Will We Allow Mass Shootings, Domestic Terrorism To Destroy America?
America’s mass shootings undeniably have become a national epidemic and this scourge of gun violence is only growing worse with time.
On Aug. 3, 22 people were shot to death and 24 others were injured inside an El Paso Walmart. Just 13 hours later, in Dayton, Ohio, another mass shooting left nine people dead and 27 injured after midnight on Aug. 4. Earlier that same week, on July 28, three people were shot to death and dozens more were injured at the Garlic Festival in Gilroy, California.
The most recent shootings bring the total number of mass shootings in 2019 alone to 255, according to Gun Violence Archive, a group that tracks mass shootings in the U.S. These shootings have killed 246 people and injured 979 already this year, with months left to go.
That means without taking immediate and effective action to stop this epidemic, there will be many more mass shootings stealing the lives of innocent people across the country. Dozens of children, women, and men who are alive today and likely horrified by the out-of-control violence will themselves have their lives cut short, possibly before the end of the year. That’s because the pace of these mass shootings has accelerated.
Before the 1999 shooting at Columbine High School in Littleton, Colorado, mass shootings occurred in the U.S. about every six months. Between the Columbine shooting and the 2015 Charleston, South Carolina, shooting that killed nine members of the Emanuel African Methodist Episcopal Church, the pace had steadily quickened to one mass shooting about every 2.5 months. From June 2015 until now, just 47 days separate mass shootings on average.
These mass shootings are senseless, as has been the response from those who have the power to tighten gun laws. Even after the last shootings and the protests they triggered across the country, the Senate, led by NRA stalwart Mitch McConnell, fell into the same pattern of delay and distraction – delay taking action until some other headline or presidential Tweet dominates the national dialogue.
Survey after survey shows the wide majority of Americans support stricter gun laws, including banning most of the assault weapons with which domestic terrorists usually carry out their atrocious acts. Yet nothing is being done.
A bi-partisan bill proposing “red flag laws” that would make it a little more difficult for mentally deranged people to possess firearms has sat on McConnell’s desk for 200 days. At the end of August, as more people take to the streets to demand action in the wake of the latest shootings, McConnell ruled out ending the Senate recess early to tackle this emergency. He said the Senate will address the issue when the chamber returns in September. More delay, more inaction.
It’s time for extremist politicians to stop demonizing fellow Americans and claiming the Second Amendment is under attack. This dangerous, divisive, and deceptive rhetoric needs to stop. If we don’t elect leaders who will take positive, constructive steps to address the epidemic of mass shootings and gun violence in the U.S., we risk losing everything those who came before us worked so hard to achieve. If we are afraid to leave our homes to go to school, church, a concert, or just out shopping, haven’t we essentially lost the liberties that made this country great?
Sources: Associated Press, Politico, MSNBC, CBS, Time, USA Today, CNN, GunViolenceArchive.org
UPDATE ON THE BOEING LITIGATION
Have Boeing And The FAA Learned Anything From The 737 Max Crisis?
The firm continues investigating cases for surviving family members of victims of the Ethiopian Airlines flight 302 and Lion Air flight 610 crashes that occurred last October and in March. Firm lawyers, led by Mike Andrews, filed a number of lawsuits earlier this summer on behalf of Ethiopian Airlines crash victims’ families. As discussed previously in this Report, the crashes are still under investigation. Preliminary reports from the investigations link the crashes to the malfunctioning MCAS. As the story of deception and greed has unfolded over the summer, it has turned into what the Washington Post describes as a high-stakes global aviation chess game. The turn of events leaves critics questioning whether Boeing and the Federal Aviation Administration (FAA) have learned anything from the 737 MAX crisis.
The 737 MAX was grounded worldwide shortly after the Ethiopian Airlines crash and will remain grounded until U.S. regulators and those in other countries have approved a fix for the aircraft. Growing evidence, including whistleblower reports by former Boeing and FAA employees, shows that Boeing was aware of the problems with its 737 redesign and the flawed MCAS. However, the company exploited the loosely regulated certification process by submitting false data and information about the new system in “self-certifying” reports to the FAA, which is charged with, among other things, regulating the safety of aircraft in the U.S.
The aircraft is approaching its sixth month of being grounded as Boeing attempts to “fix” the MCAS. Although Boeing spoke confidently about a proposed fix submitted to the FAA in May, problems with the system and its fix continue to surface, pushing the anticipated deadline further into the future. In June, during flight simulations, an FAA test pilot was unable to quickly and easily recover the plane using Boeing’s prescribed emergency procedures to regain control of the plane when the MCAS was activated erroneously. The pilot gave the system a failing grade, determining that the failure was catastrophic and could lead to the loss of the plane in midflight. The agency said the problem must be addressed.
Boeing boasted that the MAX was its bestselling aircraft and that it has approximately 5,000 orders, yet sales and orders have come to a complete halt. In mid-August, Boeing reported that it received no orders for the jet in July, which was the fourth straight month without any MAX orders. Additionally, the planes, including the 400 that have already been delivered, sit in storage awaiting Boeing’s promised fix.
Meanwhile, airlines that acquired the 400 planes, including U.S. air carriers Southwest, American Airlines, and United, have been left scrambling to adjust to the grounding and have consistently canceled flights throughout the summer. They keep extending the deadlines on many of the cancellations into next year, further disrupting air travel.
The MAX was designed to be a more fuel-efficient aircraft that would allow Boeing to keep up with its biggest competitor, Airbus. Yet, when the aircraft’s troubled design kept presenting problems, the company secretly incorporated the MCAS and increased the power of the faulty flight control system in order to rush the aircraft to market. To make the aircraft as inexpensive as possible and ensure more sales, Boeing also made once standard warning systems optional and successfully persuaded regulators that pilots needed no additional training. It even refused to add information about the MCAS to the aircraft’s operations manual.
Now, after two deadly crashes that claimed 346 lives and a debacle that has sent the aviation industry in the U.S. and worldwide into a frenzy – if not a tailspin – the aircraft manufacturing giant has agreed to revisit the issues that landed all stakeholders from travelers to investors in such a devasting position, the Wall Street Journal summarized. The events that led to Boeing’s most detrimental crisis in the company’s history took place under the direction of its CEO, Dennis Muilenburg.
Muilenburg, who purports that safety is the company’s highest priority, has been more focused on trying to salvage Boeing’s reputation this summer and getting the faulty plane back in the air as quickly as possible. The company announced it is taking a write-down of nearly $5 billion in the fourth quarter to cover “potential concessions and considerations for airline customers,” revealing the significant damage the crisis has created for the company. Muilenburg has also stated that he is hopeful the MAX will be returned to flight by as early as October – the one-year anniversary of the first deadly MAX crash involving Lion Air. The statement was accompanied by an implied threat that the company may completely halt production of the MAX if it isn’t cleared for flight sooner rather than later. The announcement sent investors and unions alike into a frenzy of their own as they face the potential of further economic and job loss.
Muilenburg’s actions and statements smack of his persistent fixation on the company’s bottom line over the safety of the traveling public. Global regulators have expressed concern about Boeing and the FAA’s efforts to rally support for getting the MAX back in the air.
Shortly after the new FAA head, Stephen Dickson, was sworn in last month, he attempted to reassure stakeholders that the FAA would not approve lifting the ban on the 737 MAX until it was safe to do so and that the approval process would not be rushed. While these assurances sound good and present good optics, the MAX crisis has revealed a very different culture from within the agency. Scrutiny of the MCAS has raised questions about the FAA’s lax certification process. Regulators, aviation experts, law and policymakers, and others worldwide question whether the aircraft can be safely returned to the air before the systemic problems that led to the two fatal crashes are addressed.
Still, in a seemingly goodwill gesture, Boeing announced it will offer $100 million to families of victims in the two crashes. The announcement came just before some of those same family members testified in July before the U.S. Congress about the aircraft and their experience throughout the tragedy. A closer look at the PR stunt also reveals that the pledged money will be managed by Boeing, will be doled out piecemeal over many years, and will not be going directly to the families who have lost their family members.
Regardless of the fate of the MAX, it is clear that Boeing can still cut its losses and walk away from the crisis. Yet, the tragedy will remain forever with the families of the 346 victims killed in the two MAX crashes.
Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, has represented people seriously injured in aviation crashes, and the families of those killed in both civilian and military airplane crashes and helicopter crashes. He also has written a book on the subject to assist other aviation lawyers, “Aviation Litigation & Accident Investigation.” The book offers an overview to the practitioner about the complexities of aviation crash investigation and litigation.
If you would like to have more information on the Boeing litigation, or any other aspect of aviation litigation, contact Mike at 800-898-2034 or by email at [email protected]
Sources: Washington Post and Wall Street Journal
AN UPDATE ON THE OPIOID LITIGATION
Johnson & Johnson Responsible For Fueling Oklahoma’s Opioid Crisis, Judge Rules In Landmark Case
Johnson & Johnson (J&J) was found to be responsible for fueling Oklahoma’s opioid crisis in the first case ever to go to trial. Cleveland County District Judge Thad Balkman, after an 8 week trial, ordered J&J to pay $572.1 million to redress “the devastating consequences suffered by the state and its residents.”
Judge Balkman’s landmark decision is the first to hold a drugmaker culpable for the fallout of years of wildly liberal opioid dispensing that began in the late 1990s, sparking a nationwide epidemic of overdose deaths and addiction. As we have reported, more than 400,000 people have died of overdoses from painkillers, heroin and illegal fentanyl since 1999. Judge Balkman said, reading part of his decision from the bench: “The opioid crisis has ravaged the state of Oklahoma and must be abated immediately.”
With more than 40 states, including Alabama and Georgia, lined up to pursue similar claims against the pharmaceutical industry, this ruling in the first state case to go to trial should influence the strategies of companies, both manufacturers and distributors, to admit their wrongdoing and settle all of the pending cases. Of course, it may take another trial to really get their attention.
The verdict should have an impact on the enormous federal lawsuit brought by nearly 2,000 cities, counties, Native American tribes and others. The first case in the MDL is scheduled to begin in October.
Judge Balkman wrote in the decision:
As a matter of law, I find that defendants’ actions caused harm, and those harms are the kinds recognized by [state law] because those actions annoyed, injured or endangered the comfort, repose, health or safety of Oklahomans.
Oklahoma Attorney General Mike Hunter filed the suit in 2017 against three major drug companies, accusing them of creating “a public nuisance” by showering the state with opioids, while downplaying the drugs’ addictive potential and persuading physicians to use them even for minor aches and pains. More than 6,000 Oklahomans have died of painkiller overdoses since 2000, as the number of opioid prescriptions dispensed by pharmacies reached 479 every hour in 2017.
Beasley Allen Files Wrongful Death Suit Against Endo
Roger Smith, a lawyer in our firm’s Mass Torts Section, filed a wrongful death lawsuit recently on behalf of Peggy Moss, the mother of Camille Smith. Camille, an aspiring cosmetologist, suffered from chronic, debilitating headaches. Camille and her mother repeatedly sought medical treatment for her chronic pain. Flooded with decades of misinformation from Endo Pharmaceuticals and other opioid manufacturers, doctors prescribed Camille increasingly stronger doses of prescription opioids, including Opana ER and fentanyl patches.
Camille Smith passed away when she was only 21 years old, succumbing to addiction after years of being treated with opioids manufactured and heavily promoted by Endo and generic manufacturers.
Prior to the 1990s, doctors adhered to the general medical standards that dictated that opioids should only be used for short-term treatment of acute pain, such as pain after surgery or for cancer or palliative (end-of-life) care. Generally, opioids were not prescribed for long-term, chronic pain because there was no evidence supporting their use with patients’ ability to overcome pain and function. In fact, evidence showed greater pain complaints as patients developed tolerance and other serious side effects including the risk of addiction. Because of this, the use of opioids for chronic pain was discouraged or prohibited.
In an effort to change the common medical understanding, Endo and other opioid manufacturers launched a sophisticated marketing campaign to convince the medical community and the public that their opioid products were safe and effective for long-term, chronic and routine pain. The ultimate goal of these campaigns was to create consumer demand for drugs traditionally used solely to treat cancer pain or for palliative pain.
Endo spent millions on both branded and un-branded promotional activities and materials designed to mislead doctors and patients about the safety and efficacy of extended-release opioids for the treatment of chronic pain, and minimized or outright denied the risks of opioids while overstating their benefits for chronic pain.
Endo did the same with its drugs, Opana ER and re-formulated Opana ER. Endo misrepresented crucial information – information that doctors, including those who treated Camille Smith, would consider when determining whether to prescribe a medication.
More specifically, in Endo’s push for its Opana ER, it circulated marketing materials understating the risk of addiction, and in some instances excluding it all together when listing common side effects.
Endo and other generic manufacturers instructed patients and prescribers that signs of addiction – such as asking for more or higher doses of opioids, self-escalating doses, or claiming to have lost prescriptions in order to get more opioids – are actually indications of untreated pain. The answer to this was to prescribe more opioids. Until 2016, Endo specifically trained its sales representatives to promote this concept of “pseudoaddiction.”
After reaching a settlement with the New York Attorney General for false advertising, Endo admitted there was no empirical data supporting the concept of pseudoaddiction and agreed to stop using it in promotional materials of its opioid products.
Endo and other generic manufacturers used several methods to disseminate their false and deceptive marketing messages. One method utilized was the use of patient advocacy groups and professional associations (Front Groups), which put out patient education materials, treatment guidelines, and continuing medical education programs supporting the use of opioids for chronic pain, overstating their benefits, and understating their risks.
Endo, and others, provided major funding to these Front Groups and effectively purchased control and influence over the messaging produced by such groups. In turn, Front Groups played a major role in shaping health policy debates, setting national guidelines for patient treatment, educating the public as well as prescribers, and effectively influencing medical literature by allowing Endo and other opioid manufacturers to be involved in drafting, editing and controlling the content of various works. Another method utilized by Endo to disseminate its false and deceptive marketing messages was through the purchase of key opinion leaders.
Endo and other opioid manufacturers paid and cultivated a select group of doctors who they sponsored for their supportive messages – that opioids were safe to use long term, and effective at treating pain long term. These key opinion leaders were used to present the appearance that medical research supporting the broad use of opioids for chronic, long term pain had been conducted and was being reported by independent, unbiased medical professionals.
In return for their supportive messages, key opinion leaders received money, recognition, research funding, and avenues to publishing medical literature. Unbeknownst to the public and prescribers, Endo was able to exert control and directly influence the message and the mode in which it was received by medical providers regarding opioids and their use to treat pain long term.
Further, Endo continued to saturate the market with “unbranded” advertising – advertising generally framed as “disease awareness” advertising. Unbranded advertising focuses on encouraging consumers to “talk to [their] doctor” about a certain health condition, instead of promoting a specific product. Endo and other opioid manufacturers spent large sums of money on unbranded advertising because they were able to avoid U.S. Food and Drug Administration (FDA) oversight, with no requirements of listing side effects or contraindications.
As it relates to Camille Smith, Endo’s marketing scheme was successful. As a result of the false and misleading marketing messages Endo and generic manufacturers saturated the market with, Camille was prescribed opioids for the treatment of her chronic headaches. Unfortunately, the price of the false and misleading marketing messages was her life.
If you need more information, contact Roger Smith at 800-898-2034 or by email at [email protected].
Endo Pays $10 Million To Settle Opioid MDL Bellwethers
Endo Pharmaceuticals Inc. will pay $10 million and donate up to $1 million in prescription drugs to get out of the lead bellwether cases in the opioid multidistrict litigation (MDL). This is the most significant settlement so far in the MDL. The first bellwether trial will start on Oct. 21. In addition to the $10 million payment, Endo said it would donate up to $1 million worth of its blood pressure drug Vasostrict and its emergency allergy treatment Adrenalin. This settlement is in the cases brought by the northern Ohio counties of Cuyahoga and Summit, the two Plaintiffs at October’s bellwether trial.
The cases are County of Cuyahoga v. Purdue Pharma LP et al., (case number 1:17-op-45004) County of Summit et al. v. Purdue Pharma LP et al., (case number 1:18-op-45090) and In re: National Prescription Opiate Litigation, (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.
Lead Attorneys Approved For Opioid MDL ‘Negotiation Class’
U.S. District Judge Dan Aaron Polster, the Ohio federal judge supervising opioid multidistrict litigation (MDL), has approved lead attorneys for a proposed “negotiation class” of local governments that would pursue nationwide settlements with drug companies accused of sparking a devastating addiction crisis. The judge appointed Christopher Seeger of Seeger Weiss LLP and Jayne Conroy of Simmons Hanly Conroy LLC as interim co-lead counsel for the would-be negotiation class, a novel mechanism that would unite all U.S. cities and counties to seek global settlements with drug manufacturers, distributors and pharmacies.
Judge Polster has appeared open to approving the negotiation class. However, his order said the matter remains under advisement. Distributors and many state attorneys general have opposed the class, but so far manufacturers have stayed neutral. We will keep our readers up to date on this part of the MDL litigation.
The Beasley Allen Opioid Litigation Team
Because of the enormity of the opioid litigation, and the obvious need that existed, our firm put together an “Opioid Litigation Team,” which includes these lawyers: Rhon Jones, Parker Miller, Roger Smith, Ryan Kral, Rick Stratton, Will Sutton and Jeff Price. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments, as well as other entities in the MDL, and individual claims on behalf of victims. If you need more information on the opioid litigation contact one of these lawyers at 800-898-2034 or by email at [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].
AN UPDATE ON THE TALC LITIGATION
Talc MDL Litigation Update
Hearings evaluating the reliability of expert evidence regarding whether Johnson’s Baby Powder and Shower to Shower cause ovarian cancer have concluded in the multidistrict litigation (MDL). Testimony from eight experts, five on behalf of Plaintiffs and three on behalf of Johnson & Johnson (J&J), was heard by the Talc MDL Judge Freda Wolfson over eight days between July 22 and July 31. Plaintiffs moved to exclude J&J’s experts in whole or in part based on defects in the methodology they used to reach their opinions. J&J filed motions to exclude Plaintiffs’ experts.
Plaintiffs’ experts are imminently qualified, and many are nationally recognized experts in their fields. Each considered the totality of evidence and applied reliable methods in rendering their opinions.
- Plaintiffs’ expert Dr. Ghassan Saed, a cell biologist and cancer specialist, testified regarding his published research, demonstrating that talcum powder causes inflammation, gene mutations and oxidative stress in ovarian cells.
- Dr. William Longo, the Plaintiffs’ material science and engineering expert, testified that J&J talcum powder products contain asbestos and fibrous talc (both Group 1 human carcinogens).
- Dr. Anne McTiernan, Plaintiffs’ epidemiologist, testified to the causal association between talcum powder products and ovarian cancer.
- The Plaintiffs’ toxicologist, Dr. Arch Carson, testified as to the biologic mechanism by which talcum powder causes cancer.
- Dr. Daniel Clarke-Pearson, Plaintiffs’ Genecology Oncology expert, presented his analysis of the causal connection between talcum powder use and ovarian cancer. He further concluded that women who use talcum powder products by application to the perineum are at a 20% to 60% increased risk of developing ovarian cancer.
Witnesses offered by J&J to rebut Plaintiffs’ experts’ opinions included Dr. Benjamin Neel, a cell biologist, Dr. Gregory Diette, an epidemiologist, and Dr. Cheryl Saenz, an obstetrician and gynecologist.
Both parties will submit additional briefing. Judge Wolfson will then at some point render her decision evaluating the qualifications and the reliability of their methodology. We feel very good about our witnesses, but must wait for Judge Wolfson’s order.
Ovarian Cancer Awareness Month
September is ovarian cancer awareness month. Ovarian cancer is a silent killer. Approximately 80% of women diagnosed with ovarian cancer are diagnosed at an advanced stage when the prognosis is poor. More than 14,000 women lose their lives to ovarian cancer in the United States each year. For these reasons, it is imperative that women become more knowledgeable about the disease.
There are three main types of ovarian cancer tumor types based upon the type of cells in which it originates: epithelial, germ cell and stromal ovarian cancers, with epithelial ovarian cancer accounting for approximately 90% of ovarian cancers. Epithelial ovarian cancer originates in the cells covering the outer surface of the ovaries or fallopian tubes. While there are also subtypes of epithelial ovarian cancers, the most prevalent is high grade serous and accounts for approximately 70% of all ovarian cancers.
Only 10-15% of ovarian cancers are caused by inherited genetic mutations. Mutations in the BRCA1 and BRCA2 genes are the most prevalent risk factors for ovarian cancer. Other risk factors associated with an increased risk of ovarian cancer include perineal talcum powder use, asbestos exposure, pelvic inflammatory disease, polycystic ovarian syndrome, endometriosis, nulliparity (never having given birth), infertility, and increasing age. Factors that exert a protective effect and are associated with a decreased risk of ovarian cancer include tubal ligation, prior pregnancy, oral contraceptive use and history of breastfeeding.
Ovarian cancer is the fifth leading cause of death from cancer in women. Approximately 22,530 new cases of ovarian cancer are diagnosed annually. Symptoms of ovarian cancer include abdominal bloating or swelling, sudden and unexplained weight loss, pelvic or abdominal pain or discomfort, back pain, abnormal vaginal bleeding, feeling full quickly when eating, increased frequency of urination and constipation.
Statistically, the five-year survival rates for women diagnosed with ovarian cancer are around 46%, in part due to the advanced stage in which it is usually detected due to lack of testing specificity and vagueness of symptoms.
Treatment options are mainly restricted to surgery and chemotherapy, which can be intravenous or intraperitoneal. Currently, approximately 60% of women with an advanced stage of ovarian cancer have a recurrence, so an aggressive surveillance program is followed post-treatment.
Women have used talcum powder products for more than a century, both to care for infants as well as for personal hygiene. Johnson & Johnson has marketed talcum powder products such as Shower to Shower and Baby Powder as safe and encouraged use by women for genital hygiene, specifically targeting African American and Hispanic women in the South. What Johnson & Johnson failed to communicate was their awareness of studies linking talcum powder and ovarian cancer as early as the 1960s. Johnson’s Baby Powder and Shower to Shower have been shown to contain asbestos.
Since the 1980s, epidemiological studies on the association between talcum powder use and ovarian cancer indicate an approximate increase in ovarian cancer risk of approximately 20-60% with talcum powder use. A study done in 2016 at the University of Virginia found that African American women who used talcum powder products for feminine hygiene had a 40% increased risk of developing ovarian cancer over non-talc users.
Talc without asbestos or other mineral fibers has been designated a Group 2b “possible” carcinogen by the International Agency for Research on Cancer (IARC). It has been shown to cause an inflammatory reaction in the body, creating an environment that contributes to genetic mutation and leads to carcinogenesis. It is a mineral often found in close proximity to asbestos underground. The asbestos is extremely difficult to extract or sometimes even detect during the mining process, leading to product contamination. IARC has concluded that asbestos and fibrous talc are carcinogenic to humans.
While talcum powder products are marketed for hygienic purposes, there is no medicinal benefit from them. Cornstarch-based powder products that do not increase the risk of ovarian cancer have been on the market for decades and are a safe alternative to talcum powder products.
Sackler Case Could Blow Up High Court’s ‘Original’ Docket
The State of Arizona has turned heads in legal circles by filing a lawsuit against the Sackler family directly in the U.S. Supreme Court, challenging the way the justices have treated their so-called original jurisdiction docket since at least the 1970s. The vast majority of Supreme Court cases are appeals from lower court rulings, but a small number are filed directly to the high court. The directly filed cases, which are typically water disputes between states, ask the justices to exercise their “original,” rather than “appellate,” jurisdiction.
For decades, the court has maintained that it has the discretion to decide which “original” cases to hear, insisting that such flexibility is crucial to managing its caseload. But in this bold new filing against the owners of Purdue Pharma, Arizona asked the court to essentially overturn its long-standing position that it has discretion with regard to its original jurisdiction docket and declare that it is constitutionally required to consider each case, a ruling that would have far-reaching effects on the court’s docket.
Arizona wants the justices to order the Sackler family to pay back what the state says is billions of dollars the family raided from Purdue as the company faced litigation over its involvement in the country’s opioid crisis. Arizona said its suit seeks to hold the Sacklers accountable for their alleged attempts to loot Purdue and make sure that the state can recoup what it has spent in treating the opioid epidemic.
Arizona is arguing that the Supreme Court has original jurisdiction over the case because Article III of the Constitution allows the court to immediately preside over “all Cases … in which a State shall be Party,” including “Controversies … between a State and Citizens of another State.”
