The Right To Vote
With Americans going to the polls this month in the upcoming General Election, it’s a good time to reflect on how critically important it is for all citizens to vote regardless of their political leanings or party affiliation. A short history lesson is a good place to start.
One of the most important rights of American citizens is the franchise—the right to vote. Originally under the U.S. Constitution, only white male citizens over the age of 21 were eligible to vote. That sad injustice was eventually corrected, and voting rights have been extended several times over the course of our history. Today, citizens over the age of 18 cannot be denied the right to vote on the basis of race, religion, sex, disability, or sexual orientation.
The battle for full voting rights for all American citizens has been long and challenging. The franchise was first extended to African Americans under the Fourteenth and Fifteenth Amendments to the Constitution. These amendments, passed during the Reconstruction period after the Civil War, provided that all male citizens, regardless of their race, must receive equal treatment under the law and not be deprived of their rights without due process. The Fifteenth Amendment is specifically dedicated to protecting the right of all citizens to vote, regardless of race.
The voting rights struggle for African Americans has continued, with widespread discrimination evident in many states. For example, poll taxes, grandfather clauses, and literacy tests were used to restrict voting in a number of states. African Americans were not assured basic voting rights until President Lyndon Baines Johnson signed the Voting Rights Act in 1965.
Women were denied the right to vote until 1920 when the Nineteenth Amendment was ratified. Before that, women had only been able to vote in select States. Today women are still fighting hard to secure more equity and fairness in the electoral process for all citizens.
We should make voting easy but with safeguards to ensure votes are counted accurately. The American people must realize that safe and secure elections are the bedrock of democracy in our Republic. Attacks on this democracy must be dealt with, and our system of elections at every level must be protected and preserved.
UPDATE ON THE CAMP LEJEUNE LITIGATION
Beasley Allen represents individuals injured due to toxic water exposure at North Carolina Marine Corps Base Camp Lejeune. The Camp Lejeune Justice Act applies to military personnel, their families, and civilians who were exposed to the toxic water supply for at least 30 days between Aug. 1, 1953, and Dec. 31, 1987. Exposure to the toxic water at Camp Lejeune has caused multiple forms of cancer, neurological disorders, miscarriage, and death, among other injuries.
The Camp Lejeune Justice Act requires claimants to file an administrative claim with the Navy’s Office of the Judge Advocate General (JAG) before filing a lawsuit. As of early October 2022, approximately 6,000 administrative claims were filed with JAG. JAG has requested that firms that will file multiple claims register for a batch filing procedure, which is still in progress. JAG has also asked that claimants not send medical records or other documentation with the claim form.
Beasley Allen has an entire team of lawyers and staff dedicated to investigating, filing, and establishing causation for these Camp Lejeune claims. The team is co-led by Julia Merritt and Leslie LaMacchia, lawyers in the firm’s Toxic Torts Section, which Rhon Jones leads. The timetable for filing claims for exposure to toxic water at Camp Lejeune is limited to two years from when the Act was put into law on Aug. 10, 2022. If you have any questions or would like for Beasley Allen to help you with your Camp Lejeune claims, contact one of the lawyers on the Camp Lejeune Litigation Team.
Beasley Allen Camp Lejeune Litigation Team
If you have a potential claim or need more information on our Camp Lejeune litigation, contact one of the lawyers on the Litigation Team at 800-898-2034 or by email. The Camp Lejeune Litigation Team consists of Julia Merritt and Leslie LaMacchia, who co-lead the team. Other members are Matt Pettit, Trisha Green, Will Sutton, and Elizabeth Weyerman. Rhon Jones (Section Head) works closely with the team. Additional lawyers will be added to the team as needed. If you have any questions or need to discuss a potential claim, contact a team member at 800-898-2034 or by using the form at the bottom of this page.
SOCIAL MEDIA LITIGATION
Social Media Litigation Update
On Aug. 1, 2022, the Beasley Allen Social Media Litigation Team, led by Joseph VanZandt, filed a motion with the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate 28 actions against Facebook, Instagram, and other related subsidiaries involving product liability claims on behalf of adolescents. Since Beasley Allen filed its consolidation motion, 38 new cases were designated (or tagged) before the JPML as related actions. Several tagged actions include defendants TikTok Inc., Snap Inc., and YouTube, LLC, who also operate social media products that caused similar injuries to adolescents. In total, approximately 66 cases were currently pending in 30 federal districts across the country, with numerous filings expected to follow.
Meta responded to our transfer motion on Aug. 30, agreeing that consolidation of these actions would be appropriate, given the cross-cutting nature of the factual and legal issues in the various suits. Defendants TikTok Inc., Snap Inc., and YouTube, LLC opposed consolidation.
Beasley Allen filed its reply brief on Sept. 6, then asking, among other things, that the JPML include defendants TikTok Inc., Snap Inc., and YouTube, LLC in a multidistrict litigation (MDL). The JPML set the matter for oral argument on Sept. 29 in St. Louis, Missouri, where Joseph VanZandt advocated on behalf of our clients.
On Oct. 6, the JPML issued a transfer order, instructing all social media cases involving defendants Facebook, Instagram, Snap Inc., TikTok Inc., and YouTube, LLC is transferred to an MDL in the U.S. District Court for the Northern District of California, Oakland Division, before Judge Yvonne Gonzalez Rogers. Judge Rogers is an experienced transferee judge that should advance the litigation along a prudent course.
Beasley Allen Social Media Litigation Team
If you have a potential claim or need more information on our Meta litigation, contact one of the lawyers on the Meta Litigation Team at 800-898-2034 or by using the form at the bottom of this page. Members of the team are: Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team.
AN UPDATE ON MOTOR VEHICLE LITIGATION
Do Your Tires Make The Grade?
Did you know that passenger tires are graded on their ability to resist tread wear, generate heat and provide suitable traction for stopping? The federal government requires passenger tire manufacturers to provide tire performance information to consumers to assist them in selecting appropriate tires for their vehicles. Most people know that they can find maximum tire pressure information on the tire and load ratings that state the maximum load-carrying capacity of the tire. However, tread wear, traction and temperature information can also be found on the sidewall of a tire. This information can help you determine which tire may be best suited for your purposes.
A tire’s traction grade can be found on the sidewall and indicates a tire’s stopping capability as measured in straight-ahead braking traction tests. However, these braking tests do not include cornering or turning traction. The grades on a tire will consist of grades “AA,” “A,” “B,” and “C.” A tire rated with an “AA” has the highest traction grade and indicates good ability of the tire to stop on wet pavement. A tire with a “C” grade will provide the poorest traction, comparatively speaking, under the same or similar test conditions.
Tires also contain information regarding tread wear. The tread wear grade is a rating system based on the wear rate of the tread under a specified government test procedure. While the tread wear can vary depending on the use of the tire, including service conditions, the tread wear grade is at least an indicator of a tire’s potential tread wear performance. Under test conditions, a control tire is assigned a grade of 100. Other tires are then compared to the control tire to determine tread wear. For example, a tire grade of 300 should wear three times longer than the control tire.
The National Highway Traffic Safety Administration (NHTSA) reports the following on tread wear grades for current tire designs:
- 15% are rated below 200
- 25% are rated 201 to 300
- 32% are rated 301 to 400
- 20% are rated 401 to 500
- 6% are rated 501-600
- 2% are rated above 600
When selecting a tire for your vehicle, a tire with a higher tread wear grade should take longer to wear out than a tire with a lower tread wear grade.
Tires used on vehicles generate heat during use. Heat is an element that can damage tires and increase the likelihood of premature failure and wear if not properly designed. For this reason, the federal government requires tire manufacturers to grade tires’ ability to resist the generation of heat and the ability of a tire to dissipate heat under controlled test conditions. Temperature grades range from “A,” being the highest, “B,” and “C.” Tires used in driving long distances, under load or in hot weather can generate significantly high temperatures on the tire. The heat will deteriorate the tires’ components, leading to blowouts and tread separations if the tires are not properly designed and manufactured. Tires that can resist heat or dissipate heat with the best grade represent tires that are more likely to perform at safe levels throughout the tire’s life. According to NHTSA, only 27% of the current tires available on the market rate an “A” grade.
Tire grades regarding traction, tread wear and temperature can be found on the tire’s sidewall. Additionally, this same information can be located in publications from NHTSA. Information can be found at the government’s website, www.safercar.gov. Knowing how your tires are graded can help you understand how they may perform throughout their useful life.
If you need more information, contact Ben Baker, a lawyer in our firm’s Personal Injury & Products Liability Section, by phone at 800-898-2034 or by using the form at the bottom of this page. Ben handles motor vehicle-related litigation for the firm.
Sources: NHTSA and Safecar.gov
VW’s $80 Million Porsche Emissions Settlement Approved
Consumers claim that automakers manipulated emissions and fuel-economy tests for nearly 500,000 gasoline-powered Porsche vehicles they purchased or leased to make them seem more environmentally friendly than they were will end soon with a settlement on the horizon, Law360 reports. U.S. District Judge Charles Breyer said during a hearing via Zoom that he plans to approve an $80 million settlement, awarding class counsel $24 million in fees (30% of the settlement fund) and approximately $710,000 in costs.
In June, Judge Breyer preliminarily approved the settlement for the claims that were part of a multidistrict litigation (MDL) initiated in 2015. Plaintiffs in the MDL argued that Volkswagen AG, its luxury line Porsche AG, and Porsche Cars North America Inc. improperly distorted test results. Consumers were left with Porsche vehicles that failed to meet emissions and fuel-economy performance standards.
The settlement received objections from the automakers, which said vehicles that weren’t damaged are included in the agreement.
Two pro se plaintiffs objected to the settlement, and a third, Wesley V. Lochridge, through his counsel, Robert Clore of Bandas Law Firm PC. Clore, representing Lochridge, was the only plaintiff objector to attend the hearing. Judge Breyer announced that he would overrule the sole objection and allow the settlement to proceed.
Elizabeth Cabraser, a lawyer for the consumer plaintiffs, told the court that 99% of the claimants had not raised any objections and the few objections raised weren’t enough to stop the settlement’s approval. She also informed the court that payment had been sent to more than 120,000 claimants, noting the claims rate as significant.
Judge Breyer acknowledged the objections as not being frivolous but said he still plans to overrule them and approve the settlement. He will issue an order soon, the court reported.
U.S. consumers who bought or leased certain vehicles from model years 2005 to 2020 will be reimbursed based on one of three groups in which they were placed. Plaintiffs in the fuel economy group will receive $250 to $1,109 per vehicle. Reimbursement amounts for the fuel economy group will also be determined by how long the consumer has had the vehicle and the vehicle’s revised fuel economy rating.
Consumers in the Sport+ group have vehicles currently subject to an ongoing recall. They will receive an automatic $250 cash payment.
Those plaintiffs in the third group, called the “other class,” are qualified to receive up to $200 per vehicle. According to the settlement, their vehicles “were also conceivably impacted by the testing practices at issue, but for which no potential deviations were identified.”
An amended consolidated class action complaint and the proposed settlement described plaintiffs’ investigation and tests, which showed the automakers’ deception affected approximately 500,000 gas-powered Boxsters, Cayennes, Caymans, 911s, Panameras and other luxury vehicle models.
The consumer plaintiffs argued this was another emissions and fuel-economy cheating ruse within the Volkswagen brand. It is similar to the 2015 “defeat device” scandal involving turbocharged direct-injection vehicles and the “Audi CO2” gasoline cases. Claims in those cases accused Volkswagen of overstating fuel economy ratings and downplaying actual carbon dioxide emissions.
The consumer plaintiffs are represented by lawyers from Lieff Cabraser Heimann & Bernstein LLP, Bailey Glasser LLP, Baron & Budd PC, Beasley Allen, Bleichmar Fonti & Auld LLP, Boies Schiller Flexner LLP, Branstetter Stranch & Jennings PLLC, Carella Byrne Cecchi Olstein Brody & Agnello PC, Casey Gerry Schenk Francavilla Blatt & Penfield LLP, Cotchett Pitre & McCarthy LLP, Levi & Korsinsky LLP, DiCello Levitt & Gutzler LLC, Hagens Berman Sobol Shapiro LLP, Hausfeld LLP, Heygood Orr & Pearson, Keller Rohrback LLP, Motley Rice LLC, Robbins Geller Rudman & Dowd LLP, and Roxanne Conlin & Associates PC.
The objector Wesley V. Lochridge is represented by Robert Clore of Bandas Law Firm PC and Timothy R. Hanigan of Lang Hanigan & Carvalho LLP.
The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.
Fiat Chrysler Drivers Settle In Clutch Defect Class Lawsuit
Fiat Chrysler has reached a proposed settlement with a class of drivers who sued over defective clutches in Dodge Dart vehicles that allegedly stuck to the floor and prevented acceleration, according to Law360.
If finalized and approved, the settlement would resolve a long-running class action lawsuit filed in a California federal court by Carlos Victorino and another named plaintiff in June 2016.
The class action alleged that the clutch pedals in model years 2013 to 2015 Dodge Darts lose pressure, stick to the floor, and fail to engage and disengage the gears. “As a result, the Class Vehicles exhibit stalling, failure to accelerate, and premature failure of the Clutch System’s components,” the class action alleged.
The parties reached the agreement about one week before trial was set to begin in a Southern California federal court on Oct. 11. In a joint notice submitted to the court, they also asked for all future litigation dates and deadlines to be stayed or vacated.
The litigants also asked for 90 days to work out the terms of the settlement agreement, which they will include in a motion for preliminary approval.
Mr. Victorino initially tried to get certification for three classes of California drivers plus a nationwide class with new and used FCA vehicles equipped with allegedly defective clutches. U.S. District Judge Gonzalo Curiel denied the request in 2018, saying it would create an overly broad class and include unqualified members. He certified a narrower class of California drivers the following year.
FCA has tried to get the suit tossed since it was filed several times. Last year, the judge rejected the automaker’s bid to exclude drivers who no longer own their vehicles, saying that doing so would “render FCA free of any significant damages if liability were found.”
Victorino and the class are represented by Tarek H. Zohdy, Cody R. Padgett and Laura E. Goolsby of Capstone Law APC and Paul R. Kiesel, Jeffrey A. Koncius and Kevin D. Zipser of Kiesel Law LLP.
The case is Carlos Victorino et al. v. FCA US LLC, case number 3:16-cv-01617, in the U.S. District Court for the Southern District of California.
Judge Awards $4.7 Million In Interest In Seatbelt Lawsuit
A Georgia federal judge has ordered seatbelt manufacturer Autoliv Japan to pay $4.7 million in prejudgment interest to plaintiff Jamie Lee Andrews, who won a $113 million award following the death of her husband in an April 2013 crash, Law360 reported.
In a Sept. 30 order, U.S. District Judge Steve Jones ruled that Autoliv must pay annual interest of 6.25% on a $9.5 million settlement offer that the manufacturer rejected in 2015. In the same order, the judge rejected the plaintiff’s bid to increase the compensatory damages owed by Autoliv. He also rejected the company’s motion to eliminate what it called the “excessive” $100 million in punitive damages it had been ordered to pay and denied its motion for a new trial.
Mrs. Andrews, whose husband died in a single-vehicle crash when the seatbelt in his 2005 Mazda allegedly failed to operate properly, filed the product liability lawsuit eight years ago. She filed a motion to amend and modify the court’s final order and judgment in January, arguing that Autoliv was liable for the total amount of compensatory damages despite the court’s ruling that Mazda shared half the blame for her husband’s death.
Mrs. Andrews’ lawyers supported that claim by pointing to a premises liability case recently decided by the Georgia Court of Appeals. In Georgia CVS Pharmacy LLC v. James Carmichael, the appellate panel determined that CVS was liable for a man’s injuries in the business’ parking lot. CVS was the sole remaining defendant in a multidefendant case and was required to pay the total damages. The court ruled that CVS could not reduce the damages based on a nonparty’s fault. Other defendants had been dismissed from the case after settlements and other dismissals.
Mrs. Andrews asserted that Autoliv, the sole remaining defendant, should be held liable for the total compensatory damages, as Mazda and several other defendants named in her suit had previously settled or were dropped from the case.
Judge Jones rejected that argument, saying Mrs. Andrews had missed her opportunity to raise the issue before he decided on the judgment. He also agreed with Autoliv’s lawyers, who argued that the Georgia Supreme Court would likely overturn the appellate court’s decision in the CVS case if it chooses to hear it. Mrs. Andrews’ lawyers indicated their client would appeal the decision.
Mrs. Andrews is represented by Tedra L. Cannella and Rory A. Weeks of Cannella Snyder LLC, James E. Butler Jr. of Butler Prather LLP, and William L. Ballard and Gregory R. Feagle of Ballard & Feagle LLP.
The case is Andrews et al. v. Autoliv Japan, Ltd., case number 1:14-cv-03432, in the U.S. District Court for the Northern District of Georgia.
BIG TRUCK ACCIDENT LITIGATION
Beasley Allen Reaches Settlement In Vehicle Rollover Case
In the summer of 2019, Migdalia Roach was driving a passenger vehicle in St. Croix, U.S. Virgin Islands, when it was struck by another vehicle. For unknown reasons, the other involved driver crossed the center line into our client’s lane, hitting the Roach vehicle head-on. The vehicle spun out of control and rolled over, coming to rest on its left side.
At the time of the accident, our client’s five-year-old child was seated in the second row, left position, directly behind the driver. Another child, 10 years old, was sitting in the second row, right position. Neither child was wearing a seatbelt.
Both children were ejected from the rear left window, which was closed but shattered during the rollover. The 5-year-old was pinned under the car and died the next day due to blunt head trauma. The 10-year-old suffered minor injuries. The frontal, side-impact, and roll-activated airbags failed to deploy during the accident.
The driver of the other vehicle was cited for negligent operation of his vehicle and was initially charged with negligent vehicular homicide, failure to remain as far left as practical in his lane, traveling contrary to the flow of traffic, and involuntary manslaughter. He was later charged with driving under the influence of intoxicating liquor and driving with a BAC of .08% or more.
