The Jere Beasley Report September 2023

CAPITOL OBSERVATIONS

Fred Gray Awarded American Bar Association Medal

The American Bar Association (ABA) awarded Fred Gray the 2023 ABA Medal at its annual meeting. The ABA Medal is the association’s highest honor, recognizing a bench or bar leader who has “rendered conspicuous service to the cause of American jurisprudence.” Fred Gray meets all qualifications for this prestigious award. 

As we all know, Fred was a key figure in the historic Civil Rights Movement. Described by Dr. Martin Luther King Jr. as his “chief counsel,” Fred advocated for Rosa Parks and fellow bus boycotters in the mid-’50s. In 1965, he represented marchers as they walked from Selma to Montgomery, Alabama. Fred also secured a settlement in 1975 and a government apology in 1997 for survivors of the infamous Tuskegee syphilis study.  

During a time of sharp division in our country, Fred proclaimed a mission “to destroy everything segregated” he encountered. He helped integrate the University of Alabama and Auburn University. He also obtained a court order to integrate all Alabama schools not under other orders. We all owe a tremendous debt of gratitude to this man. 

Fred served as one of the first Black legislators in the Alabama House of Representatives since Reconstruction. He was elected in 1970 and served until 2015. Further, Fred was the National Bar Association President in 1985 and the first Black president of the Alabama State Bar in 2002. 

When Fred received the ABA Medal last month, he had this to say:

I am honored, appreciative and humbled that the ABA Board of Governors has selected me as the 2023 recipient of the ABA Medal. It is a great honor to be recognized by my peers.

I am honored because the ABA stated it is doing so for ‘your conspicuous service in the cause of American jurisprudence.’ During my 69 years of civil rights practice, I have destroyed racial segregation wherever I found it.

I am appreciative because it comes late in life, at the age of 92, while I still can enjoy it. I am humbled to be added to this list of great legal minds and leaders.

Past award recipients include Chief Justices Warren E. Burger and Charles Evans Hughes and Associate Justices Stephen G. Breyer, Lewis F. Powell, Jr., Sandra Day O’Connor, Thurgood Marshall, William J. Brennan, Anthony M. Kennedy, Ruth Bader Ginsburg, Tom Clark and Felix Frankfurter.

ABA President Deborah Enix-Ross had this to say about Fred receiving the prestigious award:

Fred Gray is a giant in the American Legal Profession. As a pioneering lawyer and as a courageous civil rights leader, he is a role model for many. Fred Gray, a longtime ABA member, embodies everything that our members aspire to be. 

Fred Gray is a great American hero and has worked tirelessly to help bring about liberty and justice for all Americans. He will leave a legacy that has had a major lasting effect on America!

THE TALC LITIGATION

J&J Judge Won’t Impose Six-Month Ban On LTL Bankruptcy Claims

On August 11, Johnson & Johnson’s second bankruptcy attempt for subsidiary LTL Management was formally dismissed. This followed U.S. Bankruptcy Court Chief Judge Michael Kaplan’s late July ruling that the bankruptcy be dismissed for failure to show sufficient “financial distress,” as we wrote about in the previous issue.  

While this is a significant victory for talc victims and their families, Judge Kaplan refused to impose a 180-day ban on future J&J bankruptcy claims. Plaintiffs requested the ban to avoid further setbacks that could jeopardize potential talc claim settlements. 

J&J’s multiple attempts to escape liability have delayed justice in some 38,000 lawsuits against the corporation. Many women and their families devastated by ovarian cancer have waited over two years to see their day in court. 

Beasley Allen lawyer Leigh O’Dell, who co-chairs the talc multidistrict litigation Plaintiffs’ Steering Committee, had this to say:

Tragically, hundreds of women have died during this delay and will never see their day in court. Now our firm can aggressively begin seeking a resumption of the trials that have been on hold for far too long. We’re certain that other firms will do the same.

You will recall that in 2021, J&J created LTL Management in a “Texas Two-step” maneuver, employing the fraudulent strategy to limit its liability. After the Third Circuit U.S. Court of Appeals rejected LTL’s first bankruptcy claim this past January, J&J proposed a sham settlement with a second bankruptcy claim in April. The fraudulent second bankruptcy filing came just hours after the court formally dismissed the first bankruptcy claim.  

Andy Birchfield, our firm’s Mass Torts Section Head, has aggressively helped lead the fight for talc victims. When he received news that the court formally dismissed J&J’s most recent ploy, Andy had this to say:

The bankruptcy court’s order dismissing J&J’s bad faith bankruptcy provides just the latest example of the judiciary questioning the use of the bankruptcy system to resolve tort claims and limit the liabilities of those involved. We hope these recent developments signal that bankruptcy cannot serve as a shield for financially sound entities or as a tool to involuntarily deprive victims of their right to a trial by jury and just and fair compensation for their injuries. Any proposed compensation for victims must consider the real financial and emotional toll of this disease. 

We are prepared and eager to return to jury trials to present the evidence of J&J’s reprehensible conduct in covering up the dangers of its products. We stand ready to engage in rational and productive negotiations with J&J to resolve these claims.

Talc Lawyers Propose Consolidated Trials to Increase Efficiency

Our talc lawyers and others across the country are ready to pursue trials that have been delayed for over two years. Tired of J&J’s evasive maneuvers, lead lawyers in the talc multidistrict litigation have proceeded with vigor. 

In a letter to U.S. District Judge Michael Shipp, the lawyers outlined a bellwether trial plan that deviated from the original schedule proposed before J&J’s first bankruptcy attempt in 2021. Lawyers requested consolidated litigation with two or more plaintiffs in each trial. 

Leigh O’Dell from our firm, who serves as co-lead plaintiffs’ counsel in the talc multidistrict litigation, had this to say:

We feel like that’s fair in light of the delay that’s resulted from all the bankruptcies. We think circumstances have changed. 

In 2018, a Missouri state court jury awarded 22 women and their families a $4.7 billion verdict in a consolidated talc trial. Although the verdict against J&J was lowered to $2.1 billion on appeal, the U.S. Supreme Court refused to throw it out.

J&J argued that consolidated trials in the current litigation would unfairly prejudice defendants.

Judge Shipp has set a Sept. 6 hearing to discuss the matter.

When formally dismissing LTL Management’s second bankruptcy claim, U.S. Chief Bankruptcy Judge Michael Kaplan encouraged all parties in the talc litigation to continue settlement negotiations. As part of the sham second bankruptcy attempt, J&J had offered $8.9 billion to resolve all current and future talc claims. Plaintiffs’ lawyers argued the amount was grossly inadequate.

Plaintiffs’ lawyers further indicated the settlement talks were fruitless and stressed their intent to get talc victims’ cases to trial.

Lawyers have suggested six bellwether trials in the multidistrict litigation that includes almost 38,000 cases. The six trials are the same as those proposed in the original trial schedule.

Dozens more trials outside the multidistrict litigation could also restart, including those for mesothelioma victims. There are pending cases in California, Florida, Georgia, Missouri, New Jersey and Pennsylvania state courts. Leigh added:

You’re going to see status conferences in all the jurisdictions in the next 15 to 30 days, and you’ll start seeing trial settings. 

The only case that proceeded against J&J in the past two years resulted in an $18.8 million verdict for a 24-year-old dying from mesothelioma. Judge Kaplan had imposed a stay for all the other trials but allowed that case to proceed as an exception.

Additional lawsuits may be filed.

While J&J lawyers agreed that a significant case backlog exists, they hinted that another bankruptcy filing is possible.

Despite this, our lawyers will continue seeking justice for all talc clients no matter what obstacles remain. J&J will be held accountable for the many lives its products have destroyed. 

Source: Law.com

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head the Beasley Allen Talc Ovarian Cancer Litigation Team. Andy Birchfield, who heads our Mass Torts Section, has been directly involved in all phases of the talc litigation. The team handles claims of ovarian cancer linked to talcum powder and mesothelioma cases. Several key team members have been focused on Johnson & Johnson’s blatant abuse of the bankruptcy system. That battle is finally over. Now the team’s attention will be on trials and obtaining justice for our clients. The following Beasley Allen lawyers are members of the Talc Litigation Team: 

Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.

Charlie Stern and Will Sutton are on the litigation team but exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

THE ASBESTOS LITIGATION

The Use Of “Ancient Documents” To Prosecute Mesothelioma Cases

As litigators, we are all aware of the rule prohibiting the use of hearsay evidence and the numerous exceptions to that rule.  But an often-overlooked exception to the rule against hearsay should be a major tool that asbestos lawyers utilize.  That exception is found in the Federal Rules of Evidence Rule 803(16) and is known as the “Statement in Ancient Documents” exception.  The Rule states:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

See Fed. R. of Evid. 803(16).

This exception to the rule against hearsay uniquely offers asbestos attorneys a tool to admit evidence that might otherwise be considered hearsay.  

Asbestos lawyers are part historians.  We often deal with events that took place decades ago, sometimes as long ago as the early 20^th century.  With that in mind, there are often documents that asbestos lawyers come across that have crucial and probative information that, on their face, appear to be hearsay.  Many of these documents have other exceptions to hearsay, such as public records, business records (or records of regularly conducted activity), statements in learned treatises – among others, but there are times when no other exception applies.  Enter the “Statements in Ancient Documents” exception. If it can be established that the document is authentic and was prepared prior to January 1, 1998, then the exception can be utilized to admit the document into evidence.

In a recent Beasley Allen mesothelioma case, our lawyers discovered a treasure trove of documents that were the product of a company at the premises where the exposures were alleged.  These documents were not technically records of regularly conducted activity, though, and did not fall squarely into any other exception.  However, they were easily authenticated and were all produced in the 1970s and 1980s.  While the defendants in the case argued that they were hearsay and should be struck, our lawyers simply pointed the court to the authenticity of the documents and their age.  The court relied on the language of Rule 803(16), and the documents were admitted and utilized.  These documents were crucial in corroborating certain events that a living witness testified had occurred at the premises during his deposition.  

Had Beasley Allen’s lawyers not been intimately familiar with the nuances of the hearsay exception rule, this evidence likely would have been struck – calling into question the witness’ testimony.  But Beasley Allen asbestos lawyers have a mastery of the available tools needed to litigate these cases and maximize value.  They do this in all of our cases, and utilizing the Statements in Ancient Documents exception is just one example of that expertise at work. 

The Beasley Allen Asbestos Litigation Team

Case filings in the asbestos litigation continue to increase nationwide. The Beasley Allen Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation and is a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by using the contact form at the bottom of this page.

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Litigation Update 

The Camp Lejeune litigation is picking up speed towards resolution. The Eastern District of North Carolina recently appointed leadership for the litigation including naming J. Edward Bell III as Lead Counsel for the litigation. Rhon Jones, the head of the Toxic Tort section at Beasley Allen, was appointed to the Plaintiff’s Executive Committee. The Plaintiff’s Executive Committee plays a critical role in key areas of the litigation such as developing bellwether trials, investigating the science and experts, coordinating discovery, and working towards resolution.

Since their appointment, leadership in this litigation is implementing key changes aimed to improve efficiency. The goal is to create a streamlined litigation that serves the plaintiffs first and foremost. There are now two websites that attorneys can reference to help keep track of this litigation and see the latest updates: https://www.nced.uscourts.gov/attorney/clwl.aspx and https://camplejeunecourtinfo.com.

The parties have requested a brief extension on responsive pleadings with deadlines through September 1, 2023. The goal of this extension is to allow the litigation to move forward on a global basis by developing a process for uniform complaints and answers. The parties will submit to the court a Global Case Management that will outline the parties plans to uniform the litigation to better promote resolution.

We will continue to update our readers on this litigation as it moves forward. If you have any questions or need help on a claim, contact a lawyer on our litigation team.

Beasley Allen Camp Lejeune Litigation Team

Beasley Allen lawyers continue to be hard at work on the Camp Lejeune litigation. Their work has dramatically increased in recent weeks. There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com.

Currently, our firm has 12 lawyers working on this litigation, including Toxic Torts Section Head Rhon Jones. You can contact Rhon Jones or any other lawyers on our team should you need help with a claim or have questions. The lawyers include co-leads Leslie LaMacchia, and Julia Merritt, along with Will Sutton, Ryan Kral, Trisha Green, Ken Wilson, Matt Pettit, Tucker Osborne, Gavin King, Elizabeth Weyerman, and Marion Brummal.

SOCIAL MEDIA LITIGATION

Meta Litigation update

Personal injury and public nuisance litigation against Facebook, Instagram, Snapchat, TikTok, and YouTube continues to move forward in the federal MDL and the California Judicial Council Coordination Proceeding (JCCP).  Beasley Allen lawyer Joseph VanZandt serves on the Plaintiff Steering Committee for the MDL and is Co-Lead Counsel of the JCCP based in Los Angeles Superior Court.  

Beasley Allen lawyers are representing adolescents and young adults who have suffered a variety of personal injuries because of the defendants’ products and conduct, including suicide, suicidal ideation, various forms of self-harm, eating disorders, severe depression and anxiety. Our lawyers also represent school districts around the country that have been harmed by the defendants’ products and tactics. 

Plaintiffs in both jurisdictions recently filed oppositions to defendants’ attempts to dismiss plaintiffs’ claims. The social media companies are arguing that Section 230 and the First Amendment shield them from any liability for the design choices they made with the alleged intent to cause these injuries. The JCCP Plaintiffs’ brief alleges that the social media giants researched and developed their products with the intent to addict children, and allegedly intentionally concealed the design defects after learning that their products were causing serious harm like depression, eating disorders and suicide.  The alleged defects of the companies’ products that are outlined in the opposition brief include:

• Practically useless age-verification measures that allow extremely young children on the platforms;
• “Trophies” to reward excessive use;
• Filters that facilitate compulsive behavior in children;
• A lack of parental notification of their child’s interactions with another adult or of child sexual abuse material (CSAM) on their child’s account;
• Methods of cash payments between children and adults;
• Geolocation of children; and 
• Filters that allow users to slim their bodies or lighten their skin tone and see themselves through an unrealistic and photoshopped lens.

Oral arguments before JCCP Judge Carolyn Kuhl, of the Los Angeles Superior Court, are set for September 13.  Plaintiffs’ lawyers are optimistic the court will reject defendants’ attempt to avoid liability, enabling plaintiffs to begin discovery into the defendants’ conduct.  

Judge Tightens Google Antitrust Litigation

Google lost its bid for summary judgment on several issues in sprawling litigation accusing the tech giant of violating antitrust laws in its handling of apps developed by outside parties. 

