The Jere Beasley Report October 2024

CAPITOL OBSERVATIONS

Alabama House Speaker Elected Chair Of CSG South

Nathaniel Ledbetter, Speaker of the Alabama House of Representatives, has been elected as chair of the Council of State Governments Southern Office (CSG South), a nonprofit organization that promotes collaboration across government branches. CSG South, based in Atlanta, includes 15 states.

Based on my experience in government, and subsequent observations after being “asked” by the people of Alabama to leave politics in 1978, I am convinced that the job of Speaker is the second most important and powerful position in state government, second only to the Governor.  Nathaniel Ledbetter will go down in history as one of the best Speakers to have served in Alabama. He has exhibited extraordinary ability, excellent parliamentary skills, and perhaps even more importantly, tremendous people skills. Simply put – this man has been a great Speaker. 

Speaker Ledbetter will serve as chair of CSG South through at least 2025 and will lead the executive committee during the 79th Southern Legislative Conference in Birmingham next July. This conference, the largest regional gathering of lawmakers and staff, is expected to attract over 1,800 attendees. It will feature programs on government innovations and solutions, with policymakers and experts sharing success stories.

Speaker Ledbetter expressed his gratitude for the opportunity and excitement to showcase Alabama’s unique culture. He previously served as chair-elect during the 2023 conference in West Virginia, which had a record turnout of over 2,000 attendees. Discussions at that conference included topics like the Farm Bill, COVID-19 learning loss, and the economic impact of electric vehicle facilities.

CSG was founded in 1933, and CSG South in 1947. Member states include Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

Source: Alabama Daily News

TALC LITIGATION

J&J’s Third Bankruptcy Attempt 

We are now having to deal with another Johnson & Johnson (J&J) bankruptcy.  Lawyers representing tens of thousands of women with ovarian cancer linked to the use of J&J talc products oppose the pre-packaged bankruptcy that the company filed on Sept. 20 in Texas. 

Red River filed for Chapter 11 with a plan to establish a trust to compensate claimants alleging that J&J’s talc-based baby powder caused cancer. The plan proposes distributing approximately $9 billion over 25 years. The company also seeks to extend the automatic stay of litigation to J&J and its affiliates. It’s significant that the U.S. Trustee’s officer opposes the Red River plan. 

In its filing, the New Jersey-based pharmaceutical giant said that approximately 83% of the plaintiffs surveyed by the company agreed to the plan’s terms. This is the percentage that forms the legal threshold for launching a so-called “pre-pack” bankruptcy. Andy Birchfield, who fought the previous bankruptcy attempts and opposes the current plan, says: 

We view this so-called vote as another fraudulent effort by J&J to manipulate the bankruptcy process and minimize the legitimate claims of ovarian cancer victims. It’s preposterous for a company valued at $400 billion, with $90 billion in annual revenue, to resort to bankruptcy to unfairly compensate the women whose lives it has irreparably harmed.

The Financial Reality

Even if the amount that J&J proposes to pay plaintiffs as part of its bankruptcy plan is confined to scientifically sound, Daubert-tested claims (the legal standard for scientific evidence), the average compensation per claim would still be greatly less than the medical costs required to treat most ovarian cancer patients. On this issue, Andy observed:

This proposed compensation is a gross undervaluation. Ovarian cancer claims involve measurable costs that are far greater than what is being offered.

All persons involved in the talc litigation should take a look at the costs incurred by women who are suffering from ovarian cancer. These are the facts: 

• Medical expenses for treating ovarian cancer can range from more than $1.5 million to less than $50,000, depending on the age of the victim and the stage of the cancer.  

• The weighted average of medical costs for treating ovarian cancer is more than $220,000. Likewise, lost wages are objective and calculable. 

• Lost wages for ovarian cancer claimants average more than $230,000.

Beyond these objective costs, there are subjective factors such as pain and suffering that merit consideration and would be a part of the damages in a claim. The pain and agony that ovarian cancer victims experience is staggering – certainly to be valued at a multiple of the medical costs. Based on the conduct of Johnson & Johnson, punitive damages should also be considered as part of a damages award. 

Lawyers representing ovarian cancer victims have questioned the integrity of the bankruptcy voting process. Andy says:

We believe there are major irregularities in J&J’s voting process that were designed to make a mockery of the pre-pack process, including votes from people who have cancer, but not ovarian cancer. There’s no reason for them to be a part of this process. Accepting liability for someone’s illness without a legal claim is something J&J would never otherwise consider or accept but for the opportunity to use those votes to stuff the ballot box and overwhelm the votes of ovarian cancer victims whose claims have been prosecuted in both federal and state court, just a further example of the company’s hypocrisy in this litigation.

The recent ruling by the U.S. Supreme Court in Harrington v. Purdue Pharma is another reason that J&J’s plan should not succeed. In that case, the court ruled that a multibillion-dollar bankruptcy plan for Purdue Pharma, the maker of the opioid OxyContin, could not move forward because the plan shielded the company’s wealthy owners from liability for opioid-related claims. 

Even with an overwhelming majority of creditors approving the indemnification scheme, the court in the Purdue Pharma case ruled financially solvent entities or individuals cannot use the bankruptcy courts as a shield to escape liability for marketing and manufacturing dangerous products. J&J’s plan mirrors the fraud attempted by the Sackler family and offers another reason for denial.

In the company’s two earlier bankruptcy filings, the New Jersey court, as well as the U.S. Court of Appeals for the Third Circuit, found that J&J filed bad faith bankruptcies, ruling that J&J and its shell subsidiary did not warrant bankruptcy protection as financial distress was lacking.

Empty Promises to Victims

Beyond the inadequacy of J&J’s proposed financial compensation, an equally alarming concern is the complete uncertainty surrounding when, if ever, ovarian cancer victims will receive payment. Similar bankruptcies have dragged on for years without claimants seeing any compensation. 

We believe the Texas court will closely scrutinize this bankruptcy attempt.  J&J is not committing to timely or guaranteed payments. If this plan is imposed on claimants, J&J will effectively escape accountability for its talc-contaminated baby powder, and ovarian cancer victims will never receive just, equitable compensation.

The Texas bankruptcy judge temporarily halted certain talc personal injury lawsuits against J&J for three weeks to address jurisdictional issues in the Chapter 11 case of Red River Talc LLC, the new J&J spinoff. 

During a three-hour hearing, U.S. Bankruptcy Judge Christopher Lopez declined to issue a temporary restraining order but agreed to an administrative freeze on litigation until October 11. 

The Coalition of Counsel for Justice for Talc Claimants is represented by Sander L. Esserman of Stutzman Bromberg Esserman & Plifka PC, David J. Molton, Jeffrey L. Jonas, Eric R. Goodman, Gerard T. Cicero and Susan Sieger-Grimm of Brown Rudnick LLP and Melanie L. Cyganowski, Adam C. Silverstein and Sunni P. Beville of Otterbourg PC.

The Office of the U.S. Trustee is represented in-house by Jayson Ruff, Linda Richenderfer and Ha Nguyen.

The adversary action is Red River Talc LLC vs. Those Parties Listed on Appendix A to the Complaint and John and Jane Does 1-1000, case number 24-ap-03194, in the U.S. Bankruptcy Court for the Southern District of Texas.

The bankruptcy case is In re: Red River Talc LLC, case number 9:24-bk-90505, in the U.S. Bankruptcy Court for the Southern District of Texas.

Source: Law360

Beasley Allen Talc Litigation Team

Let’s make it clear– Beasley Allen is totally committed to battling J&J on every front. We will continue to fight the good fight in the right way and for the right reason to the very end. We are confident that this litigation will wind up in a manner with justice being done. 

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head our Talc Ovarian Cancer Litigation Team. From the beginning, they have been directly involved in all phases of the talc litigation. Andy Birchfield, who heads up our Mass Torts Section, has also been actively involved with the team in all aspects of this litigation. Andy has become J&J’s target, and they have tried very hard to intimidate him. That has not worked. 

This has been a tough battle, but it is a critically important and necessary one, and our lawyers do not intend to back down.

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 Sutto and Matt Teague.

CAMP LEJEUNE LITIGATION

The Impact Of TCE Exposure On Camp Lejeune Veterans 

Recent studies reveal that Marines stationed at Camp Lejeune in North Carolina, have a 70% higher risk of developing Parkinson’s disease compared to those at Camp Pendleton in California. This increased risk has been linked to exposure to trichloroethylene (TCE), a chemical contaminant found in the water at Camp Lejeune.

Trichloroethylene (TCE) is a colorless, volatile organic compound used as a cleaning agent and degreaser for metals. It is also found in some refrigerants, paints, sealants, coatings, and automobile products like brake cleaners.  Camp Lejeune water sources were contaminated with TCE from spills, leaks from underground storage tanks, and leaking drums at dump and storage sites.

The Environmental Protection Agency (EPA) states that TCE exposure can increase the risk of cancer and cause damage to the liver, nervous system, and brain. It has also been identified as one of the most significant links to Parkinson’s disease.

A study by the U.S. Department of Veterans Affairs examined the health records of 340,000 servicemembers stationed at Camp Lejeune from 1975 to 1985. During this period, the base’s water contained TCE levels 70 times higher than the permissible amount. The study found a 70% higher risk of Parkinson’s disease in veterans stationed at Camp Lejeune compared to those at Camp Pendleton.

Despite significant evidence and the intent of the Camp Lejeune Justice Act, the DOJ has declined to acknowledge the presence of chemicals such as TCE at the base, or to establish any causal link between the known contaminants and the reported diseases.

The general trial framework is expected to include a phase requiring plaintiffs to present evidence establishing what chemicals were in the water from 1953 and 1987, as well as a general causation phase, where plaintiffs will need to establish the causal link between specific contaminants and the designated Track illness.  After these “threshold” issues are adjudicated, streamlined individual trials will be conducted.  

Camp Lejeune Litigation Team

Beasley Allen Toxic Tort lawyers are heavily involved in all aspects of this litigation, including bellwether trial work. You can contact any of the lawyers on our litigation team if you need help with a claim, have questions about the litigation, or would like to co-counsel with us on one of your cases. The lawyers on the team include Ryan Kral, Matt Griffith, Jeff Price, Elliot Bienenfeld, David Diab, Gavin King, Tucker Osborne, Elizabeth Weyerman, Saima Khan, Travis Chin, Wesley Merillat, and Miland Simpler.

Toxic Torts Section Head Rhon Jones is heavily involved in all aspects of the litigation, including the bellwether trial work and in leadership roles as a member of the Plaintiff’s Executive Committee. The lawyers on our litigation team will be honored to work with you if you need help with a claim or have questions about the litigation.

SOCIAL MEDIA LITIGATION

Discovery Continues In The Social Media Litigation

Beasley Allen lawyers are pursuing claims against Facebook, Instagram, Snapchat, TikTok, and YouTube for injuries resulting from addiction to these defendants’ social media platforms. Our lawyers have filed lawsuits on behalf of hundreds of injured individuals, adults and minors, for injuries and damages arising out of their addiction to these social media platforms. Beasley Allen also represents school districts in claims they have sustained damages in contending with their students’ social media addictions (which have been stayed pending resolution of an appeal to be filed concerning the dismissal of those claims).

These lawsuits have been filed in the Federal District Court for the Northern District of California and the Superior Court for the County of Los Angeles. 

Discovery is underway in both federal and state proceedings, with defendant fact depositions scheduled across the fall and winter. Plaintiffs, treatment providers, and a fact witness will also be deposed. Collection of plaintiff device data is underway, and parties have agreed to case-specific search terms to be run across bellwether plaintiff’s electronically stored information. Written discovery and production continue with an expected deadline in April 2025. Trial picks should be selected before May 2025. 

If you need more information on the personal injury segment of our social media litigation or need help on a case, contact a lawyer on the firm’s Social Medial Personal Injury Litigation Team, Joseph (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.

42 Attorneys General Urge Social Media Warning Labels

A bipartisan group of 42 attorneys general has urged Congress to introduce warning labels on social media platforms to address the mental health risks posed to young people. This coalition supports U.S. Surgeon General Dr. Vivek Murthy’s recommendation for such labels, emphasizing their role in reminding users of the dangers associated with social media.

New York Attorney General Letitia James, a co-leader of the coalition, highlighted that these labels could help reduce social media addiction among adolescents, particularly due to the algorithms designed to maximize engagement and the manipulative features that harm their mental and physical health.

General James stated: 

Young people across our country are struggling, and these addictive social media algorithms are only making this mental health crisis worse.

She hopes the warning labels will be swiftly implemented to raise awareness.

The warning labels require congressional approval. This push by the Attorneys General follows a lawsuit filed by over 36 state attorneys general against Meta, accusing the company of using harmful features on Instagram and Facebook to addict children and teens and collecting data from those under 13 without parental consent.

The 42 attorneys general also called for increased regulation of how social media sites interact with children and teens, stressing the need for greater awareness of the risks involved.

The letter was signed by attorneys general from various states and territories, including both Democrats and Republicans. The matter is being handled by Assistant Attorney General Nathaniel Kosslyn of the Bureau of Internet and Technology in the New York State Attorney General’s Office.

Source: Law360

The Beasley Allen Social Media Personal Injury Litigation Team

Joseph VanZandt, who leads our 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 in the MDL, helping lead the federal social media multidistrict litigation. The Beasley Allen litigation team handling the social media personal injury cases is set out below.

Social Media Personal Injury Litigation Team

If you need more information on our personal injury segment of the social media litigation or need help on a case, contact a lawyer on the firm’s Social Medial Personal Injury Litigation Team at 800-898-2034 or by email. Members of the team are:

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

MOTOR VEHICLE & TRUCKING LITIGATION

$160 Million Verdict Emphasizes Importance Of Heavy Truck Safety

A jury in Clarke County, Alabama, awarded $160 million last month to Leonard Wiley Street and his wife, Tracy Street, in their lawsuit against Daimler Truck North America (DTNA). A defectively designed truck caused Leonard’s catastrophic spinal injury in a rollover crash. At the conclusion of the 2-week trial, the jury granted $75 million each in compensatory and punitive damages to Leonard, and $10 million to Tracy for loss of consortium.

Leonard Street was a truck driver for 40 years, and he loved his job. The incident giving rise to this lawsuit took place on June 22, 2022. A pick-up truck veered into Mr. Street’s lane, causing his truck to rollover. Leonard was properly belted, but his truck was equipped with a suspension seat that goes up and down for a comfortable ride. Unfortunately, this type of seat forces the driver up into the roof during a rollover at the same time the roof is crushing inward into the occupant survival space. Leonard suffered a fractured neck and incomplete quadriplegia.

The truck in this case was a 2023 model year Western Star truck manufactured by Daimler Truck North America. Our trial team, led by Ben Baker, showed that the design of the roof and cab structure had not changed since 1995. Daimler had been involved in industry research for 30 years that showed rollovers were the single most harmful event for truck occupants. 

Daimler had advocated since the late 1990’s for trucks to have stronger roofs and automatic pull-down seats, known as Rolltek seats, that activate in rollovers to pull the driver’s suspension seat to the floor and away from the crushing roof structure. However, the roof of the cab of the truck in this case had not been changed since 1995. The Rolltek seats were optional, not standard.

Daimler’s own research showed roof designs of the 1995 vintage could not survive a 180-degree rollover because they were so weak. In trial preparation, our trial team tested 3 Western Star cabs. It was shown that for $79.00, the cab, in this case, could have been reinforced to survive this rollover. As stated above, the 2023 Western Star truck, designed in 1995, lacked this feature. Daimler failed to do any testing for the case. 

DTNA’s failure to install rollover safety technology, such as an automatic pull-down seat, contributed to the severity of Leonard’s injuries. He is 60 years old, and his life care plan was $7.4 million. 

DTNA had a long-standing neglect of cab strength improvements, despite knowing the dangers of rollovers for truck drivers. Leonard hopes the verdict in his case will cause DTNA to prioritize driver safety.

The Streets were represented by Ben Baker, Kendall Dunson, and Wyatt Montgomery from Beasley Allen, along with R. Edward (Eddie) Massey III from Mobile and Matt Drinkard from Grove Hill. The trial team did a tremendous job in representing the Streets in this case.  

The case is Street v. Daimler Trucks North America LLC, case number 16-CV-2023-900002, in the Circuit Court Of Clarke County, Alabama.

Tire Maintenance As We Move Into Colder Months

Summer is winding down slowly with cooler weather still weeks away around the country. As we look ahead to the holidays and cold weather, it’s a good time for some traffic safety tips. Let’s take a look at tire safety.  

Travel during colder months brings entirely new hazards to the road that are not present during the summer, such as frozen roadways and bridges. While drivers cannot always control whether they encounter an icy road, there are certain precautions drivers can and should take to ensure their vehicle is adequately prepared for cold weather. 

For example, drivers should regularly check the tread depth of their tires to ensure proper controllability. Tires should also be monitored to ensure they are maintained at the proper air pressure. 

It is well-known that colder weather causes tire pressure to decrease, but the reasons and remedies are not frequently discussed. Consider the following:

• First, air contracts when it is cold, therefore taking up less space within the tire itself. 

• Second, cold air can cause a rubber tire to contract and leak air around the rim. Both occurrences are slow-presenting in nature and may not immediately grab a driver’s attention at a glance. 

The same holds true for vehicles: slow leaks may not always alert the vehicle’s sensory technology and, as a result, a driver may be completely unaware the tires may be a source of risk and danger. For this reason, drivers should regularly check the stability and air pressure of each tire on their vehicle manually. An inspection schedule should be set and followed. 

The National Highway Traffic Safety Administration recommends monthly maintenance inspections, focusing on proper tire inflation pressure, treadwear, and tire damage, in conjunction with tire rotation, balancing, and alignment. 

28th Takata Airbag Inflator Death Reported

The National Highway Traffic Safety Administration (NHTSA) has confirmed the 28th death in the U.S. due to a defective Takata airbag inflator since 2009. This defect led to the largest recall in U.S. history, with over 100 million vehicles recalled globally, including 67 million vehicles in the U.S. The latest death, involving a Honda vehicle in Alabama in 2018, was confirmed based on new information from Honda.

Takata airbag inflators remain a danger to the public.  Despite over 67 million vehicles being recalled in the U.S., we are still seeing Takata airbags injure and kill occupants of vehicles with these airbags.  Just last month, the National Highway Traffic Safety Administration (NHTSA) confirmed the 28^th death mentioned above due to a defective Takata airbag in Gadsden, Alabama.  

NHTSA warned that even minor crashes could cause Takata airbags to explode, resulting in fatal or severe injuries.  Since 2009, hundreds of injuries have been reported due to these airbags, which can release metal shrapnel upon explosion.  

It’s shocking that these airbags are still on the road.  Just in May, Nissan warned owners of 84,000 vehicles, and Stellantis issued a similar warning for 29,000 Dodge Ram pickups last year.  

Honda has confirmed 20 deaths in its vehicles and has replaced or accounted for over 95% of the recalled inflators. The issue is linked to the propellant degrading after long-term exposure to temperature fluctuations and humidity.

These airbags are dangerous and should not be in any vehicles at this juncture. The problem is that many auto manufacturers replaced Takata airbags with defective Takata airbags. Other manufacturers have waited until the propellant in the airbags has had time to degrade and failed to immediately issue recalls. This has resulted in many vehicles with defective airbags remaining on the road.  Beasley Allen calls on all auto manufacturers to get all these deadly airbags off the road now without delay. 

Regulators Want Forced Recall Of 51 Million Car Airbags

At press time, U.S. regulators were moving towards recalling up to 51 million airbag inflators that could potentially explode in a crash, a long-standing safety issue in the auto industry. The National Highway Traffic Safety Administration (NHTSA) has deemed these parts defective after extensive review and pushback from the industry. The inflators were manufactured by ARC Automotive Inc. and the former Delphi Automotive Systems LLC.

Despite NHTSA’s recommendation in May 2023, ARC has not issued a widespread recall. The agency has allowed an additional 30 days for comments on its latest decision. These airbags have been used by several car manufacturers, including General Motors, Stellantis, Volkswagen, and Hyundai. GM had already recalled nearly 1 million vehicles from 2014 to 2017 due to ARC inflators.

NHTSA has reported at least nine incidents of ruptured inflators causing injuries, including two fatalities, from 2009 to March of last year. Delphi Automotive sold its airbag business to Autoliv Inc. in 2009, and NHTSA is still determining the legal responsibility for the Delphi inflators. This situation is reminiscent of the massive Takata airbag recall. However, the ARC issue appears unrelated. It was observed that a recall of this magnitude would significantly impact the auto industry and vehicle owners.

Source: Claims Journal

Fatal Kia Optima Crash Suit Revived By 6th Circuit

A split Sixth Circuit Court of Appeals panel reinstated two lawsuits recently that involved a malfunction in the cruise control of a 2008 Kia Optima causing it to accelerate and crash into a van. The Kia’s driver and twin boys in the van were killed. The panel found that the trial court wrongly excluded parts of the plaintiffs’ experts’ opinions. These two cases arose out of the same incident and are in the same court. 

The majority opinion stated that the trial court went against a previous appeal’s findings by excluding expert Steven Loudon’s testimony, which was based on case facts and his own testing. Loudon stated that a defect in the vehicle’s design, which uses a single signal wire, caused the crash. His testing showed that the cruise control malfunctioned, causing the car to accelerate uncontrollably.

The panel also found that the trial court wrongly excluded Loudon’s opinion that a design failure modes and effect analysis (FMEA) would have revealed the defect. The court ruled that not eliminating every possible cause of the crash affects the weight of the testimony, not its admissibility.

The case arose from a December 31, 2015, accident in Winchester, Tennessee, after an 83-year-old woman driving a 2008 Kia Optima accelerated to over 90 mph and crashed into a stopped van, killing herself and twin boys in the van. The plaintiffs, the Hills and Parks family, in separate lawsuits, alleged that a cruise control malfunction caused the unintended acceleration.

The panel upheld the exclusion of expert Dr. Tyler A. Kress’s opinion on electrical systems but found that his opinions based on eyewitness testimony and other evidence were wrongly excluded. The panel ruled that Dr. Kress’s testimony about a gap between the accelerator pedal arm and the mount was necessary for the jury to understand the evidence.

In dissent, U.S. Circuit Judge John K. Bush argued that the trial court did not abuse its discretion in excluding the experts’ opinions, criticizing the panel’s findings and stating that the experts did not sufficiently test their hypotheses or consider alternative explanations.

U.S. Circuit Judges Eric L. Clay, Julia Smith Gibbons and John K. Bush sat on the panel for the Sixth Circuit.

The Parks plaintiffs are represented by D. Andrew Saulters of Ortale Kelley Law Firm.

The Hill plaintiffs are represented by C. Brent Keeton and James W. Murray of Keeton Law Firm PLLC.

The cases are Parks et al. v. Kia Motors America Inc. et al., case number 23-5654, and Hill et al. v. Kia Motors America Inc. et al., case number 23-5653, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360

Pedestrian Fatality Involving a Commercial Motor Vehicle

Beasley Allen recently settled a hotly contested case involving the death of a pedestrian caused by the negligent acts of a commercial motor vehicle company and its driver. Our firm represented the family of Zoya Iqbal – a woman who lost her life while walking on the shoulder of an entrance ramp to I-285 at night. The incident occurred in Dekalb County on February 16, 2022.

While investigating the case, our lawyers learned that the defendant truck driver decided to park his vehicle on the shoulder of the roadway where Ms. Iqbal was walking. In the process, the truck contacted her, causing her to fall to the ground. The rear trailer tires of the truck then rolled onto Ms. Iqbal’s body, causing her death. Sadly, Ms. Iqbal was not found until the next morning. 

Despite a defense of contributory negligence, our trial team was able to demonstrate that the defendant trucking company failed to train its drivers on the dangers relating to driving big rigs at night. The company also failed to train its drivers on the danger of parking commercial motor vehicles on the shoulder of a roadway. There was also a failure to train drivers on how to safely avoid pedestrians. The team was able to show that parking on the shoulder of the road, absent an emergency, not only violated trucking industry safety standards, but also violated Georgia law.

After effectively litigating these important issues, the Beasley Allen trial team was able to successfully settle the case for its clients, obtaining the defendant trucking company’s insurance policy limits. The trial team consisted of these Beasley Allen lawyers in our Atlanta office: Chris Glover, Alyssa Baskam, and Stephen Mulherin.

GM Recalls 450,000 Pickup Trucks & SUVs For Warning Light Issues

General Motors (GM) is recalling approximately 450,000 pickup trucks and SUVs in the U.S. due to a potentially faulty low brake fluid warning light, according to the National Highway Traffic Safety Administration (NHTSA). 

The recall affects 2023 Chevrolet Silverado 1500, GMC Sierra 1500, and 2023-2024 Chevrolet Tahoe, Suburban, GMC Yukon, Yukon XL, Cadillac Escalade, and Escalade ESV models. 

The issue stems from the electronic brake control module software, which may not display a warning light when brake fluid is low. Dealers will address the problem with an over-the-air software update. GM reported no injuries or crashes related to this issue. 

The problem was identified by a company engineer through GM’s “Speak Up For Safety” program in April.

Source: Reuters

Aviation Litigation

$116 Million Verdict Awarded To Family Of New York Helicopter Crash Victim

A Manhattan jury has ordered three aviation companies to pay over $116 million for negligence and design defects that led to the death of 26-year-old Trevor Cadigan in a 2018 sightseeing helicopter crash in New York’s East River.

After nearly three months of trial, the jury found Liberty Helicopters Inc. responsible for $43 million in damages for negligence. FlyNYON LLC was found negligent for providing a faulty harness system, resulting in $47 million in damages, and DART Aerospace was held accountable for a defective flotation system, with $23 million in damages. Additionally, Liberty and FlyNYON were ordered to pay $26,000 and $3 million in punitive damages, respectively.

The lawsuit was filed by Cadigan’s parents, Nancy and Jerry Cadigan, over six years ago. The trial, which began in late June, resulted in the verdict. Tragically, Jerry Cadigan passed away during the trial, and Trevor’s sister, Kathleen Howard, was appointed to continue the case. The family says they hope the verdict will lead to improved safety practices in the aviation industry.

The Cadigans are represented by Gary C. Robb, Anita Porte Robb, Andrew C. Robb and Brittany Sanders Robb of Robb & Robb LLC, Matthew Schwartz of Schwartz & Ponterio PLLC, I. Bryce Moses of Wingate Russotti Shapiro Moses & Halperin LLP and Thomas Stewart.

The case is Nancy Caton Cadigan et al. v. Liberty Helicopters Inc. et al., case number 152286/2018, in the Supreme Court of the State of New York, County of New York.

Source: Law360

PRODUCT LIABILITY

The Dangers Of Hydrogen Sulfide Toxicity By Placing Certain Types Of 12-Volt Batteries In The Passenger Compartment Of Cars

The number of hybrid vehicles on the roadways in the U.S. is increasing rapidly. There are numerous safety issues that involve these vehicles. We will take a good look today at one area of concern. Dana Taunton, a lawyer in our Personal Injury & Products Liability Section, furnished the following information relating to a most serious safety issue involving batteries. 