In 2016, Justice Clarence Thomas wrote a dissent joined by Justice Samuel Alito in effect making the same argument: that the court has no choice but to consider cases over which it has original jurisdiction. Arizona’s filing heavily cited the opinion. The 2016 case involved Nebraska and Oklahoma’s lawsuit against Colorado for legalizing recreational marijuana, which the Plaintiff states said forced them to spend more money combating increased drug trafficking. Justice Thomas explained that opting not to hear such a case means “the complaining State has no judicial forum in which to seek relief.” That’s not the case with litigation between a state and a private party.
Arizona insists that the availability of another forum shouldn’t matter. Arizona will need more than just the votes of Justices Thomas and Alito to effect such a change. But with two new additions to the bench in recent years, the chorus to tackle the issue could possibly grow. It will be interesting to see how the Arizona case fares with this court.
AN UPDATE ON THE WHISTLEBLOWER LITIGATION
DOJ’s Bid To Dismiss Whistleblowers’ Gilead FCA Suit Hits A Snag
The federal judge weighing whether to grant the U.S. Department of Justice’s (DOJ) attempt to dismiss whistleblowers’ decade-long, multibillion-dollar False Claims Act (FCA) suit against Gilead Sciences Inc. has suggested that DOJ attorneys brief him on any cost-benefit analysis they performed in deciding to seek dismissal. The DOJ is seeking to dismiss the case, saying that even though it’s being spearheaded by whistleblowers Jeffrey and Sherilyn Campie, the federal government still has to commit resources to the case.
This move by the DOJ, although unusual, has become more common since the DOJ’s adoption of the Granston memo in January 2018. The Granston memo announced a new policy encouraging its attorneys handling False Claims Act cases to seek dismissal of such cases that are impractical “in light of the government’s limited resources” or otherwise threaten the government’s interest.
U.S. District Judge Edward M. Chen said last month he couldn’t tell whether the government had reached any conclusions regarding the validity and strength of the whistleblowers’ argument, which includes claims that the pharmaceutical giant had since 2001 contracted with illegal facilities, falsified data, and concealed that certain batches of drugs had failed testing. A lawyer for the whistleblowers urged Judge Chen not to dismiss the case, saying the government had provided no evidence that it considered potential benefits as well as costs. “Every case has costs,” the Campies’ lawyer told Judge Chen, adding that if they show that Gilead sold contaminated drugs, hundreds of billions of dollars could be recovered.
The government argued that it arrived at its conclusion to end the case after weighing the burden of monitoring the case and participating in discovery. The government said it also weighed the merits of the case and the chances of success and recovery. But Judge Chen wanted the government to show that an analysis had been conducted, and he decided to give the government a chance to bolster its case by submitting supplemental briefs showing that it had done a thoughtful cost-benefit analysis. “There is some ambiguity,” Judge Chen said, “as to whether the government’s cost assessment is sufficient to satisfy non-arbitrariness.”
The Campies filed the suit in 2011, alleging that Gilead cheated taxpayers by selling contaminated and defective drugs to Medicare and Medicaid. Jeff Campie, a former senior director for quality control assurance at Gilead who says he was fired for raising objections, and Sherilyn Campie, an associate manager for quality control who still worked at Gilead when the case was filed, said that Gilead sold at least 10 products since 2001 – including the HIV medications Viread, Truvada and Stribild – that lacked potency or were contaminated with filth, metal or microbes, allegedly rendering them non-reimbursable by government health care programs.
Judge Chen twice dismissed the action. The Ninth Circuit revived the case against Gilead in mid-2017, finding that the Campies adequately alleged regulatory violations – concealment of active ingredient sourcing and contamination – that could have been “material” to government reimbursement under the Supreme Court’s Escobar standard.
The Escobar case, decided in 2015 by the Supreme Court, first recognized an “implied certification” theory of liability under the False Claims Act, meaning that when a contractor submits a claim for payment to the government, it impliedly certifies compliance with all conditions of payment.
But Escobar also held that a contractor’s innocent violation of a condition of payment must be “material” to the government’s payment decision, and the contractor must know the violation is material to the payment decision. In other words, not all violations of conditions of payment, whether statutory, regulatory, or contractual, will result in a violation of the False Claims Act.
Gilead sought review at the Supreme Court, but the high court denied the petition. This put the case back in the California federal court. Judge Chen questioned why the government has had a change of heart in the case, pushing the DOJ to explain how it arrived at its new stance. “There has to be something more,” Judge Chen told the DOJ.
Judge Chen said any discovery in this case would almost certainly contain depositions from the government, including what it knew about the allegations against Gilead and when it knew about them. “This is an important decision,” Judge Chen said, noting that “some meaningful cost-benefit analysis” could be necessary. Judge Chen said he plans to take the case under submission once both sides have filed supplemental briefs.
The Campies are represented by Andrew S. Friedman and Francis J. Balint Jr. of Bonnett Fairbourn Friedman & Balint PC, and Ingrid M. Evans of Evans Law Firm Inc. The case is United States of America ex rel. Campie and Campie v. Gilead Sciences Inc., (case number 3:11-cv-00941) in the U.S. District Court for the Northern District of California.
Whistleblower Case Settlements
There have been a number of significant settlements recently in whistleblower litigation. The following are some of them.
Universal Health Services Agrees To $127 Million DOJ Settlement
Universal Health Services (UHS), an investor-owned hospital chain, has reached a preliminary $127 million civil settlement with the federal government over a false claims investigation that has been going on for years. For at least five years, the Justice Department (DOJ) has led both civil and criminal investigations into UHS’ behavioral health operations.
The civil investigation involves allegations that some of UHS’ facilities submitted false claims for reimbursement to the government. More specifically, the government has investigated whether UHS delayed patient discharges from its behavioral health facilities to maximize reimbursement.
The DOJ will have to approve the civil settlement, which was also on behalf of various states’ attorneys general. Then the Office of Inspector General, U.S. Department of Health and Human Services (HHS-OIG) will issue a corporate integrity agreement, which will issue mandatory compliance standards going forward.
Pharmacy and Private Equity Fund Agree To FCA Kickback Suit Settlement
Compounding pharmacy Diabetic Care Rx LLC (which does business as Patient Care America [PCA]) and its private equity fund owner, Riordan Lewis & Haden Inc., have told a Florida federal court that they are close to a settlement with the government that would resolve a False Claims Act (FCA) lawsuit over an alleged $70 million kickback scheme. U.S. District Judge Roy Altman agreed to stay the case for 30 days.
The government’s complaint alleges that PCA used marketers that were paid kickbacks to help recruit beneficiaries of Tricare, the government’s health insurance for active-duty and retirement military personnel and their dependents, to solicit medically unnecessary prescriptions for expensive compounded drugs that were fulfilled by the pharmacy and charged to the military health care program.
The government says that over the course of about eight months between 2014 and 2015, before Tricare made a major overhaul to its process for reimbursing compounded drugs, the pharmacy took in tens of millions of dollars – roughly $70 million – in bogus charges. It is significant that this case is the first time the government has named a private equity owner in an FCA complaint-in-intervention with the company accused of submitting false claims.
Allscripts Agrees To $145 million Settlement With The Federal Government
Allscripts Healthcare Solutions has reached a tentative settlement with the Department of Justice (DOJ) to resolve investigations of a company the electronic health records vendor acquired last year. Practice Fusion, which Allscripts acquired in 2018, had been subpoenaed over “certain business practices,” including the company’s compliance with the anti-kickback statute and HIPAA. If finalized, Allscripts will pay the Justice Department $145 million to resolve civil and criminal liability from the investigation.
The investigation also involved how the vendor obtained software certification under the Office of the National Coordinator for Health Information Technology’s health IT certification program.
Associated Press reported that investigations into Practice Fusion had “many similarities to investigations that have either been settled or remain active with many of its industry competitors.” In 2017, a separate EHR vendor – eClinicalWorks – and some of its employees were ordered to pay $155 million for allegedly falsely obtaining certification for its EHR software. Allscripts has agreed to work with the DOJ to finalize the details of the settlement, such as when the payment would be due, over the following months.
Source: Associated Press
The Beasley Allen Whistleblower Litigation Team
Fraud continues to be a huge problem in many industries in this country. Our firm has increased its health care whistleblower practice for this very reason with lawyers Lance Gould, Archie Grubb, Larry Golston, Paul Evans, Leslie Pescia, Leon Hampton and Tyner Helms working in this area known as “qui tam” cases. We recently obtained a $14 million verdict in Birmingham Federal Court dealing with a health care whistleblower issue and continue to pursue other cases throughout the country involving fraud on the government.
As we have consistently stated, whistleblowers are the key to exposing corporate wrongdoing and government fraud. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is important to make sure you have a valid claim and that you are prepared for what lies ahead. Beasley Allen has an experienced group of lawyers dedicated to handling whistleblower cases.
A lawyer on our Whistleblower Litigation Team will be glad to discuss any potential whistleblower claim with you either in person or by phone. You can reach these lawyers by phone at 800-898-2034 or by email at [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].
PRODUCT LIABILITY UPDATE
Courts Across The Country Continue To Reject Car Manufacturers’ Jurisdictional Challenges Related To The Sale Of The Vehicle
A court must have personal jurisdiction to impose a binding judgment on any Defendant. This requires a showing that the Defendant has some contacts with the State in which the court is located. Courts have developed what is known as the “stream of commerce test” to obtain jurisdiction over out-of-state manufacturers when one of their products causes injury in a forum where the manufacturer expects its product to be sold.
This test comes from World-Wide Volkswagen Corp. v. Woodson, a case involving a New York car dealership that did not sell, promote, or service any of its vehicles in Oklahoma. The U.S. Supreme Court found that specific jurisdiction was lacking because the dealership had never sold, promoted, or serviced its vehicles in Oklahoma.
The High Court noted in the opinion that a manufacturer is subject to jurisdiction in a forum where its product causes injury if the manufacturer directly or indirectly sought to serve the forum. A manufacturer seeks to serve a forum’s market when its products are regularly sold in the forum.
Hence if the sale of a product of a manufacturer or distributor . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.
World-Wide Volkswagen, 444 U.S. at 297-98.
Since 2012, courts have experienced a wave of jurisdictional challenges by auto manufacturers, arguing that personal jurisdiction cannot exist if the Plaintiff purchased the car outside the state even if the Plaintiff resided, and was injured, in the state. Car manufacturers, like Ford Motor Company, which profit hundreds of millions of dollars in every state, have argued that jurisdiction can only exist if they commit conduct inside the state that proximately causes the Plaintiff’s products liability claim. At least 15 courts have rejected this argument in the last few years.
For instance, just two weeks ago, the Supreme Court of Minnesota rejected Ford’s proposed “causal” standard in Bandemer v. Ford Motor Co., No. A17-1182, 2019 WL 3438980, at *4 (Minn. July 31, 2019). The Minnesota Supreme Court followed World-Wide Volkswagen in reasoning:
Were we to adopt Ford’s position here, we would be reading out of the World-Wide Volkswagen decision everything the majority wrote about the defendant’s lack of contacts with Oklahoma. If the particular vehicle was not designed, manufactured, or sold in Oklahoma, on Ford’s theory, then it would not have mattered if the defendant sold millions of cars in Oklahoma. We decline to adopt a rule that would render irrelevant so much of the Court’s reasoning.
Bandemer, 2019 WL 3438980, at *5 (emphasis added)
Likewise, the Montana Supreme Court rejected the same “sale” and “causation” argument in May of this year, holding, “due process does not require a direct connection; it only requires that the plaintiff’s claims ‘arise out of’ or ‘relate to’ the defendant’s forum-related activities.” Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 443 P.3d 407, 415-416 (Mont. 2019). The Court reasoned that personal jurisdiction can be boiled down to fairness and reasonableness. Id. at 416. Is it fair and reasonable to ask an out-of-state Defendant to defend a specific lawsuit in any given State? According to the Montana Supreme Court,
When a company engages in the design, manufacture, and distribution of products specifically designed for interstate travel, it is both fair and reasonable to require the company to defend a lawsuit in a state where the product caused injury as long as the company has otherwise purposefully availed itself of the privilege of doing business in that state and if a nexus exists between the product and the defendant’s in-state activity. Where a company first designed, manufactured, or sold a vehicle is immaterial to the personal jurisdiction inquiry, and focusing on those limited factors would unduly restrict courts of this state from exercising specific personal jurisdiction that comports with due process over nonresident defendants in cases such as this one.
Id. at 416-417 (emphasis added).
As Courts across the country continue to reject auto manufacturers’ frivolous jurisdictional challenges, Plaintiffs are hopeful that Alabama courts will follow suit. Lawyers in Beasley Allen’s Personal Injury & Products Liability Section have successfully litigated complex jurisdictional issues involving international and domestic corporations. For more information on personal jurisdiction, please contact Stephanie Monplaisir, a lawyer in our Personal Injury & Products Liability Section, at [email protected]. Stephanie has successfully handled cases involving jurisdictional issues and will be glad to talk with you.
Residential Elevator Safety
Manufacturers estimate that there are approximately 125,000 swing door elevators in use throughout the United States. About 5,000 more are sold each year. Many of these are installed in single family residences. Yet, these machines can present a serious safety risk – particularly to young children – and have caused injuries and deaths across the country.
Swing door elevators have been in use for more than a century and are appealing to customers because they require less wall space for installation than sliding door elevators. The outer swing door can resemble a normal residential door. The elevator car is then closed by another door on the inside, often a softer, accordion-style door. However, without adequate safety features, small children can be trapped between the two doors and crushed.
U.S. Consumer Product Safety Commission (CPSC) data identifies 131 known incidents between 1981 and 2016 where children and teens were trapped and crushed between elevator cars and external doors. Other sources, however, indicate that the total number of incidents could be much higher. Litigation involving one major residential elevator manufacturer uncovered documents indicating its elevators had killed or injured 34 children between 1983 and 1993 in New York and New Jersey alone.
Despite growing scrutiny, residential elevator manufacturers have been slow to respond. Some are working on improvements, but other manufacturers maintain that the extra cost of available safety features would price out potential customers and have declined to make safety improvements standard without regulatory changes. The average residential elevator already costs around $25,000. Still, some elevator experts say that fixes as simple as the installation of a $100 space guard to close off the door gap could remedy the hazard. Other potential solutions include infrared sensors or stronger inside doors that don’t stretch or expand and allow a small child to fit between the gap.
Institutional problems with inspection, industry standards, and oversight exacerbate the problem. Some state and local governments have adopted voluntary standards, such as those proposed by the American Society of Mechanical Engineers (ASME), but many others have not or do not even inspect elevators in private homes. Some critics assert that ASME’s standards don’t require enough of elevator manufacturers. Others assert that the Consumer Product Safety Commission has failed to properly regulate the machines.
In 2017, the Consumer Product Safety Commission denied a petition requesting that it initiate rulemaking to issue a safety standard for residential elevators to address entrapment hazards.
If you need more information, or have a potential claim, contact Dan Philyaw, a lawyer in our firm’s Atlanta office, at 800-898-2034 or by email at [email protected].
Lawsuit Says Tesla Autopilot Failure Caused Death Of Driver
A lawsuit has been filed in Florida involving a Tesla car that was running on Autopilot and was involved in a fatal crash. The crash happened when a tractor-trailer pulled out in front of a Tesla Model 3 driven by 50-year-old Jeremy Banner.
It’s alleged in the lawsuit that the Autopilot system failed, saying the system should have braked or swerved to avoid the semitruck. About 10 seconds before the crash, Banner engaged the Autopilot system, according to a preliminary report from the National Transportation Safety Board (NTSB). Investigators found that less than eight seconds before the collision, the driver’s hands weren’t detected on the steering wheel, which would have prompted warnings from the car’s automated system.
Banner’s family sued Tesla, the trucking company First Fleet and the driver of the semitruck Richard Keith Wood. The lawsuit says Tesla falsely advertised the Autopilot system, marketing it as self-driving technology that would “eliminate the risk of harm or injury to the vehicle operator caused by other vehicles or obstacles” while in auto pilot mode. The lawsuit says Banner “reasonably believed” the Model 3 was safer than a human-operated vehicle.
Banner, who lived in Lake Worth, was on his way to work in Boca Raton as a computer software programmer. According to the preliminary report from NTSB, Banner was driving south on State Road 7, where the speed limit is 55 mph, when the tractor-trailer pulled out in front of the Tesla, attempting to cross the southbound lanes and turn left to go north. The report said that surveillance videos and forward-facing video from the Tesla show the truck slowed and blocked the Tesla’s path. The Tesla drove beneath the trailer at 68 mph, and the roof was sheared off, killing Banner. The car traveled about the length of five football fields after the collision.
Trey Lytal, a lawyer with Lytal, Reiter, Smith, Ivey and Fronvath, located in West Palm Beach, Florida, represents the family in the lawsuit.
Porsche Recalls Vehicles With Defective Airbag Control Modules
On July 31, 2019, Porsche Cars North America recalled more than 7,500 vehicles equipped with defective air bag control modules, according to documentation filed with the National Highway Traffic Safety Administration (NHTSA). The campaign affects multiple Porsche models, including:
- 2016-2017 Porsche 911 coupes produced between June 30, 2015, and April 16, 2016.
- 2016-2017 Porsche Boxster coupes produced between July 1, 2015, and March 15, 2016.
- 2016 Porsche Cayman coupes produced between July 8, 2015, and April 18, 2016.
- 2016 Porsche Panamera hatchbacks produced between June 23, 2015, and April 7, 2016.
The recalled vehicles potentially contain air bag control modules with defective capacitors that could cause current deviation, leading to changes in equivalent series resistance (ESR) levels. ESR fluctuation could trigger unexpected air bag and seatbelt pretensioner deployment or inhibit airbag functionality. Both outcomes increase the risk of an accident. As a consequence, the defect poses a serious safety hazard to owners and occupants.
Timeline of Events
Porsche’s airbag control module supplier, ZF Group, based in Germany, received a report from Kia Motors in August 2011 describing a situation in which the owner of a vehicle featuring the brand’s products was involved in a collision, during which his air bags failed to deploy, according to NHTSA documents. ZF Group investigated the incident and determined electrical overstress to be the cause of the incident. Less than one year later, another Kia owner, this one in Egypt, had a similar experience, which ZF Group again linked to electrical overstress.
The parts vendor received four additional reports throughout 2015 – three involving Kia vehicles and one involving a Hyundai Motor Company vehicle – which detailed instances of air bag malfunction. ZF Group linked all incidents to electrical overstress and in January 2016 contacted NHTSA for assistance. The company collaborated with various automakers, parts providers and NHTSA that year to study the problem in-depth. The work continued into 2017, during which time ZF Group issued multiple customer communications and received new reports of air bag deployment failure.
Hyundai issued a voluntary safety recall for select vehicles outfitted with ZF Group airbag control modules in February 2018. Kia followed suit in June 2018, at which point NHTSA advised ZF Group to launch an independent recall for its air bag control modules. The company filed the official Part 573 paperwork June 13, 2018. Porsche received a copy of this recall June 24, 2019, and on July 10, 2019, elected to initiate its own recall campaign.
Options for Consumers
The German automaker intends to direct dealers to assess the air bag control modules in affected vehicles and replace them if necessary, free of charge. Porsche will notify dealers Sept. 15, 2019, and contact owners via first-class mail within 60 days of that date, per NHTSA documentation.
Beasley Allen lawyers Clay Barnett and Dee Miles recently filed a class action against ZF-TRW Automotive Holdings Corp., TRW Automotive U.S. LLC, and automakers FCA US LLC, American Honda Motor Co. Inc., and Toyota Motor Sales, U.S.A. Inc., in the Eastern District of Michigan, Southern Division, for this exact defect. On Aug. 7, the United States Judicial Panel on Multidistrict Litigation consolidated that case with other similar filings in the Central District of California for coordinated pretrial proceedings. The case is MDL No. 2905.
Owners of the affected Porsche models can contact Clay Barnett, a lawyer in our Atlanta office, to inquire about joining the litigation. He can be reached by phone at 800-898-2034 or by email at [email protected].
Lawsuit Says Glock Makes And Sells “Unreasonably Dangerous” Handguns
Two handgun owners have filed a putative class action suit against gun maker Glock Inc., claiming certain models of the company’s semi-automatic handguns are defective, “unreasonably dangerous” and “unfit for their intended use.”
The suit, filed in a Arizona federal court, says at least 30 models of Glock handguns have a defect that causes a so-called “blow out” or “kaboom” when firing them in a certain position. The named Plaintiffs, David Melian and Christopher George said in their complaint that the defect “can and does” result in personal injury. It’s further alleged:
Georgia-based Glock is aware of the safety problems associated with the handguns – and even knows that individuals have been seriously injured. But the company continues to market and sell the guns as safe. It is only a matter of time before more individuals are seriously injured or killed. Affected handguns include Glock Models 22, 23, 24, 27, 30, and a slew of others.
Melian owns a Glock Model 41 and George has two Glock .40 caliber guns, and they say both models are also defective. The Plaintiffs are seeking to represent a class of potentially thousands of gun owners across the United States who own or have owned one of the affected Glock handgun models. They are also seeking certification of an Arizona subclass. Melian and George said in the suit:
Specifically, the defect involves a feed ramp that is too long and goes into the chamber, causing a lack of chamber support for the round. Consequently, the round separates and dislodges a piece of the casing. Had they known about the alleged design flaw, they wouldn’t have purchased their guns. The defects have created an unreasonably dangerous situation for a person owning and/or possessing a class handgun, and have substantially reduced or eliminated completely the value of the class guns. And despite being well aware of the defect, Glock has never fixed it, issued a warning or recalled the affected models, the gun owners said. Glock had a duty to disclose and warn the public about the defect.
Plaintiffs Melian and George, who noted they were not looking to “disparage the Second Amendment’s right to bear arms,” added:
Rather, plaintiffs and the class members seek to hold accountable the Glock defendants for their design, manufacture, assembly, marketing, supply, warranty, distribution, misrepresentation and sale of the class guns that are defective and unreasonably dangerous as described herein.
The Plaintiffs are represented by Craig M. Nicholas and Alex Tomasevic of Nicholas & Tomasevic LLP, Robert K. Lewis and Christopher A. Treadway of Lewis Law Firm PLC and Amy M. Pokora of Pokora Law PLC. The case is Melian et al. v. Glock Incorporated et al., (case number 2:19-cv-04872) in the U.S. District Court for the District of Arizona.
Vaping Consumers At Risk Over Battery Safety
Concern over the explosion of 18650 cell batteries in vaping products has prompted the Food and Drug Administration (FDA) recently to take the first steps toward monitoring the devices. An 18650, which is slightly larger than a AA battery, is a lithium-ion product that is made of robust cells that have a stainless steel can so they can withstand the rigors of outdoor power equipment. The batteries’ intended use is in electric vehicles and power tools – not devices that consumers can modify and put into their mouths. The 18650 batteries are often used in certain types of electronic cigarettes called mechanical mods, which are specialized vaping devices that do not have an internal safety circuitry. As a result, the batteries must be removed from these devices and recharged.
But simply doing so can put users at risk. That’s because the act of taking 18650s in and out of vaping devices or chargers can damage the cells’ insulating wrapper, compromising the safety of the battery. JUUL devices, which resemble small computer flash drives, do not appear to carry this risk. They do have lithium-ion batteries, but they are not 18650s, and they are designed to remain permanently in place.
A recent study from George Mason University estimated there were more than 2,000 visits to U.S. emergency rooms from 2015 to 2017 for e-cigarette burns and explosion-related injuries. The vast majority of those injured were men who had put e-cigarette batteries in their pants or shorts pockets when they said the batteries exploded. Many experienced severe burns to their legs, arms and hands. Some also had keys in their pocket – a dangerous mix of metal and lithium-ion batteries.
A 2017 report from the U.S. Fire Administration, in charge of fire data collection, education, research and training, stated, “The shape and construction of electronic cigarettes can make them [more likely than other products with lithium-ion batteries] to behave like ‘flaming rockets’ when a battery fails.” The author of that report, Larry McKenna, said lithium-ion batteries contain two thin plates separated by a sponge saturated with a combustible liquid similar to kerosene in terms of flammability.
Beasley Allen lawyers are currently representing numerous clients who have been affected by defective vaping products and batteries. If you would like to discuss a potential claim or need more information, contact Will Sutton, one of the Beasley Allen lawyers who handle these cases, by phone at 800-898-2034 or by email at [email protected].
Source: NBC News
MASS TORTS UPDATE
Option Elite IVC Filter Trial Update
Beasley Allen lawyers are preparing for an upcoming trial in the Philadelphia Court of Common Pleas. The case involves a client who had an Option Elite IVC filter placed as a prophylactic measure against blood clots prior to a gastric surgery. The filter was scheduled to be removed 60 to 90 days after the gastric surgery, as soon as the risks of clots were no longer present.
