Beasley Allen Montgomery, Alabama Office

The Jere Beasley Report October 2022

CAPITOL OBSERVATIONS

The Judge Frank M. Johnson Jr. Institute

When I consider the importance of the U.S. Constitution and the Rule of Law in America, I think about a judge who spent his entire time on the federal bench handling important cases involving our Democracy and the Rule of Law in America. That judge was Frank M. Johnson, Jr. His influence was huge on the preservation of individual rights and freedoms guaranteed by the U.S. Constitution.

Founded in 2019, the Frank M. Johnson Jr. Institute sponsors programs and events that showcase the importance of the U.S. Constitution, the independent judiciary it created, and its impact on the lives of the American people. It is a nonpolitical, nonadvocacy organization, and its programming is educational in nature. I encourage you to learn more about the Institute.

The Institute sponsors events and programs and provides materials for further teaching and learning about our Constitution and the government it created. Through its programs and events, the Institute fosters and promotes civil dialogue and exchange of knowledge in a respectful and open manner about Constitutional issues, particularly as they affect the judicial branch of government.

I am honored to serve on the Board of Directors of the Institute and understand how important its work is. The Rule of Law is under attack in our country today and must be saved and preserved for future generations.

Working in partnership with the Frank M. Johnson Jr. Courthouse in Montgomery, Alabama, the Institute’s programming allows the public to experience the setting of Judge Johnson’s historic rulings and learn of the nation-changing stories of justice they embodied.  

I encourage you to become actively involved in the Institute in some manner. Thomas Rains serves as Executive Director and does an outstanding job in this role. You can contact the Institute at https://www.thejohnsoninstitute.org/contact or call (334) 954-3695.

UPDATE ON THE CAMP LEJEUNE LITIGATION

Camp Lejeune

Beasley Allen lawyers are filing claims for injuries caused by toxic water exposure at North Carolina Marine Corps Base Camp Lejeune. The Act applies to military personnel, their families, and civilians who were exposed to the toxic water supply for at least 30 days between 1953-1987. Exposure to the toxic water at Camp Lejeune has caused multiple forms of cancer, neurological diseases, miscarriage, and death, among other injuries.

The contaminants found in the drinking water during the years at issue include trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, 1,2-dichloroethylene (DCE) and vinyl chloride. To give an example of the magnitude of the exposure levels to toxic chemicals at Camp Lejeune, the current U.S. maximum contaminant level of TCE is 5 parts per billion, and in 1982, samples measured TCE as high as 1,400 parts per billion.  The current U.S. maximum contaminant level of PCE is 5 parts per billion, and PCE was measured at 100 parts per billion in 1982. 

The timetable for filing claims for the exposure to toxic water at Camp Lejeune is limited to two years from the date the Act was put into law on Aug. 10, 2022. Please contact the Toxic Torts Section at Beasley Allen to help you with your Camp Lejeune claims.

Camp Lejeune Litigation Team

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 via the form at the bottom of this page.

SOCIAL MEDIA LITIGATION

Meta Litigation Update

On Aug. 1, 2022, a team of Beasley Allen lawyers led by Joseph VanZandt (collectively the Meta Litigation Team) filed a motion before the U.S. Judicial Panel on Multidistrict Litigation (JPML) to consolidate 28 cases against Meta Platforms, Inc., Instagram, LLC, and Facebook Holdings, LLC involving product liability claims on behalf of adolescents. Since Beasley Allen filed its motion requesting consolidation in the Northern District of Illinois, 38 new cases were “tagged” as related actions before the JPML. Several of these actions include defendants TikTok Inc., Snap Inc., and YouTube, LLC, who also operate social media products that caused similar injuries to adolescents. In total, 66 cases are currently pending in 30 federal districts across the country, with numerous additional filings anticipated.

Meta filed its response to the Beasley Allen motion on Aug. 30, agreeing that consolidation of the actions is appropriate, given the common factual and legal issues in the suits. Defendants TikTok Inc., Snap Inc., and YouTube, LLC also filed responses but argued against consolidation of the cases where they are named defendants.

Beasley Allen lawyers filed a reply brief on Sept. 6, asking the JPML to include Defendants TikTok, Snap, and YouTube in the MDL when Meta is a co-defendant and added further support for why the Northern District of Illinois is the best-suited transferee court. The JPML set the matter for oral argument on September 29. Joseph VanZandt, the lawyer in our firm handling the case, commented on the recent case updates, saying:

Beasley Allen is pleased Meta responded in support of forming an MDL to address injuries of adolescent users of Meta’s Facebook and Instagram products. We believe the best way to efficiently serve our many clients is through a coordinated MDL process, and we look forward to presenting our arguments to the panel on September 29.

If you have a potential claim or need more information on our Meta litigation, contact Joseph VanZandt or any of the lawyers on the Meta Litigation Team. Joseph leads the team. Members are Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn, and Seth Harding. Andy Birchfield, who heads up our firm’s Mass Torts Section, also works with the team. You can contact them at 800-898-2034 or by using the form at the bottom of this page.

Source: Law360

Facebook Settles Data-Tracking Suit for $90 Million

Facebook has agreed to a $90 million class action settlement. It was alleged in the lawsuit that Facebook illicitly tracked users across other websites, CNET reported. Class members argued that even when they were logged-out of Facebook, the social media platform owned by Meta tracked their activity on external sites that had Facebook’s “Like” button. The plaintiffs say Meta violated several laws, including privacy, communications and wire tap laws. They say the defendant also violated its own customer contracts.

The agreement will settle Davis v. Facebook, a lawsuit filed in 2011 in the U.S. District Court in San Jose, California. The court preliminarily approved the settlement and scheduled a hearing for final approval on Oct. 27. The settlement includes the $90 million payout and Facebook’s promise to delete any data it improperly obtained.

The plaintiffs argue that the defendant installed cookies on users’ computers that tracked their activities when they visited external websites. The class members allege that such actions specifically broke the Federal Wiretap Act, the Stored Electronic Communications Act, the Federal Computer Fraud and Abuse Act, and other laws. When the lawsuit was filed in 2011, Facebook acknowledged placing cookies on users’ computers. Further, it confirmed that the cookies continued monitoring users’ activities even after they logged out.

According to CNET, Facebook claimed, “that it quickly removed uniquely identifying data from post-logout cookies and that it didn’t store or use data from cookies for tracking.” The lawsuit stated:

This admission came only after an Australian technology blogger exposed Facebook’s practice of monitoring members who have logged out, although he brought the problems to the defendant’s attention a year ago.

Deadlines to file a claim, decline the settlement and reserve the right to file an individual lawsuit expired last month.

Affected Facebook users include those that visited websites that exhibited the platform’s “Like” button between April 22, 2010, and Sept. 25, 2011. Eligible class members were contacted via mail or email by the claims administrator, Angeion. Those eligible class members can go to the claims site and enter the Notice ID and Confirmation Code. If anybody believes they are eligible but weren’t contacted, they can file a claim independently.

The amount each class member receives in the settlement is dependent on the number of those who file a valid claim. According to the settlement website, “no settlement class member will receive a greater, or lesser, payment than any other settlement class Member.”

Last year, Facebook agreed to settle another lawsuit for $650 million. The plaintiffs in that suit alleged the company collected and stored users’ physical characteristics without their consent, violating Illinois’ biometric laws. CNET reported that “[n]early 1.6 million Facebook users in the state each received $397 payouts.”

The law firm of Keller Rohrback and Bleichmar Fonti & Auld represent the plaintiffs in the case.

Source: Reuters and CNET.com

Meta 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 clicking the button below. 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 up our Mass Torts Section, also works with the team.

AN UPDATE ON MOTOR VEHICLE LITIGATION

Risk of Crash Prompts Recall of 80 GM Cruise Self-Driving Cars

General Motors Company’s subsidiary, Cruise, has recalled software used by its robotaxis following the June crash of a self-driving car in San Francisco.

Last summer, the Cruise unit updated the automated driving system (ADS) software. According to a report published by the National Highway Traffic Safety Administration (NHTSA), all vehicles with the old software were repaired at that time. The issue occurred when Cruise vehicles turned left at intersections without a green arrow. The report said:

The software may, in certain circumstances, when making an unprotected left, cause the ADS to incorrectly predict another vehicle’s path or be insufficiently reactive to the sudden path change of a road user.

The California Public Utilities Commission granted Cruise permission to charge late-night delivery fares on June 2. Employing its robotaxi service the next day, a Cruise car tried to make an unprotected left turn and hit a Toyota Prius.

The NHTSA and Cruise’s board reviewed the accident, prompting the software recall. When the accident occurred, the software was installed in 80 Cruise cars. Cruise spokeswoman Hannah Lindow said in an email:

We submitted this voluntary filing in the interest of transparency to the public. It pertains to a prior version of software and does not impact or change our current on-road operations.

The Prius collision is not the only issue Cruise has faced. About a dozen Cruise vehicles stopped in the same San Francisco intersection just a few weeks after the accident. The cars blocked other motorists until company employees could retrieve them.

Source: Bloomberg

$6 Million Attorney Fees Award Upheld In Death Suit

Kip Holland, 50, was killed Dec. 8, 2016, while walking along a Georgia highway near Gainesville, when a tractor-trailer driven by James Harper struck him. Harper was insured by Cypress Insurance Co., ordered last month to pay $6 million in attorney fees and costs despite the original verdict being lowered to $1 million.

Witnesses of the tragedy reported that Harper had driven unsteadily, swerving for two miles before the trailer separated from his truck. The trailer subsequently hit and crushed Holland to death. The Holland estate sued Cypress insurance, and a two-part trial began in February 2020.

The jury determined that Harper lied about his medical information while obtaining a federal trucking license. The jury found that Harper acted in “bad faith in the transaction,” awarding the Holland estate $15 million after the first part of the trial. The jury’s finding of bad faith triggered a legal provision making Holland’s estate eligible to recoup litigation expenses. The jury then awarded the estate $6 million in attorneys’ fees and other litigation expenses.

Two months later, Cypress moved for a new trial and asked the court to grant it a motion for rare oral arguments, claiming the $6 million awarded in attorneys’ fees was the same as paying a $5,500 per hour rate. The court denied both requests, and Cypress appealed to the Eleventh Circuit Court of Appeals.

Cypress also appealed the $21 million verdict in September 2020, asking the court to reduce the amount to the $1 million cap on the policy that covered automobile accidents. The trial court lowered the verdict to $1 million.

In ruling on the attorneys’ fees, the appellate court vacated the $6 million award and instructed the lower court to revisit the amount based on recent state court rulings that limited attorneys’ fees.

As Law360 explained, the recent state court rulings addressed a statute that guides the mathematical apportionment of costs. If a plaintiff rejects a settlement offer, the defendant is allowed to recover if the court also finds against the defendant and the final award is less than 75% of the settlement offer. Likewise, a plaintiff may recover fees if the defendant rejects a settlement offer, the court rules in favor of the plaintiff, and the final award is more than 125% of the offered settlement. 

U.S. District Judge Richard W. Story oversees the case in the Northern District of Georgia and determined a different statute controls the guidelines for awarding attorneys’ fees. Judge Story explained that the offer-of-settlement law is time-based. It is intended to put the party that receives the favorable outcome in the same place it would have been if the offer had been accepted.

However, in the case at hand, the controlling law is based on the “bad faith” factor and is designed to punish the wrongdoing. Judge Story found that the plaintiffs offered strong support for the $6 million attorneys’ fees award. He said further:

In fact, the court fails to see that there is much more a party could offer to support a contingent fee agreement than was offered by plaintiffs here.

Robert S. Lazenby of Lazenby Law Group represents the plaintiff’s estate. He said the order is “very thorough and well-reasoned.” He continued:

Ultimately, the jury rendered its decision 31 months ago. Since that time, Cypress Insurance has attempted to delay the inevitable by exercising its right to appeal. In bad faith, Cypress failed to resolve the case when the opportunity was presented multiple times. Cypress then lost the trial in 2020, lost their appeal, and has now lost again. Plaintiffs seek nothing more than to see that justice is served and fully intends to do so.

The case is Holland et al. v. Cypress Insurance Co. et al., case number 2:17-cv-00120.

Source: Law360.com

BIG TRUCK ACCIDENT LITIGATION

Amazon Has History Of Hiring Dangerous Trucking Companies

It is well-known that heavy trucks are a danger to public safety. Common complaints include inadequate maintenance and driver misconduct. However, a new study by The Wall Street Journal (WSJ) sheds light on a new threat: Amazon.

The WSJ published an article on Sept. 22, 2022, revealing that Amazon regularly contracts with unreasonably dangerous trucking companies. Many companies awarded contracts with Amazon received safety scores worse than the level at which U.S. Department of Transportation (DOT) officials typically take action, according to the WSJ’s analysis.  The study further revealed that “Amazon contractors with problematic scores were twice as likely as other contractors to have a crash while working for the company.” This dangerous practice of hiring unsafe drivers has led to more than 75 deaths resulting from crashes involving trucking companies hauling for Amazon since 2015.

Amazon claims to have added a requirement that companies seeking to enroll in its trucking network have DOT safety scores substantially better than the government’s threshold scores. However, the WSJ uncovered alarming statistics showing companies continued hauling Amazon freight even after their scores grew worse than Amazon’s internal threshold.

Amazon’s regular contractors were more than twice as likely to receive unsafe driving scores compared with similar outfits. But Amazon says its network is safe.

The online retailer and cloud service provider created an expansive system for moving merchandise nationwide. According to the WSJ report, the trucking companies it hired to move this merchandise were more dangerous than other trucking companies and, sometimes, fatally.

The WSJ uncovered several instances in which Amazon allowed drivers to continue hauling freight after causing fatal accidents or being convicted of driving under the influence of drugs. Large companies must be held accountable for placing the public in harm’s way.

The WSJ’s data concentrated on 3,512 trucking companies. These companies were investigated by authorities three or more times while driving for Amazon since February 2020. Government inspection reports reveal that these companies delivered 75% of Amazon’s shipments by trucks. The inspections included routine compliance checks, such as at weigh stations and traffic stops.

Our firm is currently in litigation against Amazon, involving the same problems outlined above. We will write about that litigation in future issues. Beasley Allen lawyers will continue to advocate for safer roadways and to work in the federal system to ensure safe roads for the public. If you would like more information about trucking cases or the safety issue presented in the WSJ article, you can contact Chris Glover, a lawyer in our Personal Injury & Product Liability Section. Chris heads up our Atlanta office and is one of the lawyers in the section who handles the trucking litigation.

Source: The Wall Street Journal

Critical Role Evidence Plays In A Single Tractor-Trailer Crash Case

Ben Keen, a lawyer in our firm’s Atlanta office, recently filed two lawsuits in the U.S.  District Court, Northern District of Georgia. Both lawsuits involve a defendant tractor-trailer driver rear-ending an unsuspecting plaintiff in standstill traffic. Ben, who handles personal injury and wrongful death cases in the firm’s Georgia office, is in our Personal Injury & Products Liability Section.  

Both of the cases filed involved life-threatening injuries to the plaintiffs. Ben will discuss one of the cases below.

The plaintiff was driving a tractor-trailer when he was rear-ended at a high rate of speed by the defendant driver. Counsel for the defendant asserted that the defendant driver who struck the plaintiff was not speeding and, further, that the defendant’s vehicle did not have the capability to speed due to a governor restricting the speed of travel. Of course, speeding is not determined by a speed limit sign alone. Circumstances dictate the speed a driver should drive.

In this case, stop-and-go traffic in a construction zone required a driver to slow his vehicle and maintain control, including the ability to stop. The defendant company maintains that their driver was not speeding in the face of the evidence. Such evidence includes an impact with such force that resulted in the total destruction of the defendant’s tractor, dash camera, and black box. Further, the defendant’s vehicle did not come to a final resting point until his vehicle jackknifed after colliding into three other vehicles.

Fortunately, the plaintiff’s vehicle was equipped with an outward-facing dash camera which showed the initial impact and three sequent high-speed impacts. Both lawsuits filed resulted in life-altering injuries to the plaintiffs.

If you have questions regarding tractor-trailer wrecks, and especially those filed in federal court, contact Ben Keen at 800-898-2034 or by using the form at the bottom of this page.

PRODUCT LIABILITY UPDATE

The Dangers Of Aging Tires

The National Highway Safety Administration (NHTSA) reports that a total of 664 people died due to tire-related crashes in 2020. Common tire hazards include tread separation and runaway tires. One lesser-known but equally fatal hazard is the danger associated with aging tires. Many consumers may see tires as long-use products when, in reality, tires should be monitored and replaced as they age. The U.S. automobile industry hosts a sub-industry entirely dedicated to selling used tires. While this may be budget-friendly, it can cause more harm in the long run. Used tires bring many unknowns, such as age and usage history of the tire.

Some used tires show signs of wear and tear, creating an apparent cause for concern. However, tire damage can also occur internally or in ways that are harder to detect. Consumers may be unable to determine important factors such as the adequacy of repairs or the age of a tire without the help of a tire professional. Tires must be monitored and maintained by professionals to ensure safety on the road. Because of the reliance on tire professionals to ensure public safety, it is vitally important that these professionals be properly trained and educated. Each tire professional should be able to read and interpret the Department of Transportation date code printed on each tire.

This code provides the week and year in which the tire was manufactured, thus revealing essential information in determining safety of each tire. Tire professionals should always perform a proper inspection of tires, take measures to determine any weaknesses in the tire, and perform necessary repairs. Consumers should not continue to use tires following multiple and/or extensive repairs, as the integrity of the tire may be compromised.