The five-year-old child was not in a booster seat at the time of the accident. It was customary for our client to put the child’s seatbelt on, and that day was no different. However, both children were known to take their seatbelts off or even move the shoulder belt behind their backs after the vehicle began moving. Our client did not have a booster seat that day and expected the seatbelt to contain the child. She remembers putting the seatbelt on the child before the trip and hearing it “click.” It is believed both children unbuckled their seatbelts after the vehicle started moving.
Our client alleged that the subject vehicle, manufactured by Fiat Chrysler Automobile US LLC (FCA), was defective in that the Side Airbag Inflatable Curtains failed to deploy once the vehicle rolled over, that the rear passenger door windows lacked laminated safety glass, and that the rear seating positions were not equipped with seatbelt reminder systems to notify the driver if the rear occupants became unbelted.
The FCA vehicle involved in the accident uses a Slower Developing Rollover Events (SDRE) deployment strategy, which relies on algorithm calibration. The vehicle’s Occupant Restraint Control Module (ORC) activates various safety devices based on external stimuli. They are designed to sense automobile crashes. The sensors provide input into an electronic control unit, which becomes the brain of the restraint system, and command deployments or non-deployments of restraints such as airbags or seatbelt pretensioners.
FCA, the manufacturer of our client’s vehicle, uses the ORC modules across multiple vehicle lines and outsources the ORC from component part suppliers. Component manufacturers of the ORC follow presets and standards set out by the vehicle manufacturer for the ORC. In or around 2010, the vehicle manufacturer created a document codifying its SDRE programming instructions. It provided that document to all suppliers as an operator’s manual, mandating the same SDRE deployment logic across multiple vehicle lines and ORC modules.
This programming prevents airbags from deployment in SDREs. The decision by FCA to program the ORC not to deploy in SDREs resulted in airbags across vehicle lines not deploying in a large number of real-world rollover events. FCA was an outlier in the automotive industry in its decision not to deploy side curtain airbags in SDREs. In fact, no other automotive manufacturer has similar deployment criteria. Many of FCA’s vehicles across many vehicle lines have been subject to recall related to its SDRE deployment strategy. The recall reasoning is applied consistently across those vehicle lines, not subject to alleged vehicle line differences.
It is difficult to understand how FCA chose this strategy, which no other car company employed. Most rollovers are slow-developing rolls. Car companies quickly point out in multi-roll events that your roll is more severe than 99% of all rollovers or some other astronomical number. Here, the strategy FCA took results in the vast majority of rolls not benefiting from the side curtain rollover airbag. It was a deliberate and unwise decision not to deploy the rollover airbag in these rollover events. A minor child is dead due to this purposeful decision by the automaker.
Chris Glover, who manages our Atlanta office, handled this case for our firm. He was able to settle the case, and the amount is confidential. Chris says he was humbled at the opportunity to help this client settle the case for the family. If you need more information, contact Chris at 800-898-2034 or by using the form at the bottom of this page.
The case is Phillip Tutein, Jr., as the Personal Representative of the Survivors of Penelope Caylin Audejah Tutein, Deceased, and Austin Tutein, a Minor v. Fiat Chrysler Automobiles, US LLC, et. al., Case No. SX-2020-CV-00038 in the Superior Court of the Virgin Islands, Division of St. Croix.
Victim Crushed Beneath Negligent Truck Driver’s Tractor-Trailer
Chris Glover recently filed a trucking lawsuit from an accident in DeKalb County, Georgia. A truck driver parked his commercial motor vehicle on the on-ramp of an interstate to sleep one night. Upon doing a pre-trip inspection the next morning, he discovered the body of a deceased woman in a location directly in front of his passenger-side rear tires. Chris represents the family of the victim.
The family alleged in the complaint that when the driver parked his commercial motor vehicle the night before, he struck their family member, knocking her to the ground. The vehicle tires then rolled onto the woman’s body, pinning her to the ground. She suffered positional asphyxia and later died as a result.
Plaintiffs have made negligence claims against the vehicle’s driver and the trucking company that employed him. The truck driver failed to pay proper attention to the roadway and maintain proper control of his vehicle to avoid striking a pedestrian. As a result of this breach of duty of care, a woman lost her life.
If you have questions about this or trucking cases, contact Chris Glover at 800-898-2034 or by using the form at the bottom of this page. Chris is in the firm’s Personal Injury & Products Liability Section, and he handles big truck litigation for the firm.
Beasley Allen’s Mobile Office Files Personal Injury Lawsuit Against Amazon
Wyatt Montgomery, a lawyer in our firm’s Mobile office, has filed a personal injury lawsuit against Amazon and the Amazon Delivery Service Partner. Amazon routinely contracts with trucking and other logistics companies responsible for moving Amazon packages throughout the country to its customer’s doorstep. When you see the iconic blue Amazon delivery van next to you in traffic, chances are you are looking at a separate company referred to as an Amazon Delivery Service Partner.
When Amazon invites these potential Delivery Service Partners to join their network, they advertise “Logistics experience not required,” which should raise a red flag to the practitioner who routinely litigates against commercial motor carriers.
Logistics experience is not required because Amazon provides its technology, processes and logistics experience to run the business. Amazon even provides the training required and on-demand support to run the delivery service. Cameras, telematic devices and smartphone “apps” monitor delivery drivers’ every move.
However, although Amazon controls the start-up, training, and operations of their Delivery Service Partners when one of the delivery drivers injures someone, Amazon claims they have no relationship with the driver and therefore bears no responsibility.
Amazon has recently come under extensive scrutiny due to its record for hiring companies with unsafe driving scores. The Amazon Delivery Service Partner, also named in the lawsuit, was delivering Amazon packages to the plaintiff’s residence at the time of the incident. The lawsuit alleges that the delivery driver was driving within the line and scope of his employment with Amazon and the Amazon Delivery Service Partner when he struck the plaintiff with his delivery van as the plaintiff was walking through his own front yard.
If you have a case involving an individual who was injured or killed by someone delivering Amazon packages, contact Wyatt Montgomery at 800-898-2034 or by using the form at the bottom of this page. Wyatt is in our Personal Injury & Products Liability Section and handles personal injury and death cases involving motor vehicles.
PRODUCT LIABILITY UPDATE
Illinois Families Sue Smith & Wesson Over July 4 Shooting
Survivors and families of victims of a mass shooting during a July 4 parade in Highland Park, Illinois, last summer are suing Smith & Wesson for allegedly marketing its assault rifles to attract “impulsive young men” who fantasize about mass shootings and other acts of violence. Seven people were killed and 48 injured in the Chicago suburb attack.
The lawsuits allege that the gun manufacturer used questionable marketing tactics to “appeal to the impulsive, risk-taking tendencies of civilian adolescent and post-adolescent males.” For example, Smith & Wesson allowed its weapons to be used in first-person shooter video games. The company also uses military imagery to promote the M&P rifle, an AR-15 assault-style rifle — the same gun used in the shooting — which the lawsuits claim gives a false impression that the military supports their use.
One plaintiff, Jason Roberts, says in his complaint that his eight-year-old son was shot and doesn’t expect him to walk again.
Another plaintiff, Elizabeth Turnipseed, who was shot in the pelvis while watching the parade, said in her complaint:
Smith & Wesson also knows the data behind mass shootings, and its marketing campaigns are directed at the demographic most likely to commit them — young men. The Fourth of July shooting didn’t have to happen, and it was entirely foreseeable by Smith & Wesson. Instead of taking steps to stop or reduce the risk of this senseless slaughter, Smith & Wesson facilitates violence for profit.
Smith & Wesson employs sales and marketing practices that create and feed a consumer base of young, civilian men who keep the money rolling in by purchasing not only the rifles, but all the deadly accessories that go with them — optics, high-capacity magazines, silencers, and laser-aiming devices, among others.
Smith & Wesson also uses military imagery to promote M&P 15, which creates the false impression that the U.S. military endorses the weapons. Smith & Wesson knows that young men will be especially susceptible to advertisements that imply endorsement by the military and law enforcement and that offer them a real-life version of the adrenaline-filled experiences they’ve had in first-person shooter games.
Smith & Wesson designs these advertisements to take advantage of young men’s impulsive behavior and lack of self-control in order to increase sales of its M&P rifles.
The accusations ring similar to those of Sandy Hook Elementary School families who sued another gunmaker, resulting in a $73 million settlement earlier this year.
Chris Boehning of Paul Weiss Rifkind Wharton & Garrison LLP is one lawyer helping represent the families. His firm also worked on the Sandy Hook settlement. Boehning said during a news conference:
Smith & Wesson is a clear market leader in the sale of assault weapons to civilians, and that it made the weapons that were used in 40% of the 10 most destructive shootings in the past decade.
Tony Romanucci of Romanucci & Blandin LLC also represents the families in the Highland Park lawsuit. Romanucci said that after every mass shooting, there’s an increase in gun sales. He added, “They’re proud of their marketing. They bragged about it. They groomed children.”
The shooter, a 21-year-old man, is also named as a defendant in the suits. The gun shop that sold the M&P 15 rifle the shooter used is also a defendant. It was stated in the Roberts suit:
The shooter fits the demographic of customers that Smith & Wesson targeted with its negligent and unlawful marketing. An avid user of the social media platforms used by Smith & Wesson to promote its assault rifles, the shooter displayed his hardcore violent fantasies online, styling himself on one platform as a ‘Master Gunnery Sergeant,’ and on others as a video game assassin.
The suits allege violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. They seek an injunction banning Smith & Wesson from continuing its marketing campaign.
Plaintiff Turnipseed is represented by Jay Edelson, Ari Scharg, David I. Mindell, J. Eli Wade-Scott and Amy Hausmann of Edelson PC, Erin Davis and Philip Bangle of the Brady Center To Prevent Gun Violence and Donna J. Vobornik and Brian E. Cohen of Dentons.
Plaintiff Roberts is represented by Tony M. Romanucci, Gina A. DeBoni, Robert S. Baizer, David A. Neiman and Michael E. Holden of Romanucci & Blandin LLC, H. Christopher Boehning, Jeffrey J. Recher and Carly Lagrotteria of Paul Weiss Rifkind Wharton & Garrison LLP and Alla Lefkowitz, Krystan Hitchcock and Laura Keeley of Everytown Law.
The cases are Roberts v. Smith & Wesson Brands, Inc., case number 22LA00000487 and Turnipseed v. Smith & Wesson Brands Inc., case number 22LA00000497, both in the Circuit Court of Lake County, Illinois.
Source: Law360.com, CNN and Chicago Sun-Times
Supreme Court Will Not Hear Bump Stock Ban Suit
Last month, the U.S. Supreme Court declined to review the Tenth Circuit Court’s decision in a lawsuit challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ban on bump stocks – devices that allow semi-automatic weapons to fire like machine guns.
The justices did not explain why they denied a Utah gun enthusiast’s petition for review. Supreme Court Justices ordinarily explain the reasoning behind their decision. Their refusal to review the case leaves the Tenth Circuit’s decision upholding the ban.
The ATF’s ban on bump stocks under the National Firearms Act has been hotly disputed and repeatedly challenged since it took effect in March 2019 in response to actions taken by the Trump Administration, which supported the ban.
The ban followed the October 2017 mass shooting at the Mandalay Bay Hotel in Las Vegas that killed 60 people and injured more than 850 others. It was the deadliest mass shooting ever to occur in the U.S. The killer who carried out the massacre from his Mandalay Bay casino hotel room relied on a bump stock to rapid-fire into a crowd attending a country music festival below.
In 2019, Utah gun lobbyist W. Clark Aposhian filed a lawsuit in Utah federal court asking for a suspension of the ATF rule classifying bump stocks as machine guns. He argued that federal laws addressed weapons, not bump stocks, which use a gun’s recoil to make the shooter’s finger pull the trigger in paid succession. The Utah court rejected Apohian’s bid to halt the ban. He appealed the decision.
In May 2020, the Tenth Circuit upheld the Utah court’s ruling denying Aposhian’s bid. The majority of the judges said that because neither the National Firearms Act nor the Gun Control Act provided a clear definition of a machine gun, the ATF acted within its authority in interpreting the law to include firearms with bump stocks.
The case is Aposhian v. Garland et al., case number 21-159, in the U.S. Supreme Court.
Sources: Law360.com, CNBC and Reuters
Trends In Workplace Safety
Unfortunately, millions of American workers are injured, and thousands more lose their lives yearly in job-related incidents. It is important to document these incidents to understand why they occur and to take steps to improve workplace safety. The Bureau of Labor Statistics (“BLS”) is the source of information regarding reportable workplace injuries and deaths. In November of 2021, the BLS released the 2020 statistics on nonfatal workplace injuries (statistics for 2021 will be released in November or December of 2022). The raw data in the release provides insight into whether the laws and systems in place to protect workers serve their purpose.
According to the BLS, approximately 2.7 million nonfatal workplace injuries and illnesses were reported for 2020. Reportable nonfatal workplace injuries are broken down into those resulting in time missed from work (the more serious injuries) and those that do not require time off work (minor injuries.) There were 1,176,340 nonfatal injuries and illnesses that caused a private industry worker to miss at least one day of work in 2020, 32.4 percent higher than in 2019.
BLS reported 4,764 fatal workplace injuries in 2020. Other interesting findings from the 2020 statistics include the following:
- Fatal falls were at their highest levels, accounting for 805 or 16% of worker deaths;
- A worker died every 111 minutes from a work-related injury in 2020.
- Transportation incidents remained the most frequent fatal event in 2020, with 1,778 or 37% of workplace deaths;
- 14% of the workplace fatalities in 2020 involved workers age 65 or over;
- Workplace deaths in the private mining, quarrying and oil/gas industry accounted for 1% of workplace fatalities; and
- 37 states had fewer workplace deaths in 2020 than in 2019.
When a worker dies in an on-the-job injury, the loss extends beyond the workplace to the family that lost a loved one and a provider. Likewise, serious nonfatal injuries either require significant time from work and, in some instances, reduce the injured employee’s earning capacity. For non-fatal injuries, the worker’s income and ability to earn income will be negatively affected temporarily. Some injuries are severe enough to negatively affect a worker’s earnings for their entire work life expectancy.
Because many of the deaths and serious nonfatal injuries are caused by interactions with some form of industrial machinery, it is important for manufacturers to ensure that robots and other machines are designed with adequate safety devices in place. In turn, the employer is responsible for properly training employees and ensuring that manufacturer-provided safety devices are installed and properly maintained. Safer industrial machines will result in a reduction in deaths and nonfatal injuries requiring days off work.
One of the 2020 on-the-job injuries involved our client, Fitsroy Campbell, employed with Prairie Farms Dairy in Birmingham, Alabama. He was responsible for monitoring conveyors moving products throughout the facility. While performing his job duties, Mr. Campbell’s foot became entrapped in a floor chain on one of the conveyors. The entrapment led to a significant foot injury resulting in the eventual amputation of his leg below the knee.
Ironically enough, an OSHA representative was onsite investigating another on-the-job injury when Mr. Campbell was injured. After completing its investigation of Mr. Campbell’s injury, OSHA issued a Serious Citation against the employer for operating machinery without the machine manufacturer’s guards.
In addition to the fines issued by OSHA, Beasley Allen lawyer Kendall Dunson represents Mr. Campbell in his suit against the employer and the co-employees who removed the safety guards. The case is pending in the Circuit Court of Jefferson County, Alabama.
OSHA’s purpose is to emphasize worker safety, and many rules apply specifically to safeguarding industrial machinery. Without OSHA’s constant oversight, manufacturers and employers might be tempted to sacrifice worker safety for profits, leading to more deaths and serious injuries. Our lawyers will continue to monitor workplace injury statistics, and we will use them to inform our readers about workplace safety.
Source: Bureau of Labor Statistics
Pilot Union Opposes Boeing 737 Max Deadline Extension
The pilot union for American Airlines says it strongly opposes Boeing’s bid for a deadline extension that would allow the aircraft manufacturer to put its 737 MAX 7 and MAX 10 aircraft in the air without redesigning the cockpit alert system, which warns pilots of malfunctions and critical failures.
The Allied Pilots Association (APA) issued a public statement on Oct. 5 objecting to Boeing’s attempts to extend the certification deadline. Doing so, they say, would allow Boeing to avoid making improvements that the pilots say are needed to control the planes safely.
Aviation regulators worldwide grounded Boeing’s 737 MAX aircraft in March 2019 following the crash of Lion Air Flight 610 in October 2018 and Ethiopian Airlines Flight 302 five months later. The two crashes combined killed 346 people.
While the MAX 8 and MAX 9 returned to service in November 2020 after Boeing made a series of adjustments, the MAX 7 and MAX 10 will not be certified in time to meet an end-of-year exemption deadline set by Congress. Missing the deadline without making the required cockpit upgrades means the FAA cannot clear those models to fly. The FAA told the Senate that Boeing would not be able to certify the MAX 7 and MAX 10 before the summer of 2023.
“Boeing’s current system is simply not up to the task of keeping passengers safe,” says Beasley Allen lawyer Mike Andrews. Mike specializes in aviation litigation and represents the families of some of the victims of the Ethiopian Airlines crash. “Any attempt by Boeing to delay or avoid redesigning the crew-alerting system puts passengers and crew at unnecessary risk and is simply unacceptable,” he added.
In making its case for a new exemption deadline, Boeing says having the same cockpit-alerting system on all 737 MAX airplanes would help crew avoid confusion. The APA, however, pointedly rejected that claim. Union President Capt. Edward Sicher observed:
We oppose any extension of the exemption and don’t agree with Boeing’s claim that pilots could become confused when moving from an airplane without the modern alert system to one that is equipped with it. Nothing could be further from our flight deck reality.
Boeing CEO David Calhoun has threatened to cancel the MAX 10 program if Congress does not extend the deadline. Such a move would profoundly impact the company, its workforce, and the U.S. economy. Boeing currently has about a thousand orders for its MAX 10 airplanes and growing.
Families of the passengers and crew who perished in the two 737 MAX crashes also oppose a deadline extension and say that Calhoun is “bullying Congress” to get his way and avoid the upgrades.
It remains unclear whether Congress will move the deadline and exempt the MAX 7 and MAX 10, but the APA’s opinion could influence the outcome. The APA represents more than 15,000 American Airlines pilots, and American Airlines is the world’s largest airline by the size of its fleet and number of employees. Its opposition seriously undermines Boeing’s argument that having different cockpit alert systems could confuse the crew.
