The Jere Beasley Report October 2023

CAPITOL OBSERVATIONS

The Mission of the Judge Frank M. Johnson, Jr. Institute

The Judge Frank M. Johnson, Jr. Institute is a Montgomery-based “non-partisan voice that shares stories of our Constitution and Judiciary through programs that illuminate issues and perspectives, foster thoughtful and civil discourse, and inspire our national community in our nation’s never-ending pursuit of a more perfect union.”

The institute’s namesake, Judge Johnson, served as a U.S. District Court Judge in the U.S. Court for the Middle District of Alabama from 1955 to 1979 and as a judge on the U.S. Fifth and Eleventh Circuit Court of Appeals from 1979 until 1999. Judge Johnson played a vital role in shaping civil rights law in America and applying it forcefully in our state. 

Judge Johnson’s legal decisions desegregated schools in Alabama and busing in Montgomery, and eliminated the state poll tax. His rulings helped bring justice and civil rights to our country for all people. The Rev. Dr. Martin Luther King, Jr. once called Judge Johnson:

The man that I know in the United States who gives true meaning to the word justice.

I concur fully with Dr. King’s assessment. 

Persons familiar with Judge Johnson’s life and legacy founded the Johnson Institute and began operations in 2019. The non-political, non-advocacy organization works in partnership with the Middle District of Alabama to provide tours of the historic Frank Johnson Courthouse in Montgomery. 

I am proud to serve as a Board Member of the Johnson Institute and to have the opportunity to help foster civil dialogue and the exchange of knowledge of the U.S. Constitution and the judicial branch of government in a respectful and open manner. It’s extremely important to educate all citizens, especially our young people, about the life and work of a great American, Judge Frank M. Johnson. The Institute will help do that, and I am blessed to be a part of its mission. 

THE TALC LITIGATION

Litigation Cranking Back Up (MDL Status Conference)

Leigh O’Dell of Beasley Allen co-chairs the talc multidistrict litigation Plaintiffs Steering Committee (PSC). The parties in the Johnson & Johnson (J&J) Talc Litigation participated in a status conference with Judge Michael Shipp recently in New Jersey. This was the first status conference in the MDL with Judge Shipp and Magistrate Judge Rukhsanah Singh since the dismissal of the LTL bankruptcy. Judge Shipp was appointed to manage the Talc MDL in January of this year. This came about when U.S. District Judge Freda L. Wolfson announced her retirement. 

The court heard arguments on the parties’ competing proposed bellwether scheduling orders, with the sole dispute being whether Johnson & Johnson could use the preparation for the bellwether case as an opportunity to re-litigate Judge Wolfson’s Daubert decision on general causation.  The PSC strongly opposed such efforts. The court took the Daubert-related issue under advisement.  A bellwether trial is likely to be scheduled during the Fall of 2024.

Defendants urged that the court schedule a “science” day.  The PSC responded that the court should have a case “education” day on all matters, procedural and legal issues, J&J’s liability and science supporting causation. The court agreed that there would be a day of some kind devoted to getting up to speed on all matters.

The court strongly encouraged the parties to devote time and energy to settlement discussions.  The PSC assured the court that leadership has been engaging in good-faith discussions for some time and will continue to do so. We will keep you up to date on developments in this litigation. 

U.S. Senators Condemn J&J’s Talc Bankruptcy Efforts

U.S. Senators from both parties doled out blistering criticism to J&J over the bankruptcy efforts it’s trying to use as a shield against personal injury claims related to its asbestos-tainted talc products, which have allegedly sickened consumers for decades. 

In the Senate Judiciary Committee’s hearing, Evading Accountability: Corporate Manipulation of Chapter 11 Bankruptcy, Chair Dick Durbin (D-IL) likened J&J’s bankruptcy efforts to those used by a growing number of corporations in recent years, including Georgia Pacific and the Sackler family, owner of Purdue Pharmaceuticals. 

Faced with tens of thousands of claims for compensation caused by harmful products and practices, corporations are forming shell companies where they can shift certain liabilities. They then declare Chapter 11 on the shell company to minimize payouts. 

J&J is using this tactic as it faces paying billions of dollars to claimants who say the asbestos in J&J talc products caused ovarian cancer and mesothelioma. An appeals court and a bankruptcy judge have shot down J&J’s bankruptcy strategy twice. 

Beasley Allen lawyer Leigh O’Dell, who co-chairs the Plaintiffs’ Steering Committee in the J&J talc multidistrict litigation, says that the Senate’s probe demonstrates the abusive practices giant corporations are taking to protect their profits. Leigh added:

J&J and other giant corporations will try virtually anything to avoid responsibility when their products cause massive amounts of harm and suffering.

Sen. Durbin said J&J’s “Texas two-step” bankruptcy strategy denies consumers injured by the company’s products their day in court. It also robs individuals grappling with fatal diseases of precious time while subjecting them to lengthy legal proceedings that they may not survive.

Sources: PR Newswire, U.S. Senate Committee on the Judiciary

Beasley Allen Talc Litigation Team

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

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

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

THE ASBESTOS LITIGATION

The Deaths Of Famous People Resulting From Mesothelioma And What They Teach Practicing Asbestos Lawyers

Despite the knowledge that asbestos has been a carcinogen for over 70 years, mesothelioma remains a disease that most people do not know much about.  Other than seeing some commercials on television discussing asbestos and mesothelioma, the disease, thankfully, does not touch most people’s or their families’ lives.  Most people diagnosed with mesothelioma are hardworking, blue-collar Americans due to the prevalent use of asbestos in industry over the years.

However, there are some famous Americans who have been diagnosed with and passed away from mesothelioma whose deaths have spread additional light on the disease.  Along with informing the public of mesothelioma’s insidious nature, these notable deaths can teach asbestos lawyers and improve our representation of our clients. 

One of the most famous Americans to be diagnosed with and pass away from mesothelioma is actor Steve McQueen.  In 1980, at just 50, McQueen passed away due to mesothelioma.  

On its surface, this seems surprising.  How could a man known for his iconic roles like The Thomas Crown Affair, Bullitt, Papillon, and The Great Escape, andnicknamed the “King of Cool,” be exposed to asbestos and develop this disease?  The answer comes from doing what lawyers at Beasley Allen do daily for our mesothelioma clients.  If we look back and examine Steve McQueen’s life, we find that he served for three years in the United States Marine Corps. (1947-1950). During that time, he was exposed to massive amounts of asbestos on Navy ships. 

Another such person is Warren Zevon.  Known as “an artist’s artist,” Zevon died of mesothelioma in 2003 at the age of 56. Famous for his classics like “Werewolves of London” and “Lawyers, Guns and Money,” he never worked a non-musical day in his life.  But it was discovered that during his early years playing clubs throughout the country, his drummer would bang on insulated pipes with his drumsticks during sets, unaware that the dust from those pipes contained deadly asbestos fibers that Zevon would inhale.  

These deaths raise awareness about the extensive reach of mesothelioma and reveal that even folks we would never expect can be affected. This teaches asbestos lawyers to dig deep and look for all possible exposures that otherwise may not be initially evident.  At Beasley Allen, our asbestos lawyers do this daily.  It is a fundamental aspect of our practice that allows Beasley Allen to represent our clients to the fullest and receive the best possible outcome for them.

The Beasley Allen Asbestos Litigation Team

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

THE CAMP LEJEUNE LITIGATION

Court Appoints Rhon Jones To Camp Lejeune Plaintiffs’ Executive Committee

Rhon Jones, who heads our firm’s Toxic Torts Section, has been appointed to the Plaintiffs’ Executive Committee for the Camp Lejeune water contamination litigation. Rhon’s appointment positions Beasley Allen to help thousands of former Marines, other service members, and their families who have been sickened by toxic chemicals at the North Carolina base. Sadly, thousands of the victims have died or are dying. Rhon, upon receiving the appointment, said: 

As a member of the Plaintiffs’ Executive Committee for the Camp Lejeune litigation, it’s my mission to ensure that our veterans and their families who have suffered from exposure to toxic chemicals at the base receive the maximum compensation they rightfully deserve. I look forward to working with other outstanding lawyers, as we aim to bring solace and restitution to those who have sacrificed so much in service to our nation. I am truly honored and grateful to serve in this way.

The Camp Lejeune Justice Act (CLJA), signed into law by President Joe Biden last year, allows anyone who lived or worked at Camp Lejeune for 30 days or longer between Aug. 1, 1953, and Dec. 31, 1987, to file a claim for compensation against the government for illnesses caused by exposure to contaminated water at that time.

Camp Lejeune water contamination lawsuits are being filed in the Eastern District of North Carolina. The number of administrative claims filed with the Navy is reportedly approaching 100,000. All administrative claims must be filed by Aug. 10, 2024, the deadline set by the CLJA.

Camp Lejeune Litigation Update

We encourage lawyers nationwide to join Leslie LaMacchia, Julia Merritt, and Rhon Jones for Beasley Allen’s next webinar on Camp Lejeune on November 15, 2023. During this free CLE webinar, Leslie, Julia and Rhon will discuss the latest issues developing in the Camp Lejeune litigation. On top of getting the latest updates, these lawyers will answer any questions attendees may have. They will also provide the insights that our lawyers at Beasley Allen have developed from working with the litigation’s leadership. 

If you are new to the Camp Lejeune litigation, Beasley Allen has previously hosted numerous webinars on Camp Lejeune. All these webinars are available for free viewing on Beasley Allen’s website. Join the Nov. 15 webinar and see how Beasley Allen lawyers can help with your cases. 

One area that will be covered by the webinar is the Department of the Navy and the Department of Justice’s new Elective Option program. This program offers an expedited resolution process for a certain subset of impacted Camp Lejeune claimants. The program has specific requirements for participation. This process will help a subset of claimants, but its requirements will exclude a large pool of the Camp Lejeune claimants. 

While the Elective Option program may offer a shorter path to resolution for some claimants, the program still requires all participating claimants to go through an intensive process to submit a claim and to provide multiple forms of supporting documentation. 

At this point, this program has only just been announced, and there are still many unanswered questions concerning the practicality of the Elective Option. 

If you have any questions or need help with a claim, contact one of the lawyers on our firm’s Camp Lejeune Litigation Team. 

Leadership Bid Rejected in Camp Lejeune Dispute

The federal judges in North Carolina overseeing the litigation over contaminated drinking water at the Camp Lejeune Marine Base have dismissed an attorney’s attempt to challenge the plaintiffs’ leadership. They said the attorney’s argument that they lacked the authority to name lead counsel was unfounded.

Judges Terrence Boyle, Louise Flanagan, James Dever, and Richard Myers clarified that Roy Willey of Poulin Willey Anastopoulo LLC incorrectly argued that there was no legal basis or statute allowing them to establish a leadership team since federal courts have “inherent powers” for managing their proceedings, per the Federal Rules of Civil Procedure.

Furthermore, the judges noted that when Congress passed the Camp Lejeune Justice Act last year, it did not impose a specific framework for handling the numerous cases alleging health problems stemming from the contaminated water. 

To date, 93,000 administrative claims have been filed with the Navy, with approximately 1,100 lawsuits pending in the Eastern District of North Carolina. There is the potential for the number of suits to grow to a million. The lawsuits involve nearly 40 diseases allegedly linked to the contaminated water at Camp Lejeune.

The judges stressed the “urgent necessity” of effectively managing this substantial volume of Camp Lejeune cases, including the administrative claims that may evolve into lawsuits, which is why they appointed a nine-member leadership committee in July. The committee includes J. Edward Bell of the Bell Law Group, who played a key role in drafting the 2022 Camp Lejeune Justice Act, the legislation that authorized these claims and directed them to the Eastern District of North Carolina.

According to the order, Willey, who initiated the first class action lawsuit, had sought to be named to the leadership committee, as well as the Plaintiffs’ Steering and Executive Committees subsequently appointed by the leadership group.

The plaintiffs are represented by the Bell Law Group, Keller Postman LLC, Ward and Smith PA, The Dowling Firm and Lieff Cabraser Heimann & Bernstein LLP, among others.

The cases are in Camp Lejeune Water Litigation v. United States of America, case number 7:23-cv-00897, in U.S. District Court for the Eastern District of North Carolina.

Source: Law360

U.S. Offers New Path for Camp Lejeune Compensation

Veterans, their families, and others sickened by water contamination at Camp Lejeune Marine base in North Carolina now have another avenue of compensation under a new process announced by the U.S. Department of Justice and the Department of the Navy.

Federal officials said the new settlement option provides quick and early payments for qualifying Camp Lejeune claimants. Payments will be tiered by disease type and length of exposure. Claimants who have kidney, liver, and bladder cancer, leukemia and non-Hodgkin’s lymphoma, which have a substantiated link to the Camp Lejeune contaminants, will receive offers of $450,000, $300,000, or $150,000.

Claims for Parkinson’s disease, kidney disease, multiple myeloma, and systemic sclerosis, which have a possible link to the contaminants, will receive offers of $400,000, $250,000, or $100,000 under the elective option. Death claims will receive an additional $100,000.

More than 1 million veterans, service members, and their families were exposed to multiple toxic chemicals, including benzene and vinyl chloride, in Camp Lejeune’s water supply between mid-1953 and 1987, according to government estimates. The U.S. government has received over 93,000 claims seeking compensation for illness, disease, and death connected to Camp Lejeune. 