Many hybrid vehicles use a commonly designed 12-volt battery, known as a flooded lead acid battery, to provide power to the starter motor in order to start the internal combustion engine and power the vehicle’s accessories, such as the lights and HVAC fan. 

These types of 12-volt batteries consist of cells containing two dissimilar metals (lead and lead dioxide), that are separated to prevent electrical shorting and that are packaged together as 6 different cells. Each cell is approximately 2.1 volts, for a combined total of 12.6 volts, when fully charged. 

This type of battery is “flooded” because the cells are in an electrolyte solution that is part sulfuric acid and part distilled water. Most modern flooded lead-acid batteries are maintenance-free, which means that additional water does not need to be added.

A battery casing is the outer shell surrounding and protecting individual battery cells. The casing provides a barrier against external elements and helps maintain the integrity and performance of the battery cells. Battery casings seal the cells, preventing any leakage of electrolytes or other materials, which is vital for safety and performance. 

Flooded lead acid batteries vent hydrogen into the air during charging at low levels when systems are functioning properly. 

Flooded lead acid batteries may also experience sulfation, a condition that prevents the battery from maintaining a fully charged state, which, in turn, can lead to overcharging, as the alternator attempts to charge the battery above the 12.6-volt range, resulting in high levels of hydrogen sulfide formation.

For most automotive applications, the battery is in the engine compartment, so these gases are vented to the atmosphere. However, some auto manufacturers design their vehicles so that these “flooded” batteries are located in the cabin or trunk, which can lead to deadly consequences. 

Auto manufacturers are well aware of the dangers of flooded lead-acid batteries and the potential for hydrogen sulfide leaks due to overcharging or the failure of the battery casing. Yet, despite knowing of the dangers, many auto manufacturers choose to locate these batteries in the trunks or passenger compartments of their vehicles, where exposure to occupants can occur. 

The dangers of hydrogen sulfide are well known, and death can occur from exposure quickly if the levels of toxicity are high enough. The only detectable sign is a rotten egg or sickeningly sweet odor.  

We will look at two cases involving the issues discussed above.

The Menser Case

In December 2013, Deputy Sheriff Bruce Menser was driving his department’s 2009 Dodge Charger, which had a 12-volt flooded lead-acid battery under the floor of the trunk. The battery “exploded” and emitted hydrogen sulfide and other toxins into the passenger compartment. It was learned that Deputy Menser had to repeatedly jump-start his vehicle’s battery prior to his injury. Sergeant Smith arrived to help; he couldn’t believe that Officer Menser did not smell the strong odor of rotten eggs. Unfortunately, by the time the other police officer arrived to check on him, Deputy Menser had suffered severe pulmonary, neurological, and behavioral problems, including seizures. He is now permanently disabled. 

It was discovered that the 12-volt flooded battery had swelled up and liquid was all over the battery and trunk. The Mensers’ battery expert testified that the battery casing failed and released hydrogen sulfide, arsine, and stibine, which are so toxic that they were used as weapons in World War I. The auto manufacturer admitted that the casings of lead-acid batteries can fail and expel toxic gases, but that was not included as a failure mode in the Failure Modes and Effects Analyses of the design.

The Lincoln Case

In April 2016, Latifa Lincoln bought a 2006 Porsche Cayenne SUV from a used car dealership. Over the next two months, she repeatedly had problems with the battery, including not being able to start it. On June 2, 2016, Ms. Lincoln was driving her vehicle with her 3-year-old daughter in a car seat in the rear seat on the Florida Turnpike. Police found the vehicle stopped against the center guardrail and discovered both Ms. Lincoln and her daughter dead in the vehicle with Ms. Lincoln’s foot still on the gas pedal. When the police opened the door, they were overwhelmed by the toxic fumes, and several began coughing. The medical examiner later concluded that Ms. Lincoln and her daughter had died of hydrogen sulfide exposure.

The Porsche Cayenne had a flooded battery located under the driver’s seat. When a mechanic removed it, he determined that it had “exploded,” and fluid was on top of the battery and inside the plastic housing. The plaintiffs alleged the vehicle was defectively designed in that the battery should not have been located in the passenger cabin, where any leakage from the battery would expose passengers to harm, and “should not have designed and manufactured an SUV with a propensity to interact with a battery in a way that could cause the poisonous gases to accumulate in the passenger cabin.”

Beasley Allen lawyers, along with lawyers from the Jinks Crow law firm in Union Springs, Alabama, are currently investigating a similar tragic accident in Alabama. Our clients owned a 2015 Ford C-Max Energi Plug-in Hybrid Electric Vehicle. The car was designed so that the 12-volt flooded lead-acid battery was located in the trunk. In the days leading up to the accident, the car’s battery needed multiple jump starts. 

On the day of the accident, our client’s husband was driving the car running routine errands in town. Just before 1 pm, he was found by the police slumped over the steering wheel in the car at a red light. He was unresponsive. The EMS personnel who responded to the scene reported that there was a “rotten egg” odor in and around the Ford C-Max. An autopsy was conducted, and the cause of death was determined to be hydrogen sulfide toxicity.

People are being needlessly injured and killed as a result of the automobile industry’s inaction on the subject discussed above.  The industry knows that the motoring public does not understand or recognize the danger of these 12-volt flooded batteries. The industry also knows people do not understand that these batteries can emit dangerous, deadly poisonous gasses into the passenger compartment of cars.  It is beyond understanding why they continue to install these batteries in the trunk and/or passenger compartment where the likelihood of deadly exposure to passengers could occur when there is a failure in the battery.  Beasley Allen is committed to holding manufacturers and sellers of products accountable for their wrongdoing relating to defective and unsafe products. Our lawyers are fierce advocates of consumer safety and for protecting the rights of consumers. Beasley Allen lawyers don’t just believe in helping those who need it most, our lawyers live by that creed. It is reflected every single day in their dedicated service to our clients.

Miniature Refrigerator Fire Hazard

A product liability lawsuit was recently filed in Kansas against AstroAI, the manufacturer of a popular miniature refrigerator, and Amazon, the seller of the refrigerator.  The complaint alleges that the AstroAI refrigerator caused a residential fire.  It’s noteworthy that numerous customer reviews on Amazon report incidents of AstroAI mini refrigerators either catching fire or nearly doing so due to overheating.

It is also alleged that the AstroAI manufactured refrigerator is branded for other products such as Frigidaire and cites another residential fire incident reportedly caused by a similar mini refrigerator.  

Although a recall has not been issued for the AstroAI, the Consumer Product Safety Commission (CPSC) has been alerted to the potential fire hazard and is looking into the matter.     

Interestingly, Kell Electronic recalled a similar mini refrigerator in 2023 after multiple reports to the CPSC of overheating. Kell Electronic sold the mini refrigerators at Wal-Mart stores nationwide. Unfortunately, instances of seemingly harmless consumer electronics causing fires are all too common.  

Lawyers in our firm’s Mobile office have filed product liability lawsuits after consumer electronics such as refrigerators, televisions, space heaters, and lithium batteries caused residential fires.  If a consumer electronic is suspected as a potential cause of a fire, it is important to have a qualified fire investigator examine and document the scene.  

The case is Knapp v. Amazon Sales Inc. et. al. Case No. 2:24-cv-02319-DDC-RES.

Source: U.S. Consumer Product Safety Commission

$462 Million Jury Verdict In Fatal Big Truck Crash Lawsuit

A Missouri state jury has awarded $462 million to the families of Nicholas Perkins and Taron Tailor, who died in a 2019 crash when their car slid under a big truck with a defective underride guard. The majority of this award, $450 million, is in punitive damages, while $12 million is in compensatory damages ($6 million for each family).

In the lawsuit, Wabash National Corp. was accused of manufacturing trailers with underride guards that did not meet safety standards despite knowing the risks. These guards are designed to prevent vehicles from sliding underneath trailers in rear-end collisions. The jury found that Wabash deliberately made these guards to only meet the bare minimum federal standards, which contributed to the fatal accident.

The families are represented by John Simon and Johnny Simon of The Simon Law Firm PC, Brian Winebright of Cantor Injury Law LLC and Lisa Tsacoumangos of Brown & Crouppen PC.

The case is Perkins et al. v. Wabash National Corp. et al., case number 2022-CC00495, in the 22nd Circuit Court of St. Louis, Missouri.

Source: Law360 

WORKPLACE LITIGATION

Machine Guarding With Light

Warner Hornsby, a lawyer in our Personal Injury & Products Liability Section, has some information for lawyers that we believe will be helpful. Warner writes on machine guarding in the workplace. We are seeing lots of cases resulting in serious injuries and death originating in the workplace. Many of them include liability based on defective products, failure to train employees, and a lack of supervision. Let’s see what Warner has on the subject of machine guarding. 

If you’ve practiced personal injury law in an area with assembly, manufacturing, or fabricating as major sources of employment, you’ve probably at least reviewed an on-the-job crush injury. Usually, it’s the hand/arm or foot, but the general process is usually very similar: a stamping or pressing machine of some kind closes when the worker’s body part is inside the machine’s danger zone. In those instances, it is not supposed to close. 

Traditionally, the way that machine manufacturers dealt with the danger inherent in any pressing machine was to use pressure plates of some kind. Most commonly, the worker’s station will consist of two buttons, plates, or bars, roughly shoulder width apart, that each require the worker to depress simultaneously for the machine to activate. The thought is, if the worker has to press both plates, one with each hand, before the machine can activate, then the worker’s hands must by definition be out of harm’s way. The problem is, even today, human error, maintenance issues, and sometimes just plain greed, can all cause that simple system to fail. 

We are currently working on a case where our client’s hand was crushed in a vehicle assembly plant. There were two pressure plates at this client’s workstation, and, in theory, only when both plates were depressed should the machine fall. And yet, here she is, with her hand crushed in need of our help. It’s still very early in the case, and we don’t yet know whether the pressure-based guard failed, was intentionally diverted, or was improperly maintained. But it shouldn’t have been the only protection afforded to our client. 

In the last ten years or so, light curtains have grown tremendously in their popularity and application for safety purposes. At the core, these light curtains are easy to understand; light, usually in the form of a laser or series of lasers, is sent from one side across the field where a worker must interact with a machine. When the worker reaches across the light curtain, and into the danger area, the beam is interrupted by the worker’s body part and, when there is an interruption, the machine cannot activate. Light curtains can be as simple as what I’ve just described or far more complicated, with the ability to mute or be programmed to allow for interruptions at set part distances or times to accommodate large or awkwardly shaped workpieces or zones. 

Despite the growing use of light curtains, many machines are still manufactured and implemented without them – the lack of cognizable claims against employers due to worker’s compensation laws has probably aided that lag in inclusion, but that does not mean manufacturers can ignore state of the art safety features, especially in press type machines where interaction inside the danger zone is inescapable. OSHA requires one or more guarding methods, and more and more light curtains are becoming a “should have” rather than a “could have” included safety item. 

While some light curtains can be expensive and range in the thousands, others can be implemented for several hundred dollars. When next a client presents to your office with an on-the-job injury, make sure you and your expert consider whether a light curtain was feasible and could have prevented the injury. If so, it’s possible the manufacturer should have included one in their design.

EMPLOYMENT LITIGATION

The Loper Bright Decision: A New Era In Employment Law?

On June 28, 2024, the United States Supreme Court (SCOTUS) issued a decision in Loper Bright Enterprises v. Raymondo (Loper Bright decision) that fundamentally alters the landscape of administrative law – and, in turn, that of employment law. This decision ends the longstanding Chevron deference doctrine, precedent that influenced judicial review for over four decades. 

Historically, under Chevron, courts would defer to an agency’s interpretation of ambiguous statutes as long as the interpretation was deemed reasonable. However, in the Loper Bright decision, which involved the National Marine Service’s interpretation of the Magnuson-Stevens Act, SCOTUS determined that the agency’s expanded definitions were inconsistent with the Act’s text and emphasized that judicial interpretation was paramount over agency discretion.

This change is likely to have profound implications on employment law cases. Since federal agencies like the Equal Employment Opportunity Commission and the Department of Labor traditionally issue guidelines and rulings intended to interpret ambiguous employment statutes, and the Chevron deference doctrine has been eliminated, courts will be required to do more rigorous reviews of interpretations. Because of this change, employment law lawyers could face significant changes in how employment law cases are litigated, and it will be even more important to be familiar with the changes to these cases as new precedent is established. 

Legal experts expect there to be a wave of litigation filed as courts adjust to the new standard and only time will reveal the full impacts of this decision. Beasley Allen’s employment lawyers are monitoring new cases and rulings related to the Loper Bright decision. They will be glad to answer any questions or work with you on a case.

The Beasley Allen Employment Litigation Team

   Lawyers on our Employment Litigation team handle employment-related litigation for the firm. These lawyers also handle the firm’s Qui Tam Litigation (Whistleblower) cases. Many whistleblowers also have a retaliation claim related to their False Claims Act (FCA) claim. Quite often, an employee who is a whistleblower is the “original source” of an FCA claim.

Our Employment Litigation Team has had some tremendous success in both employment cases and qui tam cases. Currently, the team is pursuing some high-profile cases in courts around the country.

Dee Miles, who heads our Consumer Fraud & Commercial Litigation Section, also works with the litigation team.

Whistleblower Litigation

Differences To Note In The New DOJ Program

The U.S. Department of Justice (DOJ), has instituted its Corporate Whistleblower Awards Pilot Program, offering monetary rewards to individuals who voluntarily report corporate misconduct. This is the first official whistleblower award program by the DOJ.