Beasley Allen lawyers have successfully handled cases involving fatal and non-fatal accidents involving tire failures. For more information or if you have any questions, contact Cole Portis or Ben Baker, lawyers in our Personal Injury & Products Liability Section. Both Cole and Ben handle tire-related litigation for our firm. They can be reached at 800-898-2034 or by using the form at the bottom of this page.

Hyundai And Kia Recall SUVs Due To Fire Risk

Hyundai and Kia have suspended sales of thousands of SUVs in the U.S. and are telling current owners to park their vehicles outdoors after receiving several reports of fires linked to trailer hitch wiring.

The fire risk affects more than 245,000 Hyundai Palisades and more than 36,000 Kia Telluride SUVs. All of the affected vehicles are model years 2020-2022.

The Korean automakers issued separate auto safety recalls for the vehicles, which are distinctly different but share many of the same components. The recalls target a circuit board in the tow hitch wiring. According to National Highway Traffic Safety Administration (NHTSA) documents posted in mid-August, the tow hitch assemblies contain printed circuit boards that may be contaminated by moisture or external debris.

A short circuit on the boards can cause the wiring to overheat and catch fire. The trailer hitches can catch fire while the vehicle is in motion or when parked with the ignition off. Not all the recalled vehicles are equipped with the accessory tow hitch, but they must be inspected.

The automakers started receiving reports of fires breaking out from the rear of the vehicles in early 2021. They have received at least 25 reports of vehicle fires stemming from the tow hitches. There have been no reports of injury or crashes.

The automakers are working to determine the source of the contamination. As of writing, neither company had figured out a repair. Hyundai will have dealerships inspect the recalled vehicles’ wiring and remove the fuse to the tow hitch module as an interim repair. Both manufacturers urge drivers of the recalled vehicles to keep them outside and away from structures.

Source: Associated Press

Philips Recalls More Than 17 Million Sleep Apnea Masks

Concerns over magnets used to hold respiratory devices in place when patients wear them have prompted Philips to recall more than 17 million bilevel positive airway pressure (BiPAP) and continuous positive airway pressure (CPAP) therapy masks. Regulators fear the magnets could affect some patients who have implanted medical devices. According to the Food and Drug Administration (FDA), the magnets have been reported as the cause of 14 serious injuries.

The latest recall involves a different issue than what triggered a previous recall of 5.5 million respiratory devices. However, “the masks are used with some of the BiPAP and CPAP devices that are now being repaired and replaced,” Medtechdive reported.

The most recent recall involves Philips’ DreamWisp, DreamWear, Amara View, Wisp and Wisp Youth masks. Magnets connect components an help keep the devices stationary. The medical implants that could be affected by the magnets include brain stents and cardioverter defibrillators. These medical devices could be implanted in the mask wearer and others around them. The FDA warns that patients with metallic objects in their bodies, such as shrapnel and splinters in their eyes, could be affected by the magnets.

Mask wearers who have implanted devices are encouraged by Philips and the FDA to switch to masks without magnets and consult their physician for an alternative. Philips will work with mask resellers to provide alternatives for users who need them. Medtechdive reported that  Philips spokesperson Steve Klink “said in an email that the masks can still be used according to the updated instructions and labeling if patients or people in close proximity to them do not have implanted metallic devices or objects in their bodies.”

Philips revealed that it has received 14 reports of serious injuries related to the recalled masks as of Aug. 30. Those events included pacemaker failure, arrhythmia, seizures and irregular blood pressure. No deaths had been linked to recalled masks as of Sept. 1, but the FDA thinks fatal outcomes are possible. Jeff Shuren, M.D., J.D., director of the FDA’s Center for Devices and Radiological Health, said in the agency’s recall notice:

This latest recall raises further safety concerns both for Philips devices already subject to a recall, as well as additional devices. We strongly encourage providers and at-risk patients to review this important safety information and follow our recommended actions to reduce the potential for harm from these products.

In its assessment of what could go wrong, the FDA said the magnets could lead to increased pressure on the brain or eye in patients with shunts, irregular heartbeat in patients with pacemakers, and failure to shock in patients with cardioverter defibrillators. Any of those events, and others related to the use of aneurysm clips and neurostimulators, could be fatal. 

The use of the affected masks is now “contraindicated for patients and their household members, caregivers and bed partners that may be in close vicinity to patients using the masks” who have implanted devices such as pacemakers. 

In its statement, Philips said using magnetic clips to attach headgear straps to masks is common in the sleep therapy device industry and called its revised labeling “a new and industry-leading practice.” The warning states magnets with a field strength of 400 mT are used in the masks. The user guide for ResMed’s F20 masks features a warning that states “the magnetic field strength is less than 400 mT” and advises keeping the headgear and frame at least 2 inches from any active medical implant.

According to Philips spokesman Klink, the Philips magnets have a field strength of less than 400 mT. The recall intensifies product safety issues Philips is facing involving its sleep and respiratory care products. The company recalled sleep apnea and ventilator machines in June 2021 over information that the foam used to quiet the machines was deteriorating, causing a risk to users of inhaling or ingesting the particles and potentially exposing them to toxic chemicals.

The June 2021 recall involves 5.5 million devices and has required FDA and U.S. Department of Justice (DOJ) regulators to intervene. The company has been off the market for 15 months and has led to lawsuits. As the DOJ continues in consent decree negotiations, the defendant could remain off the market for longer. Its rival, ResMed, will continue benefiting from Philips’ lack of market activity.

According to Reuters, French prosecutors opened an investigation over the recall on Sept. 8. It is investigating complaints filed for “aggravated deception, involuntary attacks on physical integrity, endangerment of the life of others and administration of harmful substances.” A month earlier, embattled sleep and respiratory device maker also recalled BiPAP machines due to the potential they contain contaminated plastic. The issue is separate from the defective foam recall, yet some of the company’s devices were included in both recalls.

The FDA says users can continue utilizing the products if they or those near them when the mask is in use don’t have implanted metal objects. If they have implanted metal objects, the agency lists the next steps, recommendations, and a complete list of affected devices on its website at https://www.fda.gov/medical-devices/safety-communications/certain-philips-respironics-masks-bipap-cpap-machines-recalled-due-safety-issue-magnets-may-affect.

Sources: Medtechdive.com and CBS Pittsburgh 

Sixth Circuit Reversal Leaves J&J Facing Pelvic Mesh Suit 

The Sixth Circuit Court of Appeals has revived a lawsuit against Johnson & Johnson (J&J) and Ethicon Inc., its medical device maker. The suit was filed by a Kentucky woman who claimed she was injured by defective pelvic mesh.

The appellate panel reversed a district court’s dismissal of the lawsuit against J&J and Ethicon Inc. The panel said plaintiff Connie J. Thacker presented enough evidence on design defect and failure to warn allegations to survive summary judgment. This was despite some conflicting testimony. The panel said the lower court too narrowly considered the testimony of two doctors who made statements supporting Thacker’s claims that she likely would not have had two pelvic mesh devices implanted if the makers had provided proper instructions for use. The panel’s decision said:

 Even if some testimony was contradictory, weighing … statements of this nature is a task for the jury, not for this court. This is particularly true in the medical field, where treating physicians may have an interest in protecting their professional reputations and defending past treatment decisions, even if the case is not focused on their standards of care.

Thacker first sued in 2012 because of complications she suffered after a doctor implanted two pelvic mesh devices to treat organ prolapse and stress urinary incontinence. The panel said in the decision that this case “languished” for the better part of a decade in a sprawling multidistrict litigation (MDL) involving women with similar claims. The suit was sent back to the MDL court in the Eastern District of Kentucky in 2020.

The Sixth Circuit panel noted that other district courts have adopted approaches like the one for which Ethicon advocated. However, it said Kentucky’s law states plaintiffs can support proximate cause arguments with other types of evidence. The decision by the panel said:

For example, plaintiffs may point to evidence suggesting that, with an adequate warning: the treating physician would not have recommended the device; a reasonable physician would not have recommended the device; the treating physician (or a reasonable physician) would have given the plaintiff more information about the severity and likelihood of the risks; or the plaintiff would not have consented to, or elected to proceed with, the treatment.

The panel said that, when considering the evidence, Thacker had provided enough for a jury to hear the case. This includes statements from an expert who said her treating physician would not have recommended implanting the devices if he had all the relevant information at the time.

The panel also decided that Thacker’s design defect and negligence allegations could proceed. It found that she provided enough evidence of a feasible alternative to the pelvic mesh products she said caused her injuries. Finally, the panel decided the case could proceed under a negligence claim and under proximate causation.

The plaintiff is represented by G. Sean Jez, Gregory D. Brown and Sylvia Davidow of Fleming Nolen & Jez LLP.

 The case is Connie J. Thacker v. Ethicon Inc. et al., case number 21-6193, in the Court of Appeals for the Sixth Circuit.

Source: Law360.com

C.R. Bard Hit With $4.8 Million Verdict Over Faulty Hernia Mesh

A Rhode Island jury awarded $4.8 million to a Hawaii man who claimed that defective hernia mesh made by Davol and C.R. Bard caused him to suffer internal injuries.

Plaintiff Paul Trevino underwent hernia surgery in 2008, during which doctors implanted a Ventralex Hernia Patch. He claims the mesh twisted and bore into his bowel over the next eight years, causing blockages and pain.

In 2017, he underwent laparoscopic surgery to have the mesh removed. Doctors discovered “dense inflammation” during the procedure, and his “bowel stuck to the mesh.” His medical team was forced to switch to traditional open surgery. A cascade of complications resulting in more surgeries followed. Shortly after being discharged from the hospital, Trevino developed a fistula and ended up back in the hospital for 40 days and nine more procedures. The plaintiff claimed in the lawsuit:

Complications and more surgeries followed: After Trevino went home, he developed a fistula that required hospitalization for 40 days and nine more procedures. C.R. Bard downgraded to a lower-quality polypropylene plastic after acquiring the device, which includes two layers of that plastic, then a layer of an anti-stick material, and then a ring made from a third type of plastic and used purely for insertion. C.R. Bard proceeded to conceal from the new supplier, LyondellBasell, what it was using the plastic for.

Trevino sued C.R. Bard, arguing that the polypropylene plastic the company used to manufacture the mesh was low-quality and unsafe for humans. After a month-long trial, the jury returned with the award of compensatory damages.

Becton Dickinson (BD), C.R. Bard’s parent company, said in its latest quarterly filing with the Securities and Exchange Commission that it had been hit with more than 30,000 product liability lawsuits involving its hernia repair devices. Most of those claims are pending in a coordinated proceeding in Rhode Island State Court and federal multidistrict litigation in the Southern District of Ohio. Additional lawsuits are also pending in other state and federal court jurisdictions.

Trevino is represented by Jonathan Orent, Christina Behm, Grace Chandler, Dennis Costigan, Annie Kouba, Laura Stemkowski and Hank Young of Motley Rice LLC and Katherine Charonko, Brian McAllister and Elizabeth Stryker of Bailey Glasser.

The case is Trevino v. Davol, case number PC-2018-8437, in the Superior Court of Rhode Island, Providence County.

Source: Law360.com

$3.3 Million Vein Filter Verdict Against Bard Upheld

A $3.3 million verdict obtained by a woman with a C.R. Bard vein filter embedded in her heart will stand. A Wisconsin federal judge determined the verdict to be consistent with trial evidence. 

In 2021, a jury returned the verdict for Natalie Johnson after finding that C.R. Bard failed to warn doctors of the risks associated with Meridian filters. Johnson obtained the filter in 2013 to prevent varicose veins.

After surgery, Johnson learned the filter had moved into her heart membrane within a few days. Surgeons removed most of it, but a filter part remains in her right ventricle. The surgeons determined it was too risky to remove the part, even though future complications could arise.

After the trial, Bard argued that testimony from the doctor who implanted the filter was insufficient to prove causation for two reasons:

  • One was that her testimony was based on figures erroneously provided by Ms. Johnson’s attorneys.
  • The other was that she failed to specifically identify an alternative filter she would have used instead.

Judge Conley rejected both of those arguments and upheld the jury verdict.

One Bard report showed a 62% migration rate for the Meridian filter. Dr. Olga Goncharova testified she would not have used a filter with such a high migration rate.

Bard stated the migration rate was much lower when considering other factors, offering the same argument during trial. The company further argued that only migrations over a certain percentage should be regarded as true migrations.

Judge Conley said on that argument:

However, Bard advanced this same argument to the jury at trial, asserting that only migrations over a certain threshold should truly be considered migrations, which the jury either rejected or still found would have been material to an objective surgeon, including Dr. Goncharova. Moreover, even defendant’s own expert agreed that the … report showed a migration rate around 60%.

As for Bard’s argument that Dr. Goncharova was required to have singled out another filter Ms. Johnson would have used, Judge Conley noted that the company cited no legal precedent in support before, during or after the trial. The judge said:

Instead, it is enough that she would not have made the same treatment decisions if warned, whether it be closer monitoring and removal of the Meridian filter after insertion or selecting a reasonable alternative filter on the market.

Bard further argued that the high-dollar verdict was unsupported by the evidence, especially since Johnson has exhibited no physical symptoms. Judge Conley rejected the argument, saying:

Even ignoring that plaintiff also has a strut embedded in her IVC, the fact that defendants or its counsel are casual about a piece of metal in the right ventricle of plaintiff’s heart does not mean that a reasonable jury could not find that plaintiff credibly described her ongoing anxiety and worry. This is especially true since Johnson was a surgical nurse painfully aware of what could go wrong should another strut shift.

Johnson’s Meridian vein filter suit was remanded to a Wisconsin federal court from the Bard inferior vena cava (IVC) filter multidistrict litigation (MDL) in Arizona in 2019. Bard settled with thousands of patients, and other suits were remanded, causing the MDL to lose steam.

Ms. Johnson is represented by Thomas Arbon and Ben Martin of Martin Baughman PLLC and Joseph Johnson of Searcy Denney Scarola Barnhart & Shipley.

The case is Johnson v. C R Bard Incorporated et al., case number 3:19-cv-00760, in the U.S. District Court for the Western District of Wisconsin.

Source: Law360.com

WORKPLACE LITIGATION

Federal Investigators Release Findings Of Liability in an On-The-Job Injury Case

Our firm represents Fitsroy Campbell, a hardworking young man who was employed at a Birmingham, Alabama, dairy plant when he suffered an on-the-job injury resulting in a below-the-knee amputation of his right leg. Kendall Dunson, a lawyer in the firm’s Personal Injury & Product Liability Section, filed a lawsuit against the Birmingham business, Prairie Farms Dairy, on behalf of its former employee.

In July 2021, Campbell was working in an area of the dairy plant that pasteurizes milk. A defect in the floor conveyor system caused stacks of milk to become stuck. Like other employees in the facility, our client had to correct the jam by manually pulling the stack back on track to keep the line moving.

The part of the conveyor system where the stacks regularly became lodged was unguarded, causing the employee’s leg to become caught by the machine’s chain and mangling his foot. The injury resulted in our client losing his foot and leg below his knee.

The U.S. Occupational Safety and Health Administration (OSHA) investigated the workplace incident finding a Serious violation. A Serious violation exists when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm. The maximum fine for a Serious violation is $14,502 per violation. Specifically, OSHA found that the employer failed to protect Campbell from a caught-in hazard by removing a guard designed to prevent such an injury. Federal investigators were on site investigating another on-the-job injury when Campbell sustained his injury.

Kendall believes the “Serious” violation should have been determined to be a “Willful” violation, and the fine should have reflected the employer’s conduct. A Willful violation exists when an employer either knowingly disregards legal rules and regulations or acted with indifference to employee health and safety. The maximum fine for a Willful violation is $145,027 per violation. Kendall had this to say about the case:

Because of the negligence and wantonness of others, our client needlessly suffered a painful and life-altering injury. Not only will he experience pain and physical challenges for the rest of his life, but his ability to make a living has been diminished. Prairie Farms and other defendants whose actions exposed Mr. Campbell to serious injury must be held accountable. Nothing can ever reverse his injury, but justice can help ease the lifelong impact of the injury.

Alabama’s Workers’ Compensation Act provides some financial relief for workers injured on the job through the employer’s insurance company. However, Workers’ Compensation falls far short of covering the expenses a worker must pay after a catastrophic, on-the-job injury or the families of workers killed in a workplace incident. When a worker like our client becomes injured by machinery on the job, it is essential that they consult a lawyer who will investigate the incident and help determine whether other avenues of recovery exist.

Industrial machines built with inadequate or defective components can broaden a personal injury case to an on-the-job product liability claim. In such a case, the equipment manufacturer can be held liable for the workplace injury. In other cases, the machine’s manufacturer may have neglected to install the guards that came with the machinery.

Beasley Allen lawyers have even handled cases where an employer or a co-worker removed lifesaving machine guards. An employer’s failure to train workers on the proper use and maintenance of a machine can also contribute to on-the-job injuries that give rise to third-party liability claims, putting the worker in a good position to receive maximum compensation for their injury.

If you have any questions, contact Kendall Dunson.

Georgia Workers’ Compensation And Third-Party Claims

State legislatures design Workers’ Compensation statutes to compensate those injured while working within the line and scope of their employment. Given the number of workers injured on the job each year, most Americans will either sustain an on-the-job injury or know someone who has. Despite this, many employees do not know their rights under the operative workers’ compensation statutes in their state. Injured workers are often surprised to learn that, for instance, state legislatures do not design workers’ compensation statutes to make injured workers whole; indeed, the legislatures draft workers’ compensation laws with the employers’ interests prioritized above the interests of injured employees.