Federal Judge James Donato, overseeing the Google antitrust litigation in San Francisco, held a hearing on Google’s motion for partial summary judgment in August. In that hearing, he warned he would not split the damages and liability phases of a trial scheduled to begin November 6. He also said he would not let the trial drag on for months by holding separate jury trials on the same antitrust claims by different plaintiffs.  

The litigation encompasses antitrust claims against Google by state attorneys general, game developer Epic Games Inc., dating app designer Match Group LLC, and a certified class of about 21 million consumers.

The claimants challenge Google’s business practice of siphoning a 30% commission from in-app purchases in the Google Play Store. In 2020 alone, those purchases generated $38 billion – more than 20% of Google’s total revenues of $182 billion that year. Instead of going to app developers, those billions of dollars flow into Google’s pockets.

Google vehemently disputes the antitrust claims. The tech giant sought a ruling in its favor on five distinct antitrust arguments lodged by the plaintiffs. Judge Donato rejected some of Google’s arguments but allowed the others to go to trial, where the matters would be better decided and the facts of the case more developed.

The overall case is In re: Google Play Store Antitrust Litigation, case number 3:21-md-02981, the consumer class action is In re Google Play Consumer Antitrust Litigation, case number 3:20-cv- 05761, and the individual cases are Epic Games Inc. v. Google LLC et al., case number 3:20-cv- 05671, Match Group LLC et al. v. Google LLC et al., case number 3:22-cv-02746, and the State of Utah et al. v. Google LLC et al., case number 3:21-cv-05227, all in the U.S. District Court for the Northern District of California. 

The appeal is In re: Google Play Store Antitrust Litigation, case number 22-80140, in the U.S. Court of Appeals for the Ninth Circuit. 

Source: Law360

The Beasley Allen Social Media Personal Injury Litigation Team

If you need help on a case, or more information on the personal injury part of our social media litigation, contact a lawyer on the firm’s Social Medial Litigation Team by using the form at the bottom of this page. Members of the team are:

Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team. He can be reached by using the form at the bottom of this page.

Joseph VanZandt, who leads the team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California state court. He is also a member of the Plaintiffs Steering Committee, helping lead the federal social media multidistrict litigation (MDL).

We again note that the class action aspect of the Meta Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. If you need more information or need help on a case, contact Michelle Fulmer, Section Director, by using the form at the bottom of this page. She will have a lawyer respond to you. 

AN UPDATE ON MOTOR VEHICLE LITIGATION

Litigation Involving A Defective Ford Fiesta DPS6 Transmission

Ben Baker, a lawyer in our Personal Injury & Products Liability Section, represents the family of a woman who was killed in a wreck involving a 2018 Ford Fiesta. Our client’s wife was the front-seat passenger when the vehicle experienced a loss of power while traveling down the interstate. The vehicle eventually stopped on the left side median with a portion of the vehicle remaining in the interstate. As our client was attempting to exit the vehicle, another vehicle traveling down the interstate struck the Fiesta in the rear causing the death of our client’s wife.

The 2018 Ford Fiesta, as well as the Ford Focus, both contain the DPS6 transmission. The transmission is a dual dry clutch “power shift” transmission that is designed to default to neutral when certain problems occur, which causes the vehicle to lose drive power. According to an article published by the Detroit Free Press, an anonymous engineer from Ford has stated:

Good people tried to make it work.   But you can’t violate the laws of physics. It’s a mechanical catastrophe.

It is estimated that using the DPS6 transmission in the Ford Fiesta and Ford Focus has cost Ford Motor Company an estimated $3 billion in warranty costs and legal fees from multiple lawsuits. Additionally, there have been multiple governmental investigations into the defective performance of the DPS6 transmission including agencies in Australia, Brazil, Canada, Thailand, Taiwan, and the U.S. 

In 2018, Australia’s Competition and Consumer Commission fined Ford $10 million for “unconscionable conduct” related to its handling of the problems associated with the DPS6 transmission.  

According to Ford’s 2019- 2022 Annual 10-K filings with the U.S. Securities and Exchange Commission, it noted:

We are currently a defendant in a significant number of litigation matters relating to the performance of vehicles, including those equipped with DPS6 transmissions.

According to an article published by the Detroit Free Press, Ford’s lawyers raised concern about the potential for the transmission to slip into neutral without warning. The article says, “Ford’s Office of General Counsel in 2008 challenged engineers on the risk, arguing that the condition would lead to costly recalls if the technology was used for the first time in mass production vehicles.”  According to the same article, a Ford quality supervisor responded on June 27, 2008, “that stalling ‘alone is not hazardous.’”  Ford continues to assert that losing power while traveling down the interstate does not present a danger.

In the case Ben is handling, the 2018 Ford Fiesta was a rental vehicle that the driver had picked up a short time before the trip where the vehicle stalled. Currently, multiple class actions and mass actions are pending across the country related to the poor performance of the DPS6 transmission. 

Source: Detroit Free Press

Motor Vehicle Accidents: A Nationwide Problem

As technology has advanced over time and remote work has become more accessible, frequent travel has become the new norm. Unfortunately, with this heavy traffic on roadways comes frequent motor vehicle accidents. In 2021 alone, there were 39,508 fatal motor vehicle crashes in the United States. These crashes resulted in 42,939 deaths in just one year. Alabama saw 983 traffic deaths in 2021, while Georgia saw 1,670.

Detailed statistics are available for each state, which divide traffic fatalities into types of vehicles involved in wrecks. For example, 40% of traffic fatalities in Alabama in 2021 involved car occupants, while 31% involved occupants of pickup trucks and SUVs. The remainder of the fatalities were categorized as large truck occupants, motorcyclists, pedestrians, and bicyclists. Interestingly, the total number of fatalities was divided almost exactly in half between single-occupant and multiple-vehicle crashes in most U.S. states.

It is important to note that the causes and types of locations of these fatal accidents varied greatly by state. For example, states with harsh winter conditions and potentially icy roads saw a great deal of rural, single-vehicle fatalities, likely due to iced-over roads in less-frequently-traveled areas. In comparison, Washington, D.C., is classified as entirely urban. As a result, 100% of fatalities were also classified as urban.

Source: U.S. Department of Transportation Fatality Analysis Reporting System 

A Look At The Dangers Of Tire Tread Separation

Tire failure increases the chance of losing vehicle control and fatal accidents. Fortunately, tire failures can be detected by tire professionals, and accidents can be prevented. To do so, however, it is important for vehicle owners to know the causes and signs of tire failure and have their tires checked by a professional. 

One cause of tire failure is a manufacturer’s defect. While not easy to determine by a layperson, it is possible for something to go wrong in the chemical process when a manufacturer makes a tire, and other integral components can be improperly placed inside the tire, causing the tread and casing not to bond properly. 

Another cause of failure is improper design.  Again, this is not something a layperson can determine.  A defectively designed tire can cause a number of problems for the tire while in use.  If a tire is not designed to be robust enough with a reasonable margin of safety, it can fail prematurely.

Tire age is another problem, and it occurs when a tire outlives its usefulness. The average age for a tire is six years. After six years, tires can break down from the inside, which can cause the tires to lose treading. To check the age of your tire, check the date code. The date code is the last four digits of the 12-digit number on the tire, beginning with DOT. The first two numbers indicate the week, and the last two numbers indicate the year.  For example, if the date code reads “3619, ” the tire was manufactured in the 36^th week of 2019.  Oftentimes, even tire dealers are unaware of tire age being an issue.

Abnormal vibration, an off-balance feeling, or bumps in tread area are signs that the tire could be experiencing a tread/belt separation. Have your tires checked regularly by a professional and by doing visual checkups and feeling for abnormalities. An old tire could also look brand new and still have tread issues, so if you are unsure, have a tire professional check your tires for problems. 

Hyundai, Kia Warn Drivers to Park Outside Over Fire Risk

Hyundai and Kia are recalling 92,000 newer U.S. vehicles to fix a defective component that could cause an engine fire. The companies are warning owners of the affected vehicles to park them outdoors and away from structures until the repairs can be made.

Hyundai Motor, which owns one-third of Kia, said it is recalling 2023-2024 Palisades, 2023 Tucson, Sonata, Elantra, and Kona vehicles – about 52,000 U.S. vehicles altogether. The Kia recall covers about 40,000 vehicles: the 2023-2024 Kia Seltos and the 2023 Kia Soul and Sportage. Hyundai and Kia recalled an additional 21,700 vehicles in Canada.

The recalled vehicles may contain damaged electrical components in electronic controllers for the Idle Stop & Go oil pump – a fuel-saving device that automatically shuts down the engine when the vehicle stops and turns on again when the vehicle accelerates.

According to the Korean automakers, the defect can cause the pump to overheat and cause a fire. Any damage caused by the overheating pump can also cause other electronic controllers in the vehicle to short circuit.

The automakers said the vehicles are safe to drive until they can be repaired, but they should not be parked in or near buildings and other objects that could catch fire. Drivers who notice a burning or melting odor in their vehicle should not drive it, but have it towed to the nearest Hyundai dealer.

Hyundai and Kia will begin notifying owners of the recalls in late September. Dealers will replace the electronic oil pump controller. Hyundai directed dealerships to provide rental cars to drivers who feel unsafe operating their recalled vehicle until the repair can be made.

Source: Claims Journal, NPR.org

Judge Allows GM Class Action Over Engine Oil Defect to Proceed

A court has allowed a class action alleging General Motors LLC knew about and covered up an engine oil consumption defect to proceed, rejecting GM’s Motion to Dismiss.

In her opinion allowing the lawsuit to continue, U.S. District Court Judge Beth Phillips indicated that Tucker et al. v. General Motors set precedent for her decision. Judge Phillips concluded that Missouri resident Rachel Buchholz provided sufficient evidence to support her claim that GM concealed the oil consumption defect in 2014-2017 Chevrolet Equinox and GMC Terrain automobiles.

In January 2023, Buchholz sued the vehicle manufacturer over a 2015 Chevrolet Equinox LT she purchased from a Missouri GM dealership. The Equinox was new when Buchholz bought it. When she took the vehicle in for repairs in November 2021, dealership staff explained that the engine was burning too much oil. The staff also told Buchholz that GM knew about the problem but hoped vehicles with the issue would “die off.”

Buchholz brought her claim under the Missouri Merchandising Practices Act (MMPA), which requires her to allege she “purchased merchandise from GM for personal, family or household purposes and suffered an ascertainable loss of money or property as a result of… any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise.”

GM pointed to Buchholz’s failure to allege the company hid the oil consumption defect as a reason for case dismissal. Judge Phillips rejected the argument, saying Buchholz was not required to allege that fact at this point in the litigation. 

GM further argued that Buchholz did not claim to be personally affected by the auto manufacturer’s alleged concealment of the defect. Judge Phillips also rejected that argument, indicating Buchholz would not have purchased the Equinox had she been aware of the oil consumption problem.

Judge Phillips rejected GM’s next argument that Buchholz failed to show the company knew about the defect before Buchholz purchased her Equinox. GM said that Buchholz’s factual allegations didn’t meet MMPA requirements because they were too broad. 

Judge Phillips determined that Buchholz’s allegations of GM receiving numerous complaints about excessive oil consumption and the company’s response to the complaints are enough to establish an MMPA claim. After receiving the complaints, GM released a technical service bulletin and updated software for vehicles manufactured before 2013. Judge Phillips had this to say:

Based on the above allegations about an oil consumption defect in the model years immediately preceding the Affected vehicles, the Court finds Plaintiff has sufficiently and plausibly [established] GM actually or constructively knew of the Oil Consumption Defect in Affected Vehicles, particularly given the alleged material similarities between the vehicles and their engines during those years.

GM also argued that Buchholz’s claims aren’t timely. Judge Phillips disagreed, saying that the five-year statute of limitations did not begin running until Buchholz discovered the defect in 2021. Judge Phillips added:

Based on these allegations, Plaintiff discovered her MMPA claim in November 2021 and filed this case in January 2023, meaning the five-year limitations period does not bar her claim. 

Lawyer Eric L. Dirks and Matthew L. Dameron of Williams Dirks Dameron LLC represent Buchholz. Dirks said: 

We are pleased with the Court’s ruling and look forward to continuing to prosecute the case on behalf of consumers. 

The case is Buchholz v. General Motors LLC, case number 5:23-cv-06004, in the U.S. District Court for the Western District of Missouri. 

Source: Law360

Trucker’s RICO Case Against CBD Companies Revived

The Second Circuit revived a racketeering lawsuit against three CBD companies. A former commercial truck driver who claimed he lost his job after consuming the products and testing positive for THC brought the case. 

Long-time trucker Douglas J. Horn initially filed his lawsuit in New York federal court in 2015 against Medical Marijuana, Inc.; Dixie Holdings, LLC; and Red Dice Holdings. He claimed he purchased hemp-derived cannabidiol, or CBD, products from the three companies. The companies marketed products as not containing THC, the primary psychoactive ingredient in marijuana. 

Horn claimed that after consuming the products, he tested positive for THC in a drug test and, as a result, lost his job, insurance, and pension benefits. Horn’s lawsuit claimed that the alleged mislabeled CBD products were the cause of his loss of earnings. In January 2022, just before the case was supposed to go to trial, the federal district court granted a summary judgment in favor of the CBD companies on the Horn’s Racketeer Influenced and Corrupt Organizations (RICO) Act claim. 

In August, the Second Circuit overturned that decision, finding that the district court erred when it found Horn didn’t have grounds to bring a RICO action. The three-judge circuit panel wrote that RICO’s provision on civil actions allows plaintiffs to sue for injuries to businesses or property. In this context, “business” could be applied to Horn’s employment. 

The appeal was heard by Circuit Judges Gerard E. Lynch, John M. Walker Jr. and Beth Robinson of the Second Circuit. 

Plaintiff Horn is represented by Jeffrey M. Benjamin of The Linden Law Group PC. The case is Horn v. Medical Marijuana Inc. et al., case number 22-0349, in the U.S. Court of Appeals for the Second Circuit.

Source: Law360

TRUCKING LITIGATION

Truck Drivers And Sleep Apnea

Beasley Allen lawyers have been privileged over the years to represent individuals who have been impacted by heavy trucking accidents. While heavy trucks are important in maintaining interstate trade and allowing for ease of transport, the presence of these oversized vehicles on our highways can put other drivers in immediate danger.

Beasley Allen lawyer Mike Crow recently filed suit on behalf of an individual who was severely injured when his vehicle was struck by an 18-wheeler. The driver of the Peterbilt truck stated that he fell asleep prior to striking Mike’s client and that he awoke once the impact occurred. As a result of this crash, our client suffered serious injuries to his shoulder, left leg, back, and neck. Unfortunately, our client will be permanently disabled.