Deputy Attorney General Lisa Monaco announced the program in March, highlighting the success of similar programs under the Dodd-Frank Act at the U.S. Securities and Exchange Commission (SEC) and the U.S. Commodity Futures Trading Commission (CFTC). These programs have received thousands of tips, paid out hundreds of millions of dollars, and recovered billions in ill-gotten gains. The new program was launched on April 1^st. 

It should be noted that there are differences between the DOJ’s program and the Dodd-Frank programs in several key ways. Those differences are: 

1. Eligibility: Whistleblowers who “meaningfully participated” in the misconduct are ineligible for awards. This contrasts with other programs that may still offer awards to such individuals, albeit with some restrictions.
2. Anonymity: While whistleblowers can report anonymously if represented by a lawyer, the DOJ reserves the right to request their identity if deemed necessary.
3. Internal Reporting: The DOJ encourages internal reporting before approaching the DOJ, but whistleblowers are not required to do so to be eligible for awards. Internal reporting carries risks, as shown by a study indicating high retaliation rates for internal whistleblowers.
4. Discretionary Awards: The DOJ has full discretion to deny awards, and such decisions are neither appealable nor subject to judicial review. This is a significant departure from other programs where awards are mandatory for qualified whistleblowers.
5. Overlap with Other Programs: Misconduct covered by other whistleblower programs, such as the False Claims Act or the SEC whistleblower program, makes individuals ineligible for the DOJ program. Whistleblowers are advised to consider these other programs first.

While the DOJ’s program is inspired by successful whistleblower initiatives, it has notable differences that potential whistleblowers must understand before coming forward and blowing the whistle.

Source: Law360Source: Law360

Glenmark Settles Price-Fixing Lawsuit For $25 Million

Glenmark Pharmaceuticals USA has agreed to pay $25 million to settle a lawsuit based on its violation of the False Claims Act by conspiring to fix the price of pravastatin, a generic high-cholesterol drug. Federal prosecutors accused the New Jersey-based company of colluding with other pharmaceutical firms to control the price, supply, and customer allocation of the drug.

U.S. Attorney Jacqueline C. Romero highlighted the severity of the issue, noting that such conspiracies exacerbate the burden of excessive drug costs on vulnerable citizens.

Although Glenmark did not admit liability in the settlement, it had previously entered a deferred prosecution agreement with the Justice Department in August 2023, paying a $30 million criminal penalty and admitting to price-fixing with two other companies.

It should be noted that this settlement is the sixth from the Justice Department’s investigation into price-fixing by generic drug manufacturers. Maureen R. Dixon from the HHS Office of the Inspector General emphasized the illegality of such conspiracies and their potential to prevent patients from affording necessary medications.

The government is represented by Landon Y. Jones III, Rebecca S. Melley, and Anthony D. Scicchitano of the U.S. Attorney’s Office, along with Jennifer L. Cihon and Laurie A. Oberembt of DOJ’s Civil Division.

Source: Law360

Ninth Circuit Reverses The False Claims Act’s First-To-File Precedent

The entire Ninth Circuit recently overturned circuit caselaw by holding that the False Claims Act’s first-to-file rule is not jurisdictional, meaning that qui tam suits cannot be dismissed on jurisdictional grounds based on the first-to-file provision. The first-to-file rule prohibits a private plaintiff from bringing a qui tam action based on the same facts in a separate, pending action.

The en banc decision gave a second life to a qui tam action alleging that Kaiser Permanente defrauded Medicare Advantage by using false diagnoses. The Ninth Circuit emphasized a recent U.S. Supreme Court decision in particular which held that, for a statutory bar to be jurisdictional, Congress must clearly state that it is jurisdictional.

The term “jurisdiction” appears nowhere in Section 3730(b)(5) of the FCA, and according to the Ninth Circuit, the statute does not feature “any other textual clue that points to jurisdiction.” Other provisions of the FCA, however, do expressly use jurisdictional language.

The trial court previously dismissed the FCA case, which was brought by Marcia Stein and Rodolfo Bone, citing pending actionsagainst Kaiser that were filed before their suit. On appeal to the Ninth Circuit, a three-judge panel agreed with the trial court, applying the circuit’s precedent.

According to the en banc decision, the Ninth Circuit deemed the rule jurisdictional in a 2001 opinion without analysis. Since then, the Supreme Court has consistently warned against recklessly using the term “jurisdiction.” In 2023, the Supreme Court held in MOAC Mall Holdings LLC v. Transform Holdco LLC that a narrow rule is only jurisdictional if that is clearly stated in the rule.

The Ninth Circuit explained that the first-to-file provision only mentions when someone can file suit and who can bring an action, but it is silent regarding the adjudicatory authority of the court with respect to the rule. Judge Forrest explained, “At the same time, other provisions in the FCA use explicitly jurisdictional language.”

Fraud continues to be a huge problem in many industries in this country. Our firm has increased its healthcare whistleblower practice for this very reason with lawyers Lance Gould, Larry Golston, Leon Hampton, Tyner Helms, Paul Evans, Lauren Miles, and Jessi Haynes working in this area known as “qui tam” cases. We recently obtained a $14 million verdict in Birmingham Federal Court dealing with a healthcare whistleblower issue and continue to pursue other cases throughout the country involving fraud on the government.

Source: Law360 

DaVita Reaches $34 Million Settlement In Whistleblower Case

DaVita Inc. will pay approximately $34.5 million to resolve allegations that it violated the False Claims Act (FCA) by paying kickbacks to induce referrals to DaVita Rx, a former subsidiary that provided pharmacy services for dialysis patients, and by paying kickbacks to nephrologists and vascular access physicians to induce the referral of patients to DaVita’s dialysis centers. 

The Anti-Kickback Statute prohibits anyone from offering or paying, directly or indirectly, any remuneration to induce referrals of patients or of items or services covered by Medicare, Medicaid and other federally funded programs.

The government alleged that DaVita paid kickbacks to a competing outpatient dialysis and renal pharmacy company to induce referrals to DaVita Rx to serve as a “central fill pharmacy” for the competitor’s Medicare patients’ prescriptions. DaVita Rx was responsible for processing, fulfilling, dispensing, and shipping prescription drugs to Competitor’s Medicare dialysis patients. 

In exchange, DaVita paid to acquire certain European dialysis clinics and agreed to extend a prior commitment to purchase dialysis products from the competitor. DaVita would not have paid the price that it did for these deals without the competitor’s commitment to refer its Medicare patients’ prescriptions to DaVita Rx in return.

The Government further alleged that DaVita provided management services to vascular access centers owned by physicians who were in a position to refer patients to DaVita’s dialysis clinics. DaVita paid improper remuneration by not collecting management fees, in an attempt to induce referrals to DaVita’s dialysis centers.

Finally, the government alleged that DaVita gave a large nephrology practice improper renumeration by offering the right of refusal to staff the medical director position at any new dialysis center that opened near the nephrology practice. DaVita also allegedly paid the practice $50,000, despite the practice opting not to staff the medical director position for those clinics.  

The settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the FCA by Dennis Kogod, a former Chief Operating Officer of DaVita Kidney Care. Kogod will receive $6,370,000 of the proceeds from the settlement.  The qui tam provisions of the FCA allow a private party to file an action on behalf of the government for false claims.  Under the FCA, whistleblowers receive 15% to 25% of proceeds in cases that the government joins.

Source: Department of Justice

CVS Owes $60 Million After Alleged Illegal Kickbacks

CVS Health’s subsidiary, Oak Street Health, will pay $60 million to settle a claim of violating the False Claims Act by paying illegal kickbacks to third-party insurers. These kickbacks were intended to induce Medicare and Medicaid beneficiaries to enroll in Oak Street’s primary care clinics.

The allegations are linked to Oak Street’s Client Awareness Program, which started in 2020, and involved paying third-party insurers and agents $200 per referral. Over 20,000 payments totaling more than $4 million were made under this program. The DOJ claimed that Oak Street submitted false claims to Medicare due to these kickbacks from September 2020 to December 2022.

The company stated that the program was discontinued over two years ago and denied any wrongdoing. The case was brought to light by whistleblower Joseph Stinson, who will receive $9.9 million from the settlement.

The government is represented by David G. Miller of the DOJ’s Civil Division, and Jonathan C. Haile of the U.S. Attorney’s Office for the Northern District of Illinois.

The case is U.S. et al. v. Oak Street Health Inc. et al., case number 1:20-cv-07381, in the U.S. District Court for the Northern District of Illinois.

Source: Law360

The Beasley Allen Whistleblower Litigation Team 

Beasley Allen lawyers continue to represent whistleblowers across the country in claims against multiple bad corporate actors. The widespread Whistleblower litigation continues to increase at a rapid pace. Our lawyers will determine how the changes by the DOJ mentioned above affect this litigation. 

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud  Lawyers on our Whistleblower Litigation Team are listed below:

Lance Gould, Larry Golston, Lauren Miles,, Leon Hampton Jessi Haynes and Tyner Helms.

Securities Litigation

CrowdStrike Brass Face An Investor Suit Over Global Outage

Executives and directors of global cybersecurity company CrowdStrike have been hit with a shareholder derivative suit alleging that they overstated the capabilities of the company’s technology that eventually caused a massive disruption over the summer when its system crashed.

Shareholder Jordon Routh said in a complaint filed on September 4 in Texas federal court that CrowdStrike “failed to adequately develop, test and deploy” updates to its Falcon software program, which purportedly uses artificial intelligence and machine learning technology to prevent security breach threats.

In addition to the nominal defendant CrowdStrike, the suit lists 10 individual defendants, including CEO George Kurtz, Chief Financial Officer Burt W. Podbere and eight company directors.

The suit’s relevant period begins November 29, 2023, the day CrowdStrike hosted its third-quarter earnings call. During the call, CrowdStrike executives touted the capabilities and successes of Falcon.

According to the complaint, CrowdStrike’s brass continued to overstate Falcon’s utility over the next several months in its announcements and filings with the U.S. Securities and Exchange Commission. But on July 19, 2024, a flawed content update for Falcon caused severe worldwide technology outages for millions of devices using Microsoft Windows. It’s alleged in the complaint:

Due to the outage, airlines were forced to ground numerous flights, and emergency 911 hotlines were inoperable, among other consequences. In addition, the company warned the public that bad actors were attempting to exploit the CrowdStrike outage as a means of hacking company customers.

CrowdStrike’s share price declined $38.09 (11%) to close at $304.96 a share on July 19, according to the complaint.

On July 22, news emerged that Congress had contacted Kurtz to testify regarding the outage, causing some prominent analysts to downgrade CrowdStrike’s stock rating and resulting in a further decline in CrowdStrike’s share price by $41.05 (13.5%) to close at $263.91 a share, the complaint said.

A week later, on July 29, news broke that Delta Air Lines had hired prominent attorney David Boies to seek damages from CrowdStrike following the outage. On July 30, shares of CrowdStrike fell $25.16 (10%) to close at $233.65 a share. Overall, CrowdStrike shares fell $125.16 (36.5%) from July 19 to August 2, when the stock closed at $217.89, its lowest price since November 28, 2023.  

The suit said further that in the weeks following the outage, CrowdStrike continued to face reputational and financial damages, including those that will result from a securities suit filed against the company in July and two consumer class actions.

The complaint also said several of the suit’s individual defendants made improper insider trades before the alleged fraud was exposed, netting proceeds of more than $195.5 million while CrowdStrike was trading at all-time highs.

Plaintiff Routh accuses the individual defendants of violating the Exchange Act, breaching fiduciary duties, unjust enrichment, abuse of control and gross mismanagement.

The case is Routh et al. v. Kurtz et al., Case Number 1:24-cv-01031, in the U.S. District Court for the Western District of Texas.

Source: Law360

Johnson & Johnson Hit With $1 Billion in Damages

A Delaware Vice Chancellor has ruled that Johnson & Johnson (J&J) owes over $1 billion to stockholders of Auris Health Inc. due to breaches of contract and the implied covenant of good faith and fair dealing. The breaches were related to the development milestones of Auris’ iPlatform robotic surgical device. J&J failed to prioritize iPlatform, instead making it compete with its own “Verb” robotic device from its affiliate, Ethicon.

Auris Health filed a lawsuit in October 2020, alleging fraud and breaches of the merger agreement. The court found that J&J’s actions, including a competitive “bake-off” between iPlatform and Verb, violated its obligations. The court awarded damages of $968.8 million, plus $42.4 million in interest, totaling $1.01 billion. J&J says it disagrees with the ruling and is considering an appeal. 

Additionally, the court denied a $312,000 discovery fee request from Fortis Advisors, awarding $36,000 instead. The Vice-Chancellor noted that J&J’s claims of technical problems with iPlatform were dubious and appeared to be a tactical response after being sued. Dr. Frederic Moll, a pioneer in robotic surgery, was instrumental in developing the Auris system.

Fortis Advisor is represented by Bradley R. Aronstam, Roger S. Stronach and Dylan T. Mockensturm of Ross Aronstam & Moritz LLP and Philippe Z. Selendy, Jennifer M. Selendy, Sean P. Baldwin and Oscar Shine of Selendy Gay PLLC.

The case is Fortis Advisors LLC v. Johnson & Johnson et al., case number 2020-0881, in the Court of Chancery of the State of Delaware.

Source: Law360

Securities Litigation Team At Beasley Allen

Lawyers in our Consumer Fraud and Commercial Litigation Section are currently working on a number of cases involving corporate security issues including shareholder litigation. James Eubank, who leads the Securities Litigation Team, worked for years as a securities regulator with the Alabama Securities Commission. James was involved in a number of important securities fraud investigations while he was with the state.  