Claimants who do not seek compensation through the new elective option may file suit against the U.S. Government. President Joe Biden signed the Camp Lejeune Justice Act into law last year, establishing a two-year window for veterans and their families to file suit against the government for Camp Lejeune water contamination injuries. These claims are consolidated for Multidistrict Litigation in a North Carolina federal court. Beasley Allen partner Rhon Jones was recently appointed to the Camp Lejeune Plaintiffs’ Executive Committee. 

Sources: Law360, Camp Lejeune Lien Resolution, Department of Justice

Beasley Allen Camp Lejeune Litigation Team

Beasley Allen lawyers continue to be hard at work on the Camp Lejeune litigation. The number of cases being handled by the firm has dramatically increased in recent weeks. There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com. 

Currently, our firm has 11 lawyers working on this litigation, including Toxic Torts Section Head Rhon Jones. You can contact Rhon Jones or any of the other lawyers on our team if you need help with a claim or have questions. The lawyers include co-leads Leslie LaMacchia, and Julia Merritt, along with Will Sutton, Ryan Kral, Trisha Green, Ken Wilson, Matt Pettit, Tucker Osborne, and Marion Brummal.

SOCIAL MEDIA LITIGATION

Study Supports Social Media Addiction As A Distinct Addition

Litigation is proceeding in both the federal multidistrict litigation (MDL) and the California Judicial Council Coordination Proceeding (JCCP) against social media platforms Facebook and Instagram (Meta), YouTube, Snapchat and TikTok.  In October 2021, whistleblower Frances Haugen testified before Congress and made public documents indicating that not only was Meta aware children and adolescents were becoming addicted to their social media products but that they knew of the resulting harms and were continuing to try to keep them on the platforms longer.  Beasley Allen lawyer Joseph VanZandt serves on the Plaintiff Steering Committee for the MDL and is Co-Lead Counsel of the JCCP.  

The lawsuits allege children and adolescents suffer harm such as eating disorders, depression, anxiety, various forms of self-harm, suicidal ideations and suicide as a result of social media addiction.  This behavioral addiction is similar to substance addiction in that addicts suffer from components such as cravings, tolerance, withdrawal and relapse.  A recent article in JAMA Pediatrics details a study which measured the frequency with which sixth and seventh-grade students checked Facebook, Instagram and Snapchat along with brain imaging to determine whether there was an association of social media use with functional brain development.

Researchers found that brain development differed between adolescents who habitually checked social media and those who did not.  Based on differences in brain activation over time, the data suggests that over time, adolescents derive less sensitivity to social reward, requiring additional and new rewarding stimuli to experience the same “emotional high.”  

This past summer, the U.S. Surgeon General issued an advisory focusing attention on the “growing concerns about the effects of social media on youth mental health.” It cites to the vulnerability of the developing brain and to the “ample indicators that social media can also have a profound risk of harm” on their mental health and wellbeing.  

Arguments on demurrers were heard over two days beginning on September 13 before JCCP Judge Carolyn Kuhl in the Los Angeles Superior Court.  A ruling is pending and lawyers representing claimants, including Beasley Allen lawyers, are optimistic the judge will deny defendants’ motions and allow the case to proceed into the discovery phase.  A hearing is set on Motions to Dismiss in the MDL in front of Judge Yvonne Gonzalez Rogers on October 27.   

Sources: U.S. Department of Health and Human Services, PubMed

U.S. Prosecutors Unite Against AI Child Exploitation

Artificial intelligence advances by the day, and the lines between real-life and AI-generated content are becoming increasingly blurred. While AI can be a powerful tool for advancing civilization, it can be applied just as readily for evil and destructive purposes.

U.S. attorneys general from all 50 states and four U.S. territories signed a letter last month urging Congress to form a commission to study how criminals can use AI to sexually exploit children. The officials also called for legislation to confront the risks that AI-generated “deepfake” media poses to children and their parents. 

In a Sept. 5 letter, the prosecutors said the U.S. is “in a race against time to protect the children of our country from the dangers of AI.” The officials indicated that all the AI technology exists to quickly and easily transform photographs and voice recordings of real children into hyper-realistic child pornography, including photos and videos. They also said this type of deepfake nature is already being created and emerging on the Dark Web. 

The attorneys general said that children in the source photographs and their parents face psychological, emotional, and physical trauma from the deepfakes and their distribution, even if there was no actual physical or sexual abuse. 

Child pornography that is created without media of actual children is also dangerous, the officials warned. Content that may not depict actual children may be based on source images of abused children and AI-generated versions of that abuse help normalize the sexual exploitation of children.

Sources: Law360, Associated Press

Google to Pay Phone Users $62 Million in Location Tracking Lawsuit

A proposed class of smartphone users asked a California federal judge to approve a $62 million deal from Google. If approved, the payout would settle claims that the tech giant illegally tracked and stored users’ private location information. The same day, Google reached a $93 million settlement with the state’s attorney general over similar claims.

The parties struck the deal last spring, but the terms were sealed until the parties revealed the motion for preliminary approval. Under the terms, Google agreed to pay $62 million and maintain a policy where users’ location information is automatically deleted after 18 months when they opt into certain settings for the first time. Users can also set their auto-delete timeframe. 

Google also confirmed that it no longer shares users’ precise location information with third parties. The company also will maintain a “Location Technologies Page” to provide information about the company’s location practices. 

The users say the deal will give class members “greater understanding of, and control over, their location information.” If approved, the $62 million fund will be among the largest privacy class action recoveries where statutory damages weren’t available. 

The nationwide settlement class includes anyone in the U.S. who used a mobile device and whose location information was stored by Google while the phone’s “Location History” was disabled from January 1, 2014, through the notice date. The class could grow to up to 247 million members. 

The proposed class in the California case is represented by Michael W. Sobol, Melissa Gardner, Michael Levin-Gesundheit, Michael K. Sheen, Jalllé H. Dafa, John D. Maher and Nicholas Diamand of Lieff Cbraser Heimann & Bernstein LLP and Tina Wolfson, Theodore W. Maya, Bradley K. King, Henry J. Kelston and Deborah De Villa of Ahdoot & Wolfson PC. 

The case is In Re: Google Location History Litigation, case number 5:18-cv-05062, in the U.S. District Court for the Northern District of California.

Source: Law360

The Beasley Allen Social Media Personal Injury Litigation Team

Joseph VanZandt, who leads the firm’s Social Media Personal Injury Litigation Team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California state court. Joseph is also a member of the Plaintiffs Steering Committee, helping lead the federal social media multidistrict litigation (MDL).

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

Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team.

Class Actions At Beasley Allen Involving The Social Media Litigation

The class action aspect of the Social Media Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. Class actions are separate from the personal injury aspect of their litigation. If you need more information, or need help on a class action case, contact Michelle Fulmer, Section Director, by using the contact form at the bottom of this page. She will have a class action lawyer respond to you. 

MOTOR VEHICLE LITIGATION

A Driver’s Failure To Yield, Resulting In A Crash, Can Cause Life-Changing Injuries

Brook Ptacek, a Personal Injury lawyer in our Atlanta office, has filed a lawsuit against an at-fault driver who caused severe and permanent injuries to her client.  The at-fault driver had a flashing yellow turn arrow to make a left turn.  Instead of yielding the right of way to the client’s oncoming vehicle as O.C.G.A. § 40-6-21 mandates, the at-fault driver made the left-hand turn into oncoming traffic and violently collided into the client’s vehicle, totaling both vehicles.  

The crash shattered the client’s left patella and caused three levels of disc herniations in her cervical spine and two levels of disc herniations in her lumbar spine.  She underwent her first knee surgery ten days after the wreck and now requires revision surgery.  She also requires multilevel disc decompression surgeries in both her cervical and lumbar spines.  

Before this wreck, the client was an active, 50-year-old woman with no prior history of knee pain, neck pain or low back pain.  She had never been in a car accident before.  Our client is a former flight attendant of 25 years with her own esthetician business.  Now she cannot carry her own grocery bags without using a cart.  Neither can she descend stairs in a normal manner. Instead, she has to take each step one by one, stepping sideways.  This wreck and the client’s severe injuries could have been avoided had the at-fault driver simply yielded to oncoming traffic before turning left.  

Single Vehicle Commercial Motor Vehicle Accident

Ben Keen, a personal Injury lawyer in our Atlanta office, is filing suit in a single vehicle commercial motor vehicle accident in which a passenger in the vehicle, a tow truck, was injured. The accident occurred when the defendant drove 60 miles per hour in a 35 miles per hour zone on a two-way narrow road in a rural area. The defendants’ reckless driving resulted in an inability to keep the vehicle on the roadway, resulting in a high-speed single car collision into a tree. 

The defendant driver claimed that a deer ran out into the road causing him to collide with the tree. The available pre-suit evidence proves this “defense” to be a fabrication. Even if a deer was present, the airbag control module and photographs of the wreck revealed that the defendant was driving far in excess of the speed limit, making his contention as a defense immaterial. 

Commercial drivers know, or should know, how to analyze present roadway hazards and how to respond to them. This accident took place on a road where one curve is followed by another. It was a narrow, rural road. There are warning signs which should have indicated to the defendant that he was approaching a curve, that his line of vision is limited due to the curve, and that he was approaching blind driveways. Had the defendant heeded these warnings and driven at an appropriate speed, the crash into the tree would not have happened. 

This accident is not the result of simple negligence.  The defendant was aware of the hazards and drove at an excessive speed, consciously indifferent to the hazards. The airbag control module shows that the defendant was traveling 60 miles per hour just 461 feet prior to striking the tree. Additionally, evidence shows that the defendant driver lost control of his vehicle at 49.7 miles per hour. 

Ben’s client, the passenger in the defendants’ vehicle, is not an employee of the tow truck owner and is entitled to recover damages in tort. While the client’s demand is pending, a complaint and discovery is being prepared by Ben to be filed on the demand’s deadline. 

Widow Sues Google Maps Over Husband’s Fatal Crash off Washed Away Bridge

The widow of a man who drowned after his vehicle plunged off a long-collapsed bridge filed a wrongful death lawsuit against Google in North Carolina Superior Court. Alicia Paxson claims that Google’s map application led her husband to cross the bridge during a nighttime drive.

The lawsuit claims numerous individuals had contacted Google Maps over the years to tell the app the Snow Creek Bridge in Hickory was no longer usable, and it should use an alternate route. But Google never corrected its error. Alicia says her husband, Philip Paxson, died because the app directed him to the washed-out bridge.

On September 30, 2022, the Paxson family celebrated their daughter’s ninth birthday at a friend’s house. After the party, Alicia took their two children home while Philip remained behind to assist with cleanup.

Later that evening, Philip drove home alone, using Google Maps for navigation. According to the lawsuit, the app instructed him to take 24th St. Place NE, which directed him to the “endless bridge” that had washed away nearly nine years earlier. The lawsuit claims there were no lights or signals around the bridge to warn motorists that the bridge was out. 

Philip was driving at night in the rain with reduced visibility. Around 11 p.m., his vehicle went over the bridge’s edge, falling about 20 feet before landing in the creek. His overturned and partially submerged Jeep Gladiator was discovered several hours later. 

Besides Google LLC and its parent company, Alphabet Inc., the suit names as defendants two local businesses, Hinckley Gauvain LLC and Tarde LLC, and one individual, James Tarlton, who owned, controlled or were considered responsible for the bridge.

The family in this lawsuit is represented by Larry Bendesky, Robert W. Zimmerman and Michael Benz of Saltz Mongeluzzi Bendesky and Meredith S. Hinton and Brian M. Ricci of the Ricci Law Firm.

The case is Paxson v. Google LLC et al., case number 23CV026335-910, in the North Carolina Superior Court, Wake County. 

Source: Law360

Other Similar Incident Depositions

When litigating an automotive product liability case, it is important to investigate and obtain evidence of other similar incidents (OSI) involving the defective product. OSI evidence is critical because it shows the jury the magnitude of the problem and underscores that the harm caused by the defective product was widespread—not isolated or rare. Put differently, OSI evidence allows the jury to properly understand and see the scale of the defect. 

Under Georgia law, OSI evidence is not only relevant, but also admissible to show that the manufacturer possessed notice of the defect and the extent to which punitive damages are warranted. To admit OSI evidence, plaintiffs must demonstrate that the other incidents are “substantially similar” to the subject event. This requires a showing that the other incidents “share a common design, common defect, and common causation with the alleged design defect at issue.”   

In automotive product liability cases, OSI evidence typically comes in the form of other wrecks where the product at issue failed due to the common underlying defect. While practitioners can gather this evidence through complaints, accident reports, and crash databases, some of the best OSI evidence may be obtained through deposition testimony from individuals who were actually involved in the other wrecks. These individuals have firsthand knowledge of what happened during the other accidents and the harm they suffered because of the defect. Their testimony can bring the words contained in accident reports and complaints to life and enable the jury to grasp the real-world impact of the defective product. 

If you have questions about automotive product liability cases or need help with a case, contact Sloan Downes, Director of our Personal Injury & Products Liability Section, by using the contact form at the bottom of this page. Sloan will have one of the lawyers in the section who handles product liability cases to contact you.

TRUCKING LITIGATION

How Beasley Allen Lawyers Overcame Their Client’s Weak And Inadequate Medical Records And Secured A $2.5 Million Verdict

Despite inadequate and really poor medical records, Beasley Allen lawyers Warner Hornsby and Preston Moore secured a $2.5 million jury verdict for their client, an injured truck driver. Warner credits the team’s success to trusting his client despite the unhelpful medical records. He feels the jury’s reaction to the defense experts and corporate owner during cross-examination was also a huge factor in the trial’s outcome.