The police officer who responded to the scene of the crash issued a traffic citation to the truck driver for operating a commercial vehicle with no commercial driver’s license, commonly referred to as a CDL.

Unfortunately, and all too often, companies allow their drivers to haul freight with little to no training. The inherent danger associated with heavy trucks leads to an absolute necessity that heavy truck drivers are properly trained and are required to follow protocol, such as taking required breaks to rest.

Truck drivers operating their vehicles with insufficient sleep leads directly to the type of accident referred to above, resulting in a lawsuit filed by Mike. Drivers must be held to rigid safety standards to protect all other drivers, as well as to protect the truck drivers themselves, and the responsibility lies directly with the companies that employ the drivers.

Every year, innocent drivers and occupants of vehicles are injured and killed by wrecks involving heavy trucks. It is absolutely critical that the trucking industry be adequately monitored and regulated to ensure safe travel for all. Beasley Allen lawyers will continue to push for safer roadways and work to ensure safe travel for the public.

If you would like more information about trucking cases, or you need help with a crash involving a heavy truck, contact Sloan Downes by using the form at the bottom of this page and she will have one of the Section’s lawyers who handle trucking litigation contact you. 

PRODUCT LIABILITY LITIGATION

The Takata Case In Georgia

On March 18, 2022, Sada’ja Price was driving a 2006 Ford Mustang eastbound on Highway 24 in Washington County, Georgia. That night, Ms. Price’s vehicle hydroplaned, exited the roadway and wrecked. During the wreck, the driver’s side frontal airbag deployed and shot metal shrapnel into the occupant compartment of the vehicle. Ms. Price suffered serious injuries as a result. A lawsuit was filed by Chris Glover, who heads up our Atlanta office, on behalf of Ms. Price in a Georgia Federal Court on behalf of Ms. Price.

The Price vehicle was equipped with a Takata programmable smokeless driver’s inflator (PSDI-4), which is a dual-stage inflator that utilizes a phase-stabilized ammonium nitrate (PSAN) propellant. Ammonium nitrate-based propellant is susceptible to moisture and thermal cycling, resulting in the propellant burning more rapidly. When deployed in a crash, the airbag inflator is known to produce excessive internal pressure, thereby causing metal fragments to pass through the airbag cushion material into the occupant compartment. 

It’s no surprise that this dangerous situation can result in serious injury or death. That is exactly what happened in the accident involving our client. The Price vehicle was subject to various recalls, including Manufacturer Recall No. 15S21 (NHTSA Campaign 15V-319), which focuses on metal fragments deploying upon rupture of the driver’s frontal airbag.

The defective airbag in her vehicle caused Chris’ client to suffer extensive injuries, including a concussion, a large frontal glabellar subgaleal hematoma, multifocal soft tissue chest contusions with hematoma, and multiple facial lacerations. Her medical bills totaled approximately $104,996.48.

Ms. Price submitted a claim for compensation to the Takata Individual Restitution Fund (IRF), the personal injury and wrongful death restitution fund established under the Restitution Order entered by the United States District Court for the Eastern District of Michigan on February 27, 2017, in U.S. v. Takata Corporation, Case No. 16-cr-20810, in conjunction with Takata’s guilty plea. Ms. Price also submitted a claim for compensation to the Takata Airbag Tort Compensation Trust Fund (“TATCTF”) established in connection with Takata’s Chapter 11 Bankruptcy Plan of Reorganization, which was confirmed by the United States Bankruptcy Court for the District of Delaware on February 21, 2018. These claims have been resolved.   

Chris also filed a separate lawsuit on behalf of Ms. Price against the vehicle manufacturer. That case is pending in the United States District Court for the Middle District of Georgia. It includes claims for strict product liability, failure to warn, negligent recall, negligence, and wantonness.

Jury Returns $787M Verdict Against Bunk Bed Maker Moash After Toddler Dies

A jury in Ohio returned a $787 million verdict against Vietnamese bedmaker Moash Enterprise Co. Ltd. after a 2-year-old became stuck between the highest rung of a bunk bed ladder and the bottom part of the top bed’s frame. The toddler, Jasyiah Boone, suffocated and died. 

Jurors rendered their verdict after a 2-day damages trial in the U.S. District Court for the Southern District of Ohio. The court granted the estate’s Motion for Default Judgment last November after Moash failed to respond to the complaint.

The jury verdict includes $175 million in compensatory damages for Boone’s suffering, $90 million in compensatory damages for the estate’s wrongful death claim and $522 million in punitive damages.

The complaint indicates that Boone’s mother found his lifeless body trapped between the upper rung of the bunk bed ladder and the lower portion of the upper bed frame. Boone and his siblings had been playing on the bed when the incident occurred. A county coroner listed asphyxiation as Boone’s cause of death.

Lawyer Dan Mordarski said Boone’s parents were so grateful that this jury listened to their story and felt their pain and loss, adding:

They hope this verdict sends a strong and clear message to all foreign manufacturers of children’s products. They must comply with child safety standards and regulations. If they ignore child safety, they will hear from American juries.

John Camillus, another lawyer representing Boone’s family, said he and Mordarski were so pleased to have helped this wonderful family achieve some semblance of justice for this unimaginable loss, also adding:

We hope that the jury’s verdict will send a powerful message to manufacturers that carelessly sell dangerous products to the public.

Boone’s estate originally sued Wayfair, Angel Line and Longwood Forest Products Inc. Those companies all settled with the family. 

When the defendants’ counsel identified Moash as the bed manufacturer, Boone’s family added the company to the amended complaints. The company failed to respond to the suit or appear in court.

Granting Boone’s estate a default judgment, U.S. District Judge Michael Watson said Moash was aware of other suffocation incidents involving its beds. The judge said the company’s actions and inactions “demonstrate malice and a conscious disregard for the rights and safety of children.” Judge Watson said:

Defendant flagrantly disregarded the risk of harm and safety of children, and its flagrant disregard was the direct and proximate result of J.B.’s conscious pain, suffering, panic and death. 

Judge Watson added that the company showed disregard by:

Failure to comply with federal safety statutes and regulations, failing to comply with industry and government safety standards for bunk beds, failing to comply with industry product safety standards, incorrectly representing that the product complied with safety standards, misleading or concealing information from federal investigators, and knowingly violating federal law by failing to promptly notify the Consumer Product Safety Commission about J.B.’s death. 

Daniel R. Mordarski of the Law Offices of Daniel R. Mordarski LLC, Charles S. Rabold of Miraldi & Barrett Co. LPA and John C. Camillus of Meyer Wilson represent Boone’s estate.

The case is Charles H. Cooper Jr., Administrator of the Estate of J.B., v. Moash Enterprise Co. Ltd., case number 2:20-cv-03332, in the U.S. District Court for the Southern District of Ohio. 

Source: Law360

1.5 Million Dehumidifiers Recalled After Fire Reports

Over 1.5 million dehumidifiers have been recalled after causing more than 20 fires, says the Consumer Product Safety Commission (CPSC).

The recall covers 42 dehumidifier models manufactured by Gree Electric Appliances in Zhuhai, China. Retailers sold the small appliances under the Kenmore, GE, SoleusAir, Norpole and Seabreeze brand names from January 2011 to February 2014. Walmart, Home Depot, Sam’s Club and others carried the dehumidifiers.

The CPSC says the dehumidifiers may overheat, smoke and even catch on fire. Consumers have reported at least 23 fires, 688 overheating occurrences and $168,000 worth of property damage caused by the small appliances.

Consumers should stop using the dehumidifiers immediately, unplug them and reach out to Gree for a refund.

The CPSC’s website lists the brand, model number and capacity of affected models. They were manufactured in white, beige, gray or black plastic. The dehumidifiers came in several different sizes and cost anywhere from $110 to $400.

Other Gree dehumidifiers have been recalled due to fire and burn hazards. Dehumidifiers covered by the previous recall were sold between January 2005 and January 2014. Brand names include Danby, De’Longhi, Fedders, Fellini, Frigidaire, GE, Gree, Kenmore, Norpole, Premiere, Seabreeze, SoleusAir and SuperClima. 

That recall began in 2013 and was expanded in 2014. It was later reannounced in 2016. The CPSC indicated that over 2,000 overheating events and 450 fires have possible links to the small appliances. In addition, $19 million worth of property damage and four deaths are “potentially associated” with the dehumidifiers.

Gree and a Hong Kong subsidiary entered into a $91 million deferred prosecution agreement in 2021 after the companies failed to warn U.S. regulators that their dehumidifiers could overheat and catch fire. The companies also agreed to provide restitution to fire damage victims.

This past April, another Gree subsidiary, Gree USA, was ordered to pay a $500,000 criminal penalty and restitution payments as part of the deal.

Source: Associated Press 

Recalled Zipadee Kids Beds May Cause Strangulation, Death

Over 7,000 Zipadee Kids beds have been recalled due to potential strangulation and death risks.

Ball Station Interiors in Ohio, doing business as Zipadee Kids, manufactured approximately 7,450 dangerous convertible house bed frames and Montessori floor beds. The spacing of the beds’ spindles “allows a child’s torso to slip through the rail opening but will not allow their head to pass, posing entrapment and strangulation hazards that could result in death.”

According to the Consumer Product Safety Commission (CPSC), a 21-month-old and a 4-year-old have become trapped between the bed rails. One child received minor injuries.  

The recall covers twin, full and queen-size Zipadee Montessori beds sold as the “Convertible House Bed Frame” and “Montessori Floor Bed.” The recalled beds shipped between February 26, 2018, and October 22, 2021. Zipadee also manufactured and sold toddler-size Montessori beds between May and Sept. 2018. The beds are all made from natural wood and can be lifted or adjusted as children grow. Zipadee sold the beds at Zipadeekids.com and through the Etsy website for $260 to $900.

  The CPSC has advised that Bell Station Interiors filed for dissolution and cannot offer a remedy. The commission asks consumers to dispose of the beds properly, as selling or distributing recalled products violates federal law.

Source: Consumer Product Safety Commission

Mattress Firm’s $4.9 Million Bed Frame Settlement OK’d By Judge

A New York federal judge approved a settlement deal worth up to $4.9 million from Mattress Firm to resolve a class action lawsuit. The lawsuit alleged that the bed frames the company claimed to be prone to collapse instead posed a risk of injury or death. Southern District of New York Judge Vincent Briccetti’s approval ends two years of litigation. 

The case stems from a March 2021 recall of the HR Platform bed frame, sold under the brand name Bed Tech, due to a “serious injury hazard.” The company only offered consumers metal clips to strengthen the frames without compensation. 

The plaintiffs used Consumer Products Safety Commission reports to show that manufacturer/distributor Global Home Imports and Mattress Firm knew, or should have known, about the defect but continued selling the bed anyway.

Plaintiff Antonio Payero filed the lawsuit in April 2021. Plaintiff Adam Maldonado later joined the suit. Their case claimed the companies violated New York General Business Law and the Magnuson-Moss Warranty Act by making and selling beds that posed a “crush hazard.” They also accused the companies of breach of implied warranty. 

The companies sold thousands of the beds in the U.S. for about $200 each. The settlement awards $5,000 to each plaintiff and $850,000 in fees to their attorneys.

Source: Law360

WORKPLACE LITIGATION

Defective Emergency Response Equipment

Ben Keen, a lawyer in our Atlanta office, is investigating an incident involving a firefighter who incurred permanently disfiguring injuries. The firefighter was gathering equipment in response to a fuel leak onboard a Naval vessel. The emergency equipment is stored on a fire truck and is accessed via a sliding tray. The firefighter slid the tray outboard using a two-handed grip. The tray is equipped with a safety/stopping mechanism designed to prevent the tray from deploying/ejecting out of the fire truck. 

The safety/stopping mechanism failed, allowing the tray to pass beyond the tipping point. As a result, the entire tray with equipment fell to the ground and trapped the firefighter’s left hand, resulting in an immediate amputation of the firefighter’s fingers. The stopping mechanism should not have failed. 

The purpose of this stopping/safety mechanism is to ensure that the tray does not eject from the fire truck and ensure that the tray stays on the railroad track on which it slides. It appears that the product failed due to its design. The retaining screws are too short, which allows for the likelihood that screws come loose during the normal course of operation and or use. 

This incident and accompanying injury could have been avoided simply by using longer screws that sufficiently support the safety/stopping mechanism.

If you have a question or need help on a case involving a worker who was injured or killed while working due to a defective product, please contact Ben Keen by using the contact form at the bottom of this page.

The Hazards Of Flatbed Trucking

Workplace hazards do not always occur in a warehouse or on a construction worksite.  For a commercial motor vehicle driver, his workplace is his truck and trailer.  Additional hazards exist for those operating flatbed trailers when the driver is required to secure and tarp his load to protect it from weather and roadway hazards.

The typical scenario for flatbed drivers involves cargo being loaded on the flatbed trailer by the shipping company, followed by the driver undertaking the process of tarping the load.  The safest environment exists when the shipper provides a tarping station, which is a raised platform that permits the driver to drop or lower his tarp (or tarps) onto the load without requiring the driver to climb on top of the load.  The best tarping stations have safety rails that go around the load while the tarping process occurs.  

Occasionally, a shipper may require additional protection for cargo, such as covering it with plastic sheeting.  When this occurs, an added hazard exists, especially if the driver is required to place plastic sheeting on the load without the assistance of a tarping station or others.  

The tarps used by commercial drivers are heavy coverings that are spread over the load.  Drivers keep tarps on their trucks in bundled rolls.  The tarps have to be unrolled and spread over a secured load.   The tarps are then strapped down to secure them to the trailer over the load.  

The greatest hazard for the driver exists when they are required to crawl on top of the load to spread the tarps.  This risk can be greatly reduced with a tarping station.  

This hazard is made more hazardous when additional steps are placed on the driver in the loading process. This is just the scenario our firm is addressing in a case involving a commercial vehicle driver who was required to cover the load with large sheets of plastic before undertaking the tarping and in a setting where the shipper did not provide a raised platform or tarping station.  

Ben Locklar, a lawyer in our firm, represents Mr. Willie Williams, a flatbed commercial motor vehicle driver working with Vasquez Transportation.  Vasquez directed Mr. Williams to the Kronospan facility in Eastaboga, Alabama.  At the Kronospan facility, the shipper loaded wood materials on Mr. Williams’ trailer.  