You can contact a member of our Securities Litigation Team concerning any securities cases or issues relating to securities. 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.

Premises Liability Litigation

Establishing Negligent Security Claims in Georgia

Generally, business owners are charged with knowledge that people will visit their premises from time to time either as licensees or invitees. We will take a look at Georgia law on premises liability.

Pursuant to O.C.G.A. § 51-3-1, the owner of property in Georgia owes its invitees a duty to exercise ordinary care in keeping the premises and approaches safe, which includes protecting them from foreseeable criminal activities of third parties. Rautenberg v. Pope, 351 Ga. App. 503, 831 S.E.2d 209 (2019).

Similarly, the standard for protecting invitees from harm from criminal acts of third parties is the same for licensees, because it is considered willful and wanton not to exercise ordinary care to prevent injury to a person who is actually known to be, or may be reasonably expected to be, within the range of danger. Khalia, Inc. v. Rosebud, 353 Ga. App. 350, 836 S.E.2d 840 (2019); Bethany Group, LLC v. Grobman, 315 Ga. App. 298, 727 S.E.2d 147 (2012).

Thus, when a lawyer is investigating potential negligent security claims it is imperative that the property owner’s liability is analyzed and investigated for failure to provide adequate security or other safeguards against criminal activity.

Proving Foreseeability: Is There a History of Similar Crimes?

One of the ways you can prove the foreseeability of a crime that occurred on a property is by investigating prior similar crimes on the property. In your investigation, the first step should be to send an open records request to the local police agency for all police calls and incident reports relating to the subject property. If necessary, request the same information for the surrounding area to help establish that the subject property is located within a high-crime area. 

If you obtain information regarding similar crimes that occurred on the subject property, you can use this information to show the criminal act at issue was foreseeable, and as such a reasonable person would take ordinary precautions to protect visitors against the risk posed by the type of activity.

Additionally, plaintiffs must show not only that the prior crimes existed on the property, but that the owner had actual knowledge of the prior crimes to show that the owner should have taken additional security measures to stop future crime from occurring. Bolton v. Golden Business, 348 Ga. App. 761, 823 S.E.2d 371 (2019).

Knowledge can be shown from the testimony of the owners of the property or from employees who knew of the security issues or prior crimes. Baker v. Simon Property Group, 273 Ga. App. 406, 614 S.E.2d 793 (2005); Rautenberg v. Pope, 351 Ga. App. 503, 831 S.E.2d 209 (2019).

Thus, the owner and employees should be deposed to establish that they knew of the prior crimes on the property. In most cases, the owner and employees will refuse to admit their knowledge. As an end-around, you can attempt to locate internal emails, property management incident reports, and other documents that would show knowledge of prior incidents. You can also depose the victims who were involved in the prior incidents to learn whether they notified the owner in your case about what occurred in their incident.

Security Measures

In addition to the foreseeability of the crime, expert testimony is necessary to prove the various security measures that should have been taken that would have deterred or prevented the attack at issue. Typically, these measures include additional lighting, surveillance camera systems and security officers on the premises. Georgia CVS Pharmacy, LLC v. Carmichael, 362 Ga. App. 59, 865 S.E.2d 559 (2021).

Beasley Allen’s premises liability lawyers are experienced in navigating the legal issues relating to negligent security cases. They have access to experts who are qualified to testify about the deficiencies with the property owners’ security measures.

The Risk of Short-Term Rentals: Inadequate Security

The short-term rental industry has had a large increase in use in recent months. Let’s take a look at litigation involving this industry. First, it should be understood that the short-term rental industry is actually outperforming many hotels, as more travelers are choosing unique lodging experiences over traditional hotel rooms. However, amidst the allure of unique and cheaper lodging underlies potential risks and resulting injuries. With many travelers opting to use short-term rental companies like Airbnb and VRBO, it is important to understand the liabilities involved.

It’s significant that the short-term rental market is unregulated. There is no governing body overseeing or creating regulations on short-term rentals. Thus, any injuries to short-term rental guests are handled internally, often swept under the rug. For instance, Airbnb has a dedicated safety team with unregulated discretion to pay victims in return for all involved to remain silent. 

Most short-term vacation rentals do not have or do not employ traditional security measures. When vacationing at a well-known hotel, you can typically expect a security presence, including patrolling security guards, locked gates, and surveillance cameras. Out-of-town travelers often are not aware of the surrounding area where their vacation rentals are located. Airbnb or VRBO hosts do not inform out-of-town guests of the risk of high crime in the surrounding neighborhood. That’s because the short-term rental industry places no requirements on the hosts to disclose such information. Out-of-town guests are easy targets for criminal assailants. 

In most states, property owners have an absolute duty to ensure the safety and security of their guests. If an incident occurs causing injuries while you are renting an Airbnb or VRBO, Beasley Allen lawyers are available to help you with your claim. Our lawyers have experience in handling premises liability cases.

Class Action Litigation

Mazda-Denso Fuel Pump Settlement Gets Preliminary Approval

Beasley Allen’s fuel pump fight continues. Another win in federal court- Mazda and parts supplier Denso have reached a major settlement over faulty fuel pumps in certain Mazda vehicles. This settlement, valued at no less than $172 million, could benefit up to 1 million people who own or lease these cars.

The Defect

From 2017 to 2020, over 603,000 Mazda vehicles, including some Mazda3 and Mazda CX-3 models, were equipped with Denso fuel pumps that could deform and fail. This defect increases the risk of a crash. In November 2021, Mazda recalled over 120,000 vehicles due to this issue. Denso had already recalled 3.6 million fuel pumps for the same problem, affecting many car brands.

Settlement Details

Under the settlement, Mazda will:

• Offer a Customer Support Program: This program provides 15 years of coverage for repairing and replacing Denso fuel pumps in over 482,000 Mazda vehicles that were not initially recalled.

• Extend Warranties: Vehicles that were recalled will get an extended warranty of 15 years or 150,000 miles, whichever comes first.

• Provide Free Services: Mazda will offer free loaner vehicles and towing services if needed during repairs.

• Reimburse Expenses: Mazda will cover costs for previous repairs, rental vehicles, and towing related to the faulty fuel pumps.

What’s Next?

A final approval hearing for this settlement is scheduled for January 17, 2025, before Judge Josephine Staton in the Central District of California.

We have a proven history of success in handling similar lawsuits. Recently, we secured a $289 million settlement with Toyota and Denso and have another settlement with Subaru and Denso awaiting final approval. Our team, Dee Miles, Demet Basar, Clay Barnett, Mitch Williams, Dylan Martin and Trent Mann are also working on a class case against Honda and Denso.

Stay tuned for more updates as we continue to navigate these cases and fight to hold these car manufacturers responsible.

Federal Court Denies GM’s Motion To Compel Arbitration In Oil Consumption Case

Beasley Allen lawyers, along with our co-counsel from Dicello Levitt, represent Ohio residents who own, or lease 2011-2014 GM trucks or SUVs equipped with a Generation IV 5.3L LC9 engine in a class action lawsuit against General Motors, LLC. It’s alleged in the lawsuit that the trucks and SUVs suffer from excessive oil consumption due to defective piston rings. 

This class action lawsuit is nearly identical to the case in which we received a $102.6 million verdict last October, which we have previously written about. Due to personal jurisdiction reasons in light of Bristol-Myers Squibb v. Superior Court of California, 582 U.S. 255 (2017), this action was filed separately in the Federal Northern District of Ohio and is presided over by U.S. District Judge Charles E. Fleming.  

The lawsuit, filed in 2020, accuses GM of selling vehicles with defective engines that consume excessive oil, causing damage. The plaintiffs seek to represent a class of drivers of certain Chevrolet and GMC models purchased in Ohio with a specific engine type. GM disputes the claims, arguing there is no proof of excessive oil consumption and that the arbitration agreement is part of the purchase contract.

On November 30, 2023, GM filed a motion to compel arbitration between Plaintiff Lisa Mae Jennings and the auto manufacturer. In its motion, GM argued that it was “entitled to enforce the arbitration agreement under Ohio law and the doctrine of equitable estoppel because her agreement encompasses the claims plaintiff now asserts against GM.” 

On January 12, plaintiffs opposed GM’s motion contending, among other things, that GM waived any right it may have had to enforce the arbitration agreement. GM filed its reply on February 12, alleging that it did not waive the right to arbitrate because its motion to compel was its “first substantive filing since receiving the Court’s ruling on the previously pending motions.”

However, on September 9, 2024, Judge Fleming denied GM’s motion to compel arbitration, invoking the March 27, 2024, Sixth Circuit decision in Schwebke v. United Wholesale Mortgage, 96 F.4^th 971 (6th Cir. 2024), which held that United Wholesale Mortgage’s extensive discovery practice suggested an intent not to try to arbitrate the case by Jason Schwebke. 

In his September 9th Order, Judge Fleming held that “[l]ike Schwebke, these actions and their associated timeline are inconsistent with reliance on any potential arbitration right a defendant may have.” The judge noted that GM waited 20 months after receiving the arbitration agreement from Plaintiff Jennings in March 2022 to file its motion to compel.

Importantly, during those 20 months, the auto giant engaged in motion practice by opposing the plaintiffs’ class certification bid and seeking to strike their experts’ testimony and opinions. Moreover, as Judge Fleming noted, GM never explained the delay in attempting to compel arbitration and therefore waived any right to that remedy.

The Beasley Allen lawyers working on this case are Dee Miles, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann, along with Adam Levitt, John Tangren, Dan Ferri, and Eaghan Davis from Dicello Levitt, a law firm with offices in Birmingham, Chicago, New York, San Diego and Washington, D.C. The case is Airko Inc. et al. v. General Motors LLC, case number 1:20-cv-02638, pending in the U.S. District Court for the Northern District of Ohio.

Speerly v. GM: Update On Class Actions In The Federal Sixth Circuit

On August 28, 2024, Judge Karen Nelson Moore, writing for a three-judge panel for the Federal Sixth Circuit Court of Appeals, affirmed a federal district court’s order certifying twenty-six state classes of owners and lessees of 2015 to 2019 GM vehicles with 8L45 and 8L90 transmissions. The lawsuit alleges the class members’ transmissions suffer from shuddering, delayed gear changes, lurching, lunging, and jerking. While affirming the district court’s order certifying the various classes, the Sixth Circuit rejected all of GM’s arguments, which are many of the same arguments other class action defendants raise while opposing class certification. 

For example, the Sixth Circuit rejected GM’s argument that plaintiffs and other class members do not have Article III standing to sue without actually suffering the defect, instead holding “that alleging overpaying for a defective product sufficiently provides the plaintiffs with Article III standing.” 

GM also argued that class certification is improper because many, if not all, of the states require the defect to manifest as a substantive element of recovery. The Sixth Circuit rejected that argument, holding any such “manifest defect rule” does not predominate over issues common to the entire class, and “is unlikely to be relevant” anyway. 

The Sixth Circuit similarly declined to reverse the class certification order based on GM’s argument that class certification is impossible since it cannot be determined on a class-wide basis if each class member presented their vehicles for repair at the dealership, a necessary element to recover for a breach of an express warranty claim. Instead, the Sixth Circuit affirmed the district court’s finding that presentment would be futile since GM knew about the defects but failed to address them. 

The Sixth Circuit also rejected GM’s argument that reliance and causation, necessary elements of fraud and consumer protection claims, are inherently individualized. Instead, after surveying the relevant states’ laws, the appeals court held:

There is no indication that the district court abused its discretion in evaluating each state’s laws and relevant precedent before concluding that individualized issues from each state would not predominate over the common questions that it had identified as central to the class action.

On another issue involving merchantability, the Sixth Circuit reached a similar conclusion, affirming the district court’s certification order holding that merchantability can be established with evidence showing that the class vehicles cannot reliably provide safe transportation. 

After rejecting GM’s arguments that certain states’ consumer protection laws bar class actions and affirming certification of the plaintiffs’ damages model, the Sixth Circuit concluded its order by rejecting GM’s argument that the possibility of arbitration clauses between some class members and their dealerships prevents class certification, holding that GM waived its right to arbitrate by choosing to extensively litigate in Federal Court. 

This case is a positive development for class action practitioners within the Sixth Circuit and will be persuasive in all other federal courts throughout the nation. We will continue to keep our readers up to date on additional developments in class action law as well as in other areas of litigation law.

Oracle Agrees to Settle Class Action For $115 Million

Oracle has agreed to settle a class action lawsuit for $115 million over allegations of tracking consumer activity both online and offline without consent. The lawsuit claims Oracle captured, compiled, and sold individuals’ data to third parties. Oracle claims its practices were lawful and disclosed and denied liability.

Under the settlement, Oracle will establish a $115 million fund. U.S. residents affected from August 19, 2018, to the present may file claims. Depending on the number of claims filed, all valid claimants will receive an equal share.

Eligible individuals include those who browsed the web, used geolocation services or made electronic in-store purchases during the specified period. Oracle allegedly used products like ID Graph and Data Marketplace to collect and sell this data.

The court will decide on settlement approval on November 14. It should be noted that claims can be filed online or by mail by October 17.

Source: Claims Journal

Boeing’s Investor Suit Will Go Forward

A Virginia federal judge has allowed Boeing investors to proceed with their securities fraud class action against the company. The case is related to the safety problems Boeing is facing after the midair door blowout incident in January. U.S. District Judge Leonie M. Brinkema rejected Boeing’s motion to dismiss, stating that the detailed complaint made a strong case that Boeing acted with scienter (knowledge of wrongdoing) when making false statements about the safety of its 737 Max fleet.