After a successful gastric surgery, and three months to the day after the Option Elite was placed, the client went in to have the IVC filter removed. However, in that short time period, the filter became embedded into her cava wall, and the surgeon was unable to retrieve it. Another, more-experienced surgeon attempted a second retrieval procedure several weeks later. Despite using advanced surgical techniques when “routine” removal techniques had twice failed, he, too, was unable to dislodge and remove the filter.
Our client then traveled to see one of the most highly regarded surgeons in the country for complex IVC filter retrievals for a third attempt to retrieve the defective filter. Although the third surgeon was able to successfully retrieve the filter and all the components, the filter had blocked her renal vein and caused a fistula – or abnormal connection between the renal vein and artery – which cut off the blood flow to one of her kidneys. As a result, more surgeons had to be called in and a decision was made to “plug” the renal vein and artery, essentially causing her to permanently lose all function of that kidney.
Matt Munson is a member of the Plaintiffs’ Leadership Committee in the Philadelphia State Court Consolidated Litigation and has participated extensively in the corporate discovery and depositions of Rex Medical and Argon Medical’s representatives. Matt believes the liability case against Rex and Argon are overwhelmingly in favor of the Plaintiffs. “The evidence at trial will show that the Option series filters were rushed to market as a “me-too” device without adequate safety and efficacy data to support 510k clearance by the U.S. Food and Drug Administration (FDA).”
Matt says, “the evidence will clearly demonstrate the data presented to the FDA to support Rex Medical’s 510k was questionable at best, if not outright fraudulent.” We can’t elaborate further due to a protective order in place for the litigation.
This will be the second case to go to trial involving the Option series IVC filters created by Rex Medical and sold by Argon Medical. Beasley Allen lawyers Matt Munson, Frank Woodson and Lisa Courson, along with Lance Cooper (the Atlanta lawyer who works closely with our firm) will try this case to a Philadelphia jury in the coming months. If you need more information, contact Matt Munson, a lawyer in our Mass Torts Section, by phone at 800-898-2034 or by email at [email protected].
Higher Doses Of Xeljanz, Xeljanz XR Linked To Increased Risk Of Blood Clots And Death
The U.S. Food and Drug Administration (FDA) recently approved new warnings about the increased risk of blood clots and death for ulcerative colitis patients taking 10mg of Xeljanz twice daily. This is a boxed warning – reserved for the most serious risks. Additionally, the label will now advise doctors that Xeljanz should only be used to treat ulcerative colitis in patients for whom other treatments have not been effective, or who experience severe side effects with other medicines.
An increased risk of blood clots was observed in patients taking 10mg of Xeljanz twice daily for the treatment of rheumatoid arthritis (RA). A lower dosage of Xeljanz is also approved to treat rheumatoid arthritis and psoriatic arthritis. However, the 10mg twice-daily dosage is only approved for ulcerative colitis for initial treatment and for long-term use in limited situations. Even though the risk of blood clots was observed in RA patients taking the higher doses, ulcerative colitis patients taking that dose of Xeljanz may also be at an increased risk of clots.
The FDA advises patients prescribed 10mg of Xeljanz twice daily to talk to their health care professionals if they have a history of blood clots or heart problems, and to stop taking Xeljanz and seek emergency medical attention right away if they start experiencing unusual symptoms that may indicate a blood clot, such as:
- Sudden shortness of breath;
- Chest pain that worsens with breathing;
- Swelling of leg or arm;
- Leg pain or tenderness, or red or discolored skin in the painful or swollen leg or arm.
It should be noted that patients should not stop taking Xeljanz without first talking to their health care professional.
Source: FDA Drug Safety Communication
$7.7 Million Hip Implant Verdict In Zimmer Damages Retrial
A California state jury has awarded $7.68 million to Gary Kline, who had been required to undergo two hip-replacement operations in 15 months after receiving a Zimmer Inc. implant. As previously reported, there had been a prior trial resulting in a $9.2 million jury award. That verdict had been thrown out over statements by the Plaintiff’s lawyer to the jury.
Like other Durom Cup recipients, Kline alleged that Zimmer altered the product’s plasma coating without properly testing it, choosing instead to rush the implant to market. The Durom Cup is designed to allow patients’ bodies to grow into the implant, but the altered coating allegedly resists bone growth.
The jury in the retrial found Zimmer liable for $4 million in future noneconomic loss, $3.6 million in past noneconomic loss, and more than $80,000 in medical expenses.
Kline is represented by Gary M. Paul and Gibbs Henderson of Waters Kraus & Paul. The case is Gary Kline v. Zimmer Holdings Inc., (case no. BC444834) in California Superior Court for Los Angeles County.
AN UPDATE ON SECURITIES, INSURANCE AND FINANCE LITIGATION
Securities Class Action Filings Poised To Break 2017 Record
According to Cornerstone Research’s Midyear Assessment, 126 securities class action “Core Filings” were filed in the first half of 2019, which is one short of the highest semiannual total ever, reached in 2017, and well above the 10-year semiannual average of 92. So-called core filings are primarily fraud allegations, i.e, those claims that exclude actions relating to mergers and acquisitions. The number of these actions filed has remained well above the 10-year average since the 2017 record-breaking year, in which 209 were filed. The second half of 2017 was below the average over the last five years, so there’s a good possibility that 2019 sees the most securities fraud class actions filed, ever.
Not only are filings up, but the market losses alleged are far greater than in years past. For the first half of 2019, the “disclosure dollar loss” totaled $180 billion. Cornerstone’s disclosure dollar loss figure combines, for all corporate Defendants sued during a period of time, the total of dollar value change in market capitalization each company from close of the trading day before to close of the trading day after the information regarding the fraud is publicly disclosed. This figure is useful to evaluate the impact that disclosure of the information about the fraud had on the value of company, but does not necessarily indicate the damage to investors, because many factors affect securities prices. This is the highest semiannual total ever, and almost triple the 10-year average. Much of this increase was driven by a handful large filings. Eleven actions were filed with a disclosure dollar loss of more than $3 billion, which, combined, accounted for 76% of the $180 billion total.
When a publicly traded company commits fraud that violates securities laws, the drop in the price of that security can harm hundreds of thousands, sometimes millions, of investors who purchased shares. In the Enron case alone, about 1.5 million investors who lost money joined in the class.
When great numbers of investors lose money due to corporate fraud, the best, and sometimes only, recourse for recovery is through filing a securities fraud class action against the company. Any investor who bought or sold a company’s publicly traded securities, usually stocks or corporate bonds, during a certain period of time called the “class period” can be a part of the class. The class period usually spans the time from when the fraud began to when it was disclosed.
The ability to bring a securities fraud class action is a vital tool to protect ordinary American investors. Institutional investors, like pension funds and hedge funds, and wealthy individuals may have sufficient losses to make a private action worthwhile, but the vast majority of Americans who may only have a handful of shares in these companies almost never have a loss significant enough to make going to court worth it. Without the class action, any recovery these ordinary investors might want to pursue would be prohibitively expensive, which would deny access to justice to millions.
Beasley Allen has an experienced group of lawyers dedicated to handling consumer fraud cases, with extensive involvement in class action practice. Our lawyers are currently investigating several potential securities fraud cases involving publicly traded companies. If you need more information, or have comments, contact James Eubank, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected]. James, who worked for years as a securities regulator with the Alabama Securities Commission, is leading the team on securities fraud investigations.
Wells Fargo’s $394 Million MDL Settlement Is Approved
A California federal judge has granted preliminary approval of the $393.5 million settlement in multidistrict litigation (MDL) accusing Wells Fargo and National General Insurance of adding unneeded auto insurance to car loan bills. However, the court had concerns over the potential $36 million in borrowers’ attorney fees the deal provides for. U.S. District Judge Andrew J. Guilford said during a hearing that his questions over the attorney fees arose particularly from an objection raised by Arizona Attorney General Mark Brnovich, who called the fees excessive. In an amicus brief filed with the court, Brnovich argued that the majority of the settlement amount was the result of government-ordered restitution payments, and not from the efforts of the borrowers’ counsel.
The judge noted the Consumer Financial Protection Bureau (CFPB), Securities and Exchange Commission (SEC) and other government agencies had signed off on the proposed settlement. The borrowers claim they took out auto loans from Wells Fargo and were charged for unwanted collateral protection insurance (CPI) for which National General served as the underwriter, between 2005 and 2016.
As part of the settlement, Wells Fargo has agreed to pay $386 million and National General will pay $7.5 million. The settlement also requires the companies to pay up to $36 million in attorney fees for the borrower class and up to $500,000 in attorney expenses. In April 2018, Wells Fargo agreed to pay $1 billion to the CFPB and the Office of the Comptroller of the Currency over claims that included the same purported billing of hundreds of thousands of auto loan customers for insurance they didn’t need.
Judge Guilford’s order also certified the proposed class for settlement purposes any Wells Fargo Dealer Services customers who had a CPI policy placed on their accounts between Oct. 15, 2005, and Sept. 20, 2016, and Wells Fargo Auto Finance customers who had a CPI policy placed on their accounts between Feb. 2, 2006, and Sept. 1, 2011.
The borrowers are represented by Roland Tellis and David B. Fernandes Jr. of Baron & Budd PC; Roman M. Silberfeld, David Martinez, Kellie Lerner, Benjamin D. Steinberg and Aaron M. Sheanin of Robins Kaplan LLP; and David S. Casey Jr. and Gayle M. Blatt of Casey Gerry Schenk Francavilla Blatt & Penfiled LLP. Arizona is represented by Deputy Solicitor General Drew C. Ensign. The suit is In re: Wells Fargo Collateral Protection Insurance Litigation, (case number 8:17-ml-02797) in the U.S. District Court for the Central District of California.
EMPLOYMENT AND FLSA LITIGATION
NLRB Says Employers Can Revise Mandatory Arbitration Agreements After Being Sued
On Aug. 14, the National Labor Relations Board (NLRB) ruled that employers can prevent their workers from opting into a class or collective action lawsuit by updating their mandatory arbitration agreements after being sued. Further, the NLRB ruled that employers may terminate employees who refuse to sign a revised agreement. The controversial ruling comes two years after the Supreme Court upheld mandatory arbitration agreements with class actions waivers in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018).
In Epic Systems v. Lewis, the Supreme Court ruled that employers can force their workers to sign mandatory arbitration agreements that include class actions waivers, preventing employees from seeking a collective remedy to a company-wide problem. In deciding Epic Systems, the Court looked to Section 7 of the National Labor Relations Act (NLRA) which gives employees a right to engage in concerted activities for the purpose of “collective bargaining or other mutual aid or protection.”
The High Court concluded that Section 7 contains no language from which the Court can infer that Congress intended to confer a right to pursue class or collection actions to employees. The Court further opined that Section 7 does not expressly or implicitly contradict the Federal Arbitration Act. As such, mandatory arbitration agreements with class actions waivers do not violate Section 7 of the NLRA.
In its recent ruling, the NLRB expands the Supreme Court’s decision in Epic Systems, stating “because opting into a collective action is merely a procedural step required in order to participate as a Plaintiff in a collective action, it follows that an arbitration agreement that prohibits employees from opting in to a collective action does not restrict the exercise of Section 7 rights and, accordingly, does not violate the act.” The NLRB noted that this is an issue of first impression for the board since the Supreme Court’s ruling in Epic Systems.
Clearly, the NLRB’s ruling is the latest attack on the right of employees to pursue legal remedies in the court system. I do not believe working men and women in this country agree with what the NLRB has done to them in this ruling. The ruling is totally against their best interest.
If you feel your employer has discriminated against you, contact Leon Hampton, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected]. Leon handles employment litigation for the firm.
PREMISES LIABILITY UPDATE
Plastic Grease Trap Lids Lead to Another Child’s Death
Another child was lost in a preventable tragedy this month. Three-year-old Bryce Raynor passed away after falling into an unsecured grease trap with a plastic lid at Tim Horton’s restaurant in Rochester, New York. This tragic accident is prompting lawmakers in New York to propose new regulations regarding the safety of grease traps. These proposed safety regulations include warning signs, annual grease trap inspections, and required metal locks on the covers. New York is not alone with its inadequate grease trap protections.
A grease trap is a system used by restaurants and other businesses to remove grease and oils from the wastewater disposal system. Some outside grease traps include a large pit with a lid that is above-ground. These lids, when made of cast iron and placed on asphalt, pose a minor threat compared to plastic lids that were used at the Tim Horton’s restaurant.
The dangers associated with these plastic grease trap lids are no surprise to Corrie and Tracy Andrews. The Andrews themselves lost a child in a similar accident with a grease trap that possessed a plastic lid. “Twenty-one months and one day later, another child died needlessly from a hazard that is so easily fixed,” Corrie Andrews said. “Plastic lids should not be allowed, period. They have endangered the lives of many across the country. The sad part is it gets attention when a tragedy happens. When a life has been lost, it gets attention.”
In October 2017, the Andrews’ daughter Sadie Grace Andrews was playing in a grassy area outside of a Bruster’s Real Ice Cream in Auburn, Alabama, when she fell into the Bruster’s grease trap and drowned. Following this tragedy, Sadie Grace’s parents fought for Alabama to have new safety regulations for grease traps to prevent other families from enduring the pain of the loss of a child.
The Sadie Grace Andrews Law was passed by the Alabama legislature and signed into law by Governor Kay Ivey in April of 2018. The law went into effect on June 1, 2018. This Alabama law requires that all grease trap covers must be sturdy enough to withstand loads and have a locking mechanism. Despite the State of Alabama making these changes, other states have not increased safety rules regarding grease traps and their lids. “It’s absolutely ridiculous and insane to me, with all the media coverage that Sadie’s passing incurred, that there are still plastic lids on grease traps,” Mrs. Andrews said. “We need to insure that this kind of accident and tragedy would never occur again.”
These two incidents are not as rare as the uninformed public might think. In March of 2018, a 5-year-old girl was rescued from a grease trap in Tulsa, Oklahoma. How many children will continue to be lost due to this lurking yet foreseeable danger? The Andrews want to extend the protections found in the Sadie Grace Andrews Law to other states to prevent deaths of children like Sadie Grace and Bryce. “What makes the mama bear in me come out is it’s the exact same thing that happened to my daughter,” Corrie Andrews said. “After what we tried to accomplish, so that the rest of the country would not have to go through this tragedy, there’s yet another mom who is experiencing shock, gut-wrenching heartache, and a nightmare that she is going to have to live with the rest of her life.”
Beasley Allen represents the Andrews family. Cole Portis, lead attorney, says the most common lid found in Alabama is now a cast-iron lid. He believes New York needs to jump on board. “I’m not surprised. This has occurred numerous times in our country,” Cole says. “It’s just tragic for families, it’s tragic for communities, and it’s senseless. It doesn’t have to happen at all.”
Gun Violence Continues To Explode As More Innocent People Die From Shootings
During the last month, we have all been witness to a common theme – a person filled with hate or anger, armed to the teeth with weapons and ammunition, descending upon innocent people to take as many lives as possible. These mass killings are happening all over the country, and they are taking countless unsuspecting lives – including children. The time for thoughts and prayers is far past, and the time for action is long overdue. In just the past two years, we have seen the following scenarios play out:
- August 10, 2019: A mass shooting occurring at a San Francisco intersection left four people wounded.
- August 4, 2019: 10 people were killed and 27 more were wounded when a man opened fire on a popular bar location in Dayton, Ohio.
- August 3, 2019: 22 people were murdered and another 24 severely injured when a gunman opened fire on a packed Walmart, which coincided with back-to-school shopping. Children and parents were butchered in this attack.
- July 28, 2019: Four people were killed and another 15 were injured when a gunman opened fire on people attending the Gilroy Garlic Festival. A 6-year-old boy was one of the people killed.
- May 31, 2019: 13 people were killed and five others were wounded when a gunman opened fire at a municipal building in Virginia Beach, Virginia.
- May 7, 2019: Two shooters opened fire on a school at STEM School Highlands Ranch in Colorado, killing one student and injuring eight more.
- April 30, 2019: On the last day of classes at the University of North Carolina in Charlotte, a student gunman opened fire on classmates and killed two while injuring another six.
- April 27, 2019: In Poway California, a shooter killed one and injured at least three when he opened fire on the Chabad Poway synagogue.
- February 15, 2019: A man opened fire on people at the Henry Pratt Company plant Aurora, Illinois, and killed five while injuring another six people.
- November 19, 2018: A gunman killed four at the Mercy Hospital in Chicago, Illinois.
- November 11, 2018: A man entered a bar and shot three people in Robbins, Illinois.
- November 7, 2018: A man entered a bar hosting a student line-dancing event and killed 12 people, including a police officer, in Thousand Oaks, California. Scores more were injured.
- November 2, 2018: A man entered a yoga studio and killed two women while injuring five others.
- October 27, 2018: 11 people died and another six were injured when a man sprayed a Pittsburgh, Pennsylvania, synagogue with bullets.
- September 20, 2018: An employee at the Rite Aid Distribution facility in Aberdeen, Maryland, killed three people and wounded others at the plant.
- September 6, 2018: A gunman entered a loading dock at the Fifth Third Center skyscraper and killed three people while injuring two others.
- August 26, 2018: A gunman killed two and wounded 11 more at a video game competition. The shooter was purportedly a participant in the competition and had been eliminated earlier that day.
- June 28, 2018: Five people died and two others were injured when a gunman entered the Capital Gazette newspaper in Annapolis, Maryland.
- June 17, 2018: 17 people were wounded at an Art All Night festival in Trenton, New Jersey.
- May 30-June 4, 2018: A man killed six on a multi-day rampage in Scottsdale, Arizona.
- May 18, 2018: 10 people were killed and 14 others were wounded at the Sante Fe High School in Sante Fe, Texas. Explosive devices were also found.
- April 22, 2018: A gunman killed four and injured two others in a Nashville, Tennessee, Waffle House.
- April 3, 2018: A woman opened fire on an outdoor patio at YouTube Headquarters in San Bruno, California, injuring three people before she committed suicide.
- March 9, 2018: A man killed three staff members (including the unborn child of one of the staff members) at a Veterans Home in California.
- February 14, 2018: A former student of the Stoneman Douglas High School in Parkland, Florida, entered the school and killed 17 people and wounded 17 others.
- January 28, 2018: A man killed four people and wounded another at a Melcroft, Pennsylvania, gas station before committing suicide.
- January 23, 2018: A student killed two students and injured another 16 at the Marshall County High School in Benton, Kentucky.
While this list for 2018 and 2019 is very long and distressing, 2016 and 2017 were every bit as bad. For example, consider the Las Vegas (58 killed and 422 injured) shooting; the Sutherland Springs church massacre (26 dead, 20 injured); Little Rock (28 injured); the Cincinnati (two killed, 16 injured) incident; the Fort Lauderdale (five killed, six injured) shooting; the Dallas (five killed, 11 injured) murders; and the Orlando (49 killed, 53 injured) mass shooting, and there were others. These four years do not even include the San Bernardino shooting that took 15 lives and injured 22 others in 2015.
How many of you remember all of the mass murders that we have included in this section of the Report? Maybe you are like me and forgot far more of these incidents than you remember. I looked even further back into the shootings in 2015 and 2014 and could not believe how many mass shootings have taken place in the last four years. In fact, there are so many mass shootings happening that I don’t have near enough room to list them all. Even worse is that these shootings have all happened since the horrific 2012 Sandy Hook mass shooting, which tragically resulted in the murder of 20 children and six adults at Sandy Hook Elementary School.
Unfortunately, while it is clear that we have a major gun violence and mental illness problem in this country, our elected politicians have done nothing to try and fix either problem. How many more innocent people have to die on American soil before we start treating this like we would if one foreign terrorist bombed a building and killed 20 people?
As we have discussed in past issues of the Report, our firm is actively involved in numerous serious injury and death cases where residents or guests were tragically victimized by preventable criminal conduct. The firm currently has multiple cases in suit, including a mass shooting inside a popular Atlanta nightclub that left two people dead and two injured, a tragic death case at an Athens apartment complex, and a violent assault of a guest at a fast food establishment by an employee. In addition, the firm is investigating numerous other negligent security cases.
Parker Miller, a lawyer in our Atlanta office, is leading Beasley Allen’s Premises Liability and Negligent Security Litigation Team. He had this to say about these cases:
Negligent security cases are an offshoot of premises liability law, where a premises owner or occupier knows or should know that the property they own or operate is dangerous to a resident or guest. All too often, when the case comes to us, we learn after the fact that the owner or occupier knew for weeks, months, or even years that the property was dangerous or was a breeding ground for crime while the residents or guests rarely ever know this. All they have to do is use basic security measures and maintain their property. It has been proven that simply using an active security guard, in tandem with active management, proper lighting, cameras, fencing, a working gate, maintained grounds and a neighborhood watch program, are very effective at preventing almost all crime.
Unfortunately, even in this time of economic prosperity and low taxes, we see them cutting corners on security, or failing to use basic security measures at all, to save a little more money. Criminals can figure out weaknesses in a property and prey on unsuspecting guests. We see this not only in apartment shooting cases, where poor security can lead to horrible victimization, but also in mass shooting cases, where a Las Vegas hotel can allow a man to bring numerous weapons and ammunition inside without anyone saying a word. It is no wonder that we continue to see more and more preventable cases where mothers, fathers and children are tragically murdered or seriously injure
In this time of constant gun violence and mass murders, proper security is more important now than ever. If you have any questions about negligent security cases or have a potential claim, contact Parker Miller at 800-898-2034 or by email at [email protected].
Victims And Families Reach Settlements In Florida Bridge Collapse
Settlements have been reached relating to the collapse in 2018 of the Florida International University pedestrian bridge. Six people were killed and at least eight more injured. Victims and their survivors have reached settlements with all but one of the companies implicated in the disaster. This comes a year and a half after the collapse of the bridge.
Among those involved in the settlement are FIGG, the Tallahassee-based engineering firm that designed the 950-ton, 320-foot span, and Munilla Construction Management (MCM), the general contractor headquartered in Miami. In total, 23 subcontractors are in the settlement that requires them to pay into a fund set aside for those affected. At press time, the lone holdout was Louis Berger, an engineering consulting firm hired to double-check FIGG’s design and calculations.
The terms of each of the settlements are confidential. It should be noted that the funds agreed upon are in addition to a $42 million settlement between the victims and MCM’s insurers in April. While the recent settlement announcement was in civil court, it will be formalized in federal bankruptcy court as part of MCM’s ongoing debt restructuring.
Because of the nature of the bankruptcy proceeding, all parties involved in the settlements need Louis Berger on board before the money can be distributed. Louis Berger was cited as one of the principal companies at fault for the bridge collapse in a scathing report released by the federal Occupational Safety and Health Administration (OSHA).
While FIGG’s design was structurally flawed, OSHA found that Louis Berger compounded the issue when the lone Berger engineer assigned to the job conducted an inadequate review of an intermediate stage of the project. OSHA stated:
If Louis Berger had checked the design at Stage 3, it could have discovered structural deficiencies in the design, and this incident could have been prevented.
The National Transportation Safety Board is doing a separate investigation into the causes of the collapse. If the victims and Berger are unable to settle prior to trial, the findings of both investigations will likely factor into the trial of the case.
A hearing in the case was scheduled for Aug. 20. Parties, including Louis Berger, had an opportunity to register objections with the presiding judge. We did not have a report from the hearing at press time.
Source: Miami Herald
Columbia Gas To Pay $143 Million To Settle Explosion Claims
Columbia Gas and its parent NiSource Inc. have agreed to pay $143 million to settle class action lawsuits by thousands of Massachusetts residents and business owners affected by natural gas explosions and resulting fires in September. We have written previously on this matter. The agreement, which is subject to court approval, comes after a multimonth mediation process in Essex County Superior Court. The payment is in addition to the $80 million settlement reached in May with three Merrimack Valley towns – Lawrence, Andover and North Andover – and part of the more than $1 billion the company has spent to remedy the disaster.
As previously reported, more than two dozen people were injured and about 8,600 households were forced to evacuate and relocate after a series of explosions and fires on Sept. 13 caused by overpressurized gas lines.
Pursuant to the recent settlement, residents will be able to file claims for the “displacement and disruption of their lives the catastrophe caused, and property damage not previously paid for by Columbia Gas.” Businesses will also be able to claim lost income and other damages.
The $143 million fund is separate from a claims process that Columbia Gas has managed since shortly after the incident. Once a judge gives preliminary approval to the settlement, a settlement claims administrator will take over the process.
The settlement class is represented by Frank Petosa of Morgan & Morgan, John Roddy of Bailey & Glasser, Elizabeth Graham of Grant & Eisenhofer, and Leo Boyle and Brad Henry of Meehan Boyle Black & Bogdanow.