Kronospan required that the wood material be wrapped with plastic before tarping.  Kronospan did not provide a tarping station, provided no assistance to the drivers, and required the driver to place the plastic and his own tarps on the load.  The plastic sheeting on the load created a slip hazard and made it difficult to see the edges of the load.  Despite this, Mr. Williams (and all drivers at the Kronospan facility) were required to walk on the slippery plastic to complete the tarping process.  

Mr. Williams, upon completion of placing plastic on his load, proceeded to spread out his tarps while standing on top of the load.  He slipped on the plastic at the edge of his load.  Without any fall protection, Mr. Williams fell from the top of his load and suffered a serious diving injury, resulting in permanent injuries that continue to limit his mobility.  Mr. Williams will never be able to work as a commercial motor vehicle driver again. 

If you need more information on workplace injuries or deaths or need help with a case, contact Ben Locklar or Sloan Downes by using the contact form at the bottom of this page. Sloan will put you in touch with a lawyer in the Section who handles this litigation.

PREMISES LIABILITY LITIGATION

Negligent Security – Inadequate Security Measures In Apartment Complexes – Who Does It Affect?

Over the past few years, Beasley Allen lawyers have recovered multi-million-dollar settlements and verdicts for clients in negligent security cases. These cases commonly involve government-subsidized (or low-income) apartment complexes completely overrun by violent criminals. But these apartment complexes don’t become violent crime hotspots overnight. Instead, they normally morph into high-crime areas only after years and years of inattention and poor management. 

All too often, our lawyers are finding bad owners and managers in the government-subsidizing housing space where the owners collect taxpayer-subsidized rent but fail to invest in the properties they are supposed to be caring for. Ineffective or absent on-site security, poor lighting, poor or absent physical barriers, and inadequate surveillance are all examples of potential negligence if the property owner knows or should know that a dangerous criminal environment is developing on the property. 

The property owner can make a bad situation much worse by allowing bad tenants (or their guests) to remain on the property or failing to vet new, potentially dangerous tenants who wish to gain access.  

Ultimately, the most vulnerable are the true victims of a property owner’s negligence. Case in point, a recent case handled by Beasley Allen lawyer Parker Miller, who is in our Atlanta office, involved the shooting death of a single mother who was visiting with neighbors with her toddler son. The mother in this case was only at the complex because she had to be. 

Yet another example involved the shooting of a minor who had absolutely no affiliation with the shooters but happened to be in the parking lot on the premises when the shooters arrived at the complex. 

A young and promising life was unnecessarily wasted by an attack that should have never occurred if proper security measures had been implemented. In both situations, the property owners were aware of multiple dangerous criminal acts occurring on the property that threatened the safety of those who frequented the properties (including employees of the companies that owned them). 

Negligent security litigation is necessary to ensure that bad property owners and management are punished for creating environments that enable violent crime to proposer. Property owners must be disincentivized from merely collecting checks without upholding their end of the bargain to provide tenants with a safe and secure living space, and they must be held accountable when they fail to do so. 

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these types of cases and numerous other negligent security and catastrophic premises liability cases across the State of Georgia and other states. If you have any questions about these cases, you can contact them by using the contact form at the bottom of this page.

Beasley Allen Mobile Lawyer Settles Premises Liability Case

Lawyers in our Mobile office continue to focus on personal injury claims that involve serious injury or death. One of those lawyers, Evan Allen, who is in our firm’s Personal Injury & Products Liability Section, recently settled a premises liability case involving a fire.  The defendant denied liability but ultimately settled the claim for $4.5 million.  The settlement will drastically improve the lives of our clients who suffered from life-threatening, permanent injuries.  Evan says that even though no amount of money could ever replace what was taken from them, his clients will now be able to receive quality long-term care and a higher level of independence.   

If you have any questions or would like to discuss a potential premises claim, contact Evan Allen by using the form at the bottom of this page.  Also, if you have any questions about the activity in our Mobile office or a specific case in the Mobile area, contact Frank Woodson, who heads the Mobile office, by using the form at the bottom of this page.

Duty In The Context Of Third-Party Criminal Conduct

The Georgia Supreme Court recently issued its decision in Georgia CVS Pharmacy, LLC v. Carmichael, clarifying the nature and scope of premises liability actions involving third-party criminal conduct. The Carmichael decision offers critical guidance for premises liability practitioners, including how to determine a premises owner’s duty to keep invitees safe from third-party criminal activity. Stephen Mulherin, a lawyer in our Atlanta office, will discuss the effect of this ruling. 

Two separate incidents gave rise to the Carmichael opinion. The first involved an armed robbery in the parking lot of a CVS store that resulted in the shooting of James Carmichael. The second incident—also an armed robbery—took place in the parking lot of the Pappadeaux restaurant and resulted in the shooting death of Anthony L. Welch. The Supreme Court granted certiorari to determine, among other things, the legal framework governing whether third-party criminal conduct qualifies as reasonably foreseeable to the premises owner, thereby triggering the owner’s duty to protect invitees.

In answering this question, the court explained that reasonable foreseeability of third-party criminal activity is essential to establish an owner’s duty to protect. To show reasonable foreseeability, the court adopted a flexible “totality of the circumstances” test. Under this test, the primary “question is whether the totality of the circumstances relevant to the premises gave the proprietor sufficient ‘reason to anticipate the criminal act’” at issue.

While a plaintiff may establish reasonable foreseeability by identifying “substantially similar prior crime” occurring on or near the premises, the court expressly rejected any notion that Georgia law “requires a plaintiff to identify a past crime as an essential element of reasonable foreseeability.” Instead, a plaintiff may demonstrate reasonable foreseeability through other conditions or activities (apart from prior crime) on the premises.

Importantly, given the fact-intensive and variable nature of the totality of the circumstances test, the court held that a jury must decide—except in rare cases—whether a particular third-party criminal act was foreseeable. A judge only decides the duty question if “no rational juror could find the criminal act reasonably foreseeable.”

These aspects of the Carmichael decision matter because they arm premises liability plaintiffs facing summary judgment with invaluable authority. The opinion allows plaintiffs to argue that a jury of their peers—not a judge—should decide whether a property owner owed a duty to protect them from criminal activity. Carmichael also expands the scope of relevant evidence that plaintiffs may use to establish reasonable foreseeability by permitting plaintiffs to rely on other conditions or activities taking place on the property—not just substantially similar prior crime. 

In short, the Carmichael decision will aid the plaintiff’s counsel in defeating summary judgment by focusing the trial court on the proper legal test and evidence sufficient to establish an owner’s duty to protect from third-party criminal activity.     

If you need more information or need help with a premises liability case in Georgia, contact Sloan Downes, Director of our firm’s Personal Injury & Products Liability Section, by using the form at the bottom of this page.. Sloan will have another lawyer in the Atlanta office contact you.  

Class Action Litigation

GM Claims Engine Defect Verdict “Strips” Its Due Process Rights

General Motors has urged Federal District Judge Edward M. Chen to set aside our firm’s $102.6 million engine defect verdict that came down in October 2022, claiming certain product liability claims. The automaker also accused our plaintiffs of trying to “strip GM of its due process rights.” GM claimed that Judge Chen reached the wrong conclusions and that the class misread the verdict form that GM helped draft. 

GM further claimed that if Judge Chen refuses to set aside the verdict or order a new trial, the court must initiate post-trial procedures to allow the automaker to argue that most of the class members’ claims were filed too late to collect damages. 

However, the jury has already resolved the statute of limitations tolling issue as a class-wide matter, and the court has already ruled that the named Plaintiffs presented sufficient evidence of GM’s fraudulent concealment to support the jury’s finding that they were not on inquiry notice of the Oil Consumption Defect.  

If there were any such class members, the easiest way to demonstrate their existence would be for GM to have called at least one of them as a witness at trial, or at the very least to present their testimony by way of affidavit, to testify to their actual notice of the Oil Consumption Defect. Instead, GM chose not to call any such witness at trial (or any witness at all, for that matter). 

Clay Barnett, in our Atlanta Office, says that GM’s failure to introduce that evidence at trial, or even at present, sends a clear signal that they have no evidence to present.

Further, the class representatives all testified that they were highly knowledgeable and careful truck owners. The jury could properly infer from the fact that none of them discovered their claims that the same is true of other class members. Our lawyers are confident that Judge Chen will follow established law and proceed toward a final judgment on the jury’s verdict. They base that conclusion on the following: 

• At GM’s own request, the jury was instructed to consider whether the named plaintiffs “and all other class members” had actual notice of their claims;
• At GM’s request, the jury was required to find whether plaintiffs had proven that the statute of limitations should be tolled for all Class members and 
• That the jury found that plaintiffs did, in fact, prove that the statute of limitations should be tolled for all Class members in each of the three Classes;
• GM asked for and received class-wide findings from the jury on statute of limitations tolling.
• GM had ample opportunity to introduce evidence that any class member had actual notice and that a class-wide finding of tolling was inappropriate. GM did not introduce any such evidence, and the jury’s finding was well-supported. 

Beasley Allen’s trial team of Clay Barnett, Rebecca Gilliland, Mitch Williams and Dylan Martin are confident that this Northern District of California verdict will stand and that other juries will agree with the California jury in our case. If you would like more information or need help on a claim, contact Clay Barnett by using the contact form at the bottom of this page

Oregon Becomes Latest State To Join Data Privacy Law Surge

Oregon’s Governor recently signed the Oregon Consumer Privacy Act (OCPA) into law. Most of the OCPA’s provisions will become effective next year as of July 1, 2024. Consistent with other privacy laws in the United States, the OCPA “introduces requirements related to the processing of personal data, establishes definitions including in relation to biometric data, the sale of personal data, as well as sensitive data.” 

Consumers have many rights under the law, “including the right of access, the right to opt-out of targeted advertising, and the sale of personal data, among other things.” Further, the OCPA details the various mandates organizations must follow within the law’s scope and provides enforcement powers to the Oregon Attorney General.

Additionally, Oregon followed many other states in the U.S. by updating its data breach notification law in 2019. The law, originally named the Oregon Consumer Identity Theft Protection Act, has now been renamed the Oregon Consumer Information Protection Act (OCIPA). The changes that were made to the OCIPA include “the expansion of the definition of a breach of security and the creation of new obligations for vendors, including a requirement to notify the applicable covered entity within ten days of discovery of a breach.” One of the more specific aspects of the OCIPA is that the law restricts the use, disclosure, and processing of student data, “in addition to disclosures of non-public financial information.”

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section, monitor these laws as they are passed and amended throughout the country, and we are ready to review potential claims involving unlawful use of consumer data. Contact attorneys Rebecca Gilliland or Tyner Helms if you are aware of your data being collected or disclosed without your consent. 

Source: Data Guidance 

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers are heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:

Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin. They can be reached by using the contact form at the bottom of this page.

If you need help on a case that would be a class action, you can contact one of these lawyers. You can also contact Michelle Fulmer, Section Director, and she will have one of the lawyers contact you. Michelle can be reached using the contact form at the bottom of this page.

THE WHISTLEBLOWER LITIGATION

3M to Pay $6 Billion to Settle Defective Earplug Claims

3M agreed to pay $6 billion to settle about 300,000 claims involving its earplugs. Veterans alleged the company supplied defective earplugs to the military that caused users hearing loss and tinnitus. 3M will pay $5 billion in cash and an additional $1 billion in stock over several years. 

3M sold the earplugs to the U.S. military for training and combat from 2003 to 2015. Aearo Technologies, a company 3M acquired in 2008, made the earplugs. Aearo filed for bankruptcy last year in an attempt to fund its liabilities. However, a judge dismissed that case, finding Aearo was “an otherwise financially healthy debtor with no impending solvency issues to remain in bankruptcy.” 

The lawsuits began in 2016, after industrial supply company Moldex-Metric filed a whistleblower lawsuit against 3M, claiming 3M knew the earplugs it sold to the U.S. military were defective. 3M settled those claims two years later and agreed to pay the Justice Department $9.1 million. Over 300,000 veterans filed lawsuits against 3M. In 2019, the Judicial Panel on Multidistrict Litigation consolidated the cases into a multi-district litigation.

In 2019, a study published in the American Journal of Audiology reported that cases of tinnitus increased significantly among active-duty service members from 2001 to 2015.

Last year, a Pensacola, Florida, jury ordered 3M to pay Army veteran James Beal $77.5 million after he claimed the defective earplugs caused him hearing loss and tinnitus. 

Source: Forbes

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers remain heavily involved in the handling of whistleblower cases. Fraudulent conduct in Corporate America continues to cause huge problems in many industries in this country. Due to the case volume, we significantly increased our firm’s healthcare whistleblower practice months ago. Currently, our lawyers are handling cases throughout the country involving fraud against governments at both the federal and state levels. We will give an update in the October issue on this litigation, specifically as it relates to Beasley Allen’s involvement.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim. 

The experienced lawyers on the Whistleblower Litigation Team are dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Mile and Jessi Haynes. Dee Mile heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can also be reached by using the contact form at the bottom of this page

SECURITIES LITIGATION

SEC Continues To Advance Its Aggressive Enforcement Agenda

The Securities and Exchange Commission (SEC) continues to pursue its ambitious enforcement campaign this year with experts now predicting that the number of SEC enforcement actions in 2023 will exceed the 760 actions that were filed in 2022, which generated a record $6.4 billion in fines and disgorgement. This represents a radical shift from the Commission’s meager efforts during the previous administration, during which it filed fewer than 50 actions. 

This growth is fueled in part by increased funding for the SEC in 2023. In 2023, the SEC’s funding grew to $2.2 billion, an increase of $210 million over last year. This increased budget allowed the SEC to hire 125 new staff members for its Division of Enforcement to focus on various aspects of the Division’s work. 

The SEC monitors the activities of 28,000 actors in the securities industry and has rulemaking authority.  The Division of Enforcement is tasked with rooting out wrongdoing by various actors in the industry, including issuers, broker-dealers, investment advisors and auditors. 

The Enforcement Division has been active in all areas under its jurisdiction. The SEC has continued with its more traditional enforcement actions for violations of financial accounting and disclosure rules against publicly traded companies and insider trading cases, but it has stepped up its efforts against auditors and new players in the industry, especially in the cybersecurity area. It has also devised new strategies to extract fines and deter wrongdoing. 

In recent years, one of the most potent tools in the Enforcement Division’s arsenal has been the ability to conduct broad “sweeps” for technical violations of applicable rules against multiple regulated companies at the same time and extracting large fines in the process. 

In 2022, the SEC obtained an unprecedented $1 billion in settlements from a sweep of fifteen broker-dealers for technical violations of a rule requiring broker-dealers to retain all business communications. Employees of these broker-dealers had not retained business-related communications on their personal devices like smartphones and tablets. 

Recently, on August 8, 2023, the SEC entered into similar settlements totaling $549 million with a bevy of banks and broker-dealers – including Wells Fargo, BNP Paribas and Société General – because their employees also had conducted company business on their personal devices, making it difficult if not impossible for the broker-dealers to comply with regulatory recordkeeping requirements. 

As Gurbir Grewal, the Director of the Enforcement Division, explained, in addition to generating hefty fines, using sweeps has “much more of a deterrent effect than doing these cases serially.” 

The SEC has also been vigorously pursuing players in the crypto markets. The SEC considers crypto assets securities, and the cryptocurrency industry subject to securities laws.  It promulgated final rules that apply to crypto markets, which the Enforcement Division has been actively enforcing. SEC Chair Gary Gensler has touted the SEC’s success in more than 100 cases against token issuers and others, most of which have been for failing to register as broker-dealers, failing to register crypto assets and/or making misleading statements about the assets.

For a long time, however, there was uncertainty over whether a crypto asset is covered by the definition of “security” under the securities laws, which is broadly defined under the securities laws. It now appears the tide may be turning against the SEC’s view, at least in the United States District Court for the Southern District of New York. In two cases in that district, different judges ruled that the SEC could not establish that a crypto asset was a “security” under the securities laws. However, these rulings have not deterred the SEC’s efforts to ensure that the crypto markets are held to the standards of the financial markets.

Finally, the SEC’s whistleblower program continues to be extremely successful in generating reliable information about potential wrongdoing by people with inside knowledge. Thus far, in 2023, the SEC awarded $279 million to two whistleblowers in a single case and over $50 million to three other whistleblowers, exceeding the total of $229 million awarded in all of 2022. 

The SEC’s enhanced enforcement activities are expected to increase for the remainder of 2023 and beyond, barring a return to the previous administration’s policies.  

Beasley Allen Securities Litigation Team 

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section, are very active in securities cases. This area of our practice has continued to grow. As predicted, there has been a marked increase nationally in securities litigation. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. 

You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following lawyers: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached by using the contact form at the bottom of this page.

MASS TORTS LITIGATION

Philips Respironics Now Accused Of Manslaughter In France

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the United States. The recall was issued because the PE-PUR foam, used to reduce the noise and vibration of the machine, and its off-gasses have long been known to be toxic. These toxic particles and fumes can enter the devices’ airways, which then, in turn, are inhaled by the users. The potential health risks for inhaling particles of the PE-PUR foam include asthma, irritation to the respiratory tract, and cancer-causing effects to organs like the lungs and kidneys. 

Domestically, the FDA published updated findings on adverse health events reported to the agency over the last two months. To date, over 98,000 adverse health events are known by the FDA, and 385 deaths have been reported. 

Internationally, two hundred users of the recalled machines in France have filed charges against the medical device manufacturer, claiming deceptive business practices, endangering the lives of others, and administering harmful substances. Three plaintiffs filed additional charges accusing Philips of involuntary manslaughter. 

Sources: FDA.gov, Mddionline.com 

Infant Formula Litigation Update

The infant formula litigation continues to grow nationwide as more parents of afflicted children learn about the compelling association between infant formulas and necrotizing enterocolitis (NEC).  The science clearly establishes that premature, underweight infants are at a much higher risk of this often-fatal intestinal condition when given cow’s milk-based infant formulas like Enfamil and Similac.  Virtually every pediatric medical organization worldwide recognizes this heightened risk and recommends human milk over these formulas.  If the infant’s mother is unable to breastfeed, donor milk is the next best choice.  There are also non-bovine formula alternatives.

Insidiously, Mead Johnson (maker of Enfamil products) and Abbott Laboratories (maker of Similac products) have known for decades about the risks of NEC associated with their infant formulas and still refuse to warn mothers and hospital staff about it.  In fact, they do just the opposite and aggressively market the products to new and expecting mothers, proclaiming the formulas are “just as good” as mothers’ own milk.  

Beasley Allen continues to investigate and file infant formula cases for children who have suffered from NEC.  We have hired some of the best pediatric experts in the world to help us with these cases, and we look forward to our day in court for these deserving children and parents.  Federal court lawsuits are pending in an MDL in the Northern District of Illinois, as well as state court cases in Madison and St. Claire Counties, IL.  Discovery is well underway, jurisdictional disputes are being litigated, and we hope to have our first trial schedule in place within the next few months.

David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, are overseeing the handling of these cases. For more information, they can be contacted by using the form at the bottom of this page.

Johnson & Johnson Can’t Appeal Dismissal Bid In Acetaminophen Autism / ADHD MDL

On August 3, 2023, multidistrict litigation (MDL) Judge Denise Cote rejected the request by Johnson & Johnson (J&J) to appeal a pair of orders denying dismissal of a suit alleging a woman’s child has autism and ADHD due to prenatal Tylenol (acetaminophen) use.  Judge Cote held that J&J did not satisfy the factors required for an appeal and that the issue of establishing causation and J&J’s knowledge of a potential defect was not subject to appeal at this time.  Lead attorneys for the plaintiffs applauded Judge Cote’s opinion as being clear and correct. 

The MDL was consolidated in October 2022, and it involves claims from parents alleging that prenatal exposure to acetaminophen causes autism and ADHD in children.  J&J’s request for appeal comes after being denied dismissal of the lawsuit on federal preemption grounds by the court.  

Beasley Allen lawyers in our Mass Torts Section continue to investigate cases involving prenatal exposure to acetaminophen who have subsequently been diagnosed with autism or ADHD.  For more information, contact Mary Raybon by using the contact form at the bottom of this page.

Sources:  In re: Acetaminophen – ASD-ADHD Prods. Liab. Litig., 22-md-03043-DLC, Doc. 804, Law360

Hair Relaxers Update

There has been a troubling trend of manufacturers of defective products abusing the bankruptcy process to avoid being held accountable for injuries caused by their products. One recent example has been Johnson & Johnson’s attempt to use bankruptcy to avoid legal responsibility to tens of thousands of women diagnosed with ovarian cancer due to the use of baby (talcum) powder. Similarly, Revlon, the maker of various hair relaxer products, is currently using bankruptcy to circumvent victims’ rights to a trial by jury for alleged injuries caused by its products. 

Many women who have been diagnosed with either uterine/endometrial cancer or ovarian cancer have become aware of the link between hair relaxer products causing these cancers. Consequently, many women have filed lawsuits against these various hair relaxer manufacturers. However, users of Revlon products suffering these injuries have been limited in their ability to file lawsuits against this company. 

Revlon filed for bankruptcy during the time that many women were filing lawsuits against these manufacturers. Since Revlon was in the bankruptcy process, bankruptcy law prevented victims from filing a lawsuit against Revlon. Instead, anyone who had a potential case against Revlon was forced to submit a proof of claim form in the bankruptcy court to preserve their ability to file a lawsuit in the future. As a result, many potential victims of the Revlon products who were unaware of the connection between the Revlon products and their cancers by the bankruptcy court’s deadline may have lost their ability to hold Revlon accountable forever. 

Unfortunately, this has resulted in potentially hundreds, or even thousands of victims, losing their 7th Amendment right to hold Revlon accountable for their injuries. 

Additionally, the women who did file a proof of claim form in the bankruptcy court now have a significantly reduced timeframe to file their actual lawsuits against Revlon, with a September deadline. Revlon pushed hard for these severe lawsuit filing deadlines because it knew that many of these victims will not be able to meet this arbitrary filing deadline, thus eliminating their rights to hold Revlon accountable through the court system.   

Bankruptcy should not be used as a tool for companies worth tens or hundreds of millions of dollars or more to avoid liability for their wrongful conduct. Congress should get involved and pass needed laws to change and prevent this troubling trend. If you agree, contact your member of Congress and let them know what is needed. 

If you have any questions, contact Navan Ward by using the contact form at the bottom of this page.

Kratom Companies Hit With $2.5 Million Verdict And $11.6 Million Judgment

A Washington state court jury recently handed down a first-of-its-kind verdict against a kratom company for causing the death of a 39-year-old man in Cowlitz County, Washington. The following week, a federal judge in the U.S. District Court for the Southern District of Florida entered an $11.6 Million judgment against a different kratom distributor for the death of a nurse from West Palm Beach.

Researchers and medical professionals have linked kratom to seizures, organ failure, and deaths. Kratom is an over-the-counter substance that comes in either pill or liquid bottle form. Many call kratom an herbal supplement, but that gives it too much credit. You will not find it at your local pharmacy, but you may see it in the display cases behind the counter of a gas station. Kratom is currently illegal in Alabama, Arkansas, Indiana, Rhode Island, Vermont, and Wisconsin.

Many kratom companies have marketed kratom as an alternative to opioids. These companies claim that kratom is an organic plant-based substance that can help people struggling with certain addictions to other harmful substances. The kratom companies, however, have failed to adequately warn consumers that kratom can lead to significantly increased rates of seizures and other dangerous side effects.

Beasley Allen lawyers are currently litigating a products liability case involving kratom in Fulton County, Georgia. Our lawyers seek to continue representing people in litigation to hold kratom companies accountable for their deceptive marketing and sales practices, which have led to serious injuries to many who were unaware of the product’s dangerous side effects.

If you need more information or need help with a case, contact Melissa Prickett, Director of our firm’s Mass Torts Section, by using the contact form at the bottom of this page. She will have a lawyer contact you.

TOXIC TORT LITIGATION

States And Cities Object To Proposed AFFF MDL Settlement

Chemical companies 3M and DuPont have agreed to terms to settle all claims for a class of water utilities with AFFF or PFAS contamination.  However, several cities and states have objected to court approval of the settlements.  Several issues have been raised by the objectors.

One of the primary concerns is that the total amount of settlement funds is inadequate to remedy the issue nationwide.  The total amount for both the 3M and DuPont settlements is over $12 billion, however, objectors note that the American Water Works Association estimates compliance with current proposed regulations would cost more than $47 billion nationwide.  According to an amici letter, the attorneys general of California, Arizona, the District of Columbia, Pennsylvania, and Wisconsin also noted that DuPont’s share of $1.18 billion only reflects DuPont’s market share for one product, AFFF or firefighting foam, for a period from 2002 to 2014. Yet, the company sold PFAS in a variety of products since the 1950s.  

Another objection to the proposed settlements is that the class of public water providers are unable to calculate their recovery from the settlement prior to deciding to opt-out.  The initial opt-out period was 60 days, but for the DuPont settlement, it has been extended to 90 days after notice.  In addition to objections from the states, several towns and cities have also raised objections.

States’ Participation Advances Walmart Opioid Settlement 

On August 22, Walmart disclosed in a regulatory filing that it will pay roughly $2.8 billion out of the $3 billion settlement it reached to resolve thousands of lawsuits accusing its nationwide pharmacy network of playing a part in the opioid crisis in America. 

The settlement was confirmed by Walmart in a filing with the U.S. Securities and Exchange Commission (SEC), following a settlement administrator’s determination that “a sufficient number of political subdivisions have agreed to participate in the state settlement framework.”

The state settlement framework becomes effective on September 6, and Walmart will pay the remaining $2.8 billion of the original $3.3 billion accrued liability in the third quarter of fiscal year 2024. Eligible political subdivisions have until July 15, 2025, to join the settlement framework.

Walmart’s $3 billion settlement offer in November to resolve opioid cases followed preliminary settlements with CVS and Walgreens, which agreed to pay about $5 billion each. The settlement equates to less than two days of Walmart’s worldwide revenue, which exceeded $570 billion in its 2022 fiscal year.

Most opioid cases against pharmacy chains are part of the Ohio federal court’s multidistrict litigation (MDL) that began in 2017. The MDL’s bellwether trial produced a $650 million verdict against Walmart, Walgreens, and CVS, but an appeal is pending. The MDL has also targeted drug manufacturers and wholesale distributors, with the largest companies agreeing to multibillion-dollar settlements collectively valued at $50 billion. However, some future payouts are affected by the bankruptcies of smaller drugmakers.

Confirmed and proposed settlements have been announced with three pharmacy corporations, wholesale distributors, a consulting firm, and several drugmakers, including Johnson & Johnson, Teva Pharmaceuticals Industries Ltd., Allergan PLC, Purdue Pharma LP, Endo Pharmaceuticals Inc., Insys Therapeutics Inc., and Mallinckrodt PLC. Three of the drugmakers, Purdue Pharma LP, Endo Pharmaceuticals Inc., Insys Therapeutics Inc., and Mallinckrodt PLC, have sought bankruptcy protection.

The lead MDL negotiators are from Simmons Hanly Conroy LLC, Farrell & Fuller Law LLC, Motley Rice LLC, Baron & Budd PC, Lieff Cabraser Heimann & Bernstein LLP, Robbins Geller Rudman & Dowd LLP, Levin Papantonio Rafferty, Seeger Weiss LLP, Napoli Shkolnik PLLC and Skikos Crawford Skikos & Joseph LLP. 

At the start of the MDL, the opioid epidemic killed 50,000 people in the U.S. annually. Amid COVID-19, the yearly death toll rose to about 80,000. Illegal fentanyl and heroin are now the major culprits, replacing prescription narcotics. 

Walmart is defending a lawsuit by the U.S. Department of Justice (DOJ), which alleges that “Walmart’s failures helped to fuel a national opioid crisis.” The DOJ seeks penalties under the Controlled Substances Act, but the case could be affected by a U.S. Supreme Court decision that requires clear-cut proof of intentional wrongdoing in CSA cases.

Source: Law360

Paraquat Litigation Update

A critical step for moving forward in the Paraquat litigation occurred last month. The parties completed their Daubert briefing at the end of July, and during August 21-24, the parties presented their Daubert arguments before Judge Nancy J. Rosenstengel, the presiding judge in the Paraquat multidistrict litigation. 

During the Daubert hearings, arguments were presented by both the plaintiffs and defendants on several key experts, including Dr. Martin Wells, Dr. Dominik Alexander, Dr. Anthony Lang, Dr. Binit Shah, Dr. C. Warren Olanow, Dr. Elizabeth Anderson, Dr. Peter Spencer, and Mr. Jack E. Housenger. These hearings were open to the public and available telephonically for remote attendance. 

The Daubert hearings focused on the admissibility of these expert witnesses’ testimony concerning the link between Paraquat and Parkinson’s disease. Judge Rosenstengel’s opinion will set the parameters for what these witnesses will be able to present to a jury. Currently, there are more than 3,200 pending cases that the Daubert decision will impact.