North Carolina trucker Jose Garcia was traveling down Interstate 85 in Northeast Georgia. At that time, Southern Clearing & Grinding Inc., a Georgia Department of Transportation subcontractor, was clearing trees in the median at that location. The company placed no signs warning motorists of the road work being done in the area. A tree from the road work fell onto Mr. Garcia’s truck, crushing his windshield and injuring him. 

Mr. Garcia couldn’t go to the doctor until the next day because he had to stay with his vehicle until the wreckers arrived to tow it. When he did seek medical treatment, it was under occupational insurance coverage. It was clear that the physician’s assistant assigned to the client was more interested in closing the case than actually treating his patient. 

Warner and Preston told the jury at the outset of the trial that the case they were about to hear was about “greed, loss, and lies.” The defendant’s conduct showed a lack of any safety concerns as they ramped up the scale of their business to take on more profitable DOT contracts. In this case, where an unqualified and untrained employee of the defendant company tried cutting two trees at once – which was admittedly unsafe – company officials decided to lie about what happened. Diligent pretrial discovery by our lawyers allowed the jury to see evidence of the company’s cover up.

The defense tried to lessen and downplay Mr. Garcia’s injuries and suffering, citing his poor medical records, long gaps in treatment, his refusal to have the surgery his doctor recommended, and the fact that he continued to work in the five years since the wreck took place. The defense lawyers hired a radiologist and an orthopedic surgeon to testify that the tree falling onto Garcia’s truck was not the likely cause of his injuries.

In the end, Beasley Allen’s lawyers were able to convince the jury by finding instances where the defense experts’ testimony in other cases was contrary and in conflict to the opinions they provided in Mr. Garcia’s case. The testing also pointed to the unfair reliance on the client’s inadequate medical records when the client had always been consistent in his testimony. 

Warner says a major part of the trial team’s success came from his trusting Mr. Garcia’s account of what happened enough to dig deep and find the information necessary to convince the jurors that the injury claims were real and legitimate. This case outcome shows that when a lawyer believes in a client and works hard to prove the client’s case, good things will happen. Warner and Preston did an outstanding job for Mr. Garcia in this case. 

The case is Garcia v. Southern Clearing & Grinding Inc., No. 18V0238, in the Superior Court of Upson County. 

Trucking Case Filed By Beasley Allen Lawyer In Mobile Office

It is well-known that heavy trucks can be a danger to public safety. Beasley Allen lawyers are privileged to represent individuals who have been needlessly injured in heavy truck wrecks. Wyatt Montgomery, a lawyer in Beasley Allen’s Mobile office recently filed a heavy trucking case in the Southern District of Alabama. He is proud to represent his client who was tragically rear-ended by an 18-wheeler in the Wallace Tunnel in Mobile. 

Wyatt’s client did nothing wrong and was struck by a heavy truck driver who was following too closely and not paying proper attention. Heavy trucks are inherently dangerous due to their size and weight. Factors such as type of freight being hauled, size and weight of the truck cab, freight broker involvement, and long-haul driver conduct are all considerations unique to trucking crashes.  As a result, crashes involving large trucks must be approached in ways that vary greatly from passenger vehicle crashes. 

It is important to investigate heavy trucking wrecks immediately and as thoroughly as possible. The heavy trucking industry is one that is very fast-paced and results-oriented, so lawyers must step in as quickly as possible to ensure that evidence is properly preserved in order to protect clients’ rights to potential recovery. It is vitally important that lawyers request and obtain not only driver records, but records which pertain to the subject trucking company’s way of doing business. Often, investigations into single-event truck crashes lead to discoveries of company-wide misconduct which subjects the public to danger every single day. 

Beasley Allen will continue to push for safer roadways and work to ensure safe roads for the public. If you would like more information about trucking cases or about the issues presented in this article, contact Wyatt Montgomery by using the contact form at the bottom of this page.

AVIATION LITIGATION

Pratt and Whitney Aircraft Engine Recall 

As we near the holiday season, air travel will become increasingly popular as families and friends travel to visit one another. Standard delays due to crowds and weather are to be expected, but there is a new culprit for air travel woes: defective airplane engines. Thousands of jet airplane engines have been recalled by their manufacturing company, Pratt & Whitney. 

These recalls come after metal contaminants were found in high-pressure disk castings. This presence of foreign materials in the castings can lead to the formation of cracks in the engine. Approximately 1,200 engines have been recalled, resulting in 1,200 planes being grounded. 

This is not the first mass-grounding event in recent years. In 2019, the travel industry experienced an unprecedented mass grounding of all Boeing 737 Max planes. This grounding came after it was revealed that the MCAS System, Boeing’s own anti-stall software, was installed in planes unbeknownst to the pilots flying the planes. This software engaged during planes’ initial ascents, forcing the planes into nose down positions and in two instances, causing the planes to crash. 

Grounding events like the ones discussed above, while inconvenient for scheduling, are vitally important in ensuring the safety of the traveling public. 

Beasley Allen lawyer Mike Andrews leads the firm’s Aviation Litigation Team. He says he is proud to be able to represent those impacted by aviation crashes both in the United States and internationally. Mike can be reached by using the contact form at the bottom of this page.

PRODUCT LIABILITY LITIGATION

Clarifying The “Reckless” Exception To The Statute Of Repose Applied In Georgia Product Liability Cases

The Supreme Court of Georgia defined “reckless” as it relates to the statute of repose applied in Georgia product liability cases.  The underlying case, Cosper v. Ford Motor Company, is a product liability lawsuit arising from a model year 2000 Ford Explorer rollover event, which resulted in the death of the plaintiff’s father. The lawsuit, filed in 2018, alleges that Ford negligently designed and manufactured the subject Explorer vehicle and that it was defective in its design and manufacture.

The trial court, the U.S. District Court for the Northern District of Georgia, denied Ford’s motion for summary judgment in March 2022, but certified two questions to the Georgia Supreme Court concerning the application of Georgia’s statute of repose – (1) whether “recklessness” is a standalone exception to the statute of repose, and (2) if so, how is reckless conduct defined. 

The Georgia Supreme Court confirmed that recklessness is a standalone exception, distinct from “willful” and “wanton.” When a defendant’s conduct in designing a defective product is willful, wanton, or reckless, they may be found liable for that product even if it is more than ten years old. 

The Georgia Supreme Court defined “reckless” as intentionally acting or failing to act despite knowing that the action or lack of action may pose an unreasonable risk of injury or property damage.

Alyssa Baskam, a Beasley Allen principal in the Atlanta office, co-authored the amicus brief in support of the plaintiffs/appellees, on behalf of the Georgia Trial Lawyers Association.

Source: Law360

NHTSA Makes Initial Determination That ARC Airbag Inflators Are Defective

We have previously written on one of our firm’s newer cases involving defective airbag inflators, In re ARC Airbag Inflator Products Liability Litigation, which has been consolidated as an MDL in the United States District Court for the Northern District of Georgia before Judge Eleanor L. Ross. 

The Beasley Allen lawyers alleged in the MDL that when a crash is detected, the ARC-made inflators are prone to exploding due to excess friction weld flash inside the inflator that may block the ventilation holes. Once the inflators explode, shrapnel is dispersed throughout the vehicle cabin, potentially injuring or killing vehicle occupants. 

In response to reports of airbag inflator ruptures in consumers’ cars, the National Highway Traffic Safety Administration (NHTSA) has been investigating the ARC inflators since approximately 2015. During that time, NHTSA has requested information from ARC, tier one suppliers, and automotive manufacturers related to airbag inflator ruptures during testing or in customers’ cars in the field. 

Based on the submissions, on September 5, 2023, NHTSA issued an Initial Decision finding that certain frontal driver and passenger air bag inflators manufactured by ARC Automotive Inc. and Delphi Automotive Systems LLC contain a safety defect. In its initial decision, NHTSA stated that “[a]t least seven people have been injured and one person has been killed by these rupturing air bag inflators within the United States.”

NHTSA, based on its investigation, believes that ruptures may result from “the weld slag [(flash)] produced by the friction welding manufacturing process.” NHTSA also recognized that “[a]dditional inflator ruptures are expected to occur in the future, risking more serious injuries and deaths, if they are not recalled and replaced.” Accordingly, NHTSA concluded that these inflators “are defective and pose an unreasonable risk of death or injury, and therefore should be recalled” in order “[t]o address the risk that additional vehicle occupants will be killed and injured from these rupturing inflators.” 

The initial decision by NHTSA also highlights the weakness of ARC’s egregious argument: ARC said it refused to issue a recall because there is no evidence of a safety defect and the seven ruptures in the United States were only “occasional or isolated failures that are an inevitable part of any volume manufacturing process.” NHTSA rejected ARC’s egregious argument, a total disregard for human safety, stating: 

[t]he seven ruptures confirmed thus far in the United States are not de minimis in equipment that is specifically manufactured to save lives and minimize or prevent injuries, but instead have caused deaths and injuries in survivable crashes. 

Our lawyers agree with NHTSA. They will continue to vigorously pursue this litigation for Beasley Allen clients and consumers across the country. 

Before issuing a final decision, NHTSA is holding a hearing on October 5. We will keep our readers informed on this important litigation and NHTSA’s findings. 

The Beasley Allen lawyers working on this case are Demet Basar, Clay Barnett, Tom Willingham, Mitch Williams, Dylan Martin, and Dee Miles, along with lawyers from Lieff Cabraser Heimann & Bernstein, LLP, Baron & Budd, P.C., Motley Rice LLC, Carella, Byrne, Cecchi, Brody & Angello, P.C., Cotachett, Pitre & MacCarthy, LLP, and Levin, Papantonio, Rafferty, Proctor, Buchanan, O’Brien, Barr & Mougey, P.A. 

The case is In re ARC Airbag Inflators Products Liability Litigation, MDL No. 3051, Case No. 22-CV-03285-ELR, pending in the Northern District of Georgia. 

A Look At Dangers Relating To Pressure Cookers

Plug it into the wall. Fill it with food, liquid, and spices. Turn it on. Let it get to boiling temperatures and place a lock in place so the built-up pressure has nowhere to escape. Where? Right in the middle of your kitchen!

Pressure cookers are well-known household appliances, but that creates a problem. Familiarity with the device can cause users to lose sight of the danger lurking within the very concept of the machine. Every time a person removes the lid on an electric pressure cooker, they put their health in the hands of a product manufacturer. All too many times, that trust is ill-placed.

Such is the case of two Georgia-based clients represented by Preston Moore, a lawyer in our Atlanta office. The clients are a husband and wife with three beautiful children. 

Preston says one night, the couple stood shoulder-to-shoulder by the kitchen counter as their kids sat just feet behind; it was dinner time, and the parents were just about ready to plate the meal they had cooked in their Tristar pressure cooker. With just a slight turn of the lid, the pressure cooker exploded scalding liquids across the kitchen and all over the couple. Hundreds of thousands of dollars in medical bills later, the couple still suffers, and the children still fear the kitchen.

As a product liability lawyer, Preston says his job is to seek justice for the injured and to protect the public from careless manufacturing,  especially manufacturing designed to sit right beside your family dinner table.

If you need more information, or need help with a case, contact Preston Moore by using the contact form at the bottom of this page.

WORKPLACE LITIGATION

Trends In Workplace Safety

Unfortunately, millions of American workers are injured, and thousands more lose their lives every year in job-related incidents.  It is important to document these incidents to understand why they occur and to take steps to improve workplace safety.  The Bureau of Labor Statistics (BLS) is the source of information regarding reportable workplace injuries and deaths. In November of 2021, the BLS released the 2020 statistics on nonfatal workplace injuries (statistics for 2021 will be released in November or December of 2022).  The raw data in the release provides insight into whether the laws and systems in place to protect workers serve their purpose.  

According to the BLS, approximately 2.7 million nonfatal workplace injuries and illnesses were reported for 2020. Reportable nonfatal workplace injuries are broken down into those resulting in time missed from work (the more serious injuries) and those that do not require time off work (minor injuries.) There were 1,176,340 nonfatal injuries and illnesses that caused a private industry worker to miss at least one day of work in 2020, 32.4 percent higher than in 2019.  

BLS reported 4,764 fatal workplace injuries in 2020.  Other interesting findings from the 2020 statistics include:

• Fatal falls were at their highest levels, accounting for 805 worker deaths, 16% of the total;

• A worker died every 111 minutes from a work-related injury in 2020;

• Transportation incidents remained the most frequent fatal event in 2020, with 1,778 or 37% of workplace deaths;

• 14% of the workplace fatalities in 2020 involved workers age 65 or over;

• Workplace deaths in the private mining, quarrying and oil/gas industry accounted for 1% of workplace fatalities; and

• A total of 37 states had fewer workplace deaths in 2020 than in 2019. 

When a worker dies in an on-the-job injury, the loss extends beyond the workplace to the family that lost a loved one and a provider.  Likewise, serious nonfatal injuries either require significant time from work and in some instances, reduce the injured employee’s earning capacity. For non-fatal injuries, the worker’s income and ability to earn income will be negatively affected temporarily.  Some injuries are severe enough to negatively affect a worker’s earnings for their entire work life expectancy.   

Because many of the deaths and serious nonfatal injuries are caused by interactions with some form of industrial machinery, it is important for manufacturers to ensure that robots and other machines are designed with adequate safety devices in place.  In turn, the employer is responsible for properly training employees and ensuring that manufacturer-provided safety devices are installed and properly maintained.  Safer industrial machines will result in a reduction of deaths and nonfatal injuries requiring days off work.  

