Beasley Allen Montgomery, Alabama Office

The Jere Beasley Report September : 2021

CAPITOL OBSERVATIONS

Dallas County District Attorney Is The First Black President Of The Alabama District Attorneys Association

District Attorney Michael Jackson was recently named President of the Alabama District Attorneys Association (ADAA). He will serve for 2021-2022. Michael is the District Attorney in the Fourth Judicial Circuit comprising Dallas, Perry, Bibb, Hale and Wilcox Counties. It’s most significant that Michael is the first Black President of the Association.

The ADAA is an association of 42 women and men who carry the highest burden in the American justice system, each tasked with protecting citizens of Alabama, providing a voice to victims and seeking justice for all. The ADAA is committed to creating safe communities, providing assistance to crime victims and advocating for excellence in the legal system. The association provides resources and assistance to district attorneys’ offices throughout Alabama, contributing to the fair and efficient administration of justice.

Michael Jackson is a dedicated public servant and has contributed greatly to the advancement of the rule of law and civil rights. He has been a tremendously effective district attorney. Michael is a good man in every respect and a role model for all young lawyers in Alabama.

BIG TRUCK ACCIDENT LITIGATION

Beasley Allen Files Lawsuit Against Trucking Companies Responsible For Fiery I-65 Crash That Killed 10

Earlier this summer, Alabama was the scene of one of the most tragic vehicle crashes on its roadways in recent history. One adult and nine children lost their lives on June 19 in a fiery crash that shut down Interstate 65 for many hours. Eight of those children were traveling home after a weekend spent on Alabama’s beaches. They were traveling in a passenger van owned by the Tallapoosa County Girls Ranch, driven by our client, Mrs. Candice L. Gulley.

Beasley Allen filed the lawsuit on behalf of Mrs. Gulley and five of the victims on Aug. 6 in federal court in Montgomery. Greg Allen, the firm’s lead Products Liability lawyer, will lead the litigation team that consists of Ben Baker and this writer.

On the afternoon of June 19, the Girls Ranch van was traveling northbound on I-65 alongside a 2020 Volvo truck-trailer owned and operated by Hansen & Adkins Auto Transport. Both vehicles were located in front of an 18-wheeler owned and operated by Asmat Investment LLC, doing business as Asmat Express.

As the vehicles approached a bridge on I-65, traffic north of the bridge had slowed and stopped due to a series of minor crashes. But the Hansen truck failed to stop and struck a 2020 Ford Explorer SUV before veering over into the left lane and crashing into the Girls Ranch van. The van was then hit by the Asmat 18-wheeler moments later. The collisions caused a fire to break out, which engulfed the van, the 18-wheelers and other vehicles. Bystanders pulled Mrs. Gulley from the wreckage. She then ran around the burning van, trying to help the children, including two of her own children, escape. But the intensity of the fire and the extensive damage from the crash made it impossible. All eight children died.

The defendants, in this case, were at fault, displaying a complete disregard for the lives of fellow travelers around them. As a result, 10 people died that day, including the eight children trapped in the van driven by Mrs. Gulley. Those children tragically burned to death. It is hard to imagine a more horrendous and gut-wrenching set of circumstances, which demand justice and accountability to the fullest measure.

This tragic event should never have happened. We cannot erase or change the disastrous outcome, but we can work to provide answers that will allow a court and jury to hold the defendants accountable for the lives they have devastated.

Our firm also represents, in addition to Mrs. Gulley, the families of five of the children in the van who perished in the crash. The lawsuit was filed in the U.S. District Court for the Middle District of Alabama, Northern Division. If you need more information relating to the lawsuit, contact either Greg Allen or Ben Baker at 800-898-2034 or email at [email protected] or [email protected].

A Case For Backup Cameras On Heavy Trucks

Beginning in May 2018, federal law has required that all new passenger cars, light trucks, and vans weighing less than 10,000 pounds must be equipped with rearview monitoring, commonly referred to as backup cameras. Backup cameras have many advantages over rear view mirrors, which have been required standard equipment for decades. Backup cameras allow drivers to see directly behind their vehicle, all the way to the ground. Mirrors have limitations in this area and create blind spots.

Before the 2018 backup camera legislation, back over accidents resulted in approximately 200 fatalities each year from the passenger vehicle sector. However, based on the limited data in the years following the new legislation, it is clear backup cameras are reducing this number.

Reason would suggest as older vehicles are phased out and newer vehicles become more prevalent, the number of backover accidents will continue to fall. Unfortunately, the 2018 legislation is limited to passenger vehicles and did not address heavy trucks and commercial vehicles.

Since 2011, between 57 and 81 lives have been lost each year due to backover incidents in the workplace, according to the Bureau of Labor Statistics. Currently, there is only one Occupational Safety and Health Administration (OSHA) regulation relating to backover incidents (1926.601). That regulation requires only a backup alarm “audible above the surrounding noise level” on any vehicle with “an obstructed view to the rear.”  Interestingly, the only regulation in place does nothing to address the underlying issue of the driver not being able to see behind them and simply requires an alarm to alert workers to get out of the way. Although this was a good measure when it was enacted, more can be done given today’s technology.

Just as has been done in passenger cars, backup cameras should become standard on heavy trucks and heavy equipment with obstructed views. It is somewhat counterintuitive that passenger cars with relatively few blind spots are now required to have backup cameras. In contrast, heavy trucks and industrial machinery, which often have completely obstructed views, have no such requirement. While backup alarms are certainly a good start, much more can be done. Backup cameras would allow the driver to see the surroundings and prevent backover incidents.

Additionally, object sensing technology has come a long way in recent years.  Just as backup cameras have become standard on passenger vehicles, rear sensing devices are also becoming more feasible. As rear-view cameras and object sensing devices become more prevalent on passenger vehicles, the technology will become more inexpensive. If rear-view cameras or object sensing devices could cut the number of on-the-job backover fatalities in half, that would be a drastic improvement. The technology is available and affordable.

Accordingly, it is time for Federal regulators to push forward requirements that are on par with the times and save dozens of lives each year. If you have any questions or would like to discuss a potential claim, contact Evan Allen, a lawyer in our firm’s Personal Injury & Product’s Liability Section, at 800-898-2034 or by email at [email protected]. Evan, located in our Mobile office, is one of the firm’s lawyers on the litigation team who regularly handle cases involving big trucking accidents.

Sources: OSHA.gov, edmunds.com and Safetyandhealthmagazine.com

The Beasley Allen Truck Accident Litigation Team

Beasley Allen has been successfully handling major big truck litigation for years. The cases are handled by lawyers in the firm’s Personal Injury & Products Liability Section, headed by Cole Portis. Many of the truck cases involve complicated products liability issues that are quite often missed by lawyers who don’t handle product liability cases. Greg Allen is the Lead Products Liability Lawyer for the firm, and he has handled many of the major truck cases for the firm, and that’s because quite often, a defective product issue was involved. We have a team of experienced lawyers making up the Trucking Litigation Team. In addition to Cole and Greg, the team consists of Mike Crow, LaBarron Boone, Ben Baker, Chris Glover, Parker Miller, Evan Allen and Warner Hornsby.

If you have any questions or want to discuss a case, contact Sloan Downes, Section Director, at 800-898-2034 or by email at [email protected]. She will have the appropriate lawyer contact you.

Class Action Litigation

Consumer Fraud Class Action Update

Our Consumer Fraud & Commercial Litigation Section, led by Dee Miles, has been rapidly developing a national class action practice for some time now.  These important cases are making a marked difference in producing fairer prices for consumers and, importantly, better and safer products. Generally, our class action lawyers operate much like police in the consumer marketplace to protect consumers from personal and financial harm.  In the recent past, our lawyers have served as class counsel in such high-profile cases as the diesel fuel emissions cheat-device classes against auto giants Volkswagen and FCA/Chrysler; the “sudden and unintended acceleration” classes against Toyota; and the Takata Airbag failure classes, just to name a few.  The lawyers continue the fight for consumers through these class actions, and below are a few of the cases our lawyers are pursuing on a nationwide basis.

Auto Defect Class Actions

General Motors 5.3-Liter Engine Oil Consumption Cases – This class action deals with excessive oil consumption of model years 2010-2013 GM vehicles equipped with the Generation IV 5.3 Liter V8 Vortec 5300 engines.  Over a million vehicles are impacted, including Yukons, Suburbans, Tahoes, and Silverado Trucks, among others. This action alleges excessive oil is consumed in these vehicles due to improper low-tension oil rings sealing the engine’s pistons.  Numerous states have already been certified for class treatment in federal court in California, and certification is under consideration in other federal courts.

Toyota, Honda, Subaru and Denso Fuel Pump Class – Over 4 million cars are the subject of these three separate manufacturer class actions, all with one common defendant: Denso of America Corporation.  Denso is the supplier of fuel pumps for Toyota, Honda, and Subaru vehicles.  The fuel pumps at issue in this litigation contain an alleged defective “impeller” that causes the fuel pump to fail and the vehicle to either stall or thrust back and forth.  This malfunction presents a serious safety issue for vehicle drivers.  Discovery is ongoing in these cases pending in New York City, New York, Birmingham, Alabama, and Newark, New Jersey.

Ford F-150 Brake Failure Class Action – This class action deals with a faulty seal found in the master cylinder of the Ford F-150 braking system, resulting in a reduction or total loss of braking ability.  Over 1.5 million vehicles spanning models years 2013 – 2018 are affected by this defect.  The case is currently under consideration by the federal court in Michigan for class certification.

Ford False Fuel Mileage – This class alleges Ford misrepresented its fuel economy performance on the Ford F-150 Trucks and Ford Ranger Trucks.  Discovery is currently ongoing in this action in Michigan federal court.  This action may affect more than 1 million vehicles.

Ford Truck Tailgate Failure – This case involves Ford truck models F-250, F350, and F450 involving a defect whereby the tailgate may unintentionally open while the vehicle is in motion.  This class action involves over 1 million vehicles and is currently in the discovery stage in the federal court in Michigan.

Nissan Rogue Class Action – This class deals with over 1 million Nissan Rogue vehicles equipped with an “emergency braking system” operated using radar devices that allegedly pick up false positives and cause the car to brake suddenly.  This case is currently in discovery in Tennessee federal court.

Hyundai/Kia “Engine Failure” Class Action – This class action concerns approximately 300,000 vehicles with an engine defect, causing the engine to fail and sometimes result in a vehicle fire.  This is the second class action involving Hyundai / Kia and concerns vehicles left out of a class action previously settled earlier in 2021.  Discovery is ongoing in federal court in California.

ZF-TRW Airbag and Restraint System Malfunctions – This case involves eight different manufacturers (Toyota, Honda, Hyundai / Kia, Hyundai-Mobis, FCA-Chrysler, Mitsubishi, and ZF-TRW) involved in the manufacture of millions of vehicles containing an airbag control unit that plaintiffs contend is defective and causes the safety systems to malfunction.  This defect directly affects the deployment of airbags and seatbelt restraints in affected vehicles.  This case is a Multi-District Litigation (“MDL”) currently pending in the federal court in California.  Our Beasley Allen team is involved in the leadership of the MDL along with about thirteen other law firms.

Chrysler/FCA Minivans – This class action involves over 2 million minivan vehicles that allegedly have a defective sliding door latch that does not properly engage, causing danger to the vehicle passengers.  This case has recently been filed and is currently pending in federal court in Michigan.

Antitrust Class Actions

Blue Cross Blue Shield Antitrust Class Action – The Blue Cross Blue Shield antitrust litigation is a thirty-eight-state MDL pending in a federal court in Birmingham, Alabama.  This class action involves two litigation tracks; track one is for the “subscribers,” i.e., typically consumers who purchased health insurance policies from BCBS. The second track involves “providers,” which consist of hospitals, physicians and other healthcare facilities that provide healthcare services.  The Subscriber portion of the case recently settled for $2.67 billion, and a class action notice is currently being mailed to the Subscriber Class members.

The Provider track is still being litigated and concerns issues involving Blue Cross Blue Shield’s dominance in the healthcare market that allegedly placed Providers in an unequal bargaining position concerning the negotiation of reimbursement rates for healthcare services. This track, involving hospitals, physicians, and other healthcare providers, obviously involves substantial damages that should far exceed even the $2.67 billion value of the Subscriber settlement.

Extremely talented lawyers from all over the country are participating in this action. Our firm has taken a lead role in all aspects of litigation on behalf of the Providers.  This case continues to be pursued in discovery, and we look forward to a trial date.

Airline Antitrust Class Action – This case involves the four leading airlines (Delta, United, American and Southwest) that allegedly conspired to fix airline fares.  Two airline defendants, American and Southwest, have reached a settlement agreement regarding this allegation, while the remaining two airline defendants, Delta and United, continue to litigate.  The continued litigation is currently pending as an MDL in the District of Columbia federal court.

EpiPens – This class action concerns the EpiPens product used to combat allergic reactions for those who may be presented with dangerous health conditions due to certain allergies.  There are two tracks in this case, one involving a claim of price-fixing and a second concerning the deliberate delay of allowing generics to enter the market to compete with the EpiPen product.  Recently, Pfizer settled the price-fixing portion of this litigation for $345 million.  The case involving Mylan and the delay of generics entering the market is set for trial in September in Kansas federal court.

Salmon Price-Fixing Class Action – This class was recently filed in Florida federal court alleging that salmon fish producers conspired to fix prices in the market, unnecessarily inflating prices.  There are two tracks in this litigation, one involving direct purchasers—i.e., restaurant owners—whom our law firm is representing, and a second involving indirect purchasers.

Consumer Products

Rock ‘N Play/Mattel Class Action – This case arises from Fisher-Price/Mattel’s sale of the wildly popular Rock ’n Play Sleeper, an inclined infant “sleeper” that defendants marketed and sold for ten years as suitable for safe infant sleep, despite knowing it was not.  In April 2019, defendants were forced to recall approximately 4.7 million “sleeper” units because of infant deaths.  However, the recall was inadequate for numerous reasons, and this class action addresses those issues and provides an actual remedy. This case is currently before a New York federal court, pending class certification.

Apple Computer Class Action – This class case concerns Apple’s alleged scheme to slow down, or “throttle,” the performance of certain iPhone models, including the iPhone 6, 6 Plus, 6s Plus, SE, 7, and 7 Plus models (“Legacy iPhones”).  Apple represented that its recent iOS 10 and iOS 11 software updates to Legacy iPhone models (the “software updates”) would improve those devices’ performance and maintain their security against malware and other compromising third-party software.  Apple strongly encouraged iPhone owners to accept these updates but did not inform its customers that it had intentionally designed the updates to throttle the Legacy iPhones’ processing speed.  A settlement was reached earlier this year, and the case is currently on appeal in the Ninth Circuit Court of Appeals in California.

Facebook Class Action – This class action is pending in California federal court against Facebook, Cambridge Analytica, and two other companies for the alleged misuse of personal data of more than 71 million people.  The lawsuit claims the firms obtained users’ private information from the social media network to develop “political propaganda campaigns” in the UK and the US.  Facebook claims it may initially have been misled but failed to act responsibly to protect the data of 1 million British users and 70.6 million people in America. The class has been ordered to mediation, and that process is ongoing.

Insurance Class Actions

Banner Life Insurance and William Penn Life Insurance Class Action – These class actions involve Banner Life and William Penn and concern their increasing the cost of insurance (“COI”) on nearly eleven thousand policies without proper justification.  Plaintiffs in these actions alleged the companies improperly increased the COI to recoup losses it sustained primarily due to the low-interest-rate environment.  The classes were consolidated for settlement purposes, and the settlement was approved by the federal District Court in Baltimore, Maryland, for $38.2 million in May of 2020.  The sole objector to the settlement appealed this decision, so the actions are awaiting a decision from the Fourth Circuit Court of appeals. We anxiously await the Court’s ruling so that we can finalize this class action settlement.

US Financial Life Insurance Company Class Action – This class case also involved an increase in the cost of insurance of universal life insurance policies, which USFL claimed was due to poor mortality experience, and therefore permitted by the policies. Plaintiffs alleged there was no such increase in mortality rates, rendering the COI increase unjustified. This class has also settled for over $26 million and is currently in the Notice Period, awaiting final approval by a federal court in Ohio. The Final Approval Hearing is currently scheduled for Oct. 25, 2021.

Other Class Actions

Robinhood – This class case involves Robinhood’s failure to adequately provide its customers with a trading platform that could handle the volume of securities trades—a failure that resulted in blocking its 10 million customers from trading on one of the busiest days in the stock market’s history.  This case is an MDL in California federal court, and our own Leslie Pescia has been appointed to leadership in that case. This class is currently in the discovery phase.

Data Breach Class Actions

Lawyers in the section have handled a number of data breach cases whereby hackers have broken into a company’s computer system and stolen the personal information of customers in the company’s files. They have previously handled such cases against Target and Home Depot and are currently involved in the Marriott data breach case.  Our lawyers continue to pursue these cases for consumers.

Conclusion

Lawyers in the Section continue investigating other consumer product class actions and encourage consumers who suspect a product or investment is not performing as advertised or represented to consult a lawyer to see if others might be experiencing a similar product failure or misrepresentation.

If you have any questions regarding any of the class cases listed above or have an inquiry as to a new class theory, contact Dee Miles at 1-800-898-2034 or [email protected].

You can also contact Michelle Fulmer, Section Director, at 800-898-2034 or by email at [email protected], and she will put you in touch with the appropriate lawyer from the Section in those areas of interest. In addition to Dee Miles, who heads up the Section, the following are the other lawyers in the Section: Demet Basar, Lance Gould, Larry Golston, Ali Hawthorne, Clay Barnett, James Eubank, Rachel Minder, Leslie Pescia, Leon Hampton, Tyner Helms, Paul Evans, Mitch Williams, Lauren Miles, and Courtney Horton.

THE TALC LITIGATION

California Jury Awards $26.5 Million In Talc Mesothelioma Trial

A state Superior Court jury in California on Aug. 23 awarded a cancer patient roughly $26.5 million in compensatory damages on claims that Johnson & Johnson (J&J) ignored decades of red flags about asbestos in its talc baby powder. The jury found for plaintiff Christina Prudencio, 35, who has suffered through surgery and hemorrhage and has a terminal case of malignant mesothelioma. Her longtime use of J&J talcum powder caused her problems. The jury verdict in the “Zoom” trial, which began June 15, was against the two defendants, Johnson & Johnson and Johnson & Johnson Consumer Inc.