While the arguments have concluded, there will not be a decision by the court regarding the scope of these experts’ testimonies until a later date. Following the arguments, both parties were allowed to submit a closing brief by early September. The decision regarding the scope of these expert testimonies will play a determinative role in shaping the pending bellwether trials that are currently set to begin in October of 2023. 

If you have a case or even a potential case, that you would like to discuss with a Beasley Allen lawyer, feel free to reach out to us. Our lawyers handling these cases will be more than willing to assist in case review or offer suggestions on how to move forward with a case. 

Beasley Allen lawyers continue the intake and filing processes for paraquat applicator cases for claimants with Parkinson’s disease or Parkinson ’s-like symptoms.  If you have any questions about the paraquat litigation or want to work with us on a case, contact Julia Merritt, Leslie LaMacchia, or Matt Pettit at by using the contact form at the bottom of this page.

$1.1 Billion DuPont Deal In Firefighting Foam MDL Gets First OK

A $1.18 billion settlement resolving PFAS water contamination claims between a class of public water treatment systems and the chemical companies DuPont, Chemours, and Corteva received preliminary approval on August 22.

The deal, struck in June, will help water treatment utilities in several states to better filter out perfluoroalkyl and polyfluoroalkyl substances, or PFAS, from drinking water. The chemicals entered the environment through Aqueous Film-Forming Foams commonly used in firefighting.

PFAS are incredibly toxic substances that do not break down once they enter the environment and the human body, giving them the apt moniker “forever chemicals.” PFAS are linked to cancer and several other health risks. Nearly every American has some degree of PFAS accumulation in their body from years of environmental exposure. 

Many of the 300+ complaints filed over PFAS contamination in the past five years, including firefighting foam litigation against DuPont, were consolidated in South Carolina for multidistrict litigation under U.S. District Judge Richard Gergel.

Plaintiffs in the MDL include municipal water utilities of all sizes, including some that service large metropolitan areas, such as Birmingham, Alabama, and Philadelphia. The water systems reached a separate deal with 3M Co. in June for $12.5 billion – the largest drinking water settlement in U.S. history. The agreement with DuPont and the other companies does not release them from any liability for PFAS contamination in groundwater or soil. 

The Attorneys General for Arizona, California, the District of Columbia, Pennsylvania, and Wisconsin initially objected to the $1.1 billion agreement, asserting that it wasn’t enough to help water systems manage PFAS contamination. They later withdrew their objections but sent a letter to the court restating their belief that the deal is inadequate.

The interim co-lead class counsel for the MDL are Michael A. London of Douglas & London PC, Scott Summy of Baron Budd, Paul J. Napoli of Napoli Shkolnik and Joe Rice of Motley Rice LLC. Dupont De Nemours Inc. 

The multidistrict litigation is In Re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.

Sources: Law360, Dupont.com

Teva Strikes $126 Million Opioid Settlement with U.S. Hospitals

Teva Pharmaceuticals has reached a $126 million deal with several hundred U.S. hospitals that claim the Israel-based drugmaker’s improper opioid marketing practices jacked up their patient treatment costs. 

The proposed settlement, which Teva disclosed in its quarterly report filed with the SEC, requires the company to make payments to hospitals totaling $126 million over the next 18 years. Under the deal, Teva must also provide up to $49 million of its generic form of Narcan, an opioid reversal nasal spray drug that has become instrumental in treating opioid overdoses. 

The hospitals in the sweeping multidistrict litigation against Teva alleged that the manufacturer minimized the serious risk of addiction that its opioid drugs posed. They also claimed that Teva did nothing to prevent the spread of its prescription narcotics for illicit purposes. Opioid overdoses have killed nearly 600,000 people in the U.S. since 1999. The epidemic has shown no signs of easing in recent years. 

Teva announced last year that it reached a global settlement worth up to $5 billion to resolve opioid lawsuits brought by states, local governments and Native American tribes. The drugmaker has been one of the major companies targeted by claims that its products and actions fueled the nation’s opioid crisis. Teva makes a fentanyl-based drug named Fentora, and it used to produce a similar drug called Actiq. The company also produces opioid drugs in generic form.

Teva and the hospital claimants reached the settlement agreement in July. Ohio federal judge Dan Polster said the parties were actively mediating the case out of court and no bellwether trials had been scheduled. A trial that was supposed to start in Alabama state court in August has also been stayed.

Sources: Law360, Reuters, Top Class Actions, Becker’s Hospital Review, CDC.gov

EMPLOYMENT AND FLSA LITIGATION

Supreme Court Asked To Clarify The Meaning Of “Adverse Employment Action” In Title VII Cases

In the 1960s, Congress passed Title VII of the Civil Rights Act of 1964, making it unlawful for employers to discriminate because of race, color, religion, sex, or national origin. Section 703(a) of Title VII prohibits employers from taking ‘adverse employment actions’ against employees because they fall within one of the proscribed protected classes.  

In recent years, lower courts have been divided as to what constitutes ‘adverse employment action’.  Some lower courts have held that ‘adverse employment action’ is limited to hiring, firings, promotions, and demotions or actions that cause ‘harm’ to the plaintiff.  Under these court analyses, employment decisions such as lateral transfers would not fall within its definition and thus could not form the basis of a Title VII case.  The Ninth Circuit and D.C. Courts of Appeals held that a lateral transfer motivated by bias is an adverse employment action and thus actionable under Title VII. 

On May 19, 2023, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) asked the Supreme Court to resolve the circuit split by clarifying the meaning of ‘adverse employment action’ and to consider whether an unwanted lateral transfer motivated by discrimination falls within the statute’s purview. In July, the Supreme Court agreed to hear the case. It granted a writ of certiorari in Muldrow v. City of St. Louis, Mo., No. 22-193, in which a sergeant in the St. Louis Police Department was transferred from one division to another. The plaintiff argued that she was transferred solely because of her gender. And, while her pay, benefits, and rank were unaffected, she argued that her transfer constituted an adverse employment action because it altered the ‘terms, conditions, or privileges of employment’. 

The district court granted summary judgment in the City of St. Louis’ favor, and the Eight Circuit affirmed the decision. Both courts rationalized that while the transfer was unwanted, the plaintiff failed to show ‘harm’ as the transfer caused essentially no change in her working conditions and no change in her pay, ranks, or benefits. 

Ultimately, the effects of the Supreme Court decision will determine what employment actions constitute adverse employment actions. We will continue to monitor this case and report on its progress in the Supreme Court. 

We continue to encourage citizens who believe their employer has discriminated against them because of race, color, religion, sex, or national origin, to contact one of Beasley Allen’s employment lawyers to discuss their potential claim. You can contact one of the following lawyers Larry Golston, Leon Hampton, Lauren Miles or Jessi Haynes.

The National Labor Relations Board Tightens Its “Work Rule Test”

Recently, the National Labor Relations Board (NLRB) made changes to its methodology for assessing whether workplace rules restrict employees’ rights in an illegal manner. This recent change will help employees by making employers even more accountable for their actions. The August 2, 2023 ruling changes how the NLRB and its administrative judges analyze claims and furthers previous plans to reconsider a 2017 Boeing case. Instead, the NLRB are reverting, in part, to the Lutheran Heritage Village standard from 2004, which held that work rules were illegal if the worker would “reasonably construe” that the rule infringes NLRA rights. 

The new ruling provides a two-part analysis: (1)  the NLRB will review claims that the rule in question infringes on the worker who is “economically dependent” on the employer and “who also contemplates engaging in protected concerted activity;” and (2) the employer then has an opportunity to defend the rule, which requires the employer to show that the rule “advances a legitimate and substantial business interest,” and that the employer could not fulfill the need with a “more narrowly tailored rule.” In the first prong of the analysis, the employer’s intent is not material, relying only on whether the worker could have “reasonably interpreted” a “coercive meaning.”

This is a positive change in that the analysis will now make for a heavier defensive burden for the employer defendants and is a step in the right direction to protecting employees from illegal work rules by the employers to which they are economically dependent.

Our firm will continue to monitor these changes to the NLRB and other employment law-based rules in an effort to protect our clients facing these types of work-related issues. Should you be faced with similar work environment issues, contact our employment law team leads, Larry Golston or Leon Hampton with questions related to potential National Labor Relations Board violations. They can be reached by using the contact form at the bottom of this page.

Source: Law360 

THE CONSUMER CORNER

FTC Withdrawing Prior PBM Advocacy Material

The Federal Trade Commission (FTC) has voted 3-0 to issue a statement warning against relying upon certain old and outdated FTC material regarding Pharmacy Benefit Managers (PBMs).  The FTC cautions that these previous advocacy statements pertaining to PBMs no longer reflect realities in the current market and warns against the use of its prior conclusions.  

The FTC previously released advocacy material that opposed mandatory PBM disclosure and transparency requirements. The FTC has now taken action to engage in a major study of the PBM industry in order to update and increase its understanding of the current industry and all the PBMs’ practices.  The FTC’s vote to issue a statement cautioning against using the old information and FTC conclusions is in response to the PBMs’ continuous reliance on these outdated FTC advocacy materials.  Despite the many changes in market realities, PBM advocates continue to cite prior Commission work in opposition to efforts by lawmakers, enforcers, and regulators to mandate PBM transparency requirements.   

The FTC’s July 2023 statement specifically warns against relying upon nine advocacy letters published between 2004 and 2014, a 2005 FTC study, and a joint report issued with the Department of Justice (DOJ).  These eleven letters, reports and studies advocated against proposals to require more transparency with PBMs and heighten regulatory oversight. The FTC formerly took the position that certain state and federal proposals to increase PBM transparency could undermine competitive processes.  However, the FTC is now acknowledging and warning that these old “PBM-friendly” materials may not accurately reflect the current PBM industry, and any reliance on them is misplaced in light of significant changes in market conditions.  

The FTC statement recognizes that “the PBM industry has changed significantly over the last two decades with increased vertical integration and horizontal concentration; the growth of PBM rebates, list prices and DIR fees; and the expiration of prior FTC Consent Orders.”

The FTC’s current PBM study was unanimously approved in June 2022, and according to the FTC, it “reflects significant concerns about how current market structures and business practices may undermine patients, pharmacies, and fair competition.”  Once the FTC’s ongoing study is complete, they intend to issue a revised report.  Until then, the FTC is advising against any use or reliance on the old advocacy letters and reports.

The FTC is currently focusing on promoting competition in pharmaceutical markets, addressing industry concerns about how PBMs may be using market power to undermine competition from independent pharmacies, and understanding the role of PBMs in determining the prices consumers pay for prescription drugs, including the impact of PBM rebates.  

   Over the years, Beasley Allen has joined the fight to combat the unfair and deceptive acts with respect to drug pricing through our representation of states and self-funded health plans against drug manufacturers and PBMs.  Our firm welcomes the opportunity to investigate potential drug manufacturer and PBM misconduct.  If you have any questions about PBMs and their unlawful practices, contact Dee Miles, Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section, by using the contact form at the bottom of this page.

Source: Federal Trade Commission 

$305M Settlement in Teva and Glenmark Generic Drug Price-Fixing Litigation

Teva and Glenmark have agreed to pay a combined $305 million to settle price-fixing allegations against the pharmaceutical companies. So far, this is the largest settlement the U.S. Department of Justice (DOJ) has secured in the litigation against generic drugmakers.

Teva agreed to pay a $225 million criminal penalty and donate drugs valued at $50 million. Glenmark’s penalty totals $30 million. The companies must also stop manufacturing and selling a cholesterol medication that “was a core part of the companies’ price-fixing conspiracy,” according to the DOJ. The settlement announcements come ahead of a trial that had been set for May 2024.  

Teva and Glenmark are the sixth and seventh pharmaceuticals to settle with the DOJ Antitrust Division—criminal penalties in the litigation amount to over $681 million.

When the settlements were announced, Assistant Attorney General Jonathan Kanter had this to say: 

Today, the Antitrust Division and our law enforcement partners hold two more pharmaceutical companies accountable for raising prices of essential medicines and depriving Americans of affordable access to prescription drugs. The resolutions include extraordinary remedial measures that require the breakup of assets and restore competition to the industry. Companies in heavily regulated industries are on notice that the division will not hesitate to hold them accountable and will not tolerate recidivism. 

Kanter heads the DOJ Antitrust Division.

Although the companies may avoid DOJ prosecution, they also face multidistrict litigation filed by state attorneys general and private plaintiffs. That Pennsylvania federal court litigation covers many more pharmaceuticals and generic drugs.

The DOJ said that previous settlements in the price-fixing litigation include Apotex’s $24.1 million penalty, Taro’s $205.7 million penalty and Sandoz’s $195 million penalty. The department described Teva’s settlement as “the largest to date for a domestic antitrust cartel.”

Under the settlement terms, Teva and Glenmark will sell off their pravastatin lines. Teva’s $50 million drug donation will include clotrimazole, a skin infection treatment, and tobramycin, a cystic fibrosis-related eye infection treatment drug. The medications will go to humanitarian organizations.

The DOJ added:

Both Teva and Glenmark have agreed, among other things, to cooperate with the department in the ongoing criminal investigations and resulting prosecutions, report to the department on their compliance programs, and modify those compliance programs where necessary and appropriate.

DOJ Antitrust Division lawyers Matthew Lunder, Thomas Tynan, Michael Sawers, Barry Joyce, Mark Grundvig and Julie Maloney represent the government.

The case is U.S. v. Glenmark Pharmaceuticals Inc. USA et al., case number 2:20-cr-00200, in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Structure Of Beasley Allen And How It Works

We have written in prior issues about how Beasley Allen has grown from its start-up in 1979 as a one-lawyer firm to a rather large firm today. It was discussed how the division of the firm into sections came about. Last month, we expanded on how the litigation sections have worked and continue to work on behalf of our clients. 

Our firm operates in five sections. The Administrative Section supports four sections that could be described as “mini-firms” within Beasley Allen. Those are the Mass Torts Section, the Toxic Torts Section, the Consumer Fraud & Commercial Litigation Section and the Personal Injury & Product Liability Section. Each of these Sections has a team of lawyers and support staff working closely together, creating efficiency and case expertise within each section. Successful section performance leads to better firm performance overall, allowing us to expand our resources and enabling firm growth. Year after year, we believe our approach has allowed us to help more of those who need it most. 

The Mass Torts Section

Andy Birchfield heads our Mass Torts Section, while Melissa Prickett serves as the section’s Director. With over 50 years of combined legal experience, Andy and Melissa lead the firm’s largest section in the medical devices, medication and other practice areas. The section currently handles cases involving acetaminophen, CPAP devices, hair relaxers, heavy metals in baby food, NEC baby formula, social media and talcum powder.