OSHA’s purpose is to emphasize worker safety, and many of the rules apply specifically to safeguarding industrial machinery.  Without OSHA’s constant oversight, manufacturers and employers might be tempted to sacrifice worker safety for profits, leading to more deaths and serious injuries.  Beasley Allen lawyers will continue to monitor workplace injury statistics and use them to inform our readers about workplace safety.  

If you need more information or help with a workplace case, contact Sloan Downes, Section Director of the Personal Injury & Products Liability Section by using the form at the bottom of this page. She will have a lawyer in the section contact you. 

PREMISES LIABILITY LITIGATION

Security Companies And Negligent Undertakings

Part and parcel of any negligent security claim is establishing that the defendant in the case owed a duty to the plaintiff to protect them from harm arising from third-party criminal conduct. For owners or occupiers of land, this duty is rooted in O.C.G.A. § 51-3-1. However, the duty imposed by § 51-3-1 does not apply to independent contractors providing security services at the property. 

Section 51-3-1 notwithstanding, the Georgia Supreme Court recently held—in Georgia CVS Pharmacy, LLC v. Carmichael—that a “party providing security services still may be held liable in tort for the negligent performance of voluntarily undertaken duties.” This is because a security company possesses a common law “duty to use reasonable care in carrying out its voluntary undertaking.” Section 324A of the Restatement (Second) of Torts (“Section 324A”) provides the basis for this duty.

In Carmicheal, the lower court held that the company providing security services to the occupier of the property was entitled to summary judgment on the plaintiff’s negligent security claim because “it had no duty toward” the plaintiff “as either third-party beneficiaries to its contract with” the occupier “or under Section 324A.” 

The Georgia Supreme Court reversed, reasoning that there was “no basis in the law to artificially limit the common-law duties reflected in Section 324A in negligent-security premises liability cases.” The court further explained that “where a contract sets forth the duties alleged to be the basis of the negligent undertaking claim found in Section 324A, the scope of the duties contractually agreed upon will inform the question of whether . . . a security company has undertaken to perform a duty owed by the other to the third person.”

The Carmichael decision offers critical guidance for practitioners litigating negligent security claims against security providers. Lawyers should frame these specific claims against security companies as negligent undertakings pursuant to Section 324A—not § 51-3-1—and make sure to carefully review the contract governing the services that the security company provided to the occupier of the property.

If you have any questions about negligent security cases or need help in a case, contact Parker Miller by using the form at the bottom of this page. Parker is in our Atlanta office. He has successfully handled a number of premises liability cases and will be glad to help you.     

Class Action Litigation

Tenth Circuit Denies General Motor’s Petition To Appeal Class Certification In Oil Consumption Litigation

Beasley Allen lawyers Clay Barnett, Mitch Williams, and Dylan Martin, along with our co-counsel from the Dicello Levitt firm, represent Colorado residents who own or lease a 2011-2014 GM truck or SUV equipped with a Generation IV 5.3L LC9 engine in a class action lawsuit against General Motors, LLC. The suit alleges the trucks and SUVs suffer from excessive oil consumption due to defective piston rings. 

This class action lawsuit is like the one in which the Beasley Allen lawyers received a $102.6 million verdict last October. We have previously written about that result. Due to personal jurisdiction considerations in light of Bristol-Myers Squibb v. Superior Court of California, 582 U.S. 255 (2017), however, this action against GM was filed in the District of Colorado and is presided over by U.S. District Judge Regina M. Rodriguez.

On July 7, 2022, Judge Rodriguez denied in part and granted in part GM’s Motion to Dismiss. A short discovery window followed that order. Plaintiff moved for class certification on October 5, 2022, and, after several months of briefing, on May 5, 2023, Judge Rodriguez certified an implied warranty class for purchasers and lessees of 2011-2014 GM trucks and SUVs equipped with Generation IV 5.3L LC9 engine in the state of Colorado. In certifying the class, Judge Rodriguez held there was common evidence that predominates over individualized issues related to “whether the piston rings in the Class Vehicles’ Generation IV engines were defective at the time of sale or lease” and whether the defective piston rings render the Class Vehicles unmerchantable. 

On July 24, 2023, GM petitioned to appeal the certification order to the Tenth Circuit, arguing: 

• there is no Article III standing; 

• individualized issues predominate over common issues; 

• the district erred by not conducting a Daubert analysis during class certification; 

• the district court ignored case management and ascertainably problems; and 

• that class certification is a “death knell” that unduly pressures the parties to settle. 

On August 23, 2023, the Tenth Circuit denied GM’s petition to appeal class certification. The order states: 

• GM “has not demonstrated that a permissive interlocutory appeal is appropriate” because the class certification order was not a “death knell” that would force resolution on “considerations independent of the merits;” 

• there were no unresolved issues of law that would evade end-of-case reviewl; and 

• class certification was not “manifestly erroneous.” 

The Beasley Allen lawyers in the case expect GM to file a motion for summary judgment at the end of October. We will keep our readers informed on this important litigation. 

The Beasley Allen lawyers working on this case are Demet Basar, Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin, along with the lawyers from Dicello Levitt: Adam J. Levitt, John Tangren, Daniel Ferri, and Blake Stubbs. 

The case is White v. General Motors LLC, Case No. 1:21-CV-00410-MEH, pending in the District of Colorado. 

Facebook Judge ‘Blown Away’ By Record Response To $725 Million Settlement 

A California federal judge considering the final approval of Facebook’s $725 million settlement agreement to end claims of data impropriety said he was “blown away” over what he surmised may be the largest response to a U.S. class action. 

U.S. District Judge Vince Chhabria’s statement came after a lawyer for the plaintiffs said that while they were still processing claims, class members had already submitted over 17.7 million validated claims. Several million more claims still need processing, but the fraud review process had rejected several. Class members filed over 28.6 million claims, including 2 million duplicates. About 8 million appeared to be fraudulent. 

Judge Chhabria said that the math works out to about $30 per class member, which is a little lower than what class members might have expected. Objectors have argued that plaintiffs should have pushed for much higher compensation from the social media giant. One in particular alleged that the case was worth as much as $6.25 billion under the Video Privacy Protection Act.  

After years of litigation, Facebook struck the $725 million settlement deal last December. Users accused Facebook’s parent company, Meta Platforms Inc., of failing to prevent third-party entities from obtaining user data without consent. Cambridge Analytica, one of those third-party entities, filed for bankruptcy shortly after the scandal.

The putative class is represented by Lesley E. Weaver, Anne K. Davis, Matthew S. Melamed and Joshua D. Samra of Bleichmar Fonti & Auld LLP, and Derek W. Loeser, Cari Campen Laufenberg, David Ko, Adele A. Daniel, Benjamin Gould, Emma M. Wright, Daniel Mensher, Michael Woerner, Matthew Gerend, Christopher Springer and Eric Fierro of Keller Rohrback LLP. 

The case is In re: Facebook Inc., Consumer Privacy User Profile Litigation, case number 3:18-md- 02843, in the U.S. District Court for the Northern District of California. 

Source: Law360

Class Action Lawyers At Beasley Allen

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

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

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

THE WHISTLEBLOWER LITIGATION

False Claims Act – A Huge Success For America 

The U.S. Supreme Court ruled in a False Claims Act that the government has the authority to intervene and request the dismissal of a False Claims Act (FCA) lawsuit at any stage of its proceedings provided it can demonstrate “good cause” for its late intervention. 

The FCA is a legal framework that holds individuals and entities, typically contractors, accountable for defrauding the Federal Government. It operates through a unique “qui tam” enforcement mechanism, allowing private whistleblowers to initiate FCA lawsuits on behalf of the government. The government can then decide whether to step in and take control of the case or allow the whistleblower to continue while retaining the option to intervene later if necessary. Successful whistleblowers are entitled to receive a portion of the recovery, typically between 15% and 30%, with the remaining amount going to the government.

The case began in 2012, when Dr. Jesse Polansky filed a qui tam lawsuit, alleging that his former employer, Executive Health Resources (EHR), had overbilled Medicare for various medical services. Initially, the government chose not to intervene, and Polansky pursued the case independently. However, after five years of extensive legal proceedings, the government concluded that Polansky’s lawsuit was placing a significant burden on its resources and was unlikely to succeed. Consequently, in 2019, the government sought to intervene and dismiss Polansky’s case despite his strong objections. The district court granted the government’s request, a decision later affirmed by the Third Circuit.

In June, the Supreme Court upheld the Third Circuit’s decision and, in doing so, established the legal framework for addressing contested Motions to Dismiss qui tam lawsuits. First, the court affirmed the government’s right to intervene and request dismissal at any point during the case’s progression. The court emphasized that the government’s interest in rectifying harm to itself remains consistent throughout the case. Therefore, the government retains the prerogative to reassess its stance on a qui tam action and alter its position regarding whether the lawsuit should proceed.

Justice Thomas’ Concerning Dissension

While the majority opinion did not come as a surprise to most legal practitioners specializing in False Claims Act matters, Justice Clarence Thomas’ dissenting perspective raised concerns for relators. It’s worth noting that this dissenting opinion does not carry any binding legal authority, and every court that has considered this particular issue has consistently rejected it.

In his dissent, Justice Thomas asserted that there are substantial arguments suggesting that the qui tam mechanism is incompatible with Article I and that private relators may not represent the interests of the United States in legal proceedings. Essentially, Justice Thomas contended that the False Claims Act, enacted in 1863, has suddenly become unconstitutional by allowing “whistleblowers”—private citizens who witness fraud against the government—to bring lawsuits on the government’s behalf to recover damages. Such a notion may appear implausible because it is.

While Justice Thomas’ dissenting opinion in the Polansky case does not constitute the prevailing law and does not presently pose a threat to the False Claims Act or the ability of whistleblowers to bring cases on behalf of the government, it has raised concerns for some, particularly when considered alongside recent news reports about interactions between billionaires and certain Supreme Court Justices.

Beasley Allen lawyers who handle whistleblower cases certainly hope these issues are not related. As a country, we need to maintain confidence in our Judicial system, which remains the best judicial system in the world. The rule of law is supreme and must be respected, defended, and followed. 

Actually, Beasley Allen lawyers have already had to deal with the Thomas dissent in a case recently filed by our firm. We will discuss that happening in our case below. 

Source: The National Law Review

Anti-Fraud Group Defends FCA’s Whistleblower Provisions 

The Anti-Fraud Coalition opposed a medical device company’s claim that a whistleblower statute is unconstitutional. The coalition argued to an Alabama federal judge that the False Claims Act (FCA)’s qui tam provision permits a lawsuit alleging that a company knowingly sold faulty knee replacements to the government.

Exactech Inc. argued last month that a dissenting opinion in a recent Supreme Court decision supports its argument. According to Exactech, only the government’s officers can bring a lawsuit. However, the coalition contested this notion in an amicus brief, pointing out that for more than 150 years, all three branches of government have widely accepted the FCA. Furthermore, FCA’s provisions, which incentivize private citizens to blow the whistle, have been instrumental in safeguarding public funds for decades.

In June 2018, three former Exactech employees filed the lawsuit, alleging that the company knowingly sold defective knee replacement devices to the U.S. Department of Veterans Affairs. They also claimed that Exactech effectively made claims for reimbursement for these faulty devices from Medicare, Medicaid, and various state agencies.

Exactech argued that relators Brooks Wallace, Roberta Farley, and Manuel Fuentes lacked the legal standing to pursue their case because they were a “fundamental violation” of Article II of the Constitution based on a recent dissent by Justice Clarence Thomas in a Supreme Court decision related to the FCA, where he expressed concerns about the constitutionality of its qui tam provisions.

In response, Beasley Allen attorney Dee Miles, representing the relators, dismissed Exactech’s argument as unconvincing. In a statement to Law360, Miles said: 

We are confident that the defendants’ Article II argument challenging a relator’s standing to bring False Claims Act cases, based solely on a dissenting opinion, is meritless and will fail. 

The relators are represented by Dee Miles, Larry Golston, Leon Hampton, Lauren E. Miles and Jessi Haynes of Beasley Allen Crow Portis & Miles PC. 

The case is U.S. et al. ex rel. Wallace et al. v. Exactech Inc., case number 7:18-cv-01010, in the U.S. District Court for the Northern District of Alabama.

Source: Law360

Martin’s Point Health Care, Inc. Settles FCA Claims For $22.5 Million

Martin’s Point Health Care Inc. (Martin’s Point) has agreed to pay $22,485,000 to resolve allegations that it violated the False Claims Act (FCA) by submitting inaccurate diagnosis codes for its Medicare Advantage (MA) enrollees.  Medicare beneficiaries can enroll in managed care insurance through MA or Medicare Part C.  The Centers for Medicare and Medicaid Services (CMS) will often adjust plan payments based on the diagnosis codes of patients.  These adjustments, or risk scores, can make a beneficiary more expensive to treat.  CMS will make a larger payment to an MA plan if the risk score is higher because a patient’s health is thought to be worse.

According to the government, for payment years 2016 to 2019, Martin’s Point operated a chart review program that retained vendors to review medical records and identify and add additional risk-adjusting diagnosis codes that had not been submitted to Medicare.  However, many of the additional codes submitted were not properly supported by the patients’ medical records.  The government alleged that Martin’s Point nevertheless submitted those diagnosis codes to obtain increased reimbursements from CMS.

The settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the FCA by Alicia Wilbur, a former manager in Martin’s Point’s Risk Adjustment Group.  The qui tam provisions of the FCA allow private parties to bring suit on behalf of the government for false claims.  Under the FCA, whistleblowers receive 15% to 25% of proceeds in cases that the government joins.  Ms. Wilbur will receive $3.8 million of the settlement.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, contact a lawyer in our Consumer Fraud & Commercial Litigation Section of the firm for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may email one of our lawyers on our Whistleblower Litigation Team. Members of the team are set out below. 

Source: Department of Justice

The Beasley Allen Whistleblower Litigation Team

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

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  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 Mile and Jessi Haynes. Dee Mile heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can also be reached by using the contact form at the bottom of this page

SECURITIES LITIGATION

Securities Litigation At Beasley Allen

We will take a break this month and wait until the November issue to give an overall update on securities litigation. Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section remain very active in securities cases around the country. As previously reported, this area of our practice has continued to grow. The marked increase nationally in securities litigation came as no surprise to Beasley Allen lawyers. They were well aware of how widespread fraud has become in Corporate America.  

Lawyers in the section who handle these claims 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. 

We will give a full update of our firm’s handling of cases in this litigation in the November issue. Meanwhile, you can contact a member of our Securities Litigation Team concerning any securities issues. The team includes the following lawyers: James Eubank, who heads the team, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team.

MASS TORTS LITIGATION

American Kratom Association Issues “Consumer Advisory” Blaming The FDA And Trial Attorneys For Recent Product Liability Lawsuits

The American Kratom Association (AKA) recently issued a “Consumer Advisory” that urged the FDA to publish product manufacturing standards for kratom products that “encourages the removal of kratom products that do not provide adequate labeling instructions: including recommended serving sizes and product ingredient listings, and appropriate warnings on conditions of use.”  

While Beasley Allen’s kratom lawyers support adequate labeling, consumers should be very cautious when reading any commentary from the AKA. One reason is that the AKA is a defendant in at least one kratom wrongful death lawsuit.  It’s alleged in that lawsuit: 

• the AKA has a financial incentive to promote kratom products; 

• the AKA even says kratom products have passed a “rigorous safety inspection,” but “the inspection program is a farce.”  

The AKA’s recent “Consumer Advisory” also claims that recent court decisions, including the $2.5 million verdict in Washington and $11.6 million declaratory judgment in Florida, “are the result of a combination of FDA’s failures to regulate kratom products and aggressive trial attorney actions that fail to hold the FDA accountable for their lack of regulations.”  

The AKA is misleading the public on both points, and the following observations will help explain why.

• First, the lawsuits holding their kratom members accountable are due to their own failures to adequately warn consumers about the risks of kratom products.  

• Second, it is not the role of trial lawyers to hold the FDA “accountable” for not enacting regulations. Trial lawyers hold wrongdoers accountable for past conduct; they are not “policymakers” for future regulation. 

Beasley Allen lawyers are currently litigating a product liability case involving kratom in Atlanta, Georgia.  Our lawyers will continue to represent people who seek to hold kratom companies accountable for their deceptive marketing and sales practices.

Source: American Kratom Association

Litigation Update On Lawsuit Against Philips Respironics

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

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

In the Multidistrict Litigation, plaintiffs are currently preparing their deposition schedule. Four depositions are scheduled to take place between August and October of this year. Further depositions will be scheduled once timeliness issues on Philips’s part are resolved. To date, Philips has produced two million documents, while plaintiffs have produced 335,000 pages of documents. Naturally, this indicates a prolonged discovery process due to the amount of information being produced on both sides. 

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.

Infant Formula Litigation Update

The FDA issued three warning letters on August 30 to baby formula manufacturers, namely ByHeart Inc., Mead Johnson Nutrition (Reckitt), and Perrigo Wisconsin, LLC. These letters informed the companies of their violations of the Federal Food, Drug, and Cosmetic Act (FD&C) based on findings from FDA inspections over the last several months during the recalls of products contaminated with Cronobacter sakazakii. This is a bacterium that can live in dry foods and cause infection, leading to neurological impairment.  

This is not the only issue the formula companies face.  Even uncontaminated baby formula presents serious health risks to premature infants.  Necrotizing Enterocolitis (NEC) affects the intestines of primarily premature infants soon after birth when bacteria invade the intestinal wall. This, in turn, allows bacteria and other substances to leech into the abdomen and bloodstream. 

An approximated 30% of babies diagnosed with NEC require surgery to remove damaged portions of the intestines. Research has established that one of the primary causes of NEC in premature infants is feeding them cow’s milk-based formulas such as Enfamil and Similac (as opposed to human breastmilk). Virtually every pediatric medical organization worldwide recognizes this heightened risk and recommends human milk over these formulas.  

Mead Johnson (maker of Enfamil products) and Abbott Laboratories (maker of Similac products) do not display any warnings on their products regarding the risk of NEC to premature infants. To make matters worse, these companies have known for decades about the risks of NEC associated with their infant formulas and yet still refuse to warn mothers and hospital staff about it.  

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

New Developments In The Acetaminophen Litigation

On September 8, 2023, an Assistant United States Attorney, in consultation with the FDA, declined Judge Denise L. Cote’s invitation for a statement of interest regarding the United States’ views regarding warnings for over-the-counter (OTC) acetaminophen products.  Jacob Lillywhite, the Assistant U.S. Attorney, was quoted as saying that the “FDA does not engage in third-party litigation” and they simply “monitor the safety of drug products.”  Judge Cole is a highly expected senior U.S. District Judge for the Southern District of New York. 

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

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

Source:  In re: Acetaminophen – ASD-ADHD Prods. Liab. Litig., 22-md-03043-DLC, Doc. 1105.

Toxic Heavy Metals In Baby Food

Beasley Allen lawyers continue to investigate baby food products regarding their toxic heavy metal content and its effects on infants. In 2018, Consumer Reports tested several baby foods available for consumption in the U.S.  Of those tested, 33 of the 50 contained high amounts of lead, arsenic, mercury and cadmium. This year, Consumer Reports performed a new analysis of the same foods.  While some of the products reduced their heavy metal content, others increased.  Studies have shown that consuming heavy metals may increase the risk of overall infant health and developmental problems in children.  This would include neurodevelopment disorders such as Autism, ADHD and other behavioral issues.  

There are several cases filed around the country against many of the baby food manufacturers with trial dates scheduled to begin in 2024. Roger Smith, Chad Cook, Ryan Duplechin, Mary Cam Raybon and Melissa Prickett, lawyers in our firm’s Mass Torts Section, are currently investigating individual cases involving children who consumed baby food contaminated with toxic heavy metals. These lawyers will be glad to talk with you if you have questions or need help with a case. They can be reached by using the form at the bottom of this page.

Source: Consumer Reports

Hair Discrimination Leads Women To Use Dangerous Products 

Many of the black women who regularly used chemical hair relaxers and developed uterine cancer, endometrial cancer, and ovarian cancer used the relaxers as they were trying to adapt and conform to “societal pressures” to straighten their hair and conform to European standards. Black women have struggled with their hair and feeling accepted in the workplace for many years, which is one of the major reasons why the introduction of the CROWN Act is so important. The CROWN Coalition reported two-thirds of black women feel obligated to straighten their hair before a job interview.

The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles, including braids, locs, twists or bantu knots. 

In 2019, California became the first state to address the risk of discrimination based on characteristics such as hair texture, including but not limited to, styles typically associated with black and brown people. 

The act aims to prevent discrimination against individuals with natural hair or hairstyles commonly associated with their racial, ethnic, or cultural identities. The Crown Act is law in 23 States. 

In 2022, the House of Representatives passed H.R.2116 (Creating a Respectful and Open World for Natural Hair (CROWN) Act of 2022), prohibiting racial discrimination based on hairstyle or hair texture in employment and educational settings. Currently, the bill is awaiting reintroduction to the Senate in the 2023 legislative session.

While many states were passing legislation enacting the CROWN ACT, at the same time, in 2022, the National Institutes of Health study reported a higher risk of uterine cancer in women who reported using chemical hair straightening products compared to those who did not use these products. This is extremely alarming to black women, who were one of the main reasons for the enactment of the CROWN Act legislation. The CROWN Act enables women to wear styles that are not associated with hair relaxers or chemical straighteners. 

While chemical hair straightening manufacturers were not the main culprit of discrimination and the legislation of the CROWN Act, these manufacturers were surely making a profit off the discrimination. Chemical hair straightening companies have been pressuring black women in ads and campaigns for years to straighten their hair so that they could fit in or be accepted in the workplace.

While the CROWN Act has been a step in the right direction, discrimination is unfortunately still occurring and did unfortunately occur in the past at alarming rates. Black women have been and are still feeling pressured to use chemical hair straighteners to conform. However, these chemical hair straightening products are dangerous as they have phthalates and many endocrine-disrupting chemicals that cause women to develop uterine, endometrial, and ovarian cancer.  Chemical hair straightening companies have an obligation to tell consumers what is in their products. However, they failed to mention that the usage of the products caused women to be more susceptible to uterine, ovarian, and endometrial cancer. 

Beasley Allen lawyers are actively investigating cases of uterine cancer, endometrial cancer, and uterine cancer in women who developed these conditions after frequently using chemical hair relaxers. If you need more information, or need help with a case, contact Aigner Kolom, a lawyer in our Mass Torts Section, by using the form at the bottom of this page. If Aigner is unavailable, contact Melissa Prickett, and she will take a message and have Aigner or another Mass Torts Lawyer working on these cases contact you.

Source: The Crown Act

TOXIC TORT LITIGATION

An Update On The Paraquat Litigation

The Daubert challenges ended in September. During the last week of August, the Daubert hearings unfolded over four days in court. During this time, the parties made their arguments before Chief Judge Nancy Rosenstengel. Additional briefing was due to the court in September. As a result of the hearings, Chief Judge Rosenstengel canceled the upcoming October bellwether trial date. At this time, a new trial date for the bellwether trial has not been announced. 

The Daubert hearings focused on the link between exposure to Paraquat and the development of Parkinson’s disease. The plaintiffs argued that Paraquat causes particular cell death and tissue damage characteristic of Parkinson’s disease. The defense argues that Parkinson’s primarily results from genetic factors. During the Daubert hearings, the defense was largely critical of the plaintiffs’ experts – specifically Dr. Martin Wells. Beasley Allen lawyers say these attacks are without merit and are unjustified. 

Leslie LaMacchia and Julia Merritt, who are both on the Plaintiff’s Executive Committee, are leading Beasley Allen’s litigation for Paraquat. Beasley Allen is working with numerous firms to offer advice on case screening and acquisition for these cases. As the litigation continues to move forward, the Beasley Allen Paraquat Litigation Team is working with a number of other firms to advance these cases to resolution. These cases have many trouble areas, so you can reach out to our team of lawyers for assistance or to work together on Paraquat cases: Leslie LaMacchia, Julia Merritt, and Matt Pettit. They can be reached by using the form at the bottom of this page

Philips Strikes $479 Million Deal with Respirator Customers

The Dutch multinational medical device maker Koninklijke Philips NV (Philips) has struck a deal with a class of plaintiffs worth at least $479 million that may resolve economic claims related to its recalled CPAP machines and other breathing devices. 

If approved, the settlement will make payments and other awards available to consumers affected by the recall of nearly 11 million CPAP, BiPAP and ventilator machines. Philips Respironics recalled the sleep and respiratory care devices in June 2021 after discovering potential health risks related to the insulating foam in the devices.  

Depending on the type of device, consumers who own the recalled machines will receive payments ranging from $55 to $1,552 per device. They will also receive a $100 payment for each recalled device they return to Philips. The deal further provides extended warranties for replacement machines and cash bonuses to some customers who bought replacement machines after the recall.

Philips said it has reserved $615 million to cover the settlement costs, but claims could approach $1 billion if most of the consumers in the settlement class file a claim. 

The settlement does not resolve any claims against Philips and its subsidiaries alleging personal injury resulting from using the defective products or medical monitoring for any long-term health effects problems caused by the recalled machines. Those claims in the multidistrict litigation are still being litigated and are excluded from the settlement. 

If the U.S. District Court for the Western District of Pennsylvania approves the settlement, Philips expects to begin making payments in early 2024.

The plaintiffs are represented by Sandra L. Duggan and Keith Verrier of Levin Sedran & Berman LLP, Christopher A. Seeger, Caleb Seeley and David R. Buchanan of Seeger Weiss LLP, Kelly K. Iverson of Lynch Carpenter LLP, Steven A. Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith LLP, D. Aaron Rihn of Robert Peirce & Associates PC, Michael F. Ram of Morgan & Morgan PA and Peter S. Wolff of Pietragallo Gordon Alfano Bosick & Raspanti LLP.  

The case is In re: Philips Recalled CPAP, Bilevel PAP and Mechanical Ventilator Products Litigation, case number 2:21-mc-01230, in the U.S. District Court for the Western District of Pennsylvania. 

Sources: Law360, Philips

Kroger To Pay Up To $1.4 Billion To Settle Opioid Claims 

Kroger agreed to pay $1.2 billion to states and local governments and $36 million to Native American tribes to settle claims that it helped fuel the nation’s opioid epidemic. The entities had accused the grocery and pharmacy chain of ignoring suspicious prescriptions for the highly addictive narcotics. Kroger also agreed to pay $177 million in attorney fees and costs. 

Kroger will begin making payments in December in installments over the next 11 years. The entities will have the option to opt in to receive funds. The regional chain said its agreement to settle was not an admission of liability and that the agreement should not affect its proposed merger with rival grocery store chain Albertsons. 

CVS Pharmacy, Walgreens, and Cardinal Health have already paid billions each to settle similar claims with the states, local governments, and tribes. Since the opioid crisis litigation began, government entities have collected more than $55 billion from opioid makers, distributors, and pharmacies for their role in fanning the epidemic’s flames. 