Workers’ compensation statutes are adopted state by state. While some benefits are similar across the board, others differ significantly. For example, in Georgia:

  • An employer will pay its injured employee 2/3 of his pre-injury weekly earning figure
  • Injuries before July 1, 2013, are entitled to medical treatment for the remainder of the injured party’s life
  • Injuries on or after July 1, 2013, may receive medical treatment for up to 400 weeks
  • Compensation for permanent injuries, in most cases, is capped at 400 weeks. However, when the injury is catastrophic, the employee may be eligible for lifetime benefits.
  • Employers may reduce benefits after an employee is released to return to work with certain limitations and / or restrictions
  • Employers may suspend benefits if the employee is released to return to work without limitations or restrictions
  • Employees who sustain catastrophic injuries are entitled to assistance in finding new employment, and the Georgia State Board of Workers’ Compensation will facilitate that process

In the case of death:

  • A worker’s dependents will receive $725.00 per week for a death that occurred on or after July 1, 2022
  • A widowed spouse without children is limited to a total amount of $290,000 unless they remarry or cohabitate in a meretricious relationship

Given the shortcomings of Workers’ Compensation benefits, it is essential to determine if a third-party claim exists. Often, injured employees are mangled or killed by defective machinery. In such cases, the injured party can file a third-party claim against the machinery’s designer, manufacturer, seller and / or assembler. Other times, third-party negligence causes an employee’s injury.

Beasley Allen lawyers in each of our offices frequently handle trucking and other workplace-related accidents that include both workers’ compensation and third-party components. Under the latter, the injured party may be entitled to recover common law damages, past/future pain and suffering, past/future mental anguish, loss of enjoyment, lost income, and punitive damages. That approach will provide a more complete path to client restitution than workers’ compensation alone, particularly in the most severe cases. If you have any questions, contact Kendall Dunson.

Mobile Office files General Maritime Law Case Against Austal USA

Wyatt Montgomery, a lawyer in our firm’s Mobile, Alabama, office, has filed a personal injury case under the General Maritime Law of the U.S. against Austal USA.  The case was filed on behalf of a contractor who was working on a floating drydock allegedly owned and maintained by Austal.  The lawsuit alleges that while the contractor was working on the drydock, he slipped and fell, resulting in catastrophic injuries to his leg and other parts of his body.  Particularly, the drydock owner failed to provide a non-skid coating or otherwise eliminate slippery conditions, which ultimately caused the contractor’s injuries.

Under General Maritime Law, the drydock owner has a duty to maintain its premises in a reasonably safe condition for its intended purpose – much in the same way an owner of a premises under common law negligence principles owes a duty to maintain its premises in a reasonably safe condition.  One might easily think slippery conditions on or near the water are inevitable.  However, the Occupational Safety and Health Administration (OSHA) provides regulations specifically covering the maritime industry and, particularly, requirements for “working surfaces” and “slippery conditions” and the practical means by which to keep those surfaces dry.

If you would like to know more about this case, or if you have a client who has been severely injured on or above a navigable waterway, contact Wyatt Montgomery or Evan Allen in our Mobile office.  Wyatt and Evan are investigating and filing cases that arise under the U.S. General Maritime Law and The Jones Act.  They can be reached at 800-898-2034 or by using the form at the bottom of this page.

AVIATION LITIGATION

Firm’s Investigation Of Plane Crash Case Reveals Deadly Pilot Errors

Mike Andrews, a lawyer in our Personal Injury & Product Liability Section, focuses much of his practice on aviation litigation. He has helped many families dealing with the devastating impacts of a plane crash to find answers as to what went wrong and why.

Plane crash cases are highly complex and almost always involve many factors contributing to the crash. The National Transportation Safety Board (NTSB) and the Federal Aviation Administration (FAA) investigate all aviation accidents involving U.S. aircraft, whether in the U.S. or overseas. But while their investigations boost our understanding of aviation accidents and help improve flight safety, they do not always fully address liability and accountability issues that plane crash victims and their families seek for resolution, healing, and closure.

Some aviation accident cases Mike handles, such as the March 2019 crash of Ethiopian Airlines Flight 302, involve defective design and manufacturing issues and may even expose flawed regulatory processes. But far more plane crashes – at least 70% –  involve some pilot error, according to federal authorities.

Mike and Cole Portis, the firm’s Personal Injury & Product Liability Section Head, recently settled a plane crash lawsuit that claimed the lives of four people near Atlanta. Their investigations showed that the pilot’s actions and lack of experience initiated the events that caused the plane to crash shortly after taking off at Dekalb-Peachtree Airport last October.

Pilot Jonathan Rosen filled the Cessna P210N airplane with fuel before taking off from Dekalb-Peachtree bound for Houston. The plane lifted off about 1,000 feet down the runway in a nose-high attitude, rolled to the left, and crashed to the ground in an inverted position. The fiery crash killed all four people aboard, including two children.

When Beasley Allen investigated the flight profile, equipment, and weight on board, it immediately became apparent that Mr. Rosen failed to calculate the aircraft’s weight and balance correctly.

The NTSB has emphasized the critical importance of correctly calculating weight and balance in recent safety alerts. The agency noted that overloaded and / or imbalanced planes could “severely degrade” the aircraft’s ability to fly. Aerodynamic stalls and loss of control often occur, potentially resulting in a crash. These problems typically strike during takeoff and landing.

Our lawyers also found that Rosen’s airplane had been extensively modified. A new Rolls Royce turbine engine and an additional fuel tank significantly altered the airplane’s limits and capacities. Yet, Rosen’s lack of training likely prevented him from recognizing and understanding the modified airplane’s operational limitations and performance characteristics. He improperly calculated the airplane’s center of gravity, creating a weight distribution that exceeded the aircraft’s operating limits. The resulting instability would not have been noticed until the airplane was in the air. This is why it’s essential that general aviation pilots recheck the plane’s weight distribution just before taking off.

Another recent crash also demonstrates the importance of correctly calculating weight and balance. Last month, the NTSB released a final report on a 2019 airplane crash in Michigan that killed five men. The report states, “At takeoff, the airplane was about 232 lbs over the maximum allowable takeoff weight and about 2.53 inches past the aft [center of gravity] limit.”

Inexperience is often another contributing cause of many aviation accidents. Investigating the Georgia crash, our lawyers found that Rosen’s experience with the modified plane amounted to less than two hours. He also completed just one day of a five-day flight training program with the Cessna. Mike observed:

Our ability to show that pilot error led to this tragic crash was the key to reaching a settlement with Mr. Rosen’s estate and the other defendants. While the grieving families can never get their loved ones back, at least our work, in this case, may give them some answers to questions about the crash they have struggled with for months.

Sources: Detroit News, National Transportation Safety Board, AV Web, Xinsurance.com

$200 Million Boeing Settlement

The U.S. Securities and Exchange Commission (SEC) announced a $200 million settlement agreement with Boeing last month that will end its investigation of the company’s misleading investors about its role in the crashes of two of its 737 MAX jets. The agency also announced that the company’s former CEO, Dennis A. Muilenburg, who was at the company’s helm during the time, will pay an additional $1 million.

The SEC said Boeing and Muilenburg downplayed safety design problems with the MAX even as the company was developing solutions to address the flaws to reassure investors. The SEC charged Boeing and Muilenburg “with making materially misleading public statements” during investor calls and press conferences following the October 2018 and March 2019 crashes that killed 346 people.

SEC Chair Gary Gensler issued a statement relating to the settlement. He had this to say:  

There are no words to describe the tragic loss of life brought about by these two airplane crashes. In times of crisis and tragedy, it is especially important that public companies and executives provide full, fair, and truthful disclosures to the markets. The Boeing Company and its former CEO, Dennis Muilenburg, failed in this most basic obligation. They misled investors by providing assurances about the safety of the 737 MAX, despite knowing about serious safety concerns. The SEC remains committed to rooting out misconduct when public companies and their executives fail to fulfill their fundamental obligations to the investing public.

The SEC found that one month after the first crash, Lion Air 610, which crashed in Indonesia in October 2018, a press release was issued by Boeing and approved by Muilenburg. It “selectively highlighted certain facts from an official report of the Indonesian government suggesting pilot error and poor aircraft maintenance contributed to the crash.” The release assured the public of the plane’s safety and failed to disclose that the company’s internal review suggested the aircraft’s “MCAS posed an ongoing ‘airplane safety issue.'”

The MAX iteration of the Boeing 737 incorporated a new automated feature called the Maneuvering Characteristics Augmentation System or MCAS. The feature was added to counter potential flight problems associated with the new aircraft’s design. However, Boeing erased all mention of the MCAS from training materials, leaving 737 MAX pilots entirely unaware of this secret control and unprepared to take proper action when it adjusted the plane’s pitch.

The hidden MCAS system played a significant role in the crashes of Lion Air and Ethiopian Airlines. Federal investigators have determined that the MCAS was susceptible to faulty sensor readings. Falsely sensing a nose-up problem, the MCAS would be activated to push the airplane’s nose down repeatedly. This created a tug-of-war that caused the planes to lose attitude and airspeed until they crashed.

Again, following the second crash in March 2019 involving Ethiopian Airlines Flight 302, Boeing and Muilenburg misled people. The SEC said that “though aware of information calling into question certain aspects of the certification process relating to MCAS, [Muilenburg] told analysts and reporters that ‘there was no surprise or gap . . . that somehow slipped through [the] certification process’ for the 737 MAX and that Boeing had ‘gone back and confirmed again . . . that we followed exactly the steps in our design and certification processes that consistently produce safe airplanes.'”

Gurbir S. Grewal, Director of the SEC’s Enforcement Division, made this observation in a statement:

Boeing and Muilenburg put profits over people by misleading investors about the safety of the 737 MAX all in an effort to rehabilitate Boeing’s image following two tragic accidents that resulted in the loss of 346 lives and incalculable grief to so many families. But public companies and their executives must provide accurate and complete information when they make disclosures to investors, no matter the circumstances. When they don’t, we will hold them accountable, as we did here.

The SEC’s orders against Boeing and Muilenburg find that they negligently violated the antifraud provisions of federal securities laws. Without admitting or denying the SEC’s findings, Boeing and Muilenburg consented to cease-and-desist orders that include penalties of $200 million and $1 million, respectively.

Muilenberg was ousted from Boeing in December 2019 and replaced with former board chairman and now-CEO David Calhoun. In January 2021, Boeing admitted that two of its MAX test pilots misled the Federal Aviation Administration about the existence of the MCAS. The company agreed to pay $2.5 billion in criminal fines to avoid prosecution as part of its plea agreement with the federal government.

Sources: SEC, Law360

THE TALC LITIGATION

Talc Claimants Committee Tells Third Circuit That LTL Bankruptcy Filed In Bad Faith  

The U.S. Court of Appeals for the Third Circuit heard arguments concerning the bad faith Chapter 11 bankruptcy of Johnson & Johnson (J&J) subsidiary LTL Management LLC on Sept. 19 in Philadelphia. LTL was created in October 2021 in Texas using a divisional-merger “Texas two-step” procedure where J&J (nearly a $500 billion corporation) attempted to shave off billions of dollars in liability arising from talcum-powder-related lawsuits to LTL along with nominal assets, with the remainder of Johnson & Johnson Consumer Inc. transferred into a similarly named new entity.

Within two days, LTL relocated to North Carolina and filed for bankruptcy. After filing, approximately 40,000 claims pending in multidistrict litigation (MDL) and state courts were stayed. Claims centered around ovarian cancer and mesothelioma caused by asbestos contamination in J&J’s talcum baby powder, a finding substantiated by Food and Drug Administration (FDA) testing in 2019.

Weeks later, the case was transferred to New Jersey, where J&J is headquartered, and the talcum powder MDL is pending. In February of this year, U.S. Bankruptcy Judge Michael Kaplan denied motions in New Jersey to dismiss the Chapter 11 case as a bad faith filing and extended the automatic litigation stay. 

Throughout the LTL bankruptcy process, J&J has continued to pay billions to shareholders and stock buybacks. Lawyers representing women with claims against J&J pointed out that the company is proceeding with business as usual while victims of J&J’s baby powder are dying amid massive medical expenses and without resolution.

The Bankruptcy Code requires financial transparency of the debtor to facilitate negotiations and reorganization, and creditors are generally paid under the “absolute priority rule” and only in accordance with a Chapter 11 plan approved by the court – creditors are paid before owners and shareholders. In legitimate bankruptcies, companies enter with all their assets and liabilities; where the company has spun off its debts and is operating with full control of its assets, the balance of protections embodied in the Bankruptcy Code is disrupted.

Unlike a good-faith bankruptcy proceeding, LTL has no incentive to emerge from bankruptcy. Before J&J’s controversial maneuver, corporations used the Texas two-step four times since 2017 as protection from litigation; all were large, profitable companies with substantial assets, none were Texas companies, and none declared themselves insolvent. All four cases are still pending, and creditors remain uncompensated. 

The Texas two-step legal loophole allows debtors to circumvent the tort system and deprives victims of their right to seek redress in a jury trial process. The mass tort system is intended to consolidate many claims and conduct representative bellwether trials, allowing juries to determine awards and predict how similar cases may be decided. This venue facilitates negotiations and settlement in a way not available in the bankruptcy system.

At the time of the LTL bankruptcy, the talcum powder MDL had already progressed through the lengthy discovery and Daubert phases and was poised for bellwether trials. A number of state court cases nationwide had trial date settings as well, many of which were Beasley Allen clients.   At best, the Texas two-step has substantially delayed their day in court and, at worst, may set a precedent for other corporate defendants to similarly rid themselves of legal obligations. 

Due to the far-reaching implications, the U.S. Department of Justice also opposes J&J’s bankruptcy and presented arguments in addition to those by representatives of talcum powder victims. These decisions will greatly impact consumer rights, as highlighted by the question posed during arguments, “…what’s to stop any other company in America from doing the same thing?” 

U.S. Circuit Judges Thomas L. Ambro, L. Felipe Restrepo and Julio M. Fuentes sat on the appellate panel. The three judges were engaged, showed a clear understanding of the issues and were active in questioning. Co-lead counsel for the talcum powder MDL, Leigh O’Dell of Beasley Allen, perhaps sums it up best in her response to the hearing:

Oral argument in the Third Circuit was an important moment, but we should not lose sight of a fundamental truth, one no amount of legal argument can change: Johnson & Johnson is not bankrupt and therefore should not be in bankruptcy court. The appellate court should reject the company’s cynical attempt to twist the bankruptcy code into something it is not, a vehicle to trample the constitutional rights of 40,000 women and avoid responsibility for decades of bad acts. To claim “greater efficiency” and “fairness” in the bankruptcy system is to ignore the obvious – that a company worth nearly $500 billion, some of which our clients contributed, should do the right and responsible thing, and bankruptcy is not it. We are hopeful the court will recognize the lack of good faith, the lack of a valid reorganizational purpose in their efforts, and the inherently dangerous precedent in allowing such a strategy to become acceptable for other companies seeking to escape responsibility for their actions.

If you need more information, contact Jennifer Emmel.

J&J Fraud Suits Can Proceed Regardless Of Imerys Chapter 11 Stay

A proposed class action alleging fraud against Johnson & Johnson (J&J) has been allowed to proceed in New Jersey state court. Law360 reported that U.S. Bankruptcy Judge Laurie Selber Silverstein ruled “that the automatic stay of litigation imposed by the Chapter 11 filing of Imerys Talc America doesn’t apply to J&J.”

In an oral bench ruling, Judge Silverstein said that since the claims being asserted against J&J aren’t tied to the talc injury claims involved in the Imerys bankruptcy, the stay doesn’t apply to the fraud suits filed by the children of a man who died of asbestosis after working for an Imerys predecessor company. Judge Silverstein said in her ruling:

Whether or not claims implicate Imerys is not the standard. Imerys and Johnson & Johnson may be joint tortfeasors but that does not automatically stay litigation against nondebtors.

Imerys Talc America and co-debtor Imerys Talc Vermont —the successor to Windsor Minerals Inc., an entity owned by J&J until 1989 — are facing hundreds of talc injury claims on allegations the talc it supplied to J&J and others contained disease-causing asbestos.

Two sons of the late Louis Edley filed the putative class action in New Jersey state court in May, alleging J&J committed fraud by lying about internal testing that showed the talc contained dangerous levels of asbestos.

The claims include allegations that J&J hid and destroyed evidence that supported personal injury claims against the company, including the Edley claim. His case was dismissed decades ago based on J&J’s assertions that the talc did not contain asbestos, according to the recent proposed class action. The plaintiffs in that suit sought a ruling from Judge Silverstein declaring that the automatic stay in the Imerys case doesn’t apply to the claims against J&J in state court. Judge Silverstein ruled that the stay does not apply, but even if it did, she would lift it to allow the proposed class action to proceed.

Imerys Talc, a longtime supplier of talc for J&J, filed for bankruptcy in February 2019, facing tens of thousands of personal injury claims from people alleging the talc was tainted with asbestos and led to diagnoses of mesothelioma, ovarian cancer and other illnesses.

The Edleys are represented by Christopher M. Placitella, Michael Coren, Dennis M. Geier, Eric S. Pasternack and Jared M. Placitella of Cohen Placitella & Roth PC, and Thomas C. Crumplar and David T. Crumplar of Jacobs & Crumplar PA.

The case In re: Imerys Talc America Inc., case number 1:19-bk-10289, in the U.S. Bankruptcy Court for the District of Delaware.

Source: Law360.com

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.

OPIOID LITIGATION

Pharmacy Defendants Are 0-2 In Opioid Litigation

Pharmacy defendants are 0-2 in litigation revolving around their responsibility for perpetuating the opioid crisis after Walgreens, one of the U.S.’ largest pharmacy chains, was found liable in a bench trial in San Francisco. 

The trial and verdict against Walgreens, a bellwether trial remanded to San Francisco federal court from the multidistrict litigation (MDL) in Ohio, came on the heels of a jury trial verdict against CVS and Walmart pharmacies in Ohio.  That case was overseen by Judge Polster, the presiding MDL judge.

Trial lawyers who get this report will know that as part of a bench trial, a judge is required to make findings of fact and conclusions of law. The judge, in this case, found that Walgreens maintained a nuisance by filling tens of thousands of prescriptions of opioids where it should not have.  One cause of such failure was a systemic understaffing of the pharmacy department in the pursuit of profit, making it impossible to perform any due diligence in filling prescriptions.  

This last verdict should put enough pressure on the pharmacy chains to settle all of the pending cases globally. Completing the process would be lengthy but in the best interest of all concerned. Most opioid manufacturers, including Purdue Pharma, have settled or filed for bankruptcy. Many believe Purdue Pharma started the opioid crisis when it began aggressively marketing OxyContin in the late 1990s. The only remaining manufacturers still litigating are Teva and Allergan, although they appear to have signaled that a global settlement is coming soon.

Source: Law360.com

Two Settlements By States In The Opioid Litigation

There were two important settlements in the opioid litigation last month involving the states of West Virginia and New Hampshire. We will discuss each of these settlements below.

CVS and Walmart Pay $150 Million to Settle With West Virginia

CVS Pharmacy and Walmart have agreed to settle with West Virginia and will pay nearly $150 million. The companies will pay $82.5 million and $65.1 million, respectively, in the settlement. West Virginia’s Attorney General Patrick Morrisey predicted that opioid litigation settlements will ultimately pay $1 billion to his state in the opioid litigation.

Combined with previous settlements — including a $400 million settlement with wholesale distributors — the settlements with CVS and Walmart bring the value of recent opioid settlements in West Virginia to roughly $875 million. There is still ongoing litigation in West Virginia against pharmacy operators Walgreens and The Kroger Co.

In 2020, West Virginia recorded roughly 70 opioid-involved deaths per 100,000 residents. The next highest rates, ranging from 40 to 45 deaths per 100,000 residents, were in the District of Columbia, Delaware, Maryland, Kentucky and Ohio, according to the Kaiser Family Foundation.

West Virginia’s settlement agreement with CVS contains a “most-favored nation” clause that could trigger additional payments if the pharmacy retailer makes a comprehensive settlement with other states. The Attorney General’s office secured a similar clause in an earlier settlement with Teva Pharmaceuticals and Allergan. The Attorney General called the clause “a guarantee that West Virginia won’t be prejudiced by a future national settlement.”

The cases are State of West Virginia ex rel. Morrisey v. CVS Pharmacy Inc. et al., case number 20-C-131 PNM, and State of West Virginia ex rel. Morrisey v. Walmart Inc., case number 20-C-132 PNM, in the Circuit Court of Putnam County, West Virginia, and In re: Opioid Litigation, case number 21-C-9000 PHARM, in the Circuit Court of Kanawha County, West Virginia. 

J&J and New Hampshire Settle Opioid Lawsuit for $40.5 Million

Johnson & Johnson (J&J) and its subsidiary Janssen agreed to settle with the state of New Hampshire for $40.5 million over claims that their opioid marketing downplayed addiction risks.

J&J  will pay $39 million and an extra $1.5 million. The defendant anticipates reimbursement from the global opioid settlement announced last year for $26 billion. New Hampshire did not participate in that settlement.

The state’s trial against J&J was scheduled to start on Sept. 7 in Merrimack County Superior Court. In 2018, New Hampshire Attorney General John Formella sued J&J, alleging it aggressively marketed opioids to patients and prescribers in New Hampshire and misled the public about its opioids being safer than other options.

New Hampshire also argued that J&J and its subsidiaries misrepresented the addiction risk their opioids posed when used to treat chronic pain. The state said the defendants targeted vulnerable populations, such as the elderly, despite the increased risk of opioid overdose and death among the elderly.

A national settlement with J&J was announced in 2021, but Attorney General Formella rejected the settlement and chose to continue negotiations independently. He explained that New Hampshire was hit more severely by the opioid crisis and that the terms of the national settlement were less favorable to the state than those in the settlement he was negotiating with J&J for the state. The funds from this settlement will be fully disbursed in one payment, as opposed to nine years, under the terms of the national statement.

J&J will also pay about $900,000 in attorney fees to lawyers for the New Hampshire municipalities that sued J&J before Sept. 1, 2019. Of the $31.5 million to abate the opioid crisis, $4,725,000 will be paid to the 23 counties, cities and towns that sued. According to the Attorney General, the rest of the money will be deposited into the state opioid abatement trust fund.

Source: Jeff Overley and Emily Field, Law360.com

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 also handle 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 and Matt Griffith. 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

Philips’ Subsidiary Will Pay $24 Million In Settlement For Alleged False Claims  

A subsidiary of medical device maker Philips has agreed to pay over $24 million to resolve False Claims Act (FCA) allegations over respiratory-related medical equipment.  The subsidiary, Philips RS North America LLC (formerly Respironics Inc.), resolved litigation involving the claims that it misled government health care programs by paying kickbacks to durable medical equipment (DME) suppliers. This is according to the U.S. Department of Justice (DOJ).  Affected programs included Medicare, Medicaid and TRICARE.

According to a DOJ news release, the settlement resolves allegations that Respironics caused DME suppliers to submit false claims for ventilators, oxygen concentrators, CPAP and BiPAP machines, and other respiratory-related medical equipment because Respironics provided illegal inducements to the DME suppliers. Respironics allegedly gave the DME suppliers data free of charge that could assist in marketing to physicians. 

The settlement provides that Respironics will pay $22.62 million to the U.S. and will pay $2.13 million to various states because of the impact of Respironics’ conduct on their Medicaid programs. The settlement resolves a lawsuit brought initially by Jeremy Orling, a Respironics’ employee, under the qui tam or whistleblower provisions of the FCA. The FCA allows private individuals with knowledge of fraud against the government to bring a lawsuit on behalf of the government and share in the recovery. Orling will receive approximately $4.3 million of the federal settlement amount.

The federal Anti-Kickback Statute prohibits the knowing payment of compensation in exchange for services or items paid for by a federal health care program. Claims submitted that involved a violation of this statute run afoul of the False Claims Act.

Respironics, now known as Philips RS North America LLC., has also agreed to implement and maintain a compliance program that includes a review of arrangements with referral sources and monitoring of its sales force. The settlement also requires the company to retain an independent monitor to watch over the compliance effort.

In 2016, Respironics settled another lawsuit with the U.S. Department of Justice, agreeing to pay $34.8 million to the federal government to resolve other claims that the company had given kickbacks to suppliers.

Respironics also signed a “corporate integrity agreement” as part of that settlement. Nonetheless, according to the settlement agreement, “in direct contradiction of those obligations, Respironics was engaging in the kickback scheme alleged here in 2016, at the time of the Corporate Integrity Agreement.”

The government is represented by Elizabeth C. Warren and Johanna Valenzuela of the U.S. Attorney’s Office. Orling, the whistleblower, is represented by James W. Ledlie, Joshua Cole Littlejohn, and William S. Norton of Motley Rice LLC.

The case is United States, et al., ex rel. Respiratory Care, LLC v. Respironics, Inc., et al., case 2:19-cv-02913, in the U.S. District Court for the District of South Carolina.

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 any questions about whether you qualify as a whistleblower, contact a lawyer on our firm’s whistleblower litigation team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may email one of our lawyers on the whistleblower litigation team.

Sources: U.S. Department of Justice and Law360.com

Biogen Finalizes $900 Million Settlement To Resolve Kickback Claims

A Massachusetts federal judge gave final approval on Sept. 26 to a settlement requiring Biogen Inc. to pay $900 million. The agreement will settle claims by the federal government and several states that the company paid illegal kickbacks to health care professionals, including doctors.

U.S. District Judge Indira Talwani signed off on the settlement, dismissing several claims from states and the federal government without the pharmaceutical giant admitting to the allegations.

Michael Bawduniak told the government in 2012 that he thought Biogen, his employer at the time, was its largest prescriber to discourage them from prescribing products from Biogen’s competitors.

His lawyers said the U.S. Department of Justice asked Bawduniak to record conversations with Biogen employees to back up the claims. The recordings confirmed that Biogen “provided substantial monetary and non-monetary compensation” to ensure its best customers remained loyal.

Bawduniak, a sales representative at Biogen from 2004 to 2012, alleged he was demoted for trying to stop kickbacks.

Bawduniak’s case was one of four False Claims Act suits unsealed in 2015 that similarly alleged Biogen paid fake consulting and speaking fees to doctors who prescribed its multiple sclerosis drugs, Avonex and Tysabri.

The suits were effectively merged into Bawduniak’s case, which was filed in 2012. Fernando Villegas, a co-relator and former Biogen employee, voluntarily dropped his retaliation claim.

Biogen will pay nearly $844 million to the United States and more than $56 million to 15 states, the DOJ said in a release. Bawduniak will receive about 29.6% of the federal proceeds from the settlement, the DOJ said. This is the largest amount ever paid to a single whistleblower.

The suit claimed that Biogen paid hundreds of customers to provide consulting advice on topics it either had no use for or already had all the required information. The suit also alleged that Biogen paid hundreds of health care professionals to speak even when there was no demand for presentations on Biogen products and then paid an excessively high rate.

Bawduniak is represented by Thomas M. Greene and Michael Tabb of Greene LLP.

The government is represented by Evan D. Panich and Patrick M. Callahan of the U.S. Attorney’s Office for the District of Massachusetts.

The case is U.S. v. Biogen Inc., case number 1:12-cv-10601, in U.S. District Court for the District of Massachusetts.

Source: Law360

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. Lance Gould, Larry Golston, Tyner Helms, Paul Evans, Leon Hampton and Lauren Miles, lawyers in our Consumer Fraud & Commercial Litigation Section work in this area known as “qui tam” or “whistleblower cases.” They continue to handle cases throughout the country involving fraud against governments. An example of the excellent work done by the team was a notable recovery in Birmingham. Our firm obtained a $14 million verdict in federal court involving a healthcare whistleblower issue.

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 our lawyers on our team who are listed above.

The experienced group of lawyers on our team is dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the Whistleblower Litigation Team:

  • Larry Golston
  • Lance Gould
  • James Eubank
  • Paul Evans
  • Leon Hampton
  • Tyner Helms
  • Lauren Miles
  • 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.

SECURITIES LITIGATION

Investors In Limbo As Litigation Erupts Around Celsius Bankruptcy

In mid-July, cryptocurrency lending platform Celsius Network LLC announced that it would seek bankruptcy protection through Chapter 11.  The bankruptcy petition, filed on July 13, 2022, stated that Celsius owed its consumer users $4.7 billion while having a $1.2 billion hole in its balance sheet.  The petition was filed just weeks after Celsius froze all customer withdrawals from the platform in June, leaving investors helpless to protect their savings. 

Celsius, founded in 2018 and headquartered in Hoboken, New Jersey, pays investors interest on cryptocurrency, like bitcoin and Ethereum, which they deposit into a Celsius-owned crypto wallet.  The promised rates of return went as high as 19.2%.  The crypto served as security for interest-bearing loans that Celsius issued to borrowers.  Celsius also created its own cryptocurrency, the CEL token, which it used to pay interest to investors. 

While crypto prices were flying high, Celsius did well.  In October 2021, CEO Alex Mashinsky said Celsius had $25 billion in assets under management. Crypto prices began to fall as 2022 began, but in May 2022, Celsius was still managing $11.8 billion in assets and had another $8 billion in loans out to borrowers.  In court, Celsius has stated that its assets have fallen by almost 81% since March 30, 2022, going from $22.1 billion to just $4.3 billion, while they have $5.5 billion in liabilities.  The price of the CEL token has cratered as well, shedding 71% from its 2021 high.  Its market cap peaked at over $1.4 billion in October 2021 but now sits at just $408 million. 

Litigation has swirled around the company since the freezing of investor withdrawals.  Just one week before the bankruptcy filing, former investment manager Jason Stone sued Celsius in New York state court, alleging that the company operated a Ponzi scheme.  Stone founded a company called KeyFi, which specialized in crypto trading strategy and managed hundreds of millions of dollars of crypto assets for Celsius. 

According to Stone’s complaint, KeyFi had a profit-sharing agreement with Celsius on a “handshake deal” with “no formal written agreement,” but Celsius failed to pay KeyFi what was owed.  Stone claimed Celsius leveraged investor deposits to artificially inflate the price of CEL Token, and poor investment policies meant Celsius had massive liabilities to investors but insufficient reserves to meet withdrawal demand.  Stone also alleged that Celsius endangered investor funds by failing to perform basic accounting, in one instance resulting in a $200 million liability that Celsius could not determine “how or why it owed.”

Celsius fired back in August, counter-suing Stone and KeyFi. In a New York bankruptcy court complaint, Celsius alleged that KeyFi mismanaged Celsius’ assets and stole millions in crypto.  The complaint claims Celsius lost thousands of coins due to Stone and KeyFi’s “incompetence.”  It further alleges KeyFi converted and stole “many tens of millions of dollars” from Celsius by transferring coins from Celsius wallets to wallets KeyFi controlled, often laundering them through a “crypto mixer” called Tornado Cash, the use of which is banned by the U.S. Treasury Department.  KeyFi claims that all compensation they received was authorized by their agreement with Celsius. 

While the litigation clouds the picture on whether Celsius or KeyFi bears the most responsibility, one thing is certain – investors in Celsius are the ones left holding the bag to see where the bankruptcy goes.  A small number of investors’ assets, roughly $225 million, are held in accounts directly owned by the user, but the vast majority of assets were held in wallets owned by Celsius.  Under the terms of service, these assets became the property of Celsius when deposited and are thus subject to liquidation in bankruptcy. 

This debacle highlights the dangers of the lack of regulation over cryptocurrency markets. Fraud, inadequate capital reserves, and deficient accounting practices are more difficult to detect when there are no reporting requirements, which is especially dangerous when these firms handle billions of dollars in investor funds. 

Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section are actively investigating claims for investors who held crypto with Celsius and have had their assets frozen.  If you need more information or have comments, contact James B. Eubank at 800-898-2034 or by using the form at the bottom of this page.  James, who worked for years as a securities regulator with the Alabama Securities Commission, is leading our firm’s Securities Litigation Team and securities fraud investigations.  Members of the team are actively investigating claims.

The cases are Celsius Network Ltd. et al. v. Jason Stone and KeyFi Inc., case number 1:22-bk-10964, in United States Bankruptcy Court for the Southern District of New York, and KeyFi Inc. v. Celsius Network Ltd. et al., case number 652367/2022, in the Supreme Court of the State of New York, County of New York. 

J&J ERISA Case Fails To Clear High Bar Set By 2014 SCOTUS Ruling

The Third Circuit ruled against a proposed class of Johnson & Johnson (J&J) workers who alleged the company harmed their retirement savings by failing to warn consumers about the presence of asbestos in its talcum powder products. Those watching the J&J case say the decision provides another example of how a 2014 U.S. Supreme Court ruling has raised the bar for plaintiffs in federal benefits litigation.

Legal experts say the high court’s ruling bodes poorly for Employee Retirement Income Security Act (ERISA) cases that allege mismanagement by public company insiders caused losses to retirement plans that primarily hold company stock.

The 2014 decision in Fifth Third Bancorp v. Dudenhoeffer held that workers bringing ERISA cases alleging a drop in the value of a public company’s stock held in its Employee Stock Ownership Plan (ESOP) must plausibly allege that the alternative actions of the fiduciaries of the plan could have taken that would not have done “more harm than good.” If workers fail to allege such alternatives, the case is subject to dismissal. 

The proposed class in the J&J case alleged that company insiders mismanaged their ESOP by not acting on damaging inside information about asbestos in J&J talcum products. Plaintiffs could not show that the fiduciaries could have spared the value of their retirement plan had they disclosed their knowledge of asbestos in talc products at an earlier time.  The appellate panel said:

A reasonable fiduciary in the defendants’ circumstances could readily view corrective disclosures or cash holdings as being likely to do more harm than good to the ESOP, particularly given the uncertainty about J&J’s future liabilities and the future movement of its stock price. 

The bar to withstand dismissal has been raised so high by the U.S. Supreme Court’s 2014 decision that just one case – Jander v. Retirement Plans Committee of IBM – has since been decided in favor of the plaintiffs.  In Jander, the Second Circuit accepted workers’ argument that the IBM plan’s fiduciaries should have disclosed damaging financial information about the company and either halted further investment in company stock or purchased hedging investments to mitigate against a decline in IBM stock. 

When Dudenhoeffer was first handed down, many thought it would make defending ESOP ERISA actions more difficult because it held that there was no presumption that fiduciaries had acted prudently in managing a plan. However, these more recent decisions have developed the law in another direction, further eroding what little protections workers have left under ERISA to challenge plan mismanagement. 

“By adding a combination of a presumptive acceptability of public pricing, and then this new standard of having to plead and show that there was a course of action that would not do more harm than good to the plan, that sort of one-two punch has turned Dudenhoeffer from a case that looked like it was going to be problematic for the defense because of the failure to uphold the assumption of prudence, into a case that has become a real impediment to the plaintiffs,” a lawyer for the proposed J&J class told Law360.

Source: Law360.com

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: James Eubank, 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 To Pay $438.5 Million To End States’ Probe Into Marketing Vaping Products To Youth

Vape manufacturer JUUL Labs Inc. has reached a $438.5 million settlement with 34 states and Puerto Rico, ending a two-year government investigation into its youth-oriented marketing and sales practices.

The settlement agreement comes after the bipartisan investigation found that JUUL dominated the vaping market by targeting minors with its advertising practices. The company held launch parties, promoted product giveaways, spread its image and influence on social media platforms, and knowingly used ineffective age-verification methods.

JUUL also made unproven and misleading claims about the nicotine content of its products and their effectiveness as smoking cessation devices.

According to Connecticut Attorney General William Tong, who was one of the leaders of the investigation and who helped lead the negotiations, JUUL also manipulated the chemical composition of its product to make the vapor less harsh on the throats of young and inexperienced users. Attorney General Tong said in a statement:

JUUL’s cynically calculated advertising campaigns created a new generation of nicotine addicts. They relentlessly marketed vaping products to underage youth, manipulated their chemical composition to be palatable to inexperienced users, employed an inadequate age verification process, and misled consumers about the nicotine content and addictiveness of its products.

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.

JUUL also agreed to several restrictions on its marketing practices as part of the deal. The company will not be allowed to use cartoons in its ad campaigns, pay social media influencers, advertise on billboards and public transportation, advertise in outlets with less than an 85% adult audience, and advertise to consumers younger than 35.

The deal also restricts where JUUL’s products are displayed in stores, imposes tighter age verification on sales, and limits online sales.

While the September settlement cleared JUUL of the biggest hurdles it met in rebuilding its brand and surviving as a company, it still faces several significant legal threats. Among those threats are separate lawsuits filed by nine other states and hundreds of individual lawsuits filed on behalf of minors addicted to JUUL products. 

Those states included in the settlement are as follows: Alabama, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maryland, Maine, Mississippi, Montana, North Dakota, Nebraska, New Hampshire, New Jersey, Nevada, Ohio, Oklahoma, Oregon, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Vermont, Wisconsin, and Wyoming.

The settlement comes after the Food and Drug Administration (FDA) denied JUUL’s application to sell its products in June of this year, stating they were concerned there was insufficient evidence of the product’s toxicology to allow them to market to protect public health. JUUL appealed this decision, asking for their product to remain on the market while a final decision is made. The FDA is still reviewing the appeal with a heightened focus on the science behind the product.

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.

Sources: Law360.com

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 email. Members are:

  • Joseph VanZandt
  • Sydney Everett
  • Beau Darley
  • Davis Vaughn
  • Seth Harding
  • 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

Living Mesotheliomas: Getting A Trial Date

Charlie Stern, the Beasley Allen lawyer handling mesothelioma litigation for the firm, reminds us that the very first time a lawyer speaks with a new mesothelioma client, the clock starts ticking.  Unfortunately, most people diagnosed with mesothelioma only live 8-14 months from the date of diagnosis.  Depending on how far the tumor has progressed, the mesothelioma patient often only makes it a few months.  What does that mean for that patient’s lawsuit?  Well, it is very unlikely they will be present or able to meaningfully testify in person at their own trial unless it happens quickly.  Charlie reminds us that this is the sobering reality of mesothelioma litigation.

Knowing this, Charlie, who has vast experience in these cases, says it is incumbent upon mesothelioma lawyers to do what they can to ensure their clients have a fighting chance to be there for their trial.  He says this can be achieved in numerous ways, but the most effective is filing a motion for an expedited trial setting.  In many jurisdictions, judges have never handled a mesothelioma case, so this presents the plaintiffs with a unique opportunity to generally educate the court on the nature of the disease and its severity and inform the court of the need to move quickly.  Other courts, where mesothelioma litigation is common, often have in-place expedited case management orders that Charlie says he always attaches as exhibits to help educate courts dealing with mesotheliomas for the first time.

Charlie says this helps him explain to the court that these cases are regularly litigated throughout the country in a year or so by pointing to actual examples from jurisdictions around the country where this occurs.  This helps the court realize that despite the complexity of these cases and the arguments by the defendants, more time is necessary that an expedited trial setting is the correct course.  In further support of our position, obtaining an affidavit from the treating oncologist is prudent to explain that the individual client likely will only live for so long now that they are diagnosed.  This makes the situation all too clear for the courts.

Everyone agrees that people are entitled to their day in court.  That is a bedrock principle of our judicial system.  Reminding the courts of this is crucial. It helps protect Beasley Allen clients’ interests and ensures a case is as successful as possible. 

At Beasley Allen, Charlie says our mesothelioma lawyers understand these nuances of the litigation and are prepared to act decisively to protect the interests of our clients.  If you need more information or would like to discuss a potential claim, contact Charlie Stern.

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. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. 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. 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

Joint Science Day Held By Both Parties IN Philips 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 U.S. In anticipation of a high volume of plaintiffs filing complaints throughout the U.S., the subsequently-filed lawsuits were consolidated into a multidistrict litigation (MDL) in the Western District of Pennsylvania.

As part of the pretrial preparations, a joint “science day” with the SoClean MDL was held on September 1, 2022, for the parties to present the court with the education necessary to effectively adjudicate the ongoing lawsuits in a non-adversarial manner.

An important distinction was that the parties were not bound by the information presented on this day. In fact, the information presented cannot be relied upon by any court or the parties during any phase of the MDL or in any case pending before the court.

The recall was issued because the PE-PUR foam used to reduce 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.

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 Beau Darley 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 MDL court in the Northern District of Illinois.  The judge is presently considering a bellwether program to select certain cases for specific discovery and trial, presumably with an eye toward the first half of 2023 for the first bellwether trial. 

The state court litigation is also well underway, and it is somewhat ahead of the MDL.  Circuit Court Judge Dennis Ruth is overseeing Beasley Allen cases filed in Madison County, IL.  Judge Ruth diligently works through our discovery disputes and protocols as we move closer to a formal trial setting.  Our lawyers hope to see our first trial in early 2023.  In the meantime, we have retained some of the best experts in the country in the fields of neonatology, pediatric surgery, pathology, biostatistics, and other infant health specialty areas.  The science is quite compelling in these cases, and our lawyers are anxious to demonstrate that to a jury.

David Dearing and Brittany Scott are heading up the baby formula litigation for our firm and are aggressively investigating new cases at this time.  If you need more information or would like to discuss a potential claim, contact David, Brittany or Melissa Prickett at 800-898-2034 or by using the form at the bottom of this page.

FDA Confronts Laser Device Manufacturers For Unapproved Marketing

In July and August 2018, the FDA’s Surveillance and Enforcement Branch confronted seven different manufacturers of energy or laser-based devices for marketing their products as safe and effective for vaginal rejuvenation procedures.  The FDA’s letters to each manufacturer, including Alma Lasers, BTL Industries, Inc., Cynosure, Inc., Inmode MD, Ltd., Sciton, Inc., Thermigen, Inc., and Venus Concept, Ltd., stated that each company marketed its product(s) in a manner that potentially violated the Food, Drug & Cosmetics Act because the devices had not been approved for conducting vaginal rejuvenation procedures.  Shortly after, FDA Commissioner Scott Gottlieb, M.D., released a statement stating that laser devices used for these procedures have only been approved for removing precancerous cervical or vaginal tissue and genital warts and echoed concerns about inappropriate marketing.

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, painful intercourse, infections, and inflammation.

Beasley Allen lawyers 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, Roger Smith or Mary Cam Raybon.

Source: FDA

JPML Hears Arguments On Motion To Transfer

The Judicial Panel on Multidistrict Litigation (JPML) has set an oral argument on a motion to transfer concerning cases alleging that acetaminophen products led to the development of autism and / or ADHD. The JPML will consider two main questions: whether to centralize the acetaminophen cases by creating a multidistrict litigation (MDL) and, if yes, which federal district court and judge are best suited to oversee the transferred cases.

The initial Motion to Transfer proposed that the JPML create an MDL and transfer the cases to the U.S. District Court for the Northern District of California. Several other plaintiffs filed responses in support of creating an MDL and sending the cases to the Northern District of California. Other plaintiffs also supported the creation of an MDL but proposed alternative venues, such as the Western District of Missouri and the District of Minnesota. 

Defendants Target, Safeway, Walmart, Rite Aid, and CVS responded by opposing centralization and proposing their own venue options. 

The JPML subsequently set a hearing to hear arguments from the various parties on Sept. 29, 2022, in St. Louis, Missouri. This issue was at the printer on the hearing date. The JPML is expected to decide quickly whether the acetaminophen cases will be centralized and, if so, where they will collectively move forward.

For more information about this litigation, contact Roger Smith, Melissa Prickett or Ryan Duplechin, lawyers in our Mass Torts Section, at 800-898-2034 or by using the form at the bottom of this page.

Heavy Metals In Baby Food

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.

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)

In 2019, the nonprofit Healthy Babies Bright Futures conducted a study of 168 baby foods across 61 brands. Ninety-five percent of the baby foods tested contained toxic metals. Some manufacturers and government entities are beginning to deal with the problem. Still, other manufacturers blatantly disregard the issue, and government action is slow.

The Food and Drug Administration (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. Beasley Allen lawyers Roger Smith, Chad Cook, Mary Cam Raybon and Melissa Prickett, are investigating individual cases involving children who consumed Baby Food contaminated with toxic heavy metals. If you have any questions or would like to discuss a potential claim, contact them at 800-898-2304 or by using the form at the bottom of this page.

EMPLOYMENT AND FLSA LITIGATION

U.S. Supreme Court Refuses Maximus Inc.’s Two-Step Conditional Certification Appeal

Maximus, Inc., a company sued in July 2021 for allegations related to denying former and current call center employees with overtime pay, has asked the United States Supreme Court to temporarily stay the district court’s decision to grant the Fair Labor Standards Act lawsuit conditional certification so that Maximus could challenge the method that the court used to grant the certification. On Sept. 1, the high court denied Maximus’ request with no reason for the denial provided, which is common for the Court.

Maximus’ argument to stay the collective certification is that the current and former employees who otherwise may not be considered similarly situated would be able to join the lawsuit. Maximus contends that the district court should have relied on a newer method of determining whether class certification was appropriate rather than relying on the two-step method laid out in Lusardi v. Xerox Corp., a 1987 case out of New Jersey. The threshold for a conditional certification, the first of the two steps in Lusardi, requires a “modest factual showing,” followed in step two with a final certification to the collective.

The newer method, preferred by Maximus, is a one-step process, first outlined in Swales v. KLLM Transport Services, a 2021 case from the Fifth Circuit. Under this method, the district court would ascertain relevant factors to identify similarly situated individuals and then allow limited discovery to decide whether additional individuals would qualify.

The workers argued that while the district court’s decision would not impact Maximus’s rights, since there is no guarantee that the lower court would toll the statute of limitations for workers to opt-in, the workers could be negatively impacted if the Supreme Court granted the stay. Importantly, Maximus did not ask for the stay in the district court.

Beasley Allen lawyers continue to litigate FLSA cases and monitor the laws constantly developing on that front. Our Consumer Fraud & Commercial Litigation Section handles this type of litigation. Should you have any questions or concerns regarding labor law and specifically FLSA cases, contact Lance Gould or Larry Golston, lawyers in the section.

Source: Law360.com

Uber Pays New Jersey $100 Million In Driver Classification Dispute

The ride-sharing giant Uber and a subsidiary company have paid New Jersey about $100 million in back taxes to end the state’s allegations that it skipped out on paying taxes by misclassifying its drivers as independent contractors.

The payments follow audits by the state’s Labor Department that assessed the companies owed $78 million in past-due tax contributions plus $22 million in penalties and interest. Uber paid about $12.1 million of the bill, and its subsidiary Raiser LLC paid about $87.9 million. Uber says that the payments are not part of a settlement.

Josh Gold, a spokesperson for Uber, said in a statement that drivers in New Jersey — and elsewhere — are independent contractors who choose when and where they want to work. He added:

[A]n overwhelming amount do this kind of work because they value flexibility. We look forward to working with policymakers to deliver benefits while preserving the flexibility drivers want.

The classification of drivers working for Uber and other ride-hailing services continues to be the subject of lawsuits in New Jersey and other states. A group of New Jersey Uber drivers has sued the company, contending to be misclassified as independent contractors and deprived of benefits. In New York, a group of Uber drivers has also sued, accusing Uber of “astronomical wage theft.” Both cases have been sent to arbitration, and both have been appealed.

Source: Law360.com

Lyft Hit With 13 Lawsuits Over Driver Assaults

The San-Francisco-based ridesharing company Lyft is facing new litigation filed in the San Francisco Superior Court by 17 passengers and drivers from around the country. The plaintiffs claim that they were exposed to widespread sexual and physical assaults due to Lyft’s failure to perform thorough background checks and screenings, Law360 reported. 

The new lawsuits all similarly allege that Lyft has known for years of a “sexual predator crisis” among its drivers, and despite their knowledge, the defendant consistently fails to vet drivers properly. Drivers submit their information online to apply for employment with Lyft. The company provides no harassment training and fails to execute procedures to reasonably monitor its drivers. Lyft also fails to investigate sexually inappropriate behavior or sexual assault complaints effectively.

According to the plaintiffs, after reporting their assaults to Lyft, the company did little to help them. The defendant merely apologized and said it would suspend the driver’s account or passenger accused of assault. NPR reported that the company offered two drivers a few hundred dollars after they reported their assaults. They said that the company failed to follow up with them.

The defendant’s Community Safety Report, first issued in October 2021, showed it received 4,158 sexual assault reports from 2017 to 2019. These reports included 360 rapes, documented as nonconsensual sexual penetration and 2,300 reports of “nonconsensual touching of a sexual body part.” In a statement, Lyft categorized the number of incidents as “incredibly rare,” even with the report showing that instances of sexual assault increased yearly, specifically by 65% in 2019. Lyft’s Community Safety Report also notes that it had information regarding non-fatal physical violence associated with using the platform, yet merely stated that 10 of those attacks resulted in death without quantifying or describing the attacks’ nature.

Three years ago, 14 other lawsuits were filed by 14 women with similar claims as those in the new lawsuits. They alleged they were sexually assaulted or raped by Lyft drivers, and the defendant failed to take action despite knowing some of its drivers were accused of assault. The plaintiffs said the company intentionally ignored their reports. The company responded to previous litigation by developing in-app safety features that allow riders and drivers to share their location with family and friends, connect directly with Lyft Support, and quickly and easily access emergency assistance from the Lyft app.

The new lawsuits demonstrate how litigation has developed to more effectively combat sexual assault instances by pursuing sexual assault cases as a civil action in state court against employers and other corporate entities, prioritizing profit and reputation over individuals.

Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section have successfully pursued similar litigation on behalf of sexual assault survivors, and they welcome any opportunity to investigate suspected practices to repress an assault survivor. If you have any questions or need help with a claim, contact Dee Miles, Larry Golston, Leon Hampton, Ali Hawthorne or Lauren Miles, lawyers in the Section.  They can be reached at 800-898-2034 or by using the form at the bottom of this page.

Source: Law360.com

PREMISES LIABILITY LITIGATION

Georgia Code Violations Result In Gas Station Fire Settlement 

The federal, state and local rules and regulations that govern the operations of a gas station and fire safety standards are of little consequence to the motoring public, except when tragedy strikes. In Georgia these rules can be found in Ga. Comp. R. & Regs. 120-3, et seq., which in large part adopts the International Fire Code (IFC) and the codes, standards, recommended practices, guides, and methods, published in the National Fire Codes (NFC) by the National Fire Protection Association (NFPA), as the State of Georgia minimum fire safety standards.

Our firm’s lawyers filed a wrongful death lawsuit on behalf of the family of a man that went on a sunny October morning to fill his motorcycle with gas. After prepaying for his gasoline, he returned to his motorcycle, engaged the dispenser, inserted the spout of the fuel dispensing nozzle into the fuel filler neck of the motorcycle, and began pumping gasoline into the fuel tank.

Unbeknownst to him, during the fueling process, the automatic shut-off in the fuel dispensing nozzle did not engage, and gasoline began to spill from the tank and onto the pavement underneath. The fumes from the gas ignited, engulfing him in flames. He suffered second, third and fourth-degree burns to over 30% of his body and, during his two-and-a-half-month hospital stay before his death, had to have both legs amputated.

Investigation of the fire incident at the gas station in Marietta, Georgia, revealed multiple violations of these statutory rules and regulations, as well as violations of the contract between the gas station operator, marketer, and the supplier, such as Chevron, B.P. or Shell.

Under the rules and regulations, the gas station attendant must be familiar with the state and local rules and regulations, which he was not. Further, a gas station attendant must have a clear and unobstructed view of the fuel dispensing area. The gas station windows at the time of the fire incident were covered with ads, promotional materials and signs blocking the view of the fuel dispensing area from the attendant.

Moreover, the rules and regulations require that while customers are dispensing gasoline, an attendant shall not perform any duties or be assigned a task that might prevent him from properly supervising the dispensing of gasoline.

Additional responsibilities under the rules and regulations of a gas station attendant include but are not limited to controlling ignition sources, activating emergency controls, handling accidental spills and a fire extinguisher, if needed.