The Toxic Torts Section

Rhon Jones leads our firm’s Toxic Torts Section with Director Tracie Harrison’s assistance. The section focuses on toxic exposure cases. Recent cases involve Camp Lejeune water contamination, mesothelioma, paraquat and firefighting foam. 

The Consumer Fraud & Commercial LItigation Section

Dee Miles is the Section Head of our Consumer Fraud & Commercial Litigation Section. Michelle Fulmer is the Director and assists with Business Litigation, Class Action, Consumer Protection, Employment Law and Whistleblower cases.

The Personal Injury & Products LIablity Section

Cole Portis heads our Personal Injury & Product Liability Section with Sloan Downes serving as the Director. The section handles auto accident, aviation accident, defective tire, negligent security, on-the-job injury and truck accident cases. 

Finally, the Administrative Section includes Accounting, Operations, Human Resources (HR), Information Technology (IT) and Marketing. Michelle Parks is the Director of Accounting, Michelle Fulmer is the Director of Operations, and Kimberly Youngblood serves as the Director of HR, IT and Marketing.

Throughout the years, I am convinced the firm’s structure has contributed greatly to our success. Section Heads and Directors have been able to concentrate on a smaller number of cases and quickly recognize when additional resources are needed. Lawyers have been able to focus their efforts on achieving favorable client results. The efficiency and teamwork generated by sections have resulted in our firm being recognized as one of the best litigation firms in the country. This has been for the benefit of the folks we represented. 

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases 

The cases in the categories listed below are handled by lawyers in the appropriate Litigation Section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website. 

• Acetaminophen
• Auto Accidents
• Aviation Accidents
• Camp Lejeune 
• CPAP Devices
• Defective Tires
• Hair Relaxers
• Heavy Metals in Baby Food
• Mesothelioma
• NEC Baby Formula
• Negligent Security 
• On-the-Job-Injuries
• Paraquat
• Social Media 
• Talcum Powder
• Truck Accidents 

We will give a brief explanation for each category below:

• Acetaminophen
  Beasley Allen handles cases of mothers who took acetaminophen while pregnant and gave birth to a child later diagnosed with autism or ADHD. Cases also include children treated with the drug during the first 18 months of life who developed autism or ADHD. 
• Auto Accidents
  Our lawyers handle life-altering and deadly automobile accident cases caused by defective products and driver negligence. Crashes may involve single vehicles, multiple vehicles, motorcycles, recreational vehicles, transit vehicles or trucks. 
• Aviation Accidents
  We investigate aviation accidents resulting from mechanical failures, human error and other causes. Crashes injure hundreds, sometimes thousands, of victims onboard aircraft and on the ground every year.
• Camp Lejeune 
  Our firm handles cases of victims exposed to contaminated water supplies at U.S. Marine Corps Base Camp Lejeune between 1953 and 1987. Exposure to toxic water caused serious injuries, including cancer, adult leukemia, Parkinson’s disease, major cardiac birth defects and others.
• Defective Tires
  Defective tires can lead to automobile accidents resulting in injury or even death. Beasley Allen lawyers investigate these accidents caused by blowouts, tread separation and other tire failures. 
• Firefighting Foam
  We investigate cases of Aqueous Film Forming Foam exposure. This firefighting foam contains highly toxic PFAS chemicals that can lead to cancer, liver damage, decreased fertility and other health risks.
• Hair Relaxers
  Our lawyers handle cases for women injured by toxic chemicals in hair relaxers. Women who frequently use hair relaxers may develop uterine cancer, endometriosis, uterine fibroids or breast cancer.
• Heavy Metals in Baby Food
  Beasley Allen investigates cases of infants exposed to toxic heavy metals in baby foods. Many baby food brands contain arsenic, cadmium, lead or mercury, which can lead to serious, irreversible damage in babies’ developing brains.
• Mesothelioma
  We handle cases of asbestos exposure resulting in malignant mesothelioma, a type of cancer that can lay dormant for years. Millions of U.S. workers may have been exposed to asbestos decades ago.
• NEC Baby Formula
  Our firm investigates cases of premature babies who developed necrotizing enterocolitis after consuming infant formulas manufactured by brands like Enfamil and Similac. Necrotizing enterocolitis is an intestinal disease that can lead to long-term complications and even death.
• Negligent Security 
  Establishment owners and managers are responsible for maintaining safe premises. When someone is injured or killed as a result of negligent security, Beasley Allen lawyers hold owners and managers accountable.
• On-the-Job-Injuries
  We investigate workers’ compensation cases, often finding that defective industrial products are to blame for workers’ injuries or deaths. Industrial products include manufacturing, farming, construction or other types of equipment.
• Paraquat
  Our firm handles cases for victims injured by paraquat, a popular herbicide linked to Parkinson’s Disease that has been banned or partially banned in at least 92 countries. Paraquat remains legal in the U.S., risking the health and safety of workers on over 2 million U.S. farms.
• Social Media 
  Our youth are facing a mental health crisis caused by social media addiction. Beasley Allen advocates for these youth who have suffered harms, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm and suicide.
• Talcum Powder
  We handle cases for women diagnosed with ovarian cancer after regular use of talcum powder. For decades, companies like Johnson & Johnson knew that talcum powder might cause cancer but failed to warn consumers. 
• Truck Accidents 
  Our firm handles accident cases involving tractor-trailers, commercial vehicles and other large trucks. These cases often involve multiple, well-funded defendants and complex insurance issues.

Resources to Help Your Law Practice

Because Beasley Allen is a litigation firm, our lawyers only handle litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. The firm’s lawyers don’t do defense work of any kind, civil or criminal, and there are no exceptions. Beasley Allen only represents companies in Corporate America when they are victims and become plaintiffs in civil litigation. I made that decision when our firm was founded in 1979, and that has been the firm’s policy ever since.

All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing sole claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers representing only victims of wrongdoing.

All of us at Beasley Allen have truly been blessed. We understand the importance of sharing resources and teaming up with peers in our profession. The firm is committed to investing in resources that will help our fellow trial lawyers in their work. For those looking to work with Beasley Allen lawyers or simply seek information that will help their law firm with a case, the following are among our most popular resources. 

Co-Counsel E-Newsletter 

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

Aviation Litigation & Accident Investigation

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

Webinars

Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for live presentations. To register for upcoming events or to access past webinars on-demand, you can visit the Events and Webinar page of the Beasley Allen website at https://www.beasleyallen.com/events/.

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, both in print and online, to a huge number of people.

You can reach Beasley Allen lawyers in the four litigation sections of our firm by using the form at the bottom of this page to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of our publications, visit our website at www.BeasleyAllen.com. 

PRACTICAL TIPS FOR TRIAL

This month Paul Evans, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, has some recommendations that will help lawyers in the handling of insurance litigation. Paul handles this type of litigation for our firm. So, let’s see what he has to say on an important subject. 

Practical Tips for Reviewing Insurance Policies

The need to review insurance policies arises for lawyers under a variety of scenarios.  These scenarios include ensuring your residence and law firm have adequate coverage for a variety of risks, filing a lawsuit after a coverage denial, and determining whether a defendant has coverage for the facts and claims alleged in a lawsuit.  Additionally, reviewing an insurance policy can often be daunting to laypersons and even lawyers.  As such, I hope to provide some basic, but helpful, tips in this article for reviewing insurance policies.  

An insurance policy is comprised of various parts: the declarations, the insuring agreement, exclusions, definitions, conditions, and often endorsements/riders.  Each part of the policy is important and can affect your review.  For example, while the declarations may list some insureds, an endorsement can add additional insureds.  Also, the declarations may list the limits for various types of coverage, but the policy or endorsements may have an exclusion to coverage. Without the full policy, there would be no way to know for certain.  Therefore, obtaining the full policy with all parts is an essential first step. 

When people ask their insurance company or agent for a copy of their insurance policy, sometimes the insurer will only provide the declaration pages, which is essentially a summary of the policy that typically lists the insured persons or properties, coverages, limits of liability, and the policy form numbers of all the documents that make up the policy. Usually, a request to the insurer for “all policy forms listed in the declarations” will result in receiving the full policy because the phrasing is a clear request for all the documents that make up the policy.  Similar language can also be used in discovery requests.

To ensure you have all parts of the policy, you can crosscheck the form numbers on policy pages (which are usually in the bottom left-hand corner of each page) to the form numbers on the declaration.  If a request is made to the insurer and the insurer does not send the policy, the next step would be contacting the policyholder’s state department of insurance, which can usually be done via a complaint online or by mail.    

Once you have received all the policy forms, the review process depends on the reason for the review.  If you simply need to see if the defendant you have sued is an insured, often a review of the declarations and endorsements to find where the insured persons are listed is sufficient.  

On the other hand, reviewing whether there is coverage for a lawsuit or risk can require a detailed review of the coverage language, exclusions, and definitions. In these situations, I will typically print out hard copies of the documents to make notes and pinpoint the relevant provisions. Since endorsements/riders can add, modify, or delete policy language, I have found it helpful to read them first.  Then, I will determine which part of the policy the endorsement changes, and strike through that part of the policy and make a note referring to the endorsement.  This helps me keep clear which language is the relevant language.   

When reviewing insurance coverages, it is important to keep in mind that general rules of contract interpretation apply.  As such, words and phrases in a policy are generally given the meaning a person of ordinary intelligence would give them, and ambiguities are construed against the insurance company and in favor of the policyholder.  Also, it is noteworthy that the insurer has the burden to prove the applicability of an exclusion.  

Lastly, if you have a coverage dispute or file a lawsuit, it is important to make sure the policyholder has fulfilled their obligations under the policy to prevent various defenses.  For instance, some policies have appeals processes that require the policyholder to file an appeal to a designated entity within a certain amount of time.  Additionally, ensure the policyholder has timely paid premiums and has cooperated with the claims process.  

If you have questions or comments, you can contact Paul by using the contact form at the bottom of this page. He will also be glad to work with you if you need help on an insurance case. 

RECALLS UPDATE

A large number of safety-related recalls were issued during August. We mentioned several in the Product Liability Section in this issue. There will be other significant recalls available on our website, BeasleyAllen.com/Recalls/. We attempt 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 Jere Beasley Report, by using the contact form at the bottom of this page if you have any questions or to let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks. 

FIRM ACTIVITIES

Lawyer And Employee Spotlights

Sandra Eiland

Sandy Eiland works in the firm’s Mass Torts Section as a Staff Assistant. She is a part of the firm’s Talc trial team. Sandy is responsible for processing pathology specimens, maintaining pathology and billing charts, maintaining files, managing medical and billing records, drafting various documents, and assisting with trial preparation. Sandy joined the firm nearly 20 years ago and has been an asset to her team and the firm. We are blessed to have Sandy with us!

Sandy and her husband, Anthony, and their Cocker Spaniel, Paisley, live on their farm in Brantley, Alabama, where they raise cattle. They have two sons, Jonathan and Justin. Sandy says she was born and raised in Coffee County, Alabama, by two of the most wonderful parents. She loves her family and enjoys spending time with them above anything else! She also enjoys hunting, horseback riding, gardening, landscaping, and riding their UTV. 

Sandy says her favorite thing about working at Beasley Allen is the friendly work environment. She says:

It has always been such an honor to work for an outstanding and reputable law firm. Beasley Alen is a great firm who cares about helping others!

Leon Hampton

Leon Hampton joined Beasley Allen’s Consumer Fraud & Commercial Litigation Section in August 2017. He handles whistleblower, workers’ compensation, hostile workplace, bad faith insurance and employment discrimination claims. Leon has helped secure over $22 million in verdicts and settlements for clients.

Practicing law allows Leon to accomplish one of his biggest goals in life – helping others. He says:

I became an attorney to use my God-given talents and abilities, as well as my education, to help people who feel defenseless in the face of injustice.

Leon graduated from Alabama A&M University in 2010 and earned his Juris Doctor from Samford University’s Cumberland School of Law in 2013. He was declared the winner and best oral advocate in the school’s Judge James O. Haley Federal Trial Competition and first-year moot court competition. He also clerked for the Alabama Attorney General’s Office and our firm’s Personal Injury & Product Liability Section during law school. 

Leon says it’s challenging to narrow down what he loves about practicing law because he enjoys it for many reasons. He explains:

I enjoy the look on a client’s face when they realize that someone else believes in them and their story. I enjoy strategizing with my law partners about how to best approach the case and the best way to tell the client’s story. I specifically enjoy developing the facts of a client’s case and taking the depositions of key adverse witnesses. I am always amazed at how putting an adverse witness under oath levels the playing field and often precisely confirms the client’s story.  

Leon says he is thankful to practice at such a widely respected firm as Beasley Allen. He adds: 

Beasley Allen is unique because it consists of extremely talented lawyers who value character and integrity over everything else. We litigate our cases hard, but we are not expected to win at the cost of personal and professional integrity. That is truly special.

Leon serves on the Alabama State Bar (ASB) Board of Bar Commissioners. He is also active in other state and local bar associations, including the Montgomery County Bar Association, Capital City Bar Association and Alabama Lawyers Association. He has served on several ASB committees, including the Committee on Disciplinary Rules and Enforcement, the Election Procedures Review Task Force and the ASB Executive Council. He is also Past President of the Alabama Lawyers Association and was selected for the ASB’s Leadership Forum (Class 15) in 2020. 

In early July, Leon was selected to the 2023 Lawdragon 500X – The Next Generation. The legal publication describes the qualifications of those chosen for the inaugural guide, writing:  

The achievements and pace at which these lawyers have vaulted to the forefront of the legal profession is remarkable. They represent the tried and true paths worn by those who came before them – clerking for prestigious judges, anchoring law reviews. Then have blown down the walls of private practice, amassing courtroom victories, leading deals and protecting IP and civil rights. This is our inaugural guide dedicated to those who will define where the legal profession of our country goes. Whose leadership will be called upon by businesses and individuals when they face their crossroads.

Leon also earned the Alabama State Bar Award of Merit in 2022. Further, he was named the Alabama Lawyers Association’s Board Member of the Year in 2017 and has been selected to Midsouth Super Lawyers “Rising Stars” since 2021.

Leon is a tremendously talented trial lawyer and a definite asset to the firm. We are blessed to have him with us. 

Rhon Jones

Rhon Jones joined Beasley Allen in 1994. He heads the firm’s Toxic Torts Section, which currently focuses on Camp Lejeune water contamination, mesothelioma, paraquat and firefighting foam cases.