Earlier this year, Kroger inked a $68 million deal with West Virginia, ending a trial that would have started in October. Kroger was the last defendant in the lawsuit after Walgreens paid $83 million in January to settle similar opioid claims. 

Source: Law360

Tennessee Attorney General Reaches $44.5 Million Opioid Settlement With Food City 

The southern supermarket chain Food City agreed to pay the State of Tennessee $44.5 million to end allegations that it fueled the epidemic of opioid addiction with its loose but profitable drug-dispensing practices. 

Tennessee Attorney General Jonathan Skrmetti announced the deal on September 21. He said that most of the funds from the agreement will be directed to Tennessee’s opioid abatement fund, used to back measures aimed at snuffing the state’s opioid crisis.  

The state’s lawsuit, filed in Feb. 2021, accused Food City, its parent company K-VA-T, and executives of routinely ignoring all the red flags that Food City pharmacies were dispensing opioid drugs for illicit uses. The suit alleged that Food City filled opioid prescriptions from foreign countries and far away states, including Hawai’i and Alaska, accepted cash payments for the drugs, ignored drug activity in its parking lots, and doled out the drugs when the patient and prescriber information was incorrect.  

From 2006 to 2014, one of Food City’s pharmacies sold more highly addictive opioids than any other pharmacy in the state, and opioid prescriptions were being filled at such a high volume across the supermarket chain that there was no explanation other than the drugs were being misused, the suit contended.

The lawsuit alleged that “Food City and its executives were fixated on maintaining high-volume sales of [OxyContin 30 mg] and other opioids.”

In addition to the payout, Food City and K-VA-T agreed to boost pharmacy staff training, update its prescription validation system, report suspicious opioid prescription activity, and provide job opportunities for state residents recovering from opioid addiction.

Sources: Law360, Tennessee State Government

Pharma Consultant McKinsey Strikes $230 Million Opioid Deal

The management consulting firm McKinsey & Co. agreed to pay local government and school district claimants $230 million to end allegations that its work advising Purdue Pharma and other drug makers helped fuel the national opioid crisis. 

At the center of the multidistrict litigation, tried in a San Francisco federal court, were claims that McKinsey helped major opioid manufacturers develop marketing strategies that drove the epidemic of opioid addiction and abuse. 

The deal allocates $207 million to local governments, with the remaining $23 million going to the school districts. McKinsey and several of the school districts and city and county governments told the court in Oct.  2022 that they had reached an agreement in principle. The deal still needs final approval from the judge.

The agreement comes on top of a $641.5 million deal that McKinsey struck with the attorneys general of all 50 states in Feb. 2021 to end similar claims for its alleged role in the opioid crisis. 

According to a motion for settlement in the latest McKinsey deal, the opioid crisis killed about 350,000 people in the U.S. from 1999 to 2016. Opioid abuse in all its forms took the lives of about 645,000 people in the U.S. between 1999 and 2021, according to the CDC. The crisis rages on despite stricter controls at all levels of the supply chain. 

School districts, local governments, and Native American tribes have already reached deals with major opioid producers and distributors totaling more than $51 billion, ending claims that the companies downplayed the risks of prescription opioids for years.

The plaintiffs are represented by Lieff Cabraser Heimann & Bernstein LLP, Robbins Geller Rudman & Dowd LLP, Motley Rice LLC, Simmons Hanly Conroy LLC and Browne Pelican PLLC, among other firms. ​

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

Sources: Law360, Reuters

N2O Maker, Seller Hit with $745 Million Verdict for Deadly Crash

A Missouri grand jury awarded the family of a woman killed by a man high on nitrous oxide $745 million after finding the distributor of the gas and a shop that sold it had pushed it for recreational use.

United Brands Products Design Development and Marketing Inc. made and sold nitrous oxide in charges branded under the name Whip-It! Nitrous oxide, also known as laughing gas, can be sold legally in the U.S. as a food propellant but cannot be marketed and sold for recreational use. 

In Oct.  2020, a man addicted to nitrous oxide inhaled the gas from a Whip-It! charge he bought at a St. Louis smoke shop. He then got behind the wheel of his Honda Pilot and passed out while driving. The vehicle veered off the road and struck 25-year-old Marissa Politte by the front door of an emergency medical clinic where she had just gotten off work. Ms. Politte later died from her injuries.

The jury found United Brands to be 70% at fault for the deadly collision. Coughing Cardinal, the outlet that sold the nitrous oxide Whip-It! shared 20% of the blame. The remaining 10% fell on the man who caused the crash. The jury calculated damages of $700 million against United Brands and $45 million against the Coughing Cardinal. 

A deciding factor in the decision was that attorneys for the plaintiff were able to demonstrate that the nitrous oxide producer was “intentionally targeting the inhalation market,” knowing that someone could be injured or killed.

The family was represented by Johnny Simon of the Simon Law Firm PC.

The case is Chaplin et al. v. United Brands Products Design Development and Marketing Inc., case number 20SL-CC06071, in the Circuit Court of St. Louis County, State of Missouri. 

Sources: Law360, The Kansas City Star

AFF – MDL Judge Issues A Nationwide Stay Under The All Writs Act Of 1789

Judge Richard Mark Gergel of the U.S. District Court for the District of South Carolina has stayed all litigation against 3M for PFAS contamination of drinking water under the seldom-used Writs Act of 1789.  Judge Gergel, who oversees multidistrict litigation involving specialized firefighting foam made with per- and polyfluoroalkyl substances (PFAS), preliminarily approved a revised $12.5 billion settlement between 3M and water utilities on Aug. 29.  Judge Gergel has also approved a $1.2 billion settlement between DuPont entities and water utilities.

The 3M settlement is the subject of controversy from several objectors, noting that the trade organization for water utilities, the American Water Works Association, has estimated the cost of compliance nationwide at nearly 40 billion dollars in capital costs alone.  Utilities are now on the clock.  That’s because the settlement provides a 90-day period in which utilities must either opt out of the settlement or be forever bound by its terms.

This use of the All-Writs Act enjoins any new cases filed and stays all current litigation against 3M for PFAS contamination of drinking water until after a final fairness hearing for the class action settlements.  Hundreds of water utilities have pending actions against 3M that are now stuck in a waiting situation regardless of whether they opt out of the class action settlement. The All-Writs Act is balanced by the Anti-Injection Act, which disfavors federal court exercising jurisdiction of the entire U.S. legal system, including state courts.  Nonetheless, Judge Gergel determined that the exceptions to the Anti-Injunction Act applied and ordered a stay. This puts plaintiffs’ cases in both state and federal courts in an unexpected position and one that puts the litigation in a “waiting game.”

If you need more information or need help on a case, contact David Diab, a lawyer in our Toxic Torts Section, by using the form at the bottom of this page.

Source: American Water Works Association

EMPLOYMENT AND FLSA LITIGATION

Beasley Allen Represents NFL Players Who Filed A Discrimination Class Action Over Benefits

Beasley Allen lawyers Leon Hampton and Paul Evans have filed a class action lawsuit against the National Football League (NFL) Player Disability & Survivor Benefit Plan and the Player Disability & Neurocognitive Benefit Plan (collectively the Plans) seeking redress for the racial discrimination, wrongful denial of benefits, violations of governing regulations, and breaches of fiduciary duties. Specifically, it’s alleged in the lawsuit that the NFL employs a racist assumption that African American and other non-white people are inherently less intelligent than white people, and the damages incurred because of those assumptions related to disability and other benefits. 

The Plans allow former NFL players to receive benefits if they are diagnosed with certain neurocognitive impairments before they turn 55 years of age. To determine whether a player qualifies to receive benefits because they suffer from neurocognitive impairment, the player undergoes a series of tests to diagnose impairments.  

If the tests indicate that there is a neurocognitive impairment, the impairment is ranked as either “mild” or “moderate,” with the monthly payments issued related to the ranking. 

The tests conducted take a raw score and convert the scores to a scaled version, which are supposed to provide a baseline. Instead, however, as alleged in the complaint, the scores are adjusted using a methodology called “race-norming,” which was designed under the racist assumption that African American and other non-white persons have a lower baseline neurocognitive functioning than white participants. 

Because of this alleged assumption, African American and non-white participants are required to show even lower performance on cognitive tests than the performance required by their white counterparts. For example, a non-white participant and a white participant may score the exact same raw scores, but because of the race-norming methodology, the white participant may be considered to have a “moderate” impairment, while a non-white participant’s impairment may only be “mild.” Alternatively, the white participant may be considered to have “mild” impairment while the non-white participant may be considered to have no impairment. 

As a result of the race-norming methodology, African American and non-white participants were paid less under the Plans than their white counterparts. Beasley Allen is committed to assisting these players in requiring the NFL to correct its racist assumptions by ensuring that participants’ neurocognitive impairments are not based on race-norming methodologies, which directly impact the African American and non-white plan beneficiaries. 

If you have any questions about this case or our work related to the NFL’s Player Disability & Survivor Benefit Plan and the Player Disability & Neurocognitive Benefit Plan, contact our co-lead lawyers, Leon Hampton and Paul Evans. Other than Leon and Paul, Rebecca Gilliland and Dee Miles will also be working on the case.

THE CONSUMER CORNER

Alabama Supreme Court Tells Defendants To Produce Pattern & Practice Evidence

We will discuss an important ruling by the Alabama Supreme Court that deals with pattern and practice testimony in civil cases. A classic example involves fraud in a civil lawsuit. Fraudulent conduct is often defined by a defendant’s prior conduct, i.e., its pattern and practice (P & P). A defendant could have a policy of discriminating, even if the policy is not always followed. In traditional fraud cases, the plaintiff will seek pattern and practice evidence from a bad actor defendant during discovery. Predictably, that defendant will fight very hard against P & P production. Courts will generally disfavor limiting discovery of P & P production, and defendant’s dissonance is often overcome using third-party subpoenas directed toward a defendant’s insurance agencies to provide the case examples demonstrating pattern and practice. 

Employment and Worker’s Compensation cases based on theories of discrimination are no different in needing to establish pattern and practice, and evidence to establish such are no less fought against by defendants. But a recent Alabama Supreme Court Ruling advocated by lawyers in our firm indicates the state court’s distaste for denying pattern and practice discovery in employment and worker’s compensation cases. 

In the case of Keyontrell Johnson v. Buffalo Rock Company, case No.: 03-CV-2022-900998, currently pending in the Circuit Court of Montgomery County, Alabama, Plaintiff Johnson filed a worker’s compensation claim and retaliatory discharge claim against the plaintiff’s former employer, Buffalo Rock, after suffering an on-the-job injury. That same day, the plaintiff was sent for a post-accident drug screen, the results of which read as positive for controlled substances that the plaintiff previously disclosed to his employer. Defendant Buffalo Rock dismissed Plaintiff Johnson for use of substances without a valid prescription despite his disclosures. The plaintiff subsequently filed suit. 

During discovery, the plaintiff filed a Notice of Intent to Serve Subpoena on Travelers. Plaintiff’s requested the names of employees from the defendant with filed worker’s compensation and retaliatory discharge claims for the past ten years from the date of the filing, their files (excluding medical records), reasons for file closures, and their contact information from Buffalo Rock’s worker’s compensation insurance carrier. Defendants objected. 

After the trial court ruled in favor of the plaintiff, Buffalo Rock filed an emergency appeal (Writ of Mandamus petition) challenging the production through the third-party subpoena “for permitting discovery far surpasses the limits of the Rules of Civil Procedure.” After considering the emergency appeal, the Supreme Court denied the Writ of Mandamus petition. 

The Alabama Supreme Court denied the Writ of Mandamus. This denial validates the importance of using third-party subpoenas against defendants to seek non-protected information relevant to pattern and practice evidence from the past ten years in certain cases.  The denial also validates the importance of defendants producing such pattern and practice evidence during discovery. 

Beasley Allen lawyers remain committed to fighting for consumers to obtain justice in our courtrooms and welcome every opportunity to litigate against bad actors, particularly those who continue to promote a policy of discrimination and damaging behavior. If you have any questions relating to this supreme court ruling or need help in a possible employment discrimination matter, contact Larry Golston, Leon Hampton, Lauren Miles or Jessi Haynes. They will be glad to help you.  

Kia, Volkswagen, Subaru, And Audi among 208,000 Vehicles Recalled 

The National Highway Transportation Safety Administration (NHTSA) announced a slew of vehicle safety recalls across multiple car brands. Audi, Kia, Porsche, Subaru and Volkswagen are recalling a combined total of 208,000 vehicles. The recalls come on the heels of another spate of recalls totaling 611,000 vehicles from different carmakers (like Toyota), announced the previous week. Here is a glimpse of the latest recalls:

Audi: The Volkswagen Auto Group is recalling 1,899 2023 Audi E-Tron electric vehicles over a potential sealant problem that can cause liquid to accumulate in the high-voltage battery. A battery fluid accumulation could lead to electrical arcing, posing a fire risk. 

Volkswagen: VW is also recalling 47,651 2019-2020 Jetta vehicles to repair an ignition switch defect that can cause the switches to fail in hot environments. An ignition switch failure can cause the vehicle to stall or shut down unexpectedly, potentially causing a crash. 

Kia: The Korean automaker announced a recall of 144,979 2022 and 2023 Sorento SUVs to repair mounting clips securing the rearview camera, which can break and cause the camera to improperly display, diminishing the driver’s rear view. 

Porsche: Porsche and VW are recalling 4,777 of their 2023 luxury Taycan vehicles because the high-voltage batteries don’t have enough sealant. The defect can allow water accumulation within the battery, leading to electrical arcing and posing a fire risk. 

Subaru: The Japanese automaker is recalling 8,915 2022 BRZ and Toyota GR86 (Toyota is the largest single shareholder of Subaru) sports cars due to rear turn signals that can sporadically fail, potentially resulting in a rear-end collision.  

Toyota: Toyota is recalling 21,781 of its 2023 Tundra and Tundra Hybrid pickup trucks due to the spray-on bed liner accessory they were equipped with. The load-carrying capacity modification label is incorrect, which can result in an overloaded vehicle. A vehicle loaded beyond its load-carrying capacity may have an increased risk of a crash.

Sources: USA Today Network, National Highway Transportation Safety Administration

3.37 Million Hyundai, Kia Vehicles Recalled for Fire Threat

Hyundai and Kia are warning drivers of 3.37 million vehicles to park outside and away from buildings and other structures due to defects that could cause engine fires. The automakers say they are recalling all affected vehicles and that owners should keep the vehicles outdoors until the recall repairs are completed.

The defect in 1.64 million Hyundai vehicles concerns the Anti-Lock Brake System (ABS) module, which may allow brake fluid to leak internally and cause an electrical short that could trigger an engine fire. A fire could start whether the vehicle is in motion or turned off. The automaker has received 21 reports of fires and an equal number of thermal incidents since 2017.

Kia says the Hydraulic Electronic Control Unit (HECU) in 1.74 million vehicles can short-circuit because of brake fluid leaks, potentially igniting a fire in the engine compartment. As with the Hyundai vehicles, the affected Kia models can catch fire when the vehicles are in motion or turned off. Kia has received at least ten confirmed reports of fires and heat-related incidents. Neither carmaker has received reports of crashes, injuries, or deaths connected to the defects. 

The Hyundai vehicles covered in this recall are certain 2011-2015 Accent, Azera, Elantra, Equus, Genesis Coupe, Santa Fe, Santa Fe Sport, Sonata Hybrid, Tucson, Tucson Fuel Cell, Veloster and Veracruz vehicles. 

The Kia recall covers 2010-2017 Borrego, Cadenza, Forte, K900, Optima, Rondo, Sorento, Sportage and Soul Rio vehicles.

Hyundai and Kia will notify owners of the recalled vehicles in November with more information about the issue, repairs and timeline.

Source: National Highway Transportation Safety Administration

A LOOK AT THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

How The Structure Of Beasley Allen Is Set Up And Why It Works

We have written in prior issues about how Beasley Allen has grown from its start-up in 1979 as a one-lawyer firm to a very large firm today. It was explained how the division of the firm into sections came about. The separate litigation sections concept has worked very well since the change was made. It continues to work well on behalf of our clients.

At the beginning of the firm and for a number of years, Beasley Allen lawyers handled all sorts of litigation. That changed when we revised the structure in 1998, resulting in the firm operating in five separate sections. The Administrative Section supports the four litigation sections that could be described as “mini-firms” within Beasley Allen. Those four sections are the Mass Torts Section, the Toxic Torts Section, the Consumer Fraud & Commercial Litigation Section and the Personal Injury & Products Liability Section.

Each section has a team of lawyers and support staff working closely together, creating efficiency and case expertise within each section. The lawyers and staff develop expertise in the area of law handled by the section. Successful section performance leads to better firm performance overall, allowing us to expand our resources and enabling firm growth. Year after year, we believe our approach has allowed us to help more of those who need it most.

The Mass Torts Section

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

The Toxic Torts Section

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

The Consumer Fraud & Commercial LItigation Section

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

The Personal Injury & Products LIablity Section

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

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

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

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases 

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

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

We will give a brief explanation for each category below:

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

Resources to Help Your Law Practice

Beasley Allen is a litigation firm for plaintiffs, meaning we only represent individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing. Our lawyers do not handle any defense work, whether civil or criminal, and there are no exceptions. The only time we represent companies in Corporate America is when they are victims of wrongdoing and are plaintiffs in civil litigation. This has been our policy since the firm’s establishment in 1979, and it will never be changed.

We are honored and humbled that our firm has been consistently recognized as one of the leading law firms in the country for representing sole claimants involved in complex civil litigation. Being trial lawyers representing only victims of wrongdoing is a privilege for us. Our firm has been truly blessed.

We understand the importance of sharing resources and collaborating with our peers in the legal profession. We are committed to investing in resources that can help our fellow trial lawyers in their work. We have compiled a list of our most popular resources for those seeking to work with us or seeking information to help their law firm with a case.

Co-Counsel E-Newsletter 

Beasley Allen sends out a Co-Counsel E-Newsletter specifically tailored with lawyers in mind. It features case updates, highlights key victories achieved for our clients, and informs readers about the firm’s latest resources. You can get it online by visiting our website, BeasleyAllen.com and clicking the Articles link.

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 presentations. To register for upcoming events or access past webinars on-demand, visit the website and click on the Events and Webinar page.

Recalls Update

We try our best to stay current on the latest significant consumer recalls. Contact our JLB Report Team at [email protected] if you have any questions or believe we may need to include a recall.

The Jere Beasley Report

We also consider The Jere Beasley Report a service to lawyers and the general public. We provide the Report at no cost monthly, both in print and digitally. Visit our website, BeasleyAllen.com and click the Articles link.

TRIAL TIPS FOR LAWYERS

Suzanne Clark, who handles e-discovery issues for the firm, will give you some tips this month on the very important subject. Suzanne has had vast experience in this field of law. Let’s see what she has for our readers. 

Understanding E-Discovery Pricing: Gigabytes as the Widgets of the E-Discovery Industry

Pricing for electronic discovery platforms and services is complex. However, as lawyers, we are trained to learn just about anything, and especially as personal injury lawyers, we know how to figure out everything we need to know to prosecute our cases, including complicated science and engineering. So, with that in mind, e-discovery pricing is just math; it’s just business, and it’s absolutely something we can figure out. Once we understand the ins and outs of e-discovery pricing, we can use that knowledge to negotiate e-discovery contracts and hopefully reduce the costs of our cases.

Let’ start with the fundamentals and build from there. The first fundamental is, understanding what you are going to be charged for. What is the product? There are three main things you may be charged for in e-discovery: data volumes, software, and service hours. Sometimes, these three things overlap and intertwine.

Data volumes: What is a gigabyte? 

• 1 gigabyte (GB) = 1024 megabytes (MB) = 1,048,576 kilobytes (KB)
• 1,000 GB = 1 terabyte (TB)
• 1 GB = 50,000 to 75,000 pages (varying depending on file types)

For e-discovery pricing purposes, think of a gigabyte as a unit of measurement for the potentially responsive and discoverable electronically stored information (ESI) or data that will be hosted in an e-discovery platform. ESI is a term of art that was introduced through the amendments to the 2006 amendments to the Federal Rules of Civil Procedure. The terms “data” and “ESI” are often used interchangeably by e-discovery service providers to describe what will make up the gigabytes that will be hosted. 

The gigabyte is the “widget” of the e-discovery industry. You will collect a certain number of gigabytes of data from your client, and your opposition will collect a certain number of gigabytes from their client. You will need to find a vendor to host the gigabytes you collect in an e-discovery software allowing you to analyze the ESI that makes up those gigabytes. In other words, there are two kinds of hosting: (1) hosting your client’s ESI to analyze it to cull it down to what is discoverable, and (2) hosting the incoming productions from the other side. Incoming productions are already culled down ESI, i.e. the opposition has already determined it is discoverable before they produced it.

Typically, you will host the ESI that you collect from your client, then you reduce that down to what is discoverable, and you produce it to the other side. You also host what the opposition produced to you, which is already reduced to responsive ESI. Each data volume collected or produced is measured in gigabytes or terabytes, and when the e-discovery vendor’s pricing is based on the hosting of data volumes, then you will pay per gigabyte per month. Often, e-discovery vendors have tiered pricing for gigabytes, which means once you get to a certain number of GBs, e.g., 1000 GBs, which is a terabyte, the pricing will go down per gig, and so on.

These days, it costs pennies on the dollar to host and store data, so when you are paying five to ten dollars per gigabyte to host, you are not just paying for the storage volume. You are also paying for the benefits the e-discovery software platform provides to your case. A gigabyte is just an objective unit of measurement for a vendor to charge. Also, theoretically, the greater the volume of data,  the more you will need the benefits of the software tools and the more you are willing to pay.

In addition to data volume, you are also paying for the software’s functionality. Different vendors price in different ways. Some incorporate their pricing completely into the per gigabyte fee, which means you pay for what you use. If they charge $10/gig/month, and you have 50 gigs, you pay $500/month to host it. Simple. 

Other vendors charge a flat amount annually, just to have access to their product. They will offer you a per gigabyte rate to apply to your flat rate and if you exceed that amount, you start paying per gigabyte per month on top of the flat fee. For example, you may be required to pay $120,000 upfront to use the software for a year at a $10/gig/month rate. Then, if you have 1,000 GBS (1TB) of data, that is applied towards your flat fee at $12,000/month. If you have less than 1,000 GBs of data, you still pay the flat fee. If you go over 1,000 GB of data, you pay $10/gig/month for every GB over 1,000. 

This pricing is more complex and can be a lot more expensive if you have fewer GBs than anticipated. If the software has a lot of functionality, and if you know how to use the software, it has the potential to save you a lot of time. However, if you do not know how to use the software, it is not doing anything more for you than a less expensive software that does not have a minimum commitment would do.

Another fee a vendor may charge for their software is through monthly use fees. Some only charge user fees through a subscription model and do not charge for hosting. Also, many vendors have a one-time per gigabyte fee to process data. You will pay this fee for your own client’s data that you are ingesting, but processing is typically handled by a producing party, so this fee will not be necessary for incoming productions.

Another thing you can purchase from an e-discovery vendor is hours of time from technicians and consultants. These service providers can help you search, analyze, and otherwise sort through your data to get to the information you need to prove your case and/or to produce to the other side. They can also teach you how to use the software so you or your staff can do these tasks yourself. Another service you can buy from e-discovery vendors is forensic collection services, e.g. imaging smartphones or collecting social media accounts, but that is a topic for another day.

E-discovery pricing can be complex, but hopefully, the above fundamentals will arm you with the knowledge you need to negotiate e-discovery vendor contracts and create a budget for your litigation. 

Hopefully you will find this information to be helpful in your trial work. If you would like to discuss this area of trial work with Suzanne, contact her using the form at the bottom of this page.

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

Greg Allen

Greg Allen was my first law clerk after I opened my office as a sole practitioner in January of 1979. He took a non-paying job in order to gain valuable experience while attending the Jones School of Law. Greg passed the bar in 1983, became a lawyer, and stayed with my firm. I thank the Lord for that decision. More than 40 years later, Greg remains a loyal and vitally important lawyer at Beasley Allen, serving as our lead products liability attorney. 

Greg is passionate about helping injured people seek justice against giant corporations that harmed them, especially in difficult and complex cases. He enjoys and welcomes the challenges involved when huge corporations, with all their available resources, are defendants in his cases. 

Greg’s mission of helping those who need it most is deeply rooted. Born and raised in Atlanta, Greg saw the devastating effects of corruption firsthand. He recalls:

It was disheartening to see how the powerful took advantage of the less fortunate.  These injustices fueled a fire and a sense of purpose to make a difference to prevent others from being mistreated. 

Greg takes tremendous pride in seeing justice done for folks who would otherwise not expect to see it. Over the years, Greg has secured a huge number of large verdicts and settlements for his clients in need, including over 60 cases that settled for seven-plus figures and three topping $100 million.  

Greg has received many accolades in his long career at Beasley Allen, including being honored with the War Horse Award by the Southern Trial Lawyers Association. But his greatest rewards come in seeing vast improvements in product safety as a result of his work in products liability litigation. Greg has helped to make our country a safer place for everyone because of the changes that have been made by the government, but also by many in Corporate America. 

I have worked with Greg in a number of cases over the past 44 years. He is one of the very best, if not the very best, products liability lawyers in the entire country. In fact, I have never seen a products liability lawyer who I considered any better at his craft than Greg. His intelligence, technical knowledge, dedicated work ethic and concern for his clients in combination, have contributed to Greg’s successes. I have learned a lot from Greg over the years. He has helped me become a better lawyer. 

We are blessed to have Greg at Beasley Allen. 

Deborah Drinkard

Deborah Drinkard works as a Medical Records Coordinator in the firm’s Mass Torts Section, where she is responsible for daily reconciliations to ensure accuracy and checking to ensure medical authorizations are validated. She also downloads daily records, assisting with closing cases and other special projects as needed. Deborah has been with the firm for 22 years and has been dedicated to her team and the firm.  We are thankful to have her with us!

Deborah shares that she and her husband, Lamar, have been blessed with six children, ten grandchildren, and twelve great-grandchildren, with one more on the way in the Spring of 2024. She enjoys spending time with family, gardening, tending to their 15 goats and their babies, and outdoor activities at home in the country with their grandkids.  They are avid Alabama football fans and love watching NASCAR.

When asked what her favorite thing about working at Beasley Allen is, Deborah said:

It is rewarding to work for a company that truly cares about their employees.  

I cherish the friendships I have made over the years, and I enjoy my job!

Deborah has a vitally important job in the Mass Torts Section. She does excellent work and is a definite asset for the firm. 