The jury awarded $15 million for future noneconomic damages, including pain and suffering; $5 million for past noneconomic damages; $4.1 million for lost past and future income; $1.57 million for lost household services; and $800,000 for past medical costs. The latter amount was stipulated by the parties before deliberations. There are several warnings that J&J disregarded over the decades, but there were two obvious red flags that got the jurors’ attention:

  • a 1971 meeting with a researcher who had discovered chrysotile asbestos in the talc, and
  • an incident in which the company in 1976 successfully pressured executives of Mt. Sinai Hospital in New York to backpedal publicly on findings by some of its researchers that there was asbestos in talc.

The verdict was in the first phase of the trial, which dealt only with liability and compensatory damages. The punitive damages phase of the trial started on Aug. 25 before the same jury, and on the next day, the jury awarded an additional $100,000 in that phase. The jurors found the conduct of the defendants to be of the sort required to justify punishment.

Ms. Prudencio is represented by Joseph Satterley of Kazan McClain Satterley & Greenwood. The case is Christina Prudencio v. Johnson & Johnson (case number RG20061303) in the Superior Court of California, Alameda County.

Source: Law360.com

A Brief Summary Of Talc Trial Updates

Cadagin v. Johnson & Johnson

The case of Cadagin v. Johnson & Johnson (J&J) was recently concluded in the 20th Judicial Circuit Court of St. Clair County, Illinois. Leigh O’Dell and Ted Meadows led the trial team for the plaintiff during the trial of this case. They represented Colleen Cadagin, the niece of Elizabeth Driscoll, who died from ovarian cancer linked to her use of J&J’s talc-based products. The firm has represented thousands of women who developed ovarian cancer after using Johnson & Johnson (J&J) talcum powder for feminine hygiene.

Despite tremendous evidence, which trial observers felt was overwhelmingly in favor of the plaintiff, the jury found for J&J. Leigh O’Dell, who represented Ms. Driscoll’s family, said the evidence linking genital talc to ovarian cancers was in fact overwhelming. She had this to say:

This decision will not dissuade us from seeking justice for the thousands of women who have become victims of this disease through the corporate negligence and greed of Johnson & Johnson.

The verdict came after Judge Christopher Kolker, the Illinois judge who presided over the trial, held J&J and one of its key witnesses in contempt over the witness’s failure to reappear for cross-examination. Judge Kolker struck the testimony of Dr. Susan Nicholson, Vice President of Women’s Health for J&J and told the jury that the company and Nicholson were in contempt of court.

The contempt order by Judge Kolker is just an indication of how J&J has no respect for the law nor the judicial system. The company has shown no respect for the FDA or any regulatory agency and has constantly lied about the great risk to the public about its talcum products.

But more importantly, J&J has shown no feeling, concern or respect for the thousands of innocent women it has killed over the years. In fact, J&J targeted African American women who the studies showed were the largest users of the talc products.

Our firm has filed a motion for a new trial in the Cadagin case. The motion will likely have been heard by the time this issue is read.

The Kleiner Case Is Being Tried In Pennsylvania

Beasley Allen lawyers are now trying a case on behalf of Ellen Kleiner in the Philadelphia County Court of Common Pleas. Johnson & Johnson (J&J) removed the case to federal court on the very day a jury was to be seated.  U.S. District Judge Michael Baylson, who heard the removal petition, remanded the case to state court.

A jury was selected, and the trial started on Aug. 17. J&J is trying its best to drag the case out. At press time, the trial was proceeding but at a slow pace.

Leigh O’Dell, Ted Meadows, David Dearing, Jennifer Emmel, Ryan Beattie and Margaret Thompson are handling the case, along with Nancy Winkler, Todd Schoenhaus and Jessica Colliver of Eisenberg, Rothweiler, Winkler, Eisenberg, & Jeck, P.C. We will write further on this case in the next issue and hope it will be concluded by that time.

Sources: Law360.com and arynews.tv

The Next In Trial Line

In St. Louis, Missouri, a multi-plaintiff trial involving three plaintiffs remains on schedule. Motion hearings were scheduled for Aug. 31, with the actual trial to start on Sept. 7. We will write more on this case in the next issue. Our firm represents the plaintiffs in this case.

Talc Users Seek Court Orders To Bar J&J Liability Spinoff

Johnson & Johnson (J&J) may offload its sizable talc legal liabilities into an entity destined for bankruptcy using a highly questionable tactic. The public will be up in arms once they learn what J&J is doing to avoid legal liability to its victims. Ovarian cancer patients have asked for restraining orders to stop J&J in two courts. This effort is to keep J&J from depriving its victims of the ability to seek damages in a court of law against the very company that is responsible and has been sued for its wrongdoing. I will discuss each case below.

The Missouri Court

Filed in Missouri Circuit Court in the City of St. Louis, the petition by three ovarian cancer patients (who contended their illnesses were caused by J&J’s talcum powder) urges the Missouri court to restrain J&J from taking a devious means to avoid liability and which if allowed would constitute an imminent threat to their legal rights. The petition says:

J&J has been scheming for months to engage in a so-called ‘Texas Two-Step’ — a corporate-law shell game that would allow this corporate behemoth, valued at nearly half a trillion dollars, with record-breaking recent profits, to shield its enormous assets from ever being used to provide relief to these plaintiffs and the tens of thousands of other women who have fallen victim to J&J’s talc.

The petition was filed in the same courthouse where a number of trials have resulted in major verdicts against J&J, including a $2.1 billion judgment that the Supreme Court recently refused to review.

The plaintiffs in the Missouri case are represented by Andy Birchfield and Leigh O’Dell from our firm, Jim Onder, Wylie Blair of OnderLaw LLC, Michelle Parfitt of Ashcraft & Gerel LLP, and Alexandra Walsh and J.J. Snidow of Walsh Law. The case is Giese et al. v. Johnson & Johnson in the Missouri Circuit Court.

The Delaware Court

A motion has also been filed in the Delaware bankruptcy court. In that case the bankruptcy judge refused on Aug. 26 to bar Johnson & Johnson from enacting the move of talc liabilities into a separate entity that would go to Chapter 11. U.S. Bankruptcy Court Judge Laurie Selber Silverstein refused the request by the ovarian cancer patients for a restraining order.

The ruling came in the bankruptcy case of Imerys Talc America, a talc supplier that has often been a co-defendant alongside J&J in talc liability lawsuits. Andy Birchfield said in a statement:

The women who have been poisoned by J&J and then lied to are undeterred. We will carefully consider Judge Silverstein’s ruling and take our next steps.

This case is In re: Imerys Talc America Inc. et al. (case number 1:19-bk-10289) in the U.S. Bankruptcy Court for the District of Delaware.

Conclusion

I encourage groups and organizations that represent people, and especially those that support women, to obtain and review the key documents from J&J files that have been obtained in litigation. These documents reveal how truly bad J&J’s conduct has been.

Lawmakers in Washington are also looking into media reports that J&J may follow this path into bankruptcy. A House subcommittee in late July asked the company to turn over information on the matter, following a media report on the bankruptcy scheme earlier that month. The House subcommittee wants information from J&J about its plans to put its talc liabilities under bankruptcy protection. This committee also needs to get and review all of the J&J documents showing the company’s bad conduct.

Beasley Allen Talc Litigation Team

The talc litigation is ongoing, and even with the problems caused by COVID, it continues around the country at a record pace. There have been some significant happenings recently. The lawyers on our Talc Litigation Team are continuing to prepare for the upcoming trials.

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene.

Will Sutton and Charlie Stern, lawyers in our Toxic Torts Section, are on the team, but they are exclusively handling mesothelioma claims. Will and Charlie are looking at cases of industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

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

OPIOID LITIGATION

Update On The Proposed $26 Billion Settlement

At least six U.S. states, including Alabama, did not sign on to the proposed $26 billion settlement with three drug distributors and Johnson & Johnson (J&J), companies that have been accused of fueling the nation’s opioid epidemic.

States had until Aug. 21 to decide whether to support the $21 billion proposed settlement with McKesson Corp, AmerisourceBergen Corp and Cardinal Health Inc and a separate $5 billion settlement proposal from J&J. Talks had continued past the deadline, Georgia – the most populous hold-out state – hasn’t signed on but indicated it could wind up backing the agreement. Attorney General Chris Carr stated:

We have not rejected the deal, but we have not joined because at the present time joining the national settlements does not guarantee the best outcome for Georgia and its counties, cities and citizens. We remain active in representing Georgia throughout negotiations, and we’re going to continue to get input from Georgia stakeholders.

Alabama Attorney General Steve Marshall said that Alabama would not accept the settlement proposals, and the litigation team would continue with trial preparation in the state’s case, which is set for Nov. 1, 2021, in Montgomery.

New Mexico, Oklahoma, Washington and West Virginia also declined to join the settlements. New Hampshire agreed to the settlement with distributors but not to the J&J agreement.

The complex settlement formula envisions at least 44 states participating, but ultimately the companies get to decide whether a “critical mass” has joined and whether to finalize the settlement.

The size of the settlement is based on the number of participating states. Those that decline to join will instead seek a larger recovery by continuing to litigate their claims against the defendants in the courts. The defendant companies have already paid hundreds of millions in settlements.

The agreement, unveiled by 14 state attorneys general on July 21, attempts to resolve more than 3,000 lawsuits accusing the distributors of ignoring red flags that pain pills were being diverted into communities for illicit uses and that J&J played down the risks of opioid addiction.

The defendant companies had until Sept. 4 to determine if there is sufficient support for the agreements. The participation of states is tied closely to that of their local governments, which brought the majority of the lawsuits. Cities and counties within participating states would have through Jan. 2 to sign on. Ultimately, $10.7 billion of the settlement money is tied to the extent to which localities participate.

Beasley Allen lawyers represent Georgia and Alabama in the opioid litigation. We are not making any public statements on whether the proposed settlements are good or bad. All such statements will come from the Office of Attorney General for those states.

Source: Reuters

Judge Says It’s Time To Settle The Perdue Bankruptcy Case

On Aug. 23, U.S. Bankruptcy Judge Robert Drain told the parties to the Perdue bankruptcy case that “the time has passed at this point to speechify” and that the case needed to be settled. The judge urged the objecting states and the owning members of the Sackler family to settle their differences. At press time, this matter was ongoing and still unsettled. A sticking point for nine states that remain opposed to the plan has been the release of the Sacklers from liability. At press time, no real resolution had been reached on that issue.

The Sackler releases are a real problem for the U.S. trustee, nine states, the District of Columbia and the U.S. Department of Justice, all of which say that the court does not have the authority to release third parties like the Sacklers from liability without their consent.

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

Source: Law360.com

Sword Of Damocles’ Hangs Over Endo In Opioid Trial

Suffolk County Supreme Court Justice Jerry Garguilo, a New York judge, made it “abundantly clear” during a hearing last month that he may severely punish Endo Pharmaceuticals for discovery abuses in the State of New York’s opioid case, ruling that the drugmaker had disobeyed a stopgap remedy. The judge also observed that Endo’s Arnold & Porter lawyers had been “deemed dishonest” in another opioid case. The judge delivered this message during an Aug. 25 hearing on requests from the New York Attorney General that Endo be found liable by default and held in contempt along with its litigation counsel, Arnold & Porter, and its discovery counsel at Redgrave LLP.

In one significant setback for Endo, Justice Garguilo determined that the deadline had come and gone for the company to generate a complete list of belated disclosures of key documents, including notes describing its opioid promotion at a doctor’s office frequented by “drug abusers and crackheads.” Endo has argued that a single list wasn’t feasible, but Justice Garguilo rejected that assertion. It’s significant that he raised the specter of sanctions. In that regard, the judge said: “There hasn’t been compliance. [As for] whether it amounts to contempt, the court will reserve its determination.” Justice Garguilo appointed a discovery referee to help him assess whether remedies or discipline are warranted.

During the hearing, Justice Garguilo observed: “It should be abundantly clear that the proverbial sword of Damocles is hanging over the head of Endo.” The judge then cited a default judgment earlier this year from a Tennessee chancellor in another opioid case where Endo and Arnold & Porter were accused of serious discovery violations.

New York is seeking an order striking Endo’s answers in the case and entering a default judgment on liability. Justice Garguilo, at the end of the hearing, indicated he would rule by Sept. 3 on New York’s request.

It’s noteworthy that Justice Garguilo cited the Tennessee chancellor’s default order, which contained a dozen footnotes referencing “false statements” by “Endo and its attorneys.” “[It is] noteworthy that the chancellor … on 12 occasions — on 12 occasions — in the Tennessee action indicated that the defendants were not truthful,” he said. “Not once. Twelve occasions.” We will see what happens on this issue when Judge Garguilo rules.

The cases are In re: Opioid Litigation (case number 400000/2017) County of Suffolk v. Purdue Pharma LP et al., case number 400001/2017, County of Nassau v. Purdue Pharma LP et al. (case number 400008/2017) and State of New York v. Purdue Pharma LP et al. (case number 400016/2018) in the Supreme Court of the State of New York, County of Suffolk.

Source: Law360.com

McKinsey Opioid MDL Appears To Be On A Fast Track

Senior U.S. District Judge Charles R. Breyer, the California federal judge overseeing the multidistrict litigation (MDL) involving consulting giant McKinsey & Co., let the parties know that this MDL will be on a fast track. At the MDL’s first hearing, Judge Breyer told the lawyers to lace up their “track shoes” and expect swift rulings on pivotal threshold issues.

Judge Breyer via Zoom kicked off the inaugural status conference by outlining plans to streamline the newly formed MDL and expeditiously address major disagreements over its size and scope.

One of the top priorities, Judge Breyer said, will be determining whether opioid lawsuits filed by local governments are barred because McKinsey has already settled essentially identical suits filed by every state. The management consulting firm is paying $640 million to resolve claims that it inflamed the opioid crisis by helping Purdue Pharma “turbocharge” its sales of OxyContin.

Judge Breyer discussed the various dynamics and described himself as “sympathetic” to the view that opioid litigation implicates “a health crisis, and therefore, that it is a serious matter” in need of prompt resolution.

Of the 50 opioid lawsuits that McKinsey is facing, 32 have been filed by political subdivisions. The other 18 cases include claims brought on behalf of Native American tribes, health benefit plans, schools and infants who have neonatal abstinence syndrome because their mothers used opioids while pregnant.

Judge Breyer’s intent to move the McKinsey MDL along at a fast pace is most encouraging. Hopefully, all of the parties and law firms involved will follow the judge’s lead. The judge subsequently named a 10-member Plaintiffs’ Steering Committee in the MDL.

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

Source: Law360

The Beasley Allen Opioid Litigation Team

Beasley Allen’s Opioid Litigation Team continues to work on existing cases, and our lawyers are still taking on new clients. As stated last month, activity in the opioid litigation will depend largely on what happens relating to the announced global settlement and further negotiating efforts. We will write more on the upcoming Alabama case in Montgomery and  will discuss the settlement picture next month.

As stated, Beasley Allen lawyers represent the State of Alabama, the State of Georgia, and numerous local governments and other entities and handle individual claims on behalf of victims in this litigation. Our lawyers are examining the proposed national settlement carefully. We have made recommendations to our clients but will not discuss anything along those lines publicly.

Our Opioid Litigation Team includes Rhon Jones ([email protected]), Parker Miller ([email protected]), Ken Wilson ([email protected]), David Diab ([email protected]), Rick Stratton ([email protected]), Will Sutton ([email protected]), Jeff Price ([email protected]), Gavin King ([email protected]), Tucker Osborne ([email protected]), Elliott Bienenfeld ([email protected]) and Matt Griffith ([email protected]).

If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above at 800-898-2034 or by email.

THE JUUL LITIGATION

JUUL Bellwether Trials Set To Begin In April 2022

The judge overseeing the JUUL MDL has selected four personal injury bellwether cases to be tried against JUUL Labs, Altria, JUUL founders Adam Bowen and James Monsees, and JUUL Directors Nicholas Pritzker, Riaz Valani, and Hoyoung Huh. Beasley Allen represents three of the four bellwether plaintiffs. The court has set the dates for the first two trials, which we will give a brief description of two below:

  • The first bellwether trial set to begin in April 2022 will be for Beasley Allen clients – a mother and her 16-year-old daughter – from a small town in Tennessee who will face off against JUUL Labs. Sadly, the minor plaintiff started using JUUL at just 12-years-old, believing JUUL was completely safe. Now, four years later, she is severely addicted to nicotine.
  • In the second bellwether trial set for June 2022, a 22-year-old Rhode Island man, who started using JUUL at 16-years-old, alleges that he became severely addicted to nicotine. Both plaintiffs continue to struggle with severe nicotine addiction and have sustained other injuries including, emotional/behavioral issues, breathing/respiratory issues, heightened illnesses, an overall decline in wellbeing and livelihood, and emotional distress.

These first two bellwether trials will be monumental to the vast national litigation against JUUL Labs. The JUUL MDL was created in the fall of 2019. Since that time, the Plaintiff Steering Committee has conducted exhaustive discovery of JUUL Labs and other co-defendants. Fact discovery will come to an end this month, and expert discovery will commence this fall.  Defendants have filed multiple rounds of motions to dismiss claims brought by plaintiffs. While some discreet claims have been dismissed, the majority of claims against the primary defendants remain.

Approximately 2,000 personal injury cases and 260 government entity cases (school districts, cities, states, and tribes) are pending in the JUUL MDL. In the California state court litigation in Los Angeles Superior Court, approximately 2,740 personal injury cases and 83 government entity cases are pending against JUUL.

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

Joseph VanZandt serves on the JUUL PSC. He and Mass Torts Section Head Andy Birchfield are leading our firm’s efforts to hold JUUL accountable for the damage they have done to thousands of youth around the country. Beau Darley, another lawyer in the Section, serves on the PSC for the California state court litigation.

The JUUL Litigation Team

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

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

THE SUNSCREEN LITIGATION

The Sunscreen Litigation

David Byrne, a lawyer in our firm’s Mass Torts Section, continues to lead a team of Beasley Allen lawyers pursuing a federal class action lawsuit on behalf of consumers who bought recalled sunscreen products made by Neutrogena and Aveeno, subsidiaries of Johnson & Johnson (J&J). Andy Birchfield, who heads the section, is also involved in the litigation.

The recall and class action follow the results of an independent study by Valisure that found alarming concentrations of the carcinogen Benzene in at least 78 sun care products made by Neutrogena, CVS Health, Banana Boat, and other manufacturers.

More recently, scientists have petitioned the Food and Drug Administration to recall sunscreens that may contain benzophenone, a suspected carcinogen that can harmfully interfere with hormones and reproductive organs. J&J’s Neutrogena brand sunscreens have tested positive for benzophenone.

J&J has agreed with calls by consumers for centralizing the lawsuits accusing the pharmaceutical giant of selling sunscreen products tainted with the carcinogen benzene.

With at least a dozen proposed class actions in five different federal district courts across the country, J&J told the panel that creating an MDL was warranted in light of the overlapping issues in the cases concerning claims that it’s Neutrogena and Aveeno sunscreen products contained the toxic substance.