Sources: Seattle Times, Allied Pilots and Reuters
THE TALC LITIGATION
Johnson & Johnson announces New Consumer Products Spinoff Name
Johnson & Johnson (J&J) continues to divide itself into two standalone companies. One of these companies is focused on consumer health products, and the other is focused on prescription drugs and medical devices. J&J first announced its plan to separate last year and has indicated the split will occur in 2023, subject to any legal requirements.
As part of this endeavor, J&J has chosen Kenvue as the name of the new consumer health products company, which will include products such as Band-Aid, Tylenol, Aveeno, Listerine, and Neutrogena.
Included in the company’s effort to revamp the consumer business will be Johnson’s Baby Cornstarch Powder. The company stopped selling its iconic talc-based Johnson’s Baby Powder line in the U.S. in 2020 after decades of studies showing that the often-asbestos-contaminated product can cause ovarian cancer and mesothelioma. In August, the company stated that it will discontinue sales of talc-based powders worldwide in 2023.
In October 2021, as widely reported, Johnson & Johnson Consumer, Inc. spun off its talc powder-based liabilities into another new subsidiary, LTL Management, using a controversial legal maneuver known as the “Texas two-step.” The new subsidiary immediately filed for bankruptcy protection, halting tens of thousands of ovarian cancer lawsuits. The bankruptcy scheme is currently being litigated in the Third Circuit Court of Appeals as plaintiffs have argued the bankruptcy was not filed in good faith.
The consumer health division of J&J, which will become Kenvue, generated revenues of $14.6 billion in 2021.
For more information on the talcum powder litigation, contact Brittany Scott or Melissa Prickett at 800-898-2034 or by using the form below.
J&J Unit Wins Halt To Talc Suits In New Mexico And Mississippi
A New Jersey bankruptcy court judge told New Mexico and Mississippi that their asbestos-related consumer protection claims against Johnson & Johnson (J&J) must be put on hold. In denying the states’ request, Judge Kaplan said:
There can be no denying the palpable risks and harm facing the debtor and its reorganization efforts should the pending consumer protection claims be liquidated at this juncture outside of the Chapter 11 case.
The states are suing the consumer healthcare giant over claims that the company knowingly sold talc products laced with cancer-causing asbestos and failed to warn consumers.
The ruling was a procedural win for J&J. The company is working through the controversial bankruptcy of its newly formed subsidiary LTL Management LLC. The unit was created in 2021 to shoulder J&J’s talc liability. J&J is facing a slew of consumer lawsuits that claim the company’s asbestos-containing products caused them to develop mesothelioma and ovarian cancer. Those 38,000-plus lawsuits came to a screeching halt when LTL, shortly after its creation, announced it had filed for bankruptcy.
New Mexico and Mississippi had argued that their cases shouldn’t be placed on hold since LTL, not J&J, declared bankruptcy. LTL argued that the two sets of cases are “inherently intertwined.” The states also argued that ordering a stay would delay efforts to inform the public about the health hazards of talc, saying that would not require a lawsuit. That seemed to be an accurate assessment.
However, Judge Kaplan sided with J&J finding that the companies share insurance policies, LTL must indemnify J&J for talc claims and evidence created against J&J could be used in the plaintiffs’ cases against LTL. Judge Kaplan said:
As previously discussed, the talc-related consumer claims against the debtor and the nondebtor consumer protection defendants implicate the same products, the same time periods, the same alleged defects and the same alleged harms.
Judge Kaplan ultimately ruled in J&J’s favor, noting that the states’ case could potentially upend J&J’s agreement to fund LTL’s bankruptcy and a larger potential resolution with plaintiffs. He announced his intention to revisit the stay issue during an omnibus hearing for the case in December.
New Mexico Attorney General Hector Balderas, on Oct. 5, said in a statement:
We disagree with Judge Kaplan’s ruling and remain committed to ensuring that those companies that have knowingly harmed consumers for decades do not hide behind bankruptcy laws.
The states are represented by Robert K. Malone, Dale E. Barney, David N. Crapo and Michael A. Conforti of Gibbons PC.
The bankruptcy case is In re: LTL Management LLC, case number 3:21-bk-30589, and the adversary action is LTL Management LLC v. State of New Mexico et al., case number 3:22-ap-1231, both in the U.S. Bankruptcy Court for the District of New Jersey.
Sources: Law360.com and Bloomberg Law
Beasley Allen Talc Litigation Team
Beasley Allen lawyers Ted Meadows and Leigh O’Dell head the Beasley Allen Talc Litigation Team. Andy Birchfield, who heads our Mass Torts Section, has been directly involved in all phases of the talc litigation. The team handles claims of ovarian cancer linked to talcum powder and mesothelioma cases. Several key team members have been focused on Johnson & Johnson’s abuse of the bankruptcy system. The following Beasley Allen lawyers are members of the Talc Litigation Team:
Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague. While Charlie Stern and Will Sutton are on the team, they exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.
Pharmacy Defendants’ Attempt To Delay Opioid Bellwether Is Rejected By Court
The federal court overseeing the sprawling opioid epidemic multidistrict litigation (MDL) in Ohio has refused the request by pharmacy chain defendants to delay the next Ohio-based bellwether pending appellate review of a previous verdict in favor of plaintiffs and against pharmacy defendants. Both bellwethers are based on Ohio law, including the law of public nuisance as applied in Ohio. Defendants have repeatedly challenged the application of nuisance law to opioid marketing, dispensing, and distribution claims across the country and, with few exceptions, have lost those challenges.
The practical difference between seeking relief through nuisance law, as opposed to, for example, a negligence-based theory, is the relief sought by plaintiffs. Government plaintiffs across the country seek a remedy of abatement, that is, costs to mitigate the opioid crisis via prevention and treatment, rather than simply past damages for medical treatment and other adverse effects of the opioid crisis.
The litigation nationwide has shifted to chain pharmacies, who are now 0-2 in trials revolving around their responsibility for perpetuating the opioid crisis. The majority of opioid manufacturers and wholesale distributors have settled or filed for bankruptcy, including Purdue Pharma, which many believe birthed the opioid crisis when it began aggressively marketing OxyContin in the late 1990s. The only remaining manufacturer’s litigating are Teva and Allergan, although they have signaled a global settlement is near. Beasley Allen represents the State of Alabama in ligation against Cardinal Health and AmerisourceBergen, two wholesale distributors and the State of Georgia against manufacturers Teva, Allergan and distributer J.M. Smith.
Special Master Named Administrator of Opioid Case Against Pharmacies
A special master was appointed to serve as administrator to oversee the money distribution and other compliance regulations related to a judgment against CVS, Walgreens, and Walmart. The pharmacies agreed to pay $650 million for doling out thousands of prescription opioid painkillers in two Ohio counties and helping to fuel an opioid epidemic.
U.S. District Judge Dan Aaron Polster appointed David R. Cohen as special master over the case in 2018. As administrator, he will oversee the three pharmacies’ abatement programs for Lake and Trumbull counties. Judge Polster also appointed Michael J. Borden as assistant administrator.
“Both Special Master Cohen and Mr. Borden are well-known to the court and the parties, having worked on this MDL since its inception, and have a deep familiarity with all of the relevant issues,” Polster wrote. “Further, they together have the capacity to serve for the entire necessary period of 15 years.”
In November 2021, a jury found CVS, Walgreens, and Walmart were liable for opioid-related problems in the two counties. The pharmacies appealed, and the counties agreed to hold off on abatement payments until the appeal is settled, provided the companies put up a $141 million bond. As a result, the monies the pharmacies must pay into the programs are paused. But the program administrator will ensure they comply with the injunction’s terms.
The counties are represented by the Lanier Law Firm, Spangenberg Shibley & Liber LLP, Plevin & Gallucci Co., Napoli Shkolnik PLLC, Simmons Hanly Conroy LLC, Motley Rice LLC and Farrell & Fuller LLC.
The cases are County of Lake v. Purdue Pharma LP et al., case number 1:18-op-45032, County of Trumbull v. Purdue Pharma LP et al., case number 1:18-op-45079, and In re: National Prescription Opiate Litigation, case number 1:17-md-02804, all in the U.S. District Court for the Northern District of Ohio. The appeals are 22-3107, 22-3750 and 22-3751 in the U.S. Court of Appeals for the Sixth Circuit.
Walmart To Pay $215 Million In Latest Florida Opioid Settlement
Walmart Inc. has settled with the State of Florida, agreeing to pay $215 million to resolve litigation against the company connected to the state’s opioid crisis. The company will provide law enforcement and other first responders with 672,000 overdose treatment kits containing the anti-overdose drug Narcan. The state obtained the kits from a deal with Teva Pharmaceuticals in March.
Florida Attorney General Ashley Moody last struck a major opioid litigation deal in May, when Walgreens agreed to pay $683 million to end a Pasco County trial. The state described to jurors the company executives’ attempt to profit from the opioid epidemic.
The Walmart settlement fund includes approximately $188 million for the Florida “opioid remediation,” roughly $7.8 million for the common benefit fund established by the national multidistrict litigation (MDL) and just over $19 million for litigation costs. The company has entered a 10-year partnership with Florida to fight the opioid epidemic in exchange for ending the state’s opioid-related claims against Walmart. The settlement’s framework could help resolve other claims by cities and counties across the state.
Walmart told Law360:
This partnership is the latest chapter in Walmart’s commitment to fight the opioid crisis. “We are proud of our dedicated pharmacists, who help patients understand the risks about opioid prescriptions.
Teva paid approximately $195 million and provided $84 million worth of naloxone to the state earlier this year. The Attorney General’s office indicated that CVS Health Corp. also agreed to pay the state $484 million, Allergan PLC agreed to pay $134 million, and Endo International PLC paid $65 million.
The Beasley Allen Opioid Litigation Team
Beasley Allen’s Opioid Litigation Team continues to work on a large number of existing cases. There has been no slowdown at Beasley Allen in this litigation. As previously stated, Beasley Allen lawyers represent the State of Alabama and the State of Georgia, numerous local governments and other entities. Our lawyers are handling individual claims on behalf of victims in this litigation. Our Opioid Litigation Team includes:
Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne, Elliott Bienenfeld, Matt Griffith and Elizabeth Weyerman. If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above at 800-898-2034 or by using the form at the bottom of this page.
THE WHISTLEBLOWER LITIGATION
Biogen Whistleblower To Receive $250 Million Award From FCA Lawsuit
A former pharmaceutical manager will receive a $250 million award for bringing a whistleblower lawsuit under the False Claims Act (FCA) against Biogen, Inc. – an American multinational biotechnology company based in Cambridge, Massachusetts. The quarter-billion-dollar award to Pennsylvania resident Michael Bawduniak is believed to be “the single highest whistleblower award under any government program, shattering the previous False Claims Act records,” according to Bawduniak’s lawyer.
In 2004, Bawduniak started working at Biogen. He left the company in 2012 and filed his fraud suit. According to the lawsuit, Biogen paid sham speaker fees from 2009 to 2014 to generate prescriptions of the company’s multiple sclerosis drugs Avonex, Tysabri and Tecfidera in violation of the Anti-Kickback Statute.
The case settled for $900 million in July before jury selection and opening statements. The settlement is said to be among the largest whistleblower awards in U.S. history. This settlement should help revive other FCA cases not backed by the U.S. Department of Justice (DOJ).
Bawduniak is receiving 29.6% of federal proceeds from the drugmaker’s settlement, which a Massachusetts federal judge approved on Sept. 26, 2022. The award increases to $266 million when considering the proceeds the state will receive due to the whistleblower’s award. The maximum recover for a whistleblower (also known as a relator) in an FCA case that the government elects not to participate in is 30%. Unfortunately, some FCA whistleblowers and their lawyers will dismiss a case if the DOJ refuses to support and back their claim. The agency’s authority and resources are important in cases when whistleblower plaintiffs are battling huge, wealthy companies with good lawyers from big law firms with lots of resources.
Beasley Allen lawyers have been successful in several FCA cases – both when the government intervenes and when they have declined to do so. If you are aware of fraud, abuse or waste being committed against the federal government or a state government and are interested in pursuing a whistleblower lawsuit, contact a lawyer on Beasley Allen’s Whistleblower Litigation Team. You can visit our website at www.BeasleyAllen.com to read more about the successful results we have achieved on behalf of whistleblowers and the federal and state governments.
Circuits Said To Be In ‘Disarray’ Over Intent Standards of FCA
A former Arriva Medical LLC senior vice president Troy Olhausen asked the U.S. Supreme Court to consider if the False Claims Act (FCA) encompasses “compliance lapses tied to regulatory interpretations that are incorrect, but also ‘objectively reasonable,'” according to Law360. The Court has recently expressed interest in addressing the FCA’s unclear standards regarding intentional overbilling and simplifying the FCA’s scienter (knowledge of wrongdoing) standard.
Olhausen’s whistleblower petition to the high court reiterates similar arguments in other pending whistleblower cases. He told the court that cases focusing on inaccurate decisions made with a reasonable interpretation of compliance duties have created a hostile “muddle” among the country’s circuit courts.
It should be noted that the FCA only applies to intentional misconduct. A division in the interpretation of what the act considers scienter continues to increase. Olhausen described the current circumstances as “divided and dogged.” In response to an unpublished Eleventh Circuit panel’s opinion in April, Olhausen stated:
The circuit courts are in disarray about how to interpret the scienter provisions of the False Claims Act in cases where a defendant points to an objectively reasonable interpretation of the statutory or regulatory provision under which its conduct would be lawful.
In the other pending petitions, whistleblowers request a review of two decisions by Seventh Circuit divided panels. The high court has indicated its interest in bringing clarity to the FCA’s scienter standard by seeking guidance from the U.S. solicitor general.
Olhausen’s lawyer Stephen F. Rosenthal a partner with Podhurst Orseck PA, told Law360 that the Court should be alarmed about the “spaghetti bowl of divergent approaches” and the potential for fraudsters to avoid liability because their defense lawyers contrive sensible interpretations after the fact. Rosenthal said:
It seems antithetical to the text and Congress’ intent in the False Claims Act to let a Medicare-fraud defendant off the hook just because its lawyers can identify, after the fact, some regulatory ambiguity.
In his initial whistleblower claim, Olhausen alleged several types of regulatory violations involving billing for diabetic testing supplies. One type of violation was failing to obtain the required signatures from Medicare beneficiaries. The case was dismissed by the district court for lacking specifics and upheld for lack of scienter by the Eleventh Circuit. The Eleventh Circuit wrote:
Even if Arriva’s interpretation is wrong … Olhausen cannot show that Arriva had the requisite scienter, because it is an objectively reasonable interpretation of the rules to conclude that the signatures were not required.
The Eleventh Circuit has reached similar conclusions after hearing cases involving other types of purported violations of Medicare rules.
Olhausen named Alere Inc., the company that acquired Arriva, in his lawsuit. Alere Inc. is part of Abbot Laboratories. The U.S. Department of Justice secured a $160 million FCA settlement with Arriva and Alere last year. The allegations included receiving kickbacks and billing for unnecessary equipment.
Another case involving Allergan will likely soon reach the high court from the Fourth Circuit. The plaintiffs expressed intent to seek the Supreme Court’s review after the entire Fourth Circuit deadlocked in their case. It will join the petitions from the Seventh and Eleventh Circuits.
At the heart of Olhausen’s petition and those from the Seventh Circuit is whether the Supreme Court’s Safeco Insurance Co. of America v. Burr decision in 2007 is the controlling standard for the FCA scienter requirement. Safeco was a Fair Credit Reporting case. The Court ruled that when a statute’s language and agency guidance “allow for more than one reasonable interpretation, it would defy history and current thinking to treat a defendant who merely adopts one such interpretation as a knowing or reckless violator.”
Olhausen’s petition notes that the Eleventh, D.C., Seventh and Eighth circuits apply the Safeco standard in FCA cases. The Sixth, Ninth and Tenth circuits “apply a subjective standard to determine whether a defendant actually knew or should have known that it was committing an FCA violation.” Olhausen acknowledged in his petition that “it is true that no appellate court has expressly rejected the applicability of Safeco to the FCA.” Olhausen asserted that “multiple circuits have interpreted the FCA scienter requirement to demand an evaluation of a defendant’s subjective mindset.”
Adding another layer of confusion about the circuit split, Olhausen argued that the Eleventh Circuit’s decision in his case is in “direct conflict” with its prior decision in another FCA case, Phalp v. Lincare Holdings Inc.
Olhausen explained the circuit split over the FCA’s scienter standard and depicted the split as contentious within the circuits, citing a “withering dissent” in one of the Seventh Circuit cases and a “vehement dissent” in the Fourth Circuit case.
Lawyers at Beasley Allen are hopeful that the high court will settle the confusion caused by the split among the circuits on the “scienter” requirement. I have to believe that will happen.
Olhausen is represented by Stephen F. Rosenthal, Ricardo M. Martinez-Cid, Lea P. Bucciero and Christina H. Martinez of Podhurst Orseck PA, and by Kevin D. Neal and Kenneth N. Ralston of Gallagher & Kennedy PA.
The case is Olhausen v. Arriva Medical LLC et al., case number 22-374, before the Supreme Court of the United States.
The Beasley Allen Whistleblower Litigation Team
Beasley Allen lawyers continue to be heavily involved in handling whistleblower cases. Fraudulent conduct continues to cause huge problems in many industries in this country. Our firm assigned a number of lawyers to the whistleblower litigation at the outset. We have significantly increased our healthcare whistleblower practice. Our lawyers continue to handle cases throughout the country involving fraud against governments.
If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed above.
The experienced group of lawyers on the Whistleblower Litigation Team is dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can be reached by phone at 800-898-2034 or by using the form at the bottom of this page.
SEC And CFTC Messaging Investigations Net $1.8 Billion In Big Bank Penalties
The Securities and Exchange Commission (SEC) has announced an agreement between the regulatory agency and a number of major Wall Street firms that agreed to pay nearly $2 billion in penalties. The penalties are in response to recordkeeping failures by the firms over the use of personal messaging apps by their employees to discuss business matters.
The SEC announced that employees at 15 broker-dealers and one affiliated investment advisor used apps on their personal devices to communicate about business matters. Still, the firms failed to preserve most of these messages as required under federal law.
The SEC and the Commodity Futures Trading Commission (CFTC) levied the fines as a part of settlements with units of 11 financial services giants, including Bank of America, Citigroup and Goldman Sachs, to resolve industry-spanning probes into bankers’ texting on the job.
The regulators said that employees across these firms routinely used their personal mobile messaging apps to talk shop, despite company policies forbidding them from doing so. As a result, the regulators said the firms failed to archive innumerable business-related communications that they were legally required to log.
Bank of America units are responsible for paying the largest overall total of $225 million in civil penalties ($125 million to the SEC and $100 million to the CFTC). In contrast, units of Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, Morgan Stanley and UBS have agreed to combined penalties of $200 million each. Nomura and Jefferies units, meanwhile, will pay penalty totals of $100 million and $80 million, respectively, and Cantor Fitzgerald has agreed to a $16 million sum.
The fines will result in a $1.11 billion haul for the SEC and another $711 million to the CFTC. That’s on top of the $200 million that the agencies fined JPMorgan late last year for violations that the agencies have described as “widespread and longstanding” failures by Wall Street bankers, traders and even senior executives to comply with their firms’ communication protocols, which are supposed to be designed to ensure proper recordkeeping.
All the firms also admitted to wrongdoing — a rarity in enforcement proceedings — and have begun to implement improvements to their compliance protocols, according to the agencies.
Under SEC and CFTC rules, investment banks are required to keep copies of all business-related communications that employees send and receive. These archived agency officials’ messages can be of enormous value for enforcement investigations. Recordkeeping requirements are “sacrosanct,” the SEC’s Director of Enforcement, Gurbir Grewal, said in a statement. He added:
If there are allegations of wrongdoing or misconduct, we must be able to examine a firm’s books and records to determine what happened.
But the SEC and CFTC said their investigations found that traders, bankers and other employees at some of Wall Street’s biggest banks — including even supervisors and senior executives — frequently had business-related chats with each other and with clients using personal texts, WhatsApp messages and other “unapproved” private channels. These “pervasive off-channel communications,” as the SEC called them, went back to at least 2018 and weren’t monitored or archived by employees’ firms, effectively keeping the contents of tens of thousands of messages off the record and potentially out of regulators’ hands.
“The conduct found serves as a red flag about Wall Street’s culture,” CFTC Commissioner Christy Goldsmith Romero said in a statement, noting that the CFTC also encountered instances of employees being told to delete prior messages or use apps with encryption capabilities. She added:
The tone at the top the CFTC found was one of evasion and obfuscation, to keep bank compliance and regulators in the dark. Change can only happen if the bank’s C-suite establishes a culture of compliance over evasion. It is far past time for the C-suite to step up.
The agencies said the banks failed to preserve their employees’ off-channel communications and maintain adequate controls and oversight to prevent such lapses. The settlements also require certain “remedial undertakings,” including hiring outside consultants to conduct communications compliance reviews.
Source: Law360.com and SEC
Altria Investors’ Enhanced Settlement of $117 Million Gets Initial Approval
U.S. District Judge David J. Novak, a Virginia federal judge, has given preliminary approval to what is described as the “enhanced” form of a proposed $117 million settlement between Altria Group investors and the tobacco company. The court deemed the settlement’s previous version “inadequate.” Judge Novak preliminarily approved the amended agreement in the consolidated derivative shareholder action. Plaintiffs claim that Altria executives recklessly made a “disastrous” $12.8 billion investment in JUUL. The case is slated for additional hearings in January.
The proposed settlement will end two related shareholder derivative actions in Virginia state court.
The investor plaintiffs asserted that Altria directors and officers’ buying 35% of JUUL in 2018 was a breach of their fiduciary duties. Further, plaintiffs claim that the defendants engaged in “illegal and anti-competitive conduct,” costing the company billions of dollars as JUUL faced many lawsuits, according to Law360. The cases against JUUL allege the health risks of its products and target underage consumers with the marketing of the products. The investors say Altria knew about the lawsuits when it invested in JUUL but disregarded the problems.
After Judge Novak rejected the first proposed settlement in August, the parties reconvened and produced an improved proposal, incorporating the court’s guidance and consenting to several “material enhancements.”
One provision of the proposed settlement is appointing Michael S. Dry as an independent monitor for a five-year term. Dry is a partner at Vinson & Elkins LLP and a former federal prosecutor.
The investors described “certain fixed measurables” Altria has committed to for preventing underage use of the tobacco company and JUUL’s products. The investors said:
This comprehensive remedial package directly addresses the alleged wrongdoing and will confer real and substantial value to Altria by reducing the probability that Altria will make similar misguided investments in the future and ensuring that Altria’s underage use prevention efforts are overseen by an independent monitor appointed by the court. It also will serve the public interest by contributing to the prevention and reduction of underage use of tobacco products, including e-vapor systems and newly developed nicotine delivery systems.
The shareholders said the amended settlement proposal still includes all the major items in their initial proposal. For example, according to the original motion for preliminary approval, Altria agreed to pay $117 million over five years or a minimum of $20 million per year to support programs aimed at preventing underage tobacco use or the use of existing or newly developed nicotine products.
It also agreed to corporate governance reforms, including evaluating underage use impact when considering future expansion or investment opportunities. Altria agreed to establish a formal structure and specify duties regarding the company’s Underage Use Prevention Steering Committee. This committee includes senior managers from Altria’s four operating companies who would meet to discuss developing underage use prevention issues and determine other actions necessary to achieve Altria’s corporate goals.
The initial proposal also required JUUL and Altria representatives to meet semiannually to discuss initiatives to prevent youth or underage tobacco use. The representatives would also determine new prevention efforts.
Further, Altria would maintain its corporate goals “to lead the tobacco industry in preventing underage use of tobacco products and contributing to the healthy development of youth ages 12-18” for five years following the settlement. The defendant’s operating and service companies would also be mandated to address the prevention of underage use.
The parties also agreed to allow investors to request up to $17.5 million for attorney fees and expenses. The settlement is “not contingent in any way on the court’s approval of attorney fees,” the parties said.
The shareholders are represented by Kip B. Shuman of Shuman Glenn & Stecker, Geoffrey M. Johnson of Scott + Scott Attorneys at Law LLP and Craig J. Curwood and Paul M. Falabella of Butler Curwood PLC.
The case is In re: Altria Group Inc. Derivative Litigation, case number 3:20-cv-00772, in the U.S. District Court for the Eastern District of Virginia.
Beasley Allen Securities Litigation Team
Our firm is actively involved in securities cases, and we continue to grow this area of our practice. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following:
James Eubank heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team. The team members can be reached at 800-898-2034 or by using the form at the bottom of this page.
THE JUUL LITIGATION
JUUL Litigation Update
Altria, Inc., a significant investor in JUUL, has used its option to end its non-compete agreement with JUUL. This decision follows a Food and Drug Administration (FDA) order temporarily banning the sale of JUUL in the U.S. during the review of the company’s application (initially submitted in 2020). JUUL appealed, the temporary ban was blocked, and JUUL can sell its product while the FDA continues its review.
This decision follows JUUL’s $438.5 million settlement with 34 states and Puerto Rico. Under the agreement, JUUL will pay the settlement amount over six to ten years. The final settlement will rise to $476.6 million if JUUL pays the amount over a decade.
The multidistrict litigation (MDL) against JUUL, the founders of JUUL and key company directors, Altria, Inc., is still underway. Currently, there are nearly 4,000 suits in the MDL, including personal injury suits and claims brought by school districts, government entities and tribes. The first bellwether trial is set to start in November 2022. The case is being brought by San Francisco United School District. The first personal injury bellwether trial is set to begin in January 2023.
Beasley Allen lawyers continue to file cases for individuals suffering from personal injuries and claims on behalf of school districts and government entities across the country. If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team at 800-898-2034 or by email. Members include Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding and Soo Seok Yang.
The Beasley Allen JUUL Litigation Team
Beasley Allen lawyers in the Mass Torts Section, led by Joseph VanZandt, continue to be heavily involved in the JUUL litigation. The lawyers represent individuals suing JUUL Labs, the top U.S. vape maker, for the negative impact its products have had on the lives of victims. Our lawyers also represent a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team has filed lawsuits nationwide on behalf of school districts. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.
Beasley Allen lawyers continue to file cases for individuals suffering from personal injuries and claims on behalf of school districts and government entities across the country. Joseph VanZandt, who heads up our firm’s JUUL Litigation Team, serves on the JUUL Plaintiff Steering Committee and is trial counsel for the first bellwether trial. Joseph and Mass Torts Section Head Andy Birchfield lead our firm’s efforts to hold JUUL accountable for the damage it caused to thousands of youths and communities around the country. Beasley Allen’s Beau Darley also serves on the PSC for the California state court litigation.
If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team at 800-898-2034 or by using the form at the bottom of this page. Members are:
Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding or Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and works closely with the team on the JUUL litigation.
THE ASBESTOS LITIGATION
Railroaders And Mesothelioma
As discussed in prior mesothelioma articles in this publication, there were a variety of trades and industries that resulted in elevated asbestos exposures to the workers within those industries. One example is the railroad industry. The railroad industry employed numerous tradesmen (and women) whose job duties created opportunities for asbestos exposure.
Most trains in the U.S. were powered by steam in the first half of the 20th Century, necessitating steam-generating equipment, such as boilers. Many of these items required insulation material, which would often be asbestos-containing. Workers on the trains themselves or at the train repair facilities often worked with and around this material, which resulted in elevated rates of mesothelioma for steam-era railroaders.
As time passed, the trains began to be powered by diesel engines, which did not require as much insulation as their steam-powered predecessors. But there were still ample amounts of asbestos used on diesel-powered trains, including in brake shoes, electrical equipment and in the cabooses. Trainmen were at risk for these exposures through much of the 20th Century.
But along with identifying exposures, another important aspect of railroad cases is the interplay between state and federal law impacting railroad work and potential civil liability. Over the years, railroad-specific laws were passed to protect railroad workers, such as the Boiler Inspection Act, the Locomotive Inspection Act, the Safety Appliance Act, and Federal Railroad Safety Act, among others. Knowing the interplay between these acts, available causes of action, and the always-important impact of preemption is paramount in railroad cases.
In a recent case handled by our mesothelioma team, all these issues were in play. Step one was to identify the exposures, requiring traditional and third-party discovery to identify sources of asbestos utilized by the defendant. But that was not enough. Without a clear understanding of railroad-specific federal and state laws, the viability of these claims would have been uncertain. However, our mesothelioma team has an expert’s understanding of the relationship between these statutes, particular states’ tort claims, and the specific exposures suffered. This ensured that this case’s value was maximized. At Beasley Allen, our team of asbestos lawyers has this nuanced understanding and is prepared to litigate these complex cases to ensure maximum recovery for our clients.
The Beasley Allen Asbestos Litigation Team
Asbestos litigation continues to be extensive nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation. He was a perfect fit to lead the team. Thus, Charlie was selected to lead the Beasley Allen team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or by using the form at the bottom of this page.
MASS TORTS LITIGATION
JPML Consolidates Acetaminophen Claims Involving Autism And ADHD
The Judicial Panel on Multidistrict Litigation (JPML) consolidated cases alleging a link between autism spectrum disorder (ASD) or attention-deficit hyperactivity disorder (ADHD) and prenatal exposure to acetaminophen into a multidistrict litigation (MDL). The JPML heard arguments from various parties on Sept. 29 at the U.S. Courthouse in St. Louis, Missouri. On Oct. 5, the panel decided to transfer the acetaminophen cases to Judge Denise L. Cote of the U.S. District Court for the Southern District of New York.
The JPML rejected the defendants’ arguments against an industrywide MDL, meaning an MDL involving many different acetaminophen products (as opposed to one MDL per product). The panel expressed in its order that it was “confident that the transferee judge can accommodate any issues involving the different products and defendants, including confidentiality and retailer-specific discovery, in a manner that guarantees the just and efficient resolution of all cases.”
The JPML further explained why Judge Cote was the right person to oversee these acetaminophen cases. “Judge Cote is thoroughly familiar with the nuances of complex, multidistrict litigation by virtue of having presided over eight MDLs which have involved a broad range of complex issues, including pharmaceutical products liability and industrywide dockets,” the panel wrote in its Oct. 5 order. Judge Cote will likely soon set an initial status conference with the litigants to start discussing leadership selection and discovery planning.
For more information about the acetaminophen litigation, contact Mary Raybon or Melissa Prickett at 800-898-2034 or by using the form at the bottom of this page.
Issues Revealed With Energy-Based Vaginal Rejuvenation Procedures
Energy or laser-based vaginal rejuvenation procedures have become increasingly popular since the early to mid-2000s as a non-invasive alternative to vaginal tightening through heating tissues with radiofrequency waves or lasers. Laser vaginal rejuvenation companies boast that the procedure can improve vaginal dryness and urinary incontinence and create a firmer and more youthful vaginal area in a simple, painless procedure.
Despite these claims, many women experience severe pain in their vaginal areas due to thermal burns that subsequently cause scarring, muscle spasms, urinary issues, infections, and inflammation. An independent review of the Manufacturer and User Facility Device Experience (MAUDE) database revealed at least 58 adverse event reports involving at least seven different laser manufacturers with products used in vaginal rejuvenation procedures. Patients independently reported most of the adverse events after undergoing the treatment.
In July and August 2018, the FDA’s Surveillance and Enforcement Branch confronted these manufacturers. They stated that each company marketed its product in a manner that potentially violated the Food, Drug & Cosmetics Act because the devices had not been specifically approved for conducting vaginal rejuvenation procedures.
Beasley Allen lawyers in our Mass Torts Section are investigating cases on behalf of individuals who underwent a laser vaginal rejuvenation procedure and suffered adverse events, including severe pain, burning, scarring, and urinary issues. For more information, contact Melissa Prickett or Roger Smith.
Heavy Metals In Baby Food Update
As we highlighted last month, baby food manufacturers, advocates and state agencies recently conducted tests showing one in four popular baby food brands contains unsafe levels of four toxic metals – arsenic, cadmium, lead and mercury. Infants’ exposure to these toxic heavy metals can lead to serious and irreversible damage to their developing brains. Brands tested include HappyBABY, Beech-Nut Nutrition Company, Earth’s Best Organic, Gerber, Parent’s Choice, Sprout Organics and Plum Organics.
Recently, three women from Texas, Indiana and Washington filed a class action lawsuit in Ohio against the baby food distributor Kroger Co. citing misleading labels, as they did not inform them of the harmful heavy metals in the ingredient list nor in a disclaimer. This class action seeks a nationwide class, Indiana subclass, Texas subclass and Washington subclass.
Arsenic exposure can cause adverse respiratory, gastrointestinal, hematological, hepatic, renal, skin, neurological and immunological effects. Exposure to toxic arsenic, cadmium, lead and mercury levels can also:
- damage children’s central nervous systems
- damage children’s cognitive development
- permanently decrease IQ
- cause behavioral problems
- diminish future economic productivity
- reduce postnatal growth and delay puberty
- cause Attention-Deficit Hyperactivity Disorder (ADHD)
- cause Autism Spectrum Disorder (autism)
The FDA urges manufacturers to reduce exposure to toxic heavy metals as much as possible while creating the Closer to Zero Action Plan, which sets timelines for establishing maximum arsenic, cadmium, lead and mercury levels.
Roger Smith, Chad Cook, Mary Cam Raybon and Melissa Prickett, lawyers with Beasley Allen Law Firm, are currently investigating individual cases involving children who consumed Baby Food contaminated with toxic heavy metals. You can contact these lawyers at 800-898-2034 or by using the form at the bottom of this page.
A New Method For Tolling Cases In The Philips Respironics MDL
On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the United States. The recall was issued because the PE-PUR foam used to reduce the noise and vibration of the machine has long been known to be toxic, and it off-gasses toxic fumes. These toxic particles and fumes can enter the devices’ airways, which can, in turn, be inhaled by the users. The potential health risks for inhaling particles of the PE-PUR foam include asthma, irritation to the respiratory tract, and cancer-causing effects on organs like the lungs and kidneys.
In anticipation of a high volume of plaintiffs filing complaints throughout the U.S., these cases were consolidated into a multidistrict litigation in the Western District of Pennsylvania. Then, on Aug. 23, a joint motion was filed by plaintiffs and defendants asking for a census registry program to be approved. Specifically, plaintiffs will disclose health information, which will toll the statute of limitations.
This motion was approved on Sept. 14, effectively replacing the former tolling agreement. The Judge’s approval of this program does not mean the information gathered through this process can be used during the bellwether selection process. The sole purpose of the census registry is to gather information to determine how best to utilize resources and proceed efficiently in the growing litigation. This will allow plaintiffs’ lawyers to further investigate potential claims before filing more cases.
Beasley Allen lawyers are investigating claims for the users of the recalled machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information, contact Alexa Wallace or Melissa Prickett at 800-898-2034 or by using the form at the bottom of this page.
Infant Formula Litigation Update
Cow’s milk-based infant formula has been shown to dramatically increase the risk of necrotizing enterocolitis (NEC) in premature, underweight infants. NEC is a dangerous and often fatal condition that causes necrosis of the underdeveloped intestines of newborns, causing a myriad of both immediate and long-term health problems. Despite this significant health risk to newborns known to both defendants for decades, neither of the two major formula manufacturers, Mead Johnson (Enfamil) or Abbot Laboratories (Similac), offer any warning of NEC on their infant formula products.
Beasley Allen lawyers represent many parents and children for claims against these two formula companies. We have numerous cases filed, and aggressive discovery is ongoing in federal and state court. U.S. District Judge Rebecca Pallmeyer presides over the recently established a multidistrict litigation (MDL) in the Northern District of Illinois. A status conference was held on Oct. 11.
In the MDL, 12 cases are being selected for potential bellwether trials. Defendants suggested that choosing bellwether cases for trial at this stage may be premature as they may not be representative of the many more to be filed. The judge was not persuaded and is moving forward with a target trial date in the summer or upcoming fall. The parties were also instructed to continue to meet and confer to resolve discovery issues.