Beverly Larkin

Beverly Larkin is an Accounting Clerk in the firm’s accounting department, where she handles all checks, including matching them with invoices, scanning them, updating check register reports, getting them signed, and renaming those that are canceled.  She also assists with filing invoices, monitoring the team’s mailbox, transferring check images to the directory, and mail distribution.  Beverly has been with the firm for just over 20 years, 10 years of which have been devoted to working in the accounting department.  She is an asset to her team and the firm, and her hard work and dedication are highly valued!

Beverly comes from a large family with four brothers and four sisters, which always felt like having a bunch of friends, she says! She has been married to her husband, John, whom she describes as the love of her life, for over 39 years. She and John have three children, Saundra and twins Lester and Sylvester. Beverly says they also have eight beautiful grandchildren who keep their weekends pretty much full. Beverly loves spending time with family, attending Northview Christian Church in Montgomery, where they are members, dancing, sharing fond memories with her grandchildren, and enjoying a good meal!

Beverly says her favorite thing about working at Beasley Allen is getting to know the people at the firm, and since she has to frequently interact with staff and attorneys throughout the firm, she gets to learn more about them!

We are blessed to have Beverly at Beasley Allen. Several of her best traits are that she loves the Lord, enjoys helping folks, and is an “encourager” for everybody she has contact with. 

Dee Miles

This month, we spotlight Dee Miles, who heads our Consumer Fraud and Commercial Litigation Section. Dee does a tremendous job in that capacity. He is also a tremendously talented trial lawyer.

As a former business and banking professional, Dee witnessed firsthand the injustices consumers faced at the hands of corporations. Those injustices instilled in Dee a desire to level the playing field. Dee said about those earlier years:

I wanted to be a voice for the underdogs of the world. I wanted to be part of the solution to correct the injustice.

Dee attended Cumberland School of Law and went on to study Comparative International Law at the University Heidelberg in Heidelberg, Germany, in 1988. After a year of judicial clerkship and another as a Staff Attorney for the Alabama Supreme Court, Dee joined the Beasley Allen Law Firm in 1991 and quickly established himself as a pioneer in consumer fraud and commercial litigation nationwide. 

Throughout the years, Dee has been appointed to serve in leadership roles for several Multidistrict Litigations (MDLs) throughout the United States, taking on the responsibility of coordinating large and complex consumer and commercial litigation for the entire country. His settlements in these cases currently total about $19 billion.

Numerous legal associations and analysts have recognized Dee as one of the country’s top commercial and consumer litigation lawyers. Dee says the opportunity to help consumers stand up to large and powerful corporations is a driving force in his career:

Getting results for clients who have experienced injustice and loss is my favorite part of practicing law. This is especially true when we can obtain justice for millions of consumers all at once in our class action cases and Attorney General cases.   

The desire to help others and the privilege of making it your life’s work are qualities that shape Beasley Allen’s approach to the practice of law. When asked what makes Beasley Allen a unique law firm, Dee replied:

The people. We hire talented and tenacious people who have that unique balance of compassion and intellect that results in success for our clients.

We are blessed to have Dee at Beasley Allen. He serves on the firm’s Board of Directors and has helped to shape the firm in its current form. As the Section Head for the Consumer Fraud and Commercial Litigation Section Dee has helped thousands of consumers receive justice. 

Ryan Traub

Ryan Traub is a Legal Secretary in the firm’s Personal Injury and Products Liability Section, working with Chris Glover, Managing Attorney of the Atlanta office. Ryan is responsible for providing a variety of administrative support duties to Chris Glover and the Atlanta office’s day-to-day operational needs. He assists with opening and assigning cases and is better known as the “go-to person” in the office. Ryan joined the firm in 2017 and is a vital part of the team and the firm.  We are thankful to have Ryan with us!

Ryan and his wife, Haley, have a 4-year-old son, Levi, who he describes as very rambunctious and never fails at keeping them on their toes.  The Traub’s also have a fur baby, who happens to be an 18-pound cat named Phoebe. Haley is a middle school music teacher in Paulding County, Georgia, teaching 6th grade this year. Ryan says eating is probably his number one hobby! They love taking advantage of the Atlanta restaurant scene, traveling, and reading in their spare time. 

Ryan says his favorite thing about working at Beasley Allen are the people. He says:

Everyone is so great to work with. There is a genuine desire amongst everyone to jump in and help others when needed.  It’s wonderful to be a part of such a supportive work environment.

FAVORITE BIBLE VERSES

Lawyers and staff employees who are being featured this month have shared their favorite Bible verses for this issue.

Greg Allen

Greg provided one of his favorite Bible verses. He said it reminds us that when we trust in God and surrender our worries and anxieties to him, God will provide us with the peace that goes beyond our comprehension. Greg says this verse is a beautiful reminder of God’s love and care for us.

And the peace of God, which transcends all understanding, will guard your hearts and your minds in Christ Jesus. Philippians 4:7

Dee Miles

Dee Miles shares three of his favorite Bible verses this month. 

A Psalm of David

The Lord is my shepherd, I lack nothing. He makes me lie down in green pastures, he leads me beside quiet waters, he refreshes my soul. He guides me along the right paths for his name’s sake. Even though I walk through the darkest valley, I will fear no evil, for you are with me; your rod and your staff, they comfort me. You prepare a table before me in the presence of my enemies. You anoint my head with oil; my cup overflows.Surely your goodness and love will follow me all the days of my life, and I will dwell in the house of the Lord forever. Psalms 23

^“For I know the plans I have for you,” declares the LORD, “plans to prosper you and not to harm you, plans to give you hope and a future. Jeremiah 29:11

but when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you. Matthew 6:6

Deborah Drinkard

Deborah Drinkard sent in two of her favorite Bible verses. She says the first one helped her stay strong and positive following a breast cancer diagnosis. 

Now faith is confidence in what we hope for and assurance about what we do not see. Hebrews 11:1

Deborah’s other favorite verse gives her comfort that God heard her prayers and healed her as he does others. “Today I’m cancer-free!” she says.

God is our refuge and strength an ever-present help in trouble. Psalm 46:1

Beverly Larkin

Beverly Larkin had three favorite Bible verses to share. She says the first two give her reassurance that she will have a new home in heaven for all eternity. 

Do not let your hearts be troubled. You believe in God; believe also in me. My father’s house has many rooms; if that were not so, would I have told you that I am going there to prepare a place for you? John 14:1-3 

The righteous perish, and no one takes it to heart; the devout are taken away, and no one understand that the righteous are taken away to be spared from evil.  Those who walk upright enter into peace; they find rest as they lie in death. Isaiah 57:1-2

 Beverly says she also likes a third verse because it lets her know death in this life isn’t the end for her.

Two things I ask of you, Lord; do not refuse me before I die. Keep falsehood and lies far from me; give me neither poverty nor riches, but give me only my daily bread. Proverbs 30:7-9

CLOSING OBSERVATIONS

Embracing Our Legacy, Shaping Our Future: A Statement By The Firm’s Founder, Jere Beasley

Dear Readers,

As the founding member of the Beasley Allen law firm, I would like to express my deep gratitude for your interest in the monthly Jere Beasley Report. The Report is where our lawyers and staff personnel provide valuable insights, updates, and news from our firm and the constantly changing world of civil litigation nationwide. 

I started Beasley Allen as a one-man firm in Montgomery on January 15, 1979. The firm was born from my desire for continued service to my community, state, and country. But mostly, I wanted to be in a position to help those who needed it most. 

Actually, it was a stern lecture from Judge Frank M. Johnson and his advice for me to get my rear end (he used a different term) out of politics and return to the practice of law that really motivated me. Judge Johnson let me know that there were very few lawyers representing victims in Montgomery and none doing that exclusively as a lawyer for only plaintiffs.

I was a young lawyer when I left the legal profession and entered politics, running for office in 1970. I was elected Lt. Governor of Alabama at that time. So, in January of 1971, I was sworn in as Alabama’s 22^nd Lt. Governor and became the youngest Lt. Governor in the country. I served in that office for two terms and in 1978 ran for governor. Thankfully, the voters decided to put me back in the practice of law, as I was defeated by my friend Fob James.  

Today, more than four decades after I was defeated by Fob in 1978, I am the founder of Beasley Allen. I followed Judge Johnson’s advice, and I am out of politics and practice law as a “trial lawyer.” 

“Helping those who need it most” stands as the commitment and guiding principle of all Beasley Allen lawyers and staff. It’s reflected in our integrity, compassion, and unwavering commitment to our clients; it shapes our relationships with our partner lawyers and firms and inspires our community involvement. It’s also a purpose that drives our success. I am proud to say that at Beasley Allen we do things the right way and for the right reason. Our clients are always the top priority in the firm. 

Today, Beasley Allen employs 285 individuals, including almost 100 lawyers, and we have offices in Atlanta, Mobile, and Dallas in addition to our original home office in Montgomery.

The Jere Beasley Report newsletter is a testament to our ongoing dedication to serving the public interest. Our goal is simple: to provide you with the latest updates about the cases we’re litigating, industry insights, and relevant legal news from reliable sources that we believe will help you to make informed decisions in the ever-changing legal landscape. 

We provide a wealth of information in every issue of the Jere Beasley Report, including:

1. Legal Analysis: Our team of experienced lawyers share their expertise on various legal matters, exploring complex issues and plaintiffs’ rights.
2. Consumer Safety: We are committed to informing you about product recalls, safety alerts, and potential hazards that may affect your daily life.
3. Client Success Stories: We highlight the cases where justice prevailed, showcasing how the law can make a meaningful difference in the lives of real people.
4. Community Involvement: Learn about our firm’s involvement in charitable activities and our commitment to giving back to the community.
5. Legal Updates: Stay up-to-date with the latest changes in legislation and important court decisions that impact your rights.

Thank you for entrusting us with your time and attention. Together, we can continue our mission to uphold justice and advocate for a safer, fairer society. I look forward to sharing this journey with you and hope you find our newsletter both informative and valuable.

Mitt Romney Calls For ‘New Generation Of Leaders In America 

Last month, Utah Republican Senator Mitt Romney announced his decision not to seek reelection to the Senate. He cited his age and said it was time for a “new generation of leaders.” Romney was critical of both President Joe Biden and former President Donald Trump. 

This choice by the Utah Republican signals the departure of a distinctive Senate voice, one unafraid to challenge his own party. Romney has consistently been a rare Republican member who openly criticized Trump and would occasionally align with Democrats on important matters.

Romney is the son of George Romney, a Republican businessman who served as the Michigan governor and ran for president. Mitt Romney made a name for himself as a businessman who later became Governor of Massachusetts, serving from 2003 to 2007. In 2012, he became the GOP’s presidential nominee, losing to incumbent Barack Obama. While I respected Romney and agreed with him on several fronts, I didn’t vote for him. I fully supported Obama and worked hard for his election. 

I am proud to say that I voted for Obama in both of his races. He was a great President. But I still respect Romney, and that respect is based on his love for America, his honesty, integrity and his willingness to work for the common good. 

Romney’s political stances have been consistent. He has advocated for a balanced federal budget, reduced taxes, support for real capitalist enterprises, a robust military, and a foreign policy geared toward democratic ideals. As a result, Romney was often at odds with the leadership of the Republican party.

In 2020, Romney made history by finding Trump guilty of abuse of power during Trump’s initial impeachment trial in the Senate, making him the first senator in U.S. history to vote for the removal of a president from his own party.

In a video message announcing his decision not to seek reelection, Sen. Romney highlighted various pressing matters affecting our country, including such things as the escalating national debt and the climate crisis. Romney asserted: 

Neither President Biden nor former President Trump are effectively addressing these challenges.

In closing, I firmly believe that we need more politicians like Mitt Romney – men and women who are honest, have integrity, are trustworthy, put the country above their political parties, and do what’s right for the American people. Both parties should strive to find more “politicians” like Mitt Romney. 

Mitt Romney will be missed in the Senate, and his absence is a loss for all Americans!

Sources: The Atlantic, The Seattle Times, The Nation, and CNN

OUR MONTHLY REMINDERS

The following are the monthly reminders for all of us at Beasley Allen. I have been asked recently by a few folks why these reminders are put in the Report. My answer always has been that they apply to our lives, both in the workplace and at home. That’s why they are recommended for all at Beasley Allen and to our readers outside Beasley Allen, including our political leaders.

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

2 Chron 7:14

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

Edmund Burke

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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

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

PARTING WORDS

An event happened in Auburn recently that has gotten national attention. On Sept. 12 about 5,000 students gathered in the basketball arena at Auburn University for a “worship service” focusing on “Auburn United.” It was obvious that the spirit of God was alive in this worship experience, and it didn’t end in the arena.  WSFA-TV reported that about 200 students were baptized that night. This event was truly a spiritual revival. 

The revival in Auburn was started by one female college student and it grew into the event at the Neville Arena. Hopefully, this was the start of a nationwide revival – one that is badly needed – and one that can help change America. 

Now back to the baptisms. It had to be a powerful scene to see a couple of thousand college students standing around the lake, praying, and singing while students were being baptized. As each newly baptized person came out of the water, the cheers were reported to have compared with anything that was ever heard at Jordan-Hare Stadium or in Neville Arena! 

Praise the Lord!!

Regardless of what college you support, it’s good to recognize that an event at Auburn University could be the start of a nationwide revival on all college campuses. We are all on the same team once we accept Jesus as Lord and Savior. Each of us can also help. As my friend John Ed Mathison stated recently, we can “fan the flames of revivals everywhere.” 

America is at a crossroads, and we all have a choice to make: either we as a people can recognize God as supreme and follow Him or we can follow the present course of division and discord in the country. For me, the choice is an easy one. My prayer is for a nationwide revival, started by the one at Auburn, and for it to help save America!