The MDL case is In re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation, MDL No. 3015, before the Judicial Panel on Multidistrict Litigation.

In addition to Beasley Allen’s David Byrne and Aigner Kolom, the litigation team includes Alex Walsh and Kimberly Channick from Walsh Law PLLC and Seth Meyer, Alex Dravillas and Warren Postman from Keller Lenkner LLC. If you or a loved one has experienced harm from using sunscreen products, contact Melissa Prickett or David Byrne at 800-898-2034 or email [email protected]  or [email protected].

THE PARAQUAT LITIGATION

An Update On The Paraquat Litigation

While paraquat is widely known for its agricultural use as total-kill weed control in orchards, vineyards, and farms, other industries have incorporated paraquat into routine use for non-selective weed control. These include power sub-stations, bus stops and railroad right-of-ways where total vegetation control is desired. Now, many people who had direct exposure to paraquat have been diagnosed with Parkinson’s Disease.

Before paraquat came on the scene in the 1960s, train companies sought ways to stop intrusive weed growth. Trains require an unobstructed track to run smoothly, prevent right-of-way fires, and maintain visibility at road crossings, so deploying a total-kill agent such as paraquat solves that problem. By the 1970s, locomotives began carrying a few weed removal spray cars containing paraquat and other chemicals, spraying these herbicides over thousands of miles of tracks throughout the United States each year.

Adding this chemical, which kills everything it touches, to the train cars already in use helped accomplish lower-cost weed control. But at the same time, the railroad workers who were directly exposed to paraquat have suffered dangerous health consequences.  Railroad workers who mixed, poured, and sprayed these chemicals were not warned of the toxicity of paraquat and were not informed of the need to use personal protective equipment.

The Paraquat MDL has been formed in the Southern District of Illinois to consolidate these cases. Judge Rosenstengel recently issued an order appointing the plaintiffs’ leadership. Beasley Allen lawyer Julia Merritt has been appointed to a leadership position on the Plaintiffs’ Executive Committee.

Beasley Allen’s Toxic Torts Section is accepting paraquat cases. Contact Rhon Jones ([email protected]), Julia Merritt ([email protected]), or Matt Pettit ([email protected]) for more information.

Source: https://archive.lib.msu.edu/tic/wetrt/article/1979sep89.pdf

The Paraquat Litigation Team

We have a Paraquat Litigation Team at Beasley Allen consisting of lawyers in our Toxic Torts Section. The team is handling the paraquat cases. The lawyers on the team are Julia Merritt ([email protected]), who heads up the team, Trisha Green ([email protected]), and Matt Pettit ([email protected]). Rhon Jones ([email protected]), who heads up our Toxic Torts Section, is also working with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or by email for more information on the litigation, including the MDL.

PRODUCT LIABILITY UPDATE

Remington Offers To Settle With Sandy Hook Plaintiffs For $33 Million After Judge Approves Case For Trial

A Connecticut judge has allowed a lawsuit against Remington filed by a survivor and families of nine children killed in the December 2012 Sandy Hook Elementary School massacre to move forward to trial. According to Law360, the day after the judge’s ruling, the gunmaker offered to settle with the plaintiffs for $3.66 million per plaintiff, which would be a total of $33 million in the proposal. The plaintiffs filed the lawsuit in 2014 against Remington, which made the Bushmaster XM15-E2S used in the tragic mass shooting. Josh Koskoff, a lawyer for the plaintiffs, said they are considering the proposal but that the case continues to be prepared for trial.

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), shielding gun manufacturers from wrongful death lawsuits involving their products. Seven years later, armed with the Remington assault-style rifle, a gunman entered the elementary school and fired off 154 rounds in under five minutes. His targets were kindergartners, first-graders and their teachers. Earlier that morning, the gunman killed his mother and finished his rampage by taking his own life with the same rifle.

Remington was shielded from wrongful death actions because of the PLCAA. The lawyers for the families were forced to develop an alternative strategy for seeking justice and holding Remington accountable.

The plaintiffs’ lawsuit seeks to hold Remington accountable under Connecticut’s law prohibiting deceptive marketing practices, the Connecticut Unfair Trade Practices Act (CUTPA). The lawsuit alleges that Remington inappropriately marketed the weapon to civilians by highlighting the militaristic and assault-type qualities. Anybody who has served in the U.S. military knows that assault rifles are designed for a single purpose, and that is to be used to kill human beings. Hunters also know these weapons are not used for hunting animals.

The case has overcome numerous challenges from the gun maker and has survived all of them. In 2016, a Connecticut state court dismissed the case, but the state’s supreme court overturned that ruling in 2019, finding that the plaintiffs had standing to sue Remington under the CUTPA. The U.S. Supreme Court refused to review the case when Remington made the request. In 2018 and again in 2020, Remington declared bankruptcy. Any proposed settlement will require approval by the Bankruptcy Court in Alabama.

In a statement, the plaintiffs’ lawyer, Josh Koskoff, said:

Since this case was filed in 2014, the families’ focus has been on preventing the next Sandy Hook. An important part of that goal has been showing banks and insurers that companies that sell assault weapons to civilians are fraught with financial risk. Financial institutions like JP Morgan and Franklin Square learned that lesson when Remington went bankrupt.

The case is Donna L. Soto v. Bushmaster Firearms International LLC et al., (case number X06-UWY-CV15-6050025) in the Superior Court of Connecticut, Complex Litigation Docket, Judicial District of Waterbury.

Sources: Law360, New York Times and CNN

$21 Million Hip Implant Verdict In Missouri Upheld

The $21 million jury verdict against Biomet Inc. in a Missouri court, has been allowed to stand. The verdict in favor of a woman injured by defective hip implants was upheld by U.S. District Judge Stephen R. Clark, the Missouri federal judge who presided over the trial. Post-trial motions filed by the medical device maker were rejected by Judge Clark.

In three separate opinions, Judge Clark denied Biomet’s requests for a new trial, judgment as a matter of law or to alter the November verdict entered in favor of Mary Bayes and her husband Philip Bayes over issues with Biomet’s M2a Magnum metal-on-metal hip replacement product.

Biomet had argued that the $21 million verdict for Mary Bayes was excessive. Ms. Bayes dislocated her hip 12 times and had undergone seven revision surgeries since having both her hips replaced with M2a Magnum implants in 2008. Judge Clark rejected Biomet’s motion and found the verdict to be within the guidelines.

The Bayeses are represented by Darin Schanker, J. Chris Elliott, Melanie R. Sulkin and J. Kyle Bachus of Bachus & Schanker LLC; Michael Quillin and James D. O’Leary of O’Leary Shelton Corrigan Peterson Dalton & Quillin LLC; James G. Onder of Onder Law LLC; Maurice B. Graham of Gray Ritter PC; Jessica A. Perez of Pendley Baudin & Coffin LLP; and Zachary Wool of Barrios Kingsdorf & Casteix LLP.

The case is Bayes v. Biomet (case number 4:13-cv-00800) in the U.S. District Court for the Eastern District of Missouri. Biomet says it will appeal to the Eighth Circuit.

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

Single-Vehicle Wreck Cases And Tire Defects

Single-vehicle wrecks can haunt a trial lawyer. A potential client comes into the office looking for legal advice and help because a loved one has been killed or seriously injured in a car wreck. Soon, it is revealed that the injury occurred in a single-vehicle wreck; there’s no negligence, no defendant, no case. However, an investigation should never end there. A careful investigation could reveal that a defective tire caused the wreck, ultimately leading to grounds for a client’s recovery that could make a big difference in their life. Such a discovery can also provide answers and explain what happened to them or their loved one.

On May 20, 2020, the Arkansas Court of Appeals upheld a $1.2 million verdict against Hankook Tire Company and its U.S. subsidiary. The case involved a tread separation on a defective Hankook 385/65R 22.5 tire. Elmar Philpot was driving a dump truck, and when the tire blew up, it caused him to lose control. He was ejected through the windshield and injured. Like many tire defect cases, the issues in the tire stemmed from a flawed and negligent manufacturing process.

Beasley Allen is honored to represent Robert Crum, Jr. in a similar case against Hankook. Mr. Crum was driving a dump truck on Highway 22 in Dallas County, Alabama, when the same model tire – Hankook 385/65R 22.5 – experienced a de-tread blowout which led to Mr. Crum losing control of the vehicle. In this instance, the tire was defective in its manufacture and design, which caused the tire to de-tread and caused the wreck. This is despite proper maintenance and use of the tire.

Beasley Allen lawyers are able to seek some measure of justice for Mr. Crum’s family because a careful investigation of the scene led to tell-tale signs of a tire defect. The investigating officer noticed rim marks in the roadway where the wreck occurred, as well as damage to the rim of the subject tire itself – both signs that a blowout occurred and indicating there may be a case against the tire manufacturer. Next, the tire itself was in shreds, despite no significant signs of cracking or damage to the rubber material.

Even though single-event wrecks can sometimes mean no avenue of recovery for a potential client, a thorough investigation is always required to determine the extent of any product defect claim, like a tire defect, that could provide some small manner of justice for a client. If you think you may have a tire defect case, contact Ben Baker or LaBarron Boone, lawyers in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected] or [email protected], and they will gladly work with you to help evaluate, investigate, or assist on your case.

Subaru Expands Fuel Pump Recall After Beasley Allen Files A Class Action On Behalf Of Owners And Lessees

In February of 2021, our class action lawyers filed a class action lawsuit involving defective Denso fuel pumps in Subaru vehicles. Our class lawyers had previously filed similar class action cases against Toyota and Honda and parts supplier Denso. Subaru installed the defective pumps in its vehicles from 2013 forward.

The lawsuit, filed on behalf of Plaintiff Giles Cohen in the District Court of New Jersey, alleges the defective Denso fuel pumps can fail prematurely and without warning, causing an increased risk for collision and injury.

The class lawsuit follows Subaru’s April 2020 recall of nearly 188,207 affected vehicles where it admitted the defective nature of the fuel pump. Plaintiffs’ suspicions that Subaru’s first recall failed to capture all affected vehicles were confirmed July 29, 2021, when Subaru expanded the recall to cover over 165,000 additional vehicles equipped with the defective Denso fuel pumps.  The second recall covers additional Subaru models built in 2018 and 2019.

Class members contend, and their experts confirm, that the defective fuel pumps contain a plastic impeller that is vulnerable to excessive fuel absorption and the resultant swelling and deformation. The fuel pump starves the Subaru engines of fuel pressure after its impeller deforms, swells and contacts the fuel pump’s housing. Drivers who experience the fuel starvation defect face drivability problems ranging from diminished acceleration to complete vehicle shut down.

The lawsuit also alleged that Subaru knowingly distributed vehicles that put drivers at risk of crash and being stranded on highways.

Beasley Allen lawyers Dee Miles, Demet Basar, Clay Barnett, and Mitch Williams are litigating the Subaru case, along with lawyers from Carella Byrne Cecchi Olstein Brody & Agnello, Seeger Weiss; DiCello, Levitt & Gutzler; Hagens Berman Sobol Shapiro; and Blood Hurst & O’Reardon. If you need more information, contact Clay Barnett at 800-898-2034 or by email at [email protected].

GM Buyers Say Millions Of Vehicles Have Faulty Airbags And Belts

A class action lawsuit has been filed against General Motors in a Michigan federal court. It’s alleged in the complaint that for more than a decade, General Motors hid defects in its trucks and SUVs that prevented airbags from deploying and seatbelts from tightening during crashes. The plaintiff seeks to represent “millions” of individuals across a period dating back to 2009 in the lawsuit. The plaintiffs (drivers) allege in the complaint:

  • GM vehicles such as the Silverado, Tahoe, Astro and Trailblazer have been manufactured with an issue in their sensing and diagnostic modules, or SDMs, that prevent airbag and seatbelt deployment just 45 milliseconds after a crash begins, creating dangerous and sometimes fatal outcomes in crashes that last longer than that period.
  • A National Highway Traffic and Safety Administration (NHTSA) dataset shows that at least 1,298 people were killed or injured in frontal collisions during which the airbags in the class vehicles did not deploy.
  • Despite its knowledge of the defect and its impact on safety, GM has concealed the defect and failed to recall or repair the class vehicles, presumably to avoid the significant costs and inconveniences of recalling millions of vehicles.
  • GM has hidden the defect in spite of its obligation to disclose it, misrepresented the class vehicles to be safe, and continued to sell them to consumers.
  • In 1999, a decade prior to the reorganization, a team of software engineers from Delco Electronics, which designed the SDM software program in question, warned “old GM” that preventing the airbag and seatbelt deployment after 45 milliseconds was a reckless design decision.
  • GM’s truck group ignored the warning, but “tellingly,” the GM car group heeded the warning and rejected the 45-millisecond approach, introducing a window of 150 milliseconds.
  • When it was formed in 2009, General Motors LLC acquired books, records, and personnel from Old GM that reflected this reckless decision to use the dangerous SDM calibration in its trucks and SUVs.
  • Despite this acquired knowledge, GM continued to use Delco SDMs in its vehicles and, on information and belief, continued to use the defective calibration associated with those Delco SDMs as well.
  • In addition to a mounting dataset of crashes involving the SDM defect, a number of personal injury lawsuits for suspicious airbag failures would have put the company on notice.
  • GM should have known about hundreds of airbag failures in the class vehicles, which were publicly reported to the NHTSA.
  • Drivers say that GM has a history of sweeping defects under the rug in an attempt to avoid a recall.

The suit names General Motors LLC, the reorganized version of the company that was formed in 2009 after the previous iteration filed for bankruptcy in the wake of the financial crisis.

The drivers seek to represent anyone in the U.S. or its territories that bought or leased vehicles with allegedly faulty SDM systems, dating back to the new GM’s formation in July 2009. In addition to a nationwide class, the drivers also propose state classes in California, Florida, Louisiana, Michigan, North Carolina, Ohio and Texas.

It’s contended by the plaintiffs that any applicable statute of limitations is tolled because the drivers were only capable of learning of the defects recently. It’s alleged on that issue in the complaint:

Due to the highly technical nature of the SDM calibration defect, plaintiffs and class members were unable to independently discover it using reasonable diligence. Prior to the retention of counsel and without third-party experts, plaintiffs and class members lack the necessary expertise to analyze the software algorithm for the SDMs and to understand its defective nature.

The putative nationwide class alleges unjust enrichment and fraud by concealment. The suit also alleges a number of violations of various state laws. The drivers seek unspecified damages.

The plaintiffs point to issues with Takata airbags, which have resulted in litigation. In November, NHTSA ordered GM to recall 5.9 million 2007-2014 full-size pickup trucks and SUVs due to defective Takata airbags that may explode metal shrapnel when deployed, rejecting the automaker’s arguments that vehicle designs render the airbags’ safety risks “inconsequential.”

But the drivers in the present suit allege that the issues with the Takata airbags, which are not related to the SDM issues, were “widely known” for years. The drivers noted that lawsuit flagging the issue date back to 2014. They allege in the complaint:

GM lobbied regulators to delay a recall for its affected vehicles to avoid a resulting hit to its profits. In 2016, GM reported that recalling its vehicles with Takata inflators would cost hundreds of millions of dollars.

The drivers named in the suit are represented by E. Powell Miller, Sharon S. Almonrode, Dennis A. Lienhardt and William Kalas of The Miller Law Firm PC, David S. Stellings, Katherine I. Mcbride, Richard Heimann, Nimish R. Desai and Jessica A. Moldovan of Lieff Cabraser Heimann & Bernstein LLP, Roland Tellis, David Fernandes and Adam Tamburelli of Baron & Budd PC and David M. Birka-White of Birka-White Law Offices.

The case is Jamar Chism et al. v. General Motors LLC (case number 3:21-cv-11802) in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

NHTSA Probing Autopilot Safety Problems On 765,000 Tesla Vehicles

The National Highway Traffic Safety Administration (NHTSA) has opened a formal investigation into Tesla’s Autopilot partially automated driving system. This comes after a series of collisions with parked emergency vehicles. The investigation covers 765,000 vehicles, almost everything that Tesla has sold in the U.S. since the start of the 2014 model year. Of the crashes identified by the NHTSA as part of the probe, 17 people were injured and one was killed.

NHTSA says it has identified 11 crashes since 2018 in which Teslas on Autopilot or Traffic Aware Cruise Control have hit vehicles at scenes where first responders have used flashing lights, flares, an illuminated arrow board or cones warning of hazards. The agency announced the action in a posting on its website.

The investigation is another indication that NHTSA is now taking a tougher stance on automated vehicle safety than under previous administrations. Previously the agency was reluctant to regulate the new technology for fear of hampering adoption of the potentially life-saving systems. The investigation by NHTSA’s officer of Defects Investigation covers Tesla’s entire current model lineup, the Models Y, X, S and 3 from the 2014 through 2021 model years.

The National Transportation Safety Board, which also has investigated some of the Tesla crashes dating to 2016, has recommended that NHTSA and Tesla limit Autopilot’s use to areas where it can safely operate. The NTSB also recommended that NHTSA require Tesla to have a better system to make sure drivers are paying attention. Thus far, NHTSA has not taken action on any of the recommendations. The NTSB has no enforcement powers and can only make recommendations to other federal agencies.

Last year NTSB blamed Tesla, drivers and lax regulation by NHTSA for two collisions in which Teslas crashed beneath crossing tractor-trailers. The NTSB took the unusual step of accusing NHTSA of contributing to the crash for failing to make sure automakers put safeguards in place to limit use of electronic driving systems.

The agency made the determinations after investigating a 2019 crash in Delray Beach, Florida, in which the 50-year-old driver of a Tesla Model 3 was killed. The car was driving on Autopilot when neither the driver nor the Autopilot system braked or tried to avoid a tractor-trailer crossing in its path. Jason Levine, executive director of the nonprofit Center for Auto Safety, an advocacy group, stated:

We are glad to see NHTSA finally acknowledge our long standing call to investigate Tesla for putting technology on the road that will be foreseeably misused in a way that is leading to crashes, injuries, and deaths. If anything, this probe needs to go far beyond crashes involving first responder vehicles because the danger is to all drivers, passengers, and pedestrians when Autopilot is engaged.

NHTSA has sent investigative teams to 31 crashes involving partially automated driver assist systems since June of 2016. Of those crashes, 25 involved Tesla Autopilot in which 10 deaths were reported, according to data released by the agency.

In June NHTSA ordered all automakers to report any crashes involving fully autonomous vehicles or partially automated driver assist systems. Tesla uses a camera-based system, a lot of computing power, and sometimes radar to spot obstacles, determine what they are, and then decide what the vehicles should do.

Lawyers at Beasley Allen will monitor the ongoing investigation, and we will report further in future issues on this matter.

