, lawfully present on the premises, suffers serious physical injury or death as a result. The contractor, manager or owner of the premises (i.e., shopping center/mall, apartment complex, gas station, etc.) responsible for providing security can be held liable if they failed to implement proper security measures to prevent foreseeable criminal attacks. In order for the subject criminal action to be deemed foreseeable, it must be proven that the property owner knew or should have known of prior substantially similar criminal incidents that occurred on or within close proximity to the subject premises.
If it is determined that there are a number of prior substantially similar crimes, such as prior shootings, rapes, or other heinous acts of crime, on the subject premises, a court of law will likely determine that the risks, to anyone lawfully on the premises, were foreseeable to the property owner. If you have determined that you can meet this burden, you must also be able to prove that the defendant(s) failed its duty to provide reasonable security and also failed to adequately warn its visitors/tenants of the risk of criminal activity that could lead to injury or death. As a plaintiff, you must also prove that if the defendant had not breached its duties, you (or the client) would not have been injured or died, and as a result of the subject breach of duty, you (or the client) suffered actual damages.
Parker Miller and Donovan D. Potter, Sr., lawyers in our Atlanta Office, are the lead Beasley Allen lawyers handling these cases. If you or a loved one was seriously injured as a result of a criminal act, or if you have any questions about these cases, contact Parker or Donovan at 800-898-2034 or by email at [email protected] or [email protected].
Judge Rules Against New Orleans Port Company In Oil Spill Case
Ports America Louisiana LLC, a Port of New Orleans stevedoring company, will face a trial in a ship owner’s $10 million lawsuit claiming that its negligence resulted in damage to a bulk carrier and caused an oil spill.
The Defendant company had argued that it couldn’t be held responsible for damage to one of Antares Maritime PTE Ltd.’s vessels when it docked at an unsafe port berth because the Board of Commissioners of the Port of New Orleans has final say over such matters. But U.S. District Judge Wendy Vitter found that Plaintiff Antares had provided enough evidence requiring that a jury should decide the question.
Judge Vitter, in an order rejecting Ports America’s motion for summary judgment, noted that the company was aware of the berth’s protruding steel plate, called a ro-ro plate because another ship was damaged similarly just two weeks before Antares’ ship docked there. Judge Vitter said:
The potential danger to [Antares’ ship] was … clearly foreseeable to Ports America, yet it still had a hand in choosing the Nashville Avenue berthing location without any warning to [Antares]. The testimony from Ports America confirms that Ports America requests the berth location and the board generally tries to accommodate that request.
Judge Vitter also said general maritime negligence claims must include the concept of a duty to warn where harm is reasonably foreseeable. Ports America argued it “promptly notified” the board of the previous ship damage, thereby fulfilling any duty it had to Antares. The judge said that although the board “may shoulder the weight of the responsibility” for the Antares damage, “the fact that Ports America notified the board does not absolve Ports America’s duty to Antares,” Judge Vitter added:
There is no evidence in the record that Ports America (which knew of the hazard), attempted to ascertain that the board had fixed the ro-ro plates before requesting the Nashville Avenue location for the [Antares ship] to berth.
The judge said there is no evidence that Ports America attempted to warn Antares of the hazard in the berthing location. The Board is also a defendant in the case but was not involved in Ports America’s motion.
According to Plaintiff Antares, the ro-ro plate punctured the vessel — spilling 2,000 gallons of heavy fuel oil into the Mississippi River. The Plaintiff said in its complaint that costs could exceed $10 million. Antares is also seeking punitive damages against the Port for the “wanton and reckless conduct” by its leadership.
Antares is represented by Michael Harowski, Antonio J. Rodriguez and H. Jake Rodriguez of Wilson Elser Moskowitz Edelman & Dicker LLP. The case is Antares Maritime PTE Ltd. V. Board of Commissioners of the Port of New Orleans et al. (number 2:18-cv-12145) in the U.S. District Court for the Eastern District of Louisiana.
On The Job Injuries Involving Cranes
Beasley Allen was recently hired to investigate a most unfortunate accident involving the death of 22-year-old William Khemmanivanh. William had recently graduated from community college and was working for SPI Mobile Pulley Works when he was tragically killed. OSHA is currently investigating the incident.
Unfortunately, crane accidents are something OSHA is all too familiar with. Cranes have accounted for thousands of on-the-job deaths, averaging around 80 workplace deaths per year. According to an OSHA study, falls and crane accidents are the leading cause of work-related fatalities in the construction industry.
Not only are cranes hazardous to those in the construction industry, but the general public as well. Since cranes are often used in urban areas, unsafe equipment and operations present a risk to workers and the general public alike.
OSHA’s analysis identified the major causes of crane accidents to include: boom or crane contact with energized power lines, overturned cranes, dropped loads, boom collapse, crushing by the counterweight, outrigger use, falls, and rigging failures.
In an effort to make the construction industry safer and to reduce fatalities, OSHA has released guidelines in relation to preventing crane accidents. These guidelines are as follows:
- Before using a crane, an inspector should check the machine for any mechanical problems resulting from accidents.
- The crane machine must undergo a more comprehensive inspection regularly to determine if there is a crack, faulty wiring, worn-out ropes, and any damaged part that could lead to accidents.
- If any damaged part must be repaired or modified, this should be done by a qualified person.
- Place the crane in a stable and flat ground, which must be at least 10-feet away from electrical cables.
- Make sure the crane is not carrying a load that is more than its capacity. Under US standards for mobile cranes, the load should not be more than 75 percent of the tipping weight.
- Install fences around the construction site to prevent outsiders from going near the crane.
- Make sure the crane’s safety devices, such as the level operator, are working properly.
- While operating a crane, there should be a qualified “signal” person who will assist the operator in maneuvering loads.
- There should be fall protection equipment for workers who are standing more than 6-feet above the ground.
- The loads should be set by a qualified “rigger” to make sure that these will not come loose and strike a worker.
- The foundation for a tower crane and other structural supports for this machine should be designed by its manufacturer or a professional engineer.
- Crane operators should consider the wind as the most important safety concern. In a recent study conducted by OSHA, wind is one of the leading causes of crane accidents in the US.
- Due to stability concerns, cranes mounted on ships and offshore platforms should be used more carefully.
It is most important that these guidelines are always followed to minimize the hazards to operators, workers, and the general public. If you need more information on crane accidents or any other related subject, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].
Twice As Many Workers Died Of COVID At Tyson Foods Than Any Other Meatpacker
Thus far, it has become quite obvious that during the pandemic, meat processing plants have been extremely dangerous for employees who are required to work in close quarters and often without masks and other needed protective equipment. It appears Tyson Foods has become one of the worst offenders. A class-action lawsuit filed in the Eastern District of New York against Tyson Foods on Feb. 2 stated that twice as many Tyson employees died after contracting COVID-19 than any other meat processing company.
Shareholders of Tyson were also affected adversely. The lawsuit alleges that Tyson Foods provided shareholders with false claims about their safety protocols to the COVID-19 pandemic. A letter requesting an investigation into Tyson’s annual financial report was sent to the Securities and Exchange Commission (SEC) in December 2020 by New York City Comptroller Scott Stringer. After Stringer disclosed that Tyson Foods misrepresented its COVID-19 precautions, stock in Tyson Foods dropped 8.5 percent over a span of five trading days.
According to Stringer’s letter, which is referenced in the lawsuit, Tyson reported the greatest number of COVID-19 cases of “any company in the meatpacking industry.” The letter said that “Tyson reported twice as many deaths as any other meatpacking company.”
Information from the Select Subcommittee on the Coronavirus Crisis (SSCC) said that over 12,000 Tyson Foods workers contracted COVID-19, with 38 dying from the virus. The world’s largest meatpacker, JBS USA, reported 18 COVID-19 related fatalities out of 3,000 positive cases.
The lawsuit claims that Tyson senior officers “acted with reckless disregard for the truth” by falsely reporting that its meat processing plants had taken proper precautions to prevent the spread of the virus among its employees.
In November 2020, a manager at Tyson’s plant in Waterloo, Iowa, was alleged to have organized a “cash buy-in, winner-take-all” betting pool among the facility’s leadership structure centered on how many employees would contract COVID-19. The allegations were made in a wrongful death suit filed against the plant by the son of a former employee who had contracted the virus while working at the Waterloo facility. Tyson fired seven employees at the plant after an internal investigation into the allegations.
Rep. James Clyburn, the SSCC Chair, called for meat packing companies, including Tyson Foods, to be investigated by the Occupational Safety and Health Administration (OSHA). In a Feb. 1 letter to Deputy Assistant Secretary of Labor for Occupational Safety and Health James Frederick, Rep. Clyburn said that OSHA failed to “show urgency in addressing safety hazards at the meatpacking facilities it inspected” during the administration of former President Donald Trump. He wrote in the letter:
A swift and forceful response from OSHA could have led meatpacking companies to adopt stronger safety measures, preventing outbreaks and saving lives. But in the last year, OSHA failed to issue enforceable rules, respond in a timely manner to complaints, and issue meaningful fines when a company’s unsafe practices led to the deaths of employees. As a result, I am concerned that under the Trump Administration, OSHA did not fulfill its mission to protect vulnerable meatpacking workers during the pandemic.
Beasley Allen lawyers will continue to monitor the meatpacking industry to see if things get better for working men and women. It’s also important to ensure that neither Congress nor state legislative bodies give blanket immunity to these companies against litigation filed by employees. If you agree, I suggest that you let your U.S. Senators and House members know that employees must be protected. Giving blanket immunity to corporations that knowingly violate safety laws and standards and put their employees at risk is not the answer.
Settlement In Covid-19 Related Case In Mobile
A lawsuit brought by the widow of a sea captain who died after contracting the coronavirus last year has been settled. Many observers had been watching this case closely. However, this settlement ends the opportunity for the case to set a precedent about whether American maritime law extends to hazards such as that created by Covid-19.
The case was filed in U.S. District Court for the Eastern District of Louisiana in New Orleans under the 1920 Jones Act, which gives seamen who are not eligible for traditional federal workers’ compensation some protection for the unique risks they face aboard vessels.
Michael Norwood, husband of Plaintiff Kathy Norwood, died of COVID-19 in a Mobile, Alabama, hospital in April 2020 after having been exposed to the coronavirus while he was working in Mobile’s Austal marine facility on an offshore support vessel owned by Lafayette-based Rodi Marine LLC.
It was alleged that Michael Norwood had been negligently exposed to the virus when he was required to work on the vessel with another sea captain, John Reed, who the firm had transferred from New Orleans in late March when it was known at the time that the city had been a coronavirus “hot spot.”
Paul Sterbcow, the lawyer for Norwood’s family, as well as other legal scholars, saw the case as an opportunity to test whether the Jones Act’s requirement that owners ensure the seaworthiness of their vessels includes a duty of care to ensure none of its crew members brings aboard a deadly virus. The Jones Act’s unseaworthiness provisions were at issue in the case. Sterbcow observed:
Captain Norwood had remedies available to him as a member of the crew of this vessel that others who are not vessel crew members don’t have under the law.
