The Jere Beasley Report March 2023

CAPITOL OBSERVATIONS

A Victory For Victims Of Wrongdoing

A tremendous and long-awaited victory was achieved for over 38,000 talc-ovarian cancer plaintiffs and for the American Civil Justice System. In overturning Johnson & Johnson’s (J&J’s) controversial bankruptcy ploy, the Third Circuit Court of Appeals took a stand against corporate America’s attempt to evade justice by hiding behind laws never intended nor designed to protect, endorse or support in any manner wrongdoing.

The Third Circuit found that the bankruptcy of J&J’s shell subsidiary, LTL, was not filed in good faith. This decision dismantles the federal bankruptcy court rulings supporting the injunction that had blocked plaintiffs’ cases against J&J for months.

The lawsuits filed by victims or the families of victims who have not survived can now move forward. We at Beasley Allen are proud to stand beside and fight for these brave plaintiffs. J&J knew for over 50 years that its Baby Powder and Shower to Shower products were contaminated with cancer-causing asbestos and that the products’ use was linked to ovarian cancer.

Evidence produced during years of trials shows the company repeatedly denied or covered up the scientific evidence of the association of the talc products to ovarian cancer. Finally, last year, J&J announced a halt to future sales and distribution of talc-based products worldwide, citing the legal claims brought by ovarian cancer and mesothelioma victims.

In addition to the Third Circuit’s rejection of this strategy, J&J’s conduct has gotten the needed attention of Congress, where hearings have been held to examine the Texas Two-Step process. Now, members of Congress have begun discussing potential changes to the bankruptcy laws that would prevent this sort of legal strategy and the associated consumer harm in future cases.

J&J has vowed to fight until the end. While this battle to hold J&J accountable for its massive wrongdoing continues, all of us at Beasley Allen, especially the lawyers on our firm’s Talc Litigation Team, are totally committed. We will fight this battle to its conclusion. I am confident that justice will be done!

THE TALC LITIGATION

Talc Plaintiffs Ready To Resume Trials

The Third Circuit ordered dismissing the Chapter 11 case filed by a newly-formed Johnson & Johnson subsidiary to sidestep talc plaintiffs’ right to a civil jury trial. The court reasoned that the company was not in financial distress and lacked the required good faith to commence its bankruptcy case. The decision reverses the ruling from a New Jersey bankruptcy judge that allowed the case of LTL Management LLC to proceed as the company tried to deal with the potential of billions of dollars in liability related to its talc products, with tens of thousands of claimants alleging it caused deadly diseases including mesothelioma and ovarian cancer.

This is a tremendous and long-awaited victory for over 38,000 talc-related ovarian cancer and mesothelioma plaintiffs and the American civil justice system. The bankruptcy laws were never designed to protect or endorse wrongdoing, and the court was not fooled by J&J’s arguments that bankruptcy was the most efficient way to resolve these cases. Instead, the court took a stand against corporate America’s attempt to manufacture insolvency to force a change of venue.

The decision enables the tens of thousands of people afflicted with ovarian cancer, mesothelioma, and other diseases caused by J&J’s talc products to return to the tort system to pursue justice before juries of their peers. It prevents wealthy and solvent corporations from employing corporate machinations to evade that justice.

In speaking to Law360, the Beasley Allen team stated, “Given that, we will immediately seek to return these cases to their rightful venues in federal and state district courts, efficiently schedule and conduct trials, and establish the liability of J&J for the deaths and disease suffered by thousands of women.”

The plaintiffs’ lawsuits can now move forward. We are proud and honored to stand beside these brave plaintiffs as they allege that J&J knew for years that its Baby Powder and Shower to Shower products were contaminated with ovarian-causing asbestos and talc fibers, both of which have been linked to their ovarian cancer and mesothelioma.

In addition to the Third Circuit’s rejection of this strategy, it has raised eyebrows in Congress, where hearings have been held to examine the process. Representatives are now discussing potential changes to the bankruptcy laws that would prevent this sort of legal strategy and related consumer harm in the future.

While J&J has vowed to fight until the end, Beasley Allen is committed to fighting until our clients secure the fair and just compensation to which they are entitled.

The case is In Re: LTL Management LLC, case number 22-2003, in the U.S. Court of Appeals for the Third Circuit.

Beasley Allen lawyers Ted Meadows and Leigh O’Dell 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 who have been focused on Johnson & Johnson’s abuse of the bankruptcy system can now be busy working on upcoming trials. 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
• Jenna Fulk
• Lauren James
• James Lampkin
• Caty O’Quinn
• Cristina Rodriguez
• Brittany Scott
• Charlie Stern
• Will Sutton
• Matt Teague

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

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Litigation Update

Camp Lejeune litigation in the Eastern District of North Carolina has begun. The Camp Lejeune Justice act was signed into effect on Aug. 10, 2022. The statute requires a six-month waiting period after an administrative claim is filed before a civil lawsuit can be filed in the Eastern District of North Carolina. February marked the first month since the bill’s passage that an individual was able to file suit in federal court. The Department of the Navy has indicated that at least 20,000 administrative claims have been filed with the agency so far – and this number is increasing daily.

More than 30 cases had previously been filed in the Eastern District of North Carolina before February 2023. These cases – whose plaintiffs had filed an administrative claim prior to the passage of the Camp Lejeune Justice Act – have been dismissed by the court for failure to exhaust the administrative remedy created under the Camp Lejeune Justice Act.

Beasley Allen has an entire team of lawyers and staff dedicated to investigating, filing, and establishing causation for these Camp Lejeune claims.  The team is co-led by Julia Merritt and Leslie LaMacchia, under the Toxic Torts practice group, which is led by Rhon Jones. The timetable for filing claims for the exposure to toxic water at Camp Lejeune is limited to two years from the date the Act was signed into law, which, as stated above, was on Aug. 10, 2022.  Contact a lawyer on the Toxic Torts team at Beasley Allen to help you with your Camp Lejeune claims.

Beasley Allen Camp Lejeune Litigation Team

If you need help on a potential claim or more information on our Camp Lejeune litigation, contact one of the lawyers on the Camp Lejeune Litigation team at 800-898-2034 or by email.

The Camp Lejeune Litigation Team consists of Julia Merritt and Leslie LaMacchia who co-lead the team. Other members are Matt Pettit, Trisha Green, Will Sutton, and Elizabeth Weyerman. Rhon Jones (Section Head) works closely with the team. Additional lawyers will be added to the team as needed.

SOCIAL MEDIA LITIGATION

Meta And Its Counsel Are sanctioned In Privacy Class Action For Failure To Provide User Data To Plaintiffs During Discovery And Other Actions In Bad Faith

Beasley Allen and other leading plaintiff firms are fighting a multidistrict litigation (MDL) against Meta and other social media companies regarding social media addiction and related personal injuries. Meanwhile, Meta and its counsel Gibson Dunn, have been sanctioned for their actions in a separate privacy class action lawsuit. That was a significant development.

On Feb. 9, 2023, the District Court for the Northern District of California granted the plaintiff’s motion for sanctions in the privacy class action and awarded plaintiffs around $925,000 based on Meta and Gibson Dunn’s bad faith conduct. The court issued a forcefully worded opinion:

Facebook insisted that: (1) it need not disclose to the plaintiffs what information it had collected about them unless it had shared that information with third parties; and (2) the plaintiffs were required to take at face value Facebook’s assertions about what information it had shared. Merely reciting this argument shows how ridiculous it is[.] . . . It was obvious at the time that these documents were likely to be probative, and that view has only been confirmed now that Facebook has finally been forced to produce them. [Also,] Facebook’s witnesses and lawyers deliberately prevented the plaintiffs from obtaining probative information during depositions. . . All the while, Facebook and Gibson Dunn had the audacity to accuse the plaintiffs’ lawyers of delaying the case, and to assert that the plaintiffs’ reasonable efforts to obtain obviously relevant discovery were frivolous. It’s almost as if Facebook and Gibson Dunn spent the better part of three years trying to gaslight their opponents, not to mention the Court.

The opinion concludes:

The Court finds by clear and convincing evidence that Facebook and Gibson Dunn’s conduct reflected a sustained, concerted, bad-faith effort to throw obstacle after obstacle in from of the plaintiff—all in an attempt to push the plaintiffs into settling the case for less than they would have gotten otherwise.

Last year, Meta agreed to pay $725 million to settle the privacy class action arising from Meta providing Cambridge Analytica (a British political consulting firm) access to the 87 million users’ data.

Beasley Allen’s litigation team continues to litigate against Meta and other social media companies in the Social Media Addiction/Personal Injury Product Liability MDL. It is honored to represent the victims of the tech giant’s harmful product design.

If you need help on a case or more information on the personal injury part of our Meta litigation, contact a lawyer on the firm’s Social Media Litigation Team. Members of the team are set out below.

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 at 800-898-2034 or by using the form at the bottom of this page.

It should be noted again that the class action aspect of the Meta Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. If you need help in that area, contact Michelle Fulmer, Section Director, at 800-898-2034 or by using the form at the bottom of this page, and she will have a lawyer contact you.

Source: Law360

AN UPDATE ON MOTOR VEHICLE LITIGATION

Clay Barnett Appointed Interim Co-Lead Counsel in Honda Class Action

Beasley Allen represents a class of Honda owners and lessees suing the company over a defective Idle Stop feature. Honda manufactured 2016-2020 Pilots, Odysseys, Acura TLXs and Acura MDXs with the faulty feature, endangering occupants of the vehicles when the feature malfunctions.

The Idle Stop feature turns off the vehicle’s engine when the driver fully applies the brakes and the vehicle stops. When working properly, the feature restarts the engine as the driver releases the brake pedal or when the vehicle sits for a long time with the auxiliary systems running. Auxiliary systems include air conditioning, heating and the radio, for example.

The Idle Stop feature in the affected Honda models often fails to restart the engine when the driver releases the brake, causing the vehicle to become inoperable wherever it rests. Drivers have experienced engine restart failure in dangerous situations, including when merging into fast-moving traffic and in the middle of busy intersections.

Honda was aware of the malfunctioning Idle Stop feature but ignored the problem. Owners and lessees of vehicles with the defective feature began filing complaints with the National Highway Traffic Safety Administration in 2015. The complaints described the dangers caused by the defective feature and Honda’s failure to address the issue. Honda admitted in service records and a message sent to dealerships that the feature was defective, yet it continued selling vehicles without disclosing the defect to purchasers and lessees. Nor did Honda recall vehicles with the dangerous defect. 

On Feb. 21, Judge Mark C. Scarsi of the United States District Court for the Central District of California appointed Beasley Allen’s Clay Barnett as interim co-lead counsel in the class action against Honda.

Clay has specialized in automotive defect class actions nationwide over the past six years. His experience in restoring vehicles has allowed him to identify problems in several cases against major manufacturers, including Ford, General Motors (GM), Toyota and Volkswagen. In October 2022, Clay co-led the trial team that secured a $102.6 million verdict against GM in the U.S. District Court for the Northern District of California. GM had produced engines with defective piston rings, causing heavy oil consumption, engine wear and tear, reduced vehicle value and safety risks. Clay also obtained a settlement for owners and lessees of Toyota vans with malfunctioning power rear doors in the U.S. District Court for the District of Connecticut.

Our firm has the resources to represent clients nationwide while never losing sight of the individual. If you have been negatively impacted by a defective Idle Stop feature or another automotive defect, Beasley Allen lawyers can help. We have the experience and resources needed to assist you. Contact Michele Fulmer, Section Director, at 800-898-2034 or via the form on this page. She will have a lawyer respond to you.

$2.7 Million Settlement Secured For Family Of Montgomery Man Killed by Exploding Airbag

Lawyers from Beasley Allen and The Vance Law Firm have obtained a $2.7 million settlement for the family of Tocarious Johnson. This young man was killed by exploding shrapnel from a defective Takata airbag inflator. Chris Glover and Alyssa Baskam from our office, along with Stewart Vance and Kyle Weidman of The Vance Law Firm, represented the family. Chris had this to say:

Mr. Johnson didn’t have to die, but the defendants failed him time and again. The problems started with a defective product that should have been made safer. The problems grew as the defendants passed up each opportunity to do the right thing and inform the consumer of the dangers described in the recall. Instead, A young man was robbed of his life, and he leaves behind grieving family and friends.

Authorities initially thought the 20-year-old had suffered a gunshot injury, but an autopsy revealed Johnson died from injuries he sustained when the Dodge Charger he was driving left the roadway and crashed. The lawyers uncovered evidence that the driver’s side airbag inflator ruptured violently during the accident, much like a hand grenade, shooting shrapnel from the metal inflator in the car toward Johnson.

Tocarious Johnson purchased his 2010 Dodge Charger, manufactured by defendant Chrysler, from 2nd Chance Auto Sales on Feb. 19, 2022. At that time, the vehicle was subject to two recalls issued by the National Highway Traffic Safety Administration (NHTSA). NHTSA issued the recalls over safety concerns with the driver’s and passenger’s side airbag inflators. According to the recalls, the inflators could rupture due to excessive internal pressure when the airbags deployed. Defendant 2nd Chance Auto Sales did not complete the recalls on the Dodge Charger it sold to Johnson. 

Defendant B&H Investments conducted maintenance on the Johnson vehicle multiple times following the recalls. But, B&H failed to act or warn Johnson the recalls had been issued.

The Alabama Extended Manufacturer’s Liability Doctrine required the defendants to warn customers like Tocarious Johnson of the recalls, but they failed to do so. Their failure contributed to Johnson’s tragic and senseless death.

The case is Chiquita Vinson v. FCA US LLC, et al., filed in the U.S. District Court for the Middle District of Alabama, case number 2:22-CV-00484. If you have any questions or need help with a case, contact Chris or Alyssa at 800-898-2034 or via the form on this page.

Auto Vehicle Crashworthiness

As warmer weather approaches and summer travel plans are made, consumers should prioritize the safety of their vehicles before hitting the road. Lawyers in our firm handle a large variety of vehicle-related cases which span countless subtopics, but frequently cases come down to one overarching theme: crashworthiness.

Crashworthiness is “the degree to which a vehicle will protect its occupants from the effects of an accident.” Several factors are considered in evaluating crashworthiness, including airbag safety, tire monitoring systems, crash avoidance, and roof structure.  Airbags are essential in protecting occupants from serious collisions but must be deployed appropriately. Defective airbags can create a more dangerous situation for occupants in car wrecks than if there were no airbag at all. For example, if an airbag deploys too early or too late, it may impact the vehicle’s occupants more than acting as a buffer.

Similarly, the roof structure is key in ensuring that a vehicle “can protect its occupants from the effects of an accident.” Many accidents involve overturned vehicles. It is essential that roofs perform adequately in these instances to prevent occupants from being injured by a crushed roof or by the ground if the roof fails to remain upright. Beasley Allen lawyers continue to fight to hold automotive manufacturers accountable to ensure safe vehicles for the public.  

If you or a loved one were seriously injured in a motor vehicle accident or have questions about automotive defects or crashworthiness, contact Shelby Mitchell at 800-898-2034 or via the form on this page.

Can Purchasing Used Tires Create A Safety Hazard?

Are used tires a safety hazard? It can often be the case.

Many deal-seekers might purchase used tires for their vehicle because those tires often are the most affordable option. That may even be more prevalent today than ever before because of the severe shortage of cars, tires and other equipment items. While trying to get a deal is not bad, a tire purchaser must know the risks associated with used tires.

The type of tire a person buys is important: statistics released by the federal government have indicated that approximately 200 people are killed and thousands are injured yearly due to tire-related accidents.

While some used tires show signs of wear and tear that creates an apparent cause for concern, tire damage can also occur internally or in ways that are harder to detect. For example, knowing the tire history is important – does it have improper repairs, or is it too old? Often, this information cannot be determined without a tire professional’s help.

The danger, it seems, lies in the fact that a used tire brings many unknowns. Because these tires don’t come straight from the manufacturing plant, it is impossible for a purchaser to truly know the history of the tires being purchased. Unfortunately, there are a number of retailers and wholesalers that sell used tires and give the impression that the tires have been thoroughly inspected for safety.

Therefore, tire purchasers should be extra vigilant when getting vehicle tires. Doing so protects themselves and their friends and family. Ensure the tire professional involved in the purchase is qualified, has performed a proper inspection of the tire, and is aware of the tire’s history. Also, be sure the tire is not too old for service. In many cases, auto manufacturers warn against using tires that are six years old or older – no matter the tread depth. So, check the age information on the tire to learn the tire’s age.

Beasley Allen lawyers have successfully handled cases involving fatal and non-fatal accidents related to tire failures. Contact Cole Portis or Ben Baker at 800-898-2034 or via the form on this page for more information.

Source: US Tires

Airbag Issue Prompts Nissan To Recall 405,000 Older Models

A recall of 404,690 older Nissan pickup trucks, SUVs and minivans has begun due to a problem with the driver’s airbag module that may cause it to substantially wear out, according to Nissan. USA Today reported that the wear and tear could lead to the emblem’s posts cracking, possibly resulting in the detachment of the airbag’s emblem and retainer components. The detached parts can become projectiles when deployed, increasing the risk of injury.

The automaker confirmed that it knows of at least four injury reports due to the defective airbag and its components and has been working on a repair. It plans to notify owners of the recall by April 10.

Recalled vehicles: 

• 2008-2011 Nissan Titan (75,530)
• 2008-2011 Nissan Frontier (113,313)
• 2008-2011 Nissan Xterra (72,601) 
• 2008-2011 Nissan Pathfinder (70,693)
• 2008-2011 Nissan Armada (43,616)
• 2008-2009 Nissan Quest (28,937)

Source: USA Today

363,000 Tesla Vehicles With Full Self-Driving Systems Recalled

The National Highway Traffic Safety Administration (NHTSA) announced on Feb. 16 that Tesla is recalling nearly 363,000 vehicles in the U.S. The vehicles include the company’s Full Self-Driving (FSD) Beta, an advanced driver assistance system (ADAS). The recall was prompted by crash-risk concerns over how the vehicles operate at intersections and with yellow lights. NHTSA said vehicles equipped with FSD Beta Software “exceed speed limits or travel through intersections in an unlawful or unpredictable manner increases the risk of crash.”

Vehicles included in the recall include certain Model S, Model X, Model 3 and Model Y from model years 2016 to 2023. The vehicles include the FDS Beta Software or are waiting for installation. Tesla said it will release a free, over-the-air software update to improve how FSD Beta handles certain driving maneuvers. NHTSA said:

The FSD Beta system may allow the vehicle to act unsafe around intersections, such as traveling straight through an intersection while in a turn-only lane, entering a stop sign-controlled intersection without coming to a complete stop, or proceeding into an intersection during a steady yellow traffic signal without due caution. The FSD Beta system may respond insufficiently to changes in posted speed limits or not adequately account for the driver’s adjustment of the vehicle’s speed to exceed posted speed limits.

Tesla is implementing the voluntary recall “out of an abundance of caution” but disagrees with NHTSA’s analysis. It confirmed identifying 18 warranty claims between May 2019 and September 2022. The claims may be related to the conditions NHTSA described in the recall. However, Tesla said it isn’t aware of any injuries or deaths related to the conditions described by NHTSA.

NHTSA admitted that the conditions it discussed occurred in “specific and rare circumstances and within the operating limitation of FSD Beta, when the feature is engaged.”

Tesla CEO Elon Musk responded to one user’s tweet calling for a distinction between a recall and software updates. Musk said, “Definitely. The word ‘recall’ for an over-the-air software update is anachronistic and just flat wrong!” 

The engineering organization SAE International sets standards defining six vehicle automation tiers. These standards guide NHTSA, carmakers and developers of autonomous vehicle technology. The standards established a range from Level 0, with no automation, to Level 5, with total vehicle autonomy.

The highest level currently in use and available for direct-to-consumer sales in the U.S. is Level 2 ADAS. It is how Tesla’s Autopilot and its FSD Beta software are classified. Vehicles with Level 2 automation can steer, brake or accelerate without a human driver’s actions when the vehicle’s ADAS is engaged. However, a human driver must remain alert and be able to resume control of the vehicle at any time.

Since August 2021, NHTSA’s Office of Defects Investigation has been examining Tesla’s Autopilot system. The agency launched the probe after a series of crashes between Tesla vehicles and emergency or first-responder vehicles. Stay tuned!

Source: Law360

Judge Approves Hyundai, Kia Engine Fire Settlement

Owners of certain Hyundai and Kia vehicles at risk of an engine fire should soon get some much-needed relief after a federal judge granted preliminary approval of a class action settlement covering 2.1 million vehicles.

U.S. District Judge Josephine Staton in Los Angeles said the proposed deal provides comprehensive compensation for class members. The class action alleges Hyundai and Kia made and sold vehicles with defective engines that can fail unexpectedly or burst into flames during normal operating conditions.

The proposed settlement extends warranties on the class vehicles to 15 years or 150,000 miles. Drivers will receive free inspections and necessary repairs within the warranty period.

Hyundai and Kia will also provide recalls and improvements for some class vehicles and reimburse owners and lessees for certain repairs made at authorized dealers. The automakers will also compensate drivers for inconveniences caused by repair delays and reimburse class members stranded by a qualifying engine failure or fire for transportation, lodging, and meal expenses.

Vehicles covered by the settlement are the 2014-2016 Hyundai Elantra; 2010-2012 Hyundai Santa Fe; 2011-2015 Hyundai Sonata; Hybrid; 2011-2016 Kia Optima Hybrid; 2011-2013 Kia Sorento; and 2014-2019 Kia Soul.

The class members alleged that Hyundai Motor Co. and Kia Corp. knew a defect in the gasoline direct-injection engines had caused hundreds of vehicles to “spontaneously burst into flames.” Yet, the automakers failed to warn drivers, putting them at an “increased risk of accident, injury, or death.”

The class action settlement comes on the heels of another engine fire settlement with Hyundai and Kia. In May 2021, the automakers settled a class action in the same court, providing reimbursements to drivers of affected vehicles valued at up to $1.3 billion.

The drivers are represented by Steve W. Berman and Rachel E. Fitzpatrick of Hagens Berman Sobol Shapiro LLP, Matthew D. Schelkopf and Joseph B. Kenney of Sauder Schelkopf LLC, Gretchen Freeman Cappio, Ryan McDevitt and Adele Daniel of Keller Rohrback LLP, Bonner C. Walsh of Walsh PLLC and Adam Gonnelli.

The case is In Re: Hyundai and Kia Litigation II, case number 8:18-cv-02223, in the U.S. District Court for the Central District of California.

Source: Law360

TRUCKING LITIGATION

Experience And Capacity Of Law Firm Essential In Trucking Litigation: Truck Crash Victims Need an Expert Truck Accident Lawyer

About 20 million motor vehicle accidents occur on average in the U.S. every year. Every experienced personal injury lawyer has seen and likely handled motor vehicle cases. But it’s a game changer when one of these accidents involves a tractor-trailer, semi-truck, or another large commercial vehicle. It’s a reality that many lawyers lack the time, resources or comprehensive understanding of trucking laws and regulations to investigate and successfully litigate truck accident claims appropriately.

Crashes involving commercial trucks are more severe than other traffic accidents and tend to result in more catastrophic injuries and deaths. For perspective, consider the Toyota Camry, one of the most popular car models in the U.S. It weighs about 3,400 lbs. – 23 times less than a fully loaded tractor-trailer. If the truck crash results in a death, 98% of the time, the occupants of a smaller passenger vehicle will sustain fatal injuries. 

This scenario tragically played out in a case Beasley Allen lawyers are handling for the family of a little girl who was killed along with her mother when a tractor-trailer slammed into the back of their 2021 Kia Forte last year. Evidence of the crash confirmed that our client’s vehicle was sitting in traffic at a virtual standstill at the time of the accident. In such a circumstance, the driver should have clearly seen that traffic was stopped and building up in front of him. Indeed, a professional driver is trained to keep a proper lookout and to anticipate hazards before they even develop.

Our investigation confirmed that the driver did none of this. Instead, the tractor-trailer driver was driving at or near the interstate speed limit at the time of the accident on a straight road in otherwise good weather conditions. Clearly, this driver was not paying attention, was distracted, or perhaps much worse. Regardless, a family was wiped off this earth because, as is often the case in these accidents, the force generated from a tractor-trailer crash is similar to a large military bomb detonating. 

While it is easy to look at the tractor-trailer driver’s actions leading up to the accident, there are also crucial commercial vehicle regulations that govern the trucking companies that employ and supervise the drivers. In fact, the root cause of many of these accidents often lies with the trucking companies, whether it is their retention of dangerous drivers or their training, oversight, or disciplinary protocols (or lack thereof) for the drivers. Discovering the trucking company’s role in the accident is paramount to understanding the full liability and damages story, and it is often overlooked by lawyers unaccustomed to litigating these cases.

At Beasley Allen, we have a group of trucking lawyers who litigate these cases nationwide. Each year they recover millions in compensation for victims and their families due to these brutal and devastating accidents. Our firm has the resources and the ability to leave no stone unturned in ensuring we understand the whole story and hold out for as long as it takes to obtain the total value of these cases.

If you need help on a case involving a big truck in an incident involving serious injuries or death, contact Sloan Downes, Director of our Personal Injury & Products Liability Section, at 800-898-2034 or via the form on this page. Sloan will have a Beasley Allen lawyer who handles trucking litigation respond to you.

PRODUCT LIABILITY UPDATE

Hair Relaxer Lawsuit Filed For Georgia Man After Wife’s Death

Beasley Allen lawyers have filed a lawsuit in Georgia on behalf of Lafayette Armstrong, whose wife, Barbara Armstrong, died from uterine cancer linked to her use of L’Oréal, Softsheen-Carson and McBride Research Laboratories hair relaxers for years. Mrs. Armstrong also suffered from endometriosis linked to the use of the hair relaxers. Navan Ward, Aigner Kolom, Ken Wilson and Ryan Beattie represent Mr. Armstrong in the lawsuit. Aigner says:

This lawsuit is about exposing the dangerous products the defendants peddled to unsuspecting consumers like Mrs. Armstrong. Hair relaxer manufacturers, including the defendants, withheld information from Mrs. Armstrong and others about the products’ risks, including an increased risk of cancer. All while benefitting from the hundreds of millions of dollars they made from the lives they put in danger.

Mrs. Armstrong’s cancer and endometriosis were caused by her prolonged exposure to the harmful effects of the hair relaxers manufactured by defendants McBride Research Laboratories, Inc., L’Oréal USA, Inc., USA L’Oréal Products, Inc., Softsheen-Carson Inc., and Softsheen-Carson (W.I.), Inc. Hair relaxers are used to straighten the natural curl pattern in the hair. Most hair relaxers contain toxic chemicals such as formaldehyde, metals, phthalates, and parabens, which are associated with a higher risk of cancer, particularly hormone-sensitive ones.

Mrs. Armstrong used the hair relaxers manufactured by the defendants from the early 1960s to 2018. She passed away on Jan. 28, 2020, due to complications related to her uterine cancer and chemotherapy as a result of using the defendants’ hair relaxer products.

A recent study published by the National Center for Biotechnology Information (NCBI) found that women who used chemical hair straightening products (also called hair relaxers) more than four times per year were more than twice as likely to develop uterine cancer than those who did not.

Hair relaxers are used by the Black community more than any other race. Black people make up about 13% of the U.S. population. However, one estimate shows that African American consumers spend as much as 22% of the $42 billion-a-year personal care products market.

Unknowingly, African American consumers like Mrs. Armstrong are targeted by those in the industry, such as the defendants whose marketing reinforces Eurocentric standards of beauty – straight hair. Additionally, the defendants and other makers of hair relaxers fail to adequately warn consumers of just how unreasonably dangerous these hair relaxers are, even when used for the purpose for which they were designed. Without adequate information from the manufacturers and sellers, including the defendants, an ordinary consumer like Mrs. Armstrong would not know the dangers or risks that led to her death.

The case is Lafayette Armstrong v. McBride Research, et al., filed in the State Court of Dekalb County, State of Georgia, case number 23A00243. Our firm will file many more lawsuits like this in the coming weeks. If you have any questions or need help on a lawsuit, contact one of the Beasley Allen lawyers handling the suit at 800-898-2034.

Dairy Farmer Awarded $6.5 Million Over Injuries In Tractor Case

A jury in a Kansas federal court has awarded Brian Miller, a Kansas dairy farmer, $6.47 million in damages. He had been run over by equipment that sows seeds for crops. The tractor involved had a faulty electronic park brake mechanism. The suit was against CNH America LLC, an agricultural equipment maker. In the verdict, most of the blame — 60% — was assigned to the company and the rest to the farmer.

Plaintiff Miller initially filed suit in October 2020. It was alleged in the complaint:

• A New Holland tractor plaintiff Miller’s father’s company bought second hand pulled a seed drill over him while in the field two years prior.
• Plaintiff Miller had left the tractor to move a piece of debris, and the “!” and “P” icons displayed and an audible tone sounded, signifying the brake was being applied.
• But in reality, the brake didn’t work as expected. The tractor continued moving, pulling the seed drill over Miller and continuing until it struck a hedgerow.
• The tractor manual says the electronic park brake “will automatically engage at key-off or if the operator leaves the seat.”
• Additionally, the tractor displays lit-up “!” and “P” icons and emits an alert tone when the tractor is both moving and not moving and the operator leaves the seat for more than five seconds, signaling that the brake is being applied. The brake does not apply when the tractor is moving.
• Plaintiff Miller suffered serious injuries that included rib fractures, blood loss and acute respiratory failure due to trauma.
• Plaintiff Miller was transported by helicopter to a Wichita medical center and was eventually put in a medical coma.
• His medical expenses totaled nearly $1.7 million.

Jurors found plaintiff Miller sustained $3.5 million in noneconomic loss to date; $1 million in future noneconomic loss at current value; more than $1.47 million in medical expenses to date; and $500,000 in loss or impairment of services as a spouse.

The complaint included claims for negligence, strict liability and breach of implied warranty of merchantability.

Plaintiff Miller was represented by Gaye B. Tibbets, Brad J. LaForge and Don D. Gribble of Hite Fanning & Honeyman LLP.

The case is Miller v. CNH Industrial America LLC, case number 6:20-cv-01293, in the U.S. District Court for the District of Kansas.

Source: Law360

WORKPLACE LITIGATION

Following Proper Protocols Can Help Prevent On-The-Job Injuries Due To Chemical Hazards

Beasley Allen lawyers have handled many on-the-job injury cases involving exposure to hazardous chemicals. They know all too well the hazards that accompany these dangerous products, such as flammability, irritation, and carcinogenicity. To help employers recognize and address chemical hazards, the Occupational Safety and Health Administration (OSHA) has enacted regulations categorized by the type of industry and best practices specific to a particular hazardous chemical.

OSHA requires employers to educate employees about the hazardous chemicals present at the job location, known as the Hazard Communication Standard (HCS). Companies requiring employees to use hazardous chemicals must identify and record the substances on a safety data sheet. They must also educate and train employees to ensure they have all the necessary information about the chemical, especially protective measures.

Further, OSHA guidance mandates the proper way to control exposure at a worksite. Chemical exposure prevention follows a hierarchy similar to sound machine design and guarding to maximize safety. The employer must first eliminate or substitute the hazardous chemical for a safer alternative. If this cannot be done, the employer must implement engineering controls to lessen the risk of exposure, including physical guarding, isolating the chemical, or diluting it to safe levels. Next, an employer must implement administrative and work practice controls. This may require employers to rotate job assignments to prevent workers from overexposure to a hazardous chemical. Finally, employers must supply and require employees to use personal protective equipment (PPE). Regarding exposure, PPE is typically chemical protective clothing, including gloves, eye protection, and respirators.

Lawyers in our Mobile office recently handled a chemical exposure case that caused a contract worker at a paper mill to suffer severe burns that ultimately proved fatal. Unaware that a dangerous gas leak had occurred, the contract worker started the engine of a forklift. A spark from the combustion process ignited the fumes of the leaked gas, causing an explosion and subsequent fire.

The contract worker suffered serious burns to his body, which required numerous medical procedures. His injuries left him confined to a bed and unable to care for himself. Six months later, he died of a heart attack due to his injuries.  Sadly, this explosion would never have happened had the company followed proper protocols, cleared the area and warned workers of the hazard.