Sources: Associated Press and Law360.com

AVIATION LITIGATION

Growing Number Of Alaskan Fatal Sightseeing Air Crashes Reignites Fears Over On-Demand Carriers’ Safety

Three fatal crashes involving small commercial planes in Alaska during the first eight months of this year have claimed 13 lives. Last month, the most recent happened involving a de Havilland Beaver floatplane, killing a pilot and five passengers on a sightseeing tour. Sightseeing air tours are commonly at the center of these types of crashes. According to ProPublica and Unalaska Community Broadcasting (KUCB) research, Alaska “accounts for more deaths in small commercial aircraft crashes than anywhere else in the nation.”

Regulators and aviation safety advocates have studied issues surrounding flight safety in Alaska for decades with little to no regulatory or other effective solutions put in place to reduce the deadly crashes. Findings from numerous studies point to the same factors contributing to the alarming number of crashes. Critics like the National Transportation Safety Board (NTSB) are questioning why the FAA isn’t doing more to address the problems when it has ample data available.

Alaska’s fatalities due to small commercial aircraft crashes grew from 26% in the early 2000s to 46% in 2016, based on the ProPublica and KUCB investigation. The investigation included “crashes involving at least one plane or helicopter flying under the typical rules of the Federal Aviation Administration’s (FAA’s) for commuter, air taxi or charter service.” These aircraft fall under the Federal Aviation Regulations (FARs) “part 135” known as the Carrier and Operator Certification that regulates the on-demand and commuter operations such as air taxies and chartered flights.

Robert Sumwalt, who recently retired as chair of the NTSB, has been a vocal critic of the FAA and its repeated refusal to do more to address these deadly crashes. He responded to the crash last month, saying: “It is very distressing to see yet another sightseeing accident occur. I feel that this accident shows there’s still a lot of work to be done.”

The crash comes on the heels of a report the NTSB released earlier this year about a May 2019 crash that was similar, including the same location of the impact. The NTSB’s investigation of last month’s crash is ongoing, but Sumwalt said that these latest round of crashes this year “underscores the urgency of improving safety of charter flights.”

Four decades of research and plenty of anecdotal data shows common patterns and factors that lead to these crashes. For example, in 1979, the NTSB first reported on Alaska’s air-taxi safety. Researchers found “three main culprits” for the high crash rate between 1974 and 1978. Pilots who voluntarily take unnecessary risks to complete a flight or “bush syndrome” was one culprit, followed by “substandard airport facilities and poor communications of airfield and runway conditions… and inadequate weather information and navigational aids.” The organization published another study in 1994 that reflected similar findings.

The FAA has attempted, over the years, to address some of these issues. In 1999, the agency installed 230 weather cameras statewide to address the lack of weather information. Three years earlier, it partnered with the aviation industry and launched Capstone, a 10-year research project established to equip aircraft in southeast Alaska and the Yukon-Kuskokwim Delta in western Alaska with Automatic Dependent Surveillance-Broadcast (ADS-B) technology to aid with navigation. The technology requires associated on-the-ground infrastructure to allow pilots of ADS-B-equipped aircraft to know the aircraft’s position by using navigational satellites instead of traditional radar technology.  The technology also allows aircraft to be aware of the location of other ADS-B-equipped aircraft.

The project was so successful, reducing the aviation accident rate in the Yukon-Kuskokwin Delta by 47% between 2000 and 2004 that the FAA mandated the technology nationwide. Ironically, the mandate only applies to “most controlled airspace,” and the definition used to identify this airspace excludes Alaska and Hawaii. Therefore, Alaska now lags behind the country in implementing the technology it proved effectively reduced crashes.

However, the FAA has failed to implement other safety recommendations Sumwalt describes as “written in blood” because they resulted from “tragic, tragic accidents and crashes.” The ProPublica and KUCB investigation shows in the 1990s, the FAA failed to take adequate action on 15% of the NTSB’s recommendations before closing them. The amount grew to 20% in the 2000s, and since 2011 the agency has failed to take appropriate action on 37% of the NTSB’s recommendations before finalizing the cases.

One key example occurred when the NTSB issued an urgent recommendation for the FAA to audit all aviation operations and training for operators owned by HoTH Inc., the parent company of Hageland Aviation Services Inc. that operated a deadly October 2016 flight that killed two pilots and one passenger. The NTSB determined that the pilots’ decision to continue flying under visual flight rules despite bad weather and the diminishing visibility was the cause of the crash. It was also critical of “Hageland’s approved crew resource management training,” calling it “inadequate.”

The NTSB had investigated five accidents involving the company over 16 months two and half years before the 2016 crash. The investigation resulted in approximately 20 changes to the company operations or policies, including training, aircraft maintenance and evaluating the riskiness of flights. Following the October 2016 crash, the NTSB issued additional recommendations, including providing small commercial operators with access to better weather information. The FAA has yet to implement any of the recommendations.

The FAA has argued that political pressure and the need to balance the needs of Alaskans with implementing safety measures have caused the process to move slower than critics desire. The agency has explained that Alaskans need air travel to remain in service and consistent and small businesses that offer commuter or chartered flights could be pushed out of business with too many changes at one time. While several small commuter and charter flight operators have agreed to implement specific safety measures without government requirements, such as incorporating ADS-B technology on their aircraft, more steps must be taken to improve safety for pilots and passengers.

Frequently, NTSB crash investigations reveal tour operators the provide air-taxi safety have a culture that doesn’t support or adequately train pilots on safety. These companies often push pilots to fly under potentially dangerous conditions or fail to provide adequate training on weather anomalies that occur more frequently in Alaska. They also do not adequately train pilots on aircraft handling and maneuvers to navigate the treacherous terrain. FAA oversight of these companies, like the agency’s handling of other aviation safety issues, has also proven inadequate in holding them responsible.

Critics correctly question how many more tragedies must occur, and lives must be sacrificed before genuine and effective safety measures are established.

Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, focuses much of his practice on aviation litigation. He is the lead lawyer at Beasley Allen for all aviation litigation, including the firm’s involvement in the Boeing litigation. Mike has written a book on litigating aviation cases to assist other aviation accident lawyers, “Aviation Litigation & Accident Investigation.” This book offers an overview to the practitioner of the complexities of aviation crash investigation and litigation. In his book, Mike explains that “an air carrier is liable for negligence, but in cases of lack of negligence, a carrier can be liable for breach of contract.” He explains that courts will consider whether the carrier breached its duties of care and what degree of care the carrier owed the passengers and others onboard the aircraft. Mike says, “Regardless of the size, age or intended use of the aircraft, the basic principles of investigation are the same, and every life lost in aviation is a loss that likely could have been prevented.”

If you would like to have more information on aviation litigation, including any aspect of the ongoing Boeing litigation, contact Mike Andrews at 800-898-2034 or by email [email protected].

Sources: ProPublica, Unalaska Community Broadcasting (KUCB), Alaska Public Radio, Federal Aviation Administration, National Transportation Safety Board, LA Times

THE ASBESTOS LITIGATION

Construction Statutes Of Repose And Asbestos Litigation

As most lawyers know, while a statute of limitations sets a lawsuit-filing time limit based on when the potential plaintiff suffered harm, a statute of repose sets a deadline based on the mere passage of time or the occurrence of a certain event. In terms of a construction statute of repose, the time is typically measured from completion of a construction project, also known as “improvements to real property.”  Most states have some sort of construction statute of repose on the books, and the time to bring an action alleging injuries is usually between six and 12 years from “substantial completion” of an “improvement to real property.”

In asbestos litigation, the question is, “What counts as an improvement to real property?”  Defendants who manufactured everything from insulation that went on steam pipes to boilers, turbines, large pumps and even contractors who simply maintained these pieces of equipment have argued for years that any asbestos exposures from these products or this work were covered by states’ construction statutes of repose.  Due to the latency period between exposure and development of mesothelioma, if these statutes cover exposures from these products/work, almost all asbestos claims would be barred.

Unfortunately, without knowing the ins and outs of these state-by-state laws, these arguments can be successful even if they are meritless.  The problem is, when dealing with these statutes and asbestos exposures, the exposed individuals must put forward the kind of evidence that makes it clear that these kinds of equipment and this kind of work have nothing to do with “improvements to real property” as the term is defined.  Unexperienced asbestos attorneys often fail to get this evidence into the record, potentially dooming a case where the injured person has a legal right to recovery for their injuries.

Our experienced asbestos lawyers at Beasley Allen understand the nuance of getting the necessary evidence into the record.  By understanding the kinds of equipment and product at various worksites, how people were exposed and the state-by-state law, these pitfalls are avoided, and clients receive the compensation to which they are legally entitled.

If you have any questions, contact Charlie Stern, a lawyer in our Toxic Torts Section, who has vast experience handling asbestos litigation, at 800-898-2034 or by email at [email protected].

Source: mwl-law.com

The Asbestos Litigation Team

Asbestos Litigation has intensified nationwide over the past year. Because of its importance, our firm created an Asbestos Litigation Team headed by Charlie Stern. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads up our Toxic Torts Section, works with the team. Charlie has years of experience in asbestos litigation, and that’s why he was selected to lead the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or email at [email protected], [email protected], or [email protected].

THE WHISTLEBLOWER LITIGATION

Senators Introduce Legislation to Improve the False Claims Act

A bipartisan group of senators led by Senator Charles Grassley (R-Iowa) has introduced a bill to amend the False Claims Act (FCA), the federal government’s primary weapon in fighting fraud and abuse in government contracts. An FCA claim can be brought by the government directly or by a relator on the government’s behalf under the FCA’s qui tam provisions. The proposed amendments will clarify ambiguities in the FCA, addressing issues that have undermined efforts by whistleblowers and their counsel to combat fraud involving taxpayer dollars.

If enacted, the proposed amendments would bolster the ability of both the government and whistleblowers to combat fraudulent schemes. This will be especially important in the coming years, considering the federal government has spent trillions in COVID-19 pandemic relief and is in the process of spending more on infrastructure.  The bill proposing amendments to the FCA, entitled the False Claims Act Amendments Act of 2021, is co-sponsored by Senators Richard Durbin (D – Illinois), Roger Wicker (R – Mississippi), Patrick Leahy (D – Vermont), and John Kennedy (R – Louisiana). As advocates for whistleblowers who have represented relators in numerous qui tam actions, Beasley Allen lawyers applaud these efforts to enact essential improvements to the FCA. The proposed legislation is discussed below.

Clarifying the Materiality Standard

In a 2016 case, Universal Health Services, Inc. v. United States ex rel. Escobar, the United States Supreme Court held that the implied false certification theory can be a basis for FCA liability.  Under this theory, contractors making claims to the government impliedly certify they have complied with contractual, statutory, or regulatory provisions that are material to receiving payment for goods and services. As such, when a contractor violates a contract, statute, or regulation provision that is material to the government’s decision to issue payment, they submit a false or fraudulent claim for payment for purposes of FCA liability.

However, Escobar also held that the materiality element of an FCA claim under the implied false certification theory is “demanding” and is not met where the government is aware of fraud but continues to pay.  As Senator Grassley noted, Escobar and its progeny allow “defendants to get away with scalping the taxpayer because some government bureaucrats failed to do their jobs” by neglecting to deny payment. Senator Grassley has also recognized there are instances where the government continues to pay despite fraud because it believes ending a relationship with a contractor would disrupt vital services, such as medical care or military support.

Since Escobar, courts have grappled with its application, and contractors have commonly asserted a “continued payments” defense when seeking to dismiss FCA cases, notwithstanding their fraudulent conduct.  As Senator Leahy stated, the Escobar decision “made it all too easy for fraudsters to argue that their obvious fraud was not material simply because the government continued payment.”  The False Claims Act Amendments Act of 2021 would close this loophole by shifting the burden to defendants attempting to rebut materiality to show clear and convincing evidence that their fraud was immaterial to the government’s payment decisions.  Essentially, the proposed amendments would convert materiality into an affirmative defense in which defendants bear the burden of showing materiality is not met. The likely effect of the proposed amendments is that materiality would be an issue of fact in most FCA cases, which would prevent dismissal or summary judgment of whistleblower’s claims.

Clarifying the Government’s Dismissal Authority

Section 3730(c)(2)(A) of the FCA permits the government to move to dismiss qui tam actions, which are actions brought by individuals (called relators) on behalf of the government.  Before 2018, the government was hesitant to dismiss qui tam actions, as demonstrated by the fact the government dismissed less than 50 cases in the FCA’s 155-year history.  However, in January 2018, former director of the Department of Justice Civil Division’s fraud division, Michael Granston, issued a memorandum focusing the Department on dismissing qui tams.

In the four years since the so-called Granston memo, the Justice Department has moved to dismiss over 50 qui tam actions and has argued it has “unfettered discretion” to do so.  There is a split among the circuits as to the standards courts should apply when the government moves to dismiss, which the Supreme Court has declined to resolve by denying a petition for writ of certiorari on the issue.

The proposed amendments would reign in the government’s dismissal authority by clarifying that “the Government shall have the burden of demonstrating reasons for dismissal, and the qui tam plaintiff shall have the opportunity to show that the reasons are fraudulent, arbitrary and capricious, or contrary to law.”  In all, the FCA amendments’ clarification of when a whistleblower-initiated suit can be dismissed would reverse the effects of the Granston memo that discouraged qui tam actions, which have recovered tens of millions of fraudulently obtained taxpayer funds.

Strengthening Protections Against Retaliation

When reporting fraud, whistleblowers often face a myriad of employer retaliation. The anti-retaliation provision found in Section 3730(h) of the FCA currently protects “[a]ny employee, contractor, or agent” from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against” for their whistleblowing activities. As written, the provision is currently silent as to protections for relators who are former employees that are blackballed or experience other types of post-employment retaliation.

The proposed amendments would clarify that the FCA’s anti-retaliation provision extends to “[a]ny current or former employee, contractor, or agent” who reports fraud and experiences retaliation.  As such, the False Claims Act Amendments Act of 2021 makes clear that post-employment retaliation by former employers is subject to FCA liability.  If enacted, this change will encourage whistleblowers to step forward to report fraudulent schemes involving government contracts by affording them protections against retaliation.

This legislation is a significant and much-needed improvement to the False Claims Act. Our Whistleblower team will continue to keep our readers posted on the progress of this important amendment. Hopefully, it becomes the law. If you have any questions, contact Paul Evans at 800-898-2034 or by email at [email protected].

Sources: Law360; Bloomberg; Taxpayers Against Fraud Press Release; National Law Review.

Abbott Units Agree To $160 Million Settlement In FCA Case

A now-defunct diabetic testing equipment supplier, last owned by Abbott Laboratories, will pay up $160 million to settle claims that it wrongly paid kickbacks and also charged Medicare for unnecessary equipment. The U.S. Department of Justice (DOJ) announced the settlement last month. Arriva Medical LLC and its parent company, Alere Inc., agreed to the settlement in the case brought under the False Claims Act.

The DOJ intervened in the case initially filed by whistleblower Gregory M. Goodman. The DOJ said relating to the case:

  • For years Arriva gave out free glucometers to Medicare beneficiaries, which amounted to a kickback.
  • If Medicare denied paying for those devices — which happened often because the beneficiaries were not yet allowed to get a new, Medicare-funded device — the company would just give the patients a free one.
  • This practice was to get patients to order more supplies from Arriva.
  • Arriva would not collect Medicare copayments.
  • Arriva, with Alere’s approval, systematically provided to all of its new patients, a meter without regard to the patients’ eligibility for one. Then Medicare would be billed for the device.
  • Arriva made claims to the government for payment for dead patients in some instances.

Abbott, in a statement to Law360, said that the case “relates to alleged activities that took place prior to Abbott’s acquisition of Alere and was previously disclosed by Alere in financial filings,” and that “this business was discontinued shortly after the transaction closed.” As part of the settlement agreement, Goodman (the whistleblower) — a former Arriva sales representative — will receive $28.55 million from the settlement.

The federal government is represented by Ellen Bowden McIntyre of the U.S. Attorney’s Office for the Middle District of Tennessee and Jake M. Shields of the DOJ’s Civil Division. The whistleblower, Goodman, is represented by Jerry Martin and Seth Hyatt of Barrett Johnston Martin & Garrison LLC and James E. Barz of Robbins Geller Rudman & Dowd LLP.

The case is United States ex rel. Goodman v. Arriva Medical LLC et al. (case number 3:13-cv-00760) in the U.S. District Court for the Middle District of Tennessee.

Source: Law360.com

Former HHS Official Reaches Settlement Involving Virus Whistleblower Claims

Dr. Rick Bright, the former Director of the Biomedical Advanced Research and Development Authority (BARDA), has settled his retaliation claims filed against the U.S. Department of Health and Human Services. Dr. Bright had been dismissed from his job leading the federal agency that was developing a coronavirus vaccine. In his whistleblower case, Dr. Bright said he was pushed out for advocating for scientific solutions instead of unproven drugs promoted by the Trump administration.

Dr. Bright’s lawyer, Debra Katz of Katz Marshall & Banks, told Law360 on August 9 that Dr. Bright was “given the maximum relief that the Whistleblower Protection Act provides.” She added that Dr. Bright also filed claims alleging mismanagement at HHS, which are still pending. The lawyer said further:

Dr. Bright sounded the alarm on the Trump Administration’s reckless and chaotic response to the COVID-19 crisis, including its failure to devote adequate resources to containing the virus and its efforts to promote unvetted drugs such as hydroxychloroquine and chloroquine. As a result, Dr. Bright shined a bright spotlight on the Trump Administration’s mismanagement of its pandemic response, which forced changes that undoubtedly saved lives.

Dr. Bright filed his initial complaint in May 2020, saying HHS officials retaliated against him by removing him as Director of BARDA and Deputy Assistant Secretary for Preparedness and Response. Dr. Bright said he was transferred after he resisted providing the malaria drugs chloroquine and hydroxychloroquine “on demand to the American public” to treat COVID-19 even though their broad use lacked scientific merit. The following allegations were made by Dr. Bright:

  • He was removed from his powerful position at BARDA and was shifted to a lesser position at the National Institutes of Health.
  • This was a move fueled by the agency’s contempt for his resistance to the Trump administration’s politicization of and reckless disregard for scientific research.
  • He was prepared to consider all options and think outside the box, but insisted chloroquine and hydroxychloroquine be provided only to hospitalized patients with confirmed cases of COVID-19 while under the supervision of a physician.

Just two days after the first claims were filed by Dr. Bright, the OSC found there were “reasonable grounds to believe” that the Trump administration retaliated against Dr. Bright and called for him to be reinstated for 45 days while it investigated. However, then-HHS Secretary Alex Azar ignored the recommendation. The case has now been resolved pursuant to the settlement.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Lawyers on Beasley Allen’s Whistleblower Litigation Team are still very busy handling cases around the country under the False Claims Act (FCA). We were correct in our earlier prediction on the future of whistleblower litigation. Fraud against the federal government committed by all too many industries in this country, especially in the health care field, continues to be a huge problem. We have seen that fraud against the federal government has increased dramatically. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed has been a significant factor in increasing FCA violations.  The effects of the pandemic may have made the wrongdoing by corporations easier and to be more frequent.

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

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

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

PREMISES LIABILITY LITIGATION

Firm Represents Family Of Young Mother Killed By Gunfire At Georgia Apartment Complex

Our firm represents the family of a mother killed in front of her son at their apartment complex in Athens, Georgia. Auriel Callaway and her young son were walking through the common area of Clarke Gardens Apartment Complex, where they lived when gunfire broke out in another location within the apartment complex. In what can only be described as a horrible tragedy, Auriel was hit by bullets while clutching her son, and she died at the complex. Auriel was also pregnant, and her unborn child was lost as well.

This tragedy reached news media across the nation when it first occurred. Last year, Beasley Allen’s Atlanta-based lawyers, Parker Miller and Rob Register, filed a lawsuit against Clarke Gardens Apartment Complex and its management for failing to take reasonable measures to protect residents and guests. The case is ongoing, with the trial preparation underway.

The apartment complex “was poorly maintained.” Before the violent shooting event at issue, it was a haven for violent criminal activity like the type perpetrated on the victim in our case. The defendant apartment complex knew that it needed to do more to protect its residents and others. Still, it refused to take the necessary steps to protect those lawfully on its premises, including its residents like Ms. Callaway and her son.

Clarke Gardens’ refusal to address the dangerous activity that resulted in Ms. Callaway’s tragic death has left her son without his mother and forced him to witness what no child should ever have to see – his mother’s terrifying last moments on earth. While we cannot bring her back or erase that horrific night, we can seek justice for the family and accountability for the defendants’ negligence.

The defendants had no meaningful security, and they failed to eject dangerous individuals from the premises capable of causing harm to residents and invitees. The apartment complex failed to conduct reasonable inspections that could have revealed dangerous conditions, including security vulnerabilities and failed to warn of dangerous conditions.

By law, owners of establishments, such as the defendants, in the Callaway case owe a duty to patrons, including residents and guests, to ensure that the premises are reasonably safe and secure from anticipated dangers. Clarke Garden Apartments failed in this duty, and its failure led to the tragedy that forever changed the Callaway family.

The complaint is Lashanda Callaway v. Clarke Gardens Apartments, et al., filed in the Superior Court of Athens-Clarke County Georgia, (case number SU20CV0185). Gregory M. Stokes and Neil J. Kopitsky of Stokes and Kopitsky are working with Parker and Rob in representing the Callaway family. Natanya Brooks, a lawyer with Brooks Injury Law, represents the unborn child in the case. If you have any questions or need more information about this case or relating to premises liability and negligent security cases, contact Parker Miller or Rob Register at 800-898- 2034 or email at [email protected] or [email protected].

WORKPLACE HAZARDS

On-The-Job Injury Caused By Defective Equipment Results In The Death Of An Advanced Disposal Services Employee

Lawyers at Beasley Allen have filed a lawsuit on behalf of the widow of a worker employed by Advanced Disposal Services, Inc. The employee was injured on the job and ultimately died from his injuries. The cause of the employee’s injuries and death was the defective equipment he was required to use in his work.

Eugene Falconer (the employee) was struck by a hydraulic arm attached to the truck he was operating while working at a waste management site in Bessemer, Alabama, in May 2020. The hydraulic arm connected a defective tarping system to the employee’s work truck. Pins that serve as attachment points were designed and installed without any way to lock and secure them in place when the arms are engaged. The attachment for the driver-side arm of the truck failed, allowing the arm to fall and strike the employee. The equipment failure caused him serious injuries, including paralysis and ultimately results in his death.

The defective tarping system was designed and made by the defendants, including Wastequip Manufacturing Company, LLC. The injured worker suffered in a hospital bed for over a year before succumbing to his injuries caused by the defendants’ defective equipment installed on a truck he operated in his job. The defendants knew the tarping system’s design was unsafe and put operators at risk for injury and death. Our client, the widow, seeks to hold the defendants accountable for her husband’s death, and she wants them to correct and eliminate the dangers created by the defective equipment.

The lawsuit states that the defendants negligently “designed manufactured, built, assembled, installed, inspected, sold and or distributed the subject truck and the tarping system” and that the equipment was “unreasonably dangerous and defective.” The defendants failed to adequately warn end-users such as Eugene Falconer of the dangers of the equipment.

The complaint is filed in the U.S. District Court for the Northern District of Alabama, Eastern Division. Mike Andrews and Parker Miller, lawyers in our firm’s Personal Injury & Product Liability Section, and Doug Roy, a Birmingham lawyer, are handling this case for Mrs. Falconer. If you have any questions or need more information, contact Mike or Parker at 800-898-2034 or email at [email protected] or [email protected].

When Workers’ Compensation Laws Hinder Injured Workers

We have previously written a number of articles in this Report about the shortcomings of Workers’ Compensation laws in Alabama.  The predetermined benefits available to injured workers or their dependents in the event of death are inadequate.  Additionally, the provision of the Act that shields the employer from all liability, except Workers’ Compensation benefits, can have devastating effects on an injured employee’s rights.

Beasley Allen lawyers currently represent a client who worked for an employer in Birmingham, Alabama.  Part of his job required him to work around a conveyor, designed and manufactured by a North Carolina company. Numerous industry and Occupational Safety and Health Administration (OSHA) standards require certain machine hazards, like conveyors, to be guarded to prevent injuries and death.

Discovery in the case has revealed that when sold, the subject conveyor was equipped with industry-specific guards and warnings to protect workers from machine functions that would injure or kill workers.  On the date of our client’s injury, a barrier guard was not in place, exposing our client to an in-running nip point. An in-running nip is a hazard that entraps and pulls a worker’s body part, or in some instances a person’s entire body, through the machine. Furthermore, a recent inspection disclosed that in addition to removed guards, the employer had modified the conveyor, creating additional hazards that were not eliminated or minimized.

The removal of guards and the modification of the subject machine resulted in our client losing his arm in a traumatic amputation. His injury means he will have to navigate the rest of his life with one arm. This new normal will dramatically affect his quality of life and his ability to earn income. Because the subject conveyor appears to have been properly designed when sold, our client likely has no claim against the manufacturer.  Although the employer-owned and controlled the equipment, there is no claim against it for removing guards and modifying the machine. The law allows a claim against his co-employees. The co-employees were acting, not for their own benefit but the benefit of the common employer. Additionally, it is less likely that co-employees have the resources and insurance necessary to properly compensate a person who has experienced a dramatic loss.

Until the law changes in Alabama and allows a direct action against the employer to remove safety devices and / or modify an otherwise safe design, bringing a claim against co-employees is our client’s only option. Workers’ Compensation laws need to be updated/modified so that injured workers and / or the families of those killed at work can be adequately compensated for such egregious conduct.

If you have any questions, contact Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, who handles workplace litigation, at 800-898-2034 or by email at [email protected].

MASS TORTS LITIGATION

Belviq Update: JPML Declines Consolidation Petition

The Judicial Panel on Multidistrict Litigation (JPML) has heard oral arguments to determine whether the lawsuits against Eisai, Inc. and Arena Pharmaceuticals, Inc. involving the recalled diet drug Belviq (lorcaserin hydrochloride) should be consolidated into a multidistrict litigation (MDL). The increase in lawsuits comes after the FDA requested Eisai remove Belviq from the market in February 2020 due to clinical studies showing an increased risk of certain cancers. Plaintiffs petitioned to create an MDL on April 12 and requested that all proceedings be consolidated to the Eastern District of Louisiana.

Petitioners argued that consolidation to the Eastern District of Louisiana is warranted because the same questions of fact exist among all cases. Further, Petitioners argued that general causation is the same because Belviq’s serotonin receptor is consistent for all similar cancer types alleged. In opposing consolidation, Defendant Eisai argued that the clinical trial revealed imbalances in only three types of cancers that were not heavily represented in this litigation. Eisai also stated that because the drug was not heavily used, a large number of lawsuits is not expected. On Aug. 10, 2021, JPML denied consolidation of Belviq proceedings due to the small number of filings since its recall. Further, the JPML stated that Petitioners failed to establish that consolidation was the most efficient path and that informal coordination would be impracticable.

Beasley Allen lawyers are actively investigating cases on behalf of individuals who were prescribed Belviq and subsequently diagnosed with cancer, including but not limited to pancreatic, colorectal, thyroid, and breast cancer.  For more information, contact Melissa Prickett or Roger Smith at 800-898-2034 or by email at [email protected] or [email protected].

Source: Law360.com

Sanofi Attempts To Revive Zantac Brand After Recall

In the wake of the April 2020 recall on all ranitidine products, Zantac has been rebranded as Zantac 360. Zantac was previously manufactured with ranitidine. Ranitidine is an H2 (histamine-2) blocker, which decreases the amount of acid created by the stomach and has been approved for multiple indications such as preventing and relieving heartburn associated with acid ingestion, treatment and prevention of ulcers, and the treatment of gastroesophageal reflux disease. Tests showed name brand and generic ranitidine products contained NDMA (N-nitrosodimethylamine), a human carcinogen. Zantac has been linked to cancer due to NDMA contamination.

Zantac 360 is sold over the counter. Instead of ranitidine, Zantac 360’s active ingredient is famotidine, also an H2 blocker. Famotidine is also the active ingredient in Pepcid. After NDMA was found in ranitidine, the FDA requested other H2 blockers be tested. It was determined famotidine does not contain the carcinogen NDMA.

On Sept. 13, 2019, the Food and Drug Administration (FDA) first warned that some medicines containing ranitidine were found to cause NDMA to form in the body. Some cancers related to NDMA include stomach, small intestine, bladder, kidney, colorectal, esophageal, prostate, pancreatic, leukemia, non-Hodgkin’s lymphoma, and multiple myeloma.

There is currently a multidistrict litigation for Zantac cancer claims pending before federal Judge Robin L. Rosenberg in West Palm Beach, Florida. If you have questions, contact Tiffany Birley at 800-898-2034 or by email at [email protected].

Sources: Fda.gov, https://www.spokesman.com/stories/2021/jul/28/peoples-pharmacy-the-return-of-zantac-for-heartbur/ and https://www.goodrx.com/blog/zantac-new-version-famotidine/

Johnson & Johnson Vaccine Production Re-starts, Still Not Authorized For Distribution

Johnson & Johnson (J&J) vaccine production has finally restarted in Baltimore after a shutdown of more than 100 days due to cross-contamination. Although production has restarted in Baltimore, at press time, the plant was still not authorized for distribution. The shutdown for production of the vaccine was due to cross-contamination at the Emergent BioSolutions plant. The vaccine was contaminated by a different vaccine also being made at the Baltimore plant for AstraZeneca. This AstraZeneca vaccine has not been approved for use in the U.S. Emergent has spent the last three months trying to clean the plant and correct all the problems after an inspection report in April from the Food and Drug Administration (FDA) cited unsanitary conditions and lack of adherence to proper protocols to prevent contamination.

Emergent recently received the go-ahead from the FDA to resume manufacturing. The Baltimore plant is the only domestic source for the J&J vaccine in the United States. At least 75 million doses of the J&J vaccine had to be discarded due to cross-contamination.  Since the plant was shut down, the J&J vaccine has been imported from a Netherlands plant. Emergent chief executive Robert Kramer said in a news release:

We have fallen short of those lofty ambitions over the past few months but resumption of manufacturing is a key milestone and we are grateful for the opportunity to help bring this global pandemic to an end.

At press time, while the J&J vaccine was still only approved for Emergency Use in the United States, permanent approval by the FDA is expected soon. Although the other two vaccines were also approved for emergency use only, the J&J vaccine has been the least distributed. The Pfizer vaccine received permanent approval from the FDA last month. It has lagged due largely to a 9-day suspension in April due to serious side effects, including a blood clotting disorder known as thrombus with thrombocytopenia syndrome or TTS and a neurological disorder called Guillain- Barre syndrome. In some cases, these conditions can cause long-lasting injuries or death. Beasley Allen is currently investigating cases related to these symptoms.

If you have any questions or need more information, contact Melissa Prickett or Chad Cook, lawyers in our Mass Torts Section, at 800-898-2034 or by email at [email protected] or [email protected].

Source: Washington Post

Philips Recall Notification – Sleep And Respiratory Care Devices

Koninklijke Philips (Philips) issued a voluntary recall notification on June 14, 2021, for certain sleep and respiratory care devices. The recall was to address identified potential health risks related to the sound abatement foam in these devices.  Philips has utilized polyester-based polyurethane (PE-PUR) sound abatement foam to dampen device vibration and sound during routine operation.

Philips issued the recall notification as a result of extensive ongoing review following the update issued in April. On the same day as the recall notification, Philips also issued a brief report titled “Clinical Information for Physicians” to “provide clinicians and patients with information on potential risks related to affected units.” Examples of potential risks include:

  • Exposure to degraded sound abatement foam particles; or
  • Exposure to chemical emissions from the sound abatement foam material.

According to Philips, user reports and lab testing determined that the foam could degrade into particles that can enter the devices’ air pathway and be inhaled by the user.  Lab analysis of the foam revealed potentially harmful chemicals, including Toluene Diamine; Toluene Diisocyanate; and Diethylene glycol.

Philips also reported that lab testing identified Volatile Organic Compounds (VOCs) that can be emitted from the foam. Testing identified two compounds of concern (COC) that may be emitted from the foam that are outside of safety thresholds.  The compounds identified are Dimethyl Diazine and Phenol, 2,6-bis (1,1-dimethyllethyl)-4-(10methylpropyl)-.

Philips reported potential health risks associated with the recalled devices, including headaches, inflammation, respiratory issues and possible toxic and carcinogenic effects.  Philips has not disclosed when it first became aware of the potential health issues related to the recalled devices, but given how long the devices have been on the market, it’s highly unlikely that the company only recently learned of these issues.  By not informing physicians and the public about these serious risks, Philips has put millions of patients at risk of developing serious injuries, including cancer.

On July 2, 2021, Beasley Allen lawyers filed a federal lawsuit on behalf of Frederick (Freddy) Heller in the U.S. District Court for the Middle District of Georgia. After using one of the Philips recalled devices daily for a number of years, Mr. Heller was diagnosed with lung cancer in 2021.  The Heller lawsuit was one of the first personal injury lawsuits filed following Philips’ recall notification.

Several other firms have also filed class action lawsuits related to the Philips recall.  The class claims were filed in Massachusetts federal court against manufacturers Koninklijke Philips N.V., Philips North America LLC and Philips RS North America LLC. In each case, it’s alleged that users were exposed to toxic chemicals through the degradation of a noise-abating insulation foam used in the majority of Philips’ defective sleep products. A petition has been filed with the Judicial Panel on Multidistrict Litigation (JPML) requesting that the cases be consolidated. The JPML will hear arguments about the potential consolidation of these lawsuits at the next scheduled hearing this month.

Philips manufactures, sells and markets a wide variety of products to help treat breathing deficiencies. However, on June 14, 2021, the defendant issued a massive recall of between three and four million defective breathing machines after it was discovered that the PE-PUR foam insulation used on the majority of Philips products can degrade and become toxic. The plaintiffs alleged that the degraded foam could cause low-level health problems such as skin irritation, as well as life-threatening illnesses such as cancer and serious lung problems.

The complaint in the Heller case outlines how the recall advises patients to discontinue use of the products. However, for many sleep apnea patients who rely on a Philips device to sleep safely, the recall puts those individuals in a near-impossible situation. The plaintiffs argued that patients are now faced with the choice of either discontinuing use of their recalled device and running the risk of a life-threatening event due to their sleep apnea, or continuing use of their recalled device and risk toxic exposure or being forced to purchase an expensive new Philips DreamStation 2 CPAP machine that does not contain PE-PUR foam.

Beasley Allen lawyers are currently investigating claims related to the devices recalled by Philips where users have developed lung cancer, asthma, chronic respiratory injuries, or kidney disease.  For more information, contact Beau Darley or Melissa Prickett at 800-898-2034 or by email at [email protected] or [email protected].

Sources:  Philips Recall Notification for Sleep and Respiratory Care Devices – June 14, 2021; and Philips Sleep and Respiratory Care Update, Clinical Information for Physicians – June 14, 2021

SECURITIES LITIGATION

Biofuel Company Hit With Investor Suit Over Financial Reports

A shareholder of Renewable Energy Group, a biodiesel production company headquartered in Iowa, has filed a derivative shareholder complaint in New York state court, claiming the company’s directors and officers overstated the company’s revenue and net income and misled the public about the status of its internal controls and operations, all leading its stock prices to fall. The complaint includes counts for breach of fiduciary duty, unjust enrichment, abuse of control, gross mismanagement and waste of corporate assets.

The plaintiff, Noah Sinclair, alleges that from March 8, 2018, to Feb. 25, 2021, the defendants continually misrepresented the accuracy of Renewable Energy’s financials and regulatory filings and misled the public about the company’s operations and accounting practices. The company’s CEO, Vice Chairman, Senior Vice President, Commercial Performance and Chief Financial Officer are named defendants in the case.

Renewable Energy markets and produces carbon-based transportation fuels by converting natural fats, oils, and greases into advanced biofuels. Sometimes these fuels are blended with traditional diesel, reducing the consumption of petroleum-based fuels.  According to the complaint, it is North America’s largest producer of advanced biofuels.

According to the suit, on June 23, 2020, Renewable Energy announced it had revised its second-quarter guidance, previously issued on April 30, 2020.  In the April 2020 estimate, Renewable Energy had forecast that adjusted earnings would be between $20 million and $35 million. The downward revision stated that the new estimate for the company’s earnings was between negative $12 million and negative $2 million, according to the complaint.