Crew members who are American citizens or residents and work on American-registered ships are afforded special protection that those on foreign ships or in many other industries are not. Arthur Crais, a maritime law professor at Loyola University, had this to say:
Seamen are in a particular class of workers as are railway workers. Unlike other employees, both seamen and railway workers can sue the employer for negligence. All other employees are limited by the recovery of workers’ compensation benefits.
Any monetary compensation would have been limited by the fact that maritime cases can only recover medical expenses and loss of income and cannot sue for “pecuniary damages,” which often are the lion’s share of non-maritime negligence cases. Professor Crais said that the settlement leaves it unclear for the maritime industry how companies can be held liable for negligence when it comes to coronavirus. “I know that the worldwide shipping industry has been concerned about their legal obligations in the age of COVID,” the professor observed.
Though attention was focused early in the pandemic on lawsuits brought by passengers who had contracted COVID onboard cruise ships, Professor Crais said that the fact that many cruise operators register their ships abroad and employ foreign crew means the chances for American crew to bring suits for negligent exposure are limited.
Similarly, most cargo vessels are registered under a foreign flag and employ foreign crew. “Seamen most affected will be those operating vessels serving the offshore industry, on mobile offshore drilling units, on tugs and inland vessels and any passenger vessels plying the U.S. waters,” Professor Crais said, noting that the federal court in New Orleans is by far the busiest in the country when it comes to hearing maritime cases.
It should be noted that a confidentiality agreement forbids Sterbcow and the plaintiff from disclosing the terms of the settlement or the amount to be paid.
Source: AL.com, The Times-Picayune | The New Orleans Advocate (TNS) and Tribune Media Services
Worker’s COVID-19 Death Lawsuit Against Publix Will Proceed
Publix is facing a lawsuit that says a Miami Beach store employee died from COVID-19 last April because he was restricted by his employer from wearing a mask. A ruling by Miami-Dade Circuit Judge Carlos Lopez will allow this case to go forward. The supermarket giant claimed that the dispute must be handled as a workers’ compensation claim rather than by a civil lawsuit. The employee, Gerardo Gutierrez, was 70 when he died from the virus. Publix attempted to have the lawsuit dismissed, but the judge denied its motion.
Gutierrez died one month after working at the deli counter at a Publix store for two days next to a co-worker who had symptoms of the virus. The estate of Gutierrez blames Publix for then banning the worker and other employees from wearing masks. It’s alleged that Publix feared “scaring its customers” if the employees wore masks.
When an employer deliberately or wantonly caused an injury to a worker, the workers’ compensation laws can be bypassed. In the Gutierrez case, the estate argues Publix’s mask ban led to the worker’s death. “During the very time period that Publix was touting its efforts to keep employees and customers safe, Publix was prohibiting employees from wearing personal protective equipment of any type despite the rapidly escalating COVID-19 virus,” said Michael E. Levine and A. Dax Bello of Miami.
The suit states that on March 27 and March 28, Gutierrez worked beside a sick woman, who later tested positive for COVID-19. On April 2, Gutierrez was sent home and told to self-isolate. He was hospitalized April 10 and died April 28. It wasn’t until April 3 that the U.S. Centers for Disease Control and Prevention recommended that everyone cover their faces in settings where 6 feet of distancing is difficult to maintain, including supermarkets.
Publix did not require employees to wear masks until April 20, Gutierrez, a father of four children, wanted to wear a mask, and the company wouldn’t allow it. Gutierrez “continued to go to work each day because he believed Publix’s statements that it was taking all measures necessary to keep him safe,” the lawsuit reads.
Source: South Florida Sun Sentinel
AN UPDATE ON MOTOR VEHICLE LITIGATION
Judge Orders Ford To Produce Critical Documents In Ford F-150 Brake Defect Class Action
Beasley Allen lawyers Clay Barnett and Mitch Williams, along with Dee Miles, interim co-lead counsel in the case, are litigating in the Eastern District of Michigan a product defect class action against Ford Motor company concerning defective brakes in 2013-2018 Ford F-150 pickups, the company’s most popular product.
The quarter-ton pickup contains a defective Hitachi front brake master cylinder that allegedly places drivers at risk of suddenly and unexpectedly losing all front brake circuit function. In 2016, Ford recalled a limited number of 2013-2014 F-150s but installed the same defective master cylinder design in the trucks it “repaired” and in all new builds through at least July 2019. It’s alleged in the complaint that the recall was defective, as are all of the master cylinders installed in 2013-2018 F150 trucks.
For much of 2020, Plaintiffs worked to force Ford to turn over documents proving Ford’s knowledge of the defective brake system and failure to address it with more than a patch repair. On January 25, 2021, Judge Gershwin A. Drain of the Eastern District of Michigan granted Plaintiffs’ Motion to Compel Discovery. Judge Drain noted that he had been operating under the assumption that Ford was actively and dutifully producing documents when in fact, they were not. After learning of Ford’s recalcitrance, Judge Drain ordered Ford to serve Plaintiffs with discovery by Feb. 12 and extended Plaintiffs’ time to collect testimony and complete our experts’ written reports.
The plaintiffs’ position is that Ford investigated, but did not address, the true root cause of the brake system failure that Plaintiffs’ experts identified independently over the last several months through pure hands-on analysis that called on their personal training in automotive braking and hydraulic systems. The plaintiffs contend that Ford only addressed one aspect of a system-wide weakness that causes spontaneous and catastrophic brake failure. This discovery, we believe, will prove the plaintiffs’ allegations.
Beasley Allen lawyers will depose Ford engineers during February and March and secure testimony needed to corroborate their experts’ findings and conclusions. Plaintiffs experts have dissected and field/lab tested this defective brake system that Ford installed in 2013-2018 F150s and 2013-2018 Expeditions and Lincoln Navigators. Importantly, our lawyers ask that anyone who suffered brake failure in their 2013 through current F-150, Expedition, or Lincoln Navigator contact the firm.
Clay Barnett in our firm’s Atlanta office, Mitch Williams in the Montgomery office and Dee Miles, head of the firm’s Consumer Fraud & Commercial Litigation Section (who is interim co-lead counsel in the class case) are handling this class action lawsuit along with Adam J. Levitt and John E. Tangren from the Dicello, Levitt & Gutzler firm in Chicago, Illinois; Annika Martina, Mark Chalos and Evan Ballan of Lieff, Cabraser of San Francisco and Nashville; and local counsel E. Powell Miller, Sharon Almonrode and Dennis Lienhardt with the Miller Law Firm located in Rochester, Michigan.
Drivers Sue General Motors Over Oil-Guzzling Engines
Beasley Allen, along with other law firms, has filed a proposed class action in a West Virginia federal court. The suit alleges that General Motors sold defective engines in seven GM truck and SUV models that “were engineered to fail” and whose excessive oil consumption caused engine misfires and shutdowns.
Roger Heater, a West Union, West Virginia, resident who owns a 2011 Chevrolet Silverado, seeks to represent a proposed class of people who bought or leased GM vehicles from 2011-2014 with defective Generation IV Vortec 5300 engines. He contends that GM knew about the defect for years and continued selling the flawed vehicles, including the Chevrolet Avalanche, Silverado, Suburban, Tahoe and GMC Sierra, Yukon Yukon XL models. It’s alleged:
GM failed to disclose the truth about these vehicles and failed to remedy the well-established defects in the class vehicles that were on the road.
Heater noticed that his vehicle consumes an excessive amount of oil and “has experienced repeated spark plug fouling,” the suit says. Had GM notified consumers about an oil consumption defect, Heater wouldn’t have bought the Silverado or would have paid less for it.
The suit is an offshoot of a 2016 class action in California’s Northern District that makes similar claims.
In the past year, this case and others filed in district courts in Washington, Oregon, Illinois, Indiana, and Massachusetts make claims on behalf of GM consumers in those respective states. These vehicles have an oil consumption defect, where the engine “consumes an abnormally and improperly high quantity of oil that far exceeds industry standards for reasonable oil consumption,” the suit says, resulting in low oil levels, lubricity levels, and leading to internal engine damage. It’s further alleged:
- The defect is primarily caused by the piston rings in the engine that fail to keep oil in the crankcase. But the active fuel management system also contributes to the defect, referring to the system that converts engines from eight-cylinder operation to four-cylinder operation while operating on light duty.
- The active fuel management system has an oil pressure relief valve that sprays oil at the piston skirts and “overloads and fouls the defective piston rings, triggering oil migration past the rings.” The oil either burns or accumulates as carbon buildup on the combustion chamber’s surfaces.
- When it’s in the four-cylinder mode, the lack of combustion in the cylinders “invites excessive oil migration into the combustion chambers.” Because combustion controls oil migration by providing an opposing force and by helping piston ring sealing, when it’s absent, the oil consumption accelerates.
- The engine also has a “flawed” positive crankcase ventilation system that vacuums atomized oil from the valvetrain into the intake system, where it’s burned in the combustion chambers, contributing to excessive oil consumption.
- These problems are exacerbated by a “defective” oil monitoring system that doesn’t warn drivers about low oil levels in their vehicles until those levels are critically low, wearing out and damaging engine parts that need lubrication.
- The oil issue further damages the vehicles by harming the spark plugs, causing engine misfires and shutdowns. “Each current or former purchaser or lessee of a class vehicle paid for a vehicle fitted with a defective engine that consumed an abnormally high volume of oil, subjecting their vehicles to the problems described herein.”
- GM dealers have been performing “stop-gap fixes.” but GM didn’t tell consumers about the oil consumption defect before they bought or leased vehicles.
- Since 2014, GM has stopped using that engine model and replaced it with a redesigned one intended to fix the excessive oil consumption problem.
- But that doesn’t change the fact that GM was aware of the defect, and yet, it kept selling the defective vehicles.
- “While GM’s redesign of its Generation V Vortec 5300 engines confirms the prior defects and may benefit subsequent purchasers and lessees of those vehicles, it did nothing for the owners and lessees of the class vehicles, namely, plaintiff and the other class members.”
Heater alleges violations of the West Virginia Consumer Credit and Protections Act, breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment/omission, unjust enrichment and violations of the Magnuson-Moss Warranty Act. Counsel for Heater declined to comment Thursday.
Heater is represented by Dee Miles, Clay Barnett, Mitch Williams and Tyner Helms of Beasley Allen; L. Lee Javins II and Taylor M. Norman of Bailey Javins & Carter L.C.; and Adam J. Levitt, John E. Tangren and Daniel R. Ferri of DiCello Levitt Gutzler LLC. The case is Roger Heater et al., v. General Motors LLC (case number 1:21-cv-00024) in the U.S. District Court for the Northern District of West Virginia.
VW Appeal In U.S. Supreme Court
Our firm is representing Hillsborough County, Florida in a case against VW regarding the emissions control “cheat devices” found to be installed on VW diesel vehicles to pass emissions standards test by the EPA. The case was initially found to preempted by the trial court under the Clean Air Act, but the Ninth Circuit reversed the trial court and reinstated the case. VW appealed to the United States Supreme Court. Automotive and product manufacturing groups and former environmental officials have filed amicus briefs asking the U.S. Supreme Court to bar our Hillsborough County client and Salt Lake City (a similar case filed) from suing Volkswagen for anti-tampering law violations stemming from its 2015 diesel emissions-cheating scandal, claiming a “chaotic regulatory free-for-all” will ensue if the justices don’t intervene.