At the time of the incident, the motorcycle engine was still running, which the attendant was informed of before the fire started. The attendant failed to request the engine be turned off or shut the pump off, so the fuel could not be dispensed.

Moreover, at the time of the incident, the attendant did not have a clear view of the dispensing area due to the windows being covered with promotional materials and was not paying attention at the time the decedent was engulfed in flames due to waiting on other customers.

Further, a fire extinguisher was not readily available as required by the rules and regulations, which could have assisted bystanders and the attendant in quickly extinguishing the fire. In addition to these violations, contractual obligations were violated between the operator, the marketer and the supplier, which led to this tragic incident.

Tom Willingham and Mary Leah Miller, Beasley Allen lawyers in our Atlanta office, resolved this case in settlement for $12 million. In reviewing the rules and regulations applicable to self-service gas stations, it is clear that many violate local, state and federal rules concerning their operation and fire safety. This increases the chances of a tragic fire incident.

If you have any questions or need more information, contact Tom or Mary Leah at 800-898-2034 or by using the form at the bottom of this page.

Hotel Security – Just How Safe Are You?

We have written extensively in prior issues about dangerous apartment complexes. But this month, we turn our focus to hotels. Our lawyers have investigated a number of these cases, and you might be surprised to learn how dangerous hotels can be under certain circumstances. Few properties invite their guests to let their guard down as hotel properties do. In fact, the very nature of a hotel is to provide a safe, home-like feeling, where a guest can be at ease as if they were within the safe confines of their home. And, unlike in other settings, criminals know that hotel guests often bring valuable possessions. Therefore, if a hotel fails to follow procedures or take measures to secure the property against foreseeable threats, the inviting nature of a hotel can lead to easy guest criminal victimization.

First, hotel management must know the property’s (and surrounding area’s) criminal history. Guests do not live or work at the hotel – and more likely than not, they do not live in the city where the hotel is located. As a result, hotel management is in the perfect position to be aware of what happens around the property and to know what steps need to be taken to protect guests. For example, hotel parking lots have proven to be extremely dangerous places for guests in certain neighborhoods. Although a hotel can appear nice, parking lots can and often do carry the same criminal victimization risks as the surrounding area, including risks of carjackings, muggings, sexual assault, and even kidnapping. Proper fencing, maintenance, access control, lighting, and even a security guard, can be effective ways to deter criminal activity.

Next, the hotel must have strong policies and procedures that regulate the hotel’s operation. Just about any security professional will tell you that property security starts with strong policies and procedures that are executed. The staff must be trained on the policies, and certain staff members must be trained to ensure that the whole team follows the policies. For example, one mistake on key access to a room can lead to catastrophe.

Hotel management must also take special care when hiring and retaining hotel staff. As we discussed initially, a hotel is essentially a large home with many independent rooms. Would any person want a stranger with a violent felony, domestic violence, or sexual misconduct charge to be in their home 24 hours a day? Of course not. The same is obviously true for a hotel.

Moreover, staff members who do not have a criminal charge in their history but show threatening, unpredictable, potentially violent, or disturbing behavior (amongst many other potentially dangerous episodes) must be identified and removed from the property as soon as possible. Ultimately, a hotel (or any property serving guests) is perhaps most vulnerable through its own employees.

Finally, common area and room security are vitally important. Common areas need to be well-lit and properly supervised by hotel management. Access control, particularly in an area with crime, can be extremely important to securing the inner area of the hotel (especially at night).  Although hotels can perform a criminal background check of a hotel guest before their stay, most hotels do not do this. Putting aside whether they should, this means other guests can be a major security vulnerability.

Hotel management and staff must be aware of the goings-on on the property and remove potentially dangerous individuals as soon as possible when the hotel learns about bad or potentially dangerous behavior. For the same obvious reasons, staff must check external hotel and room door locks frequently to ensure they are in good working order. As we have seen in other investigatory cases, damaged doors or locks are a recipe for disaster.

Finally, we would be remiss if we did not mention the growing human trafficking threat that all hotels face – particularly in metropolitan areas (including Atlanta, a major hub for human trafficking). Hotels must train their staff to spot the signs of human trafficking and take quick action. A hotel that fails to train its staff and fails to use and follow policies and procedures to curb human trafficking can quickly become a haven for an unspeakable trafficking crime.

Beasley Allen lawyers are handling and investigating a number of high-profile criminal victimization cases related to poor premises security. If you have any questions about such cases, contact Parker Miller, our lead Negligent Security lawyer, for more information.

Georgia Law And The Nondelegable Duty Owed To Invitees

Generally, one of the most fundamental distinctions found in premises liability law is between the respective duties owed by property owners to “invitees” and “licensees.” In the State of Georgia, those differences are codified – a property owner is liable to his invitees for failing “to exercise ordinary care in keeping the premises and approaches safe,” while he is only liable to licensees for “willful or wanton injury.”

Indeed, the fact that there is a much stronger duty owed to an invitee makes sense from a policy perspective. These individuals are “induced” or “led,” whether explicitly or implicitly, upon the landowner’s property (e.g., a retail store that opens its doors for customers to enter the premises for the store to obtain those customers’ business). Further, Georgia courts have also held that the duty owed by a business owner to its invitees is nondelegable.

So, even if the defective condition on the premises was created by the acts or omissions of an independent contractor on the owner’s premises, the owner is still not insulated from liability. This further incentivizes property owners to ensure their premises are safe – including properly vetting and supervising any independent contractors performing services on the property.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle premises liability cases across the State of Georgia and other states. If you have any questions about these cases, contact them at 800-898-2034 or by using the form at the bottom of this page.

Sources: Georgia Code §§ 51-3-1, 51-3-2 and Simmons v. Universal Prot. Servs., LLC, 349 Ga. App. at 376

TOXIC TORT LITIGATION

Jury Awards $363 Million In First Sterigenics Ethylene Oxide Trial

A Cook County, Illinois, jury awarded $363 million to a woman who blamed ethylene oxide (EtO) emissions from a nearby Sterigenics medical sterilization facility caused her to develop breast cancer.

Plaintiff Sue Kamuda, 70, lived about one-third of a mile from the Sterigenics plant in Willowbrook beginning in 1985. In 2007, she was diagnosed with breast cancer. In 2018, the Environmental Protection Agency (EPA) tested the air around the plant and found high concentrations of EtO. The State of Illinois ordered the plant to close. Within months, Sterigenics discontinued operations at the plant.

EtO is a known carcinogen. When news that the plant was emitting the chemical into the air, Sterigenics was hit with hundreds of lawsuits. One of the more than 760 lawsuits currently pending includes one filed by Kamuda’s son, who was diagnosed with non-Hodgkin’s lymphoma in 2021.

Kamuda had asked for $21 million in compensatory damages and $325 million in punitive damages. The jury awarded Kamuda all the damages she’d requested plus an additional $17 million in compensatory damages. These damages included:

$12 million for past and future loss of a normal life, $11 million for past and future emotional distress, $8 million for disfigurement, $1 million for past and future pain and suffering, $2 million for increased risk of harm and $4 million for her shortened life expectancy.

The jury found Sterigenics held 65% of the blame, its parent company Sotera Health 30% responsible, and former parent company Griffith Foods 5% liable. 

The plaintiff’s lawyer, Patrick Salvi II of Salvi Shostock & Pritchard PC, told reporters after the verdict that the case was important because it involved more than just a lack of reasonable care that allowed a chemical to be mistakenly released. Salvi said:

It is literally a sterilant that they were allowing people to breathe in unnecessarily. This is the type of situation where there should be punitive damages to punish these defendants for what they’ve done, and to make a statement to other folks that are dealing with carcinogenic chemicals to know that if you’re going to deal with it in this fashion, you’re going to have to face a jury one day who’s going to pass judgment on your actions.

Both Sterigenics spokesperson Bryan Locke and Griffith Foods spokesperson Robert Pellicano said they disagreed with the verdict and that the companies had done nothing wrong. An appeal is expected.

The second trial over Sterigenics’ emissions is set for this month in plaintiff Teresa Fornek’s case, and a third trial will begin in early November in plaintiff Heather Schumacher’s case.

Plaintiff Kamuda claimed that Sterigenics, now a unit of Sotera Health, and Griffith knew since at least the early 1980s that EtO exposure posed significant cancer and reproductive health risks but fought the science studying the molecule and regulators’ efforts to curb its emissions in a bid to put profits over public safety. She also alleged the companies failed to study how long the chemical would stay in the Willowbrook community’s air or how far it would travel before the plant opened its doors in 1984. Counsel for the plaintiff reminded the jury that Sterigenics and Griffith recklessly failed to install emission controls they knew were available decades earlier.

Sterigenics converted EtO into a gas it used to sterilize primarily medical supplies, such as syringes. The process involved shutting the products into a room and sealing it tight before releasing the colorless and odorless gas, penetrating through boxes, wrapping and any other packaging to kill every living microorganism on the products.

The State of Illinois issued a so-called seal order in February 2019 that effectively shut down facility operations until Sterigenics could significantly curb its emissions. Although the company had settled a lawsuit from the Illinois Attorney General and applied for new permits to forge a path toward reopening, the company ultimately announced that the facility would stay closed, given the state’s “unstable legislative and regulatory landscape.”

Plaintiff Kamuda is represented by Patrick A. Salvi II, Lance D. Northcutt and Jennifer M. Cascio of Salvi Schostok & Pritchard PC; Shawn Collins and Margaret Galka of The Collins Law Firm; and Scott A. Entin, Roisin Duffy-Gideon and Deanna N. Pihos of Miner Barnhill & Galland PC.

The case is Sue Kamuda v. Sterigenics et al., case number 2018-L-010475, in the Circuit Court of Cook County, Illinois, Law Division.

Source: Law360.com

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.

On Aug. 11, 2022, Judge Rosenstengel entered Case Management Order No. 15 Resetting Dispositive Motion Deadlines and Trial Date.  This Order can be found at the Court’s Paraquat website: http://www.ilsd.uscourts.gov/documents/Paraquat/ParaquatCMO15.pdf

The Case Management Order lays out the following deadlines:

  • Summary judgment and Daubert motions are due on March 8, 2023; responses are due April 7, 2023; replies are due April 21, 2023; and a hearing will be held on May 11, 2023.
  • A jury trial in the first bellwether case will begin on July 24, 2023. All previously set trial dates are canceled.            

Beasley Allen lawyers Julia A. Merritt and Leslie LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL. They also co-lead our firm’s Paraquat Litigation Team. Lawyers on the team will be glad 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 lawyers continue to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact a member of the Paraquat Litigation Team if our firm can be of assistance to you in your paraquat applicator cases. Julia Merritt and Leslie LaMacchia, who head the team, can be reached at 800-898-2034 or by using the form at the bottom of this page.

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 using the form at the bottom of this page for more information on the litigation, including the MDL.

EPA Proposes To Designate PFAS As Hazardous Substances Under Superfund Law

The Environmental Protection Agency (EPA), on Aug. 26, 2022, announced that it is proposing to designate two of the most widely used per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as “Superfund.”

This rulemaking would increase transparency around releases of these harmful chemicals and help to hold polluters accountable for cleaning up their contamination.  The proposal is based on significant evidence that PFOA and PFOS may pose a substantial danger to human health, welfare, or the environment. PFOA and PFOS can accumulate and persist in the human body for long periods. Evidence from laboratory animal and human epidemiology studies indicates that exposure to PFOA and / or PFOS may lead to cancer, reproductive, developmental, cardiovascular, liver, and immunological effects. 

Once finalized, EPA will have the discretion to hold responsible those who have manufactured and released significant amounts of PFOA and PFOS into the environment.  The proposal would require reporting releases of PFOS and PFOA and allowing the EPA to seek cleanup costs from the polluter.

The proposal is one of many recent EPA actions to address PFAS contamination.  If finalized, the designation could have wide-reaching implications not just for manufacturers and industrial users of PFAS but also landowners of contaminated sites and secondary pollution resulting from industrial waste disposal. 

In May of this year, several trade groups for water utilities wrote a letter to congress seeking an exemption under any future CERCLA hazardous designation for water utilities whose PFAS contamination results from treating industrial waste containing the substances. 

Traditional treatment does not remove or destroy the “forever chemicals” which do not biodegrade.

Sources: EPA and Water & Waste Digest

3M Earplug MDL Sent To Mediation For A Second Time

In our last update, we reported that Aearo Technologies LLC, a 3M Company subsidiary, filed for Chapter 11 bankruptcy and requested that an automatic stay of litigation extend to 3M Company. Aearo asked the bankruptcy court to block earplug lawsuits from proceeding against 3M, even though 3M is not bankrupt. 

Aearo argued that bankruptcy offered a faster and fairer way to compensate veterans injured by the Combat Arms Earplugs. Aearo also argued that the MDL was unfair because the MDL allowed “unvetted” claims to move forward and that some of the evidentiary rulings in bellwether trials prevented 3M from presenting “critical” evidence.

Bankruptcy Judge Jeffrey Graham in Indianapolis rejected this maneuver by Aearo and said that the company’s bankruptcy restructuring could proceed parallel with the lawsuits. Unsurprisingly, Aearo filed the paperwork to appeal the bankruptcy court’s decision.

After the bankruptcy court’s ruling, U.S. District Judge Casey Rodgers immediately issued an Order requiring 3M to participate in a second settlement mediation. The ruling appointed a special master, attorney Randi Ellis, to hold a multi-day mediation, which began on September 15 in Pensacola, Florida. Additionally, waves of individual lawsuits are set to resume, and the next trial is scheduled to start this month.

More than 220,000 lawsuits are consolidated before Judge Rodgers in the largest multidistrict litigation in U.S. history. The case is In re 3M Combat Arms Earplug Products Liability Litigation, U.S. District Court, Northern District of Florida, No. 19-md-2885.

Sources: Reuters and Bloomberg 

No Government Contractor Immunity Defense For 3M In Foam MDL

Chemical manufacturer 3M lost its bid for government immunity in multidistrict litigation, consolidating claims that it knowingly concealed its knowledge about the health and environmental hazards associated with its perfluoroalkyl and polyfluoroalkyl substances (PFOS and PFAS) firefighting foam.

Last month, South Carolina federal Judge Richard Gergel rejected 3M’s plea that it has government contractor immunity. The manufacturer argued that it developed the firefighting foam for the U.S. government to use on military bases.

The defendant makes the firefighting foam with PFOS and PFAS, a group of chemicals notorious for their toxicity and inability to degrade. The lawsuits, consolidated in 2018, alleging that 3M has known since the 1970s that the PFAS substances used in its firefighting foam, including PFOS, accumulate in the human body and the environment.

3M has conducted more than a thousand studies on the chemicals and their adverse health and environmental effects yet withheld its findings for nearly a quarter of a century. Toxicologists first detected the presence of PFAS in a human blood sample in 1975. It is now found in the blood and tissue of nearly every American. The judge said further:

It is true that over the years the government came to learn that PFOS was not biodegradable and accumulated in human blood and tissue. What the government did not know and has struggled to determine is what effect the presence of PFOS in the blood of the general population, and widely dispersed in the soil and waterways, has on human health and the environment.

Cases in the MDL, coordinated in 2018, generally claim harm from firefighting foam — called aqueous film-forming foam, or AFFF — that allegedly contaminated local drinking water, blaming the major manufacturers for the pollution. PFAS are known for their flame-retardant and water-resistant properties and are widely used in other products, such as clothing and food packaging. The judge’s order stated:

  • In 1975, two independent toxicologists found that an unidentified organic fluorine compound had been found in human blood and contacted 3M to see if the company knew about possible sources of the chemical.
  • 3M did its own research and concluded the compound was PFOS.
  • Despite having pledged assistance to [the scientists] in identifying the fluorine compound now apparently found in the blood of the general population, and 3M’s legal duty disclose to the government information about potential harm to human health and the environment caused by its products, 3M told no one outside the company of this finding for nearly a quarter-century.
  • 3M made representations, such as in advertising brochures for the foam, that the chemicals were biodegradable and did not hurt the environment.
  • But according to a 1979 internal document, the chemicals were found to be water-soluble and resistant to degradation.

The plaintiffs are represented by Motley Rice LLC, Napoli Shkolnik PLLC and Baron & Budd PC, among others. The case is In re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-2873, in the U.S. District Court for the District of South Carolina.

Source: Law360.com

Class Action Litigation

GM LLC Sued Over Brake Defect In Chevrolet Malibu Cars

Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin, lawyers in our Consumer Fraud & Commercial Litigation Section, are pursuing a very important class action lawsuit against General Motors LLC (GM) in the Eastern District of Michigan. Our plaintiff alleges that 2013-2022 Chevrolet Malibu vehicles (class vehicles) are designed, manufactured, sold, and leased with a dangerous defect in the cam-driven brake vacuum pumps that causes a loss of braking capability, increased stopping distances, and results in damage to the class vehicles’ camshaft and other engine components (the brake defect).

These defective Chevrolet Malibu vehicles present a serious safety risk to vehicle occupants’ safety and health. The class vehicles use a brake booster to amplify brake pedal application and require a steady vacuum supply to increase the forces the driver applies to the brake pedal. The brake defect causes vacuum pump failure, resulting in a hard brake pedal application, reduced braking capability and increased stopping distances. Due to the vacuum pump being mounted on the camshaft, vacuum pump failure causes mechanical resistance affecting the timing of and damaging the camshaft and other engine components.

GM has long known of the brake defect based on consumer complaints submitted to NHTSA, pre-release design and testing, warranty claims for repairs associated with the Brake Defect, and technical service bulletins issued by GM. Although GM has recalled other model vehicles for this failure mode, GM has not recalled the model year 2013-2022 Malibu cars for the Brake Defect.