When this announcement came, the company’s share price dropped $5.85, or 20.5%, closing at $22.73 on June 24, 2020.  It’s alleged in the complaint:

  • Renewable Energy attributed the change to calculation errors that overestimated the company’s revenue from the federal biodiesel mixture excise tax credit, or “BTC,” which was implemented by Congress in 2005 as an incentive to drive the demand for alternative fuels.
  • The BTC program provides a $1.00 refundable tax credit per gallon to qualifying biofuel blenders. This credit can then be used against federal excise tax liability, or companies can obtain a cash refund from the U.S. Treasury for the value of the credit. But the availability of the credit has not always been consistently available, which puts pressure on companies to maintain proper internal controls over operations and accounting. This requires them to calculate revenues and net income without factoring in the credit. When the credit has been reinstated, companies must prove to the IRS of the precise amounts of biofuel it has properly blended and details surrounding the usage and sale of the blended biofuel to claim the credit.
  • Companies must also then incorporate revenues derived from the credit into the appropriate periods of their financial reports.
  • Renewable Energy’s officers and directors improperly accounted for the revenue coming from the BTC because of system failures at one of the company’s facilities that caused Renewable Energy to become ineligible for the credit. “[Renewable Energy] could not actually claim the BTC because the Company failed to properly blend the biodiesel with petroleum diesel for certain loads.”
  • After the system failures were revealed, stock prices for Renewable Energy fell again by $8.17, or 9.5%, closing at $77.77 on Feb. 26, 2021.
  • The share price plunge came after Renewable Energy revealed in a press release that it was not the “proper claimant for certain BTC payments on biodiesel it sold between January 1, 2017, and September 30, 2020” and that, as a result, it needed to restate “$38.2 million in cumulative revenue from January 2018 through September 30, 2020.”
  • Renewable Energy also disclosed an agreement it had reached with the IRS on a $40.5 million assessment to fix its inaccurate tax credit claim.
  • “The Individual Defendants willfully or recklessly caused the Company to fail to maintain an adequate system of oversight, disclosure controls and procedures, and internal controls over financial reporting.”

The complaint asks for a declaration that the defendants breached their fiduciary duty and an award of damages sustained because of the defendant’s actions.  He is also seeking a direction that Renewable Energy and the named defendants improve the company’s corporate governance and internal procedures by strengthening the board’s supervision of operations and implementing procedures for greater shareholder input into the policies and guidelines of the board.  The complaint further seeks a provision to permit the shareholders of Renewable Energy to nominate at least five candidates for election to the board and a proposal to ensure future effective oversight of compliance practices.

For more details, contact James Eubank, a lawyer in our firm who handles Securities Litigation, at 800-898-2034 or by email at [email protected]. The case is Noah Sinclair v. Renewable Energy Group, Inc. et al., (case number 654716/2021) in the Supreme Court of the State of New York County of New York.

Source: Law360.com

Stamps.com To Pay $100 Million To Settle Securities Fraud Suit

Stamps.com will pay $100 million to settle an investor class action alleging the web-based shipping company hid its failing relationship with the U.S. Postal Service to artificially inflate its stock value. A request for preliminary approval of the settlement was filed last month by investors in California federal court.

Investor Matt Karinski filed the suit alleging securities fraud in March 2019 — just weeks after another investor filed a similar suit — on behalf of those who purchased Stamps.com common stock between May 3, 2017, and May 8, 2019. The Indiana Public Retirement System was later named lead plaintiff and filed a consolidated complaint. It was alleged:

  • com exploited its contractual relationships with the USPS by providing customers with unauthorized discounted shipping. The company’s reported revenue and earnings growth during the class period resulted largely from undisclosed, improper and unsustainable business practices, including Stamps.com executives’ material misrepresentations and omissions.
  • The misrepresentations kept Stamps.com’s stock price high and allowed the company to sell most of its shares at artificially inflated prices before the truth came out, and
  • that CEO Kenneth McBride engaged in illicit insider trading of Stamps.com stock.
  • McBride falsely stated on a May 3, 2017, conference call with investors and analysts that the USPS is “very happy with the relationship with Stamps.com. We talk to them constantly, to the most senior folks there. So we’re happy and they’re happy.”
  • com’s deteriorating relationship with the USPS was eventually revealed and the company’s stock price plummeted to less than half its value.

In August 2019, the City of Cambridge Retirement System also sued Stamps.com in Delaware Chancery Court, claiming that directors and officers engaged in an illicit scheme dating back to 2011 and accusing them of insider stock sales, unjust enrichment and corporate waste. The company announced in July that it had reached a $30 million settlement with investors to resolve derivative lawsuits in Delaware Chancery Court.

The class is represented by Steven W. Pepich, Jason A. Forge, Eric I. Niehaus, Hillary B. Stakem and Kevin S. Sciarani of Robbins Geller Rudman & Dowd LLP. The case is Matt Karinski et al. v. Stamps.com Inc. et al. (case number 2:19-cv-01828) in the U.S. District Court for the Central District of California.

Source: Law360.com

Beasley Allen Securities Litigation Team

Beasley Allen handles securities litigation in the Consumer Fraud & Commercial Litigation Section of the firm. Dee Miles heads the Section. James Eubank, Demet Basar, and Paul Evans, lawyers in the Section, serve on our Securities Litigation Team. While securities litigation has already been quite active, we expect the activity to increase drastically over the next several months.

We encourage our readers to contact one of these lawyers if there are questions or more information is needed on securities litigation. You can reach them by phone at 800-898-2034 or by email [email protected], [email protected], [email protected] and [email protected].

TOXIC TORT LITIGATION

“Forever Chemicals” Manufacturers Continue To Settle Contamination And Exposure Lawsuits

PFAS or “forever chemicals” are the subject of hundreds of lawsuits across the country.  3M, DuPont, and their related subsidiaries and manufacturers using PFAS have been sued for environmental contamination, property damage, personal injury, and natural resource damages.

Recently, DuPont and related spinoff companies agreed to pay the State of Delaware $50 million for environmental restoration, improvement, sampling and analysis, community environmental justice and equity grants, and other natural resource needs. DuPont and its spinoffs have a long history of manufacturing in Delaware, much of which involved PFAS to produce products such as Teflon. In January, E. I. du Pont de Nemours and Company and spinoff companies The Chemours Company, DuPont de Nemours, Inc. and Corteva, Inc, agreed on a cost-sharing arrangement for all potential liabilities arising from PFAS litigation.

3M, along with co-defendants Saint-Gobain Performance Plastics Corp. and Honeywell International Inc., agreed on a proposed settlement for $65 million for a putative class action lawsuit by residents of a New York town related to PFAS drinking water contamination.  3M sold PFAS that were used in plastic manufacturing leading to the contamination.  Co-defendant DuPont is not a party to the settlement and is opposing its entry by the court.

Both 3M and DuPont have settled numerous PFAS lawsuits.  In 2017, DuPont and Chemours Company agreed to pay $671 million to settle thousands of lawsuits in a multidistrict litigation.  In 2018, 3M settled with the State of Minnesota for $850 million.

Sources: Law360.com and AttorneyGeneral/Delaware.gov

An Update On The 3M Earplugs Litigation

More than 250,000 veterans and service members are pursuing claims against 3M involving the Combat Arms Earplugs. Most of these claims are in the Northern District of Florida, which has quickly become the largest multidistrict litigation (MDL) in history. In addition, there are many cases filed in Minnesota state court against 3M involving the same earplugs.

Recently, 3M unsuccessfully attempted to remove eight of those Minnesota state court lawsuits to federal court. Removal to federal court would have resulted in an automatic transfer of the cases to the MDL in Florida. The Minneapolis federal court judge rejected 3M’s plan, ruling that he lacked jurisdiction over eight lawsuits.

3M argued that the federal court had jurisdiction because some defenses were based on federal law, such as the federal contractor defense. The federal court judge noted that he previously rejected similar arguments because the federal government had little control over the earplugs, and 3M did not act in the same way to a combatant.

In the Northern District of Florida, the MDL judge recently denied 3M’s requests for new trials in the first bellwether trial that resulted in a $7.1 million jury verdict and in the third bellwether trial that resulted in a $1.7 million jury verdict. The judge found that 3M had not identified any errors that warranted new trials.

There have been three trials against 3M for the Combat Arms Earplugs, and 3M is facing two more bellwether trials this month and in October. 3M has indicated it would appeal the two cases it lost earlier this year.

U.S. District Judge M. Casey Rodgers, the federal judge presiding over the Florida 3M MDL, has ordered an acceleration of the bellwether trials and other cases in the 3M earplugs MDL, citing an “unprecedented backlog” of more than 250,000 cases. On Aug. 24, Judge Rodgers set into motion a series of orders requiring plaintiffs to move tens of thousands of cases from the administrative docket to the active docket, with 1,358 transitioning in the first batch and between 10,000 and 20,000 cases at a time in subsequent batches. The judges said:

Due to the unprecedented backlog of cases piling up on the administrative docket, which tallies over 250,000 cases, the court deems it necessary to accelerate the bellwether trials and discovery for the remaining mass of cases.

Additionally, a group of so-called “wave orders” will require the parties to work up hundreds of cases simultaneously, with the first three including about 500 cases per wave, consisting of instances in which necessary U.S. Department of Veterans Affairs and U.S. Department of Defense information and data have been received.

Judge Rodgers said the court plans to issue a new wave order every three months, with an eight-month discovery process for each wave. She said:

The court has reached out to other judges in the Northern District of Florida to try cases in Bellwether Group C. These trials will take place between October and December of 2021. The court also intends to solicit help trying the Bellwether Group D cases from other judges in the circuit. These trials will take place in early Spring 2022, once discovery and dispositive motions have been completed.

The judge’s order also notes that lawyers, parties and staff must have proof of vaccination against the coronavirus or a negative COVID-19 test performed within the prior week to enter the courtroom or judge’s chambers. The MDL, which includes suits brought by hundreds of thousands of military veterans and service members, was initially created in April 2019 and has proceeded rapidly to the bellwether trial stage.

The suits contend 3M and a predecessor, Aearo LLC, supplied “CAEv2” earplugs that were defective and didn’t protect against service-related tinnitus and hearing loss. 3M contends the military bears some responsibility for how the earplugs were designed and delivered. But while the military had some influence on the earplug, since the Army made it clear it would only buy the device if it could be worn under a helmet and stored in a military traveling case, Judge Rodgers ruled that 3M can’t tell juries the government dictated or approved any aspect of the earplug’s design or its instructions and warnings.

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

If you need more information on the 3M litigation, contact Will Sutton, a lawyer in our firm’s Toxic Torts Section, at 800-898-2034 or by email at [email protected].

Sources: Reuters and Law360.com

The ONGOING Roundup Litigation

Bayer Has Set Aside $15 Billion For Future Roundup Claims

Bayer AG is setting aside an additional $4.5 billion to cover its exposure for future claims from plaintiffs who developed cancer after using the Roundup weedkiller. Bayer CEO Werner Baumann revealed this an extremely significant happening in a call to update investors on the five-point plan announced in May to deal with future claims. Baumann told the investors:

It is important for the company, our owners and our customers that we move on and put the uncertainty and ambiguity related to the glyphosate litigation behind us, and focus on the substance, value and the perspective of our business instead.

Under the five-point plan, the $4.5 billion will be in addition to the $2 billion the company previously set aside for a proposed settlement of future Roundup claims. You will recall that in May, U.S. District Judge Vince Chhabria rejected the proposed $2 billion settlement meant to cover two groups of Roundup users:

  • those who have been diagnosed with non-Hodgkin’s lymphoma but haven’t filed suit, and
  • those who have been exposed to Roundup but haven’t yet developed cancer.

The proposed $6.5 billion settlement followed Monsanto’s separate $9.6 billion settlement proposal from last year to resolve the bulk of the multidistrict litigation from claimants alleging that Roundup caused cancer.  This means that Monsanto has now set aside $15 billion in total to resolve all of this vast Roundup litigation.

The five-point plan also included creating a website with scientific studies about Roundup’s safety, discussing whether to continue to sell glyphosate-based products in the U.S., creating a future claims settlements and science panel to look into alternative solutions to address future claims, and continuing its efforts to settle existing claims.

It has been confirmed that the company plans to replace Roundup with different products using a different active ingredient in the U.S. by 2023. However, the glyphosate-based products will still be available for professional and agricultural customers. The company is also still working with the EPA to discuss labeling options that could provide more information to the products’ users.

Beasley Allen’s Toxic Torts lawyers have been working closely with leadership in the multidistrict litigation and have dealt with Monsanto in the effort to protect our clients’ best interests and to seek a fair and reasonable resolution for our clients. Contact Rhon Jones ([email protected]), Will Sutton ([email protected]), or Matt Pettit ([email protected]) at 800-898-2034 for more information.

Source: Law360.com

MDL Judge Urges Monsanto To Settle Roundup Cases Earlier

A lawyer for Monsanto, the Bayer AG subsidiary, told U.S. District Judge Vince Chhabria during a status conference last month that the volume of cases in the upcoming wave of the MDL over whether Roundup causes cancer would be “pretty burdensome” and would mean “an immense amount of workup” for Monsanto. In response, Judge Chhabria told the lawyers that Monsanto can hire more lawyers or settle cases earlier. But the judge made it very clear that the MDL will be moving forward as planned.

Monsanto lawyer Rakesh Kilaru of Wilkinson Stekloff said that burden “falls somewhat disproportionately on our side of the ledger” and asked Judge Chhabria to consider reducing the volume in the fourth wave of the Roundup MDL to no more than 150 cases instead of the proposed 200 to 300 cases. Judge Chhabria said that while he understood Monsanto’s argument, he didn’t agree with it, adding:

This is not going to be one of those MDLs where plaintiffs’ lawyers get the impression that if they don’t settle their case, their case is going to be sitting around for 15 years with no litigation.

Judge Chhabria said the reality is that the Roundup cases are getting fully worked up — including burdensome expert discovery — but the cases don’t actually settle until they are on the verge of being sent to trial. The judge said further:

So it seems to me that if Monsanto prefers not to undergo the expense and burden of working the cases up for trial, Monsanto can settle the cases early. If Monsanto doesn’t want to settle the cases earlier, it can hire more lawyers and we can get them worked up for trial.

Judge Chhabria told the parties that the fourth wave of the Roundup MDL will include cases from Michigan, Massachusetts, Ohio, Florida, Iowa, South Carolina and Arizona.

A Bayer spokesperson told Law360 that the company has settled “approximately 96,000 of the claims in this litigation, including most of the claims in the first three waves of cases in the MDL, and continue to discuss resolution with claimants who are outstanding.”

So far, Monsanto has lost all three Roundup bellwether trials. A brief summary of each is set out below:

  • Former groundskeeper Dewayne “Lee” Johnson won a $289 million verdict in August 2018 — later reduced to $20.6 million. Bayer has said it would not ask the U.S. Supreme Court to review that verdict.
  • Ed Hardeman had an $80 million verdict in March 2019 that later was reduced to $25 million. The Ninth Circuit affirmed that judgment in May. Monsanto has petitioned the U.S. Supreme Court to review that ruling.
  • Jurors awarded Alva and Alberta Pilliod $2 billion in May 2019, later reduced to $86.7 million, finding that Roundup was likely a significant cause of their illnesses. A California appellate court has rejected Monsanto’s bid to overturn the Pilliods’ award and trial win.

Significantly, the appellate court’s majority had this to say in the Pilliod case:

The trial described in Monsanto’s opening brief bears little resemblance to the trial reflected in the record. Monsanto discusses at length how the [U.S. Environmental Protection Agency] and other regulatory entities have evaluated scientific data, rather than fairly discussing the data and analyses that were presented at trial by the Pilliods’ witnesses. Monsanto had little to say about the testimony of the Pilliod’s causation experts, which supports the verdict and it failed to include fair summaries of their testimony.

In the Pilliod case, the appellate court judges affirmed that Monsanto tried to distort the science on whether the active ingredient in Roundup, glyphosate, can cause cancer in humans. The judges found that Monsanto’s actions showed “reckless disregard of the health and safety of the multitude of unsuspecting consumers it kept in the dark.”

The lead counsel in the MDL are Robin Greenwald of Weitz & Luxenberg, Michael Miller of The Miller Firm and Aimee Wagstaff of Andrus Wagstaff. Co-liaison counsel are Lori Andrus and Mark Burton of Andrus Anderson LLP. The MDL case is In re Roundup Products Liability Litigation (case number 3:16-md-02741) in the U.S. District Court for the Northern District of California.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

Amazon Launches Plan To Sell Prescription Drugs

Over the years, there has been a great deal of scrutiny surrounding the prescription drug market that has only become more concentrated as the years go on. The three biggest Pharmacy Benefit Managers (“PBMs”) — CVS Health, Express Scripts, and OptumRx process about 77% of all prescription drug claims in the U.S. The top six PBMs process more than 95% of all prescription drug claims in the U.S.  PBMs have been highly scrutinized for unfair, deceptive, and anticompetitive practices that have arguably stifled competition and harmed consumers. However, there appears to be a new competitor in the prescription drug market. Amazon has announced that it will be expanding its prescription drug distribution service with a discount drug program.

Amazon, the world’s largest online retailer, has launched its $6-for-six-months deal on its Prime Day, which offers six-month prescriptions to Amazon customers for medications for common ailments with prices starting at just $6.

Going back as far as 2008, major chain pharmacies such as CVS, Walgreens, and Rite Aid have had their own discount drug programs, offering reduced prices for commonly prescribed drugs. However, these retail pharmacy giants have found themselves in both state and federal litigation involving their discount drug programs. They are facing allegations that they were systematically overcharging payors, such as state Medicaid programs, third-party payors, and insured customers for the drugs in their discount drug program by reporting inflated prices and / or not passing on the reduced prices for the drugs in the program.

Lawsuits and legislators have also targeted PBMs for drug discounts, arguing that their practices of negotiating secret discounts between drug suppliers and sellers drive up pharmaceutical costs for consumers. Courts across the country are addressing allegations into the policies and practices of pharmacy discount drug programs and prescription benefit agreements with PBMs as the prescription drug market is continuously consolidating, both vertically and horizontally.

Under Amazon’s $6 discount drug program, the customer can either pay out of pocket or use insurance, depending on what makes their drugs cheaper.  While Amazon’s discount drug program may be easier for the customer to obtain the cheapest price, the industry is unsure how Amazon’s program will differ from what the major chain pharmacies are doing with their discount drug programs that have been the subject of various litigation.

Amazon may be attempting to unravel the complex structure of the prescription drug market. However, it can still be expected that even Amazon’s prescription drug business will be put under the microscope to ensure consumers are not being harmed. This is especially likely given that the company is defending itself against a significant antitrust lawsuit brought by the D.C. Attorney General in late May and now faces the new Federal Trade Commission (FTC) chair, Lina Khan. As Amazon dives into this high-profit market, legislators and regulatory enforcers will be watching for any unfair or anticompetitive practices.

Beasley Allen has represented eleven states in various complex healthcare litigation and is representing the State of Mississippi in three separate lawsuits filed against CVS, Walgreens, and Rite Aid involving their discount drug programs. The State of Mississippi has alleged that these major chain pharmacies reported false and inflated prices to the State for the drugs in their discount drug program, causing the State to significantly overpay for prescription drugs dispensed to Medicaid beneficiaries.

If you have any questions about these unlawful practices or our firm’s healthcare litigation, contact Dee Miles, Ali Hawthorne, or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected], [email protected], or [email protected].