In four amicus briefs, groups representing global automakers, product and equipment manufacturers, and several former officials with the U.S. Environmental Protection Agency, the California Air Resources Board and the U.S. Department of Justice threw their support behind Volkswagen Group of America Inc. and Audi of America LLC’s certiorari petition in a battle over who is authorized to regulate vehicle emissions.
Volkswagen and Audi petitioned the high court in January challenging a Ninth Circuit decision from June that revived the Salt Lake County, Utah, and our case for the Environmental Protection Commission of Hillsborough County, Florida, over post-sale updates made to vehicles’ emissions controls. Porsche Cars North America Inc. and auto parts maker Robert Bosch LLC, co-defendants in the underlying litigation, also signed on to the certiorari petition.
The Alliance for Automotive Innovation, the mega-group that represents automakers and suppliers of nearly all cars and light trucks sold in the U.S., and the National Automobile Dealers Association said in their amicus brief that the Ninth Circuit decision “threatens to transform a uniform regulatory regime governing post-sale updates to millions of vehicles every year into a confusing and chaotic free-for-all.” The Clean Air Act establishes that only the EPA and the California Air Resources Board — the two agencies that regulate emissions standards in the U.S. — can enforce new motor vehicle emissions standards. California has special authority to promulgate its own emission standards, which are tougher than the EPA’s, and other states may adopt standards identical to California’s.
These groups contend that by allowing the Utah and Florida counties to sue Volkswagen, the Ninth Circuit made it possible for every state and locality in the U.S. to regulate and penalize even routine, model-wide updates to vehicles in production and those that have already been sold, the auto groups said. They argue that the ruling jeopardizes automakers’ ability to make essential updates and upsets the post-sale regulatory regime that has existed for decades.
The Ninth Circuit panel agreed with U.S. District Judge Charles Breyer’s 2018 finding that the CAA preempted the counties’ claims based on the factory-installed software in new vehicles, but said the judge incorrectly held that the CAA preempted claims that the automakers tampered with the emissions-control devices after vehicles had been sold. So the panel revived the claims related to post-sale updates to cars.
Salt Lake County and Hillsborough County have countered in court documents that Volkswagen’s fears of regulatory turmoil are unfounded and overblown. Dee Miles, who heads up the Consumer Fraud & Commercial Litigation Section at Beasley Allen, one of the lawyers for Hillsborough County, said in a statement to Law360:
The piling on of amicus briefs by the auto industry doesn’t change the substantive legal issues decided by the Ninth Circuit, which we firmly believe was precisely correct. The VW ‘cheat devices’ were egregious corporate misconduct that caused exponential harm to the Tampa area and is a good example of why local governments should have their own particular laws and ordinances in protecting their local environment. We don’t anticipate certiorari being granted in these cases, but we are anxious to get to trial to present our case to a jury.
Peter K. Stris of Stris & Maher LLP, the counties’ appellate counsel, also said in a previous statement to Law360:
The Ninth Circuit correctly rejected Volkswagen’s unprecedented view that state and local governments have no role to play when it comes to auto emissions — even when companies blatantly cheat state and local emissions tampering rules like Volkswagen did here.
Paul M. Simmons of Dewsnup King Olsen Worel Havas Mortensen, a lawyer for Salt Lake County, has also said that he is confident that the Supreme Court will deny Volkswagen’s petition.
The counties’ lawsuits stem from the EPA’s investigation into Volkswagen’s 2015 admission that it rigged more than 500,000 “clean diesel” vehicles in the U.S. with emissions-cheating software known as defeat devices. Volkswagen has accused various other states and counties of “piggybacking” on the federal probe to demand penalties for conduct the EPA already redressed nationwide. But the counties have argued that in enacting the CAA, Congress never said it intended for only the EPA to regulate “model-wide” changes to in-use vehicles, according to court documents.
We will keep our readers posted on any new developments in this very important case.
Toyota Must Face Prius Drivers’ Braking Failure Claims
A Texas federal judge recently declined to dismiss a putative class action alleging Toyota “improperly designed and manufactured a part that led to braking failures in some Prius and hybrid vehicles.” On July 20, 2020, Toyota asked U.S. District Judge Amos L. Mazzant to dismiss the lawsuit that alleged Toyota Motor Corp. and affiliated Toyota companies sold faulty booster pump assemblies that cause braking system failure.
While Toyota argued the named plaintiffs did not support their claims of breach of express warranty, breach of implied warranty, fraud, unjust enrichment and a claim under the Magnuson-Moss Warranty Act, the judge disagreed, finding that the plaintiffs plausibly alleged sufficient facts to state claims for relief.
Judge Mazzant also denied a second motion by Toyota for the case to be dismissed or stayed in deference to the investigation by the National Highway Traffic Safety Administration’s (NHTSA) investigation of the same alleged failures at the heart of the lawsuit. But Judge Mazzant said Toyota didn’t show that the adjudication of claims requires the resolution of the NHTSA investigation before the court can proceed.
After the plaintiffs filed an amended complaint, Toyota argued in a motion to dismiss that “many of the 20 plaintiffs don’t allege that they had any brake issue and others don’t allege they brought their vehicle to a Toyota dealership for any brake repair.” The plaintiffs countered that their purchase of the vehicles is sufficient for them to file suit because the defect has existed since they purchased the vehicles. The plaintiffs contended:
- Simply because it hasn’t manifested in a catastrophic event in each plaintiff’s vehicle does not mean each plaintiff does not have a claim.
- No law requires plaintiffs to drive defective cars until they are injured or die as a result of a defect.
- Toyota has known that the break defect causes a sudden loss of braking power for years.
Specifically, the plaintiffs alleged Toyota was aware of the Prius braking problems through customer complaints, dealership repair records, warranty claims and an earlier investigation. In 2018 and 2019, the plaintiffs claim:
Toyota instituted ‘piecemeal’ recalls that involved a small number of vehicles, but since this brake defect affects hundreds of thousands of vehicles, Toyota is trying to avoid the expense of fixing them all…
Beasley Allen has a history of curing auto defects through class actions and continues to do the same as we presently have auto defect class action cases against Toyota, Honda, Subaru, Nissan, Hyundai / Kia, GM and Ford. Our lawyers are committed to consumer safety in our litigation efforts and welcome the opportunity to investigate auto defect claims for class or individual cases. If you have questions or would like to contact a lawyer about a potential claim, contact Tyner Helms or Warner Hornsby at 800-898-2034 or by email at [email protected] or [email protected].
Porsche Sued In Georgia For Damaged Vehicles And Violating Privacy Laws
A class action lawsuit has been filed against Porsche in Georgia, alleging that a software update caused significant and serious damage to the car’s batteries and caused dangerous malfunctions to its “infotainment” system.
The update, which was instigated either by Porsche or by Sirius XM radio, was aimed at the “infotainment” system in the vehicle – formally called the Porsche Communication Management system (PCM). The PCM allows drivers to use navigation tools, play music, connect devices via Bluetooth technology, and several other functions. However, the update has not behaved as planned and instead caused the PCM system to enter a continuous reboot cycle. This cycle caused damage to the PCM hard drive and strained the car battery, essentially draining it.
Drivers began noticing these issues last May when a Sirius XM update that Porsche sent or facilitated was installed. It’s alleged in the complaint the Porsche did not provide drivers with notice of the update or allow drivers to opt out.
The suit involves all Porsche models from 2010 with satellite radio and PCM system 3.0 or 3.1. While Porsche is aware of the problem and has engaged with dealers internally about potential solutions, Porsche has offered no compensation from the benefits they received while services were injured.
Simultaneously, in the complaint, Porsche is accused of violating CFAA regulations for accessing the vehicle computers to install the update without owner permission, which is a legally compensable violation. Porsche is allegedly barred from accessing the PCM module computers because of the connections those computers share with GPS and cellular devices owned by customers. The lawsuit claims damages in excess of $5,000,000.00.
TOXIC TORT LITIGATION
Dupont And Former Related Entities Agree To Set Aside $4 Billion To Cover PFAS Liabilities
DuPont and two spinoff entities have agreed to jointly commit $4 billion to cover future costs related to their manufacture of toxic Per- and Polyfluoroalkyl Substances (PFAS), which are also known as “forever chemicals.” The agreement was reached after years of finger-pointing among the three companies, DuPont de Nemours, Inc., Chemours, Co. and Corteva, Inc., as to which should foot the bill to pay for the growing environmental liabilities. PFAS are widespread in the environment and accumulate in humans after decades of use to make things slippery, nonstick, or waterproof.
E.I. DuPont & Co. has been embroiled in litigation for more than 20 years due to its manufacture of PFOA, which is the most well-known PFAS chemical. Before the changes in corporate ownership, the company estimated that it would cost between $300 million and $950 million to clean up areas contaminated with PFAS. In 2015, E.I. DuPont & Co. spun off Chemours, which agreed to accept DuPont’s growing environmental liabilities from the DuPont line of businesses. In 2017, DuPont’s parent company joined with Dow Chemical Co. to form DowDuPont, Inc., which was subsequently split into three companies just two years later: Dow, Corteva, and DuPont de Nemours. As the number of PFAS lawsuits increased nationwide, Chemours sued DuPont in 2019 for misrepresenting the extent of its estimated PFAS liabilities.
The $4 billion settlement ends the finger-pointing as each company agreed to pay for a percentage of future PFAS liabilities incurred by the companies. DuPont and Corteva agreed to split certain types of “qualified expenses” up to $2 billion that may occur over the next twenty years. Chemours agreed to pay for the remaining $2 billion, which will fund any liabilities incurred prior to its spinoff in 2015.
The parties also reached an $83 million settlement to resolve nearly 100 personal injury lawsuits related to PFOA exposure filed in the Southern District of Ohio MDL. This settlement comes just four years after DuPont and Chemours agreed to pay $671 million to resolve thousands of similar lawsuits alleging personal injuries from consuming water tainted with PFOA discharged from DuPont’s Washington Works plant in West Virginia.
The previous issue of the Report mentioned that PFAS litigation is expected to be a hot topic over the next several years as the public becomes aware of the extent of the contamination. Indeed, one analyst estimated that industry costs could range between $25 billion and $40 billion. With state governments taking action and federal action likely in the future, chemical giants like DuPont and 3M Company, Inc. are finally being held accountable for polluting our nation’s drinking water and lands.
Beasley Allen lawyers in our Toxic Torts Section have been involved in PFAS litigation for five years, and they continue to investigate cases involving these chemicals. Contact Rhon Jones, Rick Stratton, or Ryan Kral if you have any questions about this topic at 800-898-2034 or by email at [email protected], [email protected], or [email protected].
Sources: Reuters and The National Law Review
More Water Systems Sue For PFAS Contamination
Two water systems in the northeast have sued chemical manufacturers for contaminating their drinking with toxic chemicals, which have been linked with numerous adverse health effects. PFAS are commonly referred to as “forever chemicals” because they are highly persistent in the human body and the environment, meaning they do not break down and they can accumulate over time.