If you or someone you know has experienced the brake defect in their Chevrolet Malibu, contact Dee Miles, Clay Barnett, Mitch Williams, or Dylan Martin at 800-898-2034 or by using the form at the bottom of this page.

The Malibu brake defect case is Johnson v. General Motors LLC and is filed in the United States District Court for Eastern District of Michigan. The plaintiff and the proposed class are represented by Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin of Beasley Allen, as well as lawyers with The Miller Law Firm, P.C., and Dicello Levitt Gutzler, LLC. At press time, the trial was well underway.

Baby Gear Maker Hit With Class Action Over Strangulation Risk

Consumers have filed a proposed class action against a Pittsburg-based baby gear manufacturer, seeking compensation for certain baby swings and rockers they say were rendered “completely useless” by strangulation hazards.

The lead plaintiffs filed the proposed class action lawsuit against Thorley Industries LLC in a federal Pennsylvania court in August. The company, doing business as 4Moms, manufactures high-tech baby gear, including the MamaRoo multi-motion baby seat and RoackaRoo mechanized. The company recalled both of the products on Aug. 15 over safety concerns.

4Moms recalled 2.2 million swing and rocker units after it received two reports of babies becoming entangled in the devices’ restraining straps. One of the incidents was fatal. The complaint said:

The products’ dangers together with 4moms’ concealment of these risks from the date they were first reported to 4moms or discovery by 4moms through August 15, 2022, the recalled device have been rendered completely worthless or, at the very least, have been substantially diminished in value.

They also allege that 4Moms concealed the safety hazards from consumers when it first became aware of them in August 2018, when it received a report of the first injury linked to the devices, to the day of the recall.

Because of the safety defect and allegedly slow recall, the plaintiffs claim they had to spend money buying new swings and rockers. In that regard, the complaint said:

At a minimum, 4moms was aware of the risk of infant strangulation of the recalled devices in August of 2018, when the first injury of this kind was reported to them. Yet, defendant continued to manufacture and sell the recalled devices with such awareness.

The complaint contains allegations of negligent misrepresentation, breach of express and implied warranties, and violation of Pennsylvania and North Carolina consumer protection laws, reflecting the states or residences of the two lead plaintiffs.

The prospective class members include all U.S.-based buyers of 4moms products who purchased or used the company’s various MamaRoo and Rockaroo models from January 2010 through August 2022.

The class members are represented by D. Aaron Rihn, Robert N. Peirce III and Sara J. Watkins of Robert Peirce & Associates, and Blake G. Abbott, Roy T. Willey IV and Paul J. Doolittle of Poulin Willey Anastopoulo LLC. Counsel information for 4moms was not immediately available.

The case is Demarzio v. Thorley Industries LLC, case number unavailable, in the U.S. District Court for the Western District of Pennsylvania.

Source: Law360.com

Robinhood’s $9.9 Million Settlement Hit A Snag

U.S. District Judge James Donato has refused to preliminarily approve Robinhood’s $9.9 million settlement that would end proposed class claims over the stock-trading app’s repeated service outages. Judge Donato said he needs more information on how much an average user would receive, and he wants the  $400,000 estimated administration costs that he labeled “ridiculous” reduced.

During a hearing in San Francisco, Judge Donato told a lawyer for the parties that “overall” Robinhood Markets Inc. and its affiliates’ proposed settlement “looks OK,” but that he had some concerns with it.

The agreement, if approved, would settle the claims of about 150,000 Robinhood users who say they were harmed by a series of outages on Robinhood’s stock-trading platform in 2020 during an explosive stock market rally.

At the end of the hearing, Judge Donato gave the parties 30 days to file new paperwork, and he noted that California’s Northern District has recently adopted rules that require settlement administrators to ensure their systems take steps to protect the personal data of class members so that their systems are “bulletproof” from data breaches. “You’re going to be my test case,” the judge told counsel.

The claims stem from an outage on Robinhood’s platform that started shortly after markets opened on Monday, March 2, 2020, and lasted “well into Tuesday.” On that Monday, the Dow Jones Industrial Average rose more than 1,294 points, the largest point gain in history at the time; the S&P 500 gained 136 points, and the Nasdaq was up 384 points.

Account holders said the outage “render[ed] systems nonfunctional or inaccessible to Robinhood’s millions of customers.” Another outage on the morning of March 9, 2020, left users in a similar quandary.

Multiple lawsuits over the outages were ultimately consolidated before Judge Donato in mid-2020. The parties were battling over class certification earlier this year, with Robinhood arguing that some customers’ claims of harm would be purely speculative. Still, the parties informed the court in May that they had reached an agreement in principle. The users filed a motion to preliminarily approve the settlement.

It will be very interesting to see what transpires in this case. But it appears the parties should be able to satisfy the judge’s concerns. Stay tuned!

The plaintiffs are represented by co-lead counsel Anne Marie Murphy of Cotchett Pitre & McCarthy LLP and by Matthew B. George of Kaplan Fox & Kilsheimer LLP.

The case is In re Robinhood Outage Litigation, case number 3:20-cv-01626, in the U.S. District Court for the Northern District of California.

Source: Law360.com

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

Bank Of America, Wells Fargo, And TD Bank To Face TelexFree Claims

A Massachusetts federal judge has ruled that Bank of America, Wells Fargo, and TD Bank must face claims of aiding and abetting a multibillion-dollar TelexFree Ponzi scheme. In the multidistrict litigation, plaintiffs argued that the banks continued to service TelexFree’s accounts despite allegedly knowing the company was operating illegally. U.S. District Judge Timothy S. Hillman, in a 47-page order, found the plaintiffs had sufficiently argued their case. However, the judge dismissed PwC and PNC Bank from the civil case.

 Marlborough, Massachusetts-based TelexFree disguised its Ponzi scheme as a “Voice over Internet Protocol” (VoIP) phone service and promised members commissions for online advertisements by promoters. Prosecutors argued that about 2 million people worldwide were sold fake securities and used the VoIP membership fees to pay for returns on investments and commissions.

The scheme lasted from 2012 to April 2014. During that time, victims of the scheme were cheated out of $3 billion, including nearly 170,000 Americans. About a quarter of those individuals were from Massachusetts. They lost an average of $2,940 each, the government said.

TelexFree founders James Merrill and Carlos Wanzeler were charged with multiple counts of wire fraud. Merrill was sentenced in 2017 to six years in prison. Wanzeler fled the United States. TelexFree declared bankruptcy in 2014. In March 2015, plaintiffs in the civil case filed their first consolidated complaint. 

Dee Miles, Lance Gould, James Eubank and Tyner Helms are actively involved in the leadership of this highly significant case. We will continue to report on the progress of this important MDL class action. If you need more information, contact these lawyers by phone at 800-898-2034 or by using the form at the bottom of this page.

Sources: Law360

Salmon Buyer $85 Million Settlement In Price-Fixing Lawsuit Is Approved

A Florida judge has approved the $85 million settlement between the direct purchasers of salmon and the Norwegian salmon-farming companies accused of price-fixing. In an opinion filed on Sept. 8, U.S. District Judge Cecilia M. Altonaga also approved attorney fees in the sum of $25.5 million to be paid by the settlement fund, as well as reimbursement for litigation expenses of more than $2.6 million.

The purchasers were represented by lawyers from Podhurst Orseck PA and Hausfeld LLP. Judge Altonaga approved attorneys fees at 30% of the settlement, citing precedent for that figure established by the Eleventh Circuit’s 1991 decision in Camden I Condominium Association v. Dunkle. Judge Altonaga said in her order:

The court independently has analyzed the Camden I factors against the unique facts of this case and concludes that each and every applicable one of them supports the reasonableness of the instant fee request.

Because of the settlement approval, all people and entities in the United States who purchased farm-raised Atlantic salmon or products derived from them directly from the defendants from April 10, 2013, through preliminary approval in May, are entitled to some of the settlement. The defendants include Mowi ASA, Grieg Seafood ASA, Ocean Quality AS, Lerøy Seafood ASA, SalMar ASA and Cermaq.

In a consolidated 2019 complaint, direct purchasers alleged the companies participated in a price-fixing effort on salmon farmed in the U.S. since at least mid-2015. The claims followed unannounced European Commission inspections of Norwegian-owned companies that farm Atlantic salmon. At the time, the commission suspected that the companies might have agreed to coordinate price increases. The U.S. Department of Justice opened a parallel antitrust investigation.

The case is In re: Farm-Raised Salmon and Salmon Products Litigation, case number 1:19-cv-21551, in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

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 (BeasleyAllen.com/Practices/). The following are the current case activity listings for the Beasley Allen sections.

Practices

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

Cases

The cases in the categories listed below are handled by lawyers in the appropriate Litigation section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website (BeasleyAllen.com/Recent-Cases/).

  • Acetaminophen
  • Auto Accidents
  • Aviation Accidents
  • Belviq
  • Benzene
  • Camp Lejeune
  • CPAP Devices
  • Defective Tires
  • Heavy Metals in Baby Food
  • JUUL Vaping Devices
  • Mesothelioma
  • NEC Baby Formula
  • On-the-Job-Injuries
  • Paraquat
  • 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. We made that decision in 1979 and 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.

Co-Counsel E-Newsletter

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.

Webinars

Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for 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

Suzanne Clark is Discovery Counsel for our firm’s Mass Torts Section, where she assists with discovery, especially discovery of electronically stored information (ESI). Suzanne shares some practical tips to guide new lawyers in implementing good discovery practices and helping longtime practicing lawyers improve their discovery practices. Her number one piece of advice is not to rely on discovery forms and templates but to follow the Rules of Procedure. Let’s see what else Suzanne, who does a tremendous job for Beasley Allen in a vitally important role, has for us.

Beware of Discovery Forms and Templates and Instead Follow the Rules

Now that I’ve been out of law school for 20 years, I can tell this story. I recall being a baby lawyer, and my first assignment was to draft answers to the first set of interrogatories and response to first request for production from opposing party in a state court breach of contract lawsuit. The message I got was, “you’re new, this is work you can do.” Well, of course, I thought, “I have no idea what I am doing,” but I kept that to myself and decided to start by locating discovery responses from a similar case, drafted by an attorney who I thought did know what they were doing and go from there. I remember reading what I now know are called “Preamble Objections” in the template I found and thinking, “I don’t think all of these objections apply in my case, but then again, I don’t think all of these objections apply in the case where they were already made either, so there must be some reason to make these objections that don’t apply so that I will leave them in there.” And so, the story goes, over and over again, in law firms across the country. Young lawyers don’t trust themselves; they do trust the more experienced lawyers in their firm (who still have a job, after all). So, form, boilerplate objections get made repeatedly, and the practice continues.

The same thing goes for form discovery requests and motions, too, not just responses. I recently spoke on a panel about discovery with two other attorneys and a U.S. Magistrate Judge, and the judge’s takeaway at the end of the panel was, “get rid of your discovery forms.” With all this said, how can new attorneys implement good discovery practices and longtime practicing attorneys improve their discovery practices?

Don’t start with templates or forms. Rather start with the Rules and the Advisory Committee Notes. When you begin with scope and obligations in mind and draft discovery requests and responses from there, you are more likely to get it “right” and please the court. In Federal Court, where my practice is centered, beyond the Rule 1 directive to “secure the just, speedy, and inexpensive determination of every action and proceeding,” Rules 26 and 34 are my go-to rules when crafting discovery requests and responses, especially Rules 26(b), 26(c), 26(f), and 26(g) are key, as well as the entire Rule 34 with special attention paid to Rule 34 (b)(2)(C) regarding objections.[1] I also keep Rule 37 at the top of my mind to help ensure my clients avoid sanctions.

After brushing up on the rules to make sure you are starting on your best foot, think about scope of discovery: what you consider scope of discovery should appropriately and reasonably be in your matter, what opposition will likely argue for regarding scope, and what you believe a court would agree to or order regarding scope. Keep in mind the language “reasonably calculated to lead to the discovery of admissible evidence” was stricken from Fed. R. Civ. P. 26 by the 2015 Amendments and replaced with the statement, “Information within this scope of discovery need not be admissible in evidence to be discoverable.”[2] Scope of discovery under Rule 26(b)(1) is now based on three criteria: (1) nonprivileged, (2) relevant, and (3) proportional to the needs of the case.

So, in crafting discovery requests, think about what evidence you want to prove your claims or combat the defenses, (1) would any of that be privileged, and how can you craft your request to exclude privilege (even if that means simply adding a “non-privileged material” qualifier to your request), (2) is your request relevant and how so (in order that you are ready to deal with any future objections from opposing party), and (3) is the request proportionate (is there a way to narrow the request to get what you really need that will reduce the burden to the other party, for example, do you really need the language “any and all”)?

When you are responding to or objecting to discovery requests, do the same exercise. Is opposition seeking privileged material, really? Is the request irrelevant or overly burdensome, really? Are preamble objections about privilege, relevance, or burden appropriate and reasonable? Do they apply to each and every request? Does a general objection truly accomplish the goal of the rules? Should not each request be responded to and objected to based on whether it requests information within the scope of discovery? Consider these questions, but note that preamble boilerplate objections are to be avoided and could lead to all your general objections being stricken or waived.[3]

In conclusion, let’s end the practice of reintroducing outdated work product, and rather let’s train our young attorneys to think about their cases and delve into what information they really need. Teach attorneys to have confidence that they can learn and know their cases, make scope determinations, and communicate what they need through discovery and what they will or will not provide in responses to discovery in ways that lead to productive conferrals with opposition and the need to involve the court only on the most nuanced and complex scope of discovery issues.

Citations:

  • [1] “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” See, Fed. R. Civ.P 34(b)(2)(C).
  • [2] See Committee Notes on Rules—2015 Amendment to Fed. R. Civ. P. 26.
  • [3] Fredin v. Middlecamp, No. 17-CV-3058 (SRN/HB), 2019 WL 11541162, at *2 (D. Minn. Oct. 25, 2019); see also Murphy by Murphy v. Piper, No. 16-cv-2623 (DWF/BRT), 2018 WL 2278107, at *6 (D. Minn. May 18, 2018); Dukes v. Specialty Staff Inc., No. 07-cv-2587 (ADM/JSM), 2008 WL 11456262, at *5 (D. Minn. Apr. 14, 2008).

RECALLS UPDATE

A large number of safety-related recalls were issued during September. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We try to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact us if you have any questions or to let us know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.

FIRM ACTIVITIES

Employee Spotlights

Tracy Edge

A Paralegal in the firm’s Mass Torts Section, Tracy Edge works on the extremis portion of the Talc litigation. She also works on the CPAP and Taxotere cases with Beasley Allen lawyer Beau Darley. Tracy has been a dedicated employee of the firm for over seven years and is an invaluable part of the team!

Tracy and her husband, Marty, have been married for 15 years. Marty is a financial advisor with Merrill Lynch. They have three adult children: Tucker (34), Peyton (26), and Garrett (24). They also have three grandchildren described by Tracy as being “precious”: Jax (7), Logan (3), and Skylar “Ressie” (2). In her spare time, Tracy says she enjoys traveling, especially going to Disney World and Universal Studios, reading, kayaking, fitness, and spending quality time with family. Tracy and her family are also actively involved in the children’s ministry in their church, a ministry that is very close to their hearts. 

When asked what her favorite thing about working at Beasley Allen was, Tracy says it would be the amount of knowledge she has gained from working at Beasley Allen. She added, “I am proud to be part of a firm that thrives on excellence and keeps God front and center.”

Tracy does excellent work and is totally dedicated to the welfare of the clients for whom she works. She is a definite asset to the firm. We are blessed to have Tracy with us.

James Eubank

James Eubank joined Beasley Allen in 2019 and practices in the firm’s Consumer Fraud & Commercial Litigation Section. He handles consumer and investment-related fraud cases. James also focuses his practice on violations of the Employee Retirement Income Security Act (ERISA).

Growing up, James was interested in the teaching profession. His father was both a lawyer and a law school professor for a while. His mother was a high school guidance counselor. His aunt taught elementary school, and both of his grandmothers were teachers.

After working for his father’s law practice during high school and college, James realized that trial lawyers educate. He says:

We educate ourselves on the law and the facts of a case, then we educate the courts, and finally, we educate juries on why our client should prevail in court.

This realization led James to The University of Alabama School of Law, where he was a member of the Civil Rights Students’ Association and Criminal Law Association. He also volunteered with the Tuscaloosa County Probate Court and Habitat for Humanity. Additionally, James completed an externship with the Tuscaloosa District Attorney’s Office. After he graduated, he clerked for the Honorable Charles N. Price in the Fifteenth Judicial Circuit Court of Alabama. Having the privilege of working under Judge Price was perhaps the best education a trial lawyer could get.

James relates what he enjoys most about practicing law to his interest in teaching. He explains:

I love being able to break down complex issues so that they are easier to understand.  Since I changed paths to lawyering instead of teaching, I just get to do it in the courtroom instead of the classroom.

Serving others is another similarity between the two professions. Teachers serve their students and the public as well by educating future generations.  Attorneys serve their clients and the public as well by correcting injustices against their clients and often the public at large.  Being able to make a difference in our clients’ lives by helping them find justice is very rewarding.

James feels fortunate to practice for a firm as unique as Beasley Allen. He believes what sets the firm apart is its culture and leadership. He says:

It’s been said numerous times that our priorities at Beasley Allen should be faith first, family second, and work third.  A lot of workplaces promote such virtue by words, but the leadership in our firm reinforces this with their actions.  We are encouraged to take a vacation with the kids, visit with a sick relative, and take care of ourselves spiritually.  This makes the working environment here about the best I’ve ever seen in my career.