Circuit Court Judge Dennis Ruth is overseeing NEC cases filed in Madison County, IL. Plaintiff lawyers continue to move through discovery to evaluate the thousands of documents produced by the defendants, anticipating a possible trial date in spring 2023. There is presently a February expert witness disclosure deadline.
David Dearing, Brittany Scott, and Suzanne Clark, lawyers in our firm’s Mass Torts Section, are heading the baby formula litigation for the firm and are aggressively investigating new cases. You can reach them at 800-898-2034 or by using the form at the bottom of this page.
EMPLOYMENT AND FLSA LITIGATION
Fifth Circuit Court Of Appeals Rules Gender Discrimination In Texas Law Enforcement
A panel of three judges for the U.S. Court of Appeals for the Fifth Circuit has unanimously ruled in favor of the appellee (defendant) in a case involving the gender-based schedule assigned to male and female detention officers at the Dallas County, Texas, Jail. Specifically, the county allowed male officers to have entire weekends off but only allowed female officers either two weekend days off or one weekday and one weekend day off.
The plaintiffs were nine female officers who believed this change made their job “objectively worse” than their male counterparts. Initially, the female officers utilized the chain of command to resolve the issue. Still, when that was unsuccessful, the officers challenged the policy in the U.S. District Court for the Northern District of Texas.
The Fifth Circuit did not allow the case beyond the pleading stage. It had narrowly defined an “adverse employment action,” as previously determined in the 1995 case Dollis v. Rubin. Specifically, the prior precedent was “ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.”
Rather than agreeing with the district court and the first Fifth Circuit Panel, which applied the precedent discussed above, this panel of the Fifth Circuit rejected the premise that the previous precedent was correct and stated in its order, “[t]he conduct complained of here fits squarely within the ambit of Title VII’s prohibited conduct. The County would appear to have violated Title VII.”
The Fifth Circuit even went so far as to encourage an en banc review of the matter to change the law so other plaintiffs could move forward with their claims.
Beasley Allen lawyers have led the charge for many victims of sex discrimination in the past, and we remain committed to this area of litigation. If you feel you are working in a hostile work environment to your gender, seek legal counsel, as laws prevent nonequality in the workplace. You can contact Jessi Haynes, a lawyer in our Consumer Fraud & Commercial Litigation Section, for more information. She can be reached at 800-898-2034 or by using the form at the bottom of this page.
PREMISES LIABILITY LITIGATION
Beasley Allen Investigating Tragic Shooting At Cobb County Apartment Complex
Beasley Allen is investigating the tragic shooting death of Jason Escoffrey at a Cobb County, Georgia, apartment complex. Parker Miller, a lawyer in our firm’s Atlanta Office, heads up our firm’s premises liability and security practice. He is taking the lead in investigating this case for the firm. Jason was only 21 years old when the shooting happened. His mother described Jason as having “a heart of gold” and someone who “would run across the street to help a little old lady.” Jason left behind his mother, Tanisha Stephens, his twin brother Jalen, his older sister Madison, and other family members.
The shooting occurred at Highlands of West Village apartments. Jason, from Opelika, Alabama, visited a friend in Atlanta when gunfire broke out at the complex. Multiple bullets hit him. “This case is incredibly sad for the family and their community,” Parker said. “They were very close; by all accounts, Jason came from a great family and was not a troublemaker.”
This case is just one in a long line of horrific shooting deaths at apartment complexes around Atlanta in the last few months, but the impact is always devastating. Parker had this to say:
We are at a point where we expect to see the morning news tell us that another young person has been gunned down at an apartment complex, and that is simply unacceptable. Most apartment complexes try to be knowledgeable of their property and take reasonable measures to secure their property from bad actors. But unfortunately, there are certain complex owners and management companies that become more focused on making money instead of rectifying clear problems. This is particularly true in complexes where loitering, drug activity, fights, gang violence, or shootings frequently happen.
It is convenient to point to the police response or certain bad actors, but in my experience investigating these cases, it often comes back to the environment, and the comfort criminals have with that environment. If would-be criminals are comfortable knowing they can do what they want with impunity, you start seeing these brazen acts like the one that took Jason’s life. All it takes is a few basic measures on the property that make would-be criminals think twice, and a property owner can revolutionize the safety of a property.
Beasley Allen lawyers are investigating a number of tragic criminal victimization cases related to property security. If you have any questions about these cases, contact Parker Miller or Houston Kessler at 800-898-2034 or by using the form at the bottom of this page.
Source: Fox 5 Atlanta
Premises Liability – Superior Knowledge Of The Proprietor
In Georgia, traditional premises liability claims require the plaintiff to show that the defendant had actual or constructive knowledge of the dangerous condition causing the plaintiff’s injury. This is only part of the analysis, however. “The true basis of a property owner’s liability for an injury to its invitee is the owner’s superior knowledge of a condition that may expose the invitees to unreasonable harm.” Williams v. Johnson, 344 Ga. App. 311 (2018)(citation omitted).
While a lack of superior knowledge is often asserted as a defense in such cases, it is still important to note that, for that defense to be viable, there must be “undisputed evidence … that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.” Cherokee Main St., LLC v. Ragan.
This principle has also been applied to premises cases involving a third-party criminal act. For example, in Georgia CVS Pharmacy, LLC v. Carmichael, the court held that the issue of whether the plaintiff, who was shot in the defendant’s parking lot during an armed robbery, had superior knowledge of the danger was a question for the jury, even though the defendant argued that the plaintiff had a prior relationship with one of the perpetrators of the robbery. In its opinion, the Court assumed arguendo that said individual was actually involved in the robbery – yet still noted that no evidence had been presented at trial that the plaintiff had knowledge that said individual potentially presented a risk to him.
Parker Miller and Houston Kessler, lawyers in our Atlanta office, have handled numerous catastrophic injury premises liability and third-party criminal act cases across the southeast, including in the State of Georgia. If you have questions about these cases, you can contact these lawyers at 800-898-2034 or by using the form at the bottom of this page.
Amplify Energy Settles Oil Spill Class Actions for $50 Million
Members of three classes and Amplify Energy have asked for preliminary approval of a $50 million deal that will end the lawsuits over the company’s oil spill off the Southern California coast in October 2021. The Houston-based oil and natural gas company experienced a major crude oil pipeline leak, releasing about 25,000 gallons of crude oil approximately five miles off the coast of Huntington Beach, California.
Shortly after the spill, businesses and beach residents made claims that the spill harmed them. U.S. District Judge David O. Carter consolidated almost a dozen lawsuits in December 2021. During that time, federal prosecutors in California charged Amplify, its subsidiary Beta Operating Co. LLC and San Pedro Bay Pipeline with a misdemeanor for negligently discharging oil. In September, the defendant agreed to pay $13 million in exchange for dismissing the federal criminal charge.
The proposed deal specifies the amount to be paid, which includes $34 million to fish industry plaintiffs in one class, $9 million to a class of property owners and $7 million to a class of waterfront tourism class. The plaintiffs said:
The proposed settlement is an excellent result for the proposed settlement classes, and readily satisfies the criteria for preliminary settlement approval of being fair, reasonable, and adequate. In particular, the settlement will provide Orange County businesses and residents with relief rapidly, rather than after years of continued litigation and appeals that would otherwise ensure.
The proposed settlement also provides for injunctive relief. Amplify agreed to the following:
installation of a new leak detection system, more frequent use of remotely operated vehicles … to detect pipeline movement and allow rapid reporting of such movement to federal and state authorities, increased staffing on the off-shore platform and control room involved with this oil spill, establishment of a one-call alert system to report any threatened release of hazardous or pollutant substances, and more.
According to Amplify, its insurers will cover the settlement. However, the settlement does not determine claims against container ships Amplify says is responsible for damaging its underwater oil pipeline that cause the leak. Amplify alleges that when a storm hit the area, two container ships’, the MSC Danit and Cosco Beijing, anchors dragged across the ocean floor, displacing the San Pedro Bay Pipeline. The defendant also claims that Marine Exchange of Southern California, a group charged with monitoring marine traffic, failed to inform the Amplify of the damage.
Earlier this year, Amplify agreed to a $1 million settlement with the Orange County Board of Supervisors to offset oil cleanup costs. It also agreed to pay California $4.9 million in fines and penalties over a 2021 offshore oil pipeline leak.
Lawyers for the class can seek up to 25% or $12.5 million from the settlement fund for attorney fees. Other costs will be deducted from the $50 million fund.
The proposed class is represented by Wylie A. Aitken of Aitken Aitken Cohn, Lexi J. Hazam of Lieff Cabraser Heimann and Stephen G. Larson of Larson LLP. The case is Peter Moses Gutierrez v. Amplify Energy Corp. et al., case number 8:21-cv-01628, in the U.S. District Court for the Central District of California.
TOXIC TORT LITIGATION
On Appeal Seventh Circuit Agrees To Review Bankruptcy Court’s 3M Ruling
3M and its subsidiary Aearo Technologies appealed U.S. Bankruptcy Judge Jeffrey Graham’s decision to the Seventh Circuit, and the panel agreed last month to consider the appeal. Judge Graham refused to grant the companies’ request for a preliminary injunction to halt the ongoing multidistrict litigation (MDL) over Aearo’s Combat Arms Earplugs, or CAEv2, while the companies appeal a ruling by the MDL judge to the Eleventh Circuit.
The companies also requested the earplug litigation against 3M be stayed while 3M appealed an injunction to the Eleventh Circuit. The Eleventh Circuited granted the motion on Oct. 13.
Judge Graham issued his ruling on Aug. 26, finding that 290,000 claims against 3M wouldn’t affect Aearo’s ability to pay its debts. He rejected Aearo’s claim that it must use its own resources, holding that the agreement between 3M and Aearo “clearly” says that if Aearo can’t pay 3 M’s liability, 3M must cover the obligations.
The defendants seek to resolve their appeal with a fast and decisive solution for the “orderly progression of the bankruptcy case.” 3M acknowledged that the general rule prevents the stay from applying to the company but argued that exceptions to the general rule might apply. Yet, Judge Graham refused to consider that argument, explaining that the Seventh Circuit hadn’t considered the issue. The defendants also said that case law on the matter conflicts.
The companies are facing many lawsuits over the Combat Arms Earplugs, or CAEv2, and other equipment they supplied to the military. Those suits have been consolidated into a multidistrict litigation (MDL) in a Florida federal court with U.S. District Judge M. Casey Rodgers presiding. There have been 13 bellwether trials, and jurors have awarded plaintiffs $300 million in damages.
A large majority of cases are still pending, so earlier this year, 3M placed Aearo into Chapter 11 proceedings. Its goal is to create a $1 billion trust to pay the claims. Plaintiffs have accused 3M of using the bankruptcy process to freeze the cases or “relitigate” issues already decided by the Florida federal court.
Richard Vale, one of the MDL plaintiffs, asked Judge Rodgers to intervene in the bankruptcy proceedings. Judge Rodgers responded by issuing an injunction to prevent 3M from bringing issues Judge Rodgers already ruled on to the bankruptcy court to receive a more favorable ruling.
One service member, Richard Valle, urged U.S. District Judge M. Casey Rodgers, the judge overseeing that MDL, to intervene. Judge Rodgers did so, issuing an injunction barring 3M from bringing issues she had already ruled on to the bankruptcy court because of its “dissatisfaction with the MDL system, this court’s legal rulings and the multiple jury verdicts against it.”
3M asked Judge Rodgers to stay the injunction while it appealed to the Eleventh Circuit. Judge Rodgers rejected 3 M’s request explaining that she issued the injunction to preserve her rulings, which could be undermined if the court temporarily paused the injunction. That same day, Judge Graham found that despite agreeing to indemnify 3M for liability, Aearo could use 3M’s cash to fulfill damages payments. Later, in September, Judge Graham allowed appeals and post-trial motions to progress for Florida trials over claims that plaintiffs experienced hearing loss because of Aearo’s earplugs.
The plaintiff veterans are represented by Andrew H. Schapiro of Quinn Emanuel Urquhart & Sullivan LLP. The case is In re: Aero Technologies LLC et al., case number 22-2606, in the U.S. Court of Appeals for the Seventh Circuit.
If you need more information, contact Will Sutton, the lawyer in our firm handling the 3M litigation. He can be reached at 800-898-2034 or by using the form at the bottom of this page.
3M Denied A New Trial After $50 Million Earplug Injury Verdict
After Luke Vilsmeyer, a veteran Green Beret, was awarded a $50 million jury verdict over his claims that 3M’s Combat Arms earplugs caused him tinnitus and hearing loss, the defendant company was denied a new trial. U.S. District Judge Roy B. Dalton Jr. in Florida found that the verdict is “substantially supported” by the evidence presented at trial.
Judge Dalton rejected 3M’s response to Vilsmeyer’s claims that the veteran’s injuries were mild and treatable. He also rejected 3M’s request for a new trial and a secondary motion for remittitur, saying:
The record substantially supports that plaintiff’s tinnitus in particular is in fact quite severe and constant, and as defendants concede, permanent.
Vilsmeyer’s testimony was “extremely effective and compelling,” according to Judge Dalton. The U.S. Army veteran detailed how the tinnitus and hearing loss had effected his life and the impact the injuries had on his relationships with his wife and children. He also explained that the injuries sleep. Judge Dalton’s order said:
Even defense counsel could not help but acknowledge plaintiff’s credibility and demeanor for truthfulness. So the court will not disturb the jury’s evaluation of plaintiff’s testimony and the noneconomic damages caused by his injuries, which are substantially supported.
The lawsuit is one that was consolidated in April 2019 with others brought by hundreds of thousands of military victims. The cases were consolidated in a multidistrict litigation share similar claims that 3M and its subsidiary Aearo Technologies LLC, based in Indianapolis, Indiana, furnished the U.S. military with defective CAEv2 earplugs. Aearo has filed for Chapter 11 Bankruptcy protection in response to the massive litigation.
A federal jury in Florida awarded Vilsmeyer $50 million, or $1 million per year of his injuries, in damages at the close of his bellwether trial in March. Vilsmeyer alleged he suffered permanent hearing loss after using the earplugs for over a decade, mostly during training exercises.
Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC is one of the lawyers representing Vilsmeyer. Aylstock stated that his client suffers from permanent hearing loss and severe tinnitus. These injuries severely impact his quality of life due to 3M’s reprehensible choice to sell defective earplugs to the military. He said:
This ruling ensures the jury verdict for Mr. Vilsmeyer, who bravely served our country for 20 years, will remain in place. It is long past time for 3M to stop using underhanded delay tactics, and we plan to hold the company accountable for the hundreds of thousands of veterans they harmed.
In announcing its plans to appeal, 3M said:
The same issues raised in our earlier appeals relating to legal defenses and evidentiary rulings apply in this case. If the court rules in favor of our appeals, this could significantly alter the progression and outcome of this litigation.
Vilsmeyer is represented by Bryan F. Aylstock, Bobby J. Bradford, Daniel J. Thornburgh and Jennifer M. Hoekstra of Aylstock Witkin Kreis & Overholtz PLLC, Shelley V. Hutson, Jason M. Milne and Marcela J. Arévalo of Clark Love & Hutson PLLC, Caleb A. Seeley of Seeger Weiss LLP and Joseph L. Messa and Ashley B. DiLiberto of Messa & Associates PC.
The case is Luke Vilsmeyer et al. v. 3M Co. et al., case number 7:20-cv-00113, and the MDL is In re: 3M Combat Arms Earplug Products Liability Litigation, case number 3:19-md-02885. The cases are in the U.S. District Court for the Northern District of Florida.
Mississippi Supreme Court Rejects LG’s Attempt To End Defective Battery Suit
The Mississippi Supreme Court reversed a lower court’s ruling dismissing a lawsuit against LG Chem Ltd by one of the firm’s clients. Will Sutton, in our Toxic Torts Section, helps represent Melissa and Thomas Trae Dilworth in their case over Melissa’s permanent injuries due to an exploding vaping device they allege was caused by LG’s defective battery. Harris Yegelwel and Ryan Michael Skertich of Morgan & Morgan and Celene H. Humphries and Thomas J. Seider of Brannock Humphries & Berman also represent the Dilworths. The defendant argued that it never intended its batteries to be sold directly to consumers, the plaintiff misused the battery, and Mississippi courts don’t have jurisdiction over the company.
The state’s highest Court revived the case, finding that the defendant’s personal jurisdiction argument was not enough to dismiss the case. It ruled:
LG Chem deliberately ships millions of batteries to the United States market every year, reaping millions of dollars in profit. As the Dilworths argue in their brief, at some point LG Chem has to stop acting surprised.
The justices also determined that LG’s argument that the plaintiff misused the 18650 lithium-ion battery at issue may be good for the defendant’s lawyers to use while arguing the case, but it was not enough to defeat the lawsuit. They mentioned that at least 44 similar lawsuits against the defendant are pending in courts throughout the country.
While walking her dog, Melissa explained that the 18650 lithium-ion battery inside her vaping product exploded unexpectedly. The battery was purchased at a smoke retail store as an individual item. Melissa suffered second- and third-degree burns on her groin, legs and hands dues to the explosion.
The Court referenced some of the other cases in the U.S. and similarities to the Dilworth case. It quoted a March decision by the Georgia Supreme Court in LG Chem Ltd. v. Lemmerman, in which the claimant also endured “permanent” burns. The Mississippi Supreme Court said:
The [Georgia] court found that, for the purpose of satisfying due process expectations, LG Chem’s exploitation of the general market for batteries in Georgia was sufficient regardless of whether the batteries were being used as intended or authorized.
The Dilworths legal team responded to the Mississippi Supreme Court’s ruling, saying:
Not only did the Court find LG subject to personal jurisdiction, it also adopted and clarified a conflict regarding Mississippi Law’s interpretation of the ‘stream of commerce.’ We’re very pleased with this unanimous ruling, which builds on the strides made in a similar case in Georgia, Lemmerman v. LG Chem, and adds to the growing body of case law on the topic of personal jurisdiction for international manufacturers.
The case is Melissa Dilworth et al. v. LG Chem Ltd. et al., case number 2021-CA-00629-SCT.
Update On Paraquat MDL
The Paraquat Products Liability Litigation MDL was formed on June 8, 2021 (Case No. 3:21-MD-3004), with Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois presiding.
The court previously selected six cases for case-specific discovery. The first bellwether trials will be selected from those six cases. On Aug. 17, 2022, the court selected an additional 20 cases for limited discovery, which is defined as “the completion of a fact sheet and plaintiff’s deposition.” The court found that additional depositions from other member cases “will assist the court in gathering more information on plaintiffs and their claims. Specifically, additional depositions will provide representative data about plaintiffs, determine whether plaintiffs’ claims are plausible and substantiated, and expose non-meritorious claims.” See Order Selecting Additional Cases for Limited Discovery, which can be found on the court’s paraquat webpage: https://www.ilsd.uscourts.gov/documents/Paraquat/ParaquatOrderSelectingAddCasesLD.pdf.
Beasley Allen lawyers Julia A. Merritt and Leslie B. LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL. The Paraquat Litigation Team will be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact a lawyer on the Paraquat Litigation Team if our firm can assist you in your paraquat applicator cases.
The Paraquat Litigation Team
The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases. The lawyers on the team are Julia Merritt and Leslie LaMacchia, who head the team, and members Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or by using the form below for more information on the litigation, including the MDL.
Washington Jury Awards Plaintiffs $275 Million Verdict Against Monsanto
Lawyers secured a $275 million verdict on behalf of 10 students and teachers exposed to toxic chemicals in fluorescent lights at a Monroe, Washington, school. Monsanto-created polychlorinated biphenyls (PCBs) in the lights caused neurological injuries, prompting a string of lawsuits against the company.
The King County Superior Court jury agreed that the plaintiffs suffered harm due to PCB exposure, awarding $55 million in total compensatory damages and $220 million in total punitive damages. The plaintiffs claim they were exposed to the dangerous chemicals at Sky Valley Education Center, where fluorescent lights containing PCBs were installed over half a century ago. The jury found:
- Monsanto was negligent in supplying and designing PCBs that were not reasonably safe.
- That the products with PCBs, or polychlorinated biphenyls, lacked adequate warnings and caused injury to the plaintiffs.
Rick Friedman of Friedman Rubin PLLP has represented plaintiffs in five cases involving PCB-related claims from exposure at Sky Valley Education Center. Four trials resulted in plaintiff verdicts, and one ended in a mistrial. Friedman’s clients have received more than $500 million in compensatory and punitive damages, some of the highest ever awarded for PCB-related claims.
The defendant said it stopped making PCBs voluntarily in 1977. The Environmental Projection Agency banned manufacturing the toxic substance two years later.
The case is Allison et al. v. Monsanto Co. et al., case number 18-2-26074-4, in King County Superior Court.
$56 Million Punitive Damages Awarded In California Cleanup Trial
City of Modesto lawyers obtained a $56.3 million punitive damages verdict against Dow Chemical for manufacturing dry-cleaning chemicals that contaminated the city’s soil and groundwater.
A California jury handed down the punitive damages verdict only days after it awarded Modesto a $4 million judgment against Dow and PPG Industries over the contamination. The jury determined the companies must cover the cleanup costs, as perchloroethylene was a substantial factor in harming the city. Although the jury found that Dow should possibly face punitive damages, it said that PPG should not.
Michael D. Axline, a lawyer representing Modesto, said:
We are grateful to the jury for the close attention it paid to the evidence in the case, and we believe the evidence is reflected in the jury’s verdict.
Modesto and its sewer district initiated the case over 20 years ago, filing suit in 1998. Dow and PPG sold perchloroethylene to Modesto dry cleaners for decades. The city focused on Vogue Cleaners in the case, saying that the dry cleaner’s chemicals contaminated its land.
On the first day of trial, lawyers for Modesto accused Dow and PPG of knowingly disregarding safety standards when handling perchloroethylene. The trial concluded 11 days later with the jury finding against the defendants on negligence and product liability claims. It also found the product’s design defective, the product did not perform as expected, and the companies failed to warn consumers about product risks adequately. Even though distributors sold the product, the jury found that the defendants failed to warn the distributors adequately.
Dow and PPG argued that the city was aware of environmental damage at or near Vogue’s location and didn’t suffer any property damage. Vogue didn’t get Dow’s products from its distributors, Dow claimed. PPG asserted that Vogue was using a service to safely dispose of the products it obtained from PPG’s distributors.
Michael D. Axline of Miller & Axline and Michael Alder of AlderLaw PC represent the city of Modesto.
The case is the City of Modesto et al. v. The Dow Chemical Co. et al., case numbers CGC-98-999345 and CGC-98-999643, in the Superior Court of the State of California, County of San Francisco.
Class Action Litigation
California Federal Jury Awards $102.6 Million In Engine Defect Class Action
Beasley Allen lawyers won a rare class-action jury trial in California federal court against General Motors. The firm’s trial team of Clay Barnett, Rebecca Gilliland, Mitch Williams, and Dylan Martin, and co-counsel from the law firm Andres & Anderson and the DiCello, Levitt, Gutzler, LLC firm, explained to the jury that GM knew about the engine defect for years and hid the defect from consumers.
The trial took place over nearly two-and-a-half weeks, beginning with jury selection on September 13 and opening statements on Sept. 19. Class members, current owners of the class vehicles, demonstrated to the jury that GM breached the implied warranty of merchantability in California and North Carolina, and violated Idaho’s Consumer Protection Act.
This trial involved GM Generation IV 5300 LC9 engines that suffer from a defect causing the engines to burn excessive oil. Because engines have multiple internal moving parts, proper oil levels are required to keep the engine operating correctly and to prevent damage to a litany of internal components. Without adequate oil levels, the class vehicles risk rough engine running, cylinder misfires, loss of power, and damage to internal components that can lead to stalled or seized engines.
GM defended the case, arguing that only 0.66% of the class vehicles received a piston replacement, but the jury agreed that the artificially low number was not the whole picture. Instead of looking for customer complaints of “oil consumption” or the issues mentioned in GM’s technical service bulletin (a document provided only to dealerships), GM’s warranty engineer only gathered information on piston replacements. The jury recognized this narrow set of data left out the very parts and complaints GM had told its dealerships to look for relating to oil consumption.
GM also based its defense on the false premise that burning one quart of oil every 2000 miles was “normal oil consumption” and was within “industry standard.” However, on cross-examination, it was revealed through GM corporate engineers that there was no such “industry standard,” and the one quart of oil burning every 2000 miles was an internal GM declaration made after the problems with the LC9 engine were discovered. Essentially, it was a “made-up term.”
The jury responded to these false claims by GM with a unanimous verdict for exactly what the plaintiffs’ class trial team requested as a verdict for the class members. The jury also agreed with the plaintiffs that GM knew of the defect, failed to disclose the defect and that the defect made the vehicles unfit for ordinary use.
Other class actions alleging the same defect are pending in states around the country. While the fight is not over, Beasley Allen’s litigation team is confident this verdict will stand, and that other juries will agree with the California jury.
In addition to our Beasley Allen litigation team consisting of Clay Barnett, Rebecca Gilliland, Mitch Williams and Dylan Martin, Jennie Anderson of Andres & Anderson and lawyers from DiCello, Levitt, Gutzler, LLC. Our co-counsel in the case were also on the trial team. If you need more information, contact Rebecca Gilliland at 800-898-2034 or by using the form at the bottom of this page.
Court Grants Preliminary Approval Of The Toyota Fuel Pumps Litigation
On Sept. 16, 2022, Magistrate Judge James R. Cho of the Eastern District of New York granted preliminary approval of a nationwide settlement in an automotive defect class action arising from Toyota’s January 2020 safety recall of 700,000 Toyota and Lexus vehicles that were equipped with defective fuel pumps manufactured by defendant Denso International America, Inc. and related entities. The case is Cheng, et al., v. Toyota Motor Corp., et al., Case No. 1:20-cv-00629-WFK-JRC (E.D.N.Y.). When given final approval, the settlement will confer valuable benefits on the current and former owners and lessees of nearly 4.9 million Toyota and Lexus vehicles that are eligible to participate in the settlement. The settlement is valued at no less than $200 million.
A fuel pump is a critical vehicle component that supplies fuel to the vehicle’s fuel injection system while the engine is in operation. The fuel pumps at issue in the litigation are defective because they all contain a component – an impeller – that is made of material that is not dense enough to withstand its operating environment. As defendants admitted in their recall notices, the defective Denso fuel pumps can cause affected vehicles to run rough, unexpectedly stall, fail to accelerate, lurch, and lose all engine power while in operation, creating a safety issue and increasing the risk of an accident.
Our client, Sharon Cheng, started the litigation in February 2020 asserting consumer protection, warranty and other claims against Toyota for marketing and selling vehicles fitted with the defective fuel pumps and alleged the recall did not capture all affected Toyota and Lexus models and model years. Subsequently, Toyota expanded its initial recall of 700,000 vehicles four times within eleven months, adding 2.7 million. Toyota ultimately recalled 3.4 million Toyota and Lexus vehicles with defective Denso fuel pumps manufactured between 2013 and 2020. It began to install improved fuel pumps in the vehicles of consumers who participated in the recall.
Plaintiffs added Denso as a defendant in April 2020, asserting strict liability and other claims against it for manufacturing the defective fuel pumps. Denso participated in and is a signatory to the settlement.
The settlement provides:
- Toyota agreed to implement a customer support program for the owners and lessees of approximately 1.4 million vehicles that were not previously recalled by Toyota.
- The owners and lessees of these vehicles are entitled to prospective coverage for repairs (including parts and labor) on their original Denso fuel pumps for 15 years from the date of the original sale of the vehicle.
- The benefit travels with the vehicle, meaning if it is sold or its lease ends before the expiration of the 15-year period, the subsequent owner or lessee still will be entitled to take advantage of the benefit.
- Toyota also agreed to provide an extended new parts warranty of 15 years, measured from July 15, 2021, or 150,000 miles, whichever comes first on the recall remedy fuel pump kit for owners and lessees of the nearly 3.4 million recalled vehicles and an additional 170,000 hybrid vehicles that were not recalled.
- The recall benefit also travels with the vehicle so that subsequent purchasers or lessees also will be entitled to the extended warranty.
- The owners and lessees of all the vehicles covered by the settlement are entitled to free towing and loaner vehicles while their fuel pumps are being replaced or repaired. If a class member has a need for a loaner vehicle that is like her vehicle, Toyota agreed to use good faith efforts to satisfy the request.
- There is an out-of-pocket expense reimbursement program, a reconsideration procedure in connection with the customer support program and the extended new parts warranty.
- A special master will oversee the settlement’s provisions to resolve any issues that may arise during the implementation and administration of the settlement agreement.
Pursuant to a provision of the settlement, now that the court has preliminarily approved the settlement, Toyota, after conferring with class counsel, can begin to implement the customer support program prior to the final approval.
Dee Miles, who heads the firm’s Consumer Fraud & Commercial Litigation Section, and Demet Basar, an experienced lawyer in the Section, were appointed class counsel in connection with the settlement. The tremendous result achieved could not have been possible without their work, along with the work of lawyers Clay Barnett, Mitch Williams and Dylan Martin, who are also lawyers in the Section.
The details of the settlement are available at www.toyotafuelpumpssettlement.com. The final approval hearing is scheduled for Dec. 14, 2022. If you have any questions, contact Demet Basar at 800-898-2034 or by using the form at the bottom of this page.
$1.7 Billion Verdicts Prompts Class Action Over Ford Pickup Trucks Weak Roofs
A proposed class action lawsuit filed in a Michigan federal court accuses Ford of knowingly making and selling 5.2 million pickup trucks with dangerously weak roofs. The case follows a recent Georgia jury verdict against the automaker for $1.7 billion in punitive damages over the same allegedly defective roofs.
Plaintiff Steven Beck of Paso Robles, California, alleges Ford has known about the roof-crush defect in its pre-2017 SuperDuty trucks for years. According to the suit, model years 1999-2016 Ford SuperDuty pickup trucks, including the F-250, F-350, F-450, and F-550, have defectively weak roofs prone to collapse in a rollover, crushing occupants to death or leaving them with catastrophic injuries.
Beck alleges that Ford knew of the trucks’ roof-crush risks before it began selling the vehicles yet did nothing to warn those who bought and leased them. His claim also cites evidence from the Georgia case that Ford developed stronger roofs in 2004 but chose not to implement them until 2017, choosing instead to go with a weaker design that failed Ford’s internal testing. It’s alleged further in the complaint:
Ford not only knew that the SuperDuty trucks had unsafe and inadequate roof strength, but since there was no applicable standard regulating roof strength, Ford purposefully downgraded roof strength in order to save manufacturing costs and thereby enhance its profits. The automaker has kept the deadly defect under wraps by entering into secret settlements with crash victims.
In the putative class action, Beck says he no longer feels safe driving his 2013 F-350 SuperDuty pickup truck for fear of being crushed should the vehicle roll over. He says he chose the truck to use for work in his vineyard and believes that drivers of the defective trucks would have chosen a safer vehicle had they known about the roof-crush risks.
The proposed class action came less than three weeks after the Georgia trial, which ended in August with a jury awarding $24 million in compensatory damages and $1.7 billion in punitive damages to the children of Voncille and Melvin Hill. The Hills were killed in 2014 when their Ford F250 SuperDuty truck rolled over on a rural Georgia road. The punitive damages are the highest-ever awarded in Georgia.
After the verdict, Ford filed several motions asking the court for a new trial and elimination of the “death penalty” sanctions the court imposed on the automaker in 2018 for alleged evidentiary violations the company made the first time the Hill case was tried. The first trial resulted in sanctions and ended in June 2018 with a mistrial. Ford asserts that the sanctions prevented it from defending itself in the second trial.
In the second trial, the court instructed the jurors that the roof of the Hills’ truck was defective in its design, dangerously weak, and prone to collapse in a rollover. The court also said the accident was foreseeable. It established these facts in the 2018 sanctions order against Ford because of its conduct in the first trial.
Going into the second trial, the court had also established that Ford knew of the dangers the truck roofs posed to vehicle occupants, that its failure to strengthen the roofs was willful, and that it had a duty to warn consumers.
Ford argues that the 2018 sanctions are “unusual, arbitrary and unconstitutional” and that they compelled the jury to act with “passion and prejudice” in deciding the Hill case.
Eleventh Circuit Refuses To Review Ban On Class Action Incentive Awards
In a prior issue of this Report, we advised readers that a three-judge panel of the Eleventh Circuit Court of Appeals, in a divided opinion in September 2020, said that a Florida federal judge made several errors that “have become commonplace in everyday class-action practice” when approving a $1.4 million settlement and a $6,000 incentive payment for the lead plaintiff in a robocall suit. The panel found that U.S. Supreme Court precedent from the 1880s prohibits incentive awards to class representatives (also called service awards). The full Eleventh Circuit recently issued a spilt decision, without reasoning, declining en banc review of the panel’s incentive awards ban.
Incentive awards are monetary awards to class representatives paid in addition to the class recovery to compensate them for the additional work and risk involved in being named plaintiffs. Federal courts across the county commonly and routinely award incentive payments to class representatives.
The settlement at issue before the Eleventh Circuit resolved a proposed class action accusing medical debt collector NPAS Solutions LLC of violating the Telephone Consumer Protection Act (TCPA) for $1.4 million. Of the 9,543 class members included in the settlement, Jenna Dickenson was the lone objector who argued, among other things, that the class representative, Charles Johnson, shouldn’t get a $6,000 incentive award.
After the Florida federal court approved the settlement and the incentive award, Dickenson appealed to the Eleventh circuit. In a 2-1 decision, the Eleventh Circuit panel held that the district court had erred in awarding Johnson $6,000 for his role in the litigation despite the district court handling “the class-action settlement here in pretty much exactly the same way that hundreds of courts before it have handled similar settlements.” The panel’s majority held that two Supreme Court rulings from the 1880s prohibited such awards, Trustees v. Greenough and Central Railroad & Banking Co. v. Pettus.
Notably, another panel of the Eleventh Circuit rejected a similar argument concerning incentive awards in April 2019 in Muransky v. Godiva Chocolatier, Inc., which interestingly was not discussed in the panel’s decision. Furthermore, the Eleventh Circuit granted en banc review of Muransky, which it reversed and remanded but on other grounds such that it did not reach the issue of incentive awards.
In August this year, the full Eleventh Circuit issued a split decision declining en banc review of the panel’s incentive awards ban in Dickenson. While the majority did not provide any reasoning, four judges joined the dissent authored by U.S. Circuit Judge Bill Pryor. Regarding the panel’s reliance on the Supreme Court cases from the 1880s, Judge Pryor noted it “plucked [the two decisions] out of their historical context” and disregarded decades of law in which courts granted incentive awards in class actions.
Judge Pryor also wrote, “As it stands, the panel majority’s opinion threatens the very viability of class actions in this circuit.” He wrote further:
This is particularly so in small-dollar-value class actions, where incentive awards help to encourage potential plaintiffs to serve as class representatives despite having to take on significant additional responsibilities while receiving the same modest recovery as other class members.
While there are ways to deal with this quirky issue in the class action area, this case law seems to be an unsettled anomaly. Stay tuned, as this issue will undoubtedly continue to develop. This latest case is Jenna Dickenson v. NPAS Solutions LLC (case number 18-12344) in the U.S. Court of Appeals for the Eleventh Circuit.
Credit Suisse Exits Forex Price-Fixing Case
Zurich finance giant Credit Suisse defeated charges that it was involved in a foreign currency exchange price-fixing conspiracy. U.S. Judge Lorna G. Schofield ruled in the bank’s favor last month in a Manhattan, New York, federal court. The conspiracy claims resulted in 15 other big banks settling for $2.3 billion.
The Oklahoma Firefighters Pension and Retirement System and other investor plaintiffs filed the class action lawsuit against the 16 banks nearly a decade ago. They claim the banks violated the U.S. antitrust law by using Bloomberg and Reuters chats to fix rates.