Sources: MedCity News and My World Press Blog

THE CONSUMER CORNER

Consumers Should Beware Of Healthcare Sharing Plans

Healthcare sharing ministry plans (HCSMs) have risen in popularity following the passage of the Affordable Care Act (ACA) in 2010.  Because the Affordable Care Act exempts HCSMs from its insurance mandate and other requirements, people who were uninsured, seeking to avoid the individual mandate tax penalty, or otherwise opposed the Act, looked to HCSMs for health care coverage. Now, over a million people participate in HCSMs, but they may be at risk of paying significant out-of-pocket costs for healthcare due to a lack of regulations and unfavorable policy provisions (including arbitration).

HCSMs tout themselves as more affordable alternatives to health insurance. Members of the same ethnic or religious group share in the healthcare costs of others with the same beliefs.  Essentially, participants make monthly payments (similar to premiums) to HCSMs, which purport to share the monthly payments with other participants who make claims for medical expenses. However, the ability of HCSMs to offer lower rates than insurance companies is primarily driven by their policies’ provisions that participants are personally responsible for paying their medical costs and that there is no guarantee of payment for any claims.

Although HCSMs resemble traditional health care insurance, its participants lack essential federal and state insurance regulation protections. Because HCSMs are exempt from the ACA, they are not required to reimburse participants for costs arising from preexisting conditions, substance abuse, or mental health treatment.  Further, HCSMs are not subject to the medical loss ratio, an ACA requirement that health insurers spend at least 80% of revenue to pay claims and improve healthcare.

Additionally, at least 30 states, including Alabama and Georgia, have enacted “safe-harbor” rules for HCSMs, exempting state insurance regulations applicable to traditional health insurers so long as the HCSMs meet certain criteria. One common requirement in safe-harbor rules is that participants of the HCSMs be members of the same religion. Another common requirement is that the HCSMs provide a written disclaimer it is not an insurance company.

Because of the safe-harbor rules, HCSMs are not subject to state insurance regulations or insurance department oversight, both of which are crucial to protecting consumers that apply to health insurance companies. State insurance regulations include reserve requirements, which ensure insurers have sufficient funds set aside to pay claims.  Other financial regulations on insurers include submitting annual statements, which allow state examiners to ensure insurance companies’ financial solvency.  Since HCSMs are exempt from these regulations that help ensure insurers are solvent, participants often lack assurance their HCSM can pay their claims. Traditional insurers are also required to submit their policy forms to the state insurance department for review before selling them, which allows the department to assess whether the policy provisions are fair and reasonable or have major coverage gaps.

State insurance departments enforce these regulations and, when violations occur, have the authority to assess monetary fines and even prohibit an insurer from doing business in their state. Importantly, consumers can submit complaints to state insurance departments, which resolve the complaint with the insurer.

Further, HCSMs’ policy language poses additional barriers to participants obtaining health care cost reimbursement. For instance, most HCSMs’ policies include morality provisions, such as clauses that participants must abide by a “Christian lifestyle,” which is commonly invoked to deny coverage for medical costs. Further, some HCSMs’ policies have provisions that exclude coverage for prescriptions after four months, birth control, and vaccinations, as well as mammograms, routine check-ups, and other preventative care. Notably, most HCSMs’ policies include arbitration provisions, while states’ insurance laws prohibit such provisions in health insurance.

HCSM participants may be led to believe they have coverage comparable to that of traditional health insurance. Still, the lack of regulation and unfavorable policy provisions allow HCSMs to deny claims that the ACA and state regulations require insurers to pay. As a result, HCSM participants are at a worrisome risk of having to pay for significant healthcare costs out-of-pocket compared to traditional insurance.  Indeed, consumers reports are mounting, and unfortunate stories of HCSMs participants whose claims were denied are becoming public.

Some state insurance regulators have taken action by filing complaints against certain HCSMs for illegally offering health insurance. For example, New York insurance regulators filed a complaint against Trinity Healthshare Inc. (now known as Sharity Ministries Inc.) and The Aliera Companies, which markets Trinity’s plans. The complaint alleged Trinity and Aliera left its participants in New York with unpaid medical bills, including the claims of one woman with leukemia for an emergency hospital stay and another participant’s claim for breast cancer treatment costing $15,000. Additionally, the Iowa insurance department brought charges against Trinity and Aliera for selling unapproved health insurance, which led to the companies ceasing operation in Iowa.

For additional information, contact Dee Miles, Paul Evans, James Eubank, or Rachel Minder at 800-898-2034 or by email at [email protected], [email protected], [email protected], or [email protected].

Sources: commonwealthfund.org, New York Times, and Insurance Journal

$85 Million Settlement Will End Users’ ‘Zoombombing’ Suits

Zoom users have asked a California federal judge to approve their $85 million settlement agreement resolving privacy and data security claims against the video conferencing provider. Under the proposed settlement agreement, Zoom Video Communications will pay $85 million to cover the claims brought by a nationwide class of its users who, between March 30, 2016, and the present, “registered, used, opened or downloaded the Zoom meetings application.”

The claims were brought by eleven individuals and two churches. They originally accused Zoom of unlawfully sharing their personal data with unauthorized third parties, such as Facebook and LinkedIn, failing to prevent malicious meeting disruptions (“Zoombombings”), and misrepresenting the strength of its encryption protocols. The users’ claims focused on contractual breaches and unfair business practices.

According to the settlement, along with the monetary fund, Zoom agreed to more than a dozen major changes to its practices, designed to “improve meeting security, bolster privacy disclosures and safeguard consumer data.”  Among these changes, Zoom will provide in-meeting notifications to alert users if a participant uses a third-party application during the meeting, update its privacy statement, develop a support-ticket system for tracking meeting disruptions, and educate its users about security features.

The case is In Re: Zoom Video Communications Inc. Privacy Litigation (case number 5:20-cv-02155) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Pilgrim’s To Pay $76 Million To Settle Chicken Price-Fixing Claims

Pilgrim’s Pride Corp. has agreed to pay consumers $75.5 million to settle claims it conspired with competitors to fix the price of broiler chicken. This is the company’s latest settlement in the litigation filed in Illinois federal court over the alleged long-running scheme. Thus far, the consumers have reached class action settlements totaling $181 million. Almost half of this comes from a $99 million settlement agreement reached with Tyson Foods.

It was revealed in the court filings relating to the settlement that in addition to monetary recovery, the current settling defendants’ agreement to provide cooperation will also strengthen consumers’ case against the remaining defendants.

The settlement with Pilgrim’s could be called off if more than 500,000 potential class members opt-out. The proposed Pilgrim’s class covers “millions” of consumer purchasers who bought chicken meat or whole chickens through 2020 in any of the roughly two dozen states and Washington, D.C. that have created exceptions to the federal law prohibition on so-called indirect purchasers winning antitrust damages.

This settlement is only the latest financial fallout for Pilgrim’s. It previously reached a $75 million settlement with direct chicken buyers, who at the same time reached an $80 million settlement with Tyson. There have also been other settlements. Private plaintiffs began suing the nation’s largest broiler-chicken producers in September 2016, claiming they coordinated and limited chicken production to raise prices and exchanged detailed information about prices, capacity and sales volume through data compiler Agri Stats Inc. There are 12 defendants remaining in the consumer indirect purchaser case.

The U.S. Department of Justice also looked into anti-competitive conduct in the broiler-chicken industry and revealed its investigation in 2019, when it obtained a discovery stay from the court overseeing the private litigation. The DOJ’s investigation resulted in the indictment of four poultry executives last year, including the sitting president and CEO of Pilgrim’s Pride and the president of Claxton Poultry, over contentions that they participated in a scheme to rig bids and fix prices for broiler chickens. Tyson disclosed its cooperation with the investigation and said it was applying for leniency.

The DOJ indicted six more individuals four months later, including former Tyson Foods sales executive Timothy R. Mulrenin and a few individuals connected to Pilgrim’s Pride. The federal government and Pilgrim’s Pride reached a settlement shortly thereafter, specifying that the producer must pay a penalty of more than $110.5 million and cooperate with the investigation. The criminal probe remains ongoing. Grand juries in Denver have charged Koch Foods and several former Pilgrim’s Pride executives.

The consumers are represented by Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC. The case is In re: Broiler Chicken Antitrust Litigation (case number 1:16-cv-08637) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

Apple To Pay $100 Million And Alter App Store To End Antitrust Suit

Apple Inc. has agreed to pay $100 million and make developer-friendly changes to its App Store policy to settle a putative antitrust class action accusing it of monopolizing the market for software distributed on its devices.

The settlement, if approved, would resolve claims for a class of about 67,000 developers who make some revenue but less than $1 million on the App Store per year. That would include more than 99% of the iOS developers with paid transactions, according to the plaintiffs.

The settlement, in addition to the cash aspect, also contains valuable structural relief. It was also stated by the developers that the suit was a driver behind this year’s launch of Apple’s Small Business program, which allows small developers to pay a lower 15% commission on sales. The developers value the small business program at least $35.4 million. The developers said:

Apple has committed to maintain the Small Business Program’s 15 percent rate for at least another three years. Apple has also committed to revise its ‘anti-steering’ guidelines to permit app developers to communicate directly with their customers regarding alternative payment options. Apple agreed to institute and maintain a range of structural reforms that will enable developers to better create, distribute, and monetize their apps.

The agreement reached does not resolve a similar, separate lawsuit filed against Apple by Epic Games, the creator of the popular video game Fortnite. That case is awaiting a ruling after a bench trial that concluded in May.

The lawsuit that was settled for $100 million was filed in 2019 by Donald R. Cameron, maker of a baby naming app, and Pure Sweat Basketball Inc., a basketball training company. The case claimed that Apple uses its dominance in the market for the distribution of apps that run on its operating system to wrench a “supracompetitive” 30% commission from developers and to charge them a $99 annual fee. The developers allege these terms, along with other pricing restrictions, have unfairly sucked away their profits and dampened innovation.

There was a major issue that was resolved by the U.S. courts. A similar consumer case returned to district court after it went to the U.S. Supreme Court. The high court ruled in May 2019 that the app users have standing to sue Apple for alleged overcharges paid in the app store. U.S. District Judge Yvonne Gonzalez Rogers had dismissed the case in 2013 after finding the consumers should be considered “indirect purchasers” since developers set the prices for apps and pay Apple a commission. Indirect buyers are barred from bringing claims for damages under federal antitrust law by the high court’s landmark Illinois Brick decision. But the Supreme Court justices found in Apple v. Pepper that the consumers buy the apps directly from Apple and are, therefore, eligible to bring antitrust claims.

The developers are represented by Steve W. Berman, Robert F. Lopez, Ted Wojcik, Shana E. Scarlett, Benjamin J. Siegel and Ben M. Harrington of Hagens Berman Sobol Shapiro LLP. Lawyers from Sperling & Slater PC, Saveri & Saveri Inc. and Freed Kanner London & Millen LLCare served on the executive committee in the developer case. The case is Donald R. Cameron et al. v. Apple Inc. (case number 4:19-cv-03074) in the U.S. District Court for the Northern District of California.

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

A New Look At Case Activity At Beasley Allen

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

Practices

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

Cases

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

  • Auto Products
  • Aviation Accidents
  • Belviq
  • Benzene in Sunscreen
  • CPAP Devices
  • Defective Tires
  • J&J COVID Vaccine
  • JUUL
  • Mesothelioma
  • On-the-Job-Injuries
  • Paraquat
  • Talcum Powder
  • Trucking Accidents

Resources to Help Your Law Practice

All of us at Beasley Allen are honored and privileged to have long been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. Our firm has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources that will help our fellow lawyers in their work. For those looking to work with Beasley Allen or simply seek information that will help their law firm with a case, the following are among our most popular resources. Some of the available resources are set out below.

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

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

The Jere Beasley Report

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

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

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Trial Tips From Beasley Allen Lawyers

This month Lydia Reynolds, a lawyer in our firm, gives some tips relating to the taking of depositions. All too many lawyers fail to fully comprehend the importance of taking good, effective depositions in the pretrial preparation of a case. So let’s see what Lydia has for us.

Depositions: Remember the Fundamentals

In a world where civil trials happen less and less frequently, depositions play an increasingly important role in litigation. Each deposition is different from any other, so it is important to remember to adapt your techniques, strategies, and goals anew; however, this article sets forth some tips that are generally applicable. Far too often, attorneys go into depositions without giving the fundamentals any intentional thought, especially as we gain experience. Remember, “in a world of constant change, the fundamentals are more important than ever.[1]

Prepare. This tip may seem like a no-brainer, but it is so critical that it bears repeating. Taking a deep dive into everything you have and really knowing your case helps you be most effective. Make timelines, witness charts, or indexes to bring with you as an easy reference when needed.  Unfortunately, it’s noticeable when attorneys do not thoroughly prepare for a deposition – be it arriving late, being unfamiliar with the technology, missing exhibits, or being obviously unfamiliar with the subject matter of the case. Whether you are taking your first deposition or your 100th deposition, there is no substitute for adequate preparation.

Know your goal. The goal of the deposition shapes your preparation, your questions, and even your case strategy. Two primary goals of depositions are (1) to discover information or (2) to lock down testimony. Other important goals include: authenticating documents, developing support for elements of a cause of action, developing impeachment material, and developing contradictory facts for summary judgment, among many others. Some depositions may have one goal or multiples goals. Identify the goal or goals of your deposition at the outset.

Know the rules. It should go without saying that a lawyer should know the deposition rules and the law of the jurisdiction governing the deposition. Two examples of how reviewing the rules can impact your deposition and strategy:

  • In one case, a federal judge changed the time limit for depositions to six hours. When counsel ended the plaintiff’s deposition at the end of the sixth hour, a baffled defense counsel had clearly been counting on a full seven hours for the deposition and saving his “big” questions until the final hour. Because he failed to familiarize himself with the rules applicable to the deposition, his witching hour never came.
  • In a state court case, defense counsel and the witness were having an intense conversation during the first break of a deposition. Concerned that the attorney may be coaching the witness, the questioning attorney asked the witness to recount everything he discussed during the break. After jumping to the ceiling, defense counsel objected and finally instructed the witness not to answer based on privilege. Unbeknownst to him, that state’s supreme court issued an opinion directly on point stating that the conversation was not privileged. After being presented with a copy of the opinion, defense counsel had no choice but to holster his privilege sword and found it best not to consult with his witnesses during deposition for the remainder of the litigation.

Listen. The studies and experiments about communication are always fascinating because they show that people often hear our words differently than we intended. Likewise, an attorney taking a deposition may hear a question being answered but fail to recognize that the response did not actually answer the question asked. If a witness throws out a new fact or name, you do not want to miss asking key follow-up questions. Unscripted, unplanned follow-up questions can often provide the best gems. Similarly, if you need a witness to provide a single fact, listen to make sure the answer does not contain extemporaneous information so that you can ask your question again if necessary for a clean answer.

Listen to your own questions as well. Actively listening to yourself may sound odd, but taking an active approach in listening to questions as you ask them can help ensure you are asking the questions clearly and correctly. Realtime reporting is a great feature to help ensure you hear answers correctly and confirm that you ask the question you intend to ask. Bring co-counsel, or a paralegal provides another pair of ears to ensure your questions and the witness’s answers are correctly heard.

Clean it up. One of the important things to take away from a deposition is a transcript you can use for your case, so take some time to make sure you get it. Do not end the deposition too soon, and do not let opposing counsel pressure you into ending the deposition too soon. Take a break at the end of the deposition to make sure that you achieved your goals. Depending on the goals of the deposition, consider asking some broad clean-up questions such as: Do you remember anything else about [the accident] that we haven’t discussed yet?  Was anyone else present that we haven’t mentioned today? Did you do anything else?  Make sure you have properly authenticated your exhibits. Go back through your outlines and checklists and make sure questions or topics were not inadvertently skipped. Take your time during this final review because this will likely be your only opportunity to depose this witness.

Critique yourself. One of the most effective ways of improving your deposition skills is to critique your performance after each deposition.  Make notes after the deposition about your performance: whether you accomplished your goals and any mistakes or shortcomings you noticed.  Once you get the transcript, spend time critiquing your performance. Pay attention to opposing counsel’s questioning as well because you may find tips and tricks to incorporation into your own deposition technique. It can be helpful to keep a list of your criticisms and review the list before a deposition to ensure you are actively working to correct them. Also, keep your best depositions to review in preparation for future depositions.

[1] Quote attributed to James C. Collins

RECALLS UPDATE

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

BEASLEY ALLEN EMPLOYEE SPOTLIGHTS

Rachel Minder

Rachel Minder joined Beasley Allen in 2014 as a second-year law student working in the Consumer Fraud & Commercial Litigation Section. She returned to the section as a lawyer after graduating and obtaining her law license. Rachel was recently named a Principal in the firm, working in the same section, handling litigation involving class actions, antitrust issues, whistleblower claims and Medicaid fraud.

Rachel graduated cum laude from the University of Illinois Springfield in May 2012 with a B.A. in political science and psychology. She earned her J.D. from Faulkner University Thomas Goode Jones School of Law, graduating summa cum laude in 2015. While at Jones, she was a Walter J. Knabe Scholar, a Senior Editor of Jones Law Review, a Dean’s Fellow and a teaching assistant. She also received 10 Best Paper awards in various courses.

Rachel says her love of writing has carried over from law school and that she really enjoys drafting creative arguments for motions in clients’ cases. Rachel says that since the fifth grade, she has never considered being anything other than an attorney. She says her favorite part of practicing law is that there are always new challenges to research and solve.

Rachel’s practice is focused on class action litigation on behalf of life insurance policyholders who experienced unfounded premium increases. In the lawsuits, it’s shown that these increases are implemented to benefit shareholders and rid the insurance companies of near-term liabilities, which accrued due to the wrongful use of captive reinsurance companies.

Rachel was part of the Beasley Allen trial team that secured a $38.2 million settlement for a class consisting of more than 10,750 policyholders of Banner Life Insurance Co. and William Penn Life Insurance Co. universal life insurance policies. In those class actions, the companies unjustifiably increased the cost of insurance charges on the policies. Rachel’s practice continues to focus on insurance cases.

The National Trial Lawyers has recognized Rachel’s work and named her to its “Top 40 Under 40” list of lawyers. The designation is “extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile measured by objective and uniformly applied standards.”

A recipient of the Advocacy Award from her law school alma mater, Rachel continues to represent the best qualities of a true advocate, and she says she is glad to be part of a firm that allows her passion for advocacy to flourish. She says further:

Beasley Allen is unique because of its rare firm structure and drive to win our clients’ cases. Our culture really fosters bonds between employees, and some of my coworkers are now my closest friends.