The Pennsylvania-American Water Co. (PAWC) is the latest water utility to sue chemical giants 3M Company, DuPont de Nemours, Inc., The Chemours Co., and other manufacturers of Aqueous Film Forming Foam (AFFF). PAWC, which owns 67 public water systems and over 100 groundwater wells, supplies drinking water and other services to approximately 2.4 million residents. It seeks cleanup costs to remove the chemicals and fund the construction and operation of an advanced filtration system. Notably, PAWC also accuses DuPont of illegally spinning its PFAS business to Chemours to dodge growing liabilities despite knowing that the new entity would not be able to handle the increasing costs.
Suez Water New Jersey also recently sued DuPont and Chemours for PFAS contamination and is seeking similar relief. It provides drinking water for more than 1.5 million customers in the state. The lawsuit comes after New Jersey, along with other states, developed and finalized drinking water standards for the chemicals. These chemicals have been the target of litigation throughout the country as utilities face pressure and regulation to remove the chemicals from drinking water. Utilities in nearly every state have sued chemical manufacturers to fund the purchase, installation, and operation of costly filtration systems.
In June 2020, New Jersey passed legislation establishing maximum contaminant levels for two common PFAS chemicals, PFOA and PFOS. Utilities across the state are now required to begin testing for these contaminants in 2021. PFAS had already been identified in Suez water, and the New Jersey Department of Environmental Protection required Suez to come into compliance with the new standards by the first quarter of 2021. As statewide testing continues, we can expect to find a large number of utilities facing a similar problem of whether to pursue litigation against those responsible for the contamination.
New Jersey is not the only state to require statewide testing and regulation as growing concern continues to attract public attention. The incoming Biden administration has indicated it will pay close attention to PFAS contamination, resulting in more states shifting their attention to these chemicals. We expect PFAS to be a significant environmental issue and driver of litigation this year.
Beasley Allen represents water utilities that face the costly problem of removing PFAS from drinking water. If you have any questions about this subject, contact Rhon Jones, Rick Stratton, or Ryan Kral, lawyers in our firm’s Toxic Torts Section, at 800-898-2034 or by email at [email protected], [email protected], or [email protected].
The ONGOING Roundup Litigation
Update On The Roundup Litigation
On February 3rd, Bayer AG announced a new settlement to resolve future Roundup Cancer claims for up to $2 billion. The settlement exclusively covers consumers who have yet to file suit. You will recall that the initial plan for handling future litigation was rejected by Judge Vince Chhabria, forcing Bayer back to the drawing board. Whether the new $2 billion settlement would be enough to cover future claims is still an open question, many experts say. It very well may fail to win over Judge Chhabria’s approval once again.
The newly inked agreement will purportedly hold a fund to compensate qualified consumers in a four-year program. As part of the arrangement, Monsanto will seek permission from the US Environmental Protection Agency (EPA) to add public information about the weedkiller and non-Hodgkin’s lymphoma to its product labels and other scientific information about glyphosate, the active cancer-causing ingredient in Roundup.
Despite Bayer’s settlement announcement last summer—a $9.6 billion deal to settle the bulk of approximately 125,000 claims that Roundup causes non-Hodgkin’s lymphoma—parties continue to report that numerous cases pending in the federal court system are still not subject to any signed agreement. We know Beasley Allen lawyers have not agreed to a settlement for the 3,500 clients we represent.
The proposed settlement plan for future Roundup litigation is separate from the settlement agreement made with tens of thousands of plaintiffs who have already filed suits for claims alleging exposure to Roundup and other Monsanto glyphosate-based weed killers. Negotiations are still ongoing for numerous firms, including Beasley Allen, and dozens of Roundup cases continue to move toward trial into 2021 and beyond.
Roundup was initially placed on the market by Monsanto in the mid-1970s, but usage drastically increased 20 years later when “Roundup Ready” genetically modified plants and altered to resist the herbicide were introduced to the public. While this industrial innovation allowed commercial growers to kill weeds without causing harm to their crops, it came at a high cost to public health, particularly to farmers and landscapers.
Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein LLP, lead counsel for the potential plaintiffs, in a statement, had this to say:
Today’s settlement provides a legal remedy for those who have been exposed to Roundup and lack the ability to hire a lawyer or access to the basic diagnostic services necessary to know if they have NHL. Many of those exposed to Roundup, especially agricultural workers whose first language may not be English, may be unaware of the issues surrounding Monsanto’s Roundup.
Beasley Allen is among those firms still representing clients who haven’t settled and are moving toward trials, in federal and state courts, on behalf of clients whose cancer was caused by Roundup herbicides. We have not reached a settlement, and our firm will continue to fight for fair and reasonable results for our clients in their cases, either through trial or settlement. For more information, contact one of the members of the Beasley Allen Roundup Litigation Team.
Beasley Allen Roundup Litigation Team
Beasley Allen lawyers are currently representing 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. They are busy getting cases ready for trial. Our Roundup Litigation Team is willing to answer any questions you might have. For more information, contact one of the members of the Roundup Litigation Team. Rhon Jones, who heads up our Toxic Torts Section, is now in charge of this litigation. Other members of the team are Danielle Ingram and William Sutton. They can be contacted as follows:
Class Action Litigation
U.S. Supreme Court Declines To Resolve Circuit Split Over FCA Liability Requirement
We have previously reported on two cases involving the False Claims Act (whistleblower / qui tam cases) as to what courts are requiring from plaintiffs to satisfy what is considered “false” under the Act. We had concluded and presented that there was a split amongst the federal circuit courts. Well, in late February, the United States Supreme Court rejected two petitions for writs of certiorari from the Third and Eleventh Circuit Courts of Appeals concerning the meaning of “false” under the False Claims Act (FCA).
In rejecting certiorari, the Supreme Court declined to resolve a split among circuit courts as to whether objectively verifiable facts are required to establish a physician’s medical judgments are “false” within the meaning of the FCA. Whether a demonstration of objective falsehood is required has generated much debate about whether medical judgments can be “false” such that healthcare providers can be liable under the FCA when performing, and billing for, procedures that are medically unnecessary.
The Third Circuit in United States ex rel. Druding v. Care Alternatives held that evidence of objective falsehood was not required to prove FCA liability. The Third Circuit explained that a doctor’s medical judgment concerning the necessity of a procedure could be considered “false” if another medical expert disputes the judgment. As such, the Third Circuit found the doctor’s certifications of medical necessity to the government for payment were false under the FCA. Notably, Ninth Circuit adopted similar reasoning Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr., Inc., but that decision did not reach the Supreme Court.
On the other hand, the Eleventh Circuit in United States v. AseraCare, Inc. held that a physician’s medical judgment is not false if their medical judgment does not reflect an objective falsehood and that a “mere difference of reasonable opinion” among doctors is insufficient to prove objectively false billing. The Eleventh Circuit explained that the FCA requires “facts and circumstances” to prove objective falsehood, such as evidence that the physician did not review medical records, did not subjectively believe their medical judgment, or that no reasonable physician could have reached the same medical judgment.
Beasley Allen lawyers handling whistleblower litigation will continue to monitor the developments of this issue in cases interpreting the False Claims Act. Further, Beasley Allen will continue to vigorously investigate FCA claims involving fraud by healthcare providers billing federal and state governments for medically unnecessary procedures. We encourage anyone who knows of fraudulent activities to step forward and allow the FCA to protect you as a whistleblower, rectify the wrong and return taxpayer dollars to the federal government.
Druding, Bain, Coleman and O’Brien are represented by Ross Begelman and Marc M. Orlow of Begelman & Orlow PC. The government and the relators in the RollinsNelson case did not weigh in on the petitions. The cases are Care Alternatives v. U.S. et al., case number 20-371, and RollinsNelson LTC Corp. v. U.S. ex rel. Winters (case number 20-805) in the Supreme Court of the United States.
Eleventh Circuit Rejects “Administrative Feasibility” Requirement For Class Certification
The Eleventh Circuit has clarified its previous cases and rejected an emerging trend among other circuits in cases dealing with administrative feasibility. The appeals court held that it is not a requirement for class certification.
The case, Cherry v. Dometic Corp., raised claims alleging defects in gas-powered refrigerators used in recreational vehicles. At the class certification stage, the eighteen named Plaintiffs sought to certify a class of all persons in selected states who purchased certain models of the refrigerators since 1997. Dometic argued Plaintiffs failed to show the class was “ascertainable” because the Plaintiffs did not establish the administrative feasibility for identifying absent class members, and the district court agreed.
Reversing course from its earlier unpublished opinions, the Eleventh Circuit clarified in a published opinion that administrative feasibility is not an element of the ascertainability standard and therefore is not a prerequisite to class certification. Specifically, Chief Judge Pryor held that although ascertainability was an “implied prerequisite” of Rule 23(a)’s text, it did not contain an administrative feasibility requirement.
The opinion clarifies the Eleventh Circuit traditionally “collapsed class definition and ascertainability into one inquiry,” requiring a court to determine whether a proposed class is “adequately defined and clearly ascertainable before determining whether the elements of Rule 23 are satisfied. Accordingly, the Court limited the ascertainability inquiry to whether the class was adequately defined such that its membership is “capable of determination” without regard for how feasible it might be to make the determination. “[N]either foreknowledge of a method of identification nor confirmation of its manageability says anything about the qualifications of the putative class representatives, the practicability of joinder of all members, or the existence of common questions of law or fact.”
Other circuits have split over the questions of the role of administrative feasibility in assessing class certification. The First, Third, and Fourth Circuits apply a heightened standard requiring proof of a “manageable process that does not require much, if any, individual factual inquiry,” as stated by the Third Circuit in Carrera v. Bayer Corp. in 2013. The Eleventh Circuit now joins the Second, Sixth, Seventh, Eighth, and Ninth Circuits in rejecting this approach.
The Eleventh Circuit concluded that consideration of administrative feasibility was only appropriate in Rule 23(b) classes as part of the manageability criterion of Rule 23(b)(3)(D), but it said that because the superiority prong of Rule 23(b)(3) calls for a “balancing test,” comparing the class treatment to alternate methods of trying the claims, it does not allow courts to make administrative feasibility a requirement. Accordingly, the Court firmly established, “[a]dministrative feasibility alone will rarely, if ever, be dispositive.”
This is a great development in the class action area of the law. Beasley Allen lawyers look forward to pursuing our class action cases in the future, embracing this new and positive development. If you need more information, contact Rachel Boyd at 800-898-2034 or by email at [email protected].
Sources: Law360.com and https://www.jdsupra.com/legalnews/eleventh-circuit-reverses-course-on-5320559/
Update On The Fisher-Price Rock ‘N Play Litigation
Demet Basar, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, is lead counsel in the multidistrict litigation known as In re Fisher-Price Rock ‘n Play Marketing, Sales Practices, and Products Liability Litigation. On February 8, Plaintiffs filed their motion for class certification to enable them to jointly prosecute their claims against Fisher-Price and its parent Mattel arising from their design, manufacture, marketing and sale of the Fisher-Price Rock ‘n Play Sleeper. Plaintiffs allege the Rock ‘n Play Sleeper, an overnight sleeper for newborns and infants, is an unsafe product that exposes infants to the risk of death by asphyxiation and of developing flat head (plagiocephaly) and twisted neck (torticollis) syndromes.
In April 2019, Fisher-Price recalled all 4.7 million Rock ‘n Play Sleepers it had sold since October 2009 and admitted it was aware of the 32 infant deaths. In addition to this multi-district litigation, Fisher-Price and Mattel are also Defendants in more than 35 wrongful death suits brought by parents of infants who tragically died in the Rock ‘n Play Sleeper.
The Consumer Protection Safety Commission (CPSC) has now caused manufacturers of all infant sleep products with inclined seatbacks of more than 10 degrees to recall their products as unsafe for infant sleep. The U.S. House of Representatives also passed the Safe Sleep for Babies Act of 2019 (H.R. 3172), banning sleepers as hazardous products, noting the inclined nature of these products goes directly against the guidance of pediatricians and medical experts. The bill is currently before the Senate Committee on Commerce, Science and Transportation. The New York State Assembly enacted similar legislation.
In the motion, Plaintiffs seek to certify statewide and nationwide classes of purchasers for damages claims and a nationwide class of purchasers and owners (many new parents were given the products as gifts) for injunctive relief to improve the recall. The recall has been so ineffective that the Senate Committee on Commerce, Science and Transportation specifically criticized in a report it issued about ineffective recalls, likening it to an incentive program to bring more business to Fisher-Price rather than a true remedy. The overwhelming majority of consumers are entitled to a voucher to purchase a Fisher-Price product and only those who purchased it during the six months preceding the recall and have a receipt are entitled to a refund. Participation in the recall has been anemic at best.
With twenty-one Plaintiffs hailing from 17 states and knowing the reluctance of federal courts to certify multi-state and nationwide damages classes, we, on behalf of the purchaser Plaintiffs moved to certify 36 different statewide classes under Federal Rule of Civil Procedure 23(b)(3) for various state law consumer protection, implied warranty, negligence and unjust enrichment claims. Because some of the elements of certain state laws are suited for class treatment while others are not, purchaser Plaintiffs from certain states moved to certify some of the asserted claims, but not others.
All purchaser Plaintiffs moved to certify a nationwide class of purchasers on liability issues under Rule 23(c)(4).
An unusual aspect of this case is that to avoid discovery on the merits of Plaintiffs’ claims, the Defendants agreed that certain elements of Plaintiffs’ claims relating to their own conduct present common issues of law and fact and thus satisfy the commonality requirement of Rule 23(a).
Defendants conceded that the key issue of whether the marketing of the Sleeper was false or misleading, their state of mind, and whether the Rock ‘n Play Sleeper is defectively designed, present common issues of fact and law for purposes of class certification.
The only question the court will need to consider when ruling on the certification of the purchaser classes is whether defendants’ false and misleading statements would be material to reasonable consumers when deciding to purchase the product and whether damages can be measured on a classwide basis. Given that the word “sleeper” is in the very name of the product and Fisher-Price’s sale of it as safe for infant sleep, at the same or similar prices, plaintiffs are optimistic that proposed damages classes will be certified.
As important as it is to compensate consumers who unknowingly purchased an undeniably unsafe product, a crucial component of the relief plaintiffs seek is an injunction directing defendants to publicize the recall and improve its terms. Nearly two years after the recall, the Sleeper is still being used by consumers, including daycare centers, and there is even a black market for the product. Plaintiffs are also optimistic that the proposed injunctive relief class will be certified.
Plaintiffs and the proposed classes are represented by lead counsel Demet Basar, Dee Miles, Lydia Keaney Reynolds, Leslie Pescia, and James Eubank, all from Beasley Allen.
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 that is needed by the class, contact Demet Basar at 800-898-2034 or by email at [email protected].
Recent Settlements Of Note
There have been a number of significant settlements in class action litigation recently. We will mention three of the more interesting ones below.
CenturyLink Agrees To A $55 Million Settlement In Investor Class Suit
A certified class of CenturyLink investors has asked a Minnesota federal judge to approve a $55 million settlement to resolve and end their lawsuit claiming the telecom company hid its practice of overbilling customers.
The State of Oregon and investor Fernando Alberto Vildosola, as representatives for the investor class, told U.S. Magistrate Judge Katherine M. Menendez on Feb. 1 that the amount CenturyLink had agreed to pay was an “excellent result” after eight months of discussion and two unsuccessful mediation sessions. The investor class said in their motion for preliminary approval of the proposed settlement:
The settlement before the court is the result of plaintiffs’ vigorous prosecution of this action over the past three-and-a-half years, and represents an outstanding result for the class in light of the substantial costs and risks to the class’s recovery from continued litigation.
According to the class, the settlement represented a “substantial portion of investors’ realistically recoverable damages” and protects the investors from facing the “significant risks” and costs of continued litigation against the telecom giant.
The settlement total, according to the class, was “all the more impressive” given the lack of inquiry or investigation from the U.S. Securities and Exchange Commission or any other part of the federal government into CenturyLink’s alleged billing misconduct.
The class consists of individual investors and fund trustees, along with pension and retirement funds — including the Oregon Public Employee Retirement Fund, which the State of Oregon represents in the case — that had made CenturyLink investments between March 1, 2013, to July 12, 2017.
The settlement motion marks the near end to investor lawsuits against CenturyLink that alleged the company and its executives covered up its shady sales tactics, known as “cramming” — a practice in which sales agents working to meet impossible quotas tacked unauthorized services and fees onto customers’ bills. This behavior had gone on between 2013 and 2017, according to the complaint filed by the class in 2017.
CenturyLink had assured investors that its methods for meeting sales targets were on the up and up, all while artificially inflating CenturyLink’s stock price, the class claimed. The company’s alleged misconduct was revealed in media reports of a whistleblower suit filed by a former employee in mid-2017, followed by the revelation that CenturyLink had been investigated by both the Minnesota and Arizona Attorneys General.
The class is represented by Bernstein Litowitz Berger & Grossmann LLP, Stoll Stoll Berne Lokting & Shlachter PC and Lockridge Grindal Nauen PLLP. The case is Craig et al. v. CenturyLink Inc. et al. (case number 0:18-cv-00296) in the U.S. District Court for the District of Minnesota.
Judge Gives Final Approval To $79 Million Settlement In Geico Tax Case
U.S. District Judge William P. Dimitrouleas has granted final approval to a settlement worth approximately $79 million over claims that Geico shorted drivers by failing to pay sales tax and transfer fees on totaled leased vehicles. The settlement approval ends an appeal by the insurer of an earlier adverse judgment.
There were two separate class actions resolved by the settlement. The first class was brought by plaintiff Kerry Roth. The district court had also certified a class in the second case, which was led by named plaintiffs Marianne Joffe, Debbe Schertzer and Stephanie Rodriguez.
Judge Dimitrouleas had granted preliminary approval to the settlement agreement on Aug. 28. With the settlement class having expanded since then and the parties reporting no objections from the more than 17,000 class members, the judge’s decision required little deliberation. Judge Dimitrouleaus said: “I don’t know how I cannot approve something that is giving the plaintiffs more money than I previously approved.” So it was no surprise that the hearing lasted just a few minutes.
Under the terms of the agreement, Geico will pay class members unpaid actual cash value sales tax, unpaid title and tag transfer fees up to $79.85 and prejudgment interest. The insurer also agreed to change its business practices and will include 6% sales tax plus applicable local surtaxes of the adjusted vehicle value, title transfer fees of at least $75.25 and tag transfer fees of $4.60 in future total-loss claim payments to policyholders with leased vehicles insured in Florida.
Plaintiffs said in their approval motion that they calculated the monetary value for the sales tax, title and tag transfer fees and prejudgment interest at about $79 million, including about $31.31 million in cash available to claimants and $40.25 million in prospective relief as a result of Geico’s changes in practices over a five-year period, as well as $8.7 million in attorneys’ fees and $350,000 in costs.
The value of the average claim was said to be more than $1,700 and noted that Geico’s practice changes, which took effect Aug. 1, had already resulted in about $3.4 million in tax and fee payments to the company’s insureds.
The plaintiffs also noted that the settlement provides a “limited and narrowly tailored” release of claims, preserving all claims based on actual cash value or property damage that class members might bring except for pursuit of the same fees and taxes at issue in this litigation.
The Roth class action against Geico General Insurance Co. involved being forced to pay sales taxes and title fees on a totaled leased vehicle. Breach of contract and declaratory relief and damages for Geico customers who were forced to pay sales taxes and title fees were involved. The Joffe case covered a different time period and included other Geico entities as defendants.
In June 2018, Judge Dimitrouleas ruled for the drivers finding that Geico was responsible for paying sales tax and transfer fees on leased vehicles when they were totaled and that contracts between the company and drivers don’t distinguish whether cars are leased or owned. The judge ruled the drivers were correct in asserting that sales tax and title transfer fees were mandatory and “necessarily included in the replacement costs of a total loss vehicle,” as specified in the physical damage section of the lessee contract.
Roth and the class are represented by Edmund Normand and Jacob Phillips of Normand PLLC, Andrew Lampros and Christopher B. Hall of Hall & Lampros LLP, Christopher J. Lynch of Christopher J. Lynch PA, Bradley W. Pratt of Pratt Clay LLC and Tracy L. Markham of Southern Atlantic Law Group PLLC. The cases are Roth v. Geico General Insurance Co. et al. (case number 0:16-cv-62942) and Joffe et al. v. Geico Indemnity Co. et al. (case number 0:18-cv-61361) in U.S. District Court for the Southern District of Florida.
Raytheon Settles ERISA Mortality Rate Suit For $59 Million
Raytheon Co. has agreed to a $59.17 million settlement in a proposed ERISA class action accusing the company of using outdated mortality rates to calculate pensions. Raytheon retiree Johnny Cruz asked the court to approve the settlement, which he called an “excellent” way to wrap up the Employee Retirement Income Security Act suit against the defense contractor on behalf of thousands of Raytheon retirees.
After attorney fees and legal expenses are deducted from the $59.17 million settlement total, the money will go to roughly 10,000 Raytheon retirees who receive their pensions in a form that transfers payments to their spouses or dependents when they die. If the settlement is approved, Raytheon’s pension plan “will be amended, and the benefits of participants or beneficiaries who were injured … will receive an increase to their future benefit payments.” “It will increase class members’ monthly pension benefits by 40% of their damages,” less attorney fees, costs and expenses.
Damage calculations will be made using methodology laid out by an actuary retained by Cruz, the memorandum states. Cruz sued Raytheon and its pension plan managers in 2019, arguing that they violated ERISA by improperly calculating certain retirees’ pensions. He sued on behalf of over 10,000 Raytheon retirees who received their pensions in the form of a joint and survivor annuity, or JSA, or a pre-retirement survivor annuity, or PSA.
ERISA requires these pension types to be paid out at a rate that is actuarially equivalent to what single retirees — who typically select a benefit package called a single-life annuity or SLA — receive. Cruz’s lawsuit accused Raytheon of flouting that requirement by using outdated data to calculate JSA and PSA pensions. Raytheon asked the court to toss the litigation in September 2019. A number of companies have been hit with similar suits since December 2018, including MetLife and American Airlines.