Rhon’s verdicts and settlements while practicing at our firm total an estimated $3 billion. His recoveries from all cases handled during his career at Beasley Allen exceeds $30 billion. Throughout his career, Rhon has remained at the forefront of environmental and toxic exposure litigation, representing local governments and water systems in at least 15 states.

When Rhon went to law school, he said he had no idea why he wanted to become a lawyer. Even when he graduated with his Juris Doctor from The University of Alabama School of Law in 1990, he wasn’t sure why. After clerking for U.S. District Judge Robert Varner and practicing for two defense firms, Rhon still had not found his true calling.

Rhon’s career path changed when our Personal Injury & Product Liability Section Head, Cole Portis, recruited him for the firm. Rhon says:

One day out of the blue, Cole asked me to lunch and said Beasley Allen was looking for a lawyer. I thought about it and said yes. The very first week I arrived I was placed on a trial team with Jere Beasley and Tom Methvin. Jere and Tom tried two cases in the same trial term and graciously allowed me to help. I was captivated from day one and did not know until then why I actually wanted to be an attorney – to help people who need it most and to work with the best lawyers and staff in the country. That was true then and it is true now.

For 33 years, Rhon has enjoyed serving others through the legal profession. He takes pride in seeing clients trust our lawyers and staff to win justice on their behalf. He says the firm’s character, work ethic and humility make it unique, adding:

We really try to do the right things for the right reasons.

Rhon is an active member of several professional associations, including the American Bar Association, American Association for Justice, Alabama Association for Justice, Montgomery County Bar Association and Federal Bar Association.  A Martindale-Hubbell AV Preeminent-rated lawyer, he has also received multiple recognitions and awards. He has been selected to Lawdragon 500 Leading Plaintiff Consumer Lawyers, Midsouth Super Lawyers and Best Lawyers. He was also named the Best Lawyers “Lawyer of the Year” in 2022 for Environmental Litigation in Montgomery, Alabama, and our firm’s Litigator of the Year in 2011 and 2016.

Rhon does a tremendous job at Beasley Allen and for the clients he represents. His role involves trials and managing the Section, which is very difficult. But Rhon has handled both areas in an exceptionally good manner. That requires talent, dedication, and hard work. We are blessed to have Rhon in a leadership role at Beasley Allen.

Rachel Spigner

Rachel Spigner is a Staff Assistant in the firm’s Toxic Torts Section, where she works with the Roundup settlement team assisting clients with pertinent forms, updating files, and assisting Beasley Allen lawyers in getting the necessary information from clients for their cases. Rachel joined the firm over 11 years ago, and her dedication to the firm and hard work is highly valued! 

Rachel and her husband, Gary, who also works at Beasley Allen in the Human Resources department, have been married for six years. Rachel shares that their 15-year-old son, Clay, will be a High School sophomore this year.  Rachel says Clay loves helping her cook, is very energetic, and enjoys reminding her that he is now the tallest every chance he gets! Their son, Brett, and his wife, have two daughters, Marya (4), and Everlegih (18 months). The Spigners also have two “fur children,” Bevo and Lulu, whom she describes as polar opposites! Rachel enjoys quilting, crocheting, knitting, and watching movies with her family in her spare time. 

Rachel’s favorite thing about working at Beasley Allen is helping clients get the help they need and deserve. She also shared that she finds forging lasting friendships with clients and coworkers very rewarding!

Rachel is a hard worker whose dedication to the task of clients receiving justice is greatly appreciated. We are fortunate to have Rachel with us. 

Laurie Waren

Laurie Waren works in the firm’s Personal Injury and Product Liability Section as a Paralegal to Beasley Allen lawyer Ben Baker. Laurie joined Beasley Allen 22 years ago and has worked exclusively with Ben over her 22-year career here, specializing in product liability work.  Laurie’s work as a Paralegal is invaluable, and we are blessed to have such a dedicated and hard-working employee like her with us! 

Laurie and her husband, Brent, live in the Wetumpka area.  Together they have four children: Hannah, a Registered Nurse at Jackson Hospital; Madyson, a Registered Nurse at the Montgomery Cancer Center; along with twins Madelyn and Grady, who are gearing up to begin college in the Fall.  Laurie and Brent also have four grandchildren, Briggs, Boone, Burke, and Bo. Aside from keeping up with their grandchildren, Laurie says there is never a dull moment in their household, as she and Brent always seem to have indoor or outdoor projects, which they enjoy!  

Laurie says that making lasting connections with clients is one of her favorite things about working at Beasley Allen. She added:

I feel good at the end of the day if I’ve been able to help one of our clients hold the pieces together during the most difficult times of their lives. What we do here matters, and it’s not just a job. 

We are truly blessed to have Laurie at Beasley Allen. She is a talented, hard-working paralegal whose dedication has helped hundreds of clients. 

SPECIAL RECOGNITIONS

Jessica Stapp Awarded 2022-2023 Paralegal Of The Year Award

The Alabama Association of Paralegals Inc. has named Jessica Stapp its 2022-2023 Paralegal of the Year. Jessica has been a loyal and dedicated Beasley Allen employee for 13 years. She currently serves as a paralegal in our Consumer Fraud & Commercial Litigation Section. 

The Alabama Association of Paralegals (AAPi) has promoted the paralegal profession through awareness and education since 1982. The association exists to provide continuing education to its members and to encourage a high order of ethical and professional attainment. Further, the association collaborates with bar associations and promotes fellowship among AAPi members, The National Association of Legal Assistants Inc. (NALA) and members of the legal community. As a NALA affiliate, the association also strives to support and carry out the programs, purposes, and goals of NALA.

Each year, AAPi holds seminars, luncheons and networking events to update paralegals on changes to the law and help improve their skill sets. During its annual conference, the association presents the Paralegal of the Year Award to one of its own who best embodies and exhibits AAPi ideals while attaining significant professional achievements.

Jessica’s supervising lawyer, Ali Hawthorne, is proud of Jessica’s accomplishments. Ali says:

Working with Jessica, I witness her commitment to excellence in our law firm and profession on a daily basis. Jessica consistently demonstrates her unfailing dedication to the cases she works on and the clients we serve. It is a privilege and a pleasure to have Jessica as my paralegal, and I am grateful for what she does for our firm.

All of us at Beasley Allen are very proud of Jessica. This honor is well-deserved. 

Leon Hampton And Lauren Miles Appointed To Cumberland School Of Law Advisory Board

Samford University’s Cumberland School of Law Dean, Blake Hudson, has appointed Leon Hampton and Lauren Miles to the school’s advisory board. As recognized leaders in the profession and community, Leon and Lauren will serve a five-year term with eligibility to serve a second term once the first term has been completed. Leon graduated from Cumberland in 2013, while Lauren earned her Juris Doctor from the school in 2015.

The Cumberland School of Law Advisory Board works with the law school’s leadership team, faculty and staff to promote the welfare of the law school, its students and faculty. Board members encourage excellence in the legal education process, work to enhance the school’s reputation and support the development of ethical and successful lawyers.

Serving as a connection to current industry trends and techniques in the legal profession, the board advises the law school concerning practice skills. Further, board members help develop the school’s curriculum and programs. The board also assists students with career development and job placement. Additional responsibilities include engaging with alumni and procuring financial resources to support the school.

Our Consumer Fraud & Commercial Litigation Section Head, Dee Miles, earned his Juris Doctor from Cumberland in 1989. He has served on the school’s advisory board since 2003 and is the Past President of the board. He says:

Being appointed to the Cumberland School of Law Advisory Board is a great honor. Serving on the board gives members the opportunity to invest in the future of the legal profession. I know that Leon and Lauren’s contributions to our alma mater will benefit the school’s faculty and students tremendously. 

I am confident that Leon and Lauren will be a real asset to Cumberland. We are very proud of them. 

Chad Cook Appointed To Alabama State Bar Committees For 2023-2024 Term

Chad Cook has been appointed to the Alabama State Bar’s (ASB) Pro Bono and Public Service Committee and the Quality of Life, Health and Wellness Committee for the 2023-2024 term.

The ASB Pro Bono and Public Service Committee’s goal is to provide access to justice for all Alabama citizens with a focus on helping those who need legal services but cannot afford to hire a lawyer. The committee oversees the bar’s Volunteer Lawyers Program (VLP), which has served low-income Alabamians since 1991. Over 2,000 lawyers donate their time and legal advice to indigent citizens through the VLP each year.

The Pro Bono and Public Service Committee’s additional responsibilities include developing promotional strategies for programs and projects that increase access to justice, identifying and coordinating with funding sources to support the state’s local VLP projects and implementing new pro bono outreach initiatives. The committee also works with the ASB Young Lawyers Section to improve the bar’s Natural Disaster Response Program.

The Quality of Life, Health and Wellness Committee’s purpose is to investigate programs, gather information and inform ASB members about wellness problems and resources to help. The committee also creates a continuing legal education offering for ASB members, develops a plan to celebrate Quality of Life, Health and Wellness Month and provides wellness content to the bar to share on social media. In addition, the committee looks at wellness programs of bar associations across the country to determine whether aspects of those programs should be implemented locally.

Chad has practiced in Beasley Allen’s Mass Torts Section for over 20 years and serves as the firm’s Pro Bono Coordinator. He is a member of several professional associations in addition to the ASB, including the District of Columbia Bar Association, Alabama Association for Justice, Christian Trial Lawyers Association and Public Justice Foundation. He is also active in the American Association for Justice and its Section on Toxic, Environmental & Pharmaceutical Torts. Further, Chad serves on the Board of Directors for the Montgomery County Bar Foundation and is Past President of the Montgomery County Association for Justice. A Martindale-Hubbell AV Preeminent-rated lawyer, Chad has been named to The National Trial Lawyers Top 100.

FAVORITE BIBLE VERSES

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

Rhon Jones

Rhon Jones provided two of his favorite passages.

And we know that in all things God works for the good of those who love him, who have been called according to his purpose. For those God foreknew he also predestined to be conformed to the image of his Son, that he might be the firstborn among many brothers and sisters. Romans 8:28-29

Therefore, since we are surrounded by such a great cloud of witnesses, let us throw off everything that hinders and the sin that so easily entangles. And let us run with perseverance the race marked out for us, fixing our eyes on Jesus, the pioneer and perfecter of faith. For the joy set before him he endured the cross, scorning its shame, and sat down at the right hand of the throne of God. Hebrews 12:1-2

Sandy Eiland

Sandy Eiland shares three of her favorite passages. She learned the first verse as a child and says it has remained with her through the years.

I can do all this through him who gives me strength. Philippians 4:13

Sandy says that another of her favorite scriptures is encouraging.

Be strong and courageous. Do not be afraid or terrified because of them, for the Lord your God goes with you; he will never leave you nor forsake you. Deuteronomy 31:6

Sandy learned her last favorite verses as a child and says that she tries to trust the Lord no matter what.

Trust in the Lord with all your heart and lean not on your own understanding; 6 in all your ways submit to him, and he will make your paths straight. Proverbs 3:5-6

Leon Hampton

Leon Hampton offers four of his favorite passages.

I will say of the Lord, “He is my refuge and my fortress, my God, in whom I trust.” Surely he will save you from the fowler’s snare and from the deadly pestilence. He will cover you with his feathers, and under his wings you will find refuge; his faithfulness will be your shield and rampart. You will not fear the terror of night, nor the arrow that flies by day, nor the pestilence that stalks in the darkness, nor the plague that destroys at midday. A thousand may fall at your side, ten thousand at your right hand, but it will not come near you. 8 You will only observe with your eyes and see the punishment of the wicked. Psalm 91:2-8

The lions may grow weak and hungry, but those who seek the Lord lack no good thing. Psalm 34:10

For to us a child is born, to us a son is given, and the government will be on his shoulders. And he will be called Wonderful Counselor, Mighty God, Everlasting Father, Prince of Peace. Isaiah 9:6

For the eyes of the Lord range throughout the earth to strengthen those whose hearts are fully committed to him. 2 Chronicles 16:9

Rachel Spigner

Rachel Spigner shares her favorite acronym “ASAP,” which reminds her to “Always Stop And Pray.” She says:

A few years ago when I had a large tumor removed, my doctor always said a prayer with me before surgery, after surgery, through every step.

CLOSING OBSERVATIONS

Board of Trustees re-elects Vance, Crowell to leadership roles

The Troy University Board of Trustees has re-elected Gibson Vance as the board’s President pro tempore and retired Air Force Brig. Gen. Edward F. Crowell as the board’s Vice-President pro tempore. Dr. Jack Hawkins, Jr., Chancellor, made these comments relating to the appointments:

I am grateful for the leadership Mr. Vance and Gen. Crowell provide to our Board of Trustees and our University. We are in the midst of one of the most exciting times in the history of Troy University, and the leadership provided by our Board of Trustees has and will continue to play a vital role in our future. 

Gibson, a 1987 Troy graduate, has served as President pro tempore of the Board of Trustees since 2019. He has been a member of the board since 2012. Gibson had this to say: 

I think we have the best Board in the state. We are a very cohesive group that works hard and puts the interests of Troy University first. We all support our Chancellor, and we are in a great position to continue moving Troy forward. 

All of us at Beasley Allen were highly pleased when we heard about Gibson’s re-election. He has done an outstanding job as a board member and that has evolved during his tenure as president pro tempore. Troy University is an exceptional academic institution and has a well-deserved reputation for providing top-notch higher education. We are very proud of Gibson’s involvement with Troy.

Gibson is a tremendously talented lawyer and has had a great career. His involvement in matters outside the firm has been good for Alabama. 

Gibson is heavily involved in the American Association for Justice and is Past President of the organization. He also has served as President of the Alabama Association for Justice and Southern Trial Lawyers Association and is the Immediate Past President of the Alabama State Bar. 

Source: Troy.edu

OUR MONTHLY REMINDERS

The following are the monthly reminders for all of us at Beasley Allen. They apply in the workplace and at home. They are also recommended for all of our readers outside Beasley Allen.

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

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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 

PARTING WORDS

This issue was late getting to the printer, and I have to take the blame. I tested positive for Covid on August 5. Fortunately, mine was a mild case. Other than a nagging cough and feeling sort of tired, I had no other symptoms. However, I was in quarantine at home for longer than I anticipated. I finally received a negative test result on August 24.

I must admit that Covid taught me a lesson that I needed to learn. I have always been somewhat impatient and always wanted things to move quickly to a conclusion. I have learned a valuable and needed lesson dealing with patience. Having to deal with Covid and the required isolation made me realize that we still have a “covid problem” in America and that all of us still need to be vaccinated and boosted. 

I am thankful that my Covid case was a minor one and that I am now back at work at Beasley Allen. 

Praise the Lord!