Beasley Allen Settles Wrongful Death Case Against Ford In Dallas County, Alabama
Lawyers in Beasley Allen’s Personal Injury & Products Liability Section recently settled a wrongful death case relating to an industrial accident in Dallas County, Alabama. The case involved the death of a plant employee when a third-party contractor opened up a large water pipe during plant maintenance in an effort to dislodge a plug in the water pipe. The third-party maintenance contractor opened up the pipe and attempted to remove the plug without properly making sure that the attached hot water tank had been properly locked and tagged out. As a result of the maintenance contractor’s conduct, hundreds of gallons of acidic hot water was released from the hot water tank, severely burning the employee. He was airlifted to the UAB Burn Center where he died as a result of his injuries almost a month after the incident.
Suit was filed against the third-party maintenance company for failure to follow proper procedures in opening the plugged water pipe that was attached to a hot water tank. Additionally, it was discovered that the company that designed the portion of the plant where the injury occurred failed to include a shut-off valve between the hot water tank and the connected piping to prevent spillage of the hot water tank contents during maintenance.
The general contractor who had installed the hot water tank and the adjacent piping was also included in the suit for breach of its contractual duty to ensure that this portion of the facility was installed in accordance with generally accepted safe engineering practices that would ensure the facility was safe for its intended use. The case was resolved after extensive discovery, including counsel for the Defendants deposing the Plaintiff’s experts.
Ben Baker and Cole Portis from Beasley Allen, along with Marquette Wolfe and William Pompey from Selma and John Gibbs from Demopolis, represented the Plaintiff in the case. The settlement amount is confidential.
What An Injured Employee Can Expect After A Work-Related Accident: The Good The Bad And The Ugly
Employees injured on the job are often entitled to workers’ compensation benefits. However, Beasley Allen clients rarely know what to expect or what they are entitled to under Alabama’s workers’ compensation laws. Each on-the-job injury is different and must be investigated thoroughly to determine what remedies are available. The typical benefits one can expect in a workers’ compensation case are lost wages while the employee recuperates from the injury, payment for all related medical treatment, mileage reimbursement for medical appointments, and a final lump sum payment for future impairment.
The details of these remedies can be found in the Workers’ Compensation Act; Alabama Code §25-5. As one would expect, the Act is somewhat wordy and often times hard to understand for lawyers, much less lay people. Because of that, an attempt to simplify the Act and associated benefits will be laid out. It is important to note that workers’ compensation remedies are entirely different from typical personal injury cases. The Alabama Workers’ Compensation Act is due to be updated as many of the remedy calculations and values are dated and wholly inadequate to compensate injured workers. Nonetheless, injured workers are stuck with the Act as currently written.
We will start with the good provisions of the Alabama Workers’ Compensation Act; medical benefits. After an on-the-job injury, an injured employee is entitled to full medical treatment for life related to that injury. This means the employer must pay for related medical treatment including all medical necessities. Medical necessities are not limited to just medical care, but also prescriptions, medical devices, wheelchairs, crutches, braces, etc.
The employer or workers’ compensation insurance carrier chooses the doctor the injured employee will see. However, if the employee feels they are not receiving adequate care, they may request a new doctor. The employer then must give the employee four doctors from which to choose a new physician. It is also important to note that a case management nurse will be assigned to the injured employee. The case manager will act as a conduit between the injured employee and the doctors. They will help the injured employee with scheduling appointments and getting prescriptions. However, it is important to keep in mind that the manager works for the insurance company and will typically attend all doctors’ appointments so they can report back to the company.
Finally, the employer must pay mileage reimbursement for all travel to doctors and therapy appointments. Although injured workers sometimes take issue with the level of care they receive, the medical benefits are typically paid for without question and the injured employee receives adequate treatment. The same cannot be said for the other provisions of the Act.
While an injured employee is out of work treating the injury, the employer is required to pay the employee. However, there is a catch – a big bad catch at that. The employer is not required to pay the full amount the injured employee was making at the time of the accident. Instead, the employer is required to pay two-thirds of the employees’ average weekly wage. This decrease in pay will put a real strain on the injured employee and the employee’s family. Evan Allen, who handles workplace litigation for our firm, says this provision of the Alabama Workers’ Compensation Act is “deplorable.” Even points out that an injured worker should not be forced to take a pay cut. The employee’s bills and expenses certainly will not slow down simply because he or she is injured. All too often workers are living paycheck to paycheck as it is. Throw in a devastating work injury and a cut in pay and the injured employee is placed in a helpless situation.
At some point in the injured employee’s treatment, the treating physician will deem that the employee has reached maximum medical improvement (MMI). Maximum medical improvement is essentially the doctor declaring that the patient has plateaued, and they will not see major improvement in the condition. At that time, it is typical for the treating physician to order the patient to undergo a functional capacity exam (FCE).
A functional capacity exam is typically performed by a rehab therapist. The rehab therapist will run a series of tests on the injured employee, specifically targeting the injured area. The therapist will then evaluate the injured employee’s use or function of the injured body part and compare it to the average person without such an injury.
From there, the therapist will often assign an impairment rating to both the injured body part, and to the body as a whole. The treating physician will review and sign off on the therapist’s assessments, assuming they deem them appropriate. The therapist may also recommend whether the injured employee needs to be placed on medium or light duty if their job requires more strenuous tasks.
The impairment ratings are important for a number of reasons. First, the impairment rating is one factor that goes into a formula to assess future damages. The Alabama Workers’ Compensation Act lays out a formula to determine permanent injury payments. That Act lays out formulas that consider the impairment ratings given to both the body part and the body as a whole. The given impairment ratings are associated with a number of weeks’ pay the employee may be entitled to. Evan says these figures are entirely too low. This fact is glaringly obvious if the employee has catastrophic injuries.
The Act seemingly contemplates that the injured employee will remain gainfully employed. However, all too often the injured employee is fired at some point after the injury. With Alabama being a right-to-work state, the employer can fire the employee with little fear of backlash. Employees with severe, permanent injuries have a hard time finding replacement work.
Alabama workers’ compensation has many flaws. It is time that the Act is revised, giving injured workers the adequate care and support to overcome those injuries. The Alabama legislature should do a total revision of the Act and make it fair and equitable to all concerned. At this juncture, the Act is not “employee friendly.” If you have any questions, contact Evan Allen, who handles workplace litigation for the firm, at 800-989-2034 or by email at [email protected].
ISSUES INVOLVING TRANSPORTATION LITIGATION
Truck Driver Awarded $2.83 Million For Georgia Wreck Involving Charter Communications
Beasley Allen lawyers, on behalf of Bandon Jackson, obtained a $2.83 million verdict against Charter Communications on Aug. 9. A jury in Gwinnett County, Georgia, found that Charter failed to implement company policies regarding employee training and vehicle maintenance and was at fault. The failures led to an avoidable crash that left Mr. Jackson severely injured and unable to return to his job as a truck driver.
This case reveals a complete failure of a company’s safety policies. Charter paid lip service to safety, but didn’t actually apply those policies or pass along crucial information to its employees. This verdict sends a message to companies that they must act responsibly to ensure the safety of their employees as well as to ensure the public is safe on the roadways they share.
In June 2015, Mr. Jackson was living his dream of driving a tractor-trailer. As he was rounding a curve on I-75 in Dalton, Georgia, Jackson unexpectedly encountered a ladder in the roadway. He ran over the ladder, which caused him to immediately lose control of his vehicle and crash. The impact rolled Jackson’s truck. He broke his hip in the accident, forcing him to endure several surgical procedures. For approximately a year after the crash, Jackson could not walk and in addition to facing a lifetime of pain, he will never be able to return to his job as a truck driver.
The ladder had fallen off a Charter Communications van. An investigation by Beasley Allen lawyers revealed that, despite its own published safety policies, Charter failed to properly train this driver in how to secure the ladder to the truck. The Charter employee testified he had received no training at all after driving the company van for a year. The charter van he drove had not been inspected for the last four months for problems with the ladder rack, despite monthly checks being required. It was proved at trial that the ladder rack was in such disrepair it was incapable of holding the ladder safely. Our client, Mr. Jackson, was represented by lawyers Chris Glover, Rob Register and Dan Philyaw, all lawyers in our Atlanta office.
The case was filed in the State Court of Gwinnett County, Georgia, case number 17C-3714-4.
Good Clients Are A Privilege To Represent
Cory Harris was on his way home from work when a drunk driver lost control and crossed the median of the four-lane highway, crashing into Cory’s pickup truck. As a result, Cory’s truck rolled over. Cory was wearing his seatbelt and he avoided a major head injury. He sustained a cracked vertebra and fractures of four bones in one of his feet. Cory spent three days in the hospital, but was treated conservatively and released. Although the fractures healed without surgery, Cory continued to have pain in his foot and back.
Greg Allen filed suit against the drunk driver and his employer, Mountz, Inc., a California company. The driver, James Nettle, was operating the car without a valid driver’s license. According to the forensic science experts based on a retrograde analysis, Nettle had consumed the equivalent of 11 beers within five hours before the accident. He told the investigating officer that he received a text message from his employer and that is what distracted him causing him to lose control of his car.
Greg developed evidence that someone was traveling in a separate car with Nettle and removed a backpack from the scene. Witnesses at the scene tried unsuccessfully to stop the female companion from leaving the scene with the backpack. Nettle was charged criminally and was never deposed due to his assertions of the 5th amendment privilege. It was discovered that Nettle was not a licensed driver at the time of the crash because of prior DUIs. His license had previously been revoked twice for drinking and driving.
During pretrial discovery, Greg discovered that the company that hired Nettle (Mountz, Inc.) had an internal company policy to check the driving history of its on-the-road salesmen every six months. The company failed to carry out its policy, which allowed Nettle to be where he was on the day of the crash. The insurance carrier for Nettle and Mountz, Inc. contributed to the settlement.
Cory’s doctor said that he will need an outpatient fusion in his foot to stop his pain. This case was settled for $1 million. Although the long-term damages were not great, the liability was clear. Greg Allen was the lead lawyer in the case. If you need more information, contact Greg at 800-898-2034 or by email at [email protected].
TOXIC TORT LITIGATION CONCERNS
Hawaii’s Pearl Harbor Shipyard Regularly Exposed Naval Veterans To Asbestos
Hawaii’s shipyard, located within the Pearl Harbor Naval Station complex, contains 114 buildings, four dry docks and still provides full-service maintenance and technical support to the U.S. Navy in the Pacific. Hawaii’s location between the continental United States and Japan made it popular for certain industries that involved asbestos. Workers at the shipyard were exposed to asbestos in a variety of ways during their work at the facility.
Workers handled asbestos insulation while they repaired overhauled ships, destroyers, aircraft carriers, submarines and other types of vessels. While ships were constructed, the workers would cut, shape and mix sawed asbestos and insulation products and the ship’s piping and machinery were insulated with a variety of pads, cloth, gaskets, and packing.
The ships required a great deal of repair and maintenance and that process would disturb and generate a large amount of asbestos dust. Certain crews would overhaul portions of a ship while it was dry docked, working to remove the various pieces of equipment to the shipyard shops for repair and returning those pieces of equipment to reinstall on the ship. This process entailed damaged asbestos insulation and gasket removal that released asbestos dust. This same process released asbestos upon reinstallation.
Asbestos was not only aboard ships stationed or repaired at Pearl Harbor, but it was also found in the buildings and equipment in the shipyard itself. Workers in the shipyard, such as welders and maintenance workers, handled asbestos-containing products directly and during repair of their equipment.
Multiple buildings in the facility were built with asbestos products. As a result, the U.S. Environmental Protection Agency (EPA) designated the U.S. Navy’s Pearl Harbor Complex as a superfund site due to the amount of toxic chemicals present, including asbestos. The complex is undergoing current abatement.
For more information on asbestos exposure in Hawaii or if you have any questions concerning asbestos related diseases, contact Beasley Allen lead mesothelioma attorney Sharon Zinns, who is in our Atlanta office at 800-898-2034 or by email at [email protected].
Paper Mill Workers Placed At High Risk For Asbestos Exposure
Paper mills in the United States supply thousands of jobs. The process of manufacturing paper requires paper mill workers to prepare, pulp, bleach and refine the material, form the paper sheets and begin the process of coating and drying the paper sheets before cutting into actual paper.
Due to the multi-step process, paper mill workers range in specialty. Workers could operate machines that cut paper, trucks that transport raw materials such as logs to the mill, manage paper goods machines, printing machines and management of the line process. Paper mill equipment and materials consisted of asbestos-containing materials such as drying machines, talc and sandpaper backing.
While the workers actively operated the machines, they were exposed to asbestos. Not only did the machines expose the employees to asbestos, but a variety of construction materials used to build paper mills, including industrial adhesives, insulation, packing materials, ceiling and floor tiles, cement and roofing contained asbestos.
Asbestos was used as insulation, in building materials and in paper mill machinery in mills that were built between the 1930s and 1970s. A large number of employees were exposed to asbestos in paper mills through regular equipment maintenance. The pulping process involved a high level of heat and therefore asbestos, often utilized for its heat resistant properties, was used to insulate the pipes and vessels for the recovery and boiler operations. Maintenance and repairs on this equipment placed these employees at a high risk of asbestos exposure.
The paper manufacturing process involved talc, certain types which have been known to contain asbestos, as a paper additive to the bleaching and refining process. Drying workers operated dryer machines that involved dryer felts to heat the pulp during the processing stage. These dryers involved dryer felts that when replaced, released asbestos into the air.
A former Crown Zellerbach Paper Mill employee, Henry Barabin, was diagnosed with mesothelioma after working at the mill from 1968 until 2001. He was awarded a $10.2 million judgment against Scapa Dryer Fabrics, Inc. and AstenJohnson Inc. in 2006. Mr. Barabin worked around dryer felts, which were supplied by the Defendants. Three other employees working as millwrights and machine operators secured verdicts against both Defendants finding the companies knowingly exposed them to asbestos.
For more information on paper mill asbestos exposure, or if you have any questions concerning asbestos-related diseases, contact Beasley Allen’s team of mesothelioma lawyers. The lead mesothelioma attorney, Sharon Zinns, can be reached at [email protected]. Ashtyne Traylor, another Beasley Allen lawyer handling these cases, can be reached at Ashtyne.Traylo[email protected]. Each can be reached by phone at 800-898-2034.
An Update On The Roundup Litigation
Beasley Allen Roundup Case Set For Trial In Montgomery County Alabama
Beasley Allen is honored to represent a Montgomery County, Alabama, resident who developed non-Hodgkin’s lymphoma as a result of years of Roundup exposure, both commercially throughout his career and in personal home use. The lawsuit is against Monsanto, which has faced consecutive Plaintiff verdicts in the first three national Roundup trials. This case, being handled by John Tomlinson and Rhon Jones, is set for trial in October 2020.
This is Beasley Allen’s second Roundup trial set for 2020. As previously reported, the first trial will take place in Dallas County in March. In that case Beasley Allen is representing a local Plaintiff whose non-Hodgkin lymphoma is linked to years of Roundup exposure.
For nearly 40 years, farmers across the world have used Roundup without knowledge of the dangers posed by its use. Monsanto, the maker of Roundup, has failed to place a warning label on its product informing the consumer that the product contains carcinogenic properties, in particular the chemical glyphosate. In 2015, the World Health Organization found that glyphosate, the principal “weedkiller” component of Roundup, was carcinogenic to humans and could lead to the development of non-Hodgkin’s lymphoma. Monsanto has continued to assure the public that Roundup is harmless and poses no danger to its users. The company is currently facing more than 10,000 similar lawsuits.
Lawsuit Filed Against Home Depot Over Roundup Sales
A proposed class action lawsuit was filed last month against Home Depot in a California federal court over sales of Monsanto’s popular weedkiller Roundup, saying the retail giant fails to warn of its cancer risks. Plaintiff James Weeks said that the warning on Roundup’s labeling gives the false impression that its only risk is eye irritation when its active ingredient glyphosate is known to have links to cancer. It’s alleged in the suit:
Home Depot is provided with a safety data sheet by Roundup’s manufacturer, which states that people can be exposed to glyphosate through inhalation or skin contact. Despite its knowledge of the SDS, defendant does not warn consumers they may be exposed to glyphosate through inhalation and skin contact. Defendant further omits proper use instructions, e.g. advising consumers to use a gas mask respirator when using Roundup.
Reasonable consumers such as Weeks wouldn’t have bought Roundup had they known of its cancer risks or if Home Depot had provided a warning on how to mitigate those risks. Home Depot violated California’s Consumer Legal Remedies Act by failing to disclose its “probable carcinogenic nature.”
The International Agency for Research on Cancer (IARC) in 2015 classified glyphosate as “probably carcinogenic” to humans and that non-Hodgkin lymphoma was the most associated with exposure to the chemical.
The IARC also found that glyphosate caused DNA and chromosomal damage in human cells.
The IARC report has been an issue in recent trials over Roundup, which Bayer AG acquired last year. There have been three cases that have gone to trial out of 13,400 pending that allege Roundup causes cancer, and all have resulted in huge verdicts for the Plaintiffs.
Plaintiff Weeks is represented by Gillian L. Wade, Sara D. Avila and Marc A. Castaneda of Milstein Jackson Fairchild & Wade LLP. The case is Weeks et al. v. Home Depot USA Inc., (case number 2:19-cv-06780) in the U.S. District Court for the Central District of California.
Is Costco’s Roundup Ban A Sign Of Times To Come?
Costco has become the first major retailer to stop carrying Monsanto’s blockbuster herbicide Roundup. The international wholesaler’s decision to suspend Roundup sales is not only one of the most significant blows dealt to Monsanto and its parent company Bayer outside the courtroom so far, it could also indicate a larger trend happening around the world.
Costco is one of the largest retailers in the world, second only to Walmart. The company is known for its ability to stay on top of consumer trends and for its prowess in vetting merchandise for quality and safety. So it may be no surprise that Costco is distancing itself from Roundup, given the outcome of the first Monsanto trials in the U.S.
None of the lawsuits have included as Defendants retailers that sold Roundup to consumers. But that could change very soon if stores knowingly continue to market and sell a product that is widely regarded as toxic to human health. Walmart, Home Depot, Lowe’s, Target, and others might consider following Costco’s lead if they hope to avoid litigation in the future.
Although the U.S. has not banned Roundup on the federal level, cities in several states have taken measures to restrict or ban its use. In April 2019, the U.S. Department of Health & Human Services (DHHS)’s Agency for Toxic Substances and Disease Registry (ATSDR) released the results of another highly anticipated Roundup study. The 257-page Draft Toxicological Profile for Glyphosate assessed rodent studies and human epidemiologic research, concluding that glyphosate exposure increased the risk of developing non-Hodgkin’s lymphoma (NHL) and multiple myeloma. Bayer continues to deny assertions that Roundup poses any risks, despite the findings of about 1,000 scientific studies indicating a link between glyphosate and non-Hodgkin’s lymphoma and other serious diseases.
Roundup Litigation Team
Beasley Allen lawyers are currently representing hundreds of clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Our Roundup Litigation Team would welcome the opportunity to speak with you regarding these cases. For more information, contact one of the members of the Roundup Litigation Team: John Tomlinson (who heads up the team), Michael Dunphy, Danielle Ingram or Rhon Jones, all lawyers in our Toxic Torts Section, at 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected].
UPDATE ON NURSING HOME LITIGATION
The Beasley Allen Nursing Home Litigation Team
Alyssa Baskam, who has joined Beasley Allen in the Atlanta office, will be handling nursing home cases for the firm. She will head the firm’s Nursing Home Litigation Team. Currently, members of the team, in addition to Alyssa, are Susan Anderson and Leah Robbins. In order to handle nursing home litigation, lawyers and support staff must have specific experience in this type case.
Alyssa says she became a trial lawyer so she could help people get through unimaginable hardship. She is dedicated to representing the elderly and infirm who can’t fight back when they suffer at the hands of nursing care and other inpatient facilities. If you have a case involving abuse or neglect at a nursing home or other inpatient facility, Alyssa would like to talk with you about working together on it. You can contact Alyssa, or one of the team members, at 800-898-2034 or by email at [email protected], [email protected] or [email protected].
An Update On Class Action Litigation
Beasley Allen Files ERISA Class Action On Behalf Of DuPont Retirees
Beasley Allen lawyers have has filed a class action lawsuit in U.S. District Court for the Northern District of California against Corteva, Inc., Dow, Inc. (Dow), DuPont De Nemours, Inc. (DuPont), and others, alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA) that have placed U.S. DuPont retirees’ benefits in jeopardy.
The lawsuit focuses on the disposition of the U.S. DuPont Pension and Retirement Plan after a series of corporate transactions beginning with the merger of E.I. du Pont de Nemours and Company (Historical DuPont) and the Dow Chemical Company (Historical Dow) to form DowDuPont; and ending in the split of the company into Corteva, DuPont, and Dow. It should be noted that DowDuPont, when formed, was the largest chemical company on Earth by volume of sales.
From the first announcement of the merger in December 2015, press releases and public filings with the U.S. Securities and Exchange Commission (SEC) reveal that the purpose of the merger was to later split the two companies into three new companies in single market sectors. Historical Dow and Historical DuPont traditionally made chemicals, plastics, and other engineered products. But both had also added some agriscience business over the years, making everything from engineered crop seeds to chemical insecticides and herbicides.
The stated goal of the merger and separation was to take Historical Dow and Historical DuPont back to their original focus areas, and to separate both of their agriscience divisions into a single new company. The merger called for each historical company to continue as a subsidiary of DowDuPont until the split, and for each to retain responsibility for its own pension plans, which combined were valued at more than $51 billion.
In November 2018, DowDuPont announced that the new agriscience company, Corteva, would take on all liability for DuPont’s U.S. pension plan. The planned separations happened in May and June 2019 when Dow and Corteva, respectively, were spun off from DowDuPont. As planned, Corteva took the agriscience business and responsibility for the entire DuPont U.S. pension plan with it, even though most of the workers and retirees had never worked for any agriscience divisions of DuPont. Of the three companies left after the split of DowDuPont, Corteva is the weakest.
The benefits a company provides to pension participants and beneficiaries are paid out over many years during the life of a plan. Assuming certain interest rates, you can reduce the value of these future payments to today’s dollars. This “present value” of the plan’s obligations is counted as a liability on the company books.
At the end of 2017, Historical DuPont’s U.S. pension plan had more than $19 billion in obligations. That liability was underfunded by approximately $5.9 billion dollars according to public filings. So how could Historical DuPont transfer a $19 billion pension with a nearly $6 billion hole in it to a brand-new company with weaker performance?
The short answer is it can’t, and its attempt to do so is a fraud perpetrated against all the U.S. DuPont workers (and their families) who gave a lifetime of service to the company based in large part on that promise that the company would reward them with the retirement they earned.
ERISA provides rules for when a plan may be merged or consolidated with, or transferred to, another plan. Section 208 states that this cannot be done unless each participant in the plan would get just the same or greater benefit from the plan after the merger, consolidation, or transfer as they would before, if the plan were to terminate. Historical DuPont tried to get around this by not technically transferring the plan to anyone, but instead transferring the entire company.
After DowDuPont was formed and Corteva was created, the actual entity of Historical DuPont was transferred to become a subsidiary of Corteva, taking its pension with it. However, Historical DuPont is now a shell of its former self. Most of its business was stripped out from under it and kept in DowDuPont, which has now been renamed and is doing business as DuPont.
This stripping out of the business that funds the pension likely violates other provisions of ERISA, which mandate that the government and pensioners are entitled to notice when changes in the control group of a pension plan sponsor occur. This is necessary so a company cannot just transfer all its assets to another company and leave the empty shell with no money or income holding the pension. The whole transaction appears to be nothing more than an attempt to ditch poorer performing business sectors along with a massive pension liability, all at the expense of U.S. workers’ retirement security.
Again, the class action lawsuit, Thondukolam v. Corteva, Inc. (Case Number 3:19-cv-03857-SK), was filed by Dee Miles (who heads up our firm’s Consumer Fraud & Commercial Litigation Section) and James Eubank (a recent addition to the firm who has vast experience in securities litigation), along with Thomas Sinclair and Rebecca Gilliland from the Sinclair Law Firm, located in Birmingham, Alabama; Edward Stone from Edward Stone law, P.C., located in Greenwich, Connecticut; and our local counsel Elizabeth Hopkins from Kantor & Kantor located in Northridge, California. It’s an honor to be working with these experienced lawyers on such an important case for American workers.
As the case progresses, we will keep readers up to date on the efforts to hold these companies to the promises they made to their employees, by demanding that they maintain responsibility to fund the pension and fully fund the plan to pay the benefits due to the workers and their families. If you need additional information, contact James Eubank at 800-89802340 or by email at [email protected].
Recent Class Action Settlements
As has become the “norm” in the class action litigation, there have been a number of class action settlements recently. The following are some of the significant settlements in cases around the country.
$80 Million Settlement By MetLife Will End ERISA Class Action
Metropolitan Life Insurance Co. (MetLife) has agreed to pay $80 million to hundreds of thousands of beneficiaries who accused the company of violating the Employee Retirement Income Security Act (ERISA). This will end a dispute that goes back to 2014.
Named Plaintiffs Laura A. Owens and Joshua R. Smith were contesting MetLife’s practice of using so-called “Total Control Accounts” to pay life insurance proceeds to beneficiaries of deceased workers in employer provided benefit plans, which are governed by ERISA. The plans promised to pay the death benefit to the beneficiary in a single payment. Instead, MetLife, which was hired by multiple plans to administer these group life insurance policies, placed the payouts in Total Control Accounts and only paid portions of the funds to beneficiaries upon demand. While in the accounts, MetLife kept funds in their own general account. Beneficiaries were paid interest at rates as low as 0.5%. MetLife made far higher returns using the beneficiaries’ funds and kept the remaining profits.
ERISA imposes strict fiduciary responsibilities on people and companies who manage employee benefits. These responsibilities include a duty of loyalty to manage funds “for the exclusive purpose of providing benefits to participants and their beneficiaries.” ERISA also prohibits certain self-dealing transactions. MetLife’s actions violated its duty of loyalty and violated several of the prohibited transaction rules, the Plaintiffs claimed.
After five years of litigation MetLife has agreed to pay $75 million to one nationwide class, and an additional $5 million to another nationwide class, according to two proposed agreements filed in a Georgia federal court.
The class getting $75 million encompasses about 120,000 beneficiaries of ERISA-governed employee benefit plans insured by group life insurance policies for whom MetLife established a Total Control Account between April 2008 and December 2012, according to the agreement. The class getting $5 million had Total Control Accounts established for them between January 2013 and March 2019. Also included in that class are those individuals who held policies between April 2008 and December 2012 that included the policy certificate statements excluded from the first class. There are about 129,000 members in the second class.
The case is Owens v. Metropolitan Life Insurance Co., (case number 2:14-cv-00074) in the U.S. District Court for the Northern District of Georgia.
VW Settles Suspension Defect Class Action For $57 Million
Volkswagen Group of America Inc. will offer free tire rotations and reimbursement for previous rotations for certain vehicles as part of a $57 million settlement to end a proposed class action in a Florida federal court. It was claimed in the lawsuit that the company knowingly sold cars with defective suspensions. VW and the proposed class of car buyers have asked U.S. District Judge Robert N. Scola Jr. to give preliminary approval to the settlement, which includes up to $7.7 million in attorney fees and expenses, plus $2,500 in incentive awards for each of the class representatives.
Pursuant to the agreement, the following is the breakdown of the settlement:
- Class members who own 2009 to 2017 Volkswagen CC model vehicles are eligible for either free tire rotations or reimbursement of past tire replacements or rotations.
- Vehicles with less than 110,000 miles on them will be eligible for up to two free tire rotations in any authorized dealership in the U.S. or Puerto Rico.
- Class members with OE Continental ContiProContact Tires in sizes 235/45R17 and 235/40R18 are eligible for up to $209 and $254, respectively, to reimburse out-of-pocket expenses per tire if the tires had to be replaced within 35,000 miles of use. The provision also applies to tires with the same relevant specifications.
- Class members who paid out of pocket to have their tires rotated less than 9,000 miles after a previous tire rotation are eligible for up to $56 for each qualifying rotation.
- Tires that had to be replaced because of outside damage, such as a puncture or laceration, do not qualify.
Consumers filed the proposed class action against VW in August 2017. An amended complaint was filed in November 2017 that named 15 plaintiffs from 14 states who claimed to have owned or leased Volkswagen CC model cars made from 2009 to the present. The consumers alleged:
- The cars featured a defective suspension system that cannot be readjusted when the tires naturally creep out of alignment, causing the tires to quickly and unevenly wear down, an effect described as “cupping” or “feathering.”
- Despite knowing about the problem, Volkswagen ignored it and told dealerships and repair shops to simply replace the vehicles’ tires, which quickly wore down again.
- VW actively concealed the faulty suspension systems, including intentionally misleading owners and not disclosing the defects in the manuals and warranty language.
Judge Scola had previously dismissed 10 of the 29 counts against VW. He found that express warranty claims from Plaintiffs in Ohio, Texas, Arizona and Virginia were filed outside of those states’ four-year statutes of limitations on breach of warranty claims. The settlement agreement releases the company from all claims by the proposed class.
The consumers are represented by Peter Prieto, Matthew P. Weinshall and Alissa Del Riego of Podhurst Orseck PA and Francesco P. Trapani of Kreher & Trapani. The case is Wilson et al. v. Volkswagen Group of America Inc. et al., (case number 1:17-cv-23033) in the U.S. District Court for the Southern District of Florida.
Premera Blue Cross’ $32 Million Data Breach Settlement Is Preliminarily Approved
U.S. District Judge Michael H. Simon, an Oregon federal judge, has preliminarily approved a $32 million agreement that would settle multidistrict litigation against Premera Blue Cross over the health insurer’s 2015 data breach that affected an estimated 11 million customers and employees.
If approved, the settlement would resolve at least 42 lawsuits that were filed after the health insurance provider announced in March 2015 that it exposed its database to hackers when an employee opened a phishing email and installed a bogus software update that was actually malware.
The insurer said between May 2014 and February 2015, hackers stole off of its networks sensitive information, including Social Security numbers, financial information and medical claims belonging to millions of customers and workers across the country.
Under the proposed settlement, claimants could receive up to $10,000 to reimburse out-of-pocket expenses they incurred due to the breach, including up to 20 hours of personal time spent addressing the problem at $20 per hour. Those who don’t have expenses would receive $50 and the California victims of the hack would receive an additional $50, while all class members would receive two-year credit monitoring and insurance. The company also agreed to invest at least $42 million into bolstering its information security practices over the next three years.
The customers and employees are represented by Kim D. Stephens, Christopher I. Brain and Jason T. Dennett of Tousley Brain Stephens PLLC, Keith S. Dubanevich and Yoona Park of Stoll Berne, Tina Wolfson of Ahdoot & Wolfson PC, James Pizzirusso of Hausfeld LLP, and Karen Hanson Riebel and Kate M. Baxter-Kauf of Lockridge Grindal Nauen PLLP. The case is In re: Premera Blue Cross Customer Data Security Breach Litigation (case number 3:15-md-2633) in the U.S. District Court for the District of Oregon.
Rack Room To Pay $26 Million Settlement In TCPA Suit Over Texts
Rack Room Shoes Inc. has agreed to pay up to about $26 million to resolve Florida federal court claims that the retailer violated the Telephone Consumer Protection Act (TCPA) by bombarding millions of consumers with unwanted text messages. Consumer Maxwell Goldschmidt has requested that the court approves the settlement that would make nearly 5.2 million people who received unsolicited telemarketing texts from Rack Room eligible to receive $5 in cash and a $10 voucher for store products.
Goldschmidt, a Florida resident, filed his proposed class action in April 2018, alleging that Rack Room – which has more than 400 stores across 24 states – had sent him a handful of text messages the year prior advertising its rewards program. He said the unsolicited messages appeared to have been sent using an automatic dialing system, or autodialer, given the “impersonal and generic nature” of the texts, as well as the fact that they came from a “short-code” number.
Goldschmidt alleged that Rack Room had texted a large number of consumers as part of a telemarketing campaign. He asked to represent a proposed class of individuals who had received unsolicited texts from Rack Room over the previous four years.
The settlement covers a proposed class of people who enrolled in the rewards programs for Rack Room or subsidiary Off Broadway Shoes by giving their cellphone number to a cashier and subsequently received text messages from April 2014 onward. Rack Room has agreed to spend up to $25.97 million on the settlement, which will provide cash payments and purchase vouchers for consumers who make valid claims, the settlement agreement said.
Goldschmidt is represented by Manuel S. Hiraldo of Hiraldo PA, Roberto L. Costales, Jonathan Mille Kirkland and William Henry Beaumont of Beaumont Costales LLC and Scott A. Edelsberg of Edelsberg Law PA. The case is Goldschmidt v. Rack Room Shoes Inc., (case number 1:18-cv-21220) in the U.S. District Court for the Southern District of Florida.
$75 Million NCAA Concussion Settlement Gets Final Approval
An Illinois federal judge has granted final approval to a $75 million settlement in multidistrict litigation over concussions in student-athletes. More than $14 million in attorney fees was awarded to counsel. The settlement between the NCAA and millions of student-athletes establishes a $70 million medical monitoring fund that will pay for assessments of self-reported concussion symptoms and medical evaluations, if necessary. The monitoring will be available for 50 years, but class members can bring individual and class claims for monitoring if the fund depletes before the end of that time frame. The settlement calls for the NCAA to change its concussion management and return-to-play policies to reflect best practices. It also requires the organization to contribute $5 million within the first 10 years to concussion-related research that it otherwise would not have funded without the settlement.
The NCAA’s medical monitoring and other commitments “provide substantial benefits to the class in an effective and equitable manner,” U.S. District Judge John Lee said in his final approval order.
The settling class is co-led by Steve Berman of Hagens Berman Sobol Shapiro LLP and Joseph Siprut of Siprut PC. The case is In Re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, (case number 1:13-cv-09116) in the U.S. District Court for the Northern District of Illinois.
Court Approves $65.8 Million Settlement In Cephalon Pay-For-Delay Suit
A Pennsylvania federal judge has given preliminary approval to a total of $65.8 million in settlements to end class action claims that Cephalon paid generic-drug makers to keep a cheaper version of the narcolepsy drug Provigil away from drug counters. Drug buyers sued Cephalon Inc. over the alleged deals with Mylan Inc. and Ranbaxy Laboratories Ltd. to prevent the sale of the generic drug and bolster profits for the brand-name drug, a practice commonly known as a pay-for-delay. The suit accuses the companies of violating antitrust and unjust enrichment laws. The Plaintiffs and drug companies reached the tentative settlement in March, agreeing that Cephalon Inc. will pay $48 million, Mylan will pay $14.4 million and Sun Pharmaceutical Industries Ltd. – as successor in interest to Ranbaxy – will pay $3.5 million.
U.S. District Judge Mitchell S. Goldberg granted preliminary approval to the settlement, saying the deal was negotiated at arm’s length and would be fair and equitable to class members. He determined that the named Plaintiffs’ claims are typical of the claims of the proposed classes, and they will continue to “fairly and adequately” protect those groups’ interests. The parties’ motion noted that the money would flow to two classes of thousands of consumers from dozens of states who bought Provigil or its generic equivalent anytime between June 2006 and the date the settlement is approved by the court.
Consumers, retailers and others have alleged that they were forced to pay a premium for Provigil for years because of illegal agreements that Cephalon reached with Mylan, Ranbaxy, Teva and Barr Pharmaceuticals Inc. in 2005 and 2006. Cephalon agreed in May 2015 to pay $1.2 billion to settle an antitrust suit accusing the company of paying generic-drug makers to hold off on launching their own versions of Provigil, in a major Federal Trade Commission victory against pay-for-delay settlements.
The Plaintiffs are represented by Joseph H. Meltzer and Terence S. Ziegler of Kessler Topaz Meltzer & Check LLP, Jeffrey L. Kodroff and John A. Macoretta of Spector Roseman & Kodroff PC, and Kevin B. Love of Criden & Love PA. The case is Vista Healthplan Inc. v. Cephalon Inc. et al., (case number 2:06-cv-01833) in the U.S. District Court for the Eastern District of Pennsylvania.
$31 Million Capacitor Price-Fixing Settlement Gets Preliminary Approval
U.S. District Judge James Donato, a California federal judge, has given preliminary approval to a nearly $31 million settlement that will allow several capacitor manufacturers, including Panasonic and Sanyo, to resolve claims that they schemed with their competitors to hike up the price of the electrical part.
If given final approval, the agreement would result in capacitor makers Panasonic Corp., Sanyo Electric Co. Ltd., Nichicon Corp., Elna Co. Ltd. and Matsuo Electric Co. Ltd. being released from allegations brought by a group of indirect buyers of capacitors who say they were bought at artificially inflated prices. The $30.95 million settlement would bring the indirect purchasers’ total settlements garnered from the multidistrict litigation (MDL) up to $80.8 million.
The MDL currently in San Francisco court pits direct and indirect purchasers of aluminum, tantalum and film capacitors against the companies that make them. The buyers say that between 2002 and 2013, they were forced to pay inflated prices because the manufacturers were working together to keep prices high. Capacitors, which hold energy and pass that energy to circuits when they need it, are considered a vital part of nearly any electrical device.
The indirect purchasers are represented by Adam J. Zapala, Elizabeth T. Castillo and Mark F. Ram of Cotchett Pitre & McCarthy LLP. The consolidated action is In re: Capacitors Antitrust Litigation, (case number 3:14-cv-03264) in the U.S. District Court for the Northern District of California.
Chinese Drywall Makers To Pay $248 Million To Settle MDL
Homeowners and Chinese companies that made defective drywall have reached a $248 million settlement to resolve the defective drywall litigation. The class of homeowners and Taishan Gypsum Co. Ltd., which formerly conducted business as Shandong Taihe Dongxin Co. Ltd. and Taian Taishan Plasterboard Co. Ltd., reached a deal that will see the claims resolved against the drywall maker as well as other Defendants, including Beijing New Building Materials Public Ltd. Co. and affiliated entities.
The settlement calls for a $24.8 million payment within 30 days of the court’s approval, to be followed by a $148 million payment within 60 days and a final $74 million installment no more than 120 days after the initial approval. The settlement would resolve claims brought by members of a class certified in Amorin v. Taishan Gypsum Co. Ltd. in the Eastern District of Louisiana, as well as Plaintiffs in three cases led by Plaintiffs Stephen and Diane Brooke in Eastern Louisiana, the Southern District of Florida and the Eastern District of Virginia.
Knauf Gips KG, Taishan Gypsum Co. and those companies’ affiliates were largely responsible for making the drywall in question. The Knauf Defendants settled in December 2011for about $1.1 billion, resolving that aspect of the case. The Brookes-led cases were filed in 2015, and the Amorin case was filed in 2011.
The Plaintiffs are represented by Russ M. Herman, Leonard A. Davis, Stephen J. Herman and Charles King of Herman Herman & Katz LLC; Arnold Levin, Fred S. Longer, Sandra L. Duggan and Keith Verrier of Levin Sedran & Berman LLP; and numerous other firms. The case is In re: Chinese-Manufactured Drywall Products Liability Litigation, (case number 2:09-md-02047) in the U.S. District Court for the Eastern District of Louisiana.
THE CONSUMER CORNER
Drug Makers Settle Claims Of Keeping Lower-Priced Generic Drugs Off The Market
Generic drug makers Teva, Endo and Teikoku are finally settling litigation alleging that they unlawfully engaged in a practice known as “pay-for-delay,” whereby drug makers illegally delay lower-cost versions of a drug from entering the market in order to keep drug prices inflated. In the case against Teva, Endo and Teikoku, they were accused of delaying cheaper alternatives to a narcolepsy drug called Provigil and a shingles medication called Lidoderm, causing consumers to unnecessarily pay much higher prices for these drugs for years.
In these “pay-for-delay” agreements, a brand-name drug company and a generic rival locked in patent litigation reach a settlement. Historically, the brand-name drug company may offer cash or something else of value to the generic drug company and, in return, gains more time to sell its brand drug without encountering lower-cost generic competition. The generic drug maker, meanwhile, also comes away with a large payment and an agreement to sell its generic equivalent at a specified future date.
The State of California sued Teva, Endo and Teikoku over this anticompetitive conduct involving Provigil and Lidoderm and now the drug makers have finally agreed to pay $70 million to settle the claims. Additionally, the drug makers agreed to refrain from entering into “pay-for-delay” deals in the future, which is the first of its kind for a state, according to California Attorney General Xavier Becerra.
The California Attorney General’s Office announced that the settlement agreements involve a 10-year injunction against Teva, an eight-year injunction against Endo, and a 20-year injunction against Teikoku. Teva has previously agreed to similar restrictions in a consent decree with the Federal Trade Commission.
These “pay-for-delay” agreements are costly to consumers, states, and the health care market in general, causing consumers to pay as much as 90% more for drugs. Out of the Provigil settlement, a $25,250,000 consumer fund will be created for California consumers who purchased Provigil, as well as two similar drugs Nuvigil or Modafinil between 2006 and 2012.
“Pay-for-delay” agreements have raised antitrust concerns for years now. The Federal Trade Commission has estimated that these deals cost Americans $3.5 billion annually in higher health care costs. Challenging drug makers over these anticompetitive deals is just another way Plaintiffs can positively affect the price of prescription drugs in this country.
Lawyers in Beasley Allen’s Consumer Fraud & Commercial Litigation Section have represented clients, including at least nine states through their attorney general’s office, in various health care and pharmaceutical litigation. We welcome the opportunity to investigate potential anticompetitive conduct, fraud, and other unfair and deceptive practices of which you may be aware. If you have any questions about our firm’s health care fraud practice, contact Ali Hawthorne, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected].
Sources: California Office of the Attorney General Press Release and Law360.com
Capital One Breach Is Latest In Trend Of Large Corporate Security Failures
Data security breaches continue to plague large corporations and financial institutions, as well as the consumers who trust them to safeguard sensitive personal information. On July 29, Capital One announced it had fallen victim to a breach exposing more than 100 million customer records. This announcement arrived just days after Equifax announced a $700 million settlement to resolve claims related to the massive 2017 breach in which 150 million consumer records were exposed. Litigation against Marriott related to a long-term breach that exposed up to 500 million records is ongoing. And these are just a few of the many data security cases that are on state and federal court dockets throughout the United States.
Securitymagazine.com reports an alarming 1,903 breaches in the first quarter of 2019 alone, exposing over 1.9 billion consumer records. This figure was up 56% over the first quarter of 2018. The business sector accounted for more than 71% of the new breaches and over 85% of records exposed. The medical sector was next, accounting for over 13% of breaches. Already in 2019, there have been at least four breaches exposing more than 100 million records each.
The recent Capital One breach continues the unfortunate record of banks and other large businesses valuing profits over the security of their customers’ private information. A lone hacker, a woman named Paige Thompson who went by the moniker “erratic,” was able to infiltrate Capital One’s network and steal the personal data found in approximately 106 million Capital One accounts. The exposed information includes names, addresses, phone numbers, email addresses, dates of birth, and self-reported income.
Other information revealed includes credit scores, credit limits, balances, payment histories, and fragments of transaction data. More than 140,000 Social Security numbers and 80,000 bank account numbers were revealed. Beasley Allen and many other firms have filed class action lawsuits related to this breach. The Judicial Panel on Multi-District Litigation will meet on Sept. 26, and we expect all the Capital One suits will transferred to a single federal judge for further proceedings.
Given the proliferation of data breaches, we expect the trend of data breach litigation will continue to grow in 2019 and beyond. Beasley Allen lawyers litigate data privacy cases in courts throughout the United States. Dee Miles, head of our firm’s Consumer Fraud & Commercial Litigation Section, was on the steering committee that achieved landmark settlements in both the Target and Home Depot data breach cases.
For more information on Beasley Allen’s data privacy and class action practice, or to discuss a potential class action claim, contact Dee Miles or Archie Grubb at 800-898-2034 or by email at [email protected] or [email protected].
Equifax Data Breach Settlement Claims
In September of 2017, credit reporting agency Equifax announced a data breach that exposed the Social Security numbers and other sensitive personal information of approximately 147 million people. In July, Equifax agreed to a $700 million global settlement with the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), 50 U.S. states and territories, and pending class-action lawsuits against the company.
Up to $425 million of the settlement will be used to help people affected by the data breach. If your personal data was exposed in the breach, you are eligible to receive 10 years of free three-bureau credit monitoring. Alternatively, if you already have credit monitoring and will have it for another six months after you file the claim, you can opt for a cash payment instead. Previously, the cash payment offered was $125, but because of the limited funds available and the large number of claims for cash instead of credit monitoring, the FTC has cautioned that cash payments will not be anywhere near the $125 initially offered. Rather, the FTC encourages claimants to opt for the free credit monitoring instead, asserting that it is worth hundreds of dollars a year.
Additionally, you can file a claim for restitution to get back money spent or lost due to the breach such as losses from unauthorized charges to your accounts, the cost of freezing or unfreezing your credit report, the cost of credit monitoring, or fees you paid to professionals like an accountant or an attorney. You can also make a claim for compensation for time spent combatting any identity theft issues or dealing with any credit fraud because of the breach, up to $25 per hour for a total of 20 hours. To make such claim, you will have to provide records to prove time and money spent.
The claim website, operated by the settlement administrator JND, allows you to both check if you were affected by the Equifax breach and fill out the relatively simple form that lets you specify to which claims you feel entitled. You have until Jan. 22, 2020 to file your claim, but be aware that there are several fake settlement websites attempting to get your information. Ensure that you are using the real Equifax settlement site – equifaxbreachsettlement.com – before you start to file your claim.
Beasley Allen lawyers have been involved in several of these data breach cases and they were involved in a limited role in this Equifax class action. These data breach cases will continue to be part of our lives in America until such time as we can design a truly secure system of storing sensitive information on our electronic data systems. In the meantime, litigation will continue to be a needed mechanism to improve these systems. If you need more information, contact Archie Grubb or Leslie Pesica, lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected] or [email protected].
AN UPDATE ON THE JUUL LITIGATION
New Documents Show JUUL Deliberately Targeted Children To Become The Nation’s Largest Seller Of Vape Devices
Rep. Raja Krishnamoorthi, the Chairman of the Subcommittee on Economic and Consumer Policy, recently released a supplemental memo based on approximately 55,000 non-public documents JUUL Labs, Inc. produced to the Subcommittee and the Massachusetts Attorney General in response to the Subcommittee’s investigation launched in June. The memo states:
The Subcommittee found that: JUUL deployed a sophisticated program to enter schools and convey its messaging directly to teenage children; JUUL also targeted teenagers and children, as young as eight years old, in summer camps and public out-of-school programs; and JUUL recruited thousands of online ‘influencers’ to market to teens.
Documents obtained by the Subcommittee show that JUUL operated a division, referred to internally as “Youth Prevention and Education,” and this group recruited schools into a program through which JUUL presented its programming to students. Documents obtained by the Subcommittee show that the schools received payment for these services.
For example, the co-founder of Parents Against Vaping E-cigarettes testified to the content of one such presentation in school, stating that no parents or teachers were in the room, and JUUL communicated that the product was “totally safe.” The witness also testified that the presenter even demonstrated and recommended that a nicotine-addicted student use JUUL.
The memo also reveals that JUUL targeted teenagers and children by buying access to them through public, out-of-school programs. Documents show that JUUL paid $134,000 to set up a five-week summer camp for 80 children through a charter school. Participants in the summer camp were “recruited from grades 3 through 12… .” JUUL would provide the programming for a “holistic health education program,” helping “student participants create a personal ‘healthy lifestyle plan’… engaging low-income youth at risk of making poor health decisions.”
Documents also show that JUUL was aware that its programs were “eerily similar” to those used by large cigarette makers, and even internal executives raised concerns about their work in schools. The subcommittee’s investigation also found that JUUL used a sophisticated and high-cost “influencer” program to promote online marketing to youth specifically to “curate and identify 280 influencers in LA/NY to seed JUUL product” and to secure social media “buzzmakers” with “a minimum of 30,000 followers,” to attend launch events and to develop “influencer engagement efforts to establish a network of creatives to leverage as loyalists for JUUL.”
The second Economic and Consumer Policy Subcommittee hearing examining JUUL’s role in youth nicotine addiction epidemic features testimony from two JUUL Labs representatives – including the co-founder – and Matthew Myers, president of Campaign for Tobacco Free Kids.
Source: Sentinel News Wire
Illinois Officials Report 1st Possible Death Linked To Vaping
Illinois public health officials have said an adult patient who had recently vaped and been hospitalized with severe respiratory illness has died. This would be the first reported death related to the use of e-cigarettes in the U.S. The Illinois Department of Public Health (IDPH) didn’t identify the patient or when the patient died. It did say that a total of 22 people in the state between 17 and 38 years old have been sickened after using e-cigarettes.
The IDPH said the patients’ symptoms have included coughing, shortness of breath and fatigue and in some cases, vomiting and diarrhea. Those symptoms worsened over a period of days or weeks before the patients were hospitalized, the department said. IDPH Director Dr. Ngozi Ezike said in a statement:
The severity of illness people are experiencing is alarming, and we must get the word out that using e-cigarettes and vaping can be dangerous.
A team from the U.S. Centers for Disease Control and Prevention (CDC), at the IDPH’s request, is helping investigate the cases in Illinois. In a separate statement, CDC Director Robert Redfield said the death in Illinois reinforces the serious risks associated with e-cigarettes. He stated:
Vaping exposes users to many different substances for which we have little information about related harms — including flavorings, nicotine, cannabinoids and solvents. CDC has been warning about the identified and potential dangers of e-cigarettes and vaping since these devices first appeared.
According to the CDC, as of Aug. 22, there were 193 potential cases of severe lung illness associated with using e-cigarettes. The CDC said those cases were reported in 22 states in between June 28 and Aug. 20.
Beasley Allen Sues JUUL For Ohio Mother Of Addicted Teen Twins
Beasley Allen lawyers have filed a lawsuit against JUUL Labs on behalf of Rene Arana, an Ohio mother whose twin daughters began JUULing at 14 years of age and became severely addicted to nicotine. Because of this addiction, her daughters suffer from strong mood swings, bouts of anger and aggression, discipline problems, and decline in academic performance. One of her daughters even attempted suicide due to nicotine withdrawals. Ms. Arana and her daughters are represented by Andy Birchfield and Joseph VanZandt of Beasley Allen, along with Columbus, Ohio, lawyers Mark Troutman, Shawn Judge, and Gregory Travalio of Isaac, Wiles, Burkholder & Teetor LLC.
JUUL has created a nicotine addiction epidemic in our country, and families like the Aranas are facing the real consequences caused by JUUL’s reckless conduct. Everything JUUL did, from designing the product, manipulating the nicotine, and marketing to minors, was targeted at addicting young people to nicotine. JUUL has made billions of dollars on the backs of America’s vulnerable youth; it must be held accountable.
Beasley Allen lawyers have filed similar lawsuits against JUUL with the goal of holding the vaping giant and other Defendants accountable for deploying an aggressive and fraudulent marketing campaign for JUUL vaping devices and products that specifically targeted youth and teens. JUUL’s campaign was taken straight from big tobacco’s marketing playbook. JUUL failed to warn of the products’ highly addictive levels of nicotine and manipulated its products to create and sustain nicotine addiction and uses a sleekly designed device with a wide variety of candy-flavored vaping products to appeal to unsuspecting and younger customers.
In April 2017, Ms. Arana’s daughters began using JUUL vaping devices and related products when they were in middle school. They had never tried any nicotine products, but JUUL had become “ubiquitous” among their friends. They were attracted to the kid-friendly favors and a device they could conceal from their parents and teachers. The young girls were never informed about the highly addictive nature of the products or other dangers linked to the products. Thus they were totally unaware of the dangers involved.
Within a week both were “powerfully addicted to JUUL” and since becoming addicted, they increased their consumption and reliance on the device, with each of them smoking up to two JUUL pods a day at one point during their addiction. They have also tried other forms of nicotine to satisfy their cravings.
Because of their severe nicotine addiction, both girls experience strong mood swings and newly developed behavioral issues of anger and aggression that didn’t exist before they used JUUL. This has resulted in conflict at home and school and affected their academic performance. For example, J.C. was an honor student, but now suffers from migraines and is unmotivated to do anything without her JUUL. Similarly, A.C. also performed well academically, but now struggles with behavioral issues connected to the increased aggression caused by her nicotine addiction.
A.C. received in-school suspension during last school year and even attempted suicide in April after her mother told her she could no longer JUUL. A.C. was admitted to the hospital where she was administered nicotine gum and patches to keep her nicotine withdrawals manageable.
With access also to big tobacco’s research, JUUL has worked to perfect its vaping device’s effectiveness to increase the risk of addiction and ensure it maintains a customer base. Although JUUL claims that each pod contains as much nicotine as a pack of cigarettes, experts believe the amount of nicotine intake for JUUL may be much higher. JUUL designed its vaping device to deliver substantially higher concentrations of nicotine per puff than traditional cigarettes and most other brands’ vaping devices. Its products are also designed to have maximum inhalability, without any “throat hit” or irritation that would serve as a natural deterrent to new users. The lawsuit explains that “[t]his combination of ease of inhalation and high nicotine delivery makes JUUL both powerfully addictive and dangerous.”
Joseph VanZandt and Sydney Everett from our firm can provide more information about this case and the ongoing JUUL litigation in general. If you need more information, contact Joseph or Sydney at 800-898-2034 or by email at [email protected] or [email protected].
The lawsuit is filed in the Court of Common Pleas for Franklin County, Ohio, case number PM-19CV00661.
Alabama Woman Sues Vape Device Company Over Teen Targeting
An Elmore County woman has filed a civil lawsuit against a major vaping device manufacturer over claims the company “orchestrated efforts to addict a new generation of teenagers to nicotine.” Savanah West, 20, developed “severe” nicotine addiction and subsequent mood disorders after trying a JUUL device when she was 17. The company did not disclose the addiction risks of its products, and the teenager was unaware of how much nicotine she was using as she developed an addiction of up to “two full packs of JUUL pods” per week at times.
In November 2017, after stopping JUUL cold turkey for a few days, Savanah experienced suicidal thoughts during her nicotine withdrawals. She was sent to the hospital where she was diagnosed with bipolar disorder and is now on medication for this disorder. Savanah is still heavily addicted to nicotine. She will continue to struggle with this nicotine addiction for the rest of her life.
The nicotine addiction from JUUL permanently injured and altered Savanah’s developed brain at a crucial age. In addition to her severe nicotine addiction, mood disorders and brain injury, Savanah has suffered harm through exposure to significant toxic substances, which may cause or contribute to causing disease and future health problems.
According to a USA Today report, more than 3 million middle and high school students regularly vape, and data from a National Youth Tobacco Survey indicated vaping increased 78 percent among high schoolers between 2017 and 2018. Savanah was drawn to flavored vaping, particularly mango and mint.
The West lawsuit is filed in Alabama’s Middle U.S. District Court, alleged vape device marketing exploited “themes that resonate with teenagers while falsely denying doing so.” Andy Birchfield, Joseph VanZandt, and Sydney Everett, lawyers in our firm’s Mass Torts Section, are handling the West case.
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
The following is our monthly update on the types of cases that Beasley Allen lawyers are currently working on. The firm operates in four separate Sections with each Section focusing on a specific area of litigation. The four Sections are Personal Injury & Products Liability, headed by Cole Portis; Mass Torts, headed by Andy Birchfield; Toxic Torts, headed by Rhon Jones; and Consumer Fraud & Commercial Litigation, headed by Dee Miles. Information on the current litigation will be set out below for each Section.
Personal Injury & Products Liability Section
The personal Injury & Products Liability Section is handling cases in a number of areas. Currently, the Section has 18 lawyers and 31 support staff. Sloan Downes is the Section Director. The lawyers and support staff are working on the areas of litigation set out below. The primary lawyer contact will be listed for each type case. Following is the list of current activity in the Section.
Boeing Litigation – Lawyers in the Section, led by Mike Andrews, are investigating and filing suits arising out of the two crashes involving Boeing planes that have received tremendous public interest and concern. The first suit was filed on June 13. Mike is handling the litigation and has filed several other lawsuits. Others are being prepared for filing. Contact: [email protected].
Aviation Accidents – Aviation litigation can be extremely complex and often involves determining the respective liability of manufacturers, maintainers, retrofitters, dispatchers, pilots and others. In some circumstances, the age of the aircraft involved can limit or completely preclude an injured party from compensation. Soaring through the sky hundreds of miles an hour, thousands of feet above the ground in an airplane or helicopter leaves little room for error. One small mechanical problem, misjudgment or faulty response in the air can spell disaster for air passengers and even unsuspecting people on the ground. We are handling cases involving all types of aircraft, military and civilian. Contact: [email protected] or [email protected].
Takata Airbag Recall – The largest automotive recall in history centers on the defective Takata airbags found in millions of vehicles manufactured by Honda, BMW, Chrysler, Daimler Trucks, Ford, General Motors, Mazda, Mitsubishi, Nissan, Subaru, and Toyota. The defect results in shrapnel like metal shards and airbag components being propelled throughout the vehicle interior. This frequently results in lacerations and blunt force trauma that can cause injury or death. We would like to review any claim of injury or death. We are also handling Honda airbag cases with smaller injuries that normally would not qualify for claims under our usual review process, even an injury that does not appear to be permanent or life-threatening. Contact: [email protected] or [email protected].
Product Liability – We continue to focus on accident cases involving automobiles, heavy equipment and consumer products. Some of these auto cases involve single-vehicle crashes, while others involve multiple-vehicle accidents. We would like to review any case involving catastrophic injury or death. Contact: [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].
Truck Accidents – There are significant differences between handling an interstate trucking case and other car wreck cases. It is imperative to have knowledge of the Federal Motor Carrier Safety Regulations, technology, business practices, insurance coverages, and to have the ability to discover written and electronic records. Expert testimony is of utmost importance. Accidents involving semi-trucks and passenger vehicles often result in serious injuries and wrongful death. Trucking companies and their insurance companies almost always quickly send accident investigators to the scene of a truck accident to begin working to limit their liability in these situations. Our lawyers, staff and in-house accident investigators immediately begin the important task of documenting and preserving the evidence. We would like to review any case involving catastrophic injury or death. Contact: [email protected], [email protected] or [email protected].
Defective Tires – Tire failure can result in a serious car crash and even a vehicle rollover accident, causing serious injury or death to vehicle occupants. Air, heat and sunlight can cause the rubber in tires to break down. When a tire is defective, potentially serious problems like detreads and blowouts can occur long before the tire would be expected to wear out. If the tire failure is the result of design or manufacturing defects, and the manufacturer is aware of the problem, they have an obligation to alert consumers to the potential danger. Contact: [email protected] or [email protected].
On-the-job Product Liability – Many times product claims arise from worker’s compensation claims. After we investigate the circumstances that caused the injuries, many times we discover a defective machine may be the cause of the injuries. Contact: [email protected] or [email protected].
Heavy Truck Product Liability Claims – Tractor trailer and other heavy trucks are not required to contain many of the same protections for occupants as smaller passenger cars. They can contain dangerous defects putting the truck driver or passengers at risk of serious injury or death. These trucks many times have particularly weak roofs that crush in rollovers. The passenger compartments are often not protected by effective cab guards, and this allows loads to shift into the truck cab. We would like to review any case involving catastrophic injury or death. Contact: [email protected] or [email protected].
Premises Liability – In premises liability claims, patrons of establishments are often injured because the premises, for some reason, was unsafe. Premises liability claims can take many forms, including when severe injury or death results when a building or structure collapses, merchandise falls, during swimming pool accidents, due to poor lighting, falling debris, unsecured fixtures and furniture that falls or tips over, unsecure drainage that creates drowning or fall hazards, slippery surfaces, and inadequate maintenance. Beasley Allen has successfully handled a number of premises liability cases, and we would like to investigate any cases where severe injury or death results. Contact: [email protected], [email protected] or [email protected].
Negligent Security – Under the law, owners of establishments owe a duty to patrons and guests to ensure that the premises are reasonably safe and secure from anticipated dangers. These cases normally take the form of shootings, fights, stabbings, or other physical violence (including sexual assault) where severe injury or death occurs due to the establishment owner’s failure to take reasonable safety measures. When this occurs, the establishment owner, as well as those contractors charged with security, may be held responsible for the injuries suffered by individuals or groups of individuals on the premises. While the laws vary from state to state, our firm is actively investigating and litigating these cases where severe injury or death results. Contact: [email protected] or [email protected].
Nursing Home Abuse and Neglect – Nursing homes are supposed to be in the business of providing skilled nursing care to elderly and disabled residents. Unfortunately, statistics indicate residents in nursing homes suffer abuse and neglect more and more frequently at the hands of nursing home corporations. In many cases residents have died or have been severely abused as a result of neglect. They may suffer physical abuse, emotional or psychological abuse, or neglect. We are investigating cases involving serious injury or death resulting from nursing home abuse or neglect. Contact: [email protected].
The Mass Torts Section
The Mass Torts Section is handling a number of cases involving pharmaceuticals and medical devices. Currently, there are 39 lawyers and 85 support staff in the Section. Melissa Prickett, a lawyer, serves as the Section Director. The lawyers and support staff are working in the areas of litigation set out below. The contact lawyer will be supplied in each case. The following are the current areas of litigation in the Section.
Talcum powder and ovarian cancer – As many as 2,200 cases of ovarian cancer diagnosed each year may have been caused by regular use of talcum powder. Talc is a mineral made of up various elements including magnesium, silicon and oxygen. Talc is ground to make talcum powder which is used to absorb moisture and is widely available in various products including baby powder and adult products including body and facial powder. Talc products used regularly in the genital area increase the risk of ovarian cancer. In February 2016, a jury found Johnson & Johnson knew of the cancer risks associated with its talc products but failed to warn consumers and awarded the family of our client $72 million. She died of ovarian cancer after using J&J talc-containing products for more than 30 years. This case was the start of the litigation that followed. Ted Meadows heads up our talc litigation team handling individual claims. Leigh O’Dell heads up the team of lawyers handling the talc multidistrict litigation (MDL). Contact: [email protected], [email protected], or [email protected].
JUUL vaping devices – The use of JUUL and other vaping devices has reached epidemic levels, especially among teenagers and young adults. JUUL and other vape device manufacturers fueled this epidemic by targeting and deceiving youth and adolescents with misleading social media marketing and sweet, fruit-flavored pods containing high levels of nicotine. Use of these products has been associated with numerous adverse health effects, such as seizures, nicotine addiction, nicotine poisoning, breathing problems, behavioral and psychological problems, and other serious health conditions. Contact: [email protected], [email protected] or [email protected].
Bone Cement – The type of bone cement used during knee replacement surgery affects the outcome of that surgery. High viscosity bone cement (HVC) boasts shorter mixing and waiting times and longer working and hardening phases, meaning surgeons can handle and apply the cement earlier than with low- or medium-viscosity cements. Although HVC may be more convenient to use, there is mounting evidence that the bond it produces is not as strong. Researchers have observed more early failures with the use of HVC, even when used in combination with a previously well-performing implant. Complications associated with knee replacements performed with HVC include loosening and debonding (where the implant fails to adhere to the cement interface on the shin or thigh bone), which requires revision surgery. Other reported problems include new onset chronic pain and instability. Contact: [email protected], [email protected] or [email protected].
Proton Pump Inhibitors – Proton pump inhibitors (PPIs) such as Nexium, Prilosec and Prevacid were introduced in the late 1980s for the treatment of acid-related disorder of the upper gastrointestinal tract, including peptic ulcers and gastrointestinal reflux disorders, and are available both as prescription and over-the-counter drugs. Beasley Allen is currently investigating PPI-induced Acute Interstitial Nephritis (AIN), which is a condition where the spaces between the tubules of the kidney cells become inflamed. The injury appears to be more profound in individuals older than 60. While individuals who suffer from AIN can recover, most will suffer from some level of permanent kidney function loss. In rare cases individuals suffering from PPI-induced AIN will require kidney transplant. Contact: [email protected] or [email protected]
Metal-on-Metal Hip Replacement parts – The FDA has ordered a review of all metal-on-metal hip implants due to mounting patient complaints. Problems with metal-on-metal include, but are not limited to loosening, metallosis (ie: tissue or bone death), fracturing, and/or corrosion and fretting of these devices, which require revision surgery. Many patients that require revision surgery due to these devices suffer significant post-revision complications. We are investigating all cases involving metal-on-metal hip implants, including the DePuy Orthopaedics ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System, recalled in August 2010; the Stryker Rejuvenate and ABG II modular-neck stems, recalled in July 2012; the Stryker LFIT Anatomic v40 Femoral Head (recalled August 29, 2016); the Zimmer Durom Cup, and the Biomet M2A “38mm” and M2A-Magnum hip replacement systems, which have not been recalled. Reported problems include pain, swelling and problems walking. Contact: [email protected] or [email protected].
IVC Filters – Retrievable IVC filters are wire devices implanted in the vena cava, the body’s largest vein, to stop blood clots from reaching the heart and lungs. These devices are used when blood thinners are not an option. Manufacturers include Bard, Cook and Johnson & Johnson. While permanent IVC filters have been used since the 1960s with almost no reports of failure, retrievable IVC filters were introduced in 2003, promoted for use in bariatric surgery, trauma surgery and orthopedic surgery. Risks associated with the retrievable IVC filters include migration, fracture and perforation, leading to embolism, organ damage and wrongful death. Contact: [email protected].
Zofran – Manufactured by GlaxoSmithKline, Zofran (ondansetron) was approved to treat nausea during chemotherapy and following surgery. Zofran (ondansetron) works by blocking serotonin in the areas of the brain that trigger nausea and vomiting. Between 2002 and 2004, GSK began promoting Zofran off-label for the treatment of morning sickness during pregnancy, despite the fact the drug has not been approved for pregnant women and there have been no well controlled studies in pregnant women. The FDA has received nearly 500 reports of birth defects linked to Zofran. Birth defect risks include cleft palate and septal heart defects. Contact: [email protected] or [email protected].
Physiomesh – Intended for hernia repair, Physiomesh is a flexible polypropylene mesh designed to reinforce the abdominal wall, preventing future hernias from occurring. Though there are several types of hernias, most occur when an organ or tissue protrudes through a weak spot in abdominal muscles. The condition often requires surgery where mesh, like Physiomesh, which is intended for laparoscopic use, is used to fill in a hole in the abdominal muscle or laid over or under it to prevent any further protrusions. Independent studies have found Physiomesh to lead to high rates of complications including hernia reoccurrence, organ perforation, mesh migration, sepsis and even death. In May 2016, Ethicon issued a market withdrawal of Physiomesh in the U.S. and recalled the product in Europe and Australia. We are currently investigating cases involving serious injury or death as a result of Ethicon’s Physiomesh. Contact: [email protected].
Opioids – Opioid abuse has reached epidemic proportions in the United States. According to the Department of Health & Human Services, 12.5 million people misused prescription opioids and 33,091 Americans died from opioid overdose in 2015 alone. These medications provide important pain relief for many. However, over the years, drug companies inflated the effectiveness of delayed-release medications like OxyContin and downplayed their addictive properties, creating conditions ripe for abuse. We are investigating cases involving opioid-related deaths and overdose requiring hospitalization, as well as cases involving treatment for addiction to prescription opioids. Contact: [email protected], [email protected] or [email protected].
Opioids and Infants – The opioid epidemic has also taken its toll on the most vulnerable among us. According to the National Institute on Drug Abuse, every 25 minutes, a baby is born addicted to opioids – a condition called Neonatal Abstinence Syndrome (NAS). Babies with NAS suffer painful symptoms of opioid withdrawal in the hours and days after they are born and are more likely to suffer long-term complications like developmental delays and hearing or vision impairment, compared to babies born to mothers who did not use opioids. We are investigating cases on behalf of children who were born with NAS after their mothers were prescribed opioids before or during pregnancy. Contact: [email protected], [email protected] or [email protected].
Consumer Fraud & Commercial Litigation Section
The Consumer Fraud & Commercial Litigation Section has 14 lawyers and 21 support staff. Michelle Fulmer is the Section Director. Lawyers and support staff in the Section are working on the litigation areas set out below. The primary lawyer contact will be supplied for each type case.
State and Municipalities Litigation – Our firm has represented numerous states throughout the country. These cases have been handled through the Attorneys General and have involved various civil actions. Many times, individuals are barred from bringing a consumer fraud type claim, but the state government is not. We recently concluded litigation in seven of eight states for a recovery dealing with Medicaid fraud. In addition, we are representing five states in related pharmaceutical pricing litigation. For more information, contact [email protected] or [email protected].
False Claims Act / Whistleblower- We are handling and investigating whistleblower claims of government fraud ranging from Medicare/Medicaid to military contracts, and any other type of fraud involving a government contract. Under the False Claims Act (FCA) the whistleblower is entitled to a percentage of the recovery. Studies show that as much as 10 percent of Medicare/Medicaid charges are fraudulent. Common schemes involve double-billing for the same service, inaccurately coding services, and billing for services not performed. Additionally, the Commission on Wartime Contracting has warned that the lack of oversight of government contractors has led to massive fraud and waste. Contact: [email protected], [email protected], [email protected] or [email protected].
Pension Plan Litigation (ERISA) – Many large corporations are improperly funding their Employee Benefit plans and / or transferring these Pension Plans to other entities that cannot properly fund the plans. The result is that employees’ life savings for retirement is either lost, compromised or reduced substantially. These transfers and inadequate funding measures are all designed to increase earnings for the corporations at the expense of its employees. Our firm is committed to pursuing the preservation of employee benefits / retirement by challenging these abuses through ERISA litigation and class actions. For more information contact [email protected], [email protected] or [email protected].
Auto Defect Class Actions – We are continuing to work on numerous auto defect class actions against many of the major automobile manufacturers like VW, Toyota, General Motors, Ford and even some suppliers like Takata. These cases continue to be filed because of corporate misconduct in designing and manufacturing unsafe vehicles that are purchased by consumers, corporations and state agencies. We continue to investigate these automobile problems for class relief treatment. Contact: [email protected], [email protected], [email protected] or [email protected].
Life Insurance Fraud – We have uncovered alleged fraudulent accounting practices by life insurance companies concerning premium increases. The accounting method may result in the policyholder being charged excessive insurance premiums. A client that has a life insurance policy and has been notified of a substantial increase in premium payments, or if they have been told their policy’s “cost of insurance” has increased, may have a valuable legal claim that our firm would like to investigate. Contact: [email protected], [email protected], or [email protected].
Property Insurance Fraud – Insurance companies nationwide are unjustly depreciating labor costs on adjusted property claims (roof or fence damage for example). The depreciation of labor costs is contrary to many insurance policy forms and leads to policyholders either being undercompensated for their claims or not compensated at all as they fail to meet their deductible once labor costs are depreciated. If you have had an insurance claim on your property in the past six years, then we would like to review the adjuster’s estimate and your homeowner’s or manufactured home policy as you may have a case. Contact: [email protected], [email protected], or [email protected].
Supplemental Disability Insurance Denial – We have successfully litigated bad faith denial of benefits cases for years in the disability insurance area and we are interested in reviewing cases involving denial of Individual and Group disability insurance. These cases can be either employee sponsored benefit plan policies (ERISA), individually owned policies or non-ERISA governed supplemental insurance. Contact: [email protected], [email protected], [email protected] or [email protected].
Health Care Fraud – We are looking into cases of fraud within the health care industry. These may include cases dealing with pricing, off-label prescriptions, or other health care abuse. Contact: [email protected] or [email protected].
Self-funded Health and Pharmacy Insurance Plans – Third Party Administrators and Pharmacy Benefit Managers may have been charging unauthorized fees to self-funded insurance health and pharmacy benefit plans. These extra fees may be in violation of the contracts with the self-funded plan and a breach of fiduciary duty under ERISA. We are looking into these cases on behalf of self-funded plans. Contact: [email protected].
Pharmaceutical Pricing – We are continuing to handle claims involving chain pharmacies falsely reporting their generic pricing transactions to state Medicaid agencies. This misconduct has led to millions of dollars in overpayments by Medicaid agencies for generic drugs to the chain pharmacies. Contact: [email protected] or [email protected].
Antitrust – We are handling claims related to the violation of federal and state antitrust laws. We are currently involved in claims alleging a wide array of anticompetitive conduct, including illegal tying, exclusive dealing, monopolization, and price fixing. Contact: [email protected], [email protected], [email protected] or [email protected].
Sexual Harassment – Sexual harassment is outlawed by Title VII of the Civil Rights Act of 1964 because it is a form of discrimination, as explained by the Equal Employment Opportunity Commission (EEOC). The agency defines sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” We are looking at any claim involving extreme sexual harassment or sexual assault. Contact: [email protected], [email protected] or [email protected].
Employment Law – We are handling employment cases. Situations that may be addressed in this area include minimum wage and overtime pay, unfair labor practices, all types of discrimination, employee benefits, and whistleblower claims. Contact: [email protected], [email protected] or [email protected].
Fair Labor Standards Act (FLSA) – We are working several cases involving Fair Labor Standards Act (FLSA) violations. The FLSA cases are brought on behalf of clients whose job title is misclassified by their employers so that employees are not compensated for overtime worked. Cases may also involve unequal pay, where women are paid less for doing the same job as men. Contact: [email protected], [email protected], or [email protected].
Toxic Torts Section
The Toxic Torts Section has a number of ongoing projects at present. Currently, the Section has 13 lawyers and 16 support staff. Sandra Walters is the Section Director. Lawyers and support staff are working on the areas of litigation set out below. The primary contact lawyer for each type case will be listed.
Roundup / glyphosate – Roundup is the most widely used herbicide in the world and the second-most used weed killer for home and garden, government and industry, and commerce. It was introduced commercially by Monsanto Company in 1974 and is used by landscapers, farmers, groundskeepers, and commercial gardeners. The primary ingredient in Roundup is glyphosate, a chemical that kills weeds by blocking proteins essential to plant growth. It has been linked to a type of cancer called non-Hodgkin lymphoma. We are investigating cases involving non-Hodgkin lymphoma related to the commercial application of Roundup/glyphosate. Contact: [email protected], [email protected], [email protected] or [email protected]yallen.com.
State and Municipalities Litigation – Our firm is representing the States of Alabama and Georgia in the opioid litigation. We also represent states and certain local governments in environmental or toxic exposure claims. Many times, individuals are either barred from bringing an environmental claim or it is not a practical solution. These types of government cases may involve issues of environmental catastrophe, or some other type of pollution. One of the most notable cases handled by Beasley Allen on behalf of states for environmental issues is the BP Oil Spill litigation. For more information, contact [email protected].
Opioids – Beasley Allen is representing Alabama and Georgia against both manufacturers and distributors of opioids for increased costs related to the opioid epidemic. These lawsuits allege the crisis was created by the pharmaceutical industry, which instead of investigating suspicious orders of prescription opiates, turned a blind eye in favor of making a profit. They intentionally misled doctors and the public about the risks of these dangerous drugs, and state governments are left struggling to cope with the consequences. Contact: [email protected], [email protected] or [email protected].
Mesothelioma and asbestos-related diseases – Mesothelioma is a highly aggressive and rare form of cancer usually affecting the lining of the lungs (pleural) or abdominal cavity (peritoneal). Occasionally, it also may affect the lining of the heart (pericardial). The only known cause of mesothelioma is exposure to asbestos. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. For years, asbestos was widely used in many industrial products and in building construction for insulation and fire protection. When asbestos is broken or disturbed it can release microscopic fibers that can be inhaled or ingested, posing a health risk, including the development of asbestos diseases and mesothelioma. Contact: [email protected], [email protected], or [email protected].
Defective 3M Earplugs – Beasley Allen lawyers are investigating claims related to defective combat earplugs manufactured by Minnesota-based 3M Company. The earplugs were issued to thousands of military personnel serving in combat in Iraq and Afghanistan and used in training exercises in the United States. Numerous soldiers are now complaining of permanent hearing loss related to the defective ear plugs. Other soldiers have complained of tinnitus, commonly referred to as “ringing” in the ears. The dual-sided earplugs allegedly were improperly designed and manufactured so that the earplugs did not fit snugly in the wearer’s ear canal. Contact: [email protected] or [email protected].
Leukemia and Benzene exposure – Benzene is widely used in a number of industries and products, yet many people remain unaware of the toxic danger of this chemical substance. Exposure to products containing benzene, whether through inhalation or skin absorption, can cause life-threatening diseases including Acute Myeloid Leukemia (AML), Myelodysplastic Syndrome (MDS), lymphomas and aplastic Anemia. Some of these diseases do not manifest themselves until several years after exposure to benzene. Due to certain statute of limitations for bringing a claim of this nature it is important to contact an attorney as soon as possible if you believe your condition is a result of benzene exposure. Contact: [email protected].
PFC Contamination in Water Systems – In May 2016, the U.S. Environmental Protection Agency (EPA) issued new lifetime health exposure guidelines for perfluorooctane sulfonate (PFOS) and perfluorooactanoic acid (PFOA) in the water supply. After the EPA issued the new exposure limits, Beasley Allen filed suit for two water systems impacted in Alabama. The EPA advisory focused on PFOA and PFOS, man-made chemical compounds that are used in the manufacture of non-stick, stain-resistant, and water-proofing coatings on fabric, cookware, firefighting foam, and a variety of other consumer products. Contact: [email protected] or [email protected].
E-cigarette Explosions – We are investigating cases involving severe injuries caused by exploding e-cigarette devices and exploding e-cigarette batteries. These explosions have been linked to faulty e-cigarette products, defective lithium-ion batteries, and insufficient warnings for users. These cases involve personal injury including serious burn injuries. Please contact our Toxic Torts section for assistance with cases you may have involving these devices. Contact: [email protected].
You should have no difficulty in getting through to a lawyer in our firm on a specific case. However, if you do have difficulty reaching any of the lawyers listed above as the primary contact for a specific case, you can contact one of our four Section Directors and she will put you in touch with a lawyer in her Section who is working on the specific case you are asking about.
The Section Directors, who do a tremendous job for the firm, are Melissa Prickett, Mass Torts Section; Sloan Downes, Personal Injury & Products Liability Section; Michelle Fulmer, Consumer Fraud & Commercial Litigation Section; and Sandra Walters, Toxic Torts Section. They can be reached at 800-898-2034 or by email at [email protected]; [email protected], [email protected]; and [email protected].
Resources to Help Your Law Practice
All of us at Beasley Allen are humbled and honored for our firm to be recognized as one of the country’s leading law firms involved in complex civil litigation representing only claimants. Beasley Allen has truly been blessed. Therefore, we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources, including books authored by our lawyers, to help our fellow lawyers. For those who may be looking to work with Beasley Allen, or simply are seeking information that will help their law firm with a case, the following are among our most popular resources. The names of the books and the authors are set out below.
An Introduction to Truck Accident Claims: A Guide to Getting Started
Chris Glover, Beasley Allen Atlanta Managing Attorney, discusses the basics of trucking regulations and requirements, how to prepare for your case, potential Defendants, and common issues that arise in commercial vehicle litigation.
Aviation Litigation & Accident Investigation
Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.
Tire Litigation: A Primer
Although tire failures, blowouts and detreads are foreseeable and preventable events, all too often consumers are unaware of the potential dangers from defective, old or degraded tires. Beasley Allen lawyer Ben Baker provides lawyers guidance on evaluating tire litigation and underscores the importance of inspecting the tires of all vehicles involved in a crash.
Whistleblowers: A Brief History & A Guide to Getting Started
Lance Gould, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, offers a brief history of whistleblower law and how it has evolved over the years. He also provides basic instruction on how to identify a whistleblower claim, in his latest publication, and advice about how to navigate these often-complex cases. Additionally, Lance speaks frequently to audiences across the nation on both the False Claims Act and the Fair Labor Standards Act.
Nursing Home Abuse & Neglect Brochure
Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high rates of underreporting. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect, and advice about how to file a claim.
Beasley Allen also sends out a Co-Counsel E-Newsletter, which is specifically tailored with lawyers in mind. It is emailed bi-monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.
The Jere Beasley Report
We also consider The Jere Beasley Report to be a service to lawyers as well as the general public. We provide the Report at no cost monthly, both in print form and online. You can get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/.
You can reach Beasley Allen lawyers in the four sections of our firm by phone toll free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at www.beasleyallen.com/publications/.
We are again reporting a large number of safety-related recalls. We have included some of the more significant recalls that were issued in August. If more information is needed on any of the recalls, readers are encouraged to contact Shanna Malone, the Executive Editor of the Report. We would also like to know if we have missed any safety recalls that should have been included in this issue.
Honda (American Honda Motor Co.) is recalling certain 2019 CR-V vehicles. The joint weld between the fuel tank and the vapor return line may have been insufficiently welded, causing the weld to fail. The failed weld may allow fuel to leak, increasing the risk of a fire in the presence of an ignition source.
Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain RAV4 and RAV4 Hybrid vehicles due to a faulty back-up camera system. The recall involves approximately 18,000 2019 model year vehicles in North America. The RAV4 is equipped with a back-up camera system to show the area behind the vehicle when it is shifted into reverse.
Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain 2019 Camry vehicles. The Occupant Classification System (OCS) may have been improperly calibrated, which may prevent the proper deployment of the front passenger air bag and knee air bag in the event of a crash. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 208, “Occupant Crash Protection.” In the event of a crash, if the air bags do not deploy as designed, the front seat passenger has an increased risk of an injury.
Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain 2019 Lexus LS500, LC500, ES300h, UX250h, LS500h, Toyota Prius, RAV4 HV, 2019-2020 Toyota Prius Prime, and 2020 Corolla HV vehicles. The brake booster pump may fail causing a deactivation of the Vehicle Stability Control system and a loss of braking assist. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 126, “Electronic Stability Control Systems.” Deactivation of the vehicle stability control system or a loss of braking assist increases the risk of a crash.
BMW of North America, LLC (BMW) is recalling certain 2018-2019 X3 sDrive30i, xDrive30i and M40i and 2019 X4 xDrive30i and M40i vehicles. The front seatback frames may have been improperly welded, allowing the seatback to unexpectedly fold forward or rearward. In the event of a crash, there is an increased risk of injury if the seatback folds forward or rearward.
Braun Corporation (Braun) is recalling certain modified 2017-2020 Toyota Sienna vehicles. The steering shaft extensions may have been improperly manufactured, possibly causing the extensions to fracture. If the steering shaft extension completely fractures, it can cause a loss of steering, increasing the risk of a crash.
Other Motor Vehicle Recalls
Pierce Manufacturing (Pierce) is recalling certain 2019 Arrow XT, Dash, Enforcer, Impel, Quantum, and Velocity vehicles. Due to improper manufacturing, the passenger-side knee air bag (KAB) may not properly inflate during a deployment event. In the event of a crash, if the KAB does not inflate properly, it may not provide the intended protection to the occupant, increasing the risk of injury.
Winnebago Industries, Inc. (Winnebago) is recalling certain 2018-2019 Fuse motorhomes built on a 2018 Ford Transit chassis and equipped with aluminum wheel feature code 63W. The wheel studs may be too long, preventing the lug nuts from properly securing the wheels. Wheels that cannot be torqued properly may loosen and detach, increasing the risk of a crash.
Thor Motor Coach (TMC) is recalling certain 2019-2020 Omni and Magnitude motorhomes. The battery tray may be improperly welded to the chassis frame, allowing the battery tray to detach from the chassis. If the battery tray detaches from the chassis, the battery may discharge, causing the vehicle to stall and increasing the risk of a crash.
Gulf Stream Coach, Inc. (Gulf Stream) is recalling certain 2017 Serro Scotty S14 RBR travel trailers. The Federal Placard label indicates an incorrect Gross Vehicle Weight Rating (GVWR). Incorrect GVWR information may result in the trailer being overloaded, affecting the tires or the vehicle’s handling, thereby increasing the risk of a crash.
Cooper Tire & Rubber Co. (Cooper Tire) is recalling certain size 235/65R18 Cooper Discoverer SRX, Evolution H/T, Discoverer HTP, Adventurer H/T CUV, Big O Big Foot A/S, Les Schwab Back Country QS3 Touring HT, and Mastercraft Courser HSX Tour tires. The tires may have been improperly manufactured with a ply cord distortion. The distortion may cause parting of the lower sidewall compounds extending to the cord material, increasing the risk of tire failure and a crash.
Toyo Tire Holdings Of Americas Inc. (Toyo) is recalling certain Proxes A27 tires, size P185/60R16 86H, produced from Sept. 21, 2018, through Sept. 25, 2018, (DOT dates codes 3718 and 3818). Prototype rubber compound was mixed with production compound, which may result in sections of the tire tread detaching. Sections of tread detaching can cause the tire to lose pressure, increasing the risk of crash.
Trans Texas Tire (TTT) is recalling certain Contender 5.70-8 tires sold exclusively through Discount Tire stores. The tire sidewalls are incorrectly labeled, in that each side of the tire may state different PLY and PSI markings. As such, these vehicles fail to comply with the requirements of 49 CFR Part 574, “Tire Identification & Recordkeeping.” The incorrect PLY and PSI markings may result in underinflating or overloading the tires, increasing the risk of crash.
Yokohama Tire Corporation (Yokohama) is recalling certain Yokohama RY023 tires, size 295/75R22.5 (14G), that have DOT date code 2318. The rubber compound may be incorrect, possibly resulting in the tread separating from the casing. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic Tires-Other than Passenger Cars.” If the tread separates, the driver may experience a loss of control, increasing the risk of a crash.
Pt.Multistrada Arah Sarana, TBK (Multistrada) is recalling certain Achilles Desert Hawk A/P LT tires, size LT215/85 R16 115/112R 10PR, with DOT date code 1915 through date code 3618. The lower sidewall of the tires may separate. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 139, “New Pneumatic Radial Tires for Light Vehicles.” A sidewall separation can cause loss of air pressure, increasing the risk of a crash.
Continental Tire the Americas, LLC (Continental Tire) is recalling certain Conti Hybrid HS3 tires, size 11R22.5 LI 146/143, Load Range H with DOT codes A33TKWUY 0818 through A33TKWUY 1318. These tires may have cords visible through the innerliner. Tires that have cords visible through the innerliner can have sudden air loss, causing a loss of vehicle control, increasing the risk of a crash.
Continental Tire the Americas, LLC. (Continental) is recalling certain Conti Coach HA3 tires, size 315/80R22.5 157/154 L, with DOT codes A372KWUU 3517 through A372KWUU 1618. These tires may have cords visible through the innerliner. Tires that have cords visible through the innerliner can have sudden air loss, causing a loss of vehicle control, increasing the risk of a crash.
Bridgestone Americas Tire Operations, LLC (BATO) is recalling certain Firestone FS818 tires with date codes 2318-2418, Bridgestone M854 tires with date codes 2418-2518, Bridgestone M860A tires with date code 2518, and Bridgestone M864 tires with date codes 2318-2418, all of size 425/65R22.5. The sidewall steel body cords may be exposed, which can cause unexpected rapid air loss during use. As such, these tires may fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic Tires – Other than Passenger Cars.” Rapid air loss can increase the risk of a crash.
Achieva Rubber Corp. (Achieva) is recalling certain Innova Ultra Runner tires sizes 5.30-12 in 6 ply and 4.80-12 in 4ply with the date code rage of 0114 through 3917. The tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic Tires – Other Than Passenger Cars.” If the tires fail to meet the strength test requirements, the tire may fail, increasing the risk of a crash.
Other Consumer Recalls
SunSetter Recalls Vinyl Covers For Motorized Awnings After 73-year-old Man Killed
SunSetter announced plans to recall 270,000 vinyl covered motorized awnings after a 73-year-old man was killed by one of the awnings. According to the Consumer Product Safety Commission (CPSC), the victim fell off a ladder and over a balcony when the awning opened unexpectedly while he was removing the cover’s bungee tie-downs. CPSC has received 14 reports of incidents, including six reports of injuries. “If a powered awning is activated while the cover is secured with bungee tie-downs, when the cover is removed, the awning can open unexpectedly with enough force to strike a consumer standing in the awning’s path, causing them to fall and suffer death or serious injury,” the CPSC wrote in a press release. For more information, call Sunsetter toll-free at 844-313-0144 or visit its website at www.sunsetter.com/safety-clips.
FAA Bans Certain Models Of MacBook Pros From Flights Following Recent Recall
Apple has recently recalled batteries installed in some of the 15-inch MacBooks, which are now banned from airplanes. Heads up, travelers, the Federal Aviation Administration (FAA) has banned certain MacBook Pro laptops in checked or carry-on bags; Apple recalled them in June. The ban is actually a more concisely enumerated direction by the aviation regulator as it relates to recalls. “The FAA is aware of the recalled batteries that are used in some Apple MacBook Pro laptops,” the Federal Aviation Administration told USA TODAY in a statement. “In early July, we alerted airlines about the recall, and we informed the public. We issued reminders to continue to follow instructions about recalls.”
In the fine print on its Packsafe page, the FAA states that “lithium batteries recalled by the manufacturer/vendor must not be carried aboard aircraft or packed in baggage unless the recalled product/component has been replaced or repaired or otherwise made safe per manufacturer/vendor instructions.” Apple is giving eligible consumers various options on how to have their batteries replaced, including going to an Apple retail store or working with Apple Support to mail their laptops in. “Apple has determined that, in a limited number of older generation 15-inch MacBook Pro units, the battery may overheat and pose a fire safety risk,” the company wrote on its website. “Affected units were sold primarily between September 2015 and February 2017 and product eligibility is determined by the product serial number.”
Dorel Juvenile Group USA Recalls Inclined Sleepers
About 24,000 Eddie Bauer Slumber and Soothe Rock Bassinets; Disney Baby Doze and Dream Bassinets have been recalled by Dorel Juvenile Group USA, of Foxboro, Massachusetts. Infant fatalities have been reported while using other inclined sleep products, after the infants rolled from their back to their stomach or side while unrestrained, or under other circumstances. This recall involves the Eddie Bauer Slumber and Soothe Bassinet with model number BT055CSY and the Disney Baby Doze and Dream Bassinet with model number BT071DHS. The model numbers are located on a label on the underneath side of the fabric of the inclined sleeper pad. The inclined sleepers are rectangular shaped with a soft bottom, cushioned fabric, stand approximately two feet off the floor and are designed for sleeping or napping infants from birth to 6 months of age. The Eddie Bauer Slumber and Sooth Bassinet is beige. The Disney Baby Doze and Dream Bassinet is purple.
The bassinets were sold at Target, Kmart, Ross, Marshalls, TJ Maxx and juvenile product stores nationwide from November 2014 through February 2017 for about $60. Consumers should immediately stop using the inclined sleepers and contact Dorel for a refund in the form of a $60 voucher. Call Dorel toll-free at 877-657-9546 or text Dorel at 812-373-6673 from 8 a.m. to 5 p.m. ET Monday through Friday, email at [email protected], or online at www.safety1st.com and click on “Safety Notices” for more information.
Super Jumper Trampolines Recalled For ‘Posing Fall And Injury Hazards’
About 23,000 Super Jumper trampolines are being recalled for “posing fall and injury hazards,” according to a notice posted on the U.S. Consumer Product Safety Commission (CPSC) website. The South San Francisco-based company said in the recall notice that it has received “97 reports of the welds on the metal railings breaking, resulting in four consumers suffering minor injuries.” The recall includes three different trampolines: Super Jumper 14-foot trampolines, and 14-foot and 16-foot combo trampolines with enclosures sold without reinforcement clamps. “Consumers should immediately stop using the recalled trampolines and contact Super Jumper for a free repair kit which consists of reinforcement clamps that clamp around the trampolines’ welded joints,” the recall notice states.
The trampolines were sold online at Wayfair.com, Amazon.com, Hayneedle.com and Overstock.com from 2011 through June 2019, the recall notice states. They cost between $200 and $400. For more information and to request a repair kit, call Super Jumper at 866-757-3636 from 9 a.m. to 5 p.m. PST, Monday through Friday, email [email protected] or go to www.superjumperinc.com.
“The recall, which has been approved by the federal Consumer Product Safety Commission, is limited to providing reinforcement clamps for existing trampolines,” Super Jumper posted in a recall process information sheet on its website. “When the clamps are installed, the trampoline’s operation will be satisfactory, so a replacement trampoline or a refund will not be provided.” It can take one to three months for the repair kit to arrive, according to the Super Jumper website. Consumers can learn about reporting potentially dangerous products at www.saferproducts.gov and www.consumersafety.org.
As you can see, there have been a large number of recalls since the last issue. We included many of them in this issue. Those we felt to be of the highest importance and urgency are included. If you need more information on any of the recalls listed above, visit our firm’s web site at BeasleyAllen.com. We would also like to know if we have missed any significant recall that involves a safety issue. If so, please let us know. As indicated at the outset, you can contact Shanna Malone at [email protected] for more recall information or to supply us with information on recalls.
Alyssa Baskam has joined the firm in our Atlanta office. She says she became a trial lawyer so she could help people through unimaginable hardship. Alyssa represents individuals who have been injured or the families of those who have died as a result of nursing home abuse or neglect, or other inpatient facility abuse or neglect. She says:
I became an attorney because I wanted to help people. I became a trial lawyer because I knew it provided the best opportunities to use my gifts to help the most people.
Before joining Beasley Allen, Alyssa represented individuals and families in product liability suits, professional negligence suits, and cases resulting from individual negligence. She has also represented victims of rape and sexual assault. Alyssa served as an Interim Clerk for the Honorable Steve Jones in the U.S. District Court for the Northern District of Georgia in 2014-15. Alyssa says:
I enjoy seeing all the hard work pay off at the various stages of a case because it ultimately comes back to the client. Clients are vulnerable; their faith and trust are so taxed, but when they see our hard work in action, they know they are not facing their hardship alone.
Alyssa, a Cumming, Georgia, native, attended South Forsyth High School before obtaining her Bachelor of Arts in International Studies from the University of North Carolina, Chapel Hill. While in college, Alyssa was a Public Service Scholar recipient, inducted into Phi Beta Kappa, and graduated in 2011 with honors. She then headed to Emory Law School where she was a member of the Emory Moot Court Society executive board and a national qualifier at the Saul Lefkowitz Moot Court Competition. She was also an executive member of the Emory Public Interest Committee and graduated from Emory with honors in 2014.
Alyssa has been named to the Super Lawyers “Rising Stars” list, which recognizes the top up-and-coming attorneys. She is a member of the Georgia Trial Lawyers Association (GTLA) where she serves as an Executive Committee member, Co-Chair of the New Lawyers Division, and is a member of the Women’s Caucus. She is an alumna of GTLA’s LEAD program, a highly competitive leadership program for select GTLA members identified as potential leaders in the field.
Alyssa is also a member of the Atlanta Bar Association where she serves as a Board Member for the Atlanta Council of Young Lawyers, and is also a member of the American Association for Justice (AAJ). Additionally, Alyssa has published three scholarly articles. Two were published by GTLA’s magazine, The Verdict, and a third was published in the ABA Journal of Affordable Housing & Community Development.
Currently, Alyssa lives in Buckhead, Atlanta, where she enjoys playing tennis, cooking and painting. She is also an avid hiker, a member of the Shepherd Center Junior Committee, and volunteers for the Atlanta Community Food Bank.
In her brief tenure at the firm, Alyssa says the familial environment enjoyed by our employees has made a significant impression on her. She says:
I am sure there are many things that make Beasley Allen unique that I will learn in the future, but as a newcomer what strikes me is the way that Beasley Allen maintains a closeness that most large firms lose as they grow.
We are most fortunate to have Alyssa join our firm in the Atlanta office. She will be a tremendous addition to the firm. She has been selected to serve as the head of our Nursing Home Litigation Team.
David Byrne has been with Beasley Allen since February 2001. He is a principal and trial attorney in the firm’s Mass Torts Section, handling claims against pharmaceutical and medical device companies. At present, David works on litigation related to the blood-thinning medication Xarelto, and the Hormone Replacement Therapy class action litigation.
Prior to moving to the Mass Torts Section, David served as a trial attorney in the firm’s Toxic Torts Section where he handled numerous complex environmental cases in state and federal courts throughout the United States. During that time, he handled cases involving wide-ranging topics such as drinking water contamination, toxic air emissions, contaminated waste-water discharges, toxic exposure, improper landfill activities, petroleum spills, medical monitoring claims and soil and groundwater contamination.
David was actively involved in litigation related to the BP Oil Spill disaster. During the BP Oil Spill litigation, David assisted the State of Alabama and numerous counties and cities in Alabama and northwest Florida that were damaged by the disaster.
He also served as co-lead counsel in the federal trial against the Tennessee Valley Authority over the company’s catastrophic release of more than 1 billion gallons of coal ash sludge from an impoundment at its Kingston Fossil Plant.
David also served as co-lead class counsel in a New Jersey federal court case involving PFOA contamination of public and private drinking water supplies near the DuPont Chambers Works facility in Deepwater, New Jersey. In 2011, the Court approved a class settlement that provided water filtration systems and other relief to more than 15,000 residents.
In 2003, David was involved in the landmark $700-million toxic tort settlement with Solutia, Monsanto and Pharmacia over PCB contamination in Anniston, Alabama. Additionally, David has assisted clients in obtaining multi-million-dollar settlements or verdicts in other types of cases involving food-product franchises, the Federal Tort Claims Act, accounting malpractice, motor vehicle franchise disputes, consumer fraud, the funeral services industry, premises liability, insurance agent contract disputes and defective products.
David explained that there are many reasons why he became a lawyer and some of those reason have changed over time. “But”, he said, “the firm’s motto – ‘helping those who need it most’ – really does get to the heart of why I became a lawyer and why I continue to practice law.” Helping his clients is what David says he enjoys most about practicing law. He says: “I think it [my favorite part of practicing law] has to be the feeling you get when you know your work has made a difference in a case.”