Raytheon Co. merged with United Technologies in 2020 and is now Raytheon Technologies Corp., though Raytheon Co. is listed as the defendant in this litigation.
Cruz and the proposed class are represented by Douglas P. Needham, Robert A. Izard and Mark P. Kindall of Izard Kindall & Raabe LLP and Gregory Y. Porter, Mark G. Boyko and Alexandra L. Serber of Bailey & Glasser LLP. The case is Cruz v. Raytheon Co. et al. (case number 1:19-cv-11425) in the U.S. District Court of Massachusetts.
PHARMACY BENEFITS MANAGER (PBM) LITIGATION
Major PBMs And Drug Maker Can’t Escape Lawsuit Over EpiPen
Drug manufacturers and Pharmacy Benefit Managers have been accused in federal court of paying bribes, accepting kickbacks, and conspiring to engage in anti-competitive practices that hike up the prices of EpiPen injections. The case is pending in Minnesota, and the judge overseeing the case has recently ruled that the class action claims will move forward.
The lawsuit involves drug manufacturer Mylan and Pharmacy Benefit Managers (“PBMs”) Express Scripts, Optum, and CVS Caremark. The lawsuit alleges that Mylan paid bribes and kickbacks to this group of major PBMs. Mylan allegedly paid higher rebates to each PBM in exchange for favorable formulary placement and to ensure that the PBMs would not police its price increases for the emergency allergy treatment injection, EpiPen. The case also includes claims that the drug maker and PBMs engaged in a conspiracy of anticompetitive practices that increased the drug price.
The claims were filed in federal court by drug distributor Plaintiffs Rochester Drug Cooperative Inc. and Dakota Drug Inc., alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Sherman Act. Distributor Rochester Drug brought this suit in March 2020 on behalf of itself and a proposed class of other direct purchasers of EpiPen products. Distributor Dakota Drug filed a similar suit in June 2020 against the same Defendants; therefore, the two cases were consolidated in August of 2020 in the U.S. District Court for the District of Minnesota.
The Mylan Defendants and the three PBM Defendants attempted to have the claims against them dismissed, arguing that they committed no unlawful acts outside their normal business practices and that there is no showing of any violation of RICO or the Sherman Act. Their arguments included, in part, that the distributor Plaintiffs had not plausibly alleged a “common purpose” because the Defendants were simply pursuing their own “divergent goals,” there was no proof of anticompetitive conduct, and the claims were barred as untimely.
U.S. District Judge, Eric Tostrud, disagreed with the Defendants’ arguments, ruling that the complaint “contains a fairly clear description of why Mylan and the PBM defendants all had interests in keeping EpiPen prices inflated.” The Court ruled that the alleged conduct of Mylan paying higher rebates to the PBMs in exchange for preferred formulary placement “unsurprisingly benefited Mylan, which got to charge more for its products. But the PBM defendants stood to benefit too because the amount they received in rebates and other fees was tied to the EpiPen’s list price, and they did not share the wealth with their clients the way they used to.”
The Court further ruled that the alleged payments of kickbacks to presumably keep competitors off the market were enough to support the Plaintiffs’ claims of anticompetitive conduct. The Court also ruled the statute of limitations did not preclude the Plaintiffs’ claims from moving forward. This ruling from Judge Tostrud was a huge victory for the Plaintiffs, and in fact, the only win for the Defendants was that the PBMs were able to release their corporate owners from the lawsuit.
Our firm handles a great deal of healthcare litigation. If you have any questions about our 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 at [email protected], [email protected], or [email protected].
THE CONSUMER CORNER
What The $2.7 Billion Proposed Blue Cross Settlement Could Mean For Alabama
As we have previously reported, U.S. District Judge David Proctor, the federal judge in Alabama, approved a plan late last year to settle part of a lawsuit against several Blue Cross Blue Shield affiliates for $2.7 billion. It was alleged that Blue Cross hurt customers with rules limiting competition across state lines.
But the price tag of the settlement might not be the most important part of the deal for Alabamians. The settlement would also eliminate limits on competition between different Blue Cross affiliates, potentially ushering in more competition and driving down prices for insurance customers. Blue Cross Blue Shield of Alabama controls more than 85 percent of the health insurance market in Alabama, the largest share of any state, according to the American Medical Association.
If approved after a hearing scheduled for October, the $2.7 billion partial settlement will be one of the largest class action awards in history. It will likely be split among millions of individuals who purchased Blue Cross policies and those insured through work.
The settlement, if approved, will change the way the affiliates do business. The Blue Cross Blue Shield Association has rules that limit how much competition can occur across state lines. The settlement would lift those caps. According to the settlement:
The business practice changes provide significant relief to the Class in addition to the monetary benefit, providing for opportunities for more competition in the market for health insurance and allowing the potential for Class Members to achieve greater consumer choice, better product availability, and increased innovation.
Another portion of the lawsuit concerns providers who have sued Blue Cross. Those claims are still pending and Dee Miles in our firm is part of the leadership on that portion of the case. That case mainly focuses on the unfair market conditions caused by the alleged monopolistic behavior of “The Blues,” that hospitals and physicians face in negotiating reimbursement rates. This portion of the case involves substantially more in damages that must be addressed by the parties and the court.
The purpose of both the subscriber litigation and the provider litigation is to increase competition among the various Blue Cross entities through a number of structural changes in the Blue Cross Blue Shield Association rules. The current Subscriber settlement seeks to achieve this goal.
In addition to opening the door to more competition from other Blue Cross affiliates, the plan changes rules about how many companies can offer insurance coverage to large companies with employees in several states.
The proposed settlement was approved by Judge Proctor last November but won’t be finalized until October 2021. The litigation was first filed in 2012 and involves 36 Blue Cross Blue Shield affiliates. According to the proposed settlement:
[Plaintiffs] obtained and reviewed over 75 million pages of documents and over 100 terabytes of data, took over 100 depositions, and worked with experts on liability and damages analyses.
Experts who testified in the lawsuit said the lack of competition could have cost consumers in Alabama between $18 billion and $36 billion. Blue Cross Blue Shield Association has denied any wrongdoing.
The competitive changes the current settlement seeks won’t happen overnight. Newcomers to the insurance market in Alabama will need to create provider networks and infrastructure in the state. That may take many years just for this subscriber portion of the settlement. However, the Provider case could also settle, and that would likely expedite the current market conditions needed to truly impact the health insurance market in Alabama in a positive manner. We will keep our readers posted – so stay tuned!
DeWalt Kerosene Heaters Recalled Due To Risk Of Fire And Carbon Monoxide Poisoning
Enerco Group has recalled about 4,500 DeWalt cordless kerosene heaters because the heaters can restart unexpectedly when in standby mode, posing a risk for a fire or carbon monoxide poisoning, or both. Specifically, while in standby mode, if the surrounding temperature drops below the temperature at which the thermostat on the machine is set, the heater can automatically restart. Tools that produce heat and carbon monoxide are inherently dangerous if they are placed near flammable materials or if there is inadequate ventilation.
Enerco Group, which makes branded kerosene heaters under the DeWalt name, has received one report of the heater restarting unexpectedly but no reports of property damage or injury, according to the release from the Consumer Product Safety Commission.
The heater recall applies to two models: the DeWalt DXH90CFAK and the DeWalt DXH90CFAKM. Consumer Reports does not test kerosene heaters and has not reviewed either of these tools. Stop using the recalled heater immediately and contact Enerco for a free replacement corded heater. Contact information: Call Enerco Group at 800-964-4328, or go to Enerco Group’s website at enercogroupinc.com, and click on support, then choose recalls from the drop-down menu.
CPSC Warns Consumer Not To Use Loose 18650 Lithium-Ion Battery Cells
The U.S. Consumer Product Safety Commission (CSPC), in January of this year, warned consumers not to purchase or use loose 18650 lithium-ion battery cells. These cells are manufactured as industrial component parts of battery packs and are not intended for individual sale to consumers. It has become common recently for these cells to be separated, rewrapped, and sold as new consumer batteries. These sales generally happen over the internet.
Rechargeable lithium cells without proper protection that are not installed in a device or as part of an integral battery (“loose cells”) are potentially hazardous to consumers when handled, transported, stored, charged, or used to power devices. Specifically, these battery cells may have exposed metal positive and negative terminals that can short-circuit when they come into contact with metal objects, such as keys or loose change in a pocket. Once shorted, loose cells can overheat and experience thermal runaway, igniting the cell’s internal materials and forcibly expelling burning contents, resulting in fires, explosions, serious injuries and even death.
In addition, thermal runaway can occur in loose cells if consumers use them in inappropriate chargers that allow for charging beyond the cell’s specifications. Unfortunately, a growing number of small consumer products, such as vaping devices, personal fans, headlamps, and some toys, are using loose 18650s as a power source. The CPSC has announced that they are currently working with e-commerce sites, including eBay, to remove listings selling these loose cells.
The CPSC has strongly recommended that loose 18650 lithium-ion cells that are separated from battery packs not be used because of their dangerous nature.
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
Our website (BeasleyAllen.com) provides all the latest information on all of the current case activity at Beasley Allen. The list can be found at the bottom of our homepage, top navigation, or our Practices page of the website (BeasleyAllen.com/practices/)
The following are some of the current case activity listing:
The cases in the categories listed above are handled by lawyers in the appropriate section at Beasley Allen. Those sections are: Personal Injury & Products Liability headed by Cole Portis; Mass Torts, headed by Andy Birchfield; Toxic Torts, headed by Rhon Jones and Consumer Fraud & Commercial Litigation, headed by Dee Miles.
Resources to Help Your Law Practice
Beasley Allen has been recognized as one of the country’s leading law firms involved in complex civil litigation representing only claimants. 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 who may be looking to work with Beasley Allen or simply are seeking 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.
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.
Nursing Home Abuse & Neglect Brochure
Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high rates of underreporting. 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.
Beasley Allen also 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.
The Jere Beasley Report
We also consider The Jere Beasley Report to be a service to lawyers as well as 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/publishing/.
PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS
Trial Tips From Beasley Allen Lawyers
Matt Griffith, a lawyer in our firm’s Mobile office, supplies some trial tips for our readers this month. Matt starts by relaying an incident that recently got national attention, and it taught a valuable lesson. “I’m here live . . . . I’m not a cat!” Most of us have seen the Zoom hearing that went viral when a lawyer inadvertently used a filter that made him look like a cat. The judge and the other lawyers were courteous and professional, helping the lawyer remove the filter, but the fact is situations like this can be avoided. Let’s see what Matt has for us.
The COVID pandemic has fundamentally changed the practice of law. Almost overnight, depositions, hearings, and even trials began to occur almost exclusively over digital mediums like Zoom. While we all hope things can return to normal soon, the truth is remote depositions and court proceedings may be here to stay. With that in mind, the following are some tips that should help any remote deposition or hearing go smoothly.
As with any in-person proceeding, it is important to be prepared before the start of any remote session. First, attorneys and witnesses should always check the strength of their internet connection. There is perhaps nothing more distracting to a listener during a remote proceeding than when a speaker’s connection is so poor that it comes in and out or is otherwise garbled. More times than not, this is due to a poor or weak internet connection. There are many secure and free Internet speed tests available that will allow practitioners to ensure they have adequate bandwidth. Another quick and easy system check that should be performed before any remote proceeding is a camera and microphone test. Nearly every remote platform, including Zoom, allows users to test their equipment before the session begins. Doing so enables any participant to ensure their camera is working and projecting the desired image – and that no filters are unintentionally turned on! Often a particular participant may experience feedback or echo while speaking. Not only is this distracting, but it makes it nearly impossible for all others to hear what is being said. Usually, this problem is solved by wearing headphones or earbuds instead of relying on the computer speakers.
Virtual proceedings also present unique variables. When the lawyers, witnesses, and the judge are all in the same room, the lighting and ambiance are the same for everyone. Because this is not the case in virtual proceedings, it is important to consider things such as lighting, background noise, and anything else that may be distracting to the listener. Even the best argument may not prevail if the listener is distracted by poor lighting or people, or even pets moving in the background. A good tip is to make sure the camera is positioned at an ideal height, eye level, or slightly above. If using a built-in laptop camera, an easy way of achieving the right height is by placing the laptop on top of a book or two. Lighting is also a factor that most of us do not typically think about in a normal deposition or hearing. Ideally, the speaker should be in a well-lit room, preferably facing a light source such as a window or lamp. Locations with lots of background noise should be avoided, such as an office close to a loud construction zone. Having a practice session – or two or three – prior to a hearing is never a bad idea.
It is also important to consider what appears in the frame beside the speaker. Because of the COVID pandemic, many work from home, meaning the occasional interruption by a pet, child, or someone else may be unavoidable during a virtual session. What is avoidable, however, is the appearance of a cluttered workspace or background. Just as when we are in court, a lawyer or witness should do all in their power to not distract the listening audience. This includes making sure the area appearing on camera is neat and tidy and that nothing in the background is distracting (such as a television or a busy family room). Since many of us may be in our homes when attending a virtual proceeding, a cup of coffee or glass of water will be in near reach. It is important to remember that we should only drink or eat while on camera as we would if we were sitting in a conference room or a courtroom.
Just because a deposition or proceeding occurs virtually, it is important to remember that body language and appearance are still vitally important. In fact, some say that personal appearance, body language, and facial expressions are more important during a virtual session because there is so much more direct eye contact. Whether questioning a witness, addressing a judge, or simply observing, every participant has a full-time close view of the other participants. It is very important to maintain positive body language. Much has been written, both in this newsletter and elsewhere, about the power of body language, but a few things are important to remember in the virtual context. Actions most certainly speak louder than words. A lawyer or a witness should maintain a positive and calm demeanor (a good poker face) and remain neutral, calm, and always collected while on camera. Because of the more personal nature of a virtual proceeding, everyone will be taking note of a lawyer’s or witness’ facial expressions, tone of voice, and body posture. It is important to remember that good body posture may be more important during a virtual proceeding than an in-person one. After all, a picture is worth a thousand words!
One other issue that regularly arises with virtual proceedings is the use of documents. Recent technology provides many ways to present documents in a virtual setting. However, often it is easier for a witness, opposing counsel, or a judge to follow along by reading from a hard copy of a document, especially if it is a multi-page exhibit. Good practice includes contacting opposing counsel and agreeing to a document-sharing protocol prior to a deposition. Often this includes shipping pre-marked exhibits to be opened at the beginning of a deposition. That way, the lawyer can present a document on the screen, but the witness and opposing counsel may still read along.
Presenting a document virtually presents challenges as well. Many platforms use a screen sharing function. Screen sharing, as with all other aspects of a virtual proceeding, can seem unfamiliar at first. It is important to practice with a platform’s screen sharing capability before the deposition or hearing begins. The only thing worse than appearing before a judge looking like a cat may be inadvertently sharing your notes or work product instead of the intended exhibit!
As with anything else, practice makes perfect with today’s technology. Keeping these tips in mind and discussing them with your witness ahead of a deposition should help make things go smoothly.
A large number of safety-related recalls were issued in February. Significant recalls are being made available on our website, https://www.beasleyallen.com/recalls/. We have heard from a number of readers who say they like this approach to recalls.
You will always find the latest important product recalls on our site throughout the month. The response to this new approach for handling recalls in the Report has been good. 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.
Karla Martinez has been with Beasley Allen for two years. She is an Intake Specialist in our Toxic Torts Section. As an Intake Specialist, Karla speaks with clients daily and gathers information for their claims. Karla says she enjoys having the chance to speak to clients and gaining their trust.
An intake specialist job at Beasley Allen is to have initial contact with a client and to obtain all information to build a file and help determine if they meet the criteria required for each specific case. She also helps obtain any additional documentation needed that may require further review by lawyers assigned to the case.
Karla, the oldest of four siblings, has two younger brothers, Angel and Jesse, and a younger sister, Lizabeth. Angel is a firefighter in Montgomery. Jesse and Lizbeth are still in high school.
In her spare time, Karla is a full-time student at South University, studying Criminal Justice. In her “off-time” when not studying, Karla enjoys going hiking or vacationing at the beach.
When asked what she enjoys most about working at Beasley Allen, Karla had this to say:
My favorite thing about working at Beasley Allen is that we have the chance to help people from different backgrounds, and I enjoy creating relationships with them. Beasley Allen is a firm that stands for God above all else, and that speaks volumes about a company.
Karla is a very good employee, whose job is important to the firm and to our clients. We are fortunate to have Karla with us.
Amy Norris is also an Intake Specialist in the Toxic Torts Section. Amy came to the firm in September 2019 and is involved with each new client initially as an Intake Specialist.
Amy has been married to her husband, Andy, for four years. She has a daughter Ashley who is in nursing school and also works at a local hospital. Her son Tyler is an excellent student at Prattville High School and enjoys participating in basketball and football. Amy says she “has a very smart grandson Will,” who is a blackbelt in Taekwondo. In her spare time, Amy loves spending time with her family and traveling to the beach.
When asked what her favorite part of working at Beasley Allen is, Amy says:
Having the privilege of working at Beasley Allen gives me a feeling that I am fulfilling a sense of purpose in helping others in any way I can and however I can, to the best of my ability. I am also grateful for the professional, respectful, and family-oriented atmosphere.
Amy is a very good employee, whose job is important to the firm and to our clients. We are fortunate to have Amy with us.
Jeff Price is a lawyer in the Toxic Torts Section. He joined Beasley Allen in 2012. Currently, Jeff is handling opioid litigation, representing the State of Alabama and the State of Georgia as private counsel. Jeff was recently named by The National Trial Lawyers to the Alabama Top 40 Under 40 Civil Plaintiff Trial Lawyers List, an honor given to only a select group of lawyers for their superior skills and qualifications in the field.
As part of the firm’s opioid litigation team, Jeff is currently assisting local governments in Alabama, Georgia, and Tennessee to address the harms posed by the nation’s opioid epidemic. The team also represents the State of Alabama in its opioid lawsuit against Purdue Pharmaceuticals, Endo Pharmaceuticals, and McKesson Corporation and the State of Georgia in its pending lawsuit against opioid manufacturers and wholesale drug distributors. The opioid lawsuits contend the opioid crisis, which has reached epidemic proportions, was created by the pharmaceutical industry. Drug companies flooded the health care system with highly addictive drugs, and their deceptive marketing practices misled the public about the drugs’ safety and effectiveness. Responding to the opioid crisis has required local and state governments to sustain economic damages and continue to bear a significant financial burden.
When asked why he chose the legal profession, Jeff said, “I became a lawyer because I believe in justice and fairness, and I like to argue.” He also commented that his favorite part of practicing law is working in a team environment with other professionals.
Previously, Jeff represented individuals, property owners and business owners across the Gulf Coast, helping them recover millions of dollars in compensation for the losses they suffered following the explosion of the Deepwater Horizon oil rig and the resulting devastating BP Oil Spill. Jeff enjoys working for the firm because of the opportunities he has had to work on such high-profile cases.
The Montgomery native is also a (nonpracticing) Certified Public Accountant in Alabama. Jeff earned the highest CPA Exam Score for Alabama in the 3rd Quarter in 2012. He graduated with a B.A. from Tulane University and holds a J.D. from Cumberland School of Law and an LL.M. in federal taxation from the University of Miami School of Law.
Jeff is a member of the Alabama State Bar and is a former associate editor of The American Journal of Trial Advocacy at Cumberland. Jeff is married to the former Kathleen Crawley of Prattville, Alabama, where the couple resides and. The couple enjoys spending time with their dog, Lilly.
Jeff is a very good and talented lawyer who is dedicated to the welfare of his clients. We are fortunate to have him with the firm.
Skylar Sawyer is a lawyer in the firm’s Mobile office and she is a member of the firm’s Mass Torts Section. Skylar is part of the litigation team investigating claims by Zantac users who developed certain types of cancers after taking the drug, including liver, bladder, stomach, colon, kidney and pancreatic cancer. Before joining Beasley Allen, Skylar served as an Assistant District Attorney in the Baldwin County District Attorney’s Office. She also worked for another civil law firm, assisting with personal injury and insurance litigation.
“I wanted to work in a system that strives for fairness and advocates for those who need it most,” Skylar said about her decision to become a lawyer.
Skylar earned a law degree from Faulkner University Thomas Goode Jones School of Law and completed her undergraduate work at the University of Alabama. Before attending law school, Skylar served Baldwin County families as a Juvenile Probation Officer. She also worked in municipal and county courts as a referral liaison connecting the accused with rehabilitative programs. Currently, Skylar is a member of the Alabama State Bar, the Baldwin County Bar Association, the Mobile Bar Association and the American Bar Association. Skylar says:
My favorite part of practicing law is the ability to take on the battles of people who have already fought enough. When clients are in unfortunate, even tragic, situations, the last thing they need is the stress of fighting for themselves in a courtroom. I like being able to give a voice to those who would otherwise be forced to endure more. Taking the weight off someone’s shoulders can be just as priceless as securing the justice they deserve.
Skylar joined the firm in February. She says that soon she learned that Beasley Allen employees share a passion for helping others, both in the courtroom and out. She says that is what sets Beasley Allen apart from other firms. She says:
My introduction to the firm was through my involvement with the Montgomery County Volunteer Lawyers Program and the Public Interest Society at Faulkner University Thomas Goode Jones School of Law. I really respected a firm that makes giving back a top priority. It is not just the clients and the community empowered by the firm’s efforts. As an employee, I am empowered to be my best self through the encouragement and examples set by those lawyers and support staff who make up Beasley Allen.
In her free time, Skylar enjoys spending time with her Brittany spaniel, paddle boarding on the bay, and reading a good book.
Skylar is a welcomed addition to our firm. Her background and work experience fits in well with the mission of Beasley Allen. We are very glad that she came with us.
Deirdre Scott has been employed with Beasley Allen for almost a year and a half. She, like Karla and Amy, is an Intake Specialist and is in the Firm’s Toxic Torts Section. Currently, Deirdre is primarily working on the RoundUp cases. She helps make sure the lawyers have all the information needed to build each client’s file.
Deirdre is a mother of three children, JaDarien, Courtlyn and Cristian. Deirdre says that JaDarien is an excellent student and loves all sports and that Courtlyn and Cristian are still in daycare but love gymnastics and ballet. They are members of a Global Church, based out of Georgia, where they spend many weekends as a family.
In Deirdre’s spare time, she says she enjoys binge-watching Netflix, online shopping, working out, reading, planning and spending as much time as possible with family and friends.
When asked what her favorite part is about working at Beasley Allen, Deirdre states:
My favorite thing about working at Beasley Allen has been how I work with a dedicated team. Everyone is so hardworking and inspired to help. Everything is done as a team; I admire that. I have also gained knowledge by working with this company which is a magnificent quality.
Deirdre is a very good employee, who as stated above, is working on litigation involving Roundup. There are currently 3,500 clients represented by Beasley Allen in that litigation. We are most fortunate to have Deirdre with us.
Graham Esdale Named President Of The Alabama Chapter Of National Organization
Graham Esdale was recently named President of the Alabama Chapter of the American Board of Trial Advocates (ABOTA). Graham, who is in Beasley Allen’s Personal Injury & Products Liability Section, was elected at the Virtual Board Meeting of ABOTA.
ABOTA is a national association of seasoned trial lawyers and judges. Members are dedicated to the preservation and promotion of the right to a civil jury trial as provided by the Seventh Amendment to the U.S. Constitution. ABOTA membership consists of more than 7,600 lawyers – equally balanced between plaintiff and defense – and judges spread among 96 chapters in all 50 states and the District of Columbia. For information on the work members of ABOTA, visit abota.org.
Graham had this to say about ABOTA and his becoming president:
Over the years, the work we have done with ABOTA has made a difference in the lives of American citizens because of the continuous fight for protection of the right to trial by jury. I am proud to serve as President this year and look forward to working with members and our leadership to provide justice for all who seek it.
The Alabama chapter also is working on some in-state initiatives in Alabama focused on civics education for local schools as well as “Civility Matters” presentations for lawyers and judges.
All of us at Beasley Allen were extremely well pleased to learn that Graham had been elected to this important position. It is an honor and one that is well deserved.
Beasley Allen Lawyers Named To Leading Lawyer In America Listing
Two Beasley Allen lawyers have been named to the 2021 Lawdragon 500 Leading Lawyers in America listings. LaBarron Boone and Kendall Dunson, who are lawyers are in the firm’s Personal Injury & Products Liability Section, were named to this prestigious list. LaBarron and Kendall have been honored many times in their careers for their outstanding commitment to justice for their clients and for their work to help improve safety for their clients and for the country as a whole.
LaBarron and Kendall are leaders in our firm. Cole Portis, the Personal Injury & Products Liability Section Head, had this to say: “I am proud to call LaBarron and Kendall partners and know first-hand that the accolades presented are well deserved.”
Recognition by Lawdragon 500 is an honor as it stands as one of the most respected groups in the profession. Recipients of this honor reached by Labarron and Kendall are determined by editorial staff research of top verdicts and settlements as well as one-on-one interviews with lawyers across the nation. According to the Lawdragon 500, Leading Plaintiff Consumer Lawyers consists of “plaintiffs’ lawyers and voting rights advocates, litigators and dealmakers who have joined arm in arm to turn the page on hard times.” 2021 designees also consist of United States Supreme Court Justices.
We are very proud of LaBarron and Kendall for the excellent work they do for their clients and for the pursuit of justice in America.
Beasley Allen Lawyers Named 2021 Super Lawyers In Georgia
Beasley Allen is pleased to announce that four firm lawyers were included in the 2021 Super Lawyers list for Georgia. Those lawyers are Managing Attorney – Atlanta, Chris Glover, and Principals Alyssa Baskam, Parker Miller and Rob Register. Chris, Parker, Rob and Alyssa represent clients seriously injured by defective products or the families of loved ones killed by no fault of their own. Chris says:
I am honored to be included in the Super Lawyers list again this year. Having started the Beasley Allen Atlanta office, I feel even more proud that so many of our Atlanta attorneys are being recognized once again as well.
Super Lawyers, a Thomson Reuters business, is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The mission of Super Lawyers is to bring visibility to those lawyers who exhibit excellence in practice.
In November 2020 twenty-two Beasley Allen lawyers were recognized in the Super Lawyers Mid-South rankings.
The Super Lawyers lists are published in Super Lawyers Magazines and in leading city and regional magazines across the country. The Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information, go to superlawyers.com.
FAVORITE BIBLE VERSES
Phyllis Cothron, a staff assistant in our Mass Torts Section, furnished scriptures for this issue. She says:
Ms. Willa has asked me to share a couple of my favorite bible verses, which is hard because the good book has given my heart many favorite verses. On October 11th, 2020, I lost my father unexpectedly. It’s been hard because I had taken care of him in so many ways since my mother’s passing August 4th, 2016. Now my brother and I are in the process of selling our family home that holds so many memories and some memories we are having to decide whether to keep or do away with. God tells me in Isaiah 41:10, “Fear not, for I am with you; Be not dismayed, for I am your God. I will strengthen you, Yes I will help you, I will uphold you with my righteous right hand”. Another verse that I needed to hear during this time is 1 Thessalonians 5: 16-18 Rejoice always, pray continually, give thanks in all circumstances, for this is God’s will in Christ Jesus. In happiness and sadness, take your heart to God’s word. God loves you and me, and He will never leave you nor forsake you.
Ryan Beattie, a lawyer in our firm’s Mass Torts Section, furnished scriptures for this issue. Ryan had this to say:
One thing that covid has done this year that has been a real blessing in disguise is that it has given me the opportunity to spend a lot more time with my children than I normally would have. We kept them out of school last semester, and all of my trials got postponed to 2021, so instead of traveling out of town for most of last year, I got to spend some time watching my kids grow up. Their development this year was truly astounding and just reinforced God’s miracle in allowing them to survive and prosper. It has also given me inspiration for the scripture; seeing their innocence, joy, and delight in the everyday situations reminds me of what a gift they truly are brings to mind the following:
At that time the disciples came to Jesus, saying, ‘Who is the greatest in the kingdom of heaven?’ And calling to him a child, he put him in the midst of them and said, ‘Truly, I say to you, unless you turn and become like children, you will never enter the kingdom of heaven. Matthew 18:1-3
Children are a gift from the Lord; they are a reward from him. Psalm 127:3
Even though this has been an extremely difficult year in many respects, I couldn’t replace the time I got to spend with my children and the chance to watch them develop due to these unforeseen circumstances. They have been a great reminder of God’s grace.
Shelby Andrews, a law clerk at Beasley Allen, furnished a verse from Proverbs for this issue. She says she loves Proverbs 17:17 because it reminds us that we are not meant to go through life alone. Shelby says further:
This was the one verse that stuck with me the most out of all of the verses I learned in preschool and has always reminded me that regardless of what we face, we have the love of God and our friends and family to help us through.
A friend loves at all times, and a brother was born for adversity. Proverbs 17:17
The history of tribal Immunity in Alabama, even though it is not as long as one would expect, is complex. The firm’s Mike Crow recounts how Alabama’s only federally recognized Native American Indian tribe, the Poarch Band of Creek Indians or the Poarch Band, obtained that status. Federally recognized tribes are afforded certain benefits by the federal government, including tribal immunity or Native American Indian tribal sovereign immunity. The doctrine provides immunity from lawsuits for Native American Indian tribes in the U.S. Mike explains how this regulation has become less of a protective measure and more of an endless means for tribes to altogether avoid liability and lawsuits to the detriment of personal injury plaintiffs. Mike’s story is available on the firm’s website, www.beasleyallen.com.
Our Monthly Reminders
If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.
2 Chron 7:14
All that is necessary for the triumph of evil is that good men do nothing.
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.
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.
Kindness is a language which the deaf can hear and the blind can see.
Mark Twain (1835-1910)
I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country….corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.
U.S. President Abraham Lincoln, Nov. 21, 1864
In his December 1902 State of the Union address, Theodore Roosevelt said of corporations: “We are not hostile to them; we are merely determined that they shall be so handled as to subserve the public good. We draw the line against misconduct, not against wealth.”
The ‘Machine politicians’ have shown their colors…I feel sorry for the country however as it shows the power of partisan politicians who think of nothing higher than their own interests, and I feel for your future. We cannot stand so corrupt a government for any great length of time.”
Theodore Roosevelt Sr., December 16, 1877
The opposite of poverty is not wealth; the opposite of poverty is justice.
Bryan Stevenson, 2019
Get in good trouble, necessary trouble, and help redeem the soul of America.
Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America
QAnon Is A Real Threat To Our Democracy
A tragic occurrence took place on Wednesday, Jan. 6, and it was something I never thought would happen in America. On that fateful day, a day that will go down in infamy and never to be forgotten, a mob of conspiracy theorists came to our Nation’s Capitol to take part in a planned, violent insurrection.
QAnon conspiracists, along with other far-right elements, such as the Proud Boys, Oath Keepers, three Percenters, and other white supremacist groups, were a major part of the violent vanguard that clearly intended to do great damage including killing the Vice President and Speaker of the House, inside the Capitol. Many of those who stormed the Capitol appear to have believed that they were bringing about “The Storm,” considered by them to be a day of reckoning for the members of an alleged Satanic cabal that “stole” the election from their “messianic leader.” All of this was according to Q mythology.
The FBI, in 2019 named QAnon as a domestic terrorism threat. Unfortunately, many Americans don’t know who or what QAnon is. The movement’s violent nature and the susceptibility of individuals to the conspiracy theories have made QAnon a significant threat to our Democracy. While federal authorities have recognized the threat posed by QAnon, I am not sure the American public has yet come to that conclusion.
Let’s take a look at QAnon, which has been labeled in a number of ways, including being a “domestic terrorist,” a “conspiracy theory,” an “extremist ideology,” “a cult,” an alternative reality game” and also “harmless” and “just a movement.” So, what exactly is QAnon?
The gist of QAnon is that there is a person who goes by the pseudonym “Q” who is supposedly a top-secret official in the U.S. government. Q posts cryptic online messages about the “truth” of what’s really happening in the world. The irony is that all “Q” puts out is false. QAnon proponents believe that Donald Trump was battling a cabal of deep-state actors and their celebrity allies who were, in turn, engaged in satanic worship and pedophilia. It’s shocking that lots of folks in our country bought into this weird and baseless conspiracy movement, and sadly a good number have gotten actively involved in QAnon.
QAnon supporters considered Trump as not merely their president and leader but also as essentially a “messiah.” People with QAnon paraphernalia were well represented in the deadly assault on the U.S. Capitol on Jan. 6, as were the “Trump” hats, flags and t-shirts.
The American people definitely need a wake-up call. What more will it take?
Will QAnon remain a force in our political life?
Will followers also engage in future acts of violence?
Hopefully, the answer to both of these queries will be a resounding NO!