James is a member of the Public Investors Advocate Bar Association and Montgomery County Bar Association (MCBA). He currently serves with the MCBA Volunteer Lawyers Program. Previously, he served on the Board of Directors for the MCBA, the MCBA Young Lawyers’ Section, and the MCBA Government Lawyers’ Section.

Martindale-Hubble has rated James an AV Preeminent attorney – the highest possible Martindale-Hubble rating a lawyer can achieve in legal knowledge, analytical capabilities, judgment, communication ability and legal experience.

James is a tremendously talented and hard-working lawyer and a definite asset to the firm. We are most fortunate to have him with us.

Michelle Freeman

Michelle Freeman began her career with the firm more than 15 years ago as a Data Entry Clerk in the Consumer Fraud & Commercial Litigation Section. Shortly after joining the firm, she transferred to the Mass Torts Section as a Clerical Assistant. Michelle’s responsibilities include assisting with the Vioxx litigations under Beasley Allen lawyer Roger Smith. In addition, she is responsible for preparing plaintiff fact sheets, ordering and downloading medical records, and preparing discovery for service and settlement matters. Michelle also works with all Mass Torts litigation groups in researching cases.

Michelle grew up in Pike Road, Alabama, and currently lives in Montgomery. Her daughter, Haley, has been active in all sorts of sports since the first grade, which Michelle says keeps them very busy. Michelle shares that at two months old, Haley underwent open heart surgery to correct a congenital heart defect known as Total Anomalous Pulmonary Venous Return (TAPRVR). Because of fervent prayers from family and friends, and mostly God, Haley was able to come home a week later post-surgery and is now a healthy and thriving high school senior, Michelle says.

When asked what her favorite thing about working at Beasley Allen is, Michelle said, “I love that our firm puts God first in everything we do. I also love the closeness of everyone here at Beasley Allen. Everyone is always so welcoming, friendly, and helpful. We are one big family.”

Michelle is a dedicated employee who works very hard for clients in their pursuit of justice. We are blessed to have her with the firm.

Seth Harding

Seth Harding joined Beasley Allen in May 2020 as a law clerk and currently works as a lawyer in the firm’s Mass Torts Section. His recent focus includes JUUL vaping litigation and cases against Meta involving social media addiction and related injuries.

Seth, an Alabama State Bar member, grew up in Montgomery, Alabama, and is the sixth of 10 homeschooled children. Seth’s parents prepared him and all his siblings for college by 12. At 16, he graduated from Huntingdon College with a Bachelor of Arts degree in history and a minor in political science. Seth earned his law degree from The University of Alabama School of Law at only 19. During law school, he clerked for plaintiffs’ firms, private-practice lawyers, the Montgomery County Public Defender’s Office, the U.S. Attorney’s Office for the District of Columbia and the Criminal Trials and Special Prosecutions Divisions of the Alabama Attorney General’s Office.     

Seth says he felt called to lead from a young age and that the legal profession afforded him the opportunity to do so. He explains:

I have long felt a spiritual call to leadership and to war against evil. Oftentimes, evil comes in the form of compromises and piecemeal vices leading to increasingly worse realities. I have learned in my time at Beasley Allen that this principle occurs in the corporate sphere and can directly lead to a product defect or negligent act that causes life-altering injuries to blameless and defenseless consumers. Across my teenage years and education, the primary way these general moral and spiritual senses have been sculpted into action is the work I am blessed to do at Beasley Allen in the Mass Torts Section.

Seth says he takes Beasley Allen’s motto of “helping those who need it most” to heart. He enjoys advocating on behalf of his clients and says:

My favorite part of representing plaintiffs, especially where mental health conditions are among the alleged injuries, are moments when my client feels affirmed regarding the causes of the injuries they have sustained. When clients feel their restoration is beginning, there is often a tangible moment in which they exude appreciation and relief. That sense of being a champion for another is the most fulfilling part of the practice of law.

Seth says he is grateful to practice law at Beasley Allen and that he shares what he believes makes the firm unique. He says:

Beasley Allen is great at organizing teams that capitalize on each member’s strengths and interests while fostering growth. Clients and litigation efforts benefit from our environment, where each member brings their specific best to the table.

Due to our fearless constitution, the tradition of excellence and a blessing of resources, Beasley Allen is able to lead litigation efforts across the plaintiff bar against corporate giants.

Currently, Seth serves part-time with the Alabama Army National Guard in an infantry unit based in Foley, Alabama.

Seth is a dedicated, hardworking lawyer who truly enjoys his role as a trial lawyer. He does excellent work, and I predict great things from him. We are blessed to have Seth with us.

Leslie LaMacchia

Leslie LaMacchia is a new lawyer in the firm’s Toxic Torts Section. She handles Camp Lejeune-related claims and paraquat cases. Leslie brings tremendous experience she obtained while previously developing bellwether cases for trial in In Re: Paraquat Liability Litigation in the multidistrict litigation (MDL) and Judicial Council Coordinated Proceeding (JCCP).

Before joining Beasley Allen, Leslie has worked for other highly rated and respected plaintiff law firms handling pharmaceutical and product liability cases since 2005. She has also worked on numerous personal injury cases, including a motor vehicle accident case she co-tried, and she represented hundreds of injured plaintiffs against British Petroleum (BP), working on a trial team that obtained a $142 million settlement two weeks into trial.

Leslie says her desire to become a lawyer actually began in high school. She adds the following:

I fell in love with mock trial when I was a sophomore in high school and decided then that I wanted to go to law school and become a lawyer.

Leslie has managed pre-litigation and litigation for thousands of cases in each of the following mass litigations: FenPhen; Zyprexa (No. I) In Re: Zyprexa, Seroquel and Risperdal (involving diabetes claims); In Re: Risperdal (involving gynecomastia claims); Paxil (No. I); Asbestos; Zoloft; Mirena (No. II); Essure; Xarelto; Taxotere; and JUUL.

Leslie also served on leadership committees for various mass tort litigations. She served on the Plaintiffs’ Executive Committee and co-chaired the Science Committee in MDL 2767: In re: Mirena IUS Levonorgestrel-Related Products Liability Litigation. Leslie was appointed to serve on the Plaintiff’s Executive Committee and served as co-liaison counsel between the JUUL MDL and the JUUL JCCP in In Re: JUUL Labs, Inc. and continues serving on the Plaintiff’s Executive Committee in In Re: Paraquat Liability Litigation. She was also co-lead trial counsel in the second MDL case in In Re: Zyprexa, Seroquel, Risperdal in Middlesex County, New Jersey.

Her peers say that Leslie’s passion for practicing law is driven by her compassion and care for those who have been wronged. Leslie says:  

My favorite part about practicing law is getting to know the clients, being able to represent them to the best of my ability, them trusting me and then getting them the results they deserve.

In 2001, Leslie earned a B.S. degree in political science and communications with a minor in Spanish from Monmouth University in 2001, graduating summa cum laude (Honor Program) while participating as a two-sport NCAA Division 1 athlete. In December 2004, Leslie graduated from South Texas College of Law in Houston, Texas. Leslie is a member of the Texas State Bar, New Jersey State Bar and American Association of Justice.

Leslie says she appreciates the values and success Beasley Allen demonstrates for its clients. She says:

Ultimately, Beasley Allen’s core values in the practice of law align with mine. The firm has a great success rate, and the Beasley Allen lawyers that I knew from prior litigations are wonderful people who are passionate about the law and seeking justice in an arduous, ethical & professional manner.

We are most fortunate to have Leslie at Beasley Allen. She brings with her a vast amount of talent and experience to the firm. Leslie will be a tremendous asset.

Wendy Thornton

Wendy Thornton is a Paralegal in the firm’s Personal Injury and Product Liability Section. She works with Beasley Allen attorney Kendall Dunson, assisting him in several aspects of cases, from contacting clients to trial preparation, virtually everything that involves case preparation. Wendy began her career with Beasley Allen over 25 years ago and has been a dedicated and loyal employee of the firm.

Wendy and her husband, Jeff, have been married for 26 years, and she says that Jeff makes her laugh all the time and that she is truly blessed to have him in her life! Wendy says she and Jeff enjoy hunting, fishing, and watching sports, especially the Auburn Tigers. War Eagle! In her spare time, Wendy relates that she enjoys shopping, catching a movie, or having lunch with friends. She also enjoys jigsaw puzzles and crafting. 

Wendy says her favorite thing about working at Beasley Allen is the clients and having the privilege of working with Kendall Dunson. She added, “Kendall has changed a lot of lives, and it makes me proud to know I had a part in helping him achieve that.” Wendy is a talented Paralegal whose work in that role is vital to the firm. We are thankful for her hard work and total dedication to their clients. Wendy strives to see that they receive justice. We are most fortunate to have Wendy at Beasley Allen.

SPECIAL RECOGNITIONS

Beasley Allen’s Laura Reaves Wins Top Paralegal Award

The Alabama Association of Paralegals, Inc. (AAPi) selected Beasley Allen Paralegal Laura Reaves as the recipient of the 2022 AAPi’s President’s Award, an honor recognizing her dedication to the paralegal profession and her outstanding commitment to AAPi’s mission. This is quite an honor and one that is well deserved.

Laura works as Paralegal to Chris Glover, a Principal in the Personal Injury and Product Liability Section and the Managing Attorney of Beasley Allen’s Atlanta office. Laura has worked with Chris since 2011. Laura has been with Beasley Allen since 2001, previously working on Insurance Fraud and Nursing Home litigation. Her current work is primarily in complex product liability litigation.

Chris Glover congratulated Laura for receiving the honor, saying it is well deserved. He said:

Laura does a tremendous job for our clients, always going above and beyond for them. She is an asset not only to our office but to her profession and counterparts throughout the country.

Last year, the AAPi named Laura its Paralegal of the Year in recognition of her outstanding performance as a paralegal. Her primary responsibilities include conducting client interviews, drafting legal documents, correspondence, and pleadings, summarizing discovery documents, investigating and researching various aspects of cases, and maintaining general contact with clients, witnesses, expert consultants, and others.

In an Aug. 20, 2022, ceremony, AAPi President Adrienne Berry said Laura is a “team player who has consistently worked above her board position.” Laura serves as AAPi’s Second Vice President – Membership and has previously served as AAPi’s Liaison to the National Association of Legal Assistants (NALA). Ms. Berry noted that Laura always gets the job done and often on short notice. She said:

She was always available to assist me and any other board member when asked. She had a cheerful attitude in everything she handled. Laura’s exemplary professionalism was the main component of why she was chosen.

Laura holds a Bachelor of Arts in international business from Huntingdon College and an Associate of Science in legal studies from Faulkner University. She is an Advanced Certified Paralegal with advanced certification in e-Discovery. Laura is also a member of the Georgia Trial Lawyer’s Association Paralegal Section, is on the Professional Development Committee of NALA – The Paralegal Association and the Paralegal Advisory Committee for the Judge Advocate General’s School on Maxwell Air Force Base in Montgomery, Alabama. 

Loving your work is often a catalyst for success, and this holds true in Laura’s case. She says she knew from a very young age that she wanted to enter the legal field one day. Laura said:

It’s just something I’ve always been passionate about. The most rewarding thing about my job is that our firm gives a voice to people who otherwise may not be heard. We are their voice for justice. Helping people is what I love most about my job and why I do it.

 We are truly blessed to have Laura at Beasley Allen. She is a definite asset to the firm.

FAVORITE BIBLE VERSES

Several of the lawyers and staff who are being featured this month share their favorite Bible verses in this issue.

Seth Harding

Seth Harding says, “1 Peter 1:24-25 is one part humbling, but double parts freeing. While nihilism would say, ‘don’t hurt because nothing matters,’ what this gospel says is ‘don’t hurt because God’s purposes and the meaning he imbues creation with transcends all pain; it fades in comparison.’”

All people are like grass, and all their glory is like the flowers of the field; the grass withers and the flowers fall, but the word of the Lord endures forever.

1 Peter 1:24-25

Seth shares two other favorite Bible verses.

Now all has been heard; here is the conclusion of the matter: Fear God and keep his commandments, for this is the duty of all mankind.

Ecclesiastes 12:13

But now apart from the law the righteousness of God has been made known, to which the Law and the Prophets testify. This righteousness is given through faith in Jesus Christ to all who believe. There is no difference between Jew and Gentile, for all have sinned and fall short of the glory of God, and all are justified freely by his grace through the redemption that came by Christ Jesus.

Romans 3:21-24

Michelle Freeman

Michelle Freeman shares the following verse.

I can do all things through Christ who strengthens me.

Philippians 4:13

Tracy Edge

Tracy Edge says “My faith has carried me through for my entire life. I cannot truly explain the comfort that faith gives me.” She shares the following verse:

Now faith is the assurance of things hoped for, the conviction of things not seen.

Hebrews 11:1

CLOSING OBSERVATIONS

Jesse Ocana: Valiant Cross Academy Valedictorian Hopes To Become A Lawyer

Jesse Ocana, who serves as a Runner for our firm, has set his sights on becoming a lawyer. He has been working towards that goal from a young age. In fact, Jesse graduated valedictorian of his high school class in May.

Jesse attended Valiant Cross Academy, a private, all-boys Christian school in Montgomery, Alabama, and proudly supported by Beasley Allen. Brothers Anthony and Frederick Brock founded the school in 2015 to “transcend the challenges facing young African American men.” The school recruits “scholars” from Washington Park neighborhoods and West Montgomery. Although some questioned the brothers’ vision, the school began its eighth academic year in August.

Jesse, a member of the school’s inaugural graduating class, says the school set him up for success in different ways. He explains:

One thing is that the teachers and staff would always push me to do my best in every way, not only in the classroom but in life as well. They would tell me to always do everything with excellence. They would tell everyone that regardless of your circumstances, you should never give up on life because God has a purpose for every individual.

Jesse says he formed relationships at the school that will last a lifetime. He adds that he can count on his former teachers and administrators if he needs anything, including a simple word of encouragement.

Jesse is also grateful that a Valiant Cross Academy administrator connected him with Beasley Allen. Jesse says he loves working for the firm and enjoys speaking with our lawyers. He appreciates the opportunity to hear about their daily work and educational backgrounds.

Jesse currently majors in political science at Alabama State University. He says Valiant Cross Academy’s “rigorous” coursework prepared him for his college studies.

 After he graduates, Jesse plans to pursue a law degree at Thomas Goode Jones School of Law. He says:

In my younger years, people would ask me why I wanted to be an attorney. I didn’t always have the best answer, but now I know that I want to do something that could tremendously help a lot of people. I feel that the legal field is one of the best ways to do that. If there is one thing that I know it is that every good attorney must have a helping heart and a desire to leave a positive impact on the lives of others.

Jesse performs his duties at Beasley Allen with excellence, often going above and beyond what is required. We are fortunate to have him at the firm and look forward to witnessing his continued success. I predict that Jesse will become a lawyer and will be a good one!

Source: Valiant Cross Academy

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

PARTING WORDS

Are We A House Divided?

I believe the American people are more divided today than at any time since the Civil War. Our system of government has literally been under constant attack for a number of years, and it has intensified in recent years. The attacks are actually on our Constitution and the Rule of Law. As I reflect on the nature of the attacks and the ultimate outcome if not curtailed, I am reminded of an important speech made by Abraham Lincoln.

Lincoln told the country before he became president that “a house divided against itself cannot stand.” That statement was true in 1858 when then-candidate for the U.S. Senate Lincoln made his prophetic assessment. This speech, given two-and-a-half years before South Carolina became the first state to secede from the Union, foreshadowed the coming storm of the Civil War. While Lincoln lost the election for the senate seat to Stephen Douglas, his eloquent political arguments put him in the national spotlight and paved the way for his election to the presidency in 1860.

It’s quite apparent that Lincoln’s assessment was based on what Jesus said in Matthew 12:25: “Every kingdom divided against itself is brought to dissolution; and every city or house divided against itself shall not stand.”

Unless the American people make it clear to the leaders in both political parties that the Constitution and the Rule of Law must be preserved and saved for future generations, we are in for some rough roads ahead. Some observers are actually predicting another form of civil war, or at least more intense violence nationally if the current trends are not reversed.

We in America must learn to put our differences aside when necessary and work together for the common good. Without the safeguards of the Constitution and the Rule of Law, the Lincoln assessment may once again come to pass. My prayer is for the good people in America to wake up, say enough is enough, and get involved to save our Republic.

About the Report

Consumer Protection Lawyer Jere Beasley

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

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. His short-lived political career ended in 1978 when he ran, unsuccessfully, for Governor.

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

It has been more than 40 years since he began the firm with the intent of "helping those who need it most." Today, Beasley Allen's primary offices are based in Atlanta, Georgia; Dallas, Texas; Mobile, Alabama and Montgomery, Alabama. Beasley Allen is one of the country's leading firms involved in civil litigation on behalf of claimants. The firm has been privileged to represent hundreds of thousands of individuals who have been wronged by no act of their own.

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

Free Case Evaluation

We live by our motto of “helping those who need it most” and have helped thousands of clients who were injured or suffered other losses through no fault of their own. If you feel you may possibly have a case, please contact us. The consultation is free, and you pay us nothing if we don’t win for you.

"*" indicates required fields

Are you an attorney?
For Disclaimers, see our Terms of Use.
This field is for validation purposes and should be left unchanged.