If you need more information or help with a case, contact Sloan Downes, Section Director, at 800-898-2034 or by using the form on this page. She will have one of the lawyers in our Personal Injury & Product Liability Section contact you.

On-The-Job Injuries Can Involve Multiple Liable Parties

On-the-job injuries implicate workers’ compensation laws. Third parties like the equipment manufacturer/designer, installers or even product modifiers may be found liable when the defect involves industrial equipment. Additionally, the injured client’s employer and/or co-employees could be liable for removing a safety device if the forum state’s workers’ compensation laws allow direct actions against the offending employer or co-employees. Whether or not a third-party claim is viable will be instrumental in determining whether a client will be fully compensated for their injuries.

Beasley Allen lawyers represent a client injured by an industrial conveyor while on the job in July 2020. On the day our client was injured, his lower leg was entrapped in the conveyor resulting in a traumatic partial amputation of his right foot. Medical providers were forced to further amputate his leg, leaving him with a below-the-knee amputation. 

The Occupational Safety and Health Administration (OSHA) investigation of the incident indicated inadequate guarding. However, after conducting discovery, including taking deposition testimony and obtaining documents from the employer, we amended our complaint to include claims against our client’s co-employees for the willful and intentional removal of safety devices on the equipment responsible for his injury.

Our lawyers determined that the facility’s Maintenance and Safety Department failed to re-install guards that would have prevented our client’s entrapment and subsequent injury. The machine on which our client was injured was one of many at the facility. Other identical pieces of equipment were equipped with the guards provided by the manufacturer. This evidence proves that the co-employees knew, or should have known, that the machinery that injured our client should have been guarded.

The employer purchased the facility within a year of our client’s injury and never conducted a pre-purchase inspection to determine what safety issues needed to be addressed. Additionally, although regular safety inspections were undertaken allegedly, the lack of guarding on the subject machinery was never documented. Unsurprisingly, the defendants blame our client for his injury, arguing he was not wearing approved footwear.

When asked if they had any evidence that approved footwear would have prevented his injury, the defendants admitted they had no evidence different footwear would have prevented the drive components from severing his foot. Simply put, the cause of his injury was not the worker’s footwear but the lack of guarding designed to prevent harm to employees working on or around this machinery. 

Often, our lawyers file claims against a manufacturer for lack of guarding. In this matter, the manufacturer provided guarding as required by industry safety standards. The employer and our client’s own co-employees failed him by violating federal and state laws requiring them to provide a safe workplace for all employees. Incidentally, our client’s tragic injury event was the second within 20 days that OSHA investigated at this particular location. The first incident, unfortunately, was fatal to the worker. It also involved industrial machinery.

Discovery continues in our client’s case, and we expect to have a trial date soon. Our client is adjusting to life with a prosthesis, has difficulties coping with his new normal, and has not yet found employment. Statistics show that persons with an obvious disability will find it significantly more difficult to find work given the limitations of having a below-the-knee amputation.

While they know this litigation cannot give our client what he lost, our lawyers will endeavor to hold the wrongdoers responsible for their conduct and to compensate the client for his losses, including, but not limited to, his financial loss, loss of enjoyment of life and extensive past and future medical expenses.

We will update this matter once a trial date is obtained.  If you have any questions or need help on a case involving workplace injuries or a death, contact Kendall Dunson at 800-898-2034 or via the form on this page.

PREMISES LIABILITY LITIGATION

Liability of Landlord for Injuries To Tenant Or Guest Of Tenant Where Landlord Retains Control Of Premises

Lawyers in our firm’s Montgomery, Atlanta and Mobile offices have handled a large number of premises liability cases over the years. These can include instances in which a tenant or a tenant’s guest sustains injuries due to a hazardous condition on a leased premises. While generally a landlord is not liable to third persons for damages resulting from the negligence of a tenant, the landlord is still responsible for keeping the premises in good repair. See O.C.G.A. § 44-7-14.

Moreover, Watson v. Dana determined that “[a] landlord that retains control over [a] leased premises…may be liable even without notice of the defect, if, in the exercise of ordinary care, he should have known of it.”

For this foreseeability standard to apply, however, the plaintiff must be able to show some evidence of retained control. For example, in Watson, the Georgia Court of Appeals held that there was a genuine issue of material fact as to whether a landlord retained control over the back yard of a rental home where there was evidence that the landlord had agreed to provide maintenance for the yard and sent someone to the yard to perform said maintenance. Practitioners should look for similar evidence of retained control in any such cases to leverage the constructive (as opposed to actual) knowledge requirement.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these types of cases and numerous other premises liability cases, including those involving injuries or death due to negligent security. If you have any questions about these cases, you can contact them at 800-898-2034 or via the form on this page.

Class Action Litigation

New F-150 Brake Defect Class Filed

Dee Miles, Clay Barnett, Mitch Williams, Dylan Martin, and Rebecca Gilliland, lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, have filed a new class action that expands a very important existing class action lawsuit against Ford Motor Company (Ford) filed in the Eastern District of Michigan. Our Texas plaintiffs allege that Ford equipped its 2019 F-150 trucks and 2015-2019 Expeditions and Lincoln Navigators with defective Hitachi-manufactured step-bore brake master cylinders that can suffer unexpected hydraulic pressure loss, resulting in a longer stopping distance and increased risk of a vehicle crash.  The particular vehicles are not present in the existing F-150 Brake Defect class action.

The complaint in the new case details plaintiff Terry Klepac’s 2019 F150 master cylinder failure and his resultant harrowing crash. In August 2022, as Mr. Klepac and his wife approached the driveway to their home, the F150 spontaneously and without any visual or audible warning lost hydraulic brake pressure. Mr. Klepac applied full leg force to the brake pedal pressure, but instead of entering their driveway under control, the couple slammed into the front of their home. The impact caused significant damage to both the vehicle and their home. Mr. Klepac’s F150 was well cared for, with only 28,000 miles on the odometer at the time of the crash.

Mr. Klepac’s complaint expands the universe of vehicles Ford should acknowledge and correct. We will develop discovery in this new action and add that to our existing collection of evidence that demonstrates Ford’s knowledge of failure to correct this dangerous defect.

These trucks, no matter the engine package, are at risk for either external brake fluid escape or internal brake fluid bypass, both of which cause loss of the front brakes and shift the responsibility of braking on the rear brakes.  Both brake pressure failure mode creates a sudden hazard for occupants in the disabled F150 and for other vehicles on the road in the path of a runaway truck. Ford contends that these serious safety hazards are best resolved with underinclusive serial recalls or routine trips to the dealership for service.  Ford is wrong and putting people in danger.

On April 8, 2022, U.S. District Court Judge Gershwin A. Drain held that plaintiffs’ defect claims were suitable for a consolidated jury trial by certifying a Rule 23(c)(4) issues class for all persons who purchased or leased in Alabama, California, Florida, Georgia, and Texas a 2013-2018 Ford F-150 equipped with a Hitachi made step-bore master cylinder not included in Safety Recall 20S31. Judge Drain held that common questions of fact exist and warrant a jury’s decision—namely, whether there is a Brake System Defect in the class vehicles, whether Ford had pre-sale knowledge of the Brake System Defect, and whether the Brake System Defect is material. 

Beasley Allen lawyers and their co-counsel notified owners and lessees of all 2013-2018 F150 trucks in Alabama, California, Florida, Georgia and Texas of the pending class action trial. 

In addition to the Beasley Allen lawyers, the other lawyers representing the plaintiffs are E. Powell Miller, Sharon S. Almonrode, Dennis A. Lienhardt from the Miller Law Firm PC, in Detroit, MI;  Adam J. Levitt, John E. Tangren, Daniel R. Ferri and Dicello Levitt from Chicago, IL; Mark P. Chalos, Annika K. Martin and Phong D. Nguyen from Lieff Cabraser Heimann & Bernstein, LLP located in Nashville, TN,  New York, NY and San Francisco, CA.

Dee Miles, our Consumer Fraud & Commercial Litigation Section head, was appointed by the court as Co-Lead Class Counsel and Class Representative under the Federal Rule of Civil Procedure 23(g).

If you need more information or help with a case, contact Michelle Fulmer, Section Director, and she will have one of our lawyers contact you. You can reach her at 800-898-2034 or by using the form on this page.

Georgia Justice’s Concurrence Questions Court’s Reliance on Government Deference Precedent

Georgia Supreme Court Presiding Justice Nels S.D. Peterson wrote a 26-page concurrence calling on the state’s highest court to reconsider how much deference is given to government agencies when interpreting state laws. He opined that the court puts too much weight on the U.S. Supreme Court’s landmark decision in Chevron, U.S.A. Inc. v. Natural Resources Defense Counsel, Inc., which held that courts should defer to a federal agency’s reasonable interpretation of ambiguous federal statutes.

Justice Peterson found the Georgia Supreme Court’s hands tied in the case in question, Cazier v. Georgia Power Company, due to the law of the case doctrine, which precludes Georgia appellate courts from making a finding contradictory to prior findings made within the same case.  See O.C.G.A. § 9-11-60(h).  He nevertheless encouraged the Georgia Supreme Court to reconsider its positions on deference at the right opportunity in the future. 

In support of his concurrence, Justice Peterson analyzed the court’s historic decisions on deference and the Georgia Constitution.  His concurrence was grounded in the “good points” made by Cazier’s counsel that interpreting the law is the role of the courts and that judicial deference to the executive branch on legal interpretations poses a risk to the separation of powers. He noted that the Georgia Constitution’s Separation of Powers Provision has been carried forward through every Georgia Constitution since 1877.  He then embarked on an analysis of the court’s deference decisions, which he called “messy.”  Per Justice Peterson, “our precedent is all over the place and has been for nearly the entire existence of our court.” 

In 2014, the Georgia Supreme Court held in the Cook et al v. Glover opinion for the first time that our judicial deference to agency decision-making was aligned with the United States Supreme Court’s Chevron deference. The Georgia Supreme Court “doubled down” on its Chevron approach the following year in the Tibbles v. Teachers Retirement System of Georgia opinion.  However, Justice Peterson explained that the cases cited by the Georgia Supreme Court in the Cook opinion do not set forth such a binding approach to agency interpretation and deference.  Instead, the cases cited by Cook set forth far less rigid and less deferential approaches.  They “diverge from each other – and the federal regime – in numerous and important ways.”  Their justifications vary, the force or strength of deference is inconsistent, and some cases suggest appellate courts defer only to longstanding interpretations. 

Because of the law of the case doctrine, the Georgia Supreme Court could not reconsider the approach set forth by the Glover or Tibbles opinions in this case, but Justice Peterson encouraged the court to reconsider Georgia Supreme Court precedent on agency deference in an appropriate case.

If you have any questions, contact Alyssa Baskam, a lawyer in our Atlanta office, at 800-898-2034 or by using the form on this page.

Illinois Supreme Court Gives BIPA Claims 5-Year Time Limit

The Illinois Supreme Court has ruled that individuals have five years to file a claim under the Biometric Information Privacy Act (BIPSA), saying the lower appellate court was wrong in ruling that “the state’s one-year privacy limit governed BIPA claims brought under Section 15(c)’s profit restrictions and Section 15(d)’s dissemination prohibitions. The court’s ruling applies the state’s “catchall” five-year limitation period to those claims, along with those under BIPA’s 15(a) retention policy, Section 15(b) informed consent and Section 15(e) data safeguarding requirements.”

While the court considered arguments for applying the one-year limit to some of BIPA’s provisions valid, it noted two limitation periods could cause litigants confusion about when claims are time-barred. In a particular case, a defendant known as Black Horse asserted the one-year limit should govern each of BIPA’s subsections because the word “for” means “in relation to or concerning,” and that BIPA claims clearly relate to and concern published privacy violations, regardless of whether the publication is a core element of the allegation.

“BIPA’s profiting and dissemination restrictions contain words like ‘lease’ and ‘disclose’ that could reasonably invoke the statutory one-year limit for privacy claims,” according to the justices. However, they said it is more appropriate to apply the state’s default five-year limit to BIPA when broadly considering the statute and its intentions. The justices said further:

Giving Section 15(c) and Section 15(d) a one-year limit would do little to support lawmakers’ findings that the full ramifications of biometric technology are still unknown, and that individuals are largely weary of using biometrics when that uniquely personal data is tied to financial or other personal information.  Applying a one-year limit to some BIPA claims would frustrate legislative intent by shortening the time limit in seeking relief from a private business’ BIPA noncompliance.

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are available and ready to review potential BIPA violations. You can contact lawyers on our litigation team if you know your biometric information is collected or disclosed without your consent. Contact Michelle Fulmer, Section Director, and she will have a lawyer contact you. Michelle can be reached at 800-898-2034 or by using the form on this page.

$26 Million Deutsche Settlement Linked To Epstein Approved

A $26.3 million settlement between Deutsche Bank and some of its investors obtained final approval from a New York federal court judge last month. The settlement ends a lawsuit brought by the investor class over the bank’s interactions with convicted criminals like Jeffrey Epstein. Dealings with those like Epstein caused the bank’s stock price to fall.

U.S. District Judge Jed S. Rakoff’s final judgment awarded $7.8 million in attorneys’ fees for plaintiffs’ lead counsel from Pomerantz LLP, $689,000 in legal expenses and a $20,000 compensatory award for each lead plaintiff.

Emma Gilmore of Pomerantz LLP considers the settlement a great result, accounting for about 50% of the recoverable damages. She said:

The settlement is… well-warranted given Deutsche Bank’s egregious alleged misconduct, including permitting convicted sex offender Jeffrey Epstein to use the bank’s services to further his crimes repeatedly. The premium Pomerantz extracted on behalf of investors should serve as an important legal precedent to deter financial institutions from enabling the wealthy and powerful to commit crimes in return for financial benefits to the institutions.

In October, Judge Rakoff certified a class of Deutsche Bank investors and preliminarily approved the settlement.

The investors filed suit in July 2020, alleging loss of stock value due to the bank’s problematic internal controls. The Federal Reserve had previously announced that the bank had insufficient processes to prevent money mismanagement and crimes like money laundering.

New York’s financial regulator also fined Deutsche Bank $150 million in 2020 after the bank failed to review transactions linked to Epstein and others that should have raised red flags.

Judge Rakoff dropped claims against the former and current chief financial officers of Deutsche Bank this past May but allowed the suit against the bank to proceed.

Jeremy Lieberman, Emma Gilmore, Dolgora Dorzhieva and Villi Shteyn of Pomerantz LLP and Peretz Bronstein of Bronstein Gewirtz & Grossman LLC represent the investors.

The case is Karimi v. Deutsche Bank Aktiengesellschaft et al., case number 1:22-cv-02854, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

$53.5 Million Settlement Approved For United Flight Attendants Over Inaccurate Pay Stub Claims

A class of United flight attendants received initial approval of a $53.3 million settlement with United Airlines. The class of plaintiffs claimed that inaccurate pay stubs issued by the defendant violated the labor code and sought civil penalties under California’s Private Attorneys General Act (PAGA), according to Law360.

United agreed to settle with the flight attendants after Judge Gutierrez granted them a partial summary judgment. Judge Gutierrez ruled that United violated California law when it failed to disclose the hourly wages to the flight attendants on their pay stubs.

United argued that it wasn’t legally required by California labor laws to provide hourly rates to the flight attendants on their pay stubs because the company doesn’t pay flight attendants by the hour. The airline also argued that its “pay advice” included in some paychecks combined with the flight attendant’s monthly pay register and the workers’ collective bargaining agreement meets the legal pay stub requirements. However, the judge rejected this argument.

In 2015, Felicia Vidrio and Paul Bradley filed separate lawsuits, which were consolidated. U.S. District Judge Philip S. Gutierrez in California certified the class of flight attendants in 2016 but ruled against the class in 2017. Judge Gutierrez determined that California law couldn’t be applied in the case because the flight attendants did not work primarily in California, and United is not headquartered in the state.

The California Supreme Court rejected Judge Gutierrez’s reasoning in Charles Ward’s case. Ward was another United flight attendant with similar claims to Vidrio and Bradley’s. The state’s high court held that the flight attendants are based out of California, and the California PAGA law applies to the claims.

In 2021, the Ninth Circuit Court of Appeals revisited the class action claims in response to the California Supreme Court’s ruling in Ward’s case. The Ninth Circuit panel remanded the case to Judge Gutierrez, who revised how the class was defined. The new definition included all California-based United flight attendants who began working for the company on Aug. 6, 2014, or after and either worked the majority of their time in California or did not work in any other one state for a majority of their time with the company.

The settlement received initial approval on Feb. 6. The settlement is “non-reversionary” and includes attorney fees, service awards for each class representative and a $300,000 PAGA settlement, bringing the total available to class members down to $35 million, Law360 reported. The settlement will be distributed on a pro-rata basis.

In his order last month, Judge Gutierrez noted that if the class had received recovery at trial, each member’s award would have been capped at $4,000. Further, the plaintiffs estimated the highest possible value of their claims would be approximately $43.5 million. He said:

Comparing this to the gross settlement amount of $53.5 million and net settlement amount of roughly $35.2 million, the settlement represents between 81% and 100% of the class members’ maximum potential recovery at trial. This is well within the range of possible approval.

Further, Judge Gutierrez determined the process used to calculate each class member’s payment from the settlement to be reasonable and fair. He also found that the distribution of payments will be proportionally based on the number of wage statements a class member received during the class period. Judge Gutierrez said further:

It is also important to note that the settlement specifically provides that the gross settlement amount is non-reversionary and that no employer-side payroll taxes will be deducted from the settlement amount. And the court recognizes a significant non-monetary benefit of settlement approval — specifically, defendant’s remedial measures to bring future wage statements into compliance with California Labor Code.

Class members include all flight attendants employed by United and based at a California airport between August 2014 and March 31, 2023. They will receive an average net recovery of approximately $3,240. After distribution to class members, the remaining funds will be given to Legal Aid at Work, the cy pres recipient.

Judge Gutierrez’s order provides:

• Class counsel must justify its request for one-third of the gross settlement amount, or about $17.8 million, plus $110,000 in litigation costs, an upward departure from the federal benchmark.
• The judge can’t determine whether the request for $110,000 in costs is reasonable because the plaintiffs didn’t provide any support for that number.
• The plaintiffs must justify their requests for $20,000 service awards for the two class representatives, Felicia Vidrio and Paul Bradley.

A final hearing has been set for June.

Kirk D. Hanson and Jeffrey C. Jackson of Jackson Hanson LLP represent the workers.

The case is Felicia Vidrio et al. v. United Airlines Inc. et al., case number 2:15-cv-07985, in the U.S. District Court for the Central District of California.

Source: Law360

Investors, Wells Fargo Reach $300 Million Auto Insurance Deal

Wells Fargo agreed last month to pay $300 million to settle a class action lawsuit brought by shareholders who alleged the bank pushed unnecessary and costly auto insurance on its auto loan customers, then tried to sweep the matter under the rug. The class of investors suing the bank has asked a California federal judge to sign off on the deal.

The Construction Laborers Pension Trust for Southern California, the class representative, said the proposed settlement recovers about 31% — 47% of the estimated damages resulting from the alleged fraud.

The class of investors sued Wells Fargo in 2018, alleging the bank pushed more than 800,000 of its customers into unnecessary auto-collision insurance plans. Investors claimed Wells Fargo engaged in the insurance fraud for nearly a decade. They also alleged that knowledge of the practice went to the top.

In Nov. 2016, then-CEO Timothy Sloan, also a defendant in the case, made misleading statements indicating he didn’t know of the practice, the investors alleged. Sloan told analysts he wasn’t aware of any problematic issues beyond the bank’s practice of opening unauthorized credit card and deposit accounts in its customers’ names.

But in July 2017, The New York Times broke a story that Wells Fargo bank execs knew the company had improperly charged auto loan customers for the insurance. The news outlet cited an internal report showing that over a quarter million customers fell into delinquency, and about 25,000 drivers wrongfully had their vehicles repossessed.

A week after The New York Times published the story, Wells Fargo filed documents with the U.S. Securities and Exchange Commission disclosing the auto insurance issues.

The proposed settlement came days before the case was set to go to trial on Feb. 27. The class includes anyone who bought Wells Fargo shares between Nov. 3, 2016 – the date Sloan made misleading statements to analysts – and Aug. 3, 2017, the day before it disclosed the insurance issues to the SEC.

Construction Laborers Pension Trust for Southern California is represented by Spencer Burkholz, Jason Forge, Scott Saham, Lucas Olts, Ashley Kelly, Kevin S. Sciarani, Erika Oliver and Jason Davis of Robbins Geller Rudman & Dowd LLP.

The case is Purple Mountain Trust v. Wells Fargo & Co. et al., case number 3:18-cv-03948, in the U.S. District Court for the Northern District of California.

Sources: Law360, Reuters and BankingDive.com

U.S. Steel Investors’ Lawyers Seek Class Action Fees

Lawyers representing a class of investors who reached a $40 million settlement with U.S. steel last year, resolving claims the company harmed investors, have asked a Pennsylvania federal judge for $16 million in fees and expenses.

Plaintiffs submitted documents supporting their counsel’s bid for $13.3 million in fees – a third of the settlement fund – and $2.7 million in expenses. The documents say the fees are logically calculated and reasonable. The plaintiffs also asked the court to award the two lead plaintiffs in the class action a total of $80,000.

The class action lawsuit, filed in 2017, alleged that U.S. Steel unlawfully inflated its stock values by making false statements and misleading investors about its production capacity. The company said it had the capacity to meet demand when market conditions improved due to a proactive and sustainable maintenance program it had instituted.

In actuality, the suit alleged, U.S. steel pushed a “don’t buy, get by” approach to cut costs, only purchasing materials when it was absolutely critical to do so and rigging equipment to keep it operational instead of paying for repairs and replacements. This strategy resulted in ongoing and costly outages caused by equipment failures. Plaintiffs say production declined 20% because of the unexpected outages, causing profits to tank. They also allege the investor class suffered additional harm when the truth about these matters became publicly known.

The court scheduled a final hearing on the settlement agreement on March 20, 2023. The court will also consider whether to approve the attorney fees and expenses requested by the lead counsel.

The class is represented by Vincent A. Coppola of Pribanic & Pribanic and Shannon L. Hopkins, Gregory M. Potrepka, David Jaynes and Michael J. Keating of Levi & Korsinsky LLP.

The case is In re: U.S. Steel Consolidated Cases, case number 2:17-cv-00579, in the U.S. District Court for the Western District of Pennsylvania.

Source: Law360

Judge Gives Initial Approval For $48 Million Settlement In Libor-Rigging Case Against 3 Banks

U.S. District Judge Sidney H. Stein in New York gave initial approval to class action settlements equaling nearly $48 million involving three investment banks. Class members are investors who say the banks, including Credit Suisse Group AG, wrongfully influenced the Swiss franc Libor-based derivatives. The plaintiffs claim the defendants’ actions continued for a decade, “tipping the market in their favor every trading day.” The other banks are Natwest Markets PLC (previously known as Royal Bank Of Scotland PLC) and Deutsche Bank AG.

Last summer, the class of investors requested Judge Stein’s approval of a proposed $21 million settlement with NatWest, $13 million with Deutsche Bank and $13.75 million with Credit Suisse. Judge Stein preliminarily approved those proposed settlements last month and scheduled a fairness hearing for later this year in August. During the August hearing, Judge Stein will determine if he will give final approval to another investor lawsuit. The other lawsuit originated in 2017 between investors and JPMorgan Chase & Co., requiring the bank to pay $22 million to end similar claims.

The class filed the lawsuit in 2015 but was dismissed three times before being remanded to Judge Stein in 2021 by the Second Circuit. The higher court rejected the dismissal of the case on issues of standing.

A fifth bank and a group of investors named in the lawsuit requested Judge Stein to dismiss the plaintiffs’ third and latest amended complaint in January. The defendants say that the newest version of the complaint failed to address “myriad deficiencies” not addressed in earlier versions of the lawsuit.

The investors are represented by Vincent Briganti and Geoffrey M. Horn of Lowey Dannenberg PC. The case is Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG et al., case number 1:15-cv-00871, in the U.S. District Court for the Southern District of New York.

Source: Law360

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers remain 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.

THE WHISTLEBLOWER LITIGATION

Supreme Court Agrees To Analyze FCA’s Scienter Standard

In January, the U.S. Supreme Court agreed in a landmark ruling to assess whether the False Claims Act (FCA) covers compliance lapses with “objectively reasonable” explanations, a central question in FCA cases related to the issue of proving that improper billing occurred knowingly. Law360 reported:

The justices set the stage for the milestone decision by taking up two cases out of the Seventh Circuit, where panel rulings shielded the food-and-pharmacy chains SuperValu Inc. and Safeway Inc. from FCA liability for allegedly fraudulent billing involving prescription drugs. The circuit court’s 2-1 decisions rejected liability because the misconduct reflected reasonable views of compliance obligations, disregarding calls to examine whether those views were held in good faith.

In both cases, the justices are asked to consider “whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.” The FCA’s scienter standard requires that the defendant commit fraud knowingly or with “reckless disregard” or “deliberate ignorance” of the truth for liability to attach.

In the SuperValu and Safeway cases, former pharmacists for the respective defendants alleged that the supermarket chains overcharged Medicare and Medicaid for generic drugs by failing to include all available discounts they offered to retail customers in the “usual and customary” pricing. But the Seventh Circuit held that both retail chains had made “objectively reasonable” determinations of U&C pricing under an ambiguous regulation, even if their interpretation was incorrect. U.S. Circuit Judge David F. Hamilton dissented in both decisions, arguing that the majority had essentially made “subjective bad faith ‘irrelevant’ in fraud cases” and built “a safe harbor for deliberate or reckless fraudsters whose lawyers can concoct a post hoc legal rationale that can pass a laugh test.”

The U.S. Solicitor General and Sen. Chuck Grassley (R-Iowa), the modern FCA’s architect, also urged the Court to grant the petition, contending that the Seventh Circuit’s rulings could shield evidence of deliberate fraud.

Granting the two petitions is a rare occurrence of the Supreme Court considering multiple FCA cases in a single term. The Supreme Court previously considered whether the government should be barred from dismissing an FCA case in which it initially declines to intervene.

If you have any questions, contact Tyner Helms, a lawyer in our Consumer Fraud & Commercial Litigation Section.

Source: Law360

Labcorp To Pay $19 Million In 10-Year-Old False Claims Act Case

Laboratory Corp. of America Holdings (Labcorp) will pay $19 million to resolve claims the company participated in a kickback plan, according to two whistleblowers who alerted the government of the conspiracy.

Whistleblowers Scarlett Lutz and Kayla Webster say they will each receive a portion of the $19 million settlement. A judge dismissed the False Claims Act (FCA) case in November, but the settlement wasn’t revealed until last month.

Lutz and Webster also accused Health Diagnostic Laboratory Inc. (HDL) and Singulex Inc. of providing kickbacks to healthcare providers. Those two companies were not defendants in the current suit. Lutz and Webster said Labcorp would then offer blood draws to those providers.

The whistleblowers claimed that HDL and Singulex would label kickbacks as fees, paying them to providers in exchange for “lucrative referrals.” Labcorp participated by providing blood draws to providers receiving kickbacks, expecting referrals in return.

Webster, a nurse, previously worked for a doctor receiving kickbacks from HDL and Singulex. Lutz, a business owner, worked for the same doctor.

Pamela Coyle Brecht, who represents Lutz and Webster, described her clients as “hard-working people from a small town in South Carolina, not highly paid laboratory industry executives.” She said:

Together, they did the scary and difficult thing: they brought their concerns to the government. We are so very proud to have fought the good fight for them. Being a whistleblower, committing yourself to the long process of bringing and succeeding in FCA litigation without the government’s direct assistance is very difficult both professionally and personally.

Beth B. Richardson of Robinson Gray Stepp & Laffitte LLC, Marc S. Raspanti, Pamela Coyle Brecht and Michael A. Morse of Pietragallo Gordon Alfano Bosick & Raspanti LLP and Stephen Shackelford Jr., Steven M. Shepard, Jonathan Ross and Amy B. Gregory of Susman Godfrey LLP represent Lutz and Webster.

The case is United States ex rel. Lutz et al. v. Laboratory Corp. of America Holdings, case number 9:14-cv-03699, in the U.S. District Court for the District of South Carolina.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers continue to be heavily involved in handling whistleblower cases. Fraudulent conduct in corporate America continues to cause huge problems in many industries in this country. Fortunately, we significantly increased our healthcare whistleblower practice months ago. Our lawyers continue to handle cases throughout the country involving fraud against governments at both the federal and state levels.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below.

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 Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can be reached by phone at 800-898-2034 or by using the form on this page.

INSURANCE LITIGATION

Eleventh Circuit Backs Coverage Ruling for Alabama Tree-Clearing Company

The Eleventh Circuit affirmed an Alabama federal court ruling that a “mom and pop” tree-clearing company based in Elmore County, Alabama, was entitled to coverage from Frankenmuth Mutual Insurance Co. The lawsuit was filed by a driver who was seriously injured when a cut tree limb flew through the air and pierced her windshield as she was traveling on a Georgia highway. Beasley Allen lawyers Dana Taunton and Cole Portis represented the injured driver, Courtney Ford, and Ashton Ott of Farmer Price in Dothan, Alabama, represented the tree-clearing company Brown’s Clearing Inc.

The case is based on a July 2018 incident involving a subcontractor hired by Brown’s Clearing Inc. Courtney Ford was traveling on I-75 in Bartow county, Georgia, when the fallen tree limb injured her. No Brown’s Clearing employees were on the scene at the time of the incident, and the subcontractor never informed Brown’s Clearing of the incident.

In January 2019, Courtney and Breon Ford filed a lawsuit against another tree-cutting service and Georgia Power, who were also working at the site at the time of the incident. The Fords amended the complaint in May 2019, naming Brown’s Clearing as a defendant. Brown’s Clearing said they weren’t notified of the lawsuit until two months later.

On July 26, 2019, seven days after learning about the lawsuit, the Browns submitted a claim to Frankenmuth. In August 2020, the insurance company sued Brown’s Clearing seeking a declaration that it had no duty to defend or indemnify Brown’s Clearing because the tree-clearing company did not provide written notice of the claim within the time specified in its policy. The Browns argued that they didn’t immediately learn about the incident and filed their insurance claim seven days later. Our clients, the Fords, intervened in the lawsuit brought by the insurance company against Brown’s Clearing to help the tree-clearing company obtain the insurance coverage for their claim.

Both parties cross-motioned for summary judgment. An Alabama federal court ruled in favor of Brown’s Clearing. Frankenmuth appealed to the Eleventh Circuit, which affirmed the lower court’s decision.

Dana had this to say about the Eleventh Circuit Court’s ruling:

Despite Brown’s Clearing paying its premiums for years, the insurer tried to avoid potential payment of a legitimate claim on some bogus technicality. We are pleased that the district court and the Eleventh Circuit saw through the insurance company’s frivolous arguments. Courtney Ford was severely injured, and without this victory, she would have no chance of recovery. Now she has a chance.

If you have any questions, contact Dana Taunton at 800-898-2034 by using the form on the bottom of this page.

Source: Law360

SECURITIES LITIGATION

SEC Enforcement Against Auditors Are Expected To Increase In 2023

In the wake of the Enron, Tyco, WorldCom and other corporate accounting scandals in which shareholders lost billions of dollars, Congress enacted the Sarbanes-Oxley Act of 2002. The Act, among other important reforms, requires that public corporations’ financial statements be audited by independent and qualified auditors who, in compliance with professional auditing and accounting standards, will take the requisite measures to ensure the financial statements are free from material misstatements and accurately report financial results.

Section 602(e) of the Sarbanes-Oxley Act authorizes the Securities & Exchange Commission (SEC) to seek relief against an individual auditor or audit firm that has intentionally, willfully or negligently violated professional auditing or accounting standards. Specifically, SEC Practice Rule 102(e) applies when a professional is deemed “not to possess the requisite qualification to represent others,” “to be lacking in character or integrity or to have engaged in unethical or improper professional conduct,” or “to have willfully violated, or willfully aided and abetted the violation of any provision of the Federal securities laws or the rules and regulations thereunder.” 17 CFR § 201.102(e)(1).

For auditors who violate Rule 102(e), the SEC issues cease-and-desist orders, imposes fines, and permanent or temporary suspensions from appearing or practicing before the SEC for a set number of years. This has a chilling but positive effect on the financial industry and its reporting requirements.

In 2013, the SEC announced Operation Broken Gate to crack down on individual auditors and auditing firms who violated auditing or accounting standards. Under Operation Broken Gate, the SEC settled a variety of Rule 102(e) cases, but the number of such settlements and enforcement actions decreased over the years, especially during the Trump administration. Those numbers were expected to increase under the Biden administration.

In 2022, the SEC charged or settled with eight auditors under Rule 102(e) and commenced 13 enforcement actions against auditors and audit firms. While these numbers are far lower than in the years immediately following the launch of Operation Broken Gate – for example, there were 28 settlements and 44 enforcement actions in 2015 – 2022 – they are notable because the SEC imposed a $100 million penalty on Ernst & Young in connection with its employees cheating on ethics exams, which is the largest penalty ever levied by the SEC on an audit firm. 

The SEC also entered into a settlement with the auditing firm of CohnReznick LLP and certain of its individual auditors who were charged with violating professional standards. The SEC imposed a first-of-its-kind undertaking on the firm as part of the settlement, which experts believe may be used as a guide for future settlements. For example, ConhReznick cannot take on a new client if the new audit client already has a material weakness in its internal controls or the new audit client conducts a majority of its operations outside the U.S. unless its foreign operations are audited by an audit firm that is registered with the Public Company Accounting Oversight Board. The restrictions will stay in place until the firm complies with professional standards, as confirmed by an independent compliance consultant. The firm was fined $1.9 million by the SEC, while individual auditors paid fines of $20,000 or $30,000.

On Oct. 11, 2022, Paul Munter, the SEC’s chief accountant, issued a statement titled “The Auditor’s Responsibility for Fraud Detection.” He “remind[ed] auditors to fulfill their professional responsibilities by applying an appropriate fraud lens throughout the audit … so that the auditor has obtained reasonable assurance that there is no material misstatement to the financial statements caused either by fraud or error.”

The SEC’s enforcement activities in 2022, coupled with its continued emphasis on eradicating fraud in financial statements by requiring strict adherence to professional auditing and accounting standards, lead experts to expect that SEC enforcement actions against auditors will increase in 2023.

Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section remain committed to stopping these types of abuses in the financial industry. Should you know of some suspicious activities involved with financial reporting, we encourage you to seek legal advice. Our financial industry fraud lawyers, Dee Miles, Demet Basar, James Eubank and Lance Gould, are ready to assist. If you need help with a case, contact Michelle Fulmer at 800-898-2034 or by using the form on this page, and she can put you in touch with a lawyer.

Source: Securities and Exchange Commission

Beasley Allen Securities Litigation Team

Lawyers in our firm remain very active in securities cases. This area of our practice continues to grow. We anticipate there will be 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: 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 at 800-898-2034 or by using the form at the bottom of this page.

THE ASBESTOS LITIGATION

Asbestos Litigation: The “Bare Metal” Defense

In the world of asbestos litigation, there are few defenses as well known and utilized by defendants than the “bare metal” defense. The defense, in a nutshell, is simple.  Defendants who manufactured and sold “bare metal” products without any asbestos argue that they should not be held liable for asbestos exposures and injuries involving their products.  This is despite them knowing at the time of the manufacture and sale of the product that end users incorporated asbestos-containing materials into the products.  In fact, many of these products would not work without these asbestos component pieces.  This scenario exists in all sorts of asbestos cases, such as valves and pumps manufactured out of metal. Later, asbestos-containing gaskets, packing and insulation were added to the products. 

For decades, courts nationwide were split on the bare metal question. However, in 2019, the U.S. Supreme Court rejected the bare metal defense under federal maritime law, resolving a circuit split on the issue. The Supreme Court held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.” Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019).  However, there is still a split within numerous state courts and whether the DeVries case applies to non-maritime cases. 

Knowing the particular law in the varying jurisdictions is absolutely crucial to working up the case to ensure that all parties are held responsible according to the law of that state.  A recent witness in a recent case provided much-needed evidence to help ensure that the requirements of the state were met so that settlements could be obtained.  Without understanding the law of that state, the defendants, who were aware that asbestos would be used with their products, could have avoided being held responsible for their past actions. 

If you have any questions, contact Charlie Stern.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to increase, and case filings are spreading nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation. So, he was 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 phone at 800-898-2034 using the form on the bottom of this page.

MASS TORTS LITIGATION

Litigation Update – CPAP MDL

The recall of Philips Respironics CPAP and BiPAP machines was initiated voluntarily on June 14, 2021. Since then, more than 15 million devices have been deemed at risk for causing cancer, asthma, and even death. In anticipation of litigation and given common questions of fact, a multidistrict litigation (MDL) commenced in the Western District of Pennsylvania before Judge Joy Flowers Conti.

On Dec. 12, 2022, Pretrial Order #29 dictated the deposition protocol for all pending cases and those that will be transferred to the MDL. The order does not apply to case-specific depositions, including the plaintiff’s deposition. The number and timing of case-specific depositions will be outlined in subsequent orders, which have not yet been issued. Notably, “[p]laintiffs collectively may take 60 depositions of fact witnesses currently or formerly employed by [d]efendants, and 70 hours of deposition testimony.”

According to Pretrial Order #30, monthly status conferences have been scheduled to “promote the just, speedy, and inexpensive resolution of the cases that comprise the ,,, multidistrict litigation.” Two business days before each conference, an agreed-upon agenda and timeline will be filed by the plaintiff’s and defendant’s counsel for each conference. The first will be held on April 20, 2023.

Beasley Allen lawyers are investigating claims for the users of the recalled CPAP machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information, contact Melissa Prickett or Alexa Wallace at 800-898-2034 or by using the form on this page.

Sources: Judicial Panel on Multidistrict Litigation and U.S. District Court for the Western District of Pennsylvania

Infant Formula Litigation Update

Beasley Allen lawyers continue to investigate and file infant formula cases for children who have suffered from necrotizing enterocolitis due to being fed bovine-derived infant formula immediately after birth. Giving “cow’s milk” formula to premature, underweight newborns dramatically increases their risk of developing this life-threatening condition.  Virtually every pediatric health organization in the world agrees with this fact. They strongly encourage mothers to breastfeed their newborns if possible or use human donor milk when breastfeeding is not feasible. Non-cow’s milk formulas are the third recommended option.  

Federal lawsuits against Mead Johnson (maker of Enfamil products) and Abbott Laboratories (maker of Similac products) are pending in a multidistrict litigation (MDL) established in the Northern District of Illinois, the Honorable Rebecca Pallmeyer presiding. In those cases, discovery is ongoing, and the parties are preparing for a science presentation to the court on March 8.  This will be the parties’ first opportunity to educate the court on legal and scientific causation.

State court cases being handled by our firm are also moving through discovery and toward initial trial settings.  A first wave of cases has been selected as potential trial picks, and case-specific discovery is ongoing in those cases, including plaintiff and treating physician depositions. The plaintiffs have assembled a solid team of experts from different relevant fields, and expert reports and declarations are being prepared.

David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, oversee these cases. For more information, contact David or Brittany at 800-898-2034 or by using the form on this page.

Acetaminophen Autism/ADHD MDL Litigation Update: Acetaminophen MDL Establishes Key Pre-trial and Discovery Protocols

Since the beginning of the year, there has been a lot of activity in the Acetaminophen Autism/ADHD multidistrict litigation (MDL). On Jan. 12, Judge Denise L. Cote in the Southern District of New York approved using short-form complaints when filing new lawsuits.  Judge Cote also issued an order the same day dividing discovery into phases to prioritize causation findings as to whether prenatal exposure to acetaminophen can cause autism and/or ADHD, which will be known as “Phase One” discovery.  Sales and marketing topics will be handled later in “Phase Two” discovery, and details relating to the timing and scope of sales and marketing discovery will be determined.

Subsequently, Judge Cote issued a Discovery Coordination Order on Jan. 27 to “enhance judicial efficiency, avoid undue burden on parties and third parties, and promote the just resolution of all cases pursuing APAP claims,” setting out “procedures for coordination of pretrial proceedings, including fact discovery in the MDL and related actions.” 

A “Coordinated Action” under this Order would be a related action filed in state court where the state court adopts the MDL court’s Discovery Coordination Order. In these related actions, the state action would also adopt and execute a Participation Agreement for other pertinent orders such as the MDL Protective Order, Plaintiff Fact Sheet Order, and Deposition Protocol. A Federal/State Liaison would keep the MDL parties and court apprised of the activities in Coordinated Actions.

Beasley Allen lawyers in our Mass Torts Section are investigating cases involving prenatal exposure to acetaminophen who were subsequently diagnosed with ASD or ADHD.  For more information, contact Roger Smith, Mary Raybon or Melissa Prickett at 800-898-2034 or by using the form on this page.

Recalled Eyedrops Connected To Outbreak Leads To Lawsuits

A man has filed a class action lawsuit against multiple companies after purchasing eyedrops connected to a bacterial outbreak that has killed at least one person and permanently blinded others.  

The suit alleges that EzriCare LLC, Ezrirx LLC, Delsam Pharma LLC, Global Pharma Healthcare Private Ltd. and Aru Pharma Inc. manufactured, imported and distributed artificial tears contaminated with Pseudomonas aeruginosa, causing an infectious outbreak in at least 12 states. The Centers for Disease Control and Prevention (CDC) is investigating the outbreak.  

The complaint, filed by Richard Mosely from Kentucky, said, “The Pseudomonas Aeruginosa bacteria is not a new bacteria, but it is notorious for being ‘versatile’ and ‘innately drug resistant.’ It is most frequently found in the environment, such as within the soil and/or freshwater.”

The CDC has reported that the bacterial strand is resistant to numerous antibiotics, putting eyedrop users at risk of severe skin, eye, lung and other infections.

Three of the 55 artificial tear users infected with Pseudomonas aeruginosa are now permanently blind, and one died from infection. Others have required significant treatment.

Global Pharma recalled all batches of the artificial tears on Feb. 1. The U.S. Food and Drug Administration (FDA) warned against using the eyedrops the next day.

The FDA also accused Global Pharma of manufacturing practices violations, including improper product testing, inadequate preservative usage and insufficient packaging.

Mosely’s complaint stated:

These violations, along with the presence of this rare and, in some cases, deadly, bacteria pose a significant and severe health risk to consumers, such as plaintiff and the putative class, who purchased and used defendants’ artificial tear products.

Mosely purchased the eyedrops at Walmart, unaware that using them could seriously harm him. He alleged injuries from the artificial tears but did not include the type of injuries in his complaint.

Mosely hopes to obtain justice for anyone who purchased the eyedrops from May 2022 until now, excluding California consumers. He accused the companies of Kentucky Consumer Protection Act violations, breach of warranty, failure to warn and negligence.

Bryan Aylstock, Hannah Pfeifler, Maury Goldstein of Aylstock Witkin Kreis & Overholtz, Kiley L. Grombacher, Marcus J. Bradley and Lirit A. King of Bradley Grombacher LLP and David G. Bryant, Mark P. Bryant and Emily Ward Roark of Bryant Law Center represent Mosely.

The case is Mosely v. Ezricare LLC et al., case number 6:23-cv-00020, in the U.S. District Court for the Eastern District of Kentucky.

Source: Law360.com

Eleventh Circuit Upholds Coloplast Patient’s Pelvic Mesh Verdict

Pelvic mesh manufacturer Coloplast lost its appeal of a $500,000 jury award to a Florida woman who alleged that the defendant’s Restorelle Y pelvic mesh disintegrated in her body, causing her to suffer painful injuries.

A three-judge panel of the Eleventh Circuit upheld a Florida federal jury’s verdict awarded to Raeann Bayless on Feb. 2. Bayless sued Coloplast and Boston Scientific in 2016 for injuries, infections, and surgeries related to the vaginal erosion she experienced after getting the mesh implanted in 2012 to treat pelvic organ prolapse.

An obstetrician-gynecologist implanted two different polypropylene meshes in Bayless: Coloplast’s Restorelle Y to treat the prolapse and Boston Scientific’s Advantage Fit to treat urinary incontinence. There were no complications or difficulties during the surgery. But six weeks later, mesh pieces started protruding through the vaginal wall.

The Florida federal court jury cleared Boston Scientific of liability in the case but found that Coloplast’s Restorelle Y mesh was defectively designed and caused Bayless’s injuries.

Coloplast challenged the verdict, arguing on appeal that Bayless failed to present sufficient evidence to support a finding of general causation and that Restorelle Y’s risks outweighed its benefits. The appellate court rejected Coloplast’s arguments, finding there was plenty of evidence to support the jury’s verdict.

During the original trial, the testimony of two expert witnesses – a urogynecologist and a polymer scientist — explained how polypropylene plastic oxidizes and degrades within the human body, making the mesh inherently unsafe.

The Eleventh Circuit panel also found that after several days of considering evidence from other facts and expert witnesses, the jurors reasonably concluded that the risks of Coloplast’s Restorelle Y outweighed its benefits.

U.S. Circuit Judges Robin S. Rosenbaum and Barbara Lagoa and U.S. District Judge T. Kent Wetherell II sat on the panel for the Eleventh Circuit. Bayless is represented by Dimitrios A. Peteves of Creed & Gowdy PA.

The case is Raeann Bayless v. Boston Scientific Corp. et al., case number 21-14397, in the U.S. Court of Appeals for the Eleventh Circuit.

Sources: Law360

TOXIC TORT LITIGATION

Beasley Allen Files Lawsuit Against Tallassee Landfill Leaking Toxic Pollutants Into Local Water Supplies

Beasley Allen lawyer Gavin King has filed a lawsuit on behalf of local landowners against Stone’s Throw Landfill and other defendants after the landfill near Tallassee, Alabama, released cancer-causing PFAS into central Alabama water supplies. When filing the suit, Gavin had this to say:

The families living near this landfill shouldn’t suffer at the hands of large waste management corporations. They did not ask for this landfill to be in their backyard, and they should not suffer the consequences of its mismanagement. There are others in the community affected by the defendants’ reckless conduct. Hopefully, this case will encourage them to come forward and hold these defendants accountable for endangering human and environmental health.

Stone’s Throw Landfill pollutants have exposed residents and landowners of the Ashurst Bar-Smith to hazardous chemicals and compounds. The landfill releases pollutants into Gleeden Branch and Mill Creek, Chewacla Creek (referred to locally as Eufalby Creek or Uphapee Creek), its tributaries, and the Tallapoosa River. The pollutants have contaminated water, including creeks and groundwater, in southern Tallapoosa and northern Macon Counties.

Leachate, formed when water seeps through landfill material and takes on the chemical characteristics of the waste through which it passes, is a black, foul-smelling liquid generally containing pollutants like heavy metals, pathogens, and Per- and Per- and polyfluoroalkyl Substances (PFAS). Two types of PFAS, PFOA and PFOS, cause multiple health problems, including thyroid disease, cancer and weakened immunity.

Stone’s Throw Landfill produces leachate containing PFAS at levels well above recognized health advisory levels and other toxins. These high levels pose a serious threat to the health and safety of the residents surrounding the landfill, especially where leachate leaks into the water supply.

The defendants were aware that pollutants from their landfill were entering the local water table and flowing to nearby residents’ properties. They knew the landfill needed to be reported to prevent contamination, and the defendants failed to do so, needlessly risking human and environmental health.

If you need more information, contact Gavin King.

The case is Herbert Mason v. GFL Environmental Services USA, Inc. et al., filed in the Circuit Court of Tallapoosa County, Dadeville Division, case number 62-CV-2023-900011.00.

JPML Orders Consolidation Of Federal Court Hair Relaxer Cases

The Judicial Panel on Multidistrict Litigation (JPML) heard arguments regarding the formation of a multidistrict litigation (MDL) on Jan. 26. After brief consideration, the panel decided on Feb. 6 to consolidate dozens of product liability and consumer protection lawsuits in the Northern District of Illinois with U.S. District Judge Mary M. Rowland overseeing the litigation. The lawsuits began following the Oct. 17 publication of a study from the National Institutes of Health that found that women who frequently use hair relaxer products are more than twice as likely to develop uterine cancer as those who don’t.

Since filing the motion to transfer in November, this litigation has grown from nine cases pending in four districts to at least 56 cases pending in 19 districts. Hundreds or even thousands of additional cases in additional districts are likely to be filed in the coming months. 

Plaintiffs had suggested multiple jurisdictions, including the Northern District of Illinois, Western District of Missouri, Southern District of Ohio, Central District of California, or Northern District of California, while the defense had suggested mainly the Southern District of New York. However, all parties accepted, at least as an alternative, the Northern District of Illinois.

In Feb. 6 order, the JPML granted a request by named plaintiffs Jenny Mitchell, Rugieyatu Bhonopha, Diane Grant and Bernadette Gordon to consolidate more than 50 cases before U.S. District Judge Mary M. Rowland in the Northern District of Illinois in Chicago. The order states:

All actions share common issues of fact regarding whether exposure to phthalates or other [endocrine-disrupting chemicals] causes injury to the reproductive system, whether and when defendants knew or should have known of the alleged risks posed by hair relaxer products, and whether defendants engaged in adequate testing and post-market surveillance.

The lawsuits generally accuse L’Oreal USA’s subsidiaries and subsidiaries of India-based companies Godrej SON Holdings Inc. and Dabur International Ltd. of selling hair relaxation, or lanthionization, products that caused or increased the risk of women developing uterine, ovarian or breast cancer, endometriosis, uterine fibroids or other injuries to the reproductive system.

It’s alleged that the hair relaxer products can be applied by cosmetologists or at home. They temporarily straighten and smooth hair in a process that often can cause burns and lesions to the scalp and allow hair relaxer chemicals to enter the body.

The panel concluded that all of these actions involve common questions and facts and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Illinois is centrally located. Several defendants, including Namaste Laboratories LLC., are based out of Chicago, and the district is home to a large population of potential plaintiffs. Finally, 16 pending cases have been filed in the Northern District.

Thus far, Beasley Allen lawyers have filed two cases in Georgia state court, one in Illinois state court, and one in Illinois federal court, with many more filings soon to follow.  Beasley Allen lawyers are actively investigating cases of uterine cancer, endometrial cancer, and ovarian cancer in women who developed these diseases after using chemical hair relaxers.

For more information, contact Melissa Prickett or Aigner Kolom, lawyers in our Mass Torts Section, at 800-898-2034 or by using the form on this page.

Source: Judicial Panel on Multidistrict Litigation

Illinois Is The Latest State To File Suit Over PFAS Contamination

Over 3,000 cases are pending in the Aqueous Film-Forming Foams (AFFF) Products Liability multidistrict litigation (MDL) related to PFAS chemicals found in firefighting foam. Illinois joins several other states which have detected widespread contamination from PFAS manufacturers and related products. Illinois has opted to exclude AFFF contamination from its lawsuit, thus avoiding the MDL and staying in state court in Illinois.

Several states have filed suits against PFAS manufacturers and end users of PFAS, such as carpet mills, paper mills, and leather tanneries. 3M is a defendant in nearly all current PFAS litigation, and they formerly produced PFAS in their Cordova, Illinois, facility, which is the subject of a separate lawsuit.

In general, PFAS lawsuits allege that manufacturers have known for decades the hazards associated with PFAS and how easily they could contaminate the environment through ordinary use and disposal.  Illinois seeks to recover natural resource damages to further address the PFAS contamination and restore natural resources throughout the state.

If you need more information, contact David Diab, a lawyer in our firm’s Toxic Torts Section, at 800-898-2034 or by using the form on this page.

Sources: Illinois Office of Attorney General, National Law Review and Lake & McHenry Scanner

Paraquat Update

The Paraquat Products Liability Litigation MDL (Case No. 3:21-MD-3004), centralized in the Southern District of Illinois, currently has over 2,700 cases pending before Chief Judge Nancy J. Rosenstengel. At the end of this month, the expert discovery phase of this multidistrict litigation will conclude. Until this point, experts – for both sides – have been deposed and have relayed their scientific knowledge on the subject of the litigation to the parties. The first multidistrict bellwether trial is scheduled to begin in October 2023.

The defendants, Syngenta and Chevron, face claims that the companies gave consumers Parkinson’s disease from exposure to the herbicide paraquat. Paraquat is banned in many countries worldwide; however, it is still sold and is one of the most widely used herbicides in the U.S.

Beasley Allen lawyers Julia Merritt and Leslie LaMacchia are members of the Plaintiffs Executive Committee on the Paraquat MDL. The firm continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms.

Beasley Allen lawyers on the Paraquat Litigation Team will gladly assist you in your paraquat applicator cases. The lawyers on the team are Julia Merritt and Leslie LaMacchia, who jointly head the team, and members Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact a lawyer on the team by phone at 800-898-2034 or email for more information on the litigation, including the MDL.

EPA Holds Norfolk Southern Accountable In Massive Derailment 

A Norfolk Southern Corp. train derailed in East Palestine, Ohio, near the border with Pennsylvania on Feb. 3, releasing large quantities of pollutants into the air, water and soil. On Feb. 21, the U.S. Environmental Protection Agency (EPA) ordered the railroad company to identify and clean up all contamination at the site, electronically signing the order that day. It also ordered Norfolk Southern to reimburse the agency for the funds it could bear in cleanup efforts. This was a needed response, but there is much more to be done.

The train that derailed had 20 cars listed as carrying hazardous materials. Thirty-eight cars derailed, 11 of them containing flammable or combustible materials. The EPA’s CERCLA order listed hazardous materials the train was moving, including vinyl chloride, sulfuric acid, ethylene glycol monobutyl ether, butyl acrylate, isobutylene, ethyl-hexyl acrylate, liquified petroleum gas and benzene.

Michael Regan, EPA Administrator, said the agency is operating under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to enforce its right to hold Norfolk Southern accountable for the cost to taxpayers. Administrator Regan spoke at a Feb. 21 press conference held in East Palestine and said:

Norfolk Southern will pay for cleaning up the mess that they created and the trauma that they inflicted on this community and impacted Beaver County residents. If the company fails to complete any action ordered by EPA, the agency will immediately step in, conduct the work ourselves and then force Norfolk Southern to pay triple in cost accordance to the powers granted by my agency. Under the EPA’s CERCLA unilateral administrative order, Norfolk Southern must clean up all contamination in soil and water and safely transport it to appropriate locations, in accordance with EPA specifications. The company also must attend and participate in public meetings at the EPA’s request and share information with the public.

Norfolk Southern had 24 hours to request a conference with the EPA following the signing of the order if it chose to discuss the government’s action. A conference would be held within a day of the request. Alternatively, the company could submit written comments. If comments are submitted, they must be submitted within 48 hours of the order’s signing or 24 hours from the time of the conference, according to Law360.

The order will become effective 48 hours after signing if the railroad company doesn’t request a conference. If a conference were requested, the order would become effective 48 hours after the conference or 24 hours after the agency receives written comments.

In Ohio federal court, proposed class actions have been filed for affected residents and businesses. The plaintiffs allege Norfolk Southern was negligent and specifically cite the link between vinyl chloride and increased cancer risks. The health-related problems will be vast and ultra-dangerous. This aspect of the problem will affect thousands of innocent people.

The area is represented by U.S. Rep. Bill Johnson (R-Ohio), who said he has been discussing possible legislation with congressional leaders. Congressman Johnson said everyone is waiting on the National Transportation Safety Board (NTSB’)s investigation findings before deciding if new legislation or regulations are necessary. The NTSB suspects a wheel bearing failed due to overheating just before the derailment but hasn’t reported its findings. There should be little doubt that stronger regulation is badly needed.

This most serious matter is far from over, and we will continue to monitor the entire situation. Stay tuned!

Source: Law360

EMPLOYMENT AND FLSA LITIGATION

Legislation Introduced To Ban Non-compete Agreements

In January 2023, the Federal Trade Commission (FTC) proposed a new rule that would effectively ban noncompete agreements in the U.S. Since then, two senators have proposed the Workforce Mobility Act, which aims to severely limit the ability of employers to enforce non-compete agreements.

The Act was reintroduced by Senators Chris Murphy (D-Connecticut) and Todd Young (R-Indiana). This bill, if enacted, would allow the FTC and the U.S. Department of Labor (DOL), paired with affected workers, to sue employers that use and enforce non-compete agreements to restrict a citizen’s ability to move from one job to another.

Sen. Murphy, though applauding the FTC for its proposed rule, believes that legislation is the better remedy to resolve issues with non-compete agreements.

If the Workforce Mobility Act is signed into law, the majority of non-compete agreements, with few carve-outs, would be prohibited. The intended carve-outs would be a broad category related to owners or senior executives of a business but would still be required to be limited in competitive activity in a specified geographic area and require a one-year limitation on the non-compete agreement. Another carve-out would be allowed for former partners in a dissolved partnership, which would be required to be within a specific geographic area, with no time limit on the agreement.

Another feature of the proposed new law is that the FTC and DOJ would be able to investigate alleged instances of misuse of non-compete agreements. The statute of limitations is expected to be four years. Additionally, workers will have a private right of action to bring a suit related to the misuse of non-compete agreements for the damages caused by the non-compete. Reasonable attorney fees will be recoverable under this new proposed law.

Beasley Allen lawyers are monitoring the status of this potential new legislation and will continue to monitor both the proposed rule and legislation as each progresses through the proper channels. Should you have questions about potential cases related to non-compete agreements, contact our employment law team leads, Larry Golston or Leon Hampton at 800-898-2034. They can also be reached by using the form on this page.

Source: Law360

THE CONSUMER CORNER

Illinois Supreme Court Rules BIPA Claims Accrue With Each Scan

A ruling issued on Feb. 17 by the Illinois Supreme Court fulfills a call from the U.S. Seventh Circuit Court of Appeals. The appellate court asked Illinois’ highest court to define how claims accrue under the Biometric Information Privacy Act (BIPA). In a 4-3 opinion, the justices ruled that claims accrue each time data is unlawfully gathered and revealed – not simply on the first occurrence. The ruling favored plaintiff Latrina Cothron’s claims against the fast-food company White Castle.

In its ruling, the court found that White Castle gathers its employees’ fingerprints, stores them in a database and requires the employees to use their fingerprints to access their paystubs and company computers. The court said:

With the subsequent scans, the fingerprint is compared to the stored copy of the fingerprint. Defendant fails to explain how such a system could work without collecting or capturing the fingerprint every time the employee needs to access his or her computer or pay stub.

The Seventh Circuit asked Illinois Supreme Court to address the question as “an important and recurring question” affecting the unique state law, which it said “requires authoritative guidance that only the state’s highest court can provide.” The federal court said it is an issue impacting hundreds of pending lawsuits from employees with similar claims against their employers for unlawfully collecting, storing and using their biometric data. The federal court also admitted it was uncertain how to address the question.

Ms. Cothron filed a class action claiming that White Castle repeatedly violated BIPA after the law became effective in 2008. The defendant began collecting and using Ms. Cothron’s finger scan a year earlier. A Chicago federal judge found that only some of the plaintiff’s claims were untimely, resulting in an appellate review.

Pointing to legislative intent, White Castle contended that only the first scan should be counted as a single claim because BIPA requires informed consent before biometric information is collected or disclosed. It argued that if claims accrue with each scan, it could expose even the smallest companies to financial devastation over damages from plaintiffs who could show actual damages due to the alleged violation.

Justice Elizabeth Rochford wrote the opinion for the majority, rejecting White Castle’s argument that allowing claims to accrue with each collection would not follow the court’s landmark ruling in Six Flags v. Rosenbach. Rosenbach determined that plaintiffs can bring a claim under BIPA without alleging “a real-world harm beyond the statutory violation,” as Law360 explained.

The justices explained that the reasoning behind Rosenbach doesn’t reflect the suggestion that an injury under BIPA is based on the first loss of privacy, saying that the ruling “clearly recognizes the statutory violation itself is the ‘injury’ for purposes of a claim under the act, which is entirely consistent with our decision here.” They said further:

We have found, however, that the statutory language clearly supports plaintiff’s position. As the district court observed, this court has repeatedly held that, where statutory language is clear, it must be given effect, ‘even though the consequences may be harsh, unjust, absurd or unwise.

The court continued saying BIPA doesn’t include language “suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business.” It agreed with the lower appellate panel that trial courts hearing class actions have the discretion to shape damages awards with adequate compensation to class members without financially devastating a company. Finally, the court said:

Ultimately, however, we continue to believe that policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature. We respectfully suggest that the legislature review these policy concerns and make clear its intent regarding the assessment of damages under the act.

Plaintiff Cothron is represented by Ryan Stephan, James Zouras, Andrew Ficzko and Teresa Becvar of Stephan Zouras LLP.

The case is Latrina Cothron v. White Castle System Inc., case number 128004, before the Illinois Supreme Court.

Source: Law360

State Laws Enacted In 2023 Targeting PBMs

This past year we have seen a great deal of state legislation aimed at regulating Pharmacy Benefit Managers (PBMs) and their abusive practices. By the end of 2022, 418 bills had been introduced in 47 states related to prescription drug issues – including PBMs. While many of the bills did not survive the legislative process, many bills were signed into law and became effective in January 2023. 

 The laws that these state legislators passed are pretty varied. However, many states passed statutes that, among other things, regulate PBM reimbursement amounts, the cost of prescription drugs, manufacturer rebates, drug formularies, and the lack of transparency created by PBMs. 

Specifically, several state laws enacted in 2023 focus on ways states can combat unfair pharmacy reimbursements by PBMs and manage the rising costs of prescription drugs for consumers. For example, Colorado passed a 2023 law that prohibits PBMs from reimbursing a pharmacy for a prescription drug in an amount less than the national average drug acquisition cost for the prescription drug and another law that requires that PBMs use 100% of estimated rebates received from manufacturers to reduce policyholder costs. 

West Virginia passed a law that requires reimbursements to be no less than the amount the PBM would reimburse itself or an affiliate. Tennessee’s new law prohibits PBMs from reimbursing their contracted pharmacies an amount lower than the actual cost of the drug and prohibits PBMs from trying to influence patients when choosing a pharmacy or provider. Maine’s new law directs the state health agency to prepare an annual report showing the potential savings that could be achieved if the most costly drugs in the state were subject to the lowest available price in the U.S. and the four largest Canadian provinces.

Additionally, Washington passed a law that requires plans to apply any cost-sharing amounts paid by the enrollee directly or on behalf of the enrollee by another person for a covered prescription drug when calculating an enrollee’s contribution to any applicable cost sharing, deductible, or maximum out-of-pocket requirement.

Other states have focused on PBMs’ unlawful practices concerning prescription drug formularies. Colorado passed a second law geared at PBMs, which prohibits PBMs from changing drug formularies during the plan year. Likewise, New York’s new law makes it unlawful for insurers to remove a prescription drug from a formulary or place it in a tier with a larger deductible. It also prohibits insurers from adding utilization management restrictions to a prescription drug on a formulary unless such changes occur at enrollment.

States such as Vermont, Nebraska and Maryland have focused on transparency, which has been lacking with PBMs for many years. Vermont’s 2023 PBM law prohibits certain provisions in contracts between PBMs and health insurers and outlaws “gag clauses” in pharmacy contracts. Nebraska now prohibits health benefit plans from penalizing a pharmacy for disclosing any health care information that the pharmacy deems appropriate regarding the availability of an alternate therapy or the process used to authorize or deny a health care benefit. Maryland’s law requires Group Purchasing Organizations (GPOs) to submit their contracts with PBMs to the state Insurance Administration. It also requires pharmacy services organizations to provide access to, rather than copies of, certain documents to independent pharmacies.

Other states have passed laws that combat various other issues primarily caused by PBMs.  Vermont passed a second law geared toward access to care in its state, while Maine’s new law requires health insurers to include cost-sharing amounts paid on behalf of an insured when calculating the insured’s contribution to any out-of-pocket maximum, deductible, or copayment when a drug does not have an alternative equivalent or was obtained through prior authorization. Florida’s new law focuses on auditing, oversight and penalizing PBMs for failing to register with the state. Iowa’s new law protects pharmacies from discrimination by PBMs, and Tennessee now requires prescription drug labeling that accommodates individuals who are visually impaired.

Much of the country today has expressed concerns about PBMs’ unlawful and deceptive practices and the consolidation, both vertically and horizontally, of the PBM market.  Today, the three biggest PBMs— CVS Health, Express Scripts, and OptumRX— account for more than three-quarters of total equivalent prescription claims. Such a high level of consolidation arguably can suffocate fair negotiations, increase drug prices, and possibly threaten access to certain drugs. While legislation is certainly one way to regulate PBMs to mitigate unfair and deceptive conduct and increased drug spending, plaintiffs across the country, including pharmacists and state attorneys general, are pursuing investigations and lawsuits against PBMs to combat their unlawful practices and recoup overspending.

Over the years, Beasley Allen has joined the fight to combat the unfair and deceptive acts concerning drug pricing through our representation of states against drug manufacturers and PBMs. Our firm welcomes the opportunity to investigate potential drug manufacturers 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, at 800-898-2034 or by using the form on this page.

Source: American Associated Pharmacies

$500 Million Settlement Over iPhone Performance Gets Final Approval

On Feb. 17, U.S. District Judge Edward J. Davila gave final approval to a $500 million settlement resulting from a renewed request by Apple Inc. and iPhone users. The settlement will end a multidistrict litigation that accused Apple of using a software update to decrease the battery life of older iPhones. Many lawsuits over the software issue were transferred to Judge Davila and consolidated in May 2018.

In September 2022, the U.S. Ninth Circuit Court of Appeals ruled that Judge Davila should have applied the heightened scrutiny standard when he first considered the settlement agreement in 2021.

Last month’s order was a 40-page document filed with the district court in California. In the order, Judge Davila applied the heightened scrutiny standard, which requires a court to ensure that the settlement’s value is adequate relative to the strength of the plaintiffs’ case. Under the standard, the court cannot presume the settlement is fair.

According to the order, Apple has agreed to pay between $310 million and $500 million, depending on the number of iPhone users participating in the settlement.

Those included in the class are all former or current U.S. owners of iPhone 6,  6 Plus, 6s, 6s Plus and SE devices running iOS 10.2.1 or later, and former or current U.S. owners of iPhone 7 and 7 Plus devices running iOS 11.2 or later. The order said that class members must also have run “these iOS versions before December 21, 2017.”

The parties to the settlement asked for the court’s approval on Nov. 11. They contended that the settlement was “fair, reasonable, and adequate” under the heightened scrutiny standard.

The consumers are represented by Joseph W. Cotchett, Mark Molumphy and Elle D. Lewis of Cotchett Pitre & McCarthy LLP, Laurence D. King and Frederic S. Fox of Kaplan Fox & Kilsheimer LLP, Andrew J. Brown of the Law Offices of Andrew J. Brown and Thomas J. Brandi and Terence D. Edwards of The Brandi Law Firm.

The case is In re: Apple Inc. Device Performance Litigation, case number 5:18-md-02827, in the U.S. District Court for the Northern District of California.

Source: Law360

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest Look At Case Activity At Beasley Allen

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

Practices

• Business Litigation
• Class Actions
• Consumer Protection
• Employment Law
• Medical Devices
• 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 (BeasleyAllen.com/Recent-Cases/).

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

Resources to Help Your Law Practice

Beasley Allen lawyers continue to receive inquiries from some in corporate America asking if our firm would consider defending them in lawsuits. Our response is that Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. We do no defense work of any kind.

All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers for victims of wrongdoing. I want to make it very clear: our firm does no “defense work” at all for corporate America. I made that decision in 1979, and the firm has stuck to it ever since.  

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 get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/. 

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

PRACTICAL TIPS FOR TRIAL

Leslie LaMacchia, a lawyer in our firm’s Toxic Torts Section, will give us some tips to help lawyers relating to their cases and using bellwether trials. Leslie has vast experience in complex litigation matters. So let’s see what she has to say about her experience with bellwether cases and trials.

To Bellwether or Not to Bellwether? That is the question.

What is a multidistrict litigation or MDL?  And what is a bellwether trial?  That’s a funny name for a trial. What purpose does it serve?  These were all questions I found myself asking when I encountered my first MDL and bellwether case in 2005.  I even misspelled it on a memorandum to a managing partner. Bellweather, I wrote.  So if you are reading this, I assume you might have also asked yourself these questions at some point or even misspelled it like me.  If you do not regularly handle mass torts, it is quite a difficult concept to understand, but bellwether trials have become critical tools in mass tort cases. 

Multidistrict district litigation (MDL) is a Congressionally-created case management procedure used by federal courts to consolidate civil lawsuits involving one or more common questions of fact.  MDLs involve multiple lawsuits filed by different parties, often in different jurisdictions. Bellwether trials are a common part of an MDL that aim to give plaintiffs and defendants an idea of how judges and juries would respond to issues present in other cases in the MDL and how the cases may play out in court. They also aim to give an idea of how the compensation may look. Bellwether trial results often significantly impact settlement negotiations, for better or for worse. 

Bellwether cases are chosen from all the cases filed in the mass tort action.  Fairness to both sides is a key part of the legal process in bellwether trials.  For this reason, each side is allowed to choose a case (or cases) that gives them the best chance of winning. The rest of the bellwether cases might then be randomly selected by either a computer or a single federal district court judge. After the bellwether trial cases have been chosen, the attorneys involved will conduct in-depth fact discovery to learn more about their cases. 

This introduction and basic understanding now lead us to the discussion of when mass tort lawyers or firms take on a new mass tort, desiring to have a bellwether trial case can often be a double edge sword. 

Although a bellwether case has many benefits, there are also many cons.  A couple of advantages of bellwether trials include reducing the total cost of legal fees for individual plaintiffs by making settlement easier and speeding up the MDL  process, which ultimately establishes guidelines for how much compensation plaintiffs might recover.  It also sets a precedent for similar cases in the MDL to use during settlement negotiations. If the result of a bellwether trial is successful, the result could be a favorable expectation indicator. On the other hand, when I have handled bellwether trial cases, the cons have been feelings of more stress and more time commitment and energy to those cases than the other cases in that specific tort. My bellwether cases have also faced more scrutiny in the tiniest of details versus a non-bellwether case. I have had to do far more discovery and investigation than a non-bellwether case. It can also be quite expensive as many depositions must be taken, and experts must be retained.

At the start of a mass tort with an MDL, I often ask myself, do I want to have a bellwether case or not?  Is the litigation one I want to lead or follow? My decision often centers upon a few factors:  (1) who the court appoints as co-leads and/or a Plaintiff’s Steering Committee, (2) how many potential plaintiffs might be involved in this tort, and (3) how I see general causation developing.  

With these in mind, I know that very few cases in an MDL are chosen as bellwether trials. If I want to be a leader in the litigation, I vigilantly scrub my inventory based on the bellwether case criteria. This entails hours and hours of phone calls with my potential bellwether plaintiffs learning every nuance about their case; engaging nurse consultants and doing a deep dive into their medical records; learning about whether or not their communication will be prompt as I progress with their case since discovery can be quite tasking; and doing my best to form a trustworthy relationship with a client as I know the legal process can be intimidating to them.

As I stated above, if a bellwether case goes to trial and is successful, I have some expectations of how the rest of my docket might play out.  However, if a bellwether case goes to trial and is unsuccessful, the co-leads and its steering committee might have to restructure the remaining cases and/or determine whether pursuing the litigation further would be a waste of time and money.  I have been involved in and on leadership in several MDLs wherein the bellwether trials were successful, and due to the large verdict, the defense counsel was inclined to settle the remaining cases out of court. I have also been on the other side of the coin, wherein the selected bellwethers were unsuccessful, and cases were remanded back to state court. This meant the judge sent the cases back to the courts that initially had jurisdiction over them. Those cases were then tried individually, which was very resourcefully taxing on the law firm.

Please bear in mind that the results of a bellwether trial, in favor of plaintiffs or not, are in no way definitive of how other cases might be tried in the MDL. To bellwether or not to bellwether must be a firm’s decision and one that is made with a careful approach. If you have an inventory containing cases that potentially could lead the litigation in the bellwether pool, along with strong and strategic leadership, go for it. If you have a smaller inventory and other dockets requiring your attention and financial resources, it might be more advantageous to sit back and see how the tort develops.  Whether you or your firm chooses to “bellwether or not” in a mass tort, just promise me that you will never misspell it. 

---

After reading Leslie’s comments, you may have questions or need help on a case. If so, you can contact Leslie by phone at 800-898-2034 or via the form on this page.

RECALLS UPDATE

A large number of safety-related recalls were issued during February. We mentioned several in this issue. There are other significant recalls available on our website, BeasleyAllen.com/Recalls/. We 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 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

Jennifer Emmel

Jennifer Emmel joined Beasley Allen’s Mass Torts Section in 2013. She is currently handling social media cases primarily against social media platforms, including Meta (Facebook and Instagram), TikTok, Snapchat and Google. Jennifer is involved in the national multidistrict litigation and the Judicial Council Coordination Proceedings in California. This talented lawyer also handles talcum powder cases in the national multidistrict litigation against Johnson & Johnson and Imerys Talc America, Inc.

Jennifer earned her Ph.D. in biomedical science from the University of South Carolina School of Medicine with a focus in molecular oncology. Next, she obtained her Juris Doctorate from Gonzaga University School of Law in Washington.

The transition from a scientific career to practicing law was natural for Jennifer. She explains:  

I truly love science, but I didn’t want to proceed into academia and its grueling, never-ending grant proposals and funding uncertainty. I also didn’t want to work on projects that were assigned to me rather than chosen by me in the pharmaceutical industry and wanted to avoid potential ethical dilemmas that can be integral when science is used by a corporation whose goal is ultimately profit. Instead, I carried the scientific background into mass torts, where I can implement it in working with experts to develop the science behind litigations involving drugs and defective devices. It is a seamless merging of the two fields, and the logical, methodical nature of law is very similar to that of science. 

Jennifer says she enjoys the consumer protection aspect of her legal career, saying:

My favorite part of practicing law is seeing the implementation of positive changes in the form of protection for consumers. In the area of mass torts, this is especially rewarding because the effects are wide-reaching and often extend into changing and setting new industry standards. Recently, for example, Johnson & Johnson stopped selling talcum powder in North America and has indicated they will stop selling it globally in 2023. This was a product used by millions of Americans  (and consumers worldwide) on a regular basis that was found to contain asbestos, and those individuals and future generations will no longer be at risk from exposure. 

 Appreciative of her colleagues for confronting challenges and serving the community, Jennifer says:

Beasley Allen is a unique firm in the universal dedication of its attorneys to taking on difficult cases on behalf of wronged clients because it is the right thing to do. There are attorneys who would not take some cases because they are difficult, very involved and very time-consuming. Our firm takes on those cases and is often able to better the lives of our injured clients and their families while drawing attention to industry-wide concerns. In some cases, that attention results in changes in industry standards or a change to a product to make it safer for all consumers. 

Beasley Allen also has an exceptional level of community outreach and support; the visible impact on the community is energizing and rewarding. 

Jennifer is a member of the American Association for Justice and serves on the Southeast Alabama Area Health Education Center’s Board of Directors. She also volunteers for the Alabama State Bar and the Montgomery County Volunteer Lawyers Program.

Tiffany Jackson

Tiffany Jackson, a Staff Assistant in the firm’s Mass Torts Section, works primarily with the Talcum Power Litigation Team. She assists in working up client files on newly filed cases, serving as the point of contact for clients to answer questions, reviewing documents with them if needed, and providing general updates. Tiffany has been with the firm for over two-and-a-half years and has been a very dedicated, hard-working employee. 

Tiffany shares that she has a very small but close family. Her husband, Hunter Jackson, and their adopted Jachuahua (Jack Russel Terrier mixed with Chihuahua), “Leia,” live in Montgomery, where Tiffany’s husband was born and raised. Tiffany is from California, where her parents, siblings, and most of her family still live. Tiffany loves singing, especially on the worship team at her church, writing, reading, and spending time with family and friends. She also likes to find time for art and crafting cosplays with Hunter.

According to Tiffany, her favorite thing about working at Beasley Allen is talking with clients one-on-one, building a rapport with them, and helping them with their concerns and questions. She added, “the staff assistants and attorneys that have helped me tremendously in my two-and-a-half-plus years here at Beasley Allen have been such a blessing!”

Dayna Shonk

Dayna Shonk, a Staff Assistant in the firm’s Mass Torts Section, works with Brittany Scott, a lawyer in the section, on the Talcum Powder Litigation Team. Dayna is responsible for handling client calls, answering their questions, or gathering new information about their cases. She is also responsible for processing pathology specimens and talcum power bottles, calendaring deadlines, requesting medical records, assisting Brittany in completing drafts, and following up on outstanding client paperwork. Dayna joined the firm in January 2021 and has been a very hard-working employee who says she loves what she does!

Dayna lives in Montgomery, Alabama, near her mother and aunt.  Her brother lives in Auburn, Alabama, with his wife and their four children. Dayna says that she and her family enjoy playing Yahtzee, Scrabble, and all sorts of card games and visiting their extended family in Indiana whenever possible. She adds that the family also loves catching shows at the Alabama Shakespeare Festival, too! Dayna shares that her hobbies include painting, drawing, and reading in her free time.

Dayna says that her favorite thing about working for Beasley Allen is the amount of work the firm does for our clients, especially those who cannot advocate for themselves. She added, “it’s refreshing to see folks who genuinely care for others. I am grateful to have the opportunity to positively impact so many lives and help them receive justice.”

Dana Taunton

Dana Taunton, who joined Beasley Allen in 1998, is in our firm’s Personal Injury & Product Liability Section. Her practice is now limited solely to appellate work, including appeals and the handling of motions. Dana had handled numerous personal injury and product liability cases as the lead lawyer before moving into her new role several years ago. Dana has also been involved in complex business and commercial litigation for the firm.

Dana grew up in Butler, Alabama. She attended The University of Alabama School of Law without intending to become a lawyer, earning her Juris Doctorate in 1993. She planned to join the FBI or another federal law enforcement agency, but she says God had better plans for her.

Dana says her role as a lawyer allows her to practice Beasley Allen’s motto of “helping those who need it most.” She adds:

What drew me into the profession and kept me there is that I genuinely enjoy helping people. It is an opportunity to confront a wrong and to right that wrong in a very real and positive way that can change a life. It has been an incredible and wonderful journey to continually be presented with opportunities to help people throughout my legal career.

Being a lawyer never fails to present new and interesting challenges. No case is exactly like the other. It is that constant challenge and overcoming that challenge on behalf of a client that keeps me going.

Grateful to practice at Beasley Allen, Dana explains what makes the firm unique. She says:

A lawyer can positively affect every facet of society. You can see that in the work we do here at Beasley Allen – not just representing our clients who are in so much need of help but also in our community work through the local bar associations. From helping the folks in Selma devastated by the tornados or supporting the work of the Mercy House, these are just a few examples where lawyers can make a difference. Beasley Allen is constantly encouraging and supporting its lawyers to be a voice for the voiceless, to be active in our community to promote real and positive change and improvement in the lives of people. 

Dana is a member of several professional associations, including the American Association for Justice and the Montgomery County Association for Justice. She is also active in the Alabama Association for Justice (ALAJ), serving on the AMICUS Committee and the Editorial Board for ALAJ Magazine. Dana has served as Chairperson of the Alabama State Bar Women’s Section. In addition, she has served on the Alabama State Bar Bench & Bar Relations Task Force, Improving the Image of Lawyers Task Force and Diversity in the Profession Committee.

Dana is a Martindale-Hubbell AV Preeminent-rated lawyer. She was also selected for inclusion in the Benchmark Appellate 2013 edition, a definitive reference guide recognizing the nation’s top appeals litigation firms and their lawyers.

We are most fortunate to have Dana with the firm. She is a tremendously talented lawyer who does excellent work in a very important role at Beasley Allen. Appellate work is challenging and requires experience and special knowledge to be successful.

Jordan Tribble

Jordan is a Legal Secretary in our firm’s Personal Injury & Products Liability Section in our Atlanta, Georgia, office. She has an important role in the firm, assisting paralegals and lawyers with their cases when needed. She also works directly with Preston Moore, a lawyer in the section, on his cases and assists whenever or wherever needed to support the litigation team. Jordan joined the firm in September 2021 and has been an asset. We are thankful to have Jordan with us!

Jordan is the mother of two wonderful children, a son named Hayden (9), a daughter named Raegan (10), and a “fur baby” named Claire. Jordan and her family live in Kennesaw, Georgia, where they enjoy relaxing as often as possible! She also enjoys trying out the latest and greatest restaurants, family activities, listening to music (car karaoke!), being outdoors, helping others, and traveling when time permits.

Jordan shares that there are lots of things she enjoys about working at Beasley Allen.  She says the first thing would be the work environment, describing it as positive.  The second is the friendliness of the staff and lawyers, and the third is the fulfillment of their work in the Personal Injury & Products Liability Section. Jordan is a hard-working, dedicated employee, and we are fortunate to have her with us.

SPECIAL RECOGNITIONS

Gibson Vance Working Hard In His Role As President Of The Alabama State Bar

When Gibson Vance took office last July as the 147th President of the Alabama State Bar, his key initiative was “Drive for Five,” an initiative to encourage Alabama State Bar members to take advantage of the State Bar’s program that provides five free hours of counseling each year. He announced plans to visit all 41 Alabama judicial circuits to “drive home the message that to be a good lawyer, one must be a healthy lawyer.”

Over the last seven months, Gibson has visited 20 Alabama judicial circuits covering more than half the state and is on target to complete the remaining visits before the end of his Presidency. With every visit, Gibson reminds State Bar members that if they are facing mental health issues, substance abuse or alcohol addiction or experiencing suicidal thoughts, they can call toll-free (800)-354-6154 and receive confidential help. No one at the State Bar will ever know an attorney has used this service.

Gibson joined Beasley Allen in 2000 and practices in the firm’s Personal Injury & Products Liability Section and the Consumer Fraud & Commercial Litigation Section. He has obtained multiple large verdicts for his clients and is involved in numerous professional associations, often serving in an officer’s role. Gibson has served as President of the American Association for Justice, Southern Trial Lawyers Association, Alabama Association for Justice, Montgomery County Bar Association, Montgomery Trial Lawyers Association and Alabama Civil Justice Foundation. In August 2019, Gibson was elected by the Troy University Board of Trustees to serve as its President Pro Temp.

Gibson is an extremely talented trial lawyer. I believe he also has more personal contacts around the country with lawyers than any lawyer that I know. I am convinced that his list is virtually endless. Gibson is also a good man in every area of his life. We are blessed to have him with us.

ALAJ Selects Gavin King For ELITE Leadership Academy

Beasley Allen lawyer Gavin King has been selected to join the Alabama Association for Justice’s ELITE (Empowering Leaders in Training & Education) Leadership Academy class. Gavin is one of 12 Alabama lawyers participating in the inaugural class, which provides workshops, exercises, and leadership development training over several months.

The Alabama Association for Justice (ALAJ) started the ELITE Leadership Academy to enhance the knowledge, skills, and values the participants bring to their legal careers. An essential part of this mission is to preserve and protect the right to a trial by jury guaranteed by the Seventh Amendment of the U.S. Constitution.

Guaranteeing that every person or business can hold wrongdoers accountable for misconduct or negligence is a fundamental principle that levels the playing field for everyone. It underpins the strength of our country and our communities, and it’s also a principle that guides Gavin in his work at Beasley Allen.

Gavin works in our firm’s Toxic Torts Section, where he specializes in toxic exposure litigation. He says that helping individuals and communities harmed by the wrongdoing of others brings meaning to his work and a sense of personal fulfillment in his life. In February, Gavin filed a lawsuit for several Tallassee, Alabama, residents and landowners against a landfill that has polluted local waterways with cancer-causing heavy metals, pathogens, PFAS, and other toxins. We are writing about the case in this issue. Gavin said:

As a lawyer, there is no greater reward than representing those harmed by the wrongful actions of others. I am proud to be part of a team of lawyers dedicated to advocating for justice and providing assistance to those in need. Being a good lawyer means more than success in the courtroom; it means helping those who have been wronged find a way to recover – to restore their dignity, quality of life, and hope for the future. It is truly an honor to help make this difference in people’s lives.

Gavin has practiced law since 2020, when he joined the section he works in. He actually joined us as a law clerk in 2019. Gavin has already achieved an impressive number of recognitions and awards in his short but highly productive career, including being named to the National Black Lawyers Top 40 Under 40 list and as a Midsouth Super Lawyers “Rising Star” in 2022. I predict great things as a trial lawyer for Gavin and a tremendous career. We are blessed to have him at Beasley Allen.

Ben Keen Selected For GTLA LEAD Program

Ben Keen, a lawyer in the firm’s Atlanta office, was selected for the Georgia Trial Lawyers Association’s 2022-2023 Leadership Education & Advanced Direction (LEAD) Program. 

Founded in 2013, the GTLA LEAD Program strives to train and equip GTLA members identified as potential leaders in the association with the tools to advance to the next level in their legal careers, both in and out of the courtroom. Ben was one of 20 Georgia lawyers selected for the program following an extensive application review process. Ben had this to say:

It’s an incredible opportunity. I am honored to participate in this program which has uniquely positioned me in numerous situations that many attorneys are not fortunate to experience. I have spent the day at the Georgia State Capital with legislators on the floor, met with numerous judges from the state court level through the Georgia courts of appeals and Supreme Court of Georgia, and developed meaningful relationships with great lawyers across the state. Although the duration of this program is approximately a year, I feel confident that the lessons learned and the friendships will carry indefinitely.

Ben earned his Juris Doctorate from Samford University Cumberland School of Law in May 2018. Additionally, Ben is a member of the American Association for Justice, Georgia State Bar, Southside Metro Atlanta Trial Lawyers Association, and Georgia Trial Lawyers Association and serves as a board member of the Clayton County Board Association. He was recently named a 2023 Georgia Rising Star by Georgia Super Lawyers.

As a lawyer in Beasley Allen’s Personal Injury & Products Liability Section, Ben handles cases involving serious injuries and tractor-trailer accidents. Ben’s knowledge of tractor-trailer litigation has been extremely helpful in his practice, and he has had some tremendous results for his clients.

Ben is a tremendously talented lawyer and a hard worker. He is totally dedicated to the pursuit of justice for his clients. We are blessed to have him with us.

FAVORITE BIBLE VERSES

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

Jennifer Emmel

Jennifer Emmel provides three sets of verses to help guide our actions and help us establish a heart posture towards others that is more in line with God’s instructions to us. Jennifer says:

In a time of political and social polarization, it is easy to get wrapped up in one’s own position and views and to let disagreements with others form a perception of them. In our advocacy, we tend to lose sight of our own lack of omniscience and who has the right to judge. These verses are reminders that we cannot know another’s heart; judgment is for God alone, and our duty is to truly love others without judgment as we are commanded to do.

It is the Lord who judges me. Therefore do not pronounce judgment before the time, before the Lord comes, who will bring to light the things now hidden in darkness and will disclose the purposes of the heart.

1 Corinthians 4:4-5 

But the Lord said to Samuel, “Do not look on his appearance or on the height of his stature, because I have rejected him. For the Lord sees not as man sees: man looks on the outward appearance, but the Lord looks on the heart.”

1 Samuel 16:7

You, then, why do you judge your brother or sister? Or why do you treat them with contempt? For we will all stand before God’s judgment seat. It is written: “‘ As surely as I live,’ says the Lord, ‘every knee will bow before me; every tongue will acknowledge God.'” So then, each of us will give an account of ourselves to God. Therefore let us stop passing judgment on one another. Instead, make up your mind not to put any stumbling block or obstacle in the way of a brother or sister.

Romans 14:10-13 

Dana Taunton

Dana Taunton shares that Matthew 22:37-40 is one of her favorite passages. Dana says, “Verse 40 really summarizes why these are the greatest commandments – all of one’s life should focus on those two simple commands. Everything we say and every action we take should be centered on loving the Lord and loving others. She says we should ask, ‘Do my words and actions reflect the love I have for Jesus, and do they reflect the love I have for my neighbors?’ If they don’t, then we need to change course. It is really that simple. It is the entire Gospel summed up in three verses.”

Jesus replied: “‘Love the Lord your God with all your heart and with all your soul and with all your mind. This is the first and greatest commandment. And the second is like it: ‘Love your neighbor as yourself. All the Law and the Prophets hang on these two commandments.”

Jordan Tribble

Jordan Tribble shares the following verse as one of her favorite verses.

Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go.

Joshua 1:9

Tiffany Jackson

Tiffany Jackson shares four things she receives from one of her favorite verses – Ecclesiastes 3:11. She says: “He ‘HAS,’ that means it’s already done, and I need to be patient. He has made ‘EVERYTHING,’ not just the things I can see, but everything. He has made everything ‘BEAUTIFUL,’ [meaning] it’s a hot mess now, but it’ll be beautiful, and that is something to look forward to, for sure. He has made everything beautiful “IN ITS TIME.’ We should trust the process and trust God.”

He has made everything beautiful in its time. He has also set eternity in the human heart; yet no one can fathom what God has done from beginning to end.

Ecclesiastes 3:11

Tiffany is also encouraged by Psalm 139, explaining that it “gives us a detailed description of God’s intimacy between Him and man. He formed us and made us in His image.”

Another verse Tiffany provides is one that she says “lists exactly what God requires of us” and that it is “straightforward and beautiful.”

He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.

Micah 6:8

CLOSING OBSERVATIONS

 The Aduhelm Investigation: Part 2 – Biogen Aimed to Maximize Profits with a Broad Label and Aggressive Marketing Despite a Lack of Clinical Data to Support

The following article is Part 2 of a 3-part series regarding the FDA’s review and approval of Aduhelm, a controversial Alzheimer’s drug brought to market by Biogen, Inc.

On June 7, 2021, the FDA granted accelerated approval to Biogen, Inc. for its Alzheimer’s drug, Aduhelm.  Biogen sought and obtained FDA approval for Aduhelm with a label indicating its use to treat “people with Alzheimer’s disease,” a broad category of patients that far exceeded the patient population studied in clinical trials.

When the FDA grants approval to a company to market and sell a new prescription drug, the FDA also approves the drug’s label that provides, among other things, the disease or condition for which the drug is indicated for and the population of patients for which the drug is approved.  It is only for these particular circumstances that the risk-benefit ratio has been approved and accepted by the FDA.  Drug companies are largely prohibited from promoting a drug for uses and patient populations that have not been approved.  Because of this, drug companies often seek approval to market and sell to an overly broad population of patients to cast a wide net and increase sales.

Internal company documents show that Biogen had early warnings about the potential risks associated with a label for Aduhelm beyond the clinical trial population, which was limited to patients with mild cognitive impairment (MCI) due to Alzheimer’s disease and mild Alzheimer’s disease dementia.  Documents indicate that Biogen’s Alzheimer’s team leaders expressed concern the company could lose credibility by advocating for a broad label indication that exceeded the clinical trial population and engaged consultants to weigh the benefits and risks of a broad label versus a narrow label. 

One outside consultant described feedback from a forum where clinicians, advocates, and payer representatives expressed support for promoting Aduhelm to patients similar to the clinical trial population (i.e., a narrow label). In describing the reasons that stakeholders supported this approach, the consultant wrote that “positioning or promoting Aduhelm for patients with moderate-to-severe [Alzheimer’s disease] introduces risk to the patient without known clinical benefit” would “not be in the best interest of patients” and would “likely be giving false hope to patients desperate for anything that might slow the progression of the disease.” 

The stakeholders’ rationales for supporting this approach also included that doing so “[e]nsures that the product will be targeted only for patients where there is a known clinical benefit….”

Despite the broad label and lack of clinical support, Biogen planned an aggressive outreach and marketing campaign to launch Aduhelm.  In some long-range plans, Biogen anticipated spending $3.3 billion on sales and marketing for Aduhelm from 2020 to 2024 – more than two and a half times what Biogen spend on lifetime development costs from 2007 until approval in June 2021.  Documents show Biogen also developed marketing strategies to target communities of color. 

As part of that strategy, Biogen crafted a public narrative that promoted health equity and access. Biogen worked behind the scenes to build support for Aduhelm among Alzheimer’s disease advocacy organizations that serve people of color. Biogen also designed promotional materials targeting African American and Hispanic patients and their healthcare providers and planned to buy advertising slots on Telemundo, Black Entertainment Television, and other networks to reach consumers of color. 

However, Biogen’s purported health equity narrative and marketing plans were not supported by Aduhelm’s clinical trials.  In Biogen’s initial Phase 3 clinical trials, only 3.0 percent were Hispanic, and 0.6 percent of participants were African-American.

Despite the lack of clinical support, Biogen sought and obtained FDA approval to market and sell Aduhelm with a label indicating its use to treat “people with Alzheimer’s disease.”  Only after significant backlash from the medical community and the public did Biogen request that the FDA update Aduhelm’s label and narrow it to the disease stages studied in clinical trials.

Sources:
U.S. House.  Committee on Oversight and Reform and Committee on Energy and Commerce.  The High Price of Aduhelm’s Approval: An Investigation into FDA’s Atypical Review Process and Biogen’s Aggressive Launch Plans (December 2022)
Seeking Maximum Profits, Biogen Set An “Unjustifiably High Price” for Alzheimer’s Treatment, Investigation Finds, STAT (Dec. 29, 2022)
“Rife with Irregularities”: Congressional Investigation Reveals FDA’s Approval of Aduhelm Marked by Secret Discussions, Breaches of Protocol, STAT (Dec. 29, 2022)

OUR MONTHLY REMINDERS

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

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Bryan Stevenson, 2019

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

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

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

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

PARTING WORDS

The American People Deserve Unity In Government

The American people are sick and tired of all the political grandstanding in our nation’s Capital. People throughout the country are demanding unity and cooperation in government. They also are expecting our leaders to be competent, honest and morally correct. They also expect their leaders to listen to them!

Many political observers are saying that things look bleak for America because of a sharply divided Congress once again this year. All too many in the Democratic-controlled Senate and Republican-controlled House are marching to their own drums and personal agendas. Some appear solely dedicated to dismantling the opposing party’s efforts.

Still, some political observers and leaders, including President Joe Biden, are hopeful that unity is possible and that it’s necessary for Congress to answer a call by the American people for unity. Even most of his critics say unity was at the heart of President Biden’s second State of the Union address delivered last month, as he called on bipartisanship for the sake of the American people.

Sadly, the division in America is much deeper than just the obvious division existing in Congress. The political agendas in the halls of Congress are merely an extension of the sharp division in our country. As unsettled as much of the political and economic landscape has been over the last few years, it’s now time that moderate members of both parties unite to prevail over the extremists in each party. Unfortunately, too many politicians are motivated solely by an insatiable hunger for power and public acclaim. The American people collectively are weary, and they deserve to be heard and have their fears and concerns eased.

People throughout the land need hope for a future that is productive and full of opportunities for all people. President Biden opened his State of the Union message by saying:

The people sent us a clear message. Fighting for the sake of fighting, power for the sake of power, conflict for the sake of conflict, gets us nowhere. That’s always been my vision for our country. And I know it’s many of yours. To restore the soul of this nation, to rebuild the backbone of America, the middle class and to unite the country. We’ve been sent here to finish the job.

Recent history shows a growing divide among the political parties and even factions within parties that make important negotiations and compromises close to impossible. We need lawmakers to return their focus to how they can work together and find acceptable compromises. A majority of members of Congress are not extremists and do things the right way. Sadly, there are some who obstruct the process and who don’t do things the right way. They must resist the urge to expend valuable time and energy strategizing political and legislative maneuvers that sabotage negotiations before they even begin. 

In closing, the words of President Abraham Lincoln should be heard and listened to by our political leaders at every level of government. Lincoln said in 1859 (before he became president) that “a house divided against itself can’t stand.” His assessment was true then, and without a doubt, it is certainly true today. I encourage our political leaders to help replace hate with love and diversity with unity and to be servants for the people and not serve only the powerful “special interests.” The American people are demanding unity and cooperation in our nation’s capital, and they deserve it. My prayer is for unity and cooperation to rule the day!