The central Illinois native now lives in Montgomery, with her husband Michael, their dogs Jordan, Lacy, Coco, and Rey and an ever-revolving slate of foster puppies. She is a member of the Illinois State Bar, Phi Alpha Delta International Law Fraternity, Psi Chi International Honor Society in Psychology, Pi Sigma Alpha National Political Science Honor Society, the Animal Legal Defense Fund’s Animal Law Program, and the Montgomery Junior League. Rachel also serves as a board member for The Scott & Zelda Fitzgerald Museum.

Rachel is a talented lawyer who is dedicated to the firm’s mission and who does excellent work. We are fortunate to have her at the firm.

Ashley Pugh

Ashley Pugh has been with the firm since November 1999 and has worked in multiple areas, starting in Accounting, Trial Technology, and the Consumer Fraud & Commercial Section, where she has worked since 2010. She works directly with Dee Milles and Michelle Fulmer, providing administrative support. Ashley also focuses on Litigation Technology for the Consumer Fraud & Commercial and Personal Injury & Products Liability Sections.

Ashley and her husband Patrick will soon celebrate 19 years of marriage. They live in Matthews, Alabama, with JP, their only child. JP is in his senior year at Macon East Academy, where he is a football player. Ashley has served the last six years on the board at Macon East in her spare time. Also, she and her family operate a commercial beef cattle farm.

When asked what her favorite thing about working at Beasley Allen is, Ashley replied, “helping those who need it most.” Ashley says that she takes great pride in working with the lawyers and staff to ensure all cases are presented at trial with the highest technology level possible.

Ashley is a talented employee who does excellent work in an important position in the firm. She is dedicated to the clients and their cases. We are fortunate to have her with us.

Angela Talley

Angela Talley, a Paralegal in the firm’s Personal Injury & Products Liability Section, working directly with Mike Crow and Stephanie Monplaisir. She focuses on various tasks related to case preparation, including case investigation and collecting factual information, legal research, and reporting. Angela has been with the firm since May 2002.

Angela and her family are from New Orleans, Louisiana, and Natchez, Mississippi, but for nearly 30 years, she has called Alabama home. She has two grown children and four grandchildren, which she describes as the joy of her life. Her oldest grandchild will be 10 in November, and the youngest turns one very soon.

Angela says gardening, either vegetables or flowers, is one of her favorite hobbies. Reading older books printed in the 1920s and 1930s is her next favorite hobby. Angela she enjoys sharing her collection of over 700 books with others who enjoy reading. She says her favorite thing about working at the firm is involvement with her co-workers and the cases she works on that help those greatly in need.

Angela is a very good, dedicated employee who does excellent work as a paralegal in an important area of litigation. We are fortunate to have her at Beasley Allen.

Kwanzaa White

Kwanzaa White is a Receptionist in our Operations Department. In that position, she answers incoming calls, greets employees and clients, and assists with various day-to-day tasks in her job. In July, Kwanza recently celebrated her 20th year with the firm.  She has done a tremendous job during that time.

Kwanzaa grew up in Opelika, Alabama, and her parents still live there. In 1994, Kwanzaa moved to Montgomery to attend Auburn University Montgomery. While there, she met her husband, James. They have been married for 21 years and have an 18-year-old daughter, Alexandra “Lexi.” Lexi graduated from Pike Road High School in May and attends college at Trenholm State. Kwanzaa and her family also have a 9-year-old fur baby, Chubby. Kwanzaa says he thinks he’s in charge of their home.

Kwanzaa says her favorite hobby is watching her daughter perform in the marching band at Friday night football games. She also enjoys walking, reading, spending time with family and friends. Participating in prayer teams and small groups at her church are her lifelines.

Kwanzaa has a very important position with the firm, and she does that job extremely well. She is a definite asset to Beasley Allen and represents the firm in the right way at all times. We are blessed to have Kwanzaa with us.

SPECIAL RECOGNITIONS

Laura Reaves Wins Alabama Paralegal Of The Year Award

Laura Reaves, a Paralegal working with Chris Glover (Managing Attorney for the Atlanta office), was selected as the Alabama Paralegal of the Year by the Alabama Association of Paralegals, Inc. (AAPi) during the organization’s Annual Convention last month. Only lawyers or paralegal directors can nominate AAPi members for this prestigious award. The award recognizes the recipient’s commitment and dedication to the profession and those they help serve in the country’s justice system. Laura had this to say:

This award was completely unexpected. I am truly humbled and thankful to even be nominated for this award. There are so many individuals that are equally deserving of this. I have a lot of passion for what I do, and it’s an amazing feeling to be surrounded by people in AAPi and Beasley Allen who continuously help me grow and want me to succeed.

Chris Glover, commenting on the prestigious award received by Laura, had this to say:

Laura has worked with our firm for 20 years. She is devoted to our cause and our clients. Laura does everything with a high level of excellence that comes from taking tremendous pride in her work. I’m proud of her, and this is a well-deserved honor.

Laura is the NALA Liaison for the AAPi, an affiliate organization of the National Association of Legal Assistants – The Paralegal Association (NALA). She serves on NALA’s Continuing Education Council Committee and the Paralegal Advisory Committee of the Paralegal Program at the Air Force Judge Advocate General’s School on Maxwell Air Force Base. Laura is also a member of the Georgia Trial Lawyer’s Association Paralegal Section.

Last year, Laura was awarded the NALA Affiliate Award, which recognizes members or committees of affiliated associations for their contribution to the goals and programs of the affiliated nominating association.

Laura earned an Associate of Science in Legal Studies from Faulkner University and a Bachelor of Arts in International Business from Huntingdon College. She is an Advanced Certified Paralegal through NALA.  Her Advanced Certification is in the area of e-Discovery.

In addition to her leadership in the local NALA chapters, Laura is also a volunteer in the community. She has recently become a mentor for Heart Gallery Alabama, a nonprofit dedicated to finding forever families for children in Alabama’s foster care system. She also volunteers with the Information Table at Centerpoint Fellowship Church in Prattville, Alabama, where she and her family are members.

All of us at Beasley Allen are very proud of Laura’s selection as Alabama’s Paralegal of the year. She is a definite asset to the firm, and we are blessed to have her with us.

Beasley Allen’s Ryan Duplechin To Serve As Treasurer Of The Young Lawyers Section Of The Alabama State Bar Association

Beasley Allen’s Ryan J. Duplechin was recently elected Treasurer of the Alabama State Bar’s Young Lawyers Section (YLS). About 900 young Alabama lawyers ages 36 and younger make up the YLS. The group is governed by an Executive Committee of about 40 members. Ryan was named to the executive committee in 2018. He serves alongside fellow Beasley Allen lawyers Evan Allen, Warner Hornsby, and Wyatt Montgomery.

The Executive Committee has four officers — President, Vice President, Secretary, and Treasurer. Ryan will promote to Secretary next year and Vice President the following year. He will be in line to be President for the 2024-2025 term.

Ryan, a graduate of Faulkner University Thomas Goode Jones School of Law, is in our firm’s Mass Torts Section, where he handles products liability cases involving pharmaceuticals and medical devices. Ryan has also worked with the firm’s Products Liability Section on appellate matters involving complex issues like personal jurisdiction and sovereign immunity.

Ryan spearheaded the COVID-19 Legal Assistance Hotline on behalf of YLS and in partnership with the Volunteer Lawyers Program. He recruited 15 young lawyers to volunteer their time to field approximately 60 calls from Alabama citizens facing COVID-related legal issues. Ryan has also represented pro bono clients involving debt collection, contracts, and landlord-tenant matters.

14 Firm Lawyers Selected To 2021 Lawdragon 500 Leading Plaintiff Consumer Lawyers List

Fourteen of our firm’s lawyers have been selected to the 2021 Lawdragon 500 Leading Plaintiff Consumer Lawyers list. Those named to this prestigious list, in addition to this writer, are Greg Allen (Lead Products Liability Attorney); Tom Methvin (Managing Attorney for the firm); Cole Portis (Personal Injury & Products Liability Section Head); Dee Miles (Consumer Fraud & Commercial Litigation Section Head); Chris Glover (Managing Attorney – Atlanta); Andy Birchfield (Mass Torts Section Head); Rhon Jones (Toxic Torts Section Head); LaBarron Boone (Executive Committee Member); Leigh O’Dell (Executive Committee Member); Kendall Dunson; Larry Golston; Ted Meadows; and Navan Ward, Jr.

Recognition by Lawdragon 500, one of the most respected groups in the legal profession, is a distinct honor. Recipients of this honor are determined by editorial staff research of top verdicts and settlements, as well as one-on-one interviews with lawyers across the nation.

The Lawdragon 500 Leading Plaintiff Consumer Lawyers consists of lawyers representing individuals who have suffered injuries from accidents, pharmaceuticals, civil rights abuse and other torts.

Lawdragon also took time to recognize the lawyers selected to its Lawdragon Plaintiff Consumer Hall of Fame. I am honored to be a member of the Hall of Fame. Greg Allen, our senior Products Liability Lawyer, was selected to the Hall of Fame this year. The Hall of Fame includes past members of the Lawdragon 500 and other lawyers who are found to have made remarkable contributions to the profession.

Sources: Lawdragon

America In Crisis

As schools are starting up across the country and the football season for high schools, colleges and the NFL begins, America is facing a public health crisis that should concern all Americans. Without any doubt, America is in crisis. Following the Fourth of July holiday, there was a spike in COVID diagnoses nationwide as the virus’ Delta variant spread even faster than COVID-19, ushering in a new wave of illness and death. The case numbers have been increasing greatly and are getting higher daily. Sadly, there are still huge numbers of folks who won’t get vaccinated and are ignoring other needed safety requirements, such as the use of masks.

Alabama is number one in football but at press time was dead last in the vaccination ratings of all states. This state’s love of football and the passion of football fans everywhere can inform the approach we take to the public health crisis we face in the U.S.

Where we are in the public health crisis

According to Healthline, after months of improvement in COVID cases, the Center for Disease Control and Prevention (CDC) reports that the 7-day average of new COVID cases has been at the highest average since February. Forbes reports that at the end of last month, six states, including Alabama, had no intensive care unit (ICU) beds available due to the recent surge in new COVID cases as a result of the Delta variant. According to an analysis by USA Today of data from the CDC, Alabama had the fewest fully vaccinated population in the country at just under 36% and nationwide, only 51.1% of the adult population eligible for vaccinations have been vaccinated. Further, a recent U.S. Census survey showed that 10.4% of people 18 and older in this country would likely not agree to be vaccinated. It seems humanity is fighting a devastating virus, and part of that fight must address the tentativeness toward the COVID vaccination and safety measures that will help reduce the risk of serious illness and death for our neighbors and loved ones.

Experts warn that this dangerous combination – low numbers of vaccinated people and evolving variants – could lead to more surges in the future. Vaccination combined with practical safety recommendations like using masks and social distancing is a strategy that is proving successful.

A passion for football can inform our approach to the public health crisis

Taking a page out of the football game playbook, coaches deploy a strategy at the beginning of the season based on months of research, analysis, and years of experience. The strategy is the best formulation for starting the season. It will change and hopefully improve as the coaches and players learn more about each other, identify their strengths and weaknesses and work together towards the common goal of being undefeated champs by the end of the season. It takes work and action to achieve that goal.

Likewise, the current COVID vaccination and safety measures strategy will inevitably change as we learn more and develop better ways of fighting the virus. But we cannot afford to wait for something more. Our friends, family members and neighbors’ lives depend on our actions now. We know the cost of doing nothing.

Football Could Be The Key

With that in mind, one of the primary reasons football has such a strong and loyal fan base, regardless of the team, is the community and camaraderie it promotes. Fans of the same team share special bonds that transcend geography and, to some extent, even social and economic status. It is incredible to see the strength of these bonds and what personal ambitions fans and players alike are willing to forgo to see the team succeed. What if we chose to apply this concept to defeating this virus? This type of collective effort would be hard-pressed to fail.

Focusing on the proven efficacy of the best available strategy to fight COVID, the few months of declining diagnoses and fewer deaths and choosing to put the interest of others ahead of our own agendas to achieve collective success will let us see what so many doctors and medical personnel on the frontlines of this fight have witnessed – this current strategy works. Uniting to defeat this virus can spark more innovation and an improved strategy in the future, but for now, it will take a total commitment from every single person in the country to do their part.

Sources: Healthline, USA Today and U.S. Census

FAVORITE BIBLE VERSES

Andy Birchfield, who heads up our Mass Torts Section, sent in three verses for this issue. He says: “Today, many of us find ourselves struggling with fear and fatigue. For a moment, it seemed that this summer would bring an end to the pandemic, or at least significant decline. Instead, we are facing a major resurgence. With so many hurting and dying, fear can seep in, and our well of compassion and empathy can run dry. These verses offer encouragement.”

“And let us not grow weary while doing good, for in due season we shall reap if we do not lose heart.” Galatians 6:9

“Therefore we also, since we are surrounded by so great a cloud of witnesses, let us lay aside every weight, and the sin which so easily ensnares us, and let us run with endurance the race that is set before us, looking unto Jesus, the author and finisher of our faith, who for the joy that was set before Him endured the cross, despising the shame, and has sat down at the right hand of the throne of God.” Hebrews 12:1-2

“You will keep him in perfect peace, Whose mind is stayed on You, Because he trusts in You.” Isaiah 26:3

Amber Killough, a Paralegal in the Mass Torts Section, supplied three verses for this issue. She says during 2020 with the Pandemic brought many changes to our lives. She adds: “Personally, I experienced many difficult changes, but in the midst of it all, I was blessed to be allowed to work from home. My health has improved greatly since this change. I realized that it was a good time to focus on taking better care of myself.  I begin to seek out scriptures and guidance through prayer. I discovered that it was not selfish for me to focus on my wellbeing, that our Lord wants us to practice ‘self-care.’ I learned that in order for me to serve the Lord truly, I had to be whole in myself. Here are a few of the scriptures that I found helpful and comforting.”

 “And he said to them, “Come away by yourselves to a desolate place and rest a while.” For many were coming and going, and they had no leisure even to eat.” Mark 6:31

“Come to me, all who labor and are heavy laden, and I will give you rest. Take my yoke upon you, and learn from me, for I am gentle and lowly in heart, and you will find rest for your souls. For my yoke is easy, and my burden is light.” Matthew 11:28-30

“Or do you not know that your body is a temple of the Holy Spirit within you, whom you have from God? You are not your own for you were bought with a price. So glorify God in your body.” 1 Corinthians 6:19-20

Paula Shaner, a Legal Secretary in the firm’s Mass Torts Section, furnished two verses this month. She says her all-time favorite verse is 1 Peter 5:7, and that is on her tag.

Casting all your care upon him; for he careth for you. 1 Peter 5:7

Paula says: “In life, we all face different obstacles in our lives, in about a twelve-year span in my life, my family and myself faced some major challenges, and this verse helped me to remember GOD has got this, no matter what we are facing. Phillippians 4:13 is my reminder that no matter what I set out to do, even waking in the morning, God has got me covered in His strength, grace and mercy.”

I can do all things through Christ who strengthens me. Philippians 4:13

CLOSING OBSERVATIONS

Beasley Allen’s Mobile Office Is Growing

Beasley Allen lawyers tried the first post-COVID case in Mobile County, Alabama, in October 2020. The successful result, along with many others in south Alabama, led the firm to open a new location in Mobile in January 2021. Frank Woodson returned to Mobile to manage the office.

Previously, Frank had been a partner in a general litigation firm in Mobile. His practice there focused on plaintiff and defense litigation, including consumer fraud cases against car dealers, finance fraud involving door-to-door sales, personal injury litigation and obtaining landowners’ compensation when their property was taken in eminent domain proceedings. His work at Beasley Allen in the Montgomery office was in Mass Torts Litigation. Frank’s experience practicing law in Mobile, and his ties to the local community, positioned him for spearheading the launch of the firm’s newest office location. He has done a tremendous job getting the office up and running.

One focus of the Mobile office is to partner with local lawyers working on product liability claims that involve severe injury or death. Evan Allen, specializing in these types of cases, joined Frank in Mobile, relocating his family to Fairhope.

The firm quickly added an experienced litigator, Matt Griffith, from a large defense firm to work in its Toxic Torts Section. Matt joined Beasley Allen to work on the opioid litigation and pollution cases for Alabama cities.

The newest lawyer to join the Mobile office is Wyatt Montgomery. Wyatt has been practicing plaintiff litigation in Birmingham for the last eight years. He is originally from Washington County, just north of Mobile, and he welcomed the opportunity to be back close to his home.

The firm’s office is located at 301 St. Louis Street in downtown Mobile near the federal and state courthouses. If you have any questions about the Mobile office or specific cases, contact Frank Woodson at 800-898-2034 or email at [email protected].

Our Monthly Reminders

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.

2 Chron 7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.

Rep. John Lewis on movement-building in Across That Bridge: A Vision for Change and the Future of America

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Isaiah 10:1-2

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

Martin Luther King, Jr.

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

Martin Luther King, Jr.

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

Bryan Stevenson, 2019

Get in good trouble, necessary trouble, and help redeem the soul of America.

Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020

PARTING WORDS

All of us in American are facing another critical and highly dangerous period relating to COVID-19. Our country is in peril, and that’s because of the refusal of far too many people to be vaccinated. The Delta variant of the virus is causing tremendous difficulty and hurt as it spreads rapidly throughout the country. Vaccines, using masks and avoiding large crowds are the means by which to deal with this most serious crisis.

It’s extremely difficult to comprehend how folks can ignore science and medical recommendations and not get vaccinated. The same is true for their avoiding the necessity of the wearing of masks. There are huge numbers of folks who are not vaccinated and who refuse to take the other necessary health safety precautions. We are now witnessing the dire results, with virus cases and deaths rising dramatically throughout the country. It’s projected there will be another 100,000 deaths nationwide. If that happens, we will have had over 750,000 deaths in America.

Alabama is at a breaking point when it comes to dealing with the surge of COVID patients. In a briefing on Aug. 26, Dr. Scott Harris, State Health Officer, said he was “intensely frustrated” with the lack of vaccinations and masking to prevent the spread of coronavirus even. He made that known as two morgue trailers were being sent to Mobile and Baldwin Counties due to a growing number of COVID-related deaths. At present, Alabama has more ICU patients than the state has beds.

Individuals must consider how their decisions relating to COVID-19 affect not only them but all others they have contact with. That includes family, friends, co-workers and other persons they encounter in a great number of ways.

Those in leadership positions in government at every level, in business, in education, in sports and in the churches must be real leaders and actually lead in this critically important battle against a relentless and deadly foe. To say this battle is a “matter of life and death” is an accurate description.

My prayer is that all of the American people, including those in leadership positions, will wake up!

About the Report

Consumer Protection Lawyer Jere Beasley

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

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

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

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

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