Credit Suisse told the jury that while some of its workers may have sent questionable chats, that didn’t prove Credit Suisse was involved in a conspiracy. It argued that even suspicious chats sent by the bank’s workers didn’t prove it was part of a conspiracy. It called chat messages excessive, rare incidents of bad behavior. The chat messages mocked clients and spoke of complicity.
In addition to the civil settlements, five banks pled guilty to criminal charges connected to the price-fixing scheme. In a separate but related case, Credit Suisse settled with a large group of investment entities that chose not to join the class action litigation. Allianz Global Investors GmbH was one of those entities. Judge Schofield also heard this case.
The investor class is represented by Scott & Scott Attorneys at Law LLP, Hausfeld LLP, Robbins Geller Rudman & Dowd LLP and Korein Tillery LLC. The case is In re: Foreign Exchange Benchmark Rates Antitrust Litigation, case number 1:13-cv-07789, in the U.S. District Court for the Southern District of New York.
Class Action Settlements
There were a number of important class action settlements during October around the U.S. Several of the settlements have received final court approval.
Google’s $100 Million BIPA Settlement Gets Final Approval
A Cook County, Illinois, judge signed off on a $100 million settlement agreement between Google and about 420,000 Illinois residents from seven class action lawsuits. The residents had accused the tech company of gathering and using their facial data through its photo-sharing and storage program. Doing so, they said, violated the state’s Biometric Privacy Information Act (BIPA).
In granting final approval to the settlement, Judge Anna Loftus praised the “wonderful” response to the class action notice and noted it had become the second-largest BIPA settlement. The agreement ends roughly seven years of litigation between the residents and Google.
Each class member with a valid claim will get about $140 of the $100 million Google agreed to pay. Additionally, the injunctive relief will require Google to overhaul the way it collects biometric information.
In 2016, Lindabeth Rivera filed a lawsuit against Google in Illinois federal court. She was later joined by Joseph Weiss. The two sought to represent a class of individuals who claimed to have had their privacy violated by Google Photos when the company gathered and retained templates of their faces.
In 2018, an Illinois federal judge sided with Google on summary judgment, but the Seventh Circuit Court later held that the BIPA claims had standing in federal court. In August 2021, the Illinois federal judge concluded that an Illinois state court should have the opportunity to resolve the claims.
The residents are represented by Ahdoot & Wolfson PC, Carey Rodriguez Milian LLP, Hedin Hall LLP, Bursor & Fisher PA and Lynch Carpenter LLP.
The case is Rivera et al. v. Google LLC, case number 2019-CH-00990, in the Circuit Court of Cook County, Illinois.
Grubhub To Pay $42 Million to Settle Investor Class Action
The online restaurant delivery service Grubhub reached a $42 million deal with investors to settle a class action lawsuit alleging it lied about its ability to sign up profitable restaurants and attract diners as it expanded to new locations.
Grubhub and the lead plaintiffs for the investors told Illinois federal judge Matthew F. Kennelly on Oct. 7 that they reached a settlement agreement as both parties were awaiting his decision on whether to certify the class. The Chicago-based food delivery company and the plaintiffs supported the class certification and said the deal was in the class members’ best interests.
Anyone who bought Grubhub common stock between Apr. 25, 2019, and Oct. 28, 2019, was admitted to the class. According to the plaintiffs, Grubhub went from issuing a glowing earnings forecast to a 40% drop in stock value in that window of time.
Plaintiff Roei Azar initiated the lawsuit in 2019, claiming he and other investors were hard hit by Grubhub’s plummeting stock prices after the company “shocked the investing public” with disappointing earnings and expansion results.
In January 2020, the court-appointed two Pontiac, Michigan-based institutional investors as lead plaintiffs in the case – the City of Pontiac Reestablished General Employees’ Retirement System and the City of Pontiac Police and Fire Retirement System. The investors filed an amended complaint later that year, alleging that Grubhub made false and misleading statements about its expansion and financial projections as it tried to keep pace with its competitors. These statements inflated the price of Grubhub shares, which tanked months later when the company’s true standing became known.
The proposed class of investors is represented by James Barz, Brian Cochran, Frank Richter, Robert Robbins, Bailie Heikkinen, Samuel Feldman, Matthew Richard and Mason Roth of Robbins Geller Rudman & Dowd LLP.
Grubhub is represented by John Hartmann, Sandra Goldstein, Stefan Atkinson and Madelyn Morris of Kirkland & Ellis LLP.
The case is Azar et al. v. Grubhub Inc. et al., case number 1:19-cv-07665, in the U.S. District Court for the Northern District of Illinois.
Class Action Lawyers At Beasley Allen
Beasley Allen is heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the Section who handle class action cases are: Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin. They can be reached at 800-898-2034 or by using the form at the bottom of this page.
THE CONSUMER CORNER
Regions’ $191 Million Fine For Overdraft Fees
The Consumer Financial Protection Bureau (CFPB) has ordered Regions Financial Corp. $191 million in refunds and penalties for allegedly charging its customers illegal overdraft fees for nearly three years.
The CFPB issued the order to Regions Bank on Sept. 28. The agency said that the bank deliberately harmed its customers by hitting them with “surprise” overdraft fees on some ATM withdrawals and debit card purchases. Customers incurred the fees even when the bank informed them they had sufficient funds when the transactions were made. The Birmingham-based bank charged illegal fees from Aug. 2018 through July 2021.
According to the consumer watchdog, Regions will return at least $141 million to customers who incurred the overdraft fees and an additional $50 million to the CFPB’s victims’ relief fund.
The CFPB said that Regions leadership knew about the illegal practice for years but chose to keep doing it until they could develop another way of generating customer fees to compensate for the wrongful charges. The agency called Regions a “repeat offender,” noting that it had ordered the bank to pay $56.5 million in refunds and penalties for engaging in the same unlawful practices.
“Regions Bank raked in tens of millions of dollars in surprise overdraft fees every year, even after its own staff warned that the bank’s practices were illegal,” said CFPB Director Rohit Chopra. “Too often, large financial firms make a calculation that continuing to break the law is more profitable than following it. We have more work to do to change this mentality.”
A majority of major banks in the U.S., including Regions, have overhauled their overdraft model. This was seen as a response to the colossal bank litigation that concluded a few years ago in Miami, Florida, federal court, where all the major banks were sued for “check sequencing,” which was designed to create excessive overdrafts in bank customers’ accounts. Essentially banks programed their check processing systems to post checks and withdrawals ahead of deposits, creating a false negative balance resulting in automatic overdrafts imposed on customers’ bank accounts. The banking industry settled for hundreds of millions of dollars and vowed to correct the check processing systems to avoid excessive overdrafts.
It is good to see that the CFPB is actively pursuing these bank industry abuses and rectifying the problems. Their ability to fine the industry provides a swift resolution, though not consistently enough to deter future market misconduct. The court system remains the ultimate corporate disciplinarian regarding corporate misconduct. We continue that fight for consumers.
Source: Reuters and CFPB
Federal Government Will Pay $125 Million To End PACER Overcharge Suit
The U.S. government has agreed to pay $125 million to settle claims brought by a group of nonprofits. The organizations had sued the federal government over claims that the judiciary charged users excessively high fees to use the Public Access to Electronic Court Records (PACER) system.
As part of the settlement agreement, users will get “100 cents on the dollar” up to $350 for PACER fees paid from April 2020 to May 2018. A pro rata share of the remaining funds will go to any organization that spent more than $350 on fees.
“In addition to this remarkable monetary relief, the case has spurred the judiciary to eliminate fees for 75% of users going forward and prompted action in Congress to abolish the fees altogether,” the PACER users said. “By any measures, this litigation has been an extraordinary achievement — and even more so given the odds stacked against it.”
The settlement comes after several years of ping-ponging between district and appellate courts.
The lawsuit was initially filed in 2016 by the National Veterans Legal Services Program, the Alliance for Justice, and the National Consumer Law Center. The nonprofits had alleged that the PACER fees charged by the federal government exceeded the amount that could be lawfully charged based on the E-Government Act of 2002. The group contended that under the Little Tucker Act, PACER users are entitled to be refunded any excessive PACER fees they paid.
If you need more information, contact Dee Miles, who heads our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by using the form at the bottom of the page.
Google To Pay Arizona $85 Million For Illegal Location Tracking
Google reached an $85 million deal with Arizona in October, resolving a lawsuit from the state’s attorney general alleging the tech giant misled users about their location tracking data to generate billions of dollars in targeted ad revenue.
The settlement, which Arizona Attorney General Mark Brnovich said is one of the largest consumer fraud cases in Arizona history, ends claims that Google uses a “sweeping surveillance apparatus” to track users who opted out of the platform’s “location history” setting.
The state filed the lawsuit in May 2020 after news broke that Google continued to collect the personal location data of users who turned off the location history function on their smartphones. The company continued to track users through other settings, including web and app activity, then used that data to target users with ads. Google also used the information it collected to implement “dark patterns and coercive tactics” that it then “used to manipulate users’ behavior,” the Attorney General’s Office said.
The lawsuit alleged that this “deceptive and unfair” data collection violated Arizona’s Consumer Fraud Act. According to the suit, Google continued to track users even when regulators ordered the company to stop the practice.
Arizona was the first state to sue Google over the deceptive practice. Other states, including Indiana, Texas, and Washington, have lodged similar complaints against Google.
Under the terms of the agreement, most of the $85 million will be put into the Arizona Attorney General’s general fund. About $5 million of the settlement funds will be invested in “educational institutes,” court documents say. These will include a law school that maintains consumer protection programs.
The case is State of Arizona v. Google LLC, case number CV2020-006219, in the Superior Court of the State of Arizona in and for the County of Maricopa.
Source: Law360.com, Arizona Attorney General
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
The Latest Look At Case Activity At Beasley Allen
Our BeasleyAllen.com website provides the latest information on the current case activity at Beasley Allen. The list can be found on our homepage, the top navigation, or the Practices page of our website. The following are the current case activity listings for the Beasley Allen Sections.
- Business Litigation
- Class Actions
- Consumer Protection
- Employment Law
- Medical Devices
- Personal Injury
- Product Liability
- Retirement Plans
- Toxic Exposure
- Whistleblower Litigation
The cases in the categories listed below are handled by lawyers in the appropriate Litigation section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website.
- Auto Accidents
- Aviation Accidents
- Camp Lejeune
- CPAP Devices
- Defective Tires
- Heavy Metals in Baby Food
- JUUL Vaping Devices
- NEC Baby Formula
- Social Media
- Talcum Powder
- Truck Accidents
- Vaginal Rejuvenation
Resources to Help Your Law Practice
Beasley Allen only handles litigation for individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. We consider that to be an honor and a privilege. Our firm does no “defense work” for Corporate America at all. That decision was made in 1979, and we have stuck to it ever since.
Beasley Allen has truly been blessed. We understand the importance of sharing resources and teaming up with peers in our profession. The firm is committed to investing in resources that will help our fellow trial lawyers in their work. For those looking to work with Beasley Allen lawyers or simply seek information that will help their law firm with a case, the following are among our most popular resources.
Beasley Allen sends out a Co-Counsel E-Newsletter specifically tailored with lawyers in mind. It is emailed monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.
Aviation Litigation & Accident Investigation
Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and essential 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.
Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for live presentations. To register for upcoming events or to access past webinars on-demand, you can visit the Events and Webinar page of the Beasley Allen website at https://www.beasleyallen.com/events/.
The Jere Beasley Report
We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, both in print 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 litigation 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 our publications, visit our website at BeasleyAllen.com/Publications.
PRACTICAL TIPS FOR TRIAL
Clients are why law firms exist. As a plaintiff’s firm, Beasley Allen is honored to represent and stand in the gap for clients who have experienced harm and damages through no fault of their own. Our goal is to improve their lives or circumstances. An essential part of our services is communicating with clients – keeping them informed and ensuring we provide the representation they need. This month, Elizabeth Weyerman, who practices in the firm’s Toxic Torts Section, discusses the importance of when and how to communicate with clients.
Practice Tips: Client Communication
Every communication should convey your firm’s organization, professionalism, and care. Not only are clients our first priority, but maintaining good client communication builds a positive reputation among varying communities and affords your firm the possibility of future cases from past clients and their networks.
Further, lawyers have a duty to communicate case updates to clients timely. It is important to convey to your client what they should expect from you, when, and what to do if they have questions. This avoids their disappointment, allows you to have a manageable system, and exceeds their expectations when possible. Legal challenges lawyers deal with every day are usually new and foreign to their clients. When communicating, avoid legal jargon, when needed allow clients to ask questions, and be proactive in providing regular updates.
It is important to remember that empathy goes a long way. Communication can be automated, but it is not always appropriate. No one should receive bad news or be responded to when anxious through automation. A highly developed emotional intelligence allows one to have the correct response. Be mindful of your tone, inflection, and speed when talking and your facial expressions and body language when on video or in person.
Good communication leads to taking care of your clients’ legal and emotional needs. Having this client-centered approach will set your firm apart. My caution to anyone who may be reading this: set realistic expectations with your clients, communicate clearly and regularly, listen, automate communications when appropriate, and use and develop your interpersonal skills.
A large number of safety-related recalls were issued during October. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We are putting the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Jere Beasley Report, if you have any questions or to let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.
Shelby Andrews is a lawyer in the firm’s Personal Injury & Product Liability Section. She handles cases involving serious injuries and defective products. Shelby worked as a law clerk in the same section during law school.
Shelby, an Alabama State Bar member, earned her bachelor’s degree in political science from Auburn University in 2019. She served as a Creed Ambassador and was recognized as a Pi Lambda Sigma Pre-Law Scholar. She was a member of Gamma Beta Phi Honor Society and Alpha Chi Omega Sorority.
Following undergraduate school, Shelby attended Faulkner University Thomas Goode Jones School of Law, where she served as Chair of the Board of Advocates. She won the 2021 J. Greg Allen Mock Trial Competition and placed 2nd and 3rd in national trial tournaments during law school. Shelby was recognized as a Public Interest Fellow for her pro bono work throughout law school and is passionate about community service. She also served as Vice President of the Jones Public Interest Law Foundation, Student Bar Association Senator and was a Women’s Legal Society member.
Shelby says she became a lawyer to help others. She explains:
I was raised with the belief that the ability to help others creates a responsibility to do so. I have witnessed firsthand the opportunity that practicing law provides to stand up for those who have been wronged and fight for positive change. I chose this career because of the chance to make a difference in the world around me and because it provides me with the opportunity to stand in the gap for those who need someone on their side.
Shelby also helps others outside of her legal career. She founded an organization called Teach to Tell – Stand Up, Speak Out. She is passionate about raising awareness and working to eradicate abuse, focusing on sexual abuse. She has also been involved with Girls, Inc. of Dothan, the Domestic Violence Intervention Center in Opelika, Alabama, and Children’s Miracle Network Hospitals.
Shelby says she believes that Beasley Allen is truly a most unique firm. She explains:
Beasley Allen is a special group of people with a shared goal and passion: helping others. I have the privilege of experiencing this two-fold as a young attorney. I am navigating a new career and have been welcomed with open arms by people willing to help me learn. This helpful and loving attitude is exactly what enables us to help those who need it most.
We are fortunate to have Shelby with the firm. She has a bright future with the firm.
Elliot Bienenfeld, who joined Beasley Allen in February 2021, is in our Atlanta office. He is in the firm’s Toxic Torts Section.
Elliot earned his Bachelor of Arts degree in Talmudic Law from Yeshiva College of the Nation’s Capital in 2011. Next, he attended Emory University School of Law, where he served as Notes and Comments Editor for the Emory Bankruptcy Developments Journal. He completed his Juris Doctor degree in 2014.
Elliot says he became a lawyer for two primary reasons. He explains:
I love questioning why things are the way they are. I never just accepted something at face value – I needed proof and reasoning. This naturally led me to the law: applying the law to facts to make a coherent and defensible argument for one’s proposition is incredibly appealing to me. But beyond logic, being an attorney lets me use this skill set to help people. I like being able to guide clients through the legalese and procedural hurdles to get the outcome that they deserve.
Like all of our lawyers, Elliot abides by Beasley Allen’s motto of “helping those who need it most.” In fact, Elliot says his favorite part of practicing law is “delivering” for his clients. He says:
I work on large-scale cases where it can be years before we finally break through and get a result for our clients, so being able to savor those moments is really special to me. Things can often feel stacked against plaintiffs, so being able to get a win for my client feels that much more valuable when we get it.
Elliot says Beasley Allen is unique because our lawyers and employees really care. He says:
They care for each other, and they care for their clients. This place is not just about billable hours or books of business – we all truly believe we are helping folks each and every day. That’s such a unique and valuable trait that I think touches everything we do here at Beasley Allen.
Elliot is a member of the Georgia State Bar and Atlanta Volunteer Lawyers Foundation (AVLF) Saturday Lawyer Program, providing pro bono assistance to low-income Atlantans. He is also a member of the International Association of Privacy Professionals, Georgia Trial Lawyers Association, and Atlanta Relativity User Group. Additionally, he is a Relativity Certified Expert and holds a Certified Information Privacy Professional/United States (CIPP/US) certification. Elliot volunteers with Atlanta Habitat for Humanity and the Atlanta Humane Society.
Elliot is a definite asset to the firm. He is a hard worker and strives to see that his clients receive justice. We are fortunate to have Elliot with us.
A Paralegal in the firm’s Toxic Torts section, Katie Edwards works on cases involving water contamination and opioids. She also assists her Director, Tracie Harrison, and the team as needed, including multi-client cases, one in the beginning stages of litigation, and one in the litigation process all at once. Katie has been a dedicated employee of the firm for three years. Her hard work and willingness to help where needed are valued tremendously! We are fortunate to have Katie with us!
Katie and her husband, Matt, have been married for almost five years. Matt, Katie, and their four-year-old son, Rex, live in the Deatsville area. Matt is a Commerical Property Manager with Moore Company Realty. Katie says she loves being outside or in any water, as does her family. The Edwards are huge football fans and love music in their home! Katie says she also enjoys reading and listening to podcasts in her spare time.
Katie says her favorite thing about working at Beasley Allen is the culture. She says, “the culture of the firm is unrivaled.” She adds, “the collective kindness and compassion for our clients and each other still take me by surprise regularly. Every case I work on becomes my favorite one.”