The lawsuit, filed by Rhode Island’s largest public employees retirement fund, claims Boeing executives misled investors about the quality of the 737 Max production, prioritizing profits over safety. This alleged negligence led to poor quality control and increased risk of manufacturing flaws.

Boeing argued that the complaint was overly detailed and lacked specific allegations of falsehoods. However, Judge Brinkema found sufficient detail to move the case forward, emphasizing the importance of product safety, especially after the 2018 and 2019 737 Max crashes that killed 346 people.

Judge Brinkema suggested that Boeing consider settling the case, as it had done previously with the U.S. Department of Justice for over $2.5 billion.

The funds are represented by Carol C. Villegas, Jake Bissell-Linsk and David Saldamando of Labaton Keller Sucharow LLP, Steven J. Toll and S. Douglas Bunch of Cohen Milstein Sellers & Toll PLLC, Chad Johnson, Noam Mandel, Jonathan Zweig, Desiree Cummings and Brent E. Mitchell of Robbins Geller Rudman & Dowd LLP and Craig C. Reilly of The Office of Craig C. Reilly.

The case is In re: The Boeing Co. Securities Litigation, case number 1:24-cv-00151, in the U.S. District Court for the Eastern District of Virginia.

Source: Law360

Privacy Claims May Proceed Against Mental Health Platform

A federal judge in California has ruled that a class action lawsuit against the online mental health platform Headway can proceed. Consumers allege that Headway allowed Google to collect their personal data without permission through embedded Google Analytics code on its website.

The lead plaintiff, identified as M.G., claims that Headway shared users’ sensitive information, including medical concerns, treatment preferences, and appointment details, with Google without consent. This allegedly violated the California Invasion of Privacy Act by aiding Google’s data collection.

Headway argued that no substantive patient information was shared with Google and requested the case be dismissed. However, U.S. District Judge Araceli Martinez-Olguin found sufficient evidence to allow the case to proceed, stating that Headway used Google Analytics without notifying users.

The judge dismissed some claims but allowed the invasion of privacy claims to continue, noting that sharing medical information could constitute a serious breach of privacy. 

Source: Courthouse News Service

AT&T Gets Hit With Federal Class Action In Texas

AT&T is facing additional legal challenges following a data breach that impacted nearly all its customers. A 20-year AT&T customer from Illinois has filed a lawsuit in the U.S. District Court for the Northern District of Texas, claiming the company had inadequate security measures to protect customer data. The lawsuit alleges that AT&T failed to secure private information, including phone call and text message records, affecting nearly all its 110 million cellular customers.

The breach also exposed call records of customers from other carriers using AT&T’s network, such as Boost Mobile, Cricket Wireless, and Straight Talk Wireless. The lawsuit accuses AT&T of negligence and breaching its contract with customers.

This is the second class action lawsuit against AT&T due to the data breach. The first lawsuit, filed in July, claimed AT&T was not transparent about the extent of the security lapses.

The compromised data includes call and text records from AT&T’s cellular customers, MVNO customers, and landline customers who interacted with those cellular numbers between May 1, 2022, and October 31, 2022, as well as in January 2023. AT&T stated that the data does not include the content of calls or texts, Social Security numbers, or dates of birth. Further, AT&T says it doesn’t believe the data is publicly available.

AT&T says it has instituted an investigation and has engaged cybersecurity experts. It appears the company is cooperating with law enforcement in this matter. 

Source: WFAA

MASS TORTS LITIGATION

Baby Food Companies Ordered To Produce Heavy Metal Test Results In Toxic Baby Food MDL

I waOn April 5, 2024, the U.S. Judicial Panel on Multidistrict Litigation sent all toxic baby food cases to the Northern District of California. U.S. District Judge Jacqueline Scott Corley is overseeing the MDL. On August 22^nd the judge issued her seventh Pre-Trial Order in the Toxic Baby Food litigation. The Order requires all defendants, including Gerber, Plum, Hain, and others, to produce their heavy metal test results for a ten-year period between 2012 and 2021.  Any defendant that does not have a significant amount of testing must also identify its third-party co-manufacturers and suppliers.  

The toxic baby food litigation is known as In re: Baby Food Products Liability Litigation (MDL No. 3101). Defendants were also ordered to file a document detailing all steps each defendant has taken to preserve evidence, including when litigation holds were put in place and how they were implemented.  

This is a crucial ruling for plaintiffs who anticipate a number of discovery disputes related to these issues.  

These cases allege that baby food companies knowingly sold – and continue to sell – products tainted with heavy metals that can cause brain damage, ultimately manifesting as diagnoses of autism or ADHD.  The litigation comes after two different Congressional Reports were released in 2021 with shocking findings that manufacturers knowingly sold these toxic foods and that the industry’s claimed self-regulation failed to protect consumers.

Beasley Allen’s Mary Cam Raybon was appointed to the Plaintiff’s Steering Committee for this litigation in May 2024.  She is working closely with the other lead lawyers in this litigation to pursue justice on behalf of thousands of children harmed by toxic baby foods manufactured by some of the most popular baby food brands, such as Gerber, Plum, Earth’s Best, and Parent’s Choice.  

Source: In re: Baby Food Prods. Liab. Litig., 24-md-03101-JSC (N.D. Cal.), Doc. 189

Beasley Allen Battles Companies Selling Suicide Chemical

  Beasley Allen recently secured a win on behalf of four families in an important case involving sodium nitrite at the motion to dismiss stage. These families tragically lost loved ones due to an Alabama company (Duda Energy, LLC) marketing and selling sodium nitrite, a dangerous chemical with no known household use. Our lawyers filed the case in Huntsville, Alabama. The litigation is now in the discovery phase. 

Duda Energy has known since 2019 that its sodium nitrite had no household use and was being promoted on suicide forums like SanctionedSuicide. Despite this knowledge, the company continued to sell the chemical, including to children, without requiring a business license or implementing other precautionary measures. A Duda executive even admitted in a 2019 letter that the company was aware of the product’s use in suicides, but Duda chose to continue selling the product as a business decision. 

In addition to the lawsuit against Duda, Beasley Allen also recently filed a case against Amazon on behalf of a mother who tragically lost her son due to sodium nitrite.  Like Duda, Amazon sold sodium nitrite on its platform despite knowing the harms associated with the product since at least 2018. This case is pending in King County, Washington.

Hair Relaxer Litigation Update

The Beasley Allen Hair Relaxer Litigation Team continues to advance the litigation against numerous defendants in both the Federal Multi-District Litigation (MDL) in the Northern District of Illinois and in several state courts throughout the country. 

In the MDL, discovery efforts against defendants that were added in “Phase One” of the litigation continue.  This discovery includes, but is not limited to, major cosmetic companies such as L’Oreal USA, Revlon Inc., and Sally Beauty Supply.  These and other defendants have responded to several sets of discovery and have also been directed by the MDL Judge to finish additional responses in the near future. Defendants added later in the litigation in so-called “Phase Two” have had the initial sets of discovery served.  Plaintiffs are conferring with defendants on initial responses. 

There are also several State Court actions pending in various venues, including Cook County, Illinois, Dekalb County, Georgia, and Chatham County, Georgia.  The State Court litigations are all moving towards consolidation and are drafting Master Complaints created for each of these venues. The Cook County Judge directed that a Master Complaint be completed by the end of September and has indicated that plaintiffs will eventually be assigned to groups for multi-plaintiff trial settings in the near future. Similar efforts are underway in the Georgia State Court cases as well. 

Kratom Companies Compelled To Produce Documents In Georgia Kratom Case

Beasley Allen lawyers recently won three separate Motions to Compel in a Georgia State Court case against O.P.M.S. Kratom, a popular brand of kratom that was sold to and caused severe neurological issues to Plaintiff Susan Weber.  

The orders issued on September 2^nd and 3^rd respectively, require the O.P.M.S. network of companies to produce documents related to improper scope objections made on behalf of these companies, namely the companies’ attempts to limit the scope of discovery to knowledge of only O.P.M.S. Kratom risks as opposed to knowledge of kratom risks generally.  

The court also ordered the O.P.M.S. Defendants to “include a detailed recitation of the reasonable efforts made to obtain responsive documents” should they conclude that no documents exist.  

Kratom, sometimes referred to as “gas station heroin,” is an herb with opioid- and stimulant-like effects. American use of the Southeast Asian plant has grown dramatically in recent years, spurring a lucrative industry and a national lobbying effort while worrying health experts who fear its addictive effects and the increase in associated hospitalizations and deaths.

Beasley Allen lawyers continue to advocate for individuals who have suffered severe, life-threatening injuries from kratom.  The Beasley Allen lawyers handling the Kratom litigation are Roger Smith, David Byrne, Ryan Duplechin, and Mary Cam Raybon, lawyers in our Mass Torts Section.

Source:  Weber v. O.P.M.S. et al., Civil Action No. 23-EV-000485, Transaction ID: 74208592 (September 2, 2024).  

GLP-1 MDL Hosts Science Day Event

On September 4, Multidistrict Litigation (MDL) U.S. District Judge Karen Marston (E.D. Pa.) hosted a Science Day where both Parties were to provide the MDL Judge with evidence that supports or refutes the respective claims in the GLP-1 litigation.  Science Days are hearings that are common in MDLs involving pharmaceutical or other consumer products with complex factual and scientific issues.  

In the hearing, both parties discussed the relevant studies and medical literature involving the cases, and plaintiffs’ counsel provided a plethora of evidence supporting the allegations of all plaintiffs’ with cases currently filed in the MDL.  

GLP-1 RAs are a class of medicines that were originally developed to treat Type 2 diabetes.  Some GLP-1 medications are now approved to treat weight loss.  These medications are more commonly known by the brand names Ozempic, Wegovy, and Rybelsus (manufactured by Defendant Novo Nordisk), along with Mounjaro and Zepbound (manufactured by Defendant Eli Lilly).  

The MDL involves personal injury cases linked to severe issues such as gastrointestinal complications, intraoperative aspiration, blindness, and several other serious injuries.  Despite these known risks, GLP-1 manufacturers continue to promote these drugs to physicians and their patients as safe and have failed to properly warn against these injuries.

Beasley Allen’s Ryan Duplechin serves as a leader in this litigation as a member of the Plaintiffs’ Steering Committee.  Ryan and Mary Cam Raybon continue to investigate cases for Beasley Allen involving GLP-1 usage that resulted in severe gastrointestinal issues such as gastroparesis, ileus, bowel obstruction or blockage, and blindness.  

TOXIC TORT LITIGATION

3M Faces Class Action After Sweeping PFAS Under The Rug

3M Co. and two other chemical companies are facing a proposed consumer class action in Minnesota federal court for selling stain- and dirt-repellents made with per- and polyfluoroalkyl substances (PFAS) to carpet manufacturers without disclosing the health risks. PFAS, known as “forever chemicals” due to its persistence in the environment, can cause various health issues. The lawsuit, filed by Vicki Peterson and Paul Sadeghi, claims that 3M, EIDP Inc. (formerly DuPont), and The Chemours Co. concealed the dangers of PFAS from carpet manufacturers, retailers, and consumers.

The complaint alleges that the companies knew about the risks, including cancer, from decades-old safety studies but chose to suppress this information. Carpet manufacturers and retailers only learned about the hazards from third parties in 2018. Despite having this knowledge and notice, the companies continued to claim that PFAS were not harmful and did not offer to replace the affected carpets.

The plaintiffs seek to represent a class of potentially tens of thousands of people who bought and installed PFAS-treated carpets before January 1, 2020. The allegations include 127 counts of violations, including the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy, and various state laws. The lawsuit seeks damages, including punitive damages, disgorgement, attorney fees, and litigation costs.

This case is part of a broader legal battle over PFAS contamination, with significant settlements already reached in related cases. The U.S. Environmental Protection Agency (EPA) has also taken steps to regulate PFAS, including setting limits on PFAS in drinking water and declaring some PFAS as hazardous materials.

The carpet consumers are represented by Rebecca A. Peterson of Lockridge Grindal Nauen PLLP and Steve W. Berman, Craig R. Spiegel and Jeannie Evans of Hagens Berman Sobol Shapiro LLP.

The case is Vicki Peterson et al. v. 3M Co. et al., case number 0:24-cv-03497, in the U.S. District Court for the District of Minnesota.

A Further Look At The Dacthal Litigation

We wrote last month on the EPA’s removal of the weed killer Dacthal from the market. The EPA issued the emergency order suspending all registrations of the pesticide dimethyl tetrachloroterephthalate (DCPA), commonly known by the trade name Dacthal, in the U.S. due to concerns regarding embryo-fetal toxicity.

States with substantial agricultural industries, particularly those focused on crops such as broccoli, brussels sprouts, cabbage, and onions, employ thousands of farmworkers that have been potentially affected by Dacthal exposure.

Beasley Allen lawyers are handling claims for individuals and their families who have been adversely affected by Dacthal. You may be eligible for compensation:

• If you worked on a farm or nursery where Dacthal-treated crops were grown during your pregnancy;

• If you were exposed to DCPA through either direct or indirect application to treated areas; or

• If your child has experienced health issues that may be linked to DCPA exposure.

Our lawyers are focusing on cases involving birth defects and developmental delays in children born as a result of the mother’s exposure to Dacthal. The EPA has found that Dacthal poses a significant risk to unborn fetuses, leading to miscarriages, neurodevelopmental issues, impaired growth, neurodevelopmental impairment, and bone diseases. 

The medical science surrounding Dacthal exposure is continually evolving, and the full scope of injuries associated with Dacthal remains under investigation.

Toxic Torts Section Head Rhon Jones has established a Dacthal Litigation Team. The team consists of Miland Simpler, Wesley Merillat and Travis Chin. Rhon is also heavily involved in all aspects of this ongoing litigation. 

Paraquat Litigation Update

A Philadelphia judge has upheld a significant $725.5 million verdict against Exxon Mobil, adding $90.8 million in delay damages, bringing the total to $815.8 million. This decision came on September 13, when Judge Carmella Jacquinto of the Philadelphia Court of Common Pleas rejected Exxon Mobil’s attempts to challenge the verdict from May in the case of Gill v. Exxon Mobil.

Plaintiff Gill, who worked at a Mobil Oil service station in the 1970s, claimed that exposure to benzene in gasoline and solvents caused his illness. He contended that Mobil, which later merged with Exxon, failed to warn about the health risks. The judge’s decision reinforces the jury’s finding that ExxonMobil is responsible for Mr. Gill’s injuries. Exxon says it will appeal the verdict.

Mr. Gill, who developed acute myeloid leukemia due to exposure to benzene in Mobil-brand gasoline, was awarded $725 million in compensatory damages and $500,000 to his wife for loss of consortium. Gill’s legal team contended that Exxon Mobil knew about the carcinogenic risks of benzene but concealed this information.

Exxon Mobil, represented by several law firms, argued that the verdict was excessive and unsupported, and that the plaintiffs had already been compensated by another defendant. They also claimed jury bias based on online comments from a juror. However, Judge Jacquinto denied all motions for a new trial or reduced verdict.

Reportedly, the Gill verdict is the largest jury award of 2024 in the Philadelphia Court of Common Pleas.

Mr. Gill is represented by Patrick Wigle and Rajeev Mittal of Waters Kraus Paul & Siegel, and Andrew J. DuPont of Locks Law Firm.

Source: The Legal Intelligencer

CONSUMER CORNER

Robinhood Fined $3.9 Million In First Crypto Enforcement Action

The California Department of Justice has fined Robinhood $3.9 million for not allowing customers access to their cryptocurrency wallets, misleading them about the best crypto trade rates, and lacking transparency about asset custody. This is the first public enforcement action by the state DOJ against a crypto company.

California Attorney General Rob Bonta emphasized that all businesses, including cryptocurrency companies, must adhere to California’s consumer and investor protection laws. Robinhood did not admit or deny the allegations as part of the settlement.

The investigation, which began in 2021, found that from 2018 to 2022, customers could not transfer their crypto assets to their own wallets and had to sell them to leave the platform. Additionally, Robinhood’s promise to connect to multiple trading venues for the best prices was not always fulfilled. The company also failed to secure customers’ assets and did not disclose that other crypto exchanges sometimes held these assets for extended periods.

Robinhood has agreed to allow customers to transfer cryptocurrency to their own wallets and to be more transparent about trade handling and asset storage. The company is also under scrutiny by the U.S. Securities and Exchange Commission. A Wells notice was issued by the SEC in May, indicating potential legal action over Robinhood’s cryptocurrency practices.

Robinhood’s legal team, led by former SEC commissioner Dan Gallagher and General Counsel Lucas Moskowitz, says they are working to improve compliance and collaboration with regulators.

Source: Corporate Counsel

Navient Agrees To $120 Million Settlement To End Student Loan Cases

Navient Corp. has agreed to a proposed settlement with the Consumer Financial Protection Bureau (CFPB) that would bar it from servicing federal student loans and require it to pay $120 million. This settlement, pending court approval, includes $100 million for borrowers and a $20 million fine. Navient will also be permanently banned from servicing Direct Loans and most loans under the Federal Family Education Loan Program.

CFPB Director Rohit Chopra criticized Navient’s executives for exploiting students and taxpayers, stating that this settlement will end years of abuse. Navient, which succeeded Sallie Mae, disagreed with the allegations. However, the company expressed relief at resolving the issue. The company noted it had already transferred its federal student loan servicing contract to a third party in 2021 and outsourced servicing of Federal Family Education Loan Program portfolios in July 2024.

The CFPB’s action against Navient began in 2017. The agency accused the company of steering borrowers into costly forbearance programs instead of income-driven repayment plans, providing incorrect information about repayment plans, misapplying payments, and ignoring complaints. In 2022, Navient settled with 39 state attorneys general to cancel $1.7 billion in student loan debt and pay $142.5 million for alleged predatory practices.

The case is Consumer Financial Protection Bureau v. Navient Corp. et al., case number 3:17-cv-00101, in the U.S. District Court for the Middle District of Pennsylvania.

Source: Law360

John Deere Settles Bribery Lawsuit

Deere & Company agreed to pay $9.93 million to settle SEC charges that its Thailand subsidiary engaged in commercial bribery to win government contracts. From 2017 to 2020, high-level managers and employees at Wirtgen Thailand made improper payments to officials, including those from the Royal Thai Air Force and Thailand’s Department of Highways. 

These payments, which violated the Foreign Corrupt Practices Act, included cash, meals, sham consulting fees, and massage parlor services. Deere’s settlement includes a $4.5 million civil fine, $4.34 million in disgorged benefits, and $1.09 million in interest. 

The company has since cooperated with the SEC, terminated involved employees, and enhanced its compliance procedures and anti-bribery training. Deere condemned the actions, stating they conflict with the company’s core values and commitment to integrity.

Source: Reuters

MLB Players Union Sues DraftKings For Use Of Names & Images

DraftKings Inc. and Bet365 are facing a lawsuit for allegedly using the names and images of Major League Baseball (MLB) players without permission, violating Pennsylvania law. The lawsuit, filed by the players’ union in federal court in Philadelphia, claims that these betting platforms are using player images for promotional purposes in their marketing campaigns. The union argues that users can place bets on games and player performances without needing to see the players’ images.

DraftKings, which recently acquired Simplebet Inc. to expand its live sports betting offerings, has seen revenue growth despite increased competition. The company is also seeking a license to operate in Brazil. The lawsuit seeks compensatory and punitive damages, as well as an order to stop the unauthorized use of MLB player images and to disgorge profits made from such use. 

The case is MLB Players v. DraftKings, 24-cv-04884, U.S. District Court for the Eastern District of Pennsylvania (Philadelphia).

Source: Claims Journal

Drug Middlemen Accused Of Raising Insulin Prices By FTC

The Federal Trade Commission (FTC) has accused the three largest pharmacy benefits managers (PBMs)—Caremark Rx, Express Scripts, and OptumRx—of inflating insulin prices through unfair rebate schemes. The FTC’s administrative complaint alleges that these PBMs have abused their economic power, causing insulin prices to skyrocket and forcing patients, especially the uninsured, to pay more for this essential medication.

The complaint centers on the PBMs’ use of rebate schemes that prioritize high-priced drugs, preventing access to more affordable options. Rahul Rao, deputy director of the FTC’s Bureau of Competition, emphasized that millions of Americans with diabetes have seen insulin costs soar due to the greed of these powerful PBMs.

The FTC’s action aims to end the exploitative practices of these PBMs, which control about 80% of all prescriptions in the U.S. The complaint accuses the companies of negotiating rebates with drug manufacturers, incentivizing them to raise list prices for insulin. This practice began around 2012, leading to significant price increases.

It should be noted that Express Scripts has sued the FTC for defamation over a related report. Also, representatives from the PBMs contend that the FTC misunderstands drug pricing. They claim their negotiations have actually lowered insulin costs for many patients. The FTC, however, remains focused on addressing the rebate schemes that have driven up prices and harmed consumers.

The case is In the Matter of (Insulin) Caremark Rx, Zinc Health Services et al., case number 9437, before the Federal Trade Commission.

Source: Law360

CPSC Issues Warning On Magnetic Chess Game

The U.S. Consumer Product Safety Commission (CPSC) has issued a warning against using magnetic chess games sold by the Chinese company JOMO. These toys pose serious risks if children swallow the magnetic pieces, potentially causing severe internal injuries or even death. The CPSC found that JOMO’s game does not meet federal safety standards and issued a notice of violation. At press time, the company had not agreed to a recall.

Magnetic toys can be extremely dangerous if swallowed, as they can attract each other inside the digestive system, leading to perforations, blockages, and other life-threatening conditions. Between 2017 and 2021, around 2,400 cases of magnet ingestion were treated in emergency rooms, with eight deaths reported between 2005 and 2021.

JOMO’s magnetic chess game contains about 20 magnets but does not include actual chess pieces. There has been no comment by the company. 

The CPSC has long raised concerns about the safety of magnetic toys, particularly those from Zen Magnets LLC. In 2021, the agency mandated a recall of 10 million magnets from Zen and Neoballs due to safety issues. Zen Magnets has been involved in legal battles with the CPSC since 2012, challenging regulations and recalls related to their high-powered magnetic ball sets. Despite some legal victories, the CPSC continues to enforce strict regulations on these products to protect consumers.

Source: Law360

THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED BY THE FIRM

The Structure Of Beasley Allen Is Designed To Work For Clients

Beasley Allen operates in five separate sections: four litigation sections and one administrative section. The separate litigation sections concept has worked very well. It has definitely benefited Beasley Allen clients and has also allowed our lawyers to bring about national changes in product and workplace safety. 

Over the past 45 years, Beasley Allen lawyers have handled all sorts of civil litigation for plaintiffs. The Administrative Section supports the four litigation sections that could be described as “mini-firms” within Beasley Allen. Those four litigation 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 proficiency within each section. Successful section performance leads to better firm performance overall, allowing us to expand our resources and enabling firm growth. Year after year, we believe our approach has allowed us to help more of those who need it most. 

The Mass Torts Section

Andy Birchfield heads our Mass Torts Section. 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 medical devices, medication and other practice areas. The section currently handles cases involving Acetaminophen, Hair Relaxers, Kratom, NEC Baby Formula, Ozempic, Social Media and Talcum Powder.

The Toxic Torts Section

Rhon Jones leads our firm’s Toxic Torts Section with Section Director Tracie Harrison’s assistance. The section focuses on toxic exposure cases. Recent cases involve Camp Lejeune Water Contamination, Dacthal, 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 of the Section. The section currently handles cases involving Business Litigation, Class Action, Consumer Protection, Securities cases, Employment Law and Whistleblower cases.

The Personal Injury & Products Liability Section

Cole Portis heads our Personal Injury & Products Liability Section with Sloan Downes serving as the Director of the Section. The section handles Auto Accidents, Aviation Accidents, Defective Tires, Negligent Security, On-the-Job Injuries and Truck Accident cases. 

The Administrative Section

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.

Since we reorganized the firm’s structure in 1998, Beasley Allen’s record speaks for itself. The structure has contributed greatly to our firm’s success. Section Heads and Directors have been able to concentrate on the volume of cases in their section. They quickly recognize when additional resources are needed. Lawyers in each Section have been able to focus on cases within their specialty. This has allowed them to achieve favorable results. The efficiency and teamwork generated by the sections concept has 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 (BeasleyAllen.com/Recent-Cases/).

• Acetaminophen
• Auto Accidents
• Aviation Accidents
• Camp Lejeune
• Dacthal
• Defective Tires
• Firefighting Foam
• Hair Relaxers
• Kratom
• NEC Baby Formula
• Negligent Security
• On-the-Job-Injuries
• Ozempic
• Paraquat
• Social Media
• Talcum Powder
• Truck Accidents

We will give a brief explanation below for each of the listed categories:

• Acetaminophen
  Beasley Allen lawyers handle 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
  Lawyers 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.
• Dacthal
  Beasley Allen is currently handling cases involving the pesticide DCPA (Dacthal, or dimethyl tetrachloroterephthalate) and its link to serious health risks for unborn babies.
• 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
  Beasley Allen investigates 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.
• Kratom
  Beasley Allen is investigating cases of serious adverse effects experienced by individuals who have consumed products containing Kratom.
• 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. Quite often, the incident results in a product liability case. Industrial products include manufacturing, farming, construction or other types of equipment.
• Ozempic
  We investigate cases of gastroparesis, intestinal obstruction, deep vein thrombosis and pulmonary embolism related to the use of diabetes and weight loss drugs like Ozempic, Wegovy and Mounjaro.
• 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
  Beasley Allen handles 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 Practice

I am proud – actually honored – to say that Beasley Allen is a civil litigation law firm. I am blessed to have been the trial lawyer who started the firm as a sole practitioner in 1979. From the firm’s beginning, Beasley Allen has only represented victims of wrongdoing, and that will never change. 

The firm, by choice, only represents individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing of another. Our lawyers do not handle any defense work, neither civil nor criminal. 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.

We are honored and humbled that our firm has been consistently recognized as one of the leading law firms in the country representing only claimants involved in civil litigation, much of it being complex and complicated. 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, a lawyer in our firm, works on discovery issues involved in litigation. Her prime area of focus is E-Discovery. Suzanne writes this month on that area. We believe it will be extremely helpful to lawyers, especially trial lawyers. 

Why Do Litigators Need E-Discovery Attorneys On Their Teams and What Do They Do?

Around 2000, the volumes of “documents” relevant to claims or defenses in litigation and government investigations exploded due to big data. The term “big data” began to be used in the mid-1990s. It is often credited to John R. Mashey, who was the chief scientist at Silicon Graphics, Inc. (SGI) at the time. However, some sources also mention that NASA researchers Michael Cox and David Ellsworth used the term in 1997. This explosion of data led to a significant shift in the discovery process. It therefore makes sense that e-discovery professionals often refer to enormous large-scale document reviews bursting onto the scene around the time of the new millennium, a handful of years after the term “big data” was coined. 

As a result, what used to be a trip to a client’s filing cabinets, banker’s box, or, at worst, an Iron Mountain storage facility in the paper days, has become an immense exercise in identifying a wide array of a client’s electronic data sources, including mobile devices, collaboration tools, various text messaging apps, ephemeral messaging apps, shared drives, cloud accounts, medical portals, GPS units, and proprietary software applications to name a few.  The sheer volume and variety of these electronic data sources, often referred to as big data, present unique challenges in the discovery process. After identifying what electronically stored information (ESI) exists, attorneys must determine how to collect the ESI from those sources, search and review it, and finally, produce and present it for use at depositions and trials. 

The rule makers realized the big data phenomenon must be dealt with, and the Federal Rules of Civil Procedure were amended in 2006 and again in 2015 to account for the presence of ESI as discoverable information in litigation. Proportionality, preservation, and spoliation became common concepts impacting all litigations, and burden took on a whole new meaning.  Spoliation went from a clear bad actor to someone who simply was not told to halt auto delete after a litigation hold was implemented. Big data, an issue for a technologist, became an issue for attorneys in litigation with legal rules and consequences.  

E-discovery attorneys are fellow bar members who have dedicated their practice to discovery. They play a crucial role in the discovery process, translating between the technological vernacular of IT professionals and software developers to the legalese of attorneys and paralegals. They understand what it takes to move data through the Electronic Discovery Reference Model (EDRM), from identification and preservation to collection and processing to review and analysis to production and presentation.  Their knowledge of the law, rules, and available technology allows them to advise clients and co-counsel on how to best handle ESI in their litigations. 

The role of e-discovery attorneys has become indispensable in modern litigation.  As the volume and complexity of electronic data continues to grow, these attorneys ensure that the discovery process is handled efficiently and in compliance with legal standards. Their experience saves time and resources and mitigates risks associated with data mismanagement.  For litigators, having e-discovery attorneys on their teams means being better equipped to navigate the challenges of big data and achieve favorable outcomes for their clients.

This discussion will be helpful to trial lawyers regardless of their level of experience or field of trial practice. It’s an absolute necessity that e-discovery issues in litigation be completely understood and handled properly.

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

Evan Allen

Evan Allen is a lawyer in the firm’s Personal Injury and Products Liability Section in our Mobile office. Since joining Beasley Allen in 2012, Evan has diligently worked on tackling challenging cases with deep knowledge and commitment. From crashworthiness to on-the-job products liability and truck wreck cases, Evan approaches each situation uniquely, with dedication and legal prowess, always aiming to secure the best outcome for his clients. Evan is now a principal in the firm. In the old days, he would have been called a “partner.”

Evan and his wife Cameron live in Fairhope, AL, with their two sons, Rawlins and Greg. They are active members of the Saint James Episcopal Church. Outside of work, Evan enjoys fishing and spearfishing in the Gulf of Mexico and turkey hunting in the spring. Evan shares that he became a lawyer because he enjoys the competitive nature of litigation and a job with lots of variety. He adds:

I wanted a job where I was constantly pushed to improve and continue growing.  I also liked the idea that every case would be different.  I never wanted a job where I would do the same thing day in and day out.

Evan’s favorite part about practicing law is counseling his clients through tough times and getting to know them and where they come from.  He further adds, 

In some jobs, you always deal with a particular population subset.  In my work, I never know who my clients will be.  The one constant is that my clients typically go through the worst thing that has ever happened to them.  Counseling in the legal sense is my primary job, but the counsel I provide in getting them through the hard times is equally as valuable and rewarding.

Evan says that he is inspired by Beasley Allen’s commitment to faith, hard work, and relentless client advocacy. He appreciates the firm’s ability to adapt to changes in the legal market while maintaining its core principles. We are thankful to have Evan, a hard-working and talented lawyer, with us!

Marsha Faircloth

Marsha Faircloth has been with Beasley Allen for two years as an Intake Specialist in our Mass Torts Section. She is pivotal in this section as she is many clients’ first point of contact. As an Intake Specialist, Marsha answers questions, gathers crucial information, and sets the tone for future interactions, making sure that each client feels heard and valued. Marsha’s role requires compassion, attention to detail, and a deep understanding of the firm’s mission—a challenge that Marsha enjoys meeting daily with grace and enthusiasm.

Marsha shares that her interests beyond work are as varied as they are fulfilling. From the creative release of painting to the tranquility of gardening and the simple pleasure of watching Hallmark movies, she finds joy in the small things that make life beautiful. Above all, spending quality time with her family remains her favorite pastime, nurturing the bonds that mean the world to her. She is the mother of two exceptional adult children, Hiram and Caitlin, who have pursued their master’s degrees at Troy University. Her bond with her family extends to her only sister, who lives in Michigan, with whom she shares daily conversations with love and laughter.

What Marsha says she cherishes most about her work at Beasley Allen is what she describes as endless learning opportunities. She adds:

Whether gaining new insights from co-workers or absorbing wisdom from the firm’s leaders, I am a lifelong learner who thrives on expanding my knowledge.

We are thankful to have Marsha with us!

Marc McHenry

Marc McHenry has been a dedicated member of the Beasley Allen team for over a decade. His journey with us began 11 years ago, and since then, he has been an invaluable asset as an investigator in our Personal Injury and Products Liability Section. His responsibilities include coordinating the preservation of crucial evidence, including vehicles, machinery, and equipment, ensuring they are meticulously inspected for any defects that could have contributed to an incident. His work also involves detailed analysis, photographing, and documenting to assist lawyers in building strong cases for our clients.

Marc’s love for the outdoors is a significant part of his life, a passion that he shares with us. When he’s not working or spending time with his family, he can be found immersed in nature. From planting wildlife food plots to boating, skiing, and hunting, his hobbies reflect his deep connection with the natural world. Married to his wonderful wife, Kay, for 33 years, the couple have two children, Krystin and Dalton, who have both pursued successful careers thanks to their hard work and dedication. Marc says he is also fortunate to have his parents, who enjoy retirement after long and fulfilling careers.

What Marc enjoys most about working at Beasley Allen is the sense of teamwork and collaboration. He appreciates being part of a diverse group with a common goal: gathering vital information and evidence to support the lawyers and their clients. We are fortunate to have Marc with us!

On a personal note, I met Marc’s dad, Ned, when he was a state trooper in Eufaula, AL. At that time, I was a very young lawyer in Clayton. Ned had a tremendous career in the Alabama Department of Public Safety. Ned is a good man who would be an ideal role model for any person seeking law enforcement as an occupation. Ned has been my friend for over 50 years. Marc is “a chip off the old block!”

Burton Walker

Burton Walker joined the firm in August of this year. He is in the Mass Torts Section. Burton expresses that his path into the legal profession was driven by a “fervent passion, dedication, and a profound ambition to positively impact the lives of others.” Having earned a bachelor’s degree in communications from Freed-Hardeman University in 2015 and completing his law studies at Faulkner University’s Thomas Goode Jones School of Law by 2018, Burton established a firm groundwork for a successful legal career. He mentions that his passion for history, government, and the legal framework has been a major influence in his decision to pursue a career in law, aiming to play an active role in contributing to the justice system.

Before joining Beasley Allen, Burton served as Madison County, Alabama’s assistant district attorney since 2018.  As a prosecutor, Burton says that he has encountered numerous clients facing tough times within the legal system and has supported them with empathy and a comprehensive approach, ensuring they fully understand the legal processes and are prepared for different outcomes. 

Besides his professional achievements, Burton says he has a strong love for detail and a talent for legal research and writing. His greatest strengths are his strong work ethic, communication skills, and meticulous attention to detail – qualities that have guided him to significant accomplishments thus far in his career. 

Beyond the courtroom, Burton and his wife, Abby, actively participate in community service through their church’s outreach programs, including ESL and Project Rescue, highlighting their commitment to giving back to the community. 

When not immersed in legal work or community service, Burton enjoys tennis, running, and outdoor activities. He is also an avid reader, often delving into historical nonfiction and biographies to expand his knowledge and for relaxation.

Burton’s story goes beyond his skill as a lawyer; it unfolds as a testament to his unwavering dedication to family, community, and the quest for justice. Relocating to Huntsville in 2018 and securing a role at Beasley Allen, he looks forward to continuing his efforts to bring positive changes to his clients. With his wife, Abby, their son, Ford, and their Aussiedoodle, Chester, Burton says he is committed to achieving excellence in his career and personal life.

We welcome Burton to Beasley Allen. I am confident that he will definitely be an asset to the firm and will take care of his clients in an effective, professional and caring manner. 

Loretta Williams

Loretta Williams, a cornerstone of our accounting department at Beasley Allen for over 23 years, is a key player in the financial operations of our Fraud and Toxic Torts sections. Her day-to-day tasks, which include processing invoices, reconciling attorney credit cards, running daily cost imports, preparing monthly expense reports, and verifying disbursement schedules, are crucial to the smooth operation of our financial systems. Loretta’s meticulous work is a testament to her importance and impact on our firm.

Outside of work, Loretta enjoys spending quality time with her family. She and her husband, Paul, have been married for 15 years.  Together, they have a 14-year-old son, Bryce. Loretta shares that her family life is full of joy and memorable moments and that her son’s unforgettable smile is just one of the many blessings she cherishes most. The Williams family enjoys various activities together, including arcade visits, football games, movie nights, outdoor festivals, and spontaneous road trips. Loretta’s personal hobbies also include reading, listening to podcasts and music, and playing games like Word Trip and Bubble Pop.

Loretta shares that her favorite aspect of working at Beasley Allen is the friendships she’s cultivated over the years. She adds: 

The supportive and faith-filled environment at Beasley Allen has strengthened my faith and enabled my growth professionally and personally, fostering connections with people from diverse backgrounds.

We are blessed to have Loretta at Beasley Allen. She is a definite asset. 

FAVORITE BIBLE VERSES

Several of our lawyers and staff employees who are being featured in this issue share their favorite Bible verses with us.

Evan Allen

Evan Allen offers one of his favorite verses and the special meaning behind it. He says a client recently gave him a sticker with the verse.  The client’s daughter was tragically killed, and the verse was her favorite. 

Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go. Joshua 1:9

He says the verse has continued to pop up at times when he was in need of an encouraging word. As lawyers, there are plenty of days that will not go our way, but we always have to be able to shake the discouragement and continue forward.

Marsha Faircloth

Marsha Faircloth includes one of her favorite verses below. She says it’s a reminder that we all need to have faith!

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

Marc W. McHenry

Marc McHenry shares several of his favorite verses for this issue. He says the first gives us hope and peace and the strength to carry on.

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,[a] 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. Proverbs Psalm 23, 1-6

Marc says the second verse serves as God’s promise to those who accept Jesus as their Lord and Savior.

For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. John 3:16

Loretta Williams

Loretta Williams provides two of her favorite Bible verses for this issue. The first encourages her to be strong and courageous and not to be afraid or discouraged because God will be with her wherever she goes.

Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go. Joshua 1:9

Loretta says the second verse reminds her to delight herself in the Lord and that He will give her the desires of her heart.

Take delight in the Lord, and he will give you the desires of your heart.  Psalm 37:4

CLOSING OBSERVATIONS

What More Will It Take?

Mass shootings are happening all over the country – hundreds of people have been killed and hundreds more injured over the past several months. The locations of these shootings include schools, churches, clubs, businesses of all kinds, offices, parties, and the list goes on. 

The weapons used in these mass shootings include assault rifles, handguns converted by Glocks to become automatic weapons, and regular revolvers. It’s important to understand that assault rifles were designed to kill humans in military battles. They are definitely not hunting rifles. 

Each time a mass shooting with multiple deaths occurs, I ask myself, “What more will it take before our politicians at both the national and state levels take the action necessary to put a stop to this horror show?”

The NRA has successfully killed all attempts to bring about reasonable gun control. How do they do this? Recent polls indicate the public wants something done and done without delay. Reasonable gun control does not violate the U.S. Constitution. We need background checks, a requirement for permits, and a ban on the sale of assault rifles. 

We must stop these mass shootings. So, demand that the politicians act immediately and do all necessary to stop the mass murders. If you agree we need gun control, contact the political leaders in your community and ask for their help. 

MONTHLY REMINDERS

The following are reminders this month for all of us at Beasley Allen. As I have said previously, these reminders are put in the Report for a purpose. They are to be applied in the workplace, in our social life, and at home. While the reminders are for all at Beasley Allen, we send them to all who get the Report. Any person in a leadership role, including those persons in government, will benefit by reading the quotes and applying the lessons learned from them in their daily lives. 

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 Chronicles 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

All Americans should be gravely concerned over the racism, hate and violence that has become all too apparent in our country. Our nation is badly divided, and the need for unity is urgent. The obligations of citizenship demand that we do our part to unify America. 

I wrote last month on the campaigns for President by the two candidates and posed what I consider to be the most important question we all need to answer. Since then, I have observed the campaigns being run by each candidate and have listened to what they are saying and proposing. I have also taken a closer look at the candidate’s personal history and public record. I suggest we all do the same now before it’s too late. 

Only one of the candidates would be a President who can unite our badly divided nation. As a former Republican President once said, “A nation divided against itself cannot stand.”  That was true then, and it is more true today than ever. 

Without any doubt, Donald Trump could never be an employee at Beasley Allen, much less our leader. I have thought long and hard about which candidate I would trust to head up and lead our country.  My decision was an easy one. I would not trust Donald Trump to be in control of the United States of America. His election would be a disaster of monumental proportions. 

I will vote for Kamala Harris on November 5 to take our nation forward.