David earned his undergraduate degree from The Citadel and his law degree from the Cumberland School of Law. Following graduation, David served as a Deputy Alabama Attorney General and as a law clerk to U.S. District Judge Robert Varner and Alabama Court of Criminal Appeals Judge John M. Patterson. He then entered private practice with another Montgomery, Alabama, law firm before joining Beasley Allen.
Currently, David serves as the chair of the Alabama State Bar’s Federal Court Practice Section, serves on the Board of the Federal Bar Association (Montgomery, Alabama Chapter). He is also a member of the Board of Governors for the Alabama Association for Justice and is a master bencher with the Justice Hugh Maddox American Inn of Court. David is a past-president of the Montgomery County Trial Lawyers Association and in 2009 he was appointed to serve as the chair of the Alabama Bar’s Federal Practice Section Task Force. David has also been included in the Super Lawyers list annually since 2017 and has also been regularly named to the Best Lawyers in America list since 2012.
David says he is proud to be a member of the firm and appreciates “the remarkable team approach that Beasley Allen takes in every case.” He says:
From top to bottom, every attorney and staffer at Beasley Allen puts the case and the client first in true servant-leader fashion. I think that’s a major reason why other firms enjoy working with us and why clients trust us to do the right thing.
David and his wife, Betty Bobbitt, have been married since 1993, and they have two children. They attend First Baptist Church in Montgomery, Alabama, where David serves as a Sunday School teacher for 2nd graders and a Bible Study Leader for 11th-grade boys.
David is a hard-working, dedicated lawyer who always puts his clients best interest first and foremost in their cases. We are blessed to have David with Beasley Allen.
Ben Locklar is a member of the firm’s Personal Injury and Products Liability Section. Ben handles cases related to personal injury and product liability. Prior to joining Beasley Allen, Ben was a member of a three-man law firm handling personal injury and wrongful death cases, many of which resulted in six- and seven-figure settlements and verdicts. Ben joined Beasley Allen in 2005 and immediately became involved in the firm’s Vioxx litigation.
After working three years as a police officer with the Montgomery Police Department, Ben completed his undergraduate degree at Auburn University Montgomery. He then attended law school at Cumberland School of Law. While in law school, Ben served as an editor for The American Journal of Trial Advocacy. Ben has been published in that and other publications. Following his graduation from law school, Ben served one year as a law clerk to the Honorable John C. Tyson III on one of the Alabama appellate courts before going into private practice.
In his three decades of practicing law, Ben says his favorite part of the profession is having the opportunity, skills, knowledge and experience to bring closure to his clients. Ben says that every lawyer has a gift and while some are litigators, others are tacticians and legal scholars. Ben says he has been told that his gift is client relations, which is evident in his perspective on clients and the way he handles their cases. Ben says:
As plaintiff lawyers, we see the most heartbreaking of situations – the loss of family members (husbands, wives, and, God forbid, children). We see people badly injured, some of whom suffer life-altering injuries. Our clients are hurting, lost, scared and wondering how they will get past an awful situation or how they will pay medical bills or simply get by in life. I vowed as a young lawyer to never forget this.
Ben further explained that while it is important for the lawyer to skillfully guide a case through the judicial system, it is equally important to remember the firm’s motto of “helping those who need it most.” Ben says:
It brings me great joy and fulfillment to know that I have helped someone through a difficult time and, in some small way, helped them to obtain some measure of justice or some financial means to help them move forward.
Ben says he is proud to be part of a firm that is considered a national leader in securing significant verdicts and settlements for its clients. The firm’s reputation and resources give it the ability to successfully take on huge powerful corporations in order to obtain justice for their clients and trigger comprehensive changes to protect consumers across the board.
One of the first litigations Ben was involved in when he came to the firm was the Vioxx national litigation, which was being led by Andy Birchfield from Beasley Allen. The firm secured a $4.85 billion global settlement for its clients against pharmaceutical giant Merck over its product Vioxx. It was able to represent hundreds of people across the U.S. and in Canada who suffered strokes and heart attacks after taking Vioxx, some of whom died. Ben was happy to be part of this litigation before returning to his “roots” in personal injury and product liability cases.
Ben says he admires the knowledge and skills of his law partners, adding:
The lawyers in this firm are top-notch. I sometimes feel like the fellow who entered his mule into the Kentucky Derby. The fellow knew his mule could not win, but he was just honored to be part of the field. I know I am not the “best” lawyer here, but I am made better by being able to ride on the shoulders of giants in our profession. Beasley Allen is the best of the best, and I am proud to be a small part of that team.
Ben is a Martindale-Hubbell AV Preeminent Rated attorney and has been selected to the Best Lawyers in America and Super Lawyer lists. He currently serves on the Regional Board of the Alabama Head Injury Foundation. Previously, Ben served on the editorial board for The Docket, a publication of the Montgomery County Bar Association, and the board of trustees for the Montgomery County Association for Justice.
The Montgomery native is married to Lisa Matthews Locklar. He has three daughters, Katie, Sarah Beth and Greyson. Katie, who is married to Kyle McMaster, is a graduate of the University of Alabama and of the Auburn University School of Veterinary Medicine. Sarah Beth is a graduate of the University of South Alabama. Greyson is currently a student at the University of Alabama.
When he is away from the office, Ben enjoys spending time on Lake Martin or on the Alabama Gulf Coast. He enjoys outdoor activities such as hunting and fishing. Ben is another hard-working lawyer who is totally dedicated to seeing that his clients receive justice. We are blessed to have Ben with the firm.
Brandi Ross, a Clerical Assistant in the Personal Injury & Products Liability Section, has been with Beasley Allen for two years. Brandi has been very busy over the entire time, dealing with cases that are complex and most challenging.
Brandi and her husband, David, have been married for 10 years. They have two children, Michael, 9 and RaeLeigh, 5. The family attends Church of the Highlands. Brandi says it has become like their second home. Brandi says they love worshipping, fellowshipping, and serving alongside their family of believers in Christ at the church.
Brandi says her family enjoys exploring nature and finding new trails they have never hiked before and she adds occasionally they go camping. Some of their favorite state parks are Oak Mountain and Wind Creek. When things are calmer, Brandi says she enjoys fishing in the peace and quiet. On rainy days Brandi says she likes to paint and read a good nonfiction crime book.
Brandi says she is honored to work for a company that places high value on the things that matter in life. She loves the encouraging atmosphere that welcomes her faith in Jesus Christ. She says, “I am blessed to work for individuals who consider family a top priority. No matter the daily task at hand, I find fulfillment in working for a firm with morals; a firm helping those who need it most.”
Brandi, a hard-working, dedicated employee, is a definite asset to the firm. We are blessed to have her with us.
Michelle Shaw, who has been with the Firm for more than 15 years, is the Legal Assistant to Rachel Boyd and Paul Evans, lawyers in our Consumer Fraud & Commercial Litigation Section.
Michelle is married to Casey Shaw and they have been together for 18 years. Casey is an Investigator for the Alabama Board of Pharmacy. Michelle and Casey have two grown children. Their oldest daughter, 32, is a Structures Mechanical Lead at AirBus in Mobile. The youngest, 25, is a RN at Jackson Hospital and is currently working on her nurse practitioner degree.
Michelle is originally from Oxford, Alabama, but has called Montgomery home most of her life. She is a member of Junior League of Montgomery where she enjoys attending meetings and events. Her family loves to spend time together whether it is on their boat or traveling in their RV. Michelle’s favorite sport is playing tennis. During football season, you can find Michelle cheering for the Crimson Tide.
When asked about her favorite thing about working at Beasley Allen, Michelle says it is the people with the firm. She says that she has enjoyed meeting so many people and making friends with her co-workers.
Michelle is a hard-working, dedicated employee. The work of a legal assistant is very important and needed at the firm. Michelle does an excellent job in that role. We are fortunate to have her with us.
Bridgette Singleton has been with the Firm since 2014 as an Intake Specialist. She is one of the first people to speak to clients and to get their background information pertaining to their case. This is extremely important work and is a necessary part of every case that comes to the firm.
Bridgette is the second youngest daughter of nine children. She attends church with six of her siblings and is a member of the Usher Board and Missionary Society. Bridgette says her hobbies are reading, going to the movies and watching classic movies. She is also a sports fan and loves listening to ‘80s music. Bridgette says her favorite thing about working at Beasley Allen is the pleasant and wonderful environment. She said, “being able to work in a law firm where we can help and fight for our clients” is also one of her favorite things about working at Beasley Allen. Bridgette said, “I love the daily devotions that Mr. Beasley sends out every morning and attending the devotion on Thursdays to hear our attorneys speak about the bible.” Bridgette says she is so blessed to be able to come to work every day and be a part of a place that is headed by so many people who love the Lord just as much as she does.
Bridgett is a valuable employee who has an important job at the firm. We are blessed to have her with us.
Roger Smith joined the firm in 2001 and has focused his practice on complex litigation involving pharmaceutical and medical devices in our Mass Torts Section. Roger’s leadership in various litigations and while working for firm clients has resulted in the successful resolution of thousands of pharmaceutical cases. He served on the litigation teams that negotiated the $4.85 billion Vioxx and the $2.4 billion Actos global settlements. Roger has also served as lead attorney in numerous cases where he has negotiated multi-million-dollar settlements for our clients, including Rezulin, Serzone, Ephedra, PPA, herbal supplements, Gadolinium, Yaz/Yasmin, and Fleet Oral Phosphosoda. Roger has also served on numerous multidistrict litigation (MDL) committees and subcommittees and has served on an MDL Plaintiff Steering Committee.
Currently, Roger focuses on claims involving injuries resulting from the use of high viscosity bone cement in total knee replacement surgeries. These replacements often require early revision surgeries to correct mechanical loosening. He also represents clients in claims involving injuries resulting from various herbal supplements and opioid claims involving addiction, overdose and death.
Roger compares his favorite part of practicing law to one of his other interests – enjoying mystery novels. He explained that a good mystery always starts the same – a tragic event, and then chapter after chapter you immerse yourself in the characters, you investigate the clues, and you discover the truth. And, a good mystery novel always ends with justice. Roger says:
When you are a plaintiff’s lawyer, every day presents a new tragedy, new clues, a different rabbit trail, and every day you work to unveil the truth and seek justice.
Roger’s interest in law began as he was growing up in his hometown of Greeneville, Tennessee. He recalled how a great trial lawyer who lived in his town helped shape Roger’s future. He described John T. Milburn Rogers as a big man with a larger-than-life personality. He was the father of Roger’s good friend, Jenny C. Rogers, who is now a fantastic lawyer in Knoxville, Tennessee.
Roger recalled spending lots of time with Mr. Rogers, visiting his office as a youngster with Jenny and seeing life-size human skeletons and blown up exhibits with accident scenes and horrific injuries. Mr. Rogers would talk to Roger and Jenny about the cases he was handling and how he was trying to make a difference for people that really needed help. Later, when the two friends were in high school and despite his busy schedule, Mr. Rogers dedicated countless hours to the Greeneville High School Mock Trial Team, which won the state championship during Roger’s first year as a team member.
Mr. Rogers recently passed away and was posthumously awarded the Lifetime Achievement Award by the Tennessee Trial Lawyers Association for his dedication to helping those were injured, killed, or impoverished. Roger observes: “Mr. Rogers was always fighting for the little guy. I’d say I became a lawyer because of John T. Milburn Rogers.”
Roger received his Bachelor of Arts with honors from the University of Tennessee, Knoxville, and his Juris Doctor, cum laude, from the University of Alabama School of Law. Prior to joining the firm, Roger worked at defense firms in Phoenix, Arizona, and Knoxville, Tennessee, and at a publicly traded company as in-house counsel where he oversaw regulatory compliance. He has been named to the Best Lawyers and Super Lawyers lists and was named Beasley Allen Lawyer of the Year for the Mass Torts Section in 2015.
When asked what makes Beasley Allen unique, Roger replied, “the people.” He respects and appreciates the firm’s leadership including Mass Torts Section Head Andy Birchfield, and his tireless leadership of the Mass Torts Section. Roger also appreciates the work of his secretary, Alicia Hill, and April Worley, his legal assistant, who have worked alongside him for more than 18 years. Roger says:
We laugh together, cry together, root for one another, and support each other. We believe in each other and believe that together we can do great things for people that need us.
Roger is married to Claudia C. Kennedy, of Vestavia Hills, Alabama. They have three children – Sarah Kennedy, Caroline and Sophie. Roger is a dedicated trial lawyer who works hard for his clients and is always concerned with their well being. We are fortunate to have Roger with the firm.
Gibson Vance Elected President Pro Temp Of Troy Board Of Trustees
In August, Gibson Vance was elected by his fellow members of the Troy University Board of Trustees to serve as the Board’s new President Pro Tempore. Gibson replaces Gerald Dial, a former Alabama Senator, who served in the position since 2012. Gibson was first appointed to the Board in 2012. Last fall, the University honored Gibson as a Troy University Distinguished Alumni of the Year.
Gibson has been a long-time supporter of his alma mater. In addition to providing leadership through the Board of Trustees, he and his wife Kate established the “Kate and Gibson Vance Study Abroad Scholarship.” The scholarship enables students who wish to expand their learning experience beyond the classroom to do so by helping offset certain expenses. Gibson also established an endowment to the College of Arts and Sciences, which launched the “Gibson Vance Distinguished Lecturer Series.” This writer had the privilege of participating as the first speaker in the series during its inaugural year in 2017.
Gibson, a graduate of Faulkner University’s Thomas Goode Jones School of Law, joined Beasley Allen in 2000. He practices in the firm’s Personal Injury and Consumer Fraud Section. Gibson’s law practice focuses on actions against those who negligently or intentionally harm others. He has participated in dozens of jury trials in his legal career, many of which have resulted in large verdicts for his clients. Gibson is Past President of the Southern Trial Lawyers Association, American Association for Justice, Montgomery Trial Lawyers Association, the Alabama Civil Justice Foundation and the Montgomery County Bar Association. He is also an Alabama State Bar Commissioner, representing the 15th Judicial Circuit.
Gibson is an outstanding lawyer and a good man in every respect. He is a credit to the legal profession and a most valuable asset of Beasley Allen. We are blessed to have him at Beasley Allen.
Union Springs Lawyer Christy Crow Becomes President Of Alabama State Bar
Union Springs lawyer Christy Crow was named President of the 18,000-member Alabama State Bar last month and will serve in this prestigious position until July 2020. Christy, a partner at the firm of Jinks, Crow & Dickson, earned her bachelor’s degree at Auburn University and her Juris Doctor degree at the University of Alabama School of Law. Her passion for law is rooted deep in childhood. One of her earliest memories in life is of being in a courtroom after a semi-trailer struck her father, who was riding home from work on a motorcycle with a friend.
Christy says her father, who was thrown 60 feet on impact, survived the accident with lifelong debilitating injuries. His friend, however, was killed. Since then, the pursuit of justice became a guiding force in Christy’s life and career.
In her first year as a lawyer after joining her firm in 1997, Christy represented multiple consumers in arbitration – an area of law that not many lawyers at the time willingly tackled. Since then, she has become known throughout the state as a fierce lawyer in arbitration and in the courtroom.
As skilled as she is in handling consumer complaints, Christy’s memories of her father’s horrible injury developed within her an affinity for personal injury and death cases. She says:
I know I can make a difference and help the victims and their families. Nothing ever takes the injury and pain away, but the compensation makes it easier for the family and the victim to work through the problems associated with a catastrophic injury.
Christy has played an active role in the Alabama State Bar for several years. In 2005, she became the second female president of the Bar’s Young Lawyers Section and is only the third female to be named as President of the State Bar, according to the Union Springs Herald. Her election comes exactly 100 years after the 19th amendment giving women the right to vote was adopted in the U.S. Constitution.
Christy told the Opelika Observer that as president, she wants to make members aware of the advantages Bar membership can have. She is also working “to build on the efforts of prior administrations to do outreach to our members to help them be better lawyers and to help them have more satisfaction with their career,” she told the Opelika Observer.
Sources: Alabama State Bar, Opelika Observer, Union Springs Herald
Girls Lead In Law Event A Major Success In Georgia
As a member of the Georgia Association for Women Lawyers (GAWL) and with a heart for mentoring the next generation, Sharon Zinns, who is in Beasley Allen’s Atlanta office, served as co-chair for the 7th consecutive year for the 18th annual “Girls Lead in Law.” The event was hosted by GAWL for the Girl Scouts of Greater Atlanta and was held earlier this summer at the State Bar of Georgia.
During the badge-earning program, Girl Scouts heard from several guest speakers about various aspects of leadership, the law and practicing law. They toured a courtroom in the U.S. federal courthouse and attended a “mentor lunch.” The event had two tracks – one for Junior Girl Scouts (grades 3-5) and another for older Scouts (grades 6-12). The event culminated in two mock trials at the State Bar Courtroom with the Girl Scouts representing the parties in the cases – The State v. Hansel Schmidt and Gretel Schmidt, and Lord Capulet v. Friar Laurence (over the death of Juliet). The Junior Girl Scouts served as jurors. There were 32 Girl Scouts and 25 Junior Girl Scouts who participated this year.
Sharon’s co-chairs for the event included the Honorable Catherine Salinas (U.S. Magistrate Judge of the Northern District of Georgia), Caitlin Shetter (Vice President, Human Resources at Spanx and previously an associate at Alston & Bird, LLP), and Liliana Salinas (Judge Salinas’ daughter and program alum, now in college). The event planners are encouraged by the number of Scouts who return year after year and the number of successful mentoring relationships established as result of the event.
Bobby Segall Honored With Tommy Wells Award For Lifetime Achievement
Legal Services Alabama recently presented Montgomery lawyer Bobby Segall with the Tommy Wells Award for Lifetime Achievement in support for legal aid in Alabama. Bobby is a longtime supporter of Legal Services Alabama, an organization that serves low-income people by providing civil legal aid and by promoting collaboration to finding solutions to problems of poverty.
A native of Montgomery, Bobby attended college at Vanderbilt University and law school at the University of Alabama, where he finished first in his graduating class. One of the highlights of his career was clerking with Judge Frank M. Johnson, Jr., the former U.S. District Judge and U.S. Circuit Judge recognized for making landmark civil rights rulings that helped end segregation and disenfranchisement of African Americans in the South.
In 1973, following his tenure with Judge Johnson, a great American, Bobby received an LLM degree at Harvard Law School, and later joined the Copeland Franco Law Firm, then known as Hobbs Copeland. Bobby has handled a wide variety of cases for both Plaintiffs and Defendants, though his passion is representing Plaintiffs in both personal injury and business litigation, including complex litigation.
Bobby’s list of clients includes numerous public officials including a governor, lieutenant governors, attorneys general, secretaries of state, and several legislators. He has also represented Alabama’s Democratic Party.
Bobby has received numerous honors through his storied career, including being selected as a Fellow of the American College of Trial Lawyers, Fellow of the American Academy of Appellate Lawyers, Life Fellow of the American Bar Foundation and Alabama Law Foundation, as well as a member of the American Board of Trial Advocates. For more than two decades, he has been included in “Best Lawyers in America,” and has been named an Alabama Super Lawyer.
Bobby has served as president of the Montgomery County Trial Lawyers Association, the Montgomery County Bar Association, and the Hugh Maddox Chapter of the Alabama Inns of Court. He currently serves as president of the board of the Federal Defender’s program for the United States Middle District of Alabama.
Bobby has served as a bar commissioner for nine years, Alabama State Bar president for one year, and as president of Legal Services Corporation Alabama for six years. He also served on the Chief Justice’s Committee on Professionalism and presently serves as Secretary of Alabama’s Commission on Access to Justice. I am proud and honored to have Bobby Segall, a tremendously talented lawyer, as a very good friend.
Sources: LSA and CopelandFranco.com
FAVORITE BIBLE VERSES
Mitch Williams, a Beasley Allen law clerk, sent in Isaiah 41:10 for this issue. He says “Everyone faces adversity or uncertainty in their life. Sometimes, it seems easy to give up. But God is always with you. He is always there for you, and though the answer may not always be apparent, God always has your back. Never have doubt in the Lord.”
So do not fear, for I am with you; do not be dismayed, for I am your God. I will strengthen you and help you; I will uphold you with my righteous hand. Isaiah 41:10
Amber Peden, a staff assistant in our Mass Torts Section, sent in three verses this month. Amber says: “These three verses are perfect for today’s society. We are so busy trying to be and do as everyone else, we forget that we should be and do as our Lord and Savior would have us.”
Do not conform to the pattern of this world, but be transformed by the renewing of your mind. Then you will be able to test and approve what God’s will is – his good, pleasing and perfect will. Romans 12:2
A new command I give you: Love one another. As I have loved you, so you must love one another. John 13:34
But the fruit of the Spirit is love, joy, peace, forbearance, kindness, goodness, faithfulness, gentleness and self-control. Against such things there is no law. Galatians 5:22-23
Lisa Locklar, who is Ben Locklar’s wife, sent in several verses about prayer for this issue. Lisa says: “I’ve realized that my favorite verses seem to change from time to time, depending on where God has me at that particular moment and lately I find drawn to these three.”
Pray without ceasing. 1 Thessalonians 5:17
You do not have because you do not ask. James 4:2
Be anxious for nothing, but in everything by prayer and supplication, with thanksgiving, let your requests be made know to God. Philippians 4:6
Public Citizen Fights For All Americans
Public Citizen, one of the groups on the national scene that fights very hard to protect the rights of all American citizens, is currently fighting to curb corporate power and to expose the conflicts and abuses of the Trump administration. Public Citizen is investing huge resources in transformative campaigns to:
- Curb monopoly power and rein in corporate crime and wrongdoing.
- Overturn Citizens United with a constitutional amendment.
- Pass into law public financing of elections and the most far-reaching pro-democracy legislation since the Voting Rights Act.
- Win Medicare for All and make health care a right.
- Slash prescription drug prices.
- Replace NAFTA to stop its ongoing damage to consumers, workers and the planet.
- Win a Green New Deal to avert the impending climate catastrophe.
- Reduce and reallocate Pentagon spending to fund health care, education and other human needs.
You may not agree with everything that Public Citizen promotes or does. Nevertheless, I am totally convinced everybody at Public Citizen sincerely believes in the causes it takes on. That’s because Public Citizen is independent and not controlled by Corporate America. I will say without reservation that Public Citizen and its staff work very hard for American consumers.
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.
All that is necessary for the triumph of evil is that good men do nothing.
Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.
I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.
Martha Washington (1732 – 1802)
The only title in our Democracy superior to that of President is the title of Citizen.
Louis Brandeis, 1937
U.S. Supreme Court Justice
The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you’re willing to pay the price.
Kindness is a language which the deaf can hear and the blind can see.
Mark Twain (1835-1910)
“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country….corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”
U.S. President Abraham Lincoln, Nov. 21, 1864
“The opposite of poverty is not wealth; the opposite of poverty is justice.”
Bryan Stevenson, 2019
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.”
President Teddy Roosevelt, 1902
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
America In Crisis
America is in crisis with a multitude of most serious problems facing its people. We are experiencing a moral decline in all parts of the country. Far too much happening daily is being motivated by hate, racism or greed. Sadly, the ugly head of racism has once again reared its head in America. Groups founded on a belief in white supremacy have become very active and they pose a clear and present danger for our country. Today our country is badly divided and the dividion is getting wider.
America clearly needs a wakeup call. What more will it take? Racism, hate, greed and mass murders appear to have been accepted as the norm in our country. That can no longer be tolerated.
I would never have believed that mass murders would become commonplace in America. While thoughts and prayers for the victims and communities are needed after these mass murders, we really need strong and affirmative action by our elected officials. That has been sorely lacking in Washington.
All Americans must act collectively to replace hate with love for all others – to replace division with unity – to replace immorality with morality – to replace indecency and ugliness with civility – and we must do so without fail.
It is time for persons in positions of authority to get involved, speak out, and take affirmative action. This is not a political issue – it’s a people issue. My prayer is for the American people to wake up and put a stop to the moral decline in our country. We should all pay heed to the words of Jesus when he answered the lawyer’s question as to what is the greatest commandment:
One of them, an expert in the law, tested him with this question: “Teacher, which is the greatest commandment in the Law?” Jesus replied: “‘Love the LORD your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbor as yourself.’ All the Law and the Prophets hang on these two commandments.” Matthew 22:35-40
If we truly followed these two commandments, our country would be able to resolve all of the problems facing us and we would see an end to the moral decline in America. The answer to our problems can also be found in 2 Chronicles 7:14.
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 I will hear from heaven, and will forgive their sin and heal their land.