Pam Gabehart is the Executive Assistant to Tom Methvin, Beasley Allen’s Managing Attorney. Pam started her career with the firm just over a year and a half ago and has been a tremendous asset. Her hard work and total dedication to the firm are greatly appreciated. We are so thankful to have Pam with us!
Pam was born and raised in Alabama and is a native of Selma. She and her husband, Ken, have been married for 20 years and have two children, JB and Kensley. Ken works for the Alabama League of Municipalities. JB and Kensley attend Autauga Academy, where JB is a senior and Kensley is a sophomore this year. Both are involved in various sports, including football, baseball, volleyball, basketball, and soccer. The Gabeharts have four “fur babies,” two dogs and two cats, whom Pam says they adore! It comes as no surprise that Pam and her family love sports, so much so that Pam says their lives seem to revolve around whatever sports their children are playing.
Pam says the people at Beasley Allen are her favorite thing about working at the firm. She says, “they make Beasley Allen feel like a family and not just a job.” We thank Pam for her dedication to the firm and all of her hard work!
Shannon Parsons is a Paralegal working with Beasley Allen lawyers Tom Willingham and Mary Leah Miller. She had worked with these lawyers at another firm before joining Beasley Allen nearly two years ago. Shannon says they have always gone the extra mile to ensure their clients receive the best representation possible, and that mentality formed the bond they all share to this day. Shannon is a hard worker and is totally dedicated to the firm’s mission of helping those who need it most!
Shannon and her family live in Vestavia, Alabama. She shares that being raised as a preacher’s daughter always felt like her father’s job had her living in a glass house, which she did not like. Shannon went on to say that after having gone through a season of life’s difficulties, she realized that her parents’ job formed the foundation that would come to support her through the most difficult times in her life. Shannon says her family is her biggest joy, and she strives to be the world’s best aunt. In her spare time, Shannon enjoys crafting and using the embroidery sewing machine her husband purchased her a few years ago to make shirts, clothes, and all sorts of things.
Shannon says her favorite thing about working at Beasley Allen is the staff and their willingness to help each other. She says, “I have been spoiled and blessed with the kindness exhibited by all staff.” Shannon is a hard-working, dedicated employee who strives to see that clients receive justice. We are thankful to have Shannon with us!
Elizabeth Weyerman is a relatively new lawyer in the firm’s Toxic Torts Section. She began working at Beasley Allen as a law clerk in the same section in June 2020 while attending law school. Currently, Elizabeth is handling Camp Lejeune, paraquat and water pollution cases.
Elizabeth, an Alabama State Bar member, graduated magna cum laude from Auburn University in 2019. She earned a Bachelor of Science degree in marketing with a minor in dance. She was a member of the Auburn University Dance Team, Alpha Delta Pi (ADPi) Sorority and Honors Congress during College.
After completing her undergraduate education, Elizabeth attended Samford University’s Cumberland School of Law, where she served as a Lead Ambassador for the school, was President of the Alabama Student Bar Association, a Judge Abraham Caruthers Fellow and a member of the Career Development Advisory Board. She was also a member of the Christian Legal Society, Women in Law and National Trial team, where she won AAJ Regionals two times, the Haley Federal Trial Competition and directed the Williams Trial Competition through her position on Trial Advocacy Board.
In addition to working as a Beasley Allen law clerk during law school, Elizabeth also clerked for the Alabama Attorney General’s Office and worked for THEMIS Bar Review. She also volunteered for the Alabama Innocence Project.
Elizabeth says her grandfather, John McCluskey, inspired her to become a lawyer. He experienced negative health effects from Agent Orange. Elizabeth hopes to help others like her grandfather find justice.
Elizabeth says that Beasley Allen is special. She explains her belief below, stating:
The firm has set itself apart by being a leader in complex litigation and making a positive reputation by helping its clients and being courteous in our field. Beasley Allen is unique in many ways, including the fact that the firm encourages all who work there to have their priorities in order.
On my first day as a clerk in law school, Mr. Beasley told us to make sure we had our priorities in order: to put God first, then family, then your work. I have tried my best to live my life that way, taking exceptional notice after hearing that over two years ago. I truly believe that when one orders your priorities this way, the rest seems to fall into place. You realize what really matters and focus on what will make an eternal difference in your life and the lives you have the ability to impact.
Beasley Allen is full of kind, humble, and talented people who do their best to get favorable results for our clients because we know they deserve someone to be in their corner in what is often the most difficult time of their life. Working here, I have been able to learn from and with some of the best in the field and see what it means to serve selflessly.
Elizabeth leads a Young Professionals Bible study, is part of the local ADPi Alumnae group and enjoys judging student trial competitions.
Elizabeth is a hard-working lawyer who is dedicated to the Rule of Law and to the task of obtaining justice for her clients. We are blessed to have Elizabeth with us.
Kay Ivey Ranked As The Southeast’s Most Popular Governor
Results of a poll conducted July 1 – Sept. 30 by Morning Consult were published last month. The poll showed Governor Kay Ivey is the most popular governor in the Southeastern U.S., sitting at 60%
Representative samples of registered voters in each state were surveyed, and the results hold a margin of error of +/- 5%. Similar results were announced in May for a previous survey the company conducted. That month, Ivey secured 55% of the votes during the Republican gubernatorial primary election.
Ivey’s office issued a statement after the results were announced last month, welcoming the news and thanking Alabama voters for the opportunity to implement her vision. The statement said:
Governor Ivey is a get-the-job done, people first kind of leader, and Alabamians recognize that about her. She remains totally grateful to them for giving her the honor of serving as governor. She believes in this state and has a bold vision going into the next four years, and I fully expect that she will take the bull by the horns and aggressively work to accomplish big goals for Alabama.
I have known and dealt with every Governor of Alabama in some capacity over the past 50-plus years. Prior to Kay’s becoming governor, I considered Albert Brewer to be our state’s best and most effective governor during that time, with Fob James being a fairly close second. However, based on Kay’s job performance and the results achieved by her Administration thus far, the Wilcox County native is now at the top of my list with four more years to build on her record. We are blessed to have Kay Ivey as our Governor.
Katrinnah Darden: Seth Harding’s Sister Becomes Youngest Lawyer In Alabama
Beasley Allen lawyer Seth Harding’s younger sister, Katrinnah Darden, has passed the Alabama State Bar Exam at just 19 years old. Seth also passed the bar exam at age 19 in 2020, becoming Alabama’s youngest lawyer at the time. While Seth passed the exam one month shy of turning 20, Katrinnah was 19 and a half.
Although Katrinnah beat her brother’s record to become the youngest person ever to pass the Uniform Bar Exam (UBE) in Alabama, she says she couldn’t have done it without her brother’s help. She explains:
I had a helping hand in that my brother sat and passed the same exam two years ago. He helped me so much with my revision and gave me pep talks when I needed them most. When I found out I’d passed, he was the first person I called.
He passed the exam at 19 as well, but because I have a March birthday, and he is in October, I beat his record. It’s a nice feeling breaking the record, but the most important thing is I am now a qualified attorney, which has been my dream for as long as I can remember.
Katrinnah and Seth’s parents homeschooled them and their eight siblings, preparing all of the children for college by age 12. Katrinnah graduated from Huntingdon College at 15 and enrolled in Thomas Goode Jones School of Law. She earned her Juris Doctor degree this past May.
Katrinnah says that her faith and desire to help others motivate her. She currently clerks with the Foundation for Moral Law, a non-profit Christian firm dedicated to First Amendment protections and other constitutional rights. It will be interesting to see what the future holds for this very young lawyer.
Sources: Talker News and WSFA
FAVORITE BIBLE VERSES
A lawyer and several staff employees who are being featured this month share their favorite Bible verses in this issue.
Elizabeth Weyerman shares these verses.
I have been crucified with Christ. It is no longer I who live, but Christ who lives in me. And the life I now live in the flesh I live by faith in the Son of God, who loved me and gave himself for me.Galatians 2:20
Do nothing out of selfish ambition or vain conceit. Rather, in humility value others above yourselves, not looking to your own interests but each of you to the interests of the others.Philippians 2:3-4
Blessed is she who believed that the Lord would fulfill His promises to her.Luke 1:45
Pam Gabehart’s son JB has type 1 diabetes. She said this verse reminds her that JB can do anything as long as he knows his strength comes from the Lord.
…but those who hope in the Lord will renew their strength. They will soar on wings like eagles; they will run and not grow weary, they will walk and not be faint.Isaiah 40:31
Pam also shares a verse that was read at her and her husband’s wedding. She said, “after 20 years of marriage and two children, I truly understand that love is patient.”
Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres. Love never fails. But where there are prophecies, they will cease; where there are tongues, they will be stilled; where there is knowledge, it will pass away.1 Corinthians 13:4-8
Shannon Parson chose to share two songs instead of Bible verses. She explained that these songs have meant so much to her. The first song, “It is Well With My Soul,” echoes the encouragement in the scriptures that despite the unpredictability of life, the Lord is always with us. While going through a difficult time, she says this song had “profound meaning” for her and that she found “the story behind it” astonished her. Shannon says:
I still strive to reach a place in my life where I can truly say that it is well with my soul in all situations.
Shannon says her second song “mimics the first.” She says the Casting Crowns’ song “Praise You in This Storm” is similar in that it reminds her to be content in her situations.
Katie Edwards shares two of her favorite verses. She said Isaiah 1:17 reminds her of what her intentions should be daily.
Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.Isaiah 1:17
Katie said Romans 5:3-5 keeps her going when things get hard.
…we also glory in tribulations, knowing that tribulation produces perseverance; and perseverance, character; and character, hope. Now hope does not disappoint…Romans 5:3-5
Alex Jones Guilty Of His “Dehumanizing” Attacks On Sandy Hook Families
A Connecticut Superior Court jury provided relief to 15 families of Sandy Hook shooting victims last month when it handed down a $1 billion verdict against Alex Jones. The verdict was a message to Jones that he was accountable for his demagoguery that placed the families at the center of what Jones claimed to have been a government hoax. For years, Jones has spewed lies from his Infowars show. He actually put some of them at risk of physical harm. He used his platform to inflict needless pain on the grieving survivors of the Sandy Hook murders. The verdict all but ensures an unapologetic Jones’ economic ruin, immobilizing, or at least slowing, his efforts to spread disinformation.
National attention through mainstream media coverage propelled the once-unknown conspiracy theorist and his small-time, extremist broadcast to celebrity status. This popularity among Jones’ base was intensified with the appearance of former President Donald Trump on Jones’ show when Trump was a candidate. As the New York Times noted:
He has had a role in spreading virtually every incendiary lie to dominate headlines over the past decade, including Pizzagate, the false claim that Democrats trafficked children from a Washington pizzeria; the “great replacement theory” that ignited deadly neo-Nazi violence in Charlottesville, Va.; Covid vaccine lies; and the 2020 presidential election falsehoods that brought a violent mob to the Capitol on Jan. 6, 2021.
Jones’ firebrand message, according to poll results, has helped lead nearly one-fifth of the American population to believe that high-profile mass shootings were nothing more than events staged by the government to promote gun control. Jones exploited the Sandy Hook massacre to boost his own agenda, popularity, ratings and product sales. He concocted elaborate lies about Robert Parker, father of Sandy Hook first grader and murder victim Emilie. Jones attacked Parker’s televised tribute to his daughter the day after the tragedy, claiming the grieving father was an actor and called the tribute “disgusting.”
In December 2012, a gunman entered Sandy Hook elementary school in Newtown, Connecticut, firing on the children and adults with an assault rifle. He killed twenty 6- and 7-year-olds and six adults before killing himself. It is the country’s second-deadliest school shooting.
The attacks Jones blasted through Infowars exposed Robert Parker to online abuse, harassment and death threats. Parker was even attacked in 2016 while traveling on the other side of the country by a man who believed Jones’ government hoax lies. Parker was awarded the largest amount of the verdict – $120 million.
Jones dodged accountability for many years, refusing to provide analytical data, business records or court-ordered testimony in other lawsuits. Alinor Sterling, a lawyer on the plaintiffs’ legal team, said:
Just to get to a trial in front of a jury is a huge accomplishment, given the extreme measures Alex Jones has taken to try to avoid that. His attack on these families has been a dehumanizing attack, and one of the ways to restore a sense of balance and community and humanity is to try this case in front of a jury.
Judge Barbara Bellis, overseeing the Connecticut Superior Court trial, entered a default judgment against Jones and Infowars. The judgment held the two defendants liable for encouraging the harassment and stalking despite the plaintiffs’ pleas for Jones to stop over the years. Judge Bellis took this step due to Jones’ refusal to participate during discovery. Plaintiffs’ experts pieced together evidence by using “forensic analyses of web traffic, Infowars internal communications and Google Analytics data,” the New York Times reported. Judge Bellis charged the jury only with determining whether Jones and Infowars owed the plaintiffs and, if so, how much.
A similar default judgment was entered by a Texas court this summer. The jury returned a $50 million verdict against Jones in favor of Neil Heslin and Scarlett Lewis, parents of Jessie Lewis, a 6-year-old killed at Sandy Hook. A third and final damages trial has been tentatively scheduled for later this year. The lawsuit was filed by Lenny Pozner and Veronique De La Rosa, whose son Noah was also killed at Sandy Hook.
According to the New York Times, it doesn’t seem likely that Jones has the money to pay the verdict amount. One expert estimated the defendant’s empire is worth $270 million. Yet, taking a cue from large corporate defendants’ attempts to avoid responsibility for their wrongdoing, Jones declared bankruptcy of his parent company Free Speech Systems around the time the expert’s analysis was publicized. Jones claims that a $54 million debt owed to a company he controls forced him into bankruptcy. Plaintiffs argue that it is just another tactic to escape accountability.
Further, Jones has used the defamation trials to fundraise, telling supporters the trials are more evidence of the government’s plots now aimed at him. Despite judges in the defamation case forbidding Jones and his lawyer from discussing Jones’ political ideology and finances in court, both of them defied the orders and seized opportunities to capitalize on the spectacle Jones had created.
Jones’ grandstanding did not disappoint his supporters on the day the verdict was read in court. While the plaintiffs sat in stunned and reverent silence, Jones was live streaming the proceedings on Infowars. He responded, “They covered up what really happened, and now I’m the devil. I’m actually proud to be under this level of attack.”
In addition to the Sandy Hook families’ efforts to hold Jones accountable, the U.S. Department of Justice and the U.S. House of Representatives Jan. 6 committee is looking closely at Jones and his role in organizing events surrounding the Jan. 6 Capitol insurrection in 2021. In August, federal investigators and the committee asked Neil Heslin and Scarlett Lewis’s lawyer, Mark Bankston, to turn over two years’ worth of Jones’ text messages inadvertently sent to him by the law firm representing Jones.
Hopefully, the verdict against Jones will not only affect him, but it will discourage others who are doing things like Jones was doing. The time has come for the American people to say enough is enough and to stand up for truth and justice. The Jones verdict was a step in the right direction.
Sources: New York Times, Texas Tribune, Law360 and CNN Business
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.Edmund Burke
Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.Isaiah 10:1-2
I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.Martha Washington (1732 – 1802)
The only title in our Democracy superior to that of President is the title of Citizen.Louis Brandeis, 1937
U.S. Supreme Court Justice
Injustice anywhere is a threat to justice everywhere.
There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.
The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.Martin Luther King, Jr.
The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you’re willing to pay the price.Vincent Lombardi
Kindness is a language which the deaf can hear and the blind can see.Mark Twain (1835-1910)
I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country….corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.U.S. President Abraham Lincoln, Nov. 21, 1864
In his December 1902 State of the Union address, Theodore Roosevelt said of corporations: “We are not hostile to them; we are merely determined that they shall be so handled as to subserve the public good. We draw the line against misconduct, not against wealth.”
The ‘Machine politicians’ have shown their colors…I feel sorry for the country however as it shows the power of partisan politicians who think of nothing higher than their own interests, and I feel for your future. We cannot stand so corrupt a government for any great length of time.”Theodore Roosevelt Sr., December 16, 1877
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
Tyner Helms’ Gift Saved The Life Of A Fellow Lawyer In Need
Last summer, while many people were vacationing, Tyner Helms, a lawyer at Beasley Allen, was recovering from surgery. Tyner had donated one of his kidneys to save a stranger’s life. What prompted him to do such a selfless act? He says:
At the core, we are Christians and, as Christians, we look for signs from God of how he can use us to help people and glorify him.
A sign came late last May during a small group study at the church Tyner and his wife Caitlin attend. Another member of the group, Jamie Cory, asked the others to pray for his father, Birmingham lawyer Ernie Cory. Ernie had overcome Hodgkin’s lymphoma years earlier, but the cancer treatment damaged his kidneys. He was on dialysis and was in dire need of a kidney transplant.
The plight facing Ernie and his family especially touched Caitlin. She tested to see if she was a match and was devastated when she learned she wasn’t. When she asked Tyner if he would get tested, he couldn’t refuse. So he got tested. The first test turned into a series of other tests, which ultimately revealed that Tyner was a great match. “I felt a mix of emotions,” he says. “It suddenly all became a lot more real.”
Two days before the surgery, Tyner and Caitlin met Ernie and his family. “It was a very special moment,” Tyner says. “They were ecstatic and relieved to finally have a matching donor. And it was special for me, too.”
Surgery was scheduled for July 8. Tyner remembers waking up after the operation and Caitlin telling him that Ernie’s body appeared to accept his kidney. Tyner recovered quickly, and Ernie’s health improved as well. Ernie regained his strength and was soon able to return to work and do things he hadn’t been able to do in years. He had been a very good lawyer in Birmingham and was part of a highly successful and respectful law firm.
Ernie was also healthy enough to walk his daughter down the aisle at her wedding on Oct. 8. Tyner and his wife were in attendance. “It was very special,” he says. “They say we’re part of their family now.”
“My desire in sharing my story is that more people become aware of what a medical miracle organ donation is,” Tyner says. “In this day and age, under the right circumstances, people can literally give an organ and save someone’s life. And that’s an incredible thing.”
God used Tyner in a very special and meaningful way, and a good man’s life was saved. All of the honor and glory goes to God. We are blessed to have Tyner at Beasley Allen.