The Jere Beasley Report February 2023

CAPITOL OBSERVATIONS

Transforming A Law Firm

When our law firm began in 1979, I had no idea it would grow into the firm it is today. When asked by my wife Sara how big I wanted the firm to grow, I could envision no more than five lawyers in the firm. We have long since exceeded that vision. It has changed many times over the years. At times, smaller changes happened when lawyers joined and others left. At other times change was needed and occurred in a big way. Those changes and our commitment to keeping God first in everything have resulted in growth and success beyond our expectations for the firm and our clients.

One of the most significant changes occurred shortly after Tom Methvin became the firm’s Managing Attorney in 1998. It was a change that was born out of necessity.

In the mid-1990s, there was a backlash against tort laws that had been established over the past 100 years. These laws were designed to protect consumers’ rights when they were injured or killed due to the negligence or wrongdoing of companies, usually large corporations with well-funded defense teams. This backlash led to laws becoming less favorable to consumers and plaintiff trial lawyers representing them.

Further, Tom noticed a trend that remains evident today – the law continues to grow more complex each year. So, by extension, the practice of law demanded more specialized knowledge from the practitioner.

To successfully operate in this new and ever-changing reality, Tom recognized that the firm had to adapt and diversify, and he had a vision for transforming “business as usual.” This transformation began as Tom, with support from our Board, launched the firm onto the national stage and established the Mass Torts Section. Mass Torts was a relatively new concept and approach for handling mass litigation claims involving defective and often dangerous pharmaceutical products.

The first state targeted by the firm’s expansion was our neighbor to the west, Mississippi. The firm became involved in the Fen-Phen litigation through its newly minted Mass Torts Section. Fen-Phen was a diet drug pulled from the market after it was linked to heart valve disease. The litigation led to a $3.8 billion settlement for all of the litigation. The success our Mass Torts Section achieved on the national stage sparked another cutting-edge transformation for the firm – establishing sections or areas of practice. Our firm was at the forefront of structuring the firm into practice sections, and we remain committed to this structure today.

We learned that allowing lawyers to focus their practices on a specific area of the law gives them ample opportunity to grow their expertise. As they work on the same types of cases daily, the lawyers become more familiar with the laws in that area of practice and successful approaches for handling those types of cases.

Three other sections in the firm were created. The Toxic Torts Section was established, followed by what is now the Consumer Fraud & Commercial Litigation Section and the Personal Injury & Product Liability Section. Each of these areas is complex and highly complicated. By concentrating in certain areas of law, our lawyers’ knowledge and experience lend themselves to efficiency, allowing our resources to be invested in other cases that further our mission of “helping those who need it most.”

Tom also explains a fifth section is critical to the firm’s success – the Administrative Section. This section centralizes the efforts of four departments Accounting, Human Resources, Information Technology and Marketing. These departments provide support services to the other four sections that function as “mini-firms” within the larger Beasley Allen Law Firm.

Each mini-firm has a dedicated building, support staff, a lawyer that serves as the Section Head and an Administrator that manages the daily functions required of any law firm. As Managing Attorney, Tom continues to oversee all the sections. He works directly with the Section Heads and Administrators to ensure each has what they need to maintain and build on the momentum each year.

The mini-firms also have unique needs that are usually dictated by the type of cases they handle. For example, Mass Torts and Toxic Torts Sections often handle multidistrict litigations, and similarly, Consumer Fraud & Commercial Litigation handles an increasing amount of class action litigation. These mass actions require specially trained staff and strategic and systematic approaches that serve such a large number of clients successfully. The section administrators also learned efficiencies from years of working on similar cases. They are well-versed in what to anticipate in the cases their sections handle and experienced enough to adapt to changing needs within their specific practice.

Another benefit the sections’ structure offers is synergy. The team dynamic that develops over time within smaller, tight-knit teams combines talent and streamlined processes allowing each mini-firm to function efficiently while demonstrating effectiveness. While lawyers must work within the boundaries of confidentiality, they are limited in who they can turn to for support. Having team members who can understand and provide support based on their hands-on experience benefits everyone.

Over the last quarter of a century, our firm has handled many complex litigations on behalf of countless clients who received representation as they pursued justice. Centralizing our work based on the type of case and expanding the availability of our services nationwide has earned the firm a reputation as one of the country’s leading civil litigation firms. Ultimately, our clients benefit the most from this transformation, and it is always encouraging to be a leader in something that has stood the test of time.

THE TALC LITIGATION

Third Circuit Ruling Reopens Courthouse Doors For Talc-Asbestos Claims

Thousands of women and family members whose talc-related legal cases against healthcare giant Johnson & Johnson (J&J) have been on hold for more than a year can move forward now, following a ruling on Jan. 30, 2023, by the U.S. Court of Appeals for the Third Circuit. The controversial J&J bankruptcy ploy was returned to the lower court with the instruction to dismiss.

In its ruling, a tremendous victory for victims seeking fairness and justice, the court found that the bankruptcy of J&J’s shell subsidiary, LTL, was not filed in good faith, that LTL was not in financial distress deserving bankruptcy protection, and that the bankruptcy petition should be dismissed.  This decision, requiring dismissal of the bankruptcy case, will void the injunctive stay that had put some 38,000 legal cases on hold while the healthcare giant pursued a strategy centered around bankruptcy.

The opinion dismantles the federal bankruptcy court rulings supporting the injunction and will allow plaintiffs to move forward with lawsuits alleging that the company knew for years that its Johnson’s Baby Powder and Shower to Shower products were contaminated with carcinogenic asbestos. Evidence produced during years of trials shows the company repeatedly denied or covered up the scientific evidence of the association of the product to ovarian cancer. 

The injunction, issued in November 2021, had stopped all litigation based on J&J’s use of a bankruptcy strategy known as the “Texas Two-step” to consolidate all talc litigation liabilities in a shell corporation, protecting billions of dollars in assets of its consumer division and corporate parent. While today’s ruling was critical of the strategy, the court remanded the case to federal bankruptcy court in New Jersey for dismissal.

Leigh O’Dell, Co-Lead Counsel in the talcum powder MDL and a member of the Beasley Allen team, had this to say:

This ruling clearly upholds the Seventh Amendment’s right to a jury trial and confirms that every individual has the right to pursue a claim through the tort system.

Ted Meadows, another Beasley Allen team member who has tried more talcum powder-ovarian cancer cases than anyone in the country, remarked:

With the bankruptcy to be dismissed and the resulting stay lifted, we will immediately seek to efficiently schedule and conduct trials in state and federal courts and establish the liability of Johnson & Johnson for the deaths and disease suffered by thousands of women.

In addition to removing the litigation stay, the bankruptcy’s dismissal is expected to thwart J&J’s latest attempts to discredit plaintiffs’ expert witnesses. In December and January, LTL utilized bankruptcy procedures to file complaints in adversary proceedings against four plaintiffs’ expert witnesses who testified in support of claims against J&J’s cosmetic talc products. These experts all withstood Daubert challenges where courts validated their scientific methodology, and all have an extensive number of peer-reviewed scientific publications. Generally, experts are protected against civil and criminal liability with a few carve-outs by state laws. In part, this immunity is to prevent intimidation by the opposing party that would result in a chilling effect on the willingness of experts to testify.

The “Texas Two-Step” strategy has raised eyebrows in Congress, where representatives have begun discussing potential changes to the bankruptcy laws that would prevent this sort of legal strategy and the associated consumer harm in future cases.

Earlier this year, Johnson & Johnson announced a halt to future sales and distribution of talc-based products worldwide, citing the legal claims brought by ovarian cancer and mesothelioma victims. Numerous scientific studies spanning decades have established the carcinogenic effects of cosmetic talc, while U.S. and Canadian governmental regulators have called for enhanced testing techniques for products containing the mineral, particularly after independent testing by the U.S. Food & Drug Administration revealed asbestos in consumer samples of talc-based powders.

Beasley Allen Talc Litigation Team

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

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

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

THE CAMP LEJEUNE LITIGATION

Update On Camp Lejeune Litigation

As February begins, a monumental date for service members and others affected by the contaminated water at Camp Lejeune is about to trigger the second part of this litigation that seeks justice for those impacted and their families. The Camp Lejeune Justice Act (CLJA) was signed into effect on Aug. 10, 2022. Per the CLJA, Feb. 10, 2023, will be the first date that cases may be filed in the Eastern District of North Carolina. Before the CLJA was enacted, litigation was previously denied to those who were affected, but now these individuals will finally be able to have their day in court.

The CLJA requires that an administrative claim be filed before filing suit. After a claim is filed, six months must past before a civil action can be brought. During this six-month time period, the Department of the Navy has the opportunity to offer resolution for these claims via settlement offers; however, if the department does not offer a settlement or an impacted individual chooses to reject an offer, then the individual’s next step is to file a case in the Eastern District of North Carolina.

The team of lawyers for Beasley Allen has worked tirelessly to protect their clients’ rights by filing administrative claims on a rolling basis since the fall of 2022. In the litigation overall, more than 14,000 administrative claims have already been filed with the Department of the Navy. Litigation is expected to play a crucial role in this action. Despite what many national advertisements may state, these claims will need more than a simple signing up for a successful resolution. Many of these cases’ successes will hinge upon litigation. As February unfolds, more details will become known as to the potential structure of the litigation that is centralized before the Eastern District of North Carolina.

Beasley Allen has an entire team of lawyers and staff dedicated to investigating, filing, and establishing causation for these Camp Lejeune claims. The team is co-led by Leslie LaMacchia and Julia Merritt, lawyers in our Toxic Torts Section. The section is led by Rhon Jones. Contact a lawyer on the Camp Lejeune Litigation Team to help you with your Camp Lejeune claims.

Beasley Allen Camp Lejeune Litigation Team

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

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

SOCIAL MEDIA LITIGATION

Social Media Addiction/Personal Injury Litigation Update

The national Social Media Addiction/Personal Injury Product Liability multidistrict litigation (MDL) involving the world’s largest social media products continues to move forward. Defendants include Meta (Facebook and Instagram), Snapchat, TikTok, and YouTube. The MDL for this litigation was assigned to Judge Yvonne Gonzalez-Rogers in the U.S. District Court for the Northern District of California, Oakland Division. Currently, there are 133 personal injury cases filed in the MDL. A team of 22 lawyers has been appointed to lead the entire litigation. Beasley Allen lawyer Joseph VanZandt has been appointed to the Plaintiff Steering Committee. 

At the initial Case Management Conference, Judge Gonzalez-Rogers stated that master pleadings and motion practice on the master pleadings would be prioritized. Staying true to her word, in the December Case Management Conference, the judge set Feb. 14 as the deadline for the master complaint to be filed. She also set deadlines for the defendants’ motions to dismiss to be filed by April 17, 2023, and all oppositions and replies filed by June 30, 2023. Discovery into the social media giants will move forward if plaintiffs defeat the defendants’ impending motions to dismiss on any of plaintiffs’ claims.

Judge Gonzalez-Rogers indicated that while defendants were permitted to brief certain legal issues, she does not believe motions focused on Section 230 of the Communications Decency Act (CDA) and the First Amendment should be filed or decided before the U.S. Supreme Court decides Gonzalez v. Google LLC in 2023. The High Court is scheduled to hear the Gonzalez v. Google case in February 2023, where the Court is expected to examine and clarify the level of immunity social media companies have under Section 230 of the act and the First Amendment. The outcome of this Supreme Court decision will significantly impact the ongoing social media litigation and set important standards for holding social media companies liable for injuries caused by their platforms.

Although discovery is stayed pending master pleadings and motion practice, the court is requiring certain defendants to produce documents that were previously produced in connection with various investigations brought by states attorneys general and international authorities. The next Case Management Statement is scheduled for March 3, 2023.

Meanwhile, Facebook, Instagram, Snapchat, TikTok, and YouTube are facing similar state court consolidated personal injury litigation in California. On Dec. 16, Judge David Cunningham ordered that cases against these defendants will be consolidated in a California state court action called a JCCP, which is similar to the federal MDL. The litigation has been assigned to Judge Carolyn Kuhl of the Superior Court of California for the County of Los Angeles. An initial hearing is set for Feb. 17, 2023. Beasley Allen is honored to represent plaintiffs in the federal MDL and California JCCP.  

European Union Regulators Fine Meta 390 Million Euros For Privacy Violations

Ireland’s Data Protection Commission hit Facebook’s parent company Meta with fines totaling 390 million euros ($414 million) for privacy violations in its decision in two cases. The multinational tech conglomerate was also banned from forcing users in the European Union to agree to be sent personalized ads based on their online activity. Meta says it will appeal.

The Irish watchdog was expected to decide a case involving Meta’s WhatsApp messaging service later in January.

The European Union has some of the strictest privacy rules in the world and has been putting the squeeze on Meta and other Big Tech companies. The Data Protection Commission has already hit Meta with four additional fines for data privacy infringements since 2021, with fines ringing in at more than 900 euros. Several Silicon Valley companies are facing similar claims. Meta also faces lawsuits in Brussels over distorting competition in classified ads.

The latest decision stems from a lawsuit filed in May 2018, when the 27-nation bloc’s new General Data Protection Regulation (GDPR) privacy rules took effect. Previously, Meta had relied on users’ informed consent to process their personal data and provide them with personalized ads based on their search history or videos they clicked on.

But when the new privacy policy went into effect, Meta added a clause to the terms of service for advertisements, forcing users to agree that Meta could use their data for personalized ads. The regulator argued this action violated EU privacy rules.

Meta has three months to ensure its “processing operations” comply with EU rules. The decision doesn’t prevent Meta from displaying personalized ads but does apply to the legal basis for handling user data.

Sources: Claims Journal

The Social Media Litigation Team

If you need help on a case or more information on the personal injury part of our Meta litigation, contact a lawyer on the firm’s Social Media Litigation Team 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 and Seth Harding.  Andy Birchfield, who heads our Mass Torts Section, also works with the team. He can be reached at 800-898-2034 or by using the form at the bottom of this page.

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

AN UPDATE ON MOTOR VEHICLE LITIGATION

Investigating A Defective Tire Case

Tire tread separations, blowouts and other tire failures can cause drivers to lose control of their vehicle, often with tragic consequences. According to the National Highway Transportation Safety Administration (NHTSA), 664 people were killed in tire-related auto accidents in 2020.

What NHTSA’s data doesn’t specify is how many people were injured in tire-related auto crashes during the same period. The number is almost certainly much higher. These figures underscore the importance of carefully examining tires for evidence of defects in motor vehicle crashes.

In any car accident lawsuit, a lawyer who fails to recognize the signs of a potential product defect may significantly undermine the value of their client’s claim or even miss making a substantial recovery for their client altogether. A defective tire lawsuit can be incredibly complex and challenging to prove, so it’s critical to recognize the signs of a tire defect in an auto crash and identify who is liable.

Product liability lawyers must establish that a tire defect caused, contributed to or worsened the accident before filing a defective tire lawsuit. Tire tread separation is a common and visible clue that a tire failure played a role in a motor vehicle crash, especially if there is useable tread on the tire.

Tire defects can be the result of an error in the manufacturing process. This was the case in several tire recalls announced in late 2021 and 2022. In May and December 2022, Michelin recalled over 17,000 tires because the tires were manufactured without the Department of Transportation (DOT) symbol required by NHTSA. Tires missing the DOT symbol may be misused, leading to more auto accidents.

Less than two months later, a similar Goodyear recall involved tires with illegible tire identification numbers (TINs), potentially preventing customers from knowing the correct age of their tires.

Bridgestone and Sailun Tire recalls involving almost 95,000 tires also resulted from manufacturing defects, leading to possible belt separation. In addition, sidewall separation was a foreseeable problem with defectively manufactured Vee Tyre and Rubber Co. tires recalled in February 2022.       

Tire defects may also result from a flawed design, making it unable to perform properly and eventually leading to premature failure. Together with manufacturing defects, tire design defects make up the most common product liability claims involving tire-related accidents. These are some issues Beasley Allen lawyers investigate when handling defective tire cases.

If you need more information or have questions, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section. He handles defective tire cases and can be reached by phone at 800-898-2034 or by using the form at the bottom of this page.

Sources: National Highway Transportation Safety Administration

Firm Enters Into Settlement In Case Against Trucking Company

On March 18, 2020, Keith Tumlin dropped his mother off at the airport in Atlanta early in the morning. He was traveling home to get ready for a new job. He was driving a 2017 Kia Sportage. Keith was traveling northbound on Interstate 985 in Gwinnett County, Georgia, in the righthand lane. Also, at this time, James West was operating a commercial motor vehicle northbound on Interstate 985 in Gwinnett County, Georgia, ahead of Keith in the righthand lane.

West, who was operating this vehicle in the scope of his employment with P&D Logging, had pulled his truck to the side of the roadway to tighten some straps on the rear of his vehicle. West re-entered the roadway and was traveling back up to interstate speeds when Keith’s vehicle collided with the rear of West’s vehicle in the righthand lane of Interstate 985.

The investigating officer indicated in his report that, based on his investigation, West was traveling at speeds lower than 50-60 mph when the accident occurred. This slow speed on the highway created a hazard. The speed limit on this part of the roadway was 70 mph. Keith was traveling 73 mph and did not have time to brake to miss colliding with the West truck.

Upon our inspection, the P&D Logging vehicle had extremely poor conspicuity markings, even on the steel extension from the log trailer. The conspicuity issues, coupled with the fact that it was dawn with limited visibility when the accident occurred, Keith did not have enough time to stop his vehicle, and he ran underneath Mr. West’s trailer. As a result of this collision, Keith suffered injuries that caused his death. Keith was properly seat belted at the time of the crash. The logging truck was retrofitted with a several-foot-long steel extension off the trailer. This extension impaled the Tumlin vehicle and dragged it over 300 feet to its final resting position. Keith was pronounced dead at the scene. James West, the driver of the 18-wheeler, was uninjured.

The plaintiff alleged claims of negligence and wantonness against P&D Logging and James West for the injuries and subsequent death of Mr. Tumlin. She also alleged negligent hiring, training, and supervision claims and agency claims against the defendant P&D Logging.

Chris Glover and Alyssa Baskam, lawyers in our firm’s Atlanta office, represented the plaintiff. The case was settled for a confidential amount.

Don’t Forget To Consider Collision Avoidance Technology (CAT) Claims In Simple Car Wreck Cases

Collision Avoidance Technology (CAT) in our cars is designed to avoid collisions. Most of us have had some form of this technology in our cars and trucks for some time. CAT systems can include sensors, cameras, radar, and computers that constantly collect and interpret data as we drive. The technology activates a safety feature, such as automatically applying brakes to stop a collision, or provides an alert to the driver, such as a warning about an impending forward collision or a lane departure. The safety benefits of these systems are numerous. However, these systems are not invincible and often lead to litigation for one of three reasons.

First, a car, heavy truck, or bus may be defective if it lacks certain CAT technology, such as automatic brakes, rendering the manufacturer liable for negligence, wantonness, and product liability claims. This is called a failure to equip claim. Under these types of claims, you must show that the model vehicle was manufactured when such CAT technology was practically and economically feasible. This type of claim works best with newer model vehicles, so there is no question the technology was available and would have worked. You might consider bringing a failure-to-equip claim in the following scenario: Your client was hit from behind by a 2021 model vehicle. Your investigation reveals the 2021 model vehicle did not have forward collision warning and automatic braking, and your expert says this technology would have prevented the collision in the first place. 

Second, if the vehicle contains CAT technology and that technology fails, you may have a run-of-the-mill defect claim.  For instance, if a heavy truck is equipped with forward collision warning and automatic braking, but the technology fails to stop a forward collision, the manufacturer of the CAT technology (and the vehicle manufacturer) could be liable to the driver who gets hit by the heavy truck. 

Third, many trucking companies are incorporating after-market CAT technology in vehicles that did not previously have such technology. CAT technology in heavy trucks is critical since heavy truck collisions are more likely to cause fatal injury than passenger car or truck collisions. Depending on state law, the trucking company could be liable for failing to retrofit its fleet with these safety features.

In addition, a trucking company could be liable for choosing an ineffective CAT system or turning the CAT system off so that it does not operate properly.  

As CAT technology continues to evolve, so will the theories of liability against those who manufacturer it and those who choose to (or not to) incorporate it into their vehicles. Beasley Allen lawyers in our Personal Injury & Products Liability Section are well-versed in the history and engineering behind CAT technology and can discuss any potential claims with you. 

Call Sloan Downes, Section Director, and she will have one of the lawyers in the Section respond to your request. Sloan can be reached at 800-898-2034 or by using the form at the bottom of this page.

PRODUCT LIABILITY UPDATE

Target Weighted Blankets Recalled After 2 Girls’ Deaths

Target has recalled 204,000 Pillowfort weighted blankets following the deaths of two little girls and two additional reports of children becoming trapped inside.

Target sold the $40 blankets in stores nationwide and online between December 2018 and September 2022. “A young child can become entrapped by unzipping and entering the blanket, posing a risk of death by asphyxiation,” according to the Consumer Product Safety Commission (CPSC).

The two girls who died while using the blankets were ages 4 and 6. The incidents were reported at Camp Lejeune, North Carolina, in April 2022.

CPSC and Target tell customers to stop using the blankets immediately. Target will refund the purchase price and cover postage for a return by mail. The refund will be issued as store credit.

The Chinese-manufactured blankets weigh 6 pounds. They are 60 inches long and 40 inches wide. They have a removable, washable cover that comes in unicorn white (097-02-0140), space navy (097-02-0148), pink (097-02-0361), blue (097-02-0363), gray (097-02-0364), buffalo plaid – red (097-02-1603), blue constellation (097-02-3904) or unicorn pink (097-02-3905). The item numbers are on the fabric tags attached to the removable covers.  

Customers can contact Target at 800-440-0680 from 7 a.m. to 10 p.m. daily for a prepaid shipping label. Purchasers can also return the blankets to any Target location.

Target is sending return information to all known purchasers. Consumers can visit www.target.com, click on “Recall Information,” and then “Home Goods” to learn more. For additional information, Facebook users can also access the “Product Recalls” tab on Target’s Facebook page.

Source: AL.com

Pacific Cycle Recalls Pacific Kids’ Igniter And Pacific Bubble Pop 20-Inch Bicycles

Pacific Cycle Inc. has recalled about 147,000 children’s bicycles because their handlebars can become loose during use, posing a fall hazard. This recall involves two models of 20-inch Pacific children’s bikes: the Pacific Igniter has red with white and black accent colors and the word “Igniter” on the downtube, while the Pacific Bubble Pop has pink with blue and black accent colors and the words “Bubble Pop” on the downtube. Model number 201230TG or 201231TG is located on the seat tube where it meets the bottom bracket. These bikes were sold at Target stores nationwide and on‑line at www.target.com from July 2020 through September 2022. The firm has received 23 reports of incidents of the bicycle’s handlebars becoming loose during use. Ten injuries involving bruising and abrasions have been reported. 

Consumers should immediately stop riding the recalled bicycles and contact Pacific Cycle to receive a free repair kit, which will contain a bolt, nut, washer and grease packet with instructions to apply grease to the bolt.

Source: Consumer Product Safety Commission

Peloton Agrees to Pay $19 Million CPSC Fine Over Treadmill Flaw

Peloton has agreed to pay a $19 million civil fine to settle claims brought by the U.S. Consumer Product Safety Commission (CPSC) that it failed to promptly report a defect in one of its treadmills that put users at risk for entrapment and other injuries.

The American fitness company had begun receiving reports in December 2018 that its Tread+ treadmill was pulling and entrapping people and pets under the rear roller and had killed a 6-year-old child. More than a dozen injuries were also reported, including broken bones, abrasions, lacerations, and friction burns. However, Peloton didn’t report the problem to the CPSC for months. By then, there were more than 150 reports of people, pets, or objects being pulled under the rear roller of the Tread+ machine.

On May 5, 2021, Peloton and CPSC announced a recall of affected treadmills. But afterward, from May to August 2021, Peloton distributed another 38 of the recalled treadmills, the CPSC said. “It must be held accountable,” CPSC Chairman Alexander  Hoehn-Saric said in a statement.

As part of the penalty, Peloton also agreed to ramp up its efforts to ensure compliance with the Consumer Protection Safety Act. The company will also file compliance reports for the next five years.

In April 2021, a proposed class action was filed in California federal court against Peloton over the Tread+ design defect. The company settled that lawsuit in October. The company and two executives were also hit with an investor’s proposed class action lawsuit in New York federal court. A settlement is currently in the works. 

Sources: Law360

Dick’s Sporting Goods Sold Defective Tree Stand

At least two Dick’s Sporting Goods customers have sued the company over a defective tree climbing stand after sustaining injuries.

Michael Weyant, who filed suit in Maryland federal court, fell from a Field & Stream and Alliance Outdoor Group manufactured stand after a strap broke. He returned the stand to Dick’s and informed its employees of the problem.  

Weyant’s complaint described Dick’s duty to ensure its products are safe for their intended uses. He says the store breached its duty of care by “failing to ensure that the Field & Stream Stealth II Climber had been adequately engineered, inspected, and tested.”

After his fall, Weyant suffered permanent bodily injuries, a nervous system shock, pain and anguish. He faces expensive bills for his medical care.

The lawsuit named Dick’s, Field & Stream and Alliance Outdoor Group defendants. Weyant brought negligence and strict liability claims against them, seeking over $75,000 in damages.

A South Carolina man also sued Dick’s after a tree stand he bought from the retailer collapsed, causing him to fall and break his ankles. He said the “grossly negligent” store sold a “defective” product.

Dick’s faces an additional lawsuit in Ohio after a hammock it sold collapsed, killing a 12 and 14-year-old.

Samantha B. Dos Santos and Bruce M. Plaxen of Plaxen Adler Muncy, PA, represent Weyant.

The case is Weyant v. Dick’s Sporting Goods Inc. et al., case number 1:23-cv-00022, in the Circuit Court for Carroll County, Maryland.

Source: Law360

WORKPLACE LITIGATION

Beasley Allen Files On-The-Job Product Liability Lawsuit Against Koch Foods

Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, has filed a lawsuit against Koch Foods of Alabama on behalf of the family of a line worker who was severely injured and ultimately died after an accident at the chicken processing plant. The lawsuit was filed four years after Beasley Allen secured a $1.8 million verdict for another Koch Foods’ worker severely injured on the job.

When Alabama workers are injured on the job, companies are bound by the state’s Workers’ Compensation Act to provide death benefits to their families. When employers

fail to protect a worker, an experienced attorney can help the worker’s family get the benefits to which they are entitled.

The tragic accident occurred on March 9, 2021, when Robert M. Lewis’ clothing became trapped in the rotating shaft of a piece of line equipment he was cleaning at the processing plant. Unable to free himself from the hazard, Mr. Lewis was seriously injured and subsequently died from his injuries.

Under the Workers’ Compensation Act of Alabama, the employee’s wife, Sharon Frazier, is entitled to death benefits. When controversy arose regarding those benefits, no settlement was reached between Koch Foods and the family. Mr. Lewis’ family hired Kendall to investigate the death.

The lawsuit by the Lewis family seeks Workers’ Compensation Death Benefits from Koch Foods. The lawsuit also claims the machinery Mr. Lewis was cleaning was unreasonably dangerous and defective and created an unreasonable risk of severe injury or death to its intended users. The suit also includes claims against the original manufacturer and distributor of the equipment responsible for Mr. Lewis’ death.

This isn’t the first time an employee at the Koch Foods plant has been seriously injured on the job. In April 2014, Leon Battle was performing a simple adjustment to a hydraulic hose on a chicken cage moving machine when a mishap with the safety feature resulted in the amputation of Mr. Battle’s four fingers. While completing the process for obtaining workers’ compensation, Mr. Battle was allowed to return to work under the condition that he would not hire a lawyer.

Given the extent of his injuries, Mr. Battle decided to hire Beasley Allen to investigate his claim. When Koch Foods discovered Mr. Battle had contacted a lawyer, the company immediately terminated him, a blatant retaliation against the worker for seeking the workers’ compensation benefits rightfully his. In October 2017, Beasley Allen secured a more than $1.8 million verdict for Mr. Battle.

The verdict was significant because it held an employer responsible for retaliating against a worker injured on the job and who was pursuing his constitutional right to hire legal counsel to assist him in pursuing claims against culpable defendants. The verdict also proves that every worker deserves fair compensation when a company’s negligence results in serious injuries or death.

The current case, Lewis v. Koch Foods of Alabama, LLC, is filed in the Circuit Court of Montgomery County, Alabama, case number 03-CV-2021-901184.00. The case is currently set for trial on July 31, 2023. If you need more information, contact Kendall Dunson, a lawyer in our Personal Injury & Product Liability Section, at 800-898-2034 or by using the form at the bottom of this page.

Alabama Company Admits Guilt For Role in Worker’s Death

ABC Polymer Industries of Helena, Alabama, pled guilty to willfully violating safety regulations that federal investigators say caused a worker to be killed by an unguarded machine.

Court documents say the fatal workplace accident occurred when ABC Polymer employee Catalina Estillado, 45, got her hand caught in the rollers of an unguarded machine that flattens plastic into sheets. Ms. Estillado was killed when the cluster of rollers pulled her into the machine.

Occupational Safety and Health Administration (OSHA) investigators said the machinery was equipped with a “cage” that workers can pull down to form a barrier between themselves and the machine.

Although OSHA safety rules require that these guards always be used when the machine is powered on, ABC Polymer knew its employees routinely raised the guard to clear it of plastic entangled in the rollers, OSHA said. The agency said the company also trained workers to cut tangled plastic off the unguarded rollers while the machine was operating. The agency said the company admitted it knew or should have known that lifting the guard while the machine was in motion put workers at risk of injury or death.

Federal judge Annemarie Carney Axon in Birmingham accepted ABC Polymer’s guilty plea. Sentencing will be determined in a later hearing.

In 2018, OSHA cited the company for multiple safety violations, including the one that led to the accident, and ordered it to pay $200,000 in penalties. In June, a Jefferson County judge awarded Ms. Estillado’s husband $3 million in compensatory and punitive damages for her death.

If you need more information, contact Sloan Downes, Director of the firm’s Personal Injury & Products Liability Section, and she will have one of the lawyers contact you. Sloan can be reached at 800-898-2034 or by using the form at the bottom of this page.

Sources: U.S. Department of Justice and AL.com

PREMISES LIABILITY LITIGATION

$160 Million Mass Shooting Verdict: An Extraordinary Day Of Justice

On Dec. 15, 2022, Beasley Allen, in association with The Summerville Firm and Simmons Law, LLC, obtained a landmark $160 million verdict for the deaths of 22-year-old Giovan Diaz and 21-year-old Ewell Ynoa. Parker Miller, based in the firm’s Atlanta office, was the lead trial lawyer and had navigated the cases over four years before the trial occurred late last year. Ultimately, by the time of trial, the last defendant left was Sony Music Holdings, Inc. This defendant had received notice and service of the cases on two different occasions in 2018 and 2019 but had chosen to ignore the cases as they progressed to trial.

The case concerned a hip-hop concert production at the Underground Atlanta, Masquerade venue in Atlanta, Georgia, on Nov. 12, 2017. On that night, the production did not use metal detectors and failed to even frisk concertgoers as they entered the venue. The production chose this route notwithstanding the history of violent crime in and around the venue and the frequent shootings that had occurred in and around hip-hop productions in the past few years – including multiple incidents in the Atlanta area. Predictably, a volatile man with a gun was allowed to enter a concert crowded with young people. Even worse, the production had an opportunity to eject this man from the premises after he tried to start a fight with other concertgoers, but the production failed to do so (or even check him for weapons).

Moments later, to the horror of everyone in attendance, this volatile man opened fire in the crowded venue. A mob scene erupted, with people desperately trying to get out. When the smoke cleared, four people had been shot. Two would survive their injuries. Two others – Ewell Ynoa and Giovan Diaz, would not. They instead suffered gruesome gunshot wounds. For the benefit of our readers, we will not go in-depth on how bad their suffering was, but suffice it to say the eyewitness trial testimony was “haunting” and “very difficult to listen to,” according to Parker.

The trial involved only six witnesses. Darren Summerville of the Summerville Firm handled jury selection and two witnesses. Parker handled the opening, three witnesses, and the closing. Tiffany Simmons of Simmons Law handled one witness. She had this to say:

I thought the families did an incredible job walking the jury through Ewell and Giovan’s lives and how much they had ahead of them. Both were on the cusp of breaking through in the music industry, and Giovan had learned just moments before he was murdered that he would be a father, although he would never know that child would be the girl he always wanted.

In total, over a century’s worth of life was lost on Nov. 12, 2017. The jury listened and delivered the landmark verdict. The industry also should listen. It is simply no excuse for a large production to not at least check concertgoers for weapons. There is certainly a great financial opportunity for a production seeking to entertain a large group, but with that opportunity comes tremendous responsibility.

Our firm has a long history of successful resolutions in premises liability cases. We are currently investigating these cases across the nation – including mass shooting cases and other cases involving negligent security. If you have any questions about this case or negligence or premises liability cases generally, please contact Parker Miller by calling 800-898-2034 or by using the form at the bottom of this page.

Mobile Office Files Lawsuit Against Vacation Rentals Company

Wyatt Montgomery, a lawyer in our firm’s Mobile, Alabama, office, recently filed a premises liability case against a vacation rental company, its property management company, and the property owner arising out of an injury sustained by the plaintiff while he and his family were vacationing at the beach house rental property. The lawsuit alleges that while the plaintiff was leaning against the railing on the back deck of the beach house, the railing collapsed, causing the plaintiff to fall to the ground below, sustaining severe and permanent injuries resulting from the fall.

Under Alabama law, property owners owe a duty to business invitees to keep their properties in a reasonably safe condition. Due to the plaintiff’s status as an invitee at the beach house, or a paying renter, the defendants owed him a duty to keep the property in a reasonably safe condition so as not to cause or allow harm to him. The defendants also had a duty to warn the plaintiff of the dangerous condition of the deck railing. The lawsuit alleges negligence and wantonness against the defendants for failing to keep the property safe and negligent and wanton failure to warn the plaintiff of the dangerous condition.

In cases like this one, it is crucial to find out who owns the property involved and whether or not a separate management company or other third party has undertaken the responsibility or assumed the duty (whether by common practice or a contractual obligation) of maintaining the property on behalf of the property owner. This type of thorough investigation and discovery practice will help uncover additional parties who bear responsibility and additional layers of insurance coverage to fully compensate your client for their injuries. 

If you or someone you know has been injured due to a dangerous condition on a commercial property, contact Sloan Downes, Director of our Products Liability & Personal Injury Section.

Judge Upholds $363 Million Reward in Sterigenics Emissions Case

An Illinois Judge refused to overturn a jury award of $363 million awarded to a woman who sued Sterigenics, alleging the company recklessly allowed its Willowbrook, Illinois sterilization facility to release toxic ethylene oxide gas (EtO) into the community for decades.

In September, a Cook County jury awarded plaintiff Sue Kamuda $38 million in compensatory damages and $325 million in punitive damages after finding her counsel provided “ample evidence” that pollution from the Sterigenics plant caused her breast cancer. The jury award included $17 million more than the compensatory damages and the full amount of punitive damages Ms. Kamuda sought from Sterigenics and its parent companies.

Sterigenics opened its Willowbrook plant in 1984. The plant used EtO gas to sterilize syringes and other medical equipment by sealing them in chambers with the EtO. The gas permeated the sealed packaging and killed any microorganisms.

Judge Marguerite A. Quinn rejected the defendant companies’ contention that they complied will the proper regulatory permits and standards. She said there is “no dispute” that EtO is a toxic gas and that the plaintiff adequately demonstrated that Sterigenics knew the gas caused cancer and reproductive harm. Despite their knowledge, the companies still released the gas into a densely populated community for decades.

The plaintiff’s lawyers asserted that the defendants negligently failed to install and use pollution controls they knew for decades were available to prevent EtO emissions. They claimed that Stergenics, its parent company Sotera Health, and former parent Griffith Foods put profits over public safety.

Judge Quinn said the defendants received a fair trial and the award for damages was not excessive. Sotera Health said it would “vigorously challenge” the damage awards in the case. But in an apparent reversal, it chose to pay $408 million to settle more than 870 other claims filed by claimants allegedly harmed by Stergenics’ ethylene oxide emissions.

Plaintiff Kamuda is represented by Patrick A. Salvi II, Lance D. Northcutt and Jennifer M. Cascio of Salvi Schostok & Pritchard PC, Shawn Collins and Margaret Galka of The Collins Law Firm, and Scott A. Entin, Roisin Duffy-Gideon and Deanna N. Pihos of Miner Barnhill & Galland PC.

The case is In Re: Willowbrook Ethylene Oxide Litigation, case number 2018-L-010475, in the Circuit Court of Cook County, Illinois, Law Division.

Source: Law360 and MedTechDive.com

AVIATION LITIGATION

U.S. And France Dispute Ethiopia’s Boeing Max 737 Crash Findings

The National Transportation Safety Board (NTSB) and the French Bureau of Enquiry and Analysis (BEA) are questioning Ethiopian authorities’ report findings in the March 2019 Boeing 737 MAX crash investigation.

The NTSB published its report comments online in late December when Ethiopia’s Aircraft Accident Investigation Bureau (EAIB) released its conclusions. Although the NTSB had previously provided comments to Ethiopian authorities, those comments were not included in the final report. Annex 13 to the Convention on International Civil Aviation requires investigative authorities to review and append participating countries’ comments to their final reports, at minimum.   

The EAIB blamed the crash entirely on “repetitive and uncommanded airplane-nose-down inputs” from Boeing’s Maneuvering Characteristics Augmentation System (MCAS). Faulty sensor data triggered the inputs, causing the plane to go into an “unrecoverable” dive, according to the Dec. 23 Ethiopian report.

When the EAIB examined potential causes of the faulty sensor, it concluded that the sensor was defective from the time of production. The NTSB and the BEA disagreed, indicating evidence pointed to a bird strike. Because flight data analysis showed the sensor did not fail internally, the agencies determined that an external object must have impacted it.

The NTSB and the BEA also expressed concerns regarding pilot error. The NTSB accused the EAIB of not focusing on “crew resource management and performance” as a contributing cause of the crash. The agencies assert that Ethiopian Airlines failed to train its pilots to handle MCAS properly. 

Although the NTSB and the BEA agree with the EAIB’s conclusion that the design of Boeing’s MCAS was a significant cause of the crash, the agencies stress the importance of analyzing and addressing every causal factor to prevent future tragedies.

 Mike Andrews, a lawyer in our Personal Injury & Product Liability Section, represents some of the families from the Ethiopian Airlines Flight 302. He observed:

While the U.S. NTSB disagrees with the Ethiopian report findings, it is important to remember that Boeing itself pleaded guilty to intentionally misleading the FAA and others about MCAS and paid over $2 billion to avoid criminal prosecution.  Such a guilty plea speaks volumes about the root cause of these avoidable tragedies.

 If you have questions or need help with a claim, contact Mike at 800-898-2034 or via the contact form on this page.

Sources: National Transportation Safety Board, Reuters, The Seattle Times

Boeing To Appear In Texas Arraignment Over Claims By 737 MAX Families

A Texas federal judge ordered Boeing to appear in court to face a felony fraud charge related to the certification of its 737 MAX aircraft, which were involved in two catastrophic crashes that killed a total of 346 people.

U.S. District Judge Reed O’Connor arraigned Boeing on Jan. 26 on a 2021 fraud charge after families of the crash victims objected to a plea deal between the airplane maker and the U.S. Department of Justice. That deal included a deferred prosecution agreement which essentially resolved the conspiracy fraud charge in exchange for Boeing’s admission that it deceived the Federal Aviation Administration about the safety of the 737 MAX aircraft.

Families who lost loved ones in the crashes of Lion Air flight 610 and Ethiopian Airlines flight 302 say their voices were unlawfully excluded from the agreement. They claim the DOJ “lied and violated their rights through a secret process” when asking Judge O’Connor to overturn Boeing’s immunity.

In October, the judge paved the way for Boeing’s arraignment when he agreed with the families that those killed in the 737 Max crashes were crime victims. The families maintained that they should have been allowed to participate in the Boeing hearings under the federal Crime Victims’ Rights Act.

The DOJ and Boeing oppose interfering with the deferred prosecution agreement. The deal provided $500 million in compensation to the victims, $1.7 billion to airlines, and a federal fine of nearly $244 million.

In a Nov. court filing, the DOJ said it does not object to an arraignment for Boeing but argued that overturning the agreement would “impose serious hardships” on all involved, including many families who have already received compensation.

The families are represented by Paul G. Cassell of the University of Utah’s S.J. Quinney College of Law’s Utah Appellate Project and Warren T. Burns of Burns Charest LLP, among others. The federal government is represented by Jerrob Duffy, Cory E. Jacobs, Michael T. O’Neill and Scott Philip Armstrong of the U.S. Department of Justice’s Criminal Division, Fraud Section.

The case is USA v. The Boeing Co., case number 4:21-cr-00005, in the U.S. District Court for the Northern District of Texas.

Sources: Washington Post, Reuters, CNN and U.S. Department of Justice

Class Action Litigation

Eighth Circuit: General Motors Oil Defect Suit Can Move Forward

U.S. District Judge Stephen N. Limbaugh Jr. was overruled by an Eighth Circuit Court of Appeals panel on Jan. 19, allowing a proposed class action lawsuit against General Motors to be revived involving claims it concealed an oil consumption defect in some of its vehicles. 

The proposed class action was brought by Michael Tucker, who bought a GMC Sierra in 2013, and Robert Riddell, who bought a Chevy Silverado a year earlier and learned of the defect after their purchases. Their suit alleges that GM knew about but failed to disclose that defective piston rings in 2011-2014 5.3-liter V8 truck and SUV models caused excessive oil consumption, resulting in engine damage.

The men said they purchased the vehicles after talking with a GM sales representative, learning of the vehicles’ reliability and durability through GM commercials and seeing details such as the suggested retail price and fuel economy ratings included on the vehicles’ “Monroney” stickers. The plaintiffs’ confirmed that if the defendant automaker had informed them of the defect before their purchase, they would not have bought the vehicles.

The panel issued an eight-page opinion finding the lower court’s basis for dismissal, commercial “puffery,” does not affect the plaintiffs’ omission-related claim under the Missouri Merchandising Practices Act (MMPA). It determined that the factual allegations of the lawsuit were enough to support an omission-based claim.

In June 2021, Judge  Limbaugh dismissed the suit, including the claims under the MMPA, after finding that the ads were “mere puffery” and such overstated bragging or opinion about the superiority of a product was not enough to support the plaintiffs’ claims, Law360 explained about the lower court’s ruling.

On appeal, the plaintiffs pointed to the MMPA’s broad prohibition of deceptive omissions or omitting facts that a reasonable customer would consider important in their purchasing decision. Further, they argued that “puffery’ doesn’t apply. It only applies when the truth of a statement can’t be measured in the absence of an opinion. They do not argue that the defendant’s commercials demonstrated puffery or that company sales representatives used puffery when discussing the vehicle information. They also don’t say that the Monroney stickers contained puffery.

The Eighth Circuit found that while fraudulent misrepresentation and MMPA fraud claims cannot be based on overstated favorable statements such as opinions about superiority, that is not what the plaintiffs’ lawsuit does. U.S. Circuit Judge James B. Loken drafted the panel’s opinion. The opinion said:

However, plaintiffs do not base their MMPA omission claims on affirmative statements in GM’s referenced marketing materials. Rather, those allegations, and the allegations of plaintiffs’ research and conversations with dealership employees before purchasing, are relevant only to show that each was a ‘reasonable consumer … making a purchasing decision.’

The panel further determined that oil consumption defect is not something the average consumer would likely know about or investigate, finding that the plaintiffs’ correctly argued their omission claims against GM.

In rejecting GM’s arguments, the Eighth Circuit explained that the MMPA’s plain language, “any … concealment, suppression or omission,” indicates that an affirmative statement by GM is not needed to prove the unlawful practice occurred.

The panel then referenced another case involving GM – Owen v. General Motors Corp. It was another proposed class action involving similar claims over a different product. In Owen, the plaintiffs alleged that GM concealed material facts about defective windshield wiper control modules. The Eighth Circuit explained that the trial court correctly rejected GM’s attempt to have the MMPA claims dismissed because the lawsuit clearly and specifically outlined the information GM allegedly concealed. The panel’s order stated:

Likewise, plaintiffs have plausibly alleged this element of their omission claims. Plaintiffs are not simply alleging that GM should have told them that the vehicles they were purchasing had been the subject of consumer complaints, which would ‘impose an impossible duty on vendors of commercial products.’

Our lawyers look forward to prosecuting the claims to trial in Missouri federal court on behalf of our clients and other members of the proposed Missouri class.  Following our firm’s recent $102.6 million jury verdict against General Motors for our California, Idaho, and North Carolina classes for the same defect alleged in the case, we are gratified that the Eighth Circuit, recognizing the merits of the claims, reversed the District Court’s dismissal.

The customers are represented by Dee Miles, Clay Barnett, Mitch Williams and Dylan Martin of Beasley Allen and Adam J. Levitt, John E. Tangren and Daniel R. Ferri of DiCello Levitt LLC.

The case is Michael Tucker and Robert Riddell v. General Motors LLC, case number 21-2698, in the U.S. Court of Appeals for the Eighth Circuit.

Source: Law360

Beasley Allen Wins Final Approval Of The $287 Million Toyota/Denso Fuel Pumps Class Action Settlement

On Dec. 20, 2022, Beasley Allen lawyers Dee Miles and Demet Basar, as co-lead counsel for consumers in a  class case, argued and won final class certification in an important auto defect class action when Federal Magistrate Judge James R. Cho of the U.S. District Court for the Eastern District of New York granted final approval to the settlement of a consolidated class action alleging that Denso manufactured defective low-pressure fuel pumps that were installed in 4.9 million Toyota and Lexus vehicles manufactured between 2013 and 2020.

The nationwide settlement provides $287 million in economic relief to the settlement class and, in addition, reimbursement of out-of-pocket expenses, including parts, labor, towing and rental expenses incurred in connection with the repair of the faulty fuel pumps.

In January 2020, Toyota recalled 700,000 of its model year 2018-2019 Toyota and Lexus vehicles and admitted the vehicles were equipped with dangerously defective fuel pumps, which could increase the risk of accidents. Denso later recalled its fuel pumps which it admitted were installed in over 2 million vehicles, including vehicles manufactured by other car manufacturers.           

A fuel pump is a critical component that supplies fuel to a vehicle’s fuel injection system while the engine is in operation. The fuel pumps manufactured by Denso contained a defective impeller – which acts as the motor of the fuel pump – that can deform due to excessive fuel absorption and interfere with the body of the fuel pump, which in turn can result in rough engine running, difficulty starting the vehicle, and stalling.

Believing the recall did not include all affected vehicles, Beasley Allen lawyers filed a class action to ensure all vehicles were included in the recall relief. Sharon Cheng, our client and the named plaintiff, was the first to file a class action on behalf of a class of consumers who purchased or leased Toyotas and Lexuses equipped with the faulty fuel pumps. Ms. Cheng’s case was filed in the Eastern District of New York in February 2020, and a number of other class actions were filed in federal courts throughout the United States. These later-filed cases were consolidated with our client’s case in October 2020.

In the initial complaint, our lawyers asserted consumer protection and other claims against Toyota for marketing and selling the vehicles as safe and dependable and also alleged the January 2020 recall was deficient because additional vehicles were also equipped with the same defective Denso fuel pumps as those included in the recall but were not covered. Confirming the accuracy of those allegations, Toyota subsequently expanded the recall four times and added 2.7 million vehicles to the recall by December 2020. The recall now covers approximately 3.4 million Toyota and Lexus vehicles equipped with Denso fuel pumps. 

In the consolidated action, 33 plaintiffs from 17 states asserted 97 claims, including multistate and statewide class claims for violations of various states’ consumer fraud statutes, unjust enrichment and strict products liability against Toyota and Denso. In addition, we alleged warranty claims, including a nationwide claim under the Magnuson-Moss Warranty Act and negligent recall claims against Toyota. In the last filed consolidated complaint, plaintiffs continued to allege there were yet more vehicles that contained the faulty fuel pumps that had not been recalled.

In the settlement, Toyota and Denso agreed to the relief plaintiffs had been seeking since Ms. Cheng first filed the case in February 2020. Toyota will provide a 15-year warranty on the fuel pumps in 1.4 million additional vehicles that were not previously recalled but also contain the defective Denso fuel pumps. The settlement also provides a 15-year or 150,000-mile warranty on the fuel pumps in the 3.4 million Toyota and Lexus vehicles that were recalled and had their fuel pumps replaced.

Thus, the owners and lessees of 4.9 million Toyota and Lexusvehicles with Denso-manufactured fuel pumps, whether or not their vehicles were previously recalled or their fuel pumps replaced, can get their fuel pumps replaced at no cost. In addition, class members are entitled to free rental cars during the repairs and towing, if necessary. This portion of the settlement alone is valued at $287 million.

The settlement includes an orderly and consumer-friendly out-of-pocket expense reimbursement program with no cap on the amount of reimbursements for fuel pump-related repairs, as well as a reconsideration procedure and settlement oversight by a settlement special master.

This was a tremendous settlement for the consumers. The lawyers did a fantastic job representing the class members. Plaintiffs are represented by appointed class lead counsel Dee Miles and Demet Basar, along with Beasley Allen lawyers Clay Barnett, Mitch Williams and Dylan Martin, who filed the Cheng case.

In addition, other class plaintiffs were represented by Jeffrey Corrigan, John A. Macorretta, Jeffrey L. Spector and Diana J. Zisner of Spector Roseman, Roseman & Kodrofff PC; Jeffrey R. Krinsk of Finkelstein & Krinsk LLP; Malcolm T. Brown, Kate McGuire and Rachele R. Byrd of Wolf Haldenstein Adler Freeman & Herz LLP; and Jerrod C. Patterson of Hagens Berman Sobol & Shapiro LLP.

Elbert F. Nasis of Forchelli Deegan Terrana LLP, Ms. Cheng’s personal attorney, referred her case to our firm, and he continued to work on the case with us.

Lawyers in our Consumer Fraud & Commercial Litigation Section are continuing to achieve success in these auto defect class actions, and our lawyers encourage those believing to have a common defect with their automobile or any consumer product to contact one of our lawyers for a free review of a potential case. We will continue to post results in cases handled by our class action lawyers in the future.

The case is Cheng et al. v. Toyota Motor Corporation et al., Case No. 1:20-cv-00629-WFK-JRC, in the United States District Court for the Eastern District of New York.

Beasley Allen Applauds Dangerous Rock ‘N Play Sleeper Recall Reannouncement After More Infant Deaths

Demet Basar, a lawyer in our Consumer Fraud & Commercial Litigation Section, applauds the reannouncement by the Consumer Product Safety Commission (CPSC) of the recall of Fisher-Price’s wildly successful Rock ‘n Play Sleeper on Jan. 9, 2023, citing additional infant deaths in the product since the recall was first announced on April 12, 2019. She says:

The reannouncement of the Rock ‘n Play Sleeper recall nearly four years after the first one confirms the first recall was hugely ineffective. The first recall failed because of Mattel’s lack of adequate outreach and incentives to participate. The vast majority of consumers who unwittingly bought these potentially deadly products could only get vouchers for Fisher-Price toys that cost a fraction of what they paid for the Sleeper.

At the time of the initial recall, Fisher-Price admitted it was aware of 32 infant deaths since the Rock ‘n Play Sleeper’s introduction to the market in 2009. The recall reannouncement reports that, since the recall, approximately 70 additional infant deaths have been reported, which includes at least eight fatalities that were reported to have occurred since April 2019. Approximately 100 deaths have reportedly occurred while infants were in the products. It is now illegal to sell the Rock ‘n Play Sleepers and any other inclined sleep products.

In addition to Demet, Beasley Allen lawyers James Eubank, and Paul Evans represent the plaintiffs seeking to vindicate the rights of purchasers and owners of 4.7 million Rock ‘n Play Sleepers in a national class action litigation. The defendants falsely marketed the Sleeper as safe and suitable for infant sleep. Demet is lead counsel in the national litigation. In addition to this multidistrict litigation, Fisher-Price and Mattel were also defendants in more than 30 wrongful death suits brought by parents of infants who died in the Rock ‘n Play Sleeper, approximately 15 of which reportedly remain pending.

In a statement issued along with the reannouncement of the recall, CPSC Commissioner Rich Trumka, Jr. condemned the recall, stating:

Companies save money when people do not participate in their recalls. When that happens, dangerous products stay in homes. We have seen that lead to deaths. The only remedy I would have supported was a full refund to all customers, regardless of the age of the product.

Trumka, who owned a Rock ‘n Play Sleeper that his son used, threw away the product rather than participate in the recall for a product voucher that might take months to arrive. Commissioner Trumka further criticized the so-called “Gag Rule,” which prevents the CPSC from sharing critical information with the public about dangerous products until they first seek permission from the product’s manufacturer, noting that the Gag Rule currently prevents the CPSC from disclosing information related to the number of Sleepers still in homes and nurseries today.

In June 2021, the House Committee on Oversight and Reform held a hearing at which Mattel CEO Ynon Kreiz and Fisher-Price’s top executive, Chuck Scothon, admitted more than 90 infants have died in connection with the Rock ‘n Play Sleeper. The House Committee issued a staff report finding that Fisher-Price failed to ensure the Rock ‘n Play was safe, ignored warnings that it was dangerous, and marketed it for overnight use despite the risks.

The report further noted that the CPSC had inadequate enforcement capabilities to address the safety issues, even after alarms were raised at the CPSC due to the reported deaths, citing “grave flaws in the U.S. consumer product safety system,” including that manufacturers are allowed to “police themselves.” Congresswoman Carolyn J. Maloney, who led the committee’s investigation, noted at the hearing:

This is a national scandal. It is breathtakingly irresponsible and It is corporate conduct that cannot be tolerated and has to change in the future. Tragically, there are now eight more reported infant deaths because so many Rock ‘n Plays remained in people’s hands as a result of this failed recall. The goal of our nationwide class action is to make consumers whole for purchasing these products as a result of the defendants’ decade-long misleading marketing of the Rock ‘n Play Sleeper as safe for infant sleep.

Beasley Allen lawyers are preparing for the first of the liability bellwether trials on behalf of New York consumers, scheduled for Spring 2024.

The case is In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation, No. 1:19-mdl-2903. It is consolidated in the U.S. District Court for the Western Division for New York.

ARC Airbag Inc. Sued Over Airbag Defect In Millions Of Vehicles

Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, working in conjunction with lawyers in our Personal Injury & Product Liability Section, are pursuing a very important class action lawsuit against ARC Automotive, Inc. (ARC), Kia Corporation and Kia America, Inc. (KIA), Hyundai Mobis Co., LD, and Mobis Parts America, LLC (Mobis) filed in the Northern District of Georgia.

Our plaintiff alleges that Kia designed, manufactured, sold, and leased class vehicles with a dangerous defect in the airbags that causes the airbag inflators to rupture and propel internal components of the inflator into the vehicle cabin, which can injure or kill the vehicle occupants (the inflator defect).

ARC is a global manufacturer that produces airbag inflators for automotive airbag applications for many prominent vehicle manufacturers, including Kia, FCA, Hyundai, General Motors, and Ford, among others. This defect is equally dangerous but entirely distinct from the Takata airbag inflator defect that propelled shrapnel into vehicle occupants upon airbag activation.

These defective vehicles present a serious risk to the safety and health of the vehicle occupants’. The class vehicles’ airbag inflators utilize gas and propellant to fill the airbag cushion during a vehicle crash. The ARC-made defective airbag inflators are manufactured through a friction welding process which fuses components of the airbag inflator together using heat and rotation.

However, ARC’s friction welding process inadequately joins the airbag inflator components and creates excess weld flash, which can exit the inflator upon deployment or rupture the inflator entirely.

Due to the location and the close proximity to vehicle occupants, the inflator defect places occupants at severe risk of bodily injury or even death. There are seven known inflator defect incidents, two of which resulted in occupant deaths.

Defendants have long known of the inflator defect and the risk to consumer safety based on known incidents in the field, National Highway Transportation Safety Administration (NHTSA) ongoing investigation, pre-release design and testing, and numerous vehicle manufacturer safety recalls. Although some vehicle manufacturers have recalled limited lots of affected vehicles, ARC has not recalled any of the approximately 30 million affected vehicles for this failure mode. Moreover, Kia has not recalled any class vehicles containing the inflator defect.

The inflator defect case is Tribble v. ARC Automotive, Inc. and is filed in the U.S. District Court for the Northern District of Georgia. The plaintiff and the proposed class are represented by Dee Miles, Clay Barnett, Tom Willingham, Mitch Williams, and Dylan Martin, lawyers in our Consumer Fraud & Commercial Litigation Section. They can be reached at 800-898-2034 or by using the form on this page.  If you or someone you know has experienced the Inflator Defect or has a defective ARC-made airbag inflator in their vehicle, contact one of these lawyers.

Meta Pixel, Gathered Personal Health Information Allegations, Said To Be “Troubling”  By The Court

U.S. District Judge Willian H. Orrick, overseeing the claims against Meta alleging its Pixel tool illegally gathered personal health information that Meta then used to market and sell advertising space, called the allegations “troubling” in a recent order.  The December ruling comes after the judge said at a November hearing that, if the plaintiffs’ claims are true, Facebook users “would be shocked” to find out that the social network’s tracking tools have harvested data from patient portals, including about lab results, for use in targeted advertising efforts. Although that order denied the plaintiffs’ Motion for a Preliminary Injunction, the court recognized the seriousness of the allegations, the strength of those claims, and the high likelihood of irreparable harm. 

In its written reply to the preliminary injunction motion, Meta argued the value of the tool – that the Pixel tool allows website developers to gather valuable analytics information about people who visit their sites – and asserted that healthcare providers are told not to send Meta sensitive data. Later, at the hearing on the motion, Meta’s counsel defended against the injunction by saying Meta requires those using the Pixel to post a prominent notice on every page where the tool is embedded and to link that notice to information about how Pixel works and what data it collects. None of these arguments appeared to be given much weight in the court’s order. Instead, the injunction was denied because several factors had not yet been developed through discovery. Still, the court noted it expected these things to be clarified, possibly hinting at a future, successful injunction.

Other significant findings in the order include the court stating it does not believe “that a reasonable user would have understood that Meta may intercept their health information,” that patient status is protected health information under HIPAA, and that Meta (at this point) has not established consent of patients.  This case is in its early stages, but it is vitally important to protect the personal information of patients nationwide.

Our firm has filed one of the class actions and is participating in the California action along with other counsel from around the country. Beasley Allen lawyer Rebecca Gilliland is handling these cases for the firm as we continue to explore other avenues of this important issue.  If you need more information or help with a claim, contact Rebecca at 800-898-2034 or by using the form on this page. She will be glad to help you.

Sources: Law360

$325 Million Life Settlement with State Farm Gets Preliminary Approval

U.S. District Judge Roseann A. Ketchmark, the Western District of Missouri, has preliminarily approved a settlement valued at up to $325 million for a proposed class of State Farm life insurance policyholders who experienced inflated insurance charges.  The settlement comes after a prior jury verdict of $34 million was entered against State Farm for the same or similar practices.

In 2016, a State Farm policyholder filed a class action lawsuit alleging the insurer breached its policies by impermissibly considering factors that were not listed in its policies. This resulted in higher cost-of-insurance charges for flexible premium adjustable whole-life policies. Following a jury trial in Missouri federal court, the jury returned a $34 million verdict in favor of approximately 43,000 class members. In 2020, after State Farm appealed the verdict, the Eighth Circuit Court of Appeals upheld the judgment.  The case was Vogt v. State Farm Life Ins. Co, 963 F.3d 753 (8th Cir. 2020).

In March 2022, two State Farm policyholders filed suit in the Western District of Missouri on behalf of about 760,000 life insurance policyholders nationwide, alleging State Farm continued to charge the increased cost-of-insurance charges despite the prior jury verdict. In November 2022, State Farm agreed to pay up to $325 million to resolve the claims. The settlement came one month after the federal court denied State Farm’s Motion to Dismiss, in which State Farm argued the named plaintiffs lacked standing to assert claims on behalf of non-Missouri policyholders. 

Then, in December 2022, Judge Ketchmark granted preliminary approval of the settlement and the proposed class of approximately 760,000 State Farm policyholders.  The court is currently slated to hold the final approval hearing in April 2023 to consider whether to grant final settlement approval.

The case is Rogowski et al. v. State Farm Life Insurance Co., case number 4:22-cv-00203, in the U.S. District Court for the Western District of Missouri.

Lawyers on our firm’s Insurance Class Action Litigation Team have handled numerous cases involving unfounded cost-of-insurance charges.  If you or someone you know has experienced increased cost-of-insurance charges on a life insurance policy, contact Dee Miles, Rachel Minder, or Paul Evans.  They can also be reached by phone at 800-898-2034.

Sources: Law360

Federal Judge Likely To Approve $255 Million Economic Loss in JUUL MDL

During a hearing on Jan. 19, U.S. District Judge William H. Orrick confirmed his plans to preliminarily approve a $255 million settlement to end economic loss claims in an extensive, nationwide multidistrict litigation (MDL). At the center of the litigation is  JUUL Labs Inc.’s marketing practices of its vaping products. He advised the parties to review the proposed order that would grant approval, and any revisions were to be filed within a week of his announcement. The judge will take senior status in May.

The plaintiffs requested preliminary settlement approval, and while they remain optimistic about their claims, they say that settlement is satisfactory and suitable given the continuing costs and risks of ongoing litigation.

While the settlement will end the economic loss claims, parties to other shares in the MDL and state Judicial Council coordination proceedings against JUUL are negotiating separate deals. Additionally, the economic loss settlement does not involve co-defendant Altria Group Inc. In 2018, Atlria, the parent firm of Philip Morris USA, invested $12.8 billion in JUUL.

The motion defines the division of the settlement, saying that class counsel will request about $76.5 million (up to 30% of the settlement fund) in fees and expenses. Each plaintiff representing the class will ask for $11,000 for service awards and participation in the case.

Remaining class members can submit claims for JUUL product purchases up to $1,600 if they have proof of purchase. They will be capped at 150% of the overall value of their total purchases. Class members who made their first JUUL purchase under 18 will have a higher cap, 300%, of total purchases. A lower cap will apply to those without proof of purchase.

In December, plaintiffs’ counsel handling personal injury claims brought by individuals and public nuisance claims brought by government entities in the MDL informed the court that they had reached a settlement in principle with JUUL. The plaintiffs announced the proposed settlement as the parties were preparing for the first bellwether trial in the litigation involving thousands of cases. The trial was to be led by California schools and was set to begin in December. The separate but concurrent settlements in the personal injury/public nuisance part of the litigation will resolve claims brought by adolescents, school districts, municipalities and Native American tribes.

Plaintiffs in the MDL allege that JULL, based in San Francisco, marketed its vaping products to adolescents, forcing school districts, municipalities and Native American tribes to use resources to deal with the health issues associated with nicotine.

The MDL co-lead counsel are Sarah R. London of Lieff Cabraser Heimann & Bernstein LLP, Dena C. Sharp of Girard Sharp LLP, Dean N. Kawamoto of Keller Rohrback LLP and Ellen Relkin of Weitz & Luxenberg PC.

JCCP co-lead counsel are Paul R. Kiesel of Kiesel Law LLP, Rahul Ravipudi of Panish Shea Boyle Ravipudi LLP, John Fiske of Baron & Budd PC and Mark P. Robinson Jr. of Robinson Calcagnie Inc.

The MDL is In re: JUUL Labs Inc., Marketing, Sales Practices and Products Liability Litigation, case number 3:19-md-02913, in the U.S. District Court for the Northern District of California.

Source: Law360

Judge Approves Endo’s Fee Deal with State Governments

A New York judge is allowing Endo International to pay the Multi-State Endo Executive Committee’s legal and financial adviser fees, as the company had planned before filing Chapter 11 bankruptcy in August.

Thirty-eight states comprise the Executive Committee. Those states have sued the drugmaker over its opioid sales.

Endo asked for a contract assumption of the prior fee agreement, but the U.S. Trustee’s Office asserted that the company used the wrong Bankruptcy Code section to support its request.

U.S. Bankruptcy Judge James L. Garrity Jr. disagreed, saying that the company used “sound business judgment” in agreeing to pay the fees and finding it in the company’s interest to do so.

Endo contended that paying the fees would benefit the bankruptcy estates, as the estates’ lawsuits are currently paused following an injunction. In addition, working with individual states would cost approximately $29 to $30 million per quarter. The company also stated that the same rules applied to other expense claims in the case would apply to the payments, including fee examiner oversight.

The U.S. Trustee’s Office objected, arguing that Endo requested an administrative expense claim payment, not a contract assumption. Tara Tiantian, legal counsel for the trustee, stated that motion approval would ignore code protections.

Tiantian further asserted that even if the motion requested a contract assumption, it did not pass the business interest test. The agreement does not specify a benefit but places a duty on Endo. Tiantian also said that the group’s break-up due to a rejected agreement was only hypothetical.

Judge Garrity described the issue as “challenging,” approving the motion partially due to the case’s “unique circumstances.” He also stated that it was beneficial for Endo to negotiate with one group.

Endo, its future claims representative and the unsecured creditors’ committee were to begin resolving objections over the company’s sale and request for additional time to file a bankruptcy plan, according to Judge Garrity. Retired U.S. Bankruptcy Court Judge Shelley Chapman would oversee the mediation.

Facing $8 billion in debt and numerous opioid lawsuits, Endo filed for bankruptcy last summer. A debtholder group has shown interest in the company, submitting a $6 billion stalking horse bid.

Paul D. Leake, Lisa G. Laukitis, Shana A. Elberg and Evan A. Hill of Skadden Arps Slate Meagher & Flom LLP, and Albert Togut, Frank A. Oswald, Kyle J. Ortiz and Brian F. Moore of Togut Segal & Segal LLP represent Endo.

Andrew M. Troop, Hugh M. McDonald and Andrew V. Alfano of Pillsbury Winthrop Shaw Pittman LLP represent the multistate committee.

Tara Tiantian represents the U.S. trustee in-house.

The case is In re: Endo International PLC et al., case number 7:22-bk-22549, in the U.S. Bankruptcy Court for the Southern District of New York.

Source: Law360

Class Action Settlements

Investors, Inovio’s $44 Million Stock Suit Settlement Approved

U.S. District Judge Gerald Pappert approved a $44 million settlement agreement between Inovio Pharmaceuticals Inc. and its investors. The settlement will resolve claims from investors that the biotech firm misrepresented its COVID-19 vaccine development efforts in early 2020. As a result, the price of the company’s stock fell significantly.

The settlement includes $30 million in cash payments. The remaining will be paid either in $14 million worth of stock or 7 million shares of Inovio common stock. Each class member’s recovery will vary depending on the date they purchased the stock, how much they paid for it, and how many shares they bought.

Judge Pappert also approved the plaintiffs’ request for 27.5% of the total settlement for attorney fees and $814,000 in litigation expenses. He noted that lead counsel put more than 7,000 hours into the case and that the nearly $4.5 million lodestar amount was acceptable.

In March 2020, Inovio investor and lead plaintiff Patrick McDemid filed a lawsuit against the company and two of its executives for defrauding investors over the rollout of a COVID-19 vaccine. Class representatives Manuel S. Williams and Andrew Zenoff joined the lawsuit shortly afterward. Judge Pappert approved class awards of $77,450 and $75,712 to Williams and Zenoff, respectively. The opinion did not mention McDermid’s award as lead plaintiff.

The investors are represented by Shanon J. Carson, Michael C. Dell’Angelo and Andrew D. Abramowitz of Berger Montague, Darren J. Robbins, Tor Gronborg, Trig R. Smith, Lonnie A. Browne, Matthew J. Balotta and Sean C. McGuire of Robbins Geller Rudman & Dowd LLP, and Lawrence F. Stengel of Saxton & Stump LLC.

The case is McDermid v. Inovio Pharmaceuticals Inc et al., case number 2:20-cv-01402, in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360

Class Action Lawyers At Beasley Allen

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

Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin. They can be reached at 800-898-2034 or by using the contact form on this page.

THE WHISTLEBLOWER LITIGATION

Advanced Bionics LLC To Pay The U.S. $11.36 Million To Resolve False Claims Act Allegations Related To Cochlear Implant Processors

The U.S. Department of Justice announced recently that cochlear implant developer Advanced Bionics LLC will pay $11.36 million to resolve claims that it defrauded federal health care programs. David Nyberg, a former Advanced bionics engineer, filed suit under the False Claims Act (FCA), alleging that Advanced Bionics engaged in fraudulent misconduct concerning its cochlear ear implants.

In the FCA lawsuit, Nyberg alleged that during its pre-market approval submissions to the Food and Drug Administration (FDA), Advance Bionics misled federal healthcare programs regarding the results of radio-frequency (RF) emissions tests generated by some of its implant processors.

The RF tests at issue measure the extent to which cochlear implant systems generate RF emissions that can interfere with other products that use the RF spectrum – such as mobile phones, alarm and security systems, televisions, and radios.

According to allegations in the lawsuit, Advanced Bionics represented to the government that the processors in its Neptune and Naida cochlear implants satisfied an internationally recognized emissions standard when, in fact, they did not. Specifically, the lawsuit alleged Advanced Bionics manipulated testing conditions to obtain passing test results by not testing processors in “worst case” scenarios and improperly shielding certain emissions-generating components of the cochlear implant system during emissions testing. Such manipulations are contrary to the emissions standard’s requirements. Jacqueline C. Romero, U.S. Attorney for the Eastern District of Pennsylvania, stated:

The FDA’s approval process requires companies to demonstrate the efficacy of their products. The settlement, in this case, demonstrates our commitment to hold responsible any medical device manufacturer that skirts these rules and seeks FDA approval of a device it knows is not as effective as represented. The consumers who use these devices, and the federal programs that pay for many of them, deserve better.

Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Department of Justice’s Civil Division, added:

The United States expects device manufacturers to provide accurate information when they claim that their devices meet certain tests or standards. The integrity of our health care system depends on the government being able to rely on the information provided by manufacturers when they apply for permission to market their devices.

Beasley Allen lawyers have been successful in FCA cases – both when the government intervenes and when they have declined to do so. If you are aware of fraud, abuse or waste being committed against the federal government or a state government and are interested in pursuing a whistleblower lawsuit, contact a lawyer on the Whistleblower Litigation Team. You can visit our website at www.beasleyallen.com to read more about the successful results we have achieved on behalf of whistleblowers and federal and state governments.

Sources: U.S. Department of Justice and JD Supra

The Beasley Allen Whistleblower Litigation Team

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

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

The experienced lawyers on the Whistleblower Litigation Team are dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team:

Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can be reached by phone at 800-898-2034 or by using the form on this page.

SECURITIES LITIGATION

SEC Awards More Than $5 Million To Whistleblower

On Friday, Jan. 13, the U.S. Securities and Exchange Commission (SEC) announced its first whistleblower award of 2023. The whistleblower’s tip resulted in the agency taking enforcement action, and monetary sanctions were implemented. While the agency awarded the whistleblower $5 million, it denied another whistleblower’s award application. The SEC awarded more than $214 million to whistleblowers in 2022.

In a heavily redacted five-page order, the SEC adopted the preliminary determinations of its Claims Review Staff (CRS), who found that an anonymous individual identified as Claimant 1 should receive more than $5 million, representing an unspecified percentage of monetary sanctions the agency collected in the related enforcement action.

Meanwhile, the claims review staff found that a second applicant, identified as “Claimant 2,” should not receive any award because they didn’t provide information that led to the success of the enforcement action. The order stated that “Commission staff reviewed Claimant 2’s tip, but the allegations were vague and conclusory, and staff closed the tip with no further action planned . . . and Claimant 2’s information did not advance the investigation in any way.”

Under SEC Whistleblower Rules, the information provided that leads to the successful enforcement of a covered action must be specific and credible enough to cause the SEC to “open an investigation, reopen an investigation, . . . or to inquire concerning different conduct as part of a current examination or investigation.” Whistleblowers can also be entitled to an award if information about an ongoing SEC action “significantly contributed to the success of the action.”

SEC Whistleblower awards range from 10% to 30% of collected monetary sanctions that exceed $1 million, and whistleblowers’ identities are confidential under the Dodd-Frank Act. The awards are made from an investor protection fund established by Congress. The fund is established entirely with monetary sanctions paid to the SEC, not with investor funds.

In a statement, Creola Kelly, Chief of the SEC’s Office of the Whistleblower, said Claimant 1 “provided helpful information and substantial ongoing assistance, saving the SEC time and resources during its investigation.” Per the SEC’s announcement, Claimant 1 provided a tip and additional information that helped agency staff shape its investigative strategy, identify witnesses, and draft documents and information requests. The agency noted they had also reported concerns internally before tipping off the SEC.

After claims review staff made their preliminary determination, Claimant 2 argued, among other things, that the agency wrongly found the tip they provided was conclusory and that the commission should have treated both applicants as joint claimants.

But the SEC said in its order that the claimants didn’t submit a tip jointly or act jointly during the enforcement action investigation, nor did they jointly apply for a whistleblower award. Claimant 2 also submitted a tip three years before the enforcement action investigation began, and agency staff didn’t open an investigation based on that tip. According to the SEC’s order, none of the staff responsible for the enforcement action recall communicating with Claimant 2 before or during the investigation. The order reads:

According to the Commission’s [tips, complaints and referrals] system, staff closed Claimant 2’s tip with no further action planned. In addition, Claimant 2’s information does not satisfy Exchange Act Rule 21F-4(c)(2) because it did not significantly contribute to the success of the covered action.

Claimant 2 had also argued that they may have been the “original source” of the information that prompted SEC staff to open the covered action investigation, but the SEC said that argument was “speculative and not supported by the record.”

Our firm has a skilled group of lawyers dedicated to handling consumer fraud cases, with extensive experience in whistleblower actions and securities fraud. We continue to encourage whistleblowers to step forward with their confidential information of misconduct and seek counsel to protect them and consumers affected by corporate fraud. If you need more information on whistleblower litigation involving the SEC or have comments, contact James Eubank, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by using the form on this page.

Sources: Law360 and Securities and Exchange Commission

Beasley Allen Securities Litigation Team

Beasley Allen lawyers in our firm remain very active in securities cases as this area of our practice continues to grow. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team. The team members can be reached at 800-898-2034 or by using the form on this page.

THE ASBESTOS LITIGATION

Industrial Talc And Asbestos Exposure: “Do-It-Yourself” Home Repair

Most people, at one point or another, have tried their hand at a little bit of “do-it-yourself” home repair or remodeling. Some people have a knack for it, and others don’t. Regardless of which category a person falls into, if they are working on an older home, they must be mindful of potential asbestos exposures from products installed decades earlier. At this point, it is well known that items like shingles, wall and attic insulation, and drywall must be worked on with caution. Still, other products and materials in millions of Americans’ homes must be considered.

A category of products that is often overlooked is the sealants, caulks and adhesives used to fill and seal gaps and cracks around windows, door frames, molding, trim, baseboards, corner joints, and more. This category of products often had two sources of asbestos: (1) chrysotile asbestos and (2) industrial talc contaminated with tremolite, actinolite and/or anthophyllite asbestos fibers.

Whether the industrial talc or pure chrysotile, these constituent ingredients promoted durability in the products because the asbestos was highly fibrous and was ideal for helping these products bind together to ensure durability and strength. If not yet removed, the deadly asbestos fibers remain in place.

In a recent Beasley Allen mesothelioma lawsuit, one of our lawyers interviewed the client and conducted a standard exposure assessment to determine how and when the person was exposed. Notably, this person worked in the shipbuilding industry, resulting in massive occupational exposure. But our lawyers dug deeper and discovered years of “do-it-yourself” home repair work, including extensive work removing old sealants and caulks from window and door frames.

Mesothelioma is a dose-response disease. This means every exposure matters to the eventual development of the disease. Even smaller exposures, such as these, can and do contribute. Because of the skill and knowledge of the lawyers at Beasley Allen, no exposures go unidentified. This client’s case was developed to ensure maximum success and, just as importantly, to hold all the wrongdoing companies accountable for their past harms.

If you need more information or help on a case, contact Charlie Stern at 800-898-2034 or by using the contact form on this page.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to increase and spread across the country. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation. He was a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or by using the form on this page.

MASS TORTS LITIGATION

Plaintiffs Prevail On Preemption In Acetaminophen Autism / ADHD MDL

On Nov. 14, 2022, U.S. District Judge Denise L. Cote in the Southern District of New York denied defendant Walmart’s Motion to Dismiss on preemption grounds, concluding that “[a] manufacturer of an OTC drug sold under the monograph system is permitted to change its label so long as it meets the requirements of its monograph and other applicable OTC drug regulations.” The court determined that acetaminophen manufacturers are not pre-empted from adding a more specific warning regarding potential prenatal acetaminophen risks and allowed the plaintiffs’ claims to proceed.

The ruling comes only one month after the Judicial Panel on Multidistrict Litigation (JPML) consolidated cases to Judge Cote on Oct. 5, 2022, due to the increasing number of filings across the country against acetaminophen manufacturers and retailers alleging a link between prenatal acetaminophen exposure and autism spectrum disorder (ASD) and/or attention-deficit hyperactivity disorder (ADHD).

Beasley Allen lawyer Roger Smith was appointed to the Plaintiffs’ Executive Committee for the multidistrict litigation (MDL) on Nov. 22, 2022, where he serves as lead counsel for the Science & Expert Committee. Acetaminophen lawsuits continue to be filed and transferred to the MDL as lead counsels establish administrative procedures for pre-trial proceedings.

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

Sources: In re Acetaminophen – ASD-ADHD Prods. Liab. Litig.

Kratom Addiction On The Rise

Beasley Allen lawyers are assessing cases involving kratom addiction and usage. Kratom refers to Mitragyna speciosa, a plant in the coffee family indigenous to Thailand, Indonesia, Malaysia, Myanmar and Papua New Guinea. In the US, users typically ingest capsules filled with powder from ground leaves or combine it with tea, coffee or other liquids. Kratom can be purchased online, in “smoke shops,” in “health stores,” farmers markets and gas stations. It can also be found in coffee shops where it is mixed with coffee or tea – at low doses, it has similar stimulating effects as caffeine. In contrast, it has a relaxing and analgesic effect at high doses, much like opioids. An independent study in the American Journal of Preventative Medicine in 2019 estimated that 2.3 million Americans, including adolescents, used kratom over the previous year. Some sources estimate it to currently be 3-5 million users per day.

Touted as a tool used to overcome opioid addiction, kratom itself can be addictive within six months. The main alkaloids of kratom, mitragynine and 7-hydroxy-mitragynine, act on the kappa, mu and delta opioid receptors, which leads to dependence and tolerance and, ultimately, withdrawal symptoms upon cessation. Individuals often use it in addition to other substances or as an alternative to opioids or alcohol. Withdrawal symptoms are similar to opioid withdrawal, including nausea, cravings, vomiting and muscle aches. The risk of overdose increases when mixed with other substances.

While there are no federal regulations of kratom, individual states have chosen to ban kratom from sale, possession, growth and use. Kratom is illegal in Alabama, Arkansas, Indiana, Rhode Island, Vermont and Wisconsin. Kratom is legal in other states, although some have age or geographical regulations.

Between 2010 and 2015, the American Association of Poison Control Centers received 660 kratom-related calls. A 2019 study by Nationwide Children’s Hospital found that the number of kratom exposure cases reported to poison control centers increased more than 5,000% from January 2011 through December 2017. A study from the Centers for Disease Control and Prevention (CDC) in 2019 “analyzed reports of more than 27,000 unintentional drug overdoses and found kratom was a cause of death in 91 of them, and the drug was found in 152,” as reported by CNN.

A 2019 study in the New England Journal of Medicine reviewed 15 karatom-related deaths in Colorado, of which four involved kratom as the only substance. As of September 2021, the Food and Drug Administration’s Adverse Event Reporting system reported 423 kratom-related deaths, according to Courthouse News.

Kratom use has been linked with the following: addiction, seizures, liver damage, hospitalization, coma and death. For more information, please contact Jennifer Emmel in our Mass Torts section at 800-898-2034 or by using the form on this page.

Sources: American Journal of Preventative Medicine, National Center for Biotechnology Information (NCBI), Nationwide Children’s Hospital, CNN and Courthouse News

Beasley Allen Files Firm’s First Hair Relaxer Case

Beasley Allen lawyers are handling lawsuits on behalf of women who regularly used chemical hair relaxers and developed uterine cancer, endometrial cancer, and ovarian cancer. A National Institute of Environmental Health Sciences (NIEHS) study recently found that women who used chemical hair straightening products, also called hair relaxers, more than four times per year were more than twice as likely to develop uterine cancer than those who did not.

Hair relaxers are used to straighten the natural curl pattern in the hair. However, most hair relaxers contain toxic chemicals such as formaldehyde, metals, phthalates, and parabens, which are associated with a higher risk of cancer, particularly hormone-sensitive ones. Manufacturers generated upwards of $700 million in sales from hair relaxers in 2021 alone. Yet, manufacturers failed to warn women about the chemicals’ dangers in hair relaxers despite studies dating back to 2011 that identified this risk.

Beasley Allen filed its first lawsuit against manufacturers of hair relaxers on Jan. 18 in Dekalb County, Georgia. The case was filed by Lafayette Armstrong on behalf of his late wife, Barbara Armstrong, who passed away from uterine cancer after using hair relaxers on her hair for years. The complaint was filed against defendants L’Oréal USA, Inc., USA L’Oréal Products, Inc., Soft Sheen/Carson Inc., and Soft Sheen Carson (W.I.).

Mrs. Armstrong suffered from endometriosis and uterine cancer after prolonged exposure to phthalates and other endocrine-disrupting chemicals found in the defendants’ hair care products. She used the hair relaxer manufactured by the defendants from the early 1960s to 2018. Mrs. Armstrong passed away on Jan. 28, 2020, due to complications related to her endometrial carcinoma caused by using the defendants’ hair relaxer products and the chemotherapy she was given.

It’s known in the industry that hair relaxers are used by the black community more than by any other race. Thus, this makes the news of this study completely alarming and shocking for all users of the hair relaxers, especially those in the black population. Black people make up about 13 percent of the U.S. population, but by one estimate, African American spending accounts for as much as 22 percent of the $42 billion-a-year personal care products market.

Today, the defendants market their hair relaxer products to African American customers, like Mrs. Armstrong, across the U.S., and the world, reinforcing Eurocentric beauty standards and marketing that focuses heavily on branding and slogans that reinforce straight hair as the standard. However, unbeknownst to consumers like Mrs. Armstrong, these products fail to perform safely and increase the risk of cancer. The hair relaxers are unreasonably dangerous when used in the manner as intended and to an extent beyond that which would be contemplated by the ordinary consumer like Mrs. Armstrong.

Beasley Allen lawyers are actively investigating cases of uterine cancer, endometrial cancer, and uterine cancer in women who developed these conditions after using chemical hair relaxers. You can contact Melissa Prickett or Aigner Kolom, lawyers in our Mass Torts Section, at 800-898-2034 or by using the contact form on this page.

Sources: Thandisizwe Chimurenga (author, How Toxic is Black Hair Care?) and Environmental Working Group

Infant Formula Multidistrict Litigation Update

In prior issues, we reported on our firm’s involvement in litigation surrounding the development of Necrotizing Enterocolitis (NEC) in premature infants who were fed cow’s milk-based infant formula products. Last month, we wrote that Judge Rebecca R. Pallmeyer, overseeing the multidistrict litigation (MDL), entered an order to finalize the selection of twelve initial bellwether cases. Four cases were selected by plaintiffs, four were selected by defendants, and four cases were randomly selected using a random number selection. Bellwether cases allow a small selection of representative “test” cases to move through discovery and litigation in order for the parties to have a better understanding of how the cases will be viewed by juries.

The MDL litigation continues to move forward. In December, Judge Pallmeyer entered a scheduling order for the initial bellwether cases, which will be narrowed down to four potential initial trial cases. At this time, we anticipate trials for these cases will begin in the Spring of 2024. On Jan. 6, Judge Pallmeyer entered an order scheduling a Science Day presentation to the court, which will take place on March 8. During Science Day, each party will present scientific evidence supporting their position in the litigation, but the parameters of those presentations are still being finalized at the time of publication.

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

Medical Device Numbers Continue To Rise

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices worldwide, at least half of which are used daily in the U.S. Medical Device Reports (MDRs), which can be submitted by users of medical devices or by the company itself, are reporting rising numbers of affected individuals.

MDRs are required submissions whenever a company “becomes aware of an event that reasonably suggests that one of their devices may have caused or contributed to a death or serious injury.” In examining these reports, the Food and Drug Administration (FDA) has noted a wide range of injuries, including cancer, pneumonia, asthma, respiratory issues, infection, headache, cough, dyspnea, dizziness, nodules, and chest pain.

Since Philips began submitting these reports in April 2021, the FDA has received more than 90,000 MDRs. The number of deaths reported associated with the breakdown of the PE-PUR foam (the basis of the machines’ recall) has risen to 260. As these numbers continue to rise, Philips will be required to continue reporting.

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

Source: Food and Drug Administration

EMPLOYMENT AND FLSA LITIGATION

“Drug Treatment” Does Not Disqualify Employment

In January 2022, Jeanna Godwin filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania alleging disability discrimination in violation of the Americans with Disabilities Act (ADA) related to a rescinded job offer from the Washington Hotel, owned by The George Washington, LP. According to the suit, plaintiff Godwin received an employment offer for a banquet bartender position from the Washington Hotel.

As part of the pre-employment requirements, Ms. Godwin notified the employer that she was prescribed and taking methadone to manage a previous addiction. She offered to provide a certificate from her physician related to the prescription, but the defendant withdrew her offer of employment. Although the hiring manager initially told Ms. Godwin that the prescribed treatment would not be an issue, he later explained that she “wouldn’t be able to pass a pre-employment drug screening.”

The plaintiff in this case, which is being presided over by U.S. Magistrate Judge Patricia L. Dodge, was determined by the court to have met the burden of showing a potential ADA violation. While the current use of illegal drugs is not protected by ADA law, methadone, legally prescribed by a person’s physician as treatment for drug addiction, does not disqualify someone from being covered by ADA laws. In fact, Judge Dodge denied the defendant’s motion to dismiss the plaintiff’s demand for damages, finding that punitive damages could be awarded if the plaintiff Godwin could provide facts to support the allegation that the defendant knew it was violating the law.

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are ready to review potential ADA violations. They will monitor this litigation and other cases related to revocations of employment offers and terminations because of physician-prescribed medications. Contact our employment law team leads, Larry Golston or Leon Hampton or by phone at 800-898-2034 with questions related to ADA violations and employment discrimination.

Source: Law360

TOXIC TORT LITIGATION

Amazon Must Face Suit Over Chemical Used In Suicides

Amazon must face a lawsuit brought by two families over the sale and marketing of a chemical two young men used to commit suicide, a Washington state judge ruled, denying the retail giant’s bid to dismiss the case.

The lawsuit was filed by family members of Tyler Muhleman, 17, and Mikael Scott, 27, who died after ingesting sodium nitrite purchased from Amazon. The chemical is a preservative commonly used in cured meat products, including bacon, deli meat, and jerky. When mixed with water, the substance can kill within minutes.

According to the complaint, Amazon marketed and shipped the dangerous substance. Amazon continues to sell sodium nitrite even though the e-commerce giant has heard from families of individuals who bought the substance to kill themselves. The families also claim that Amazon enables death by suicide by recommending products like acid reducers promoted by suicide forums to prevent vomiting; small scales; and even the “Peaceful Pill Handbook,” a suicide instruction manual that includes a chapter on sodium nitrite.

The lawsuit also accuses Amazon of deceptive business practices, such as failing to include adequate and complete warnings on the product’s label and website.

Amazon argues that the Washington Product Liability Act bars the parents’ claims against it. The company also said that it is now limiting sales of highly concentrated versions of sodium nitrite to Amazon Business customers to help prevent the risk of misuse.

The families are represented by Carrie Goldberg and Naomi Leeds of C.A. Goldberg PLLC and Scott David Smith and Francisco Duarte of Fury Duarte PS.

The case is Scott v. Amazon.com Inc., case number 22-2-01739-2, in the Superior Court of the State of Washington in King County.

Source: Law360

Revival Of Roundup Weedkiller Cancer Case To Be Examined By Full Appeals Court

At the end of 2022, the U.S. Court of Appeals for the Eleventh Circuit granted Monsanto’s motion for a rehearing to review the three-judge panel’s prior ruling in July concerning Monsanto’s claim that federal preemption would block any state law claims. The appeals court has stated that all its active judges have agreed to the rehearing. However, a date for the arguments had not been scheduled at press time.

Monsanto argues that the lawsuits pending against the company should be dismissed because placing any additional cancer warning on its label would be inconsistent with the label approved by the U.S. Environmental Protection Agency (EPA). The prior three-judge panel ruled in July 2022 that Georgia’s product liability law did not impose additional requirements beyond those in federal law, so state law claims would not be preempted.

The U.S. Court of Appeals for the Ninth Circuit has also rejected Monsanto’s preemption argument in a similar California lawsuit in 2020.

Monsanto has hopes that this recent decision to rehear its case in the Eleventh Circuit could create a circuit split between the Eleventh Circuit and the Ninth Circuit. If the Eleventh Circuit were to decide a contrary opinion to the Ninth Circuit’s, this circuit split could provide a reason for the U.S. Supreme Court to consider the issue. Currently, the Supreme Court has rejected Bayer’s petitions to review federal preemption in the context of these Roundup lawsuits.

For more information on the Roundup litigation in general, contact Will Sutton or Matt Pettit for more information. They can be reached by phone at 800-898-2034.

Teva’s $4.25 Billion Global Opioid Deal Can Move Forward

Teva has gotten enough participation from states in a global opioid settlement agreement worth up to $4.25 billion and can now move forward, the company said. Teva has now settled or confirmed participation from 48 of the 50 states and says it will continue to pursue talks with the remaining two states.

“Given the very positive response from states, the company remains optimistic that the nationwide settlement will garner similar support from the states’ subdivisions,” the company said in a statement.

Teva announced in July that it had reached an agreement to resolve claims that it contributed to the opioid crisis in America by downplaying the risk of addiction. AbbVie’s unit Allergan had also said it had sealed up the terms of a similar settlement. The money from both drugmakers will go toward efforts to resolve the opioid crisis and reimburse attorney fees and other costs.

Teva’s deal was contingent on Allergan reaching its own global settlement. Allergan sold its generic opioid portfolio to Teva in 2016. AbbVie acquired Allergan in 2020. Allergan’s agreement resolves claims related to that business.

The plaintiffs’ executive committee in the MDL said:

This is the beginning of the second wave of significant funds being provided to local governments, and local leaders across the country will now have the opportunity to accept over $20 billion in settlements in addition to the $26 billion already in process and the over $2 billion that has been paid out.

Source: Law360

3M Will Stop Manufacturing PFAS By 2025

3M announced in late December that it will stop manufacturing and using per- and polyfluoroalkyl substances (PFAS) by 2025. As we have reported, PFAS are “forever chemicals” used in, or in the process of manufacturing, a variety of consumer goods such as food containers and carpet. PFAS do not readily break down (except into other PFAS) in the environment, accumulate in the human body (and are not excreted), and are linked to numerous adverse health conditions, including cancer. 3M has previously promised to phase out certain types of PFAS in the past but came out with newer, slightly different PFAS. Water contaminated by PFAS is a growing problem in the U.S.

The EPA recently set interim drinking water lifetime health advisories for four PFAS: perfluorooctanoic acid, or PFOA, and perfluorooctane sulfonic acid, or PFOS, two of the most researched per- and polyfluoroalkyl substances as well as perfluorobutane sulfonic acid and its potassium salt (PFBS) and for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt (“GenX” chemicals). In chemical and product manufacturing, GenX chemicals are considered a replacement for PFOA, and PFBS is considered a replacement for PFOS.

These health advisories essentially warn against any long-term exposure to PFOS or PFOA in drinking water. Lawsuits have been filed by water systems and local and state governments over water and environmental contamination issues.

3M and other chemical manufacturers, including DuPont, have continued to make, use, and sell these chemicals and have downplayed and covered up their risks despite knowing about their toxicity for decades.

Beasley Allen lawyers currently represent the Water Works and Sewer Board of Centre, Alabama, in a lawsuit alleging PFAS sold by 3M and DuPont has contaminated the water sources used by Centre to produce its drinking water.

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

Sources: 3M and Environmental Protection Agency

Paraquat Update

The Paraquat Products Liability Litigation MDL (Case No. 3:21-MD-3004), centralized in the Southern District of Illinois, currently has over 2,700 cases pending before Chief Judge Nancy J. Rosenstengel, however, the state court litigation in California has seen the most activity as of late. 

The paraquat cases in the state courts of California have been consolidated into one proceeding under California’s Judicial Council Coordination Proceedings (JCCP). Judge Charles S. Treat recently took over the coordinated state litigation in California. He held his first case management conference with the parties in January 2023. At this case management conference, the June 2023 trial date, which was set by Judge Edward G. Weil, who formerly oversaw this litigation, was pushed back by Judge Treat to Sept. 5, 2023.

In the federal multidistrict litigation pending before Chief Judge Rosenstengel, the first bellwether trial date is set for October 16, 2023. Additional bellwether trial dates were set in March, July, and September 2023; however, these dates have been vacated. At this moment, these additional bellwether trials have not been rescheduled.

Beasley Allen lawyers Julia Merritt and Leslie LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL. Our Paraquat Litigation Team will be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen continues to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms.

Contact a member on our Paraquat Litigation Team if we can be of assistance to you in your paraquat applicator cases. The lawyers on the team are Julia Merritt and Leslie LaMacchia, who head the team, and members Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact a lawyer on the team by phone at 800-898-2034 or online for more information on the litigation, including the MDL.

THE CONSUMER CORNER

FDA’s Proposed Safety Guidelines to Help Reduce Heavy Metals in Baby Food

A report by House Oversight Committee last February prompted the U.S. Food and Drug Administration (FDA) to issue draft guidance on reducing the lead levels in processed food for babies and young children. The new standards were announced last month and are expected to reduce the levels by as much as 27%, according to Law360.

The February 2021 report found that food manufacturers by seven baby food makers had high levels of heavy metals in their foods. The FDA continues working to reduce the heavy metals in baby food, including arsenic, cadmium, mercury, and lead, in the foods eaten by babies and children under two years old. The new proposed safety guidelines are intended to further this goal and will apply to food packaged in jars, pouches, tubs and boxes.

The FDA also rolled out “action levels,” defined as food products the agency considers hazardous. These action levels will allow the FDA to step in and take action. Specifically, the recommended levels of heavy metals in mixtures, yogurts, custards, puddings and single-ingredient meats is 10 parts per billion. The recommended level for root vegetables and dry cereals is 20 parts per billion.

The agency’s commissioner, Dr. Robert Califf, said that the proposed action levels and other modifications the FDA is working to identify “will result in long-term, meaningful and sustainable reductions in the exposure to this contaminant from foods.” He continued:

For babies and young children who eat the foods covered in today’s draft guidance, the FDA estimates that these action levels could result in as much as a 24% to 27% reduction in exposure to lead from these foods.

The agency explained that a contaminated product isn’t necessarily unsafe to eat. Instead, the contaminant levels will determine if it is safe to consume. It said:

Although it is not possible to remove these elements entirely from the food supply, we expect that the recommended action levels will cause manufacturers to implement agricultural and processing measures to lower lead levels in their food products below the proposed action levels, thus reducing the potential harmful effects associated with dietary lead exposures.

The action levels will be one of several factors considered as part of the decision to take enforcement action. The FDA’s Center for Food Safety and Applied Nutrition director, Susan Mayne, said:

The action levels are also not intended to direct consumers in making food choices. To support child growth and development, we recommend parents and caregivers feed children a varied and nutrient-dense diet across and within the main food groups of vegetables, fruits, grains, dairy and protein foods. This approach helps your children get important nutrients and may reduce potential harmful effects from exposure to contaminants from foods that take up contaminants from the environment.

As part of its investigation, the House subcommittee asked for internal documents and test results from Beech-Nut Nutrition Co., Gerber, Nurture Inc., Hain Celestial Group Inc., Campbell Soup Co., Walmart Inc. and Sprout Foods Inc. The investigation was prompted after the subcommittee received information that the foods contained high levels of toxic heavy metals. According to the report:

• Of the seven companies, Nurture, Beech-Nut, Hain and Gerber responded and provided documentation.
• Walmart, Campbell and Sprout refused to cooperate. The documentation and test results showed heavy metals were present at dangerous levels for all four companies that responded.
• Independent testing showed high levels of heavy metals were also found in baby foods made by Walmart, Campbell and Sprout. Arsenic, lead and cadmium were found in baby foods made by all four companies that responded to the subcommittee’s request.

The report also triggered lawsuits, including one filed in December in New York federal court by parents claiming Nurture concealed the contaminates in its products. Two lawsuits have been dismissed – one in New York against BeechNut and the other in Ohio against Kroger – with the courts ruling that the FDA has jurisdiction over these claims.

Source: Law360

Wells Fargo Customers May Be Eligible For Part Of $2 Billion Settlement

After imposing the largest fine on any bank to date in December, the Consumer Financial Protection Bureau (CFPB) announced last month that Wells Fargo agreed to pay $2 billion to more than 16 million people affected by its illegal practices from 2011 to 2022. The unlawful practices included “misapplied payments, wrongful foreclosures, and incorrect fees and interest charges.” CFPB said.

The bank has been ordered to notify all customers who received services from the banking giant during that time. Customers who believe they are eligible but haven’t received a letter from Wells Fargo can contact the bank at 844-484-5089 or submit a complaint online by visiting https://www.consumerfinance.gov/complaint/.

Eligible customers will receive varying amounts of recovery based on the type of claim. They could receive at least $4,000 if their automobile was repossessed. For approximately 3,200 customers who struggled with the bank to modify their loan payments to prevent foreclosure, the bank has set aside $77.2 million of the larger settlement.

What types of loans could be included?

Auto loans

Customers who secured auto loans through Wells Fargo and prepaid for GAP coverage are eligible. GAP coverage is insurance protection on the amount remaining on the auto loan if the borrower has an accident or the vehicle is stolen. The CFPB explained that Wells Fargo illegally failed to refund money to borrowers who repaid loans ahead of schedule. It also incorrectly applied auto loan payments to the customer’s balances, triggering higher interest charges, late feed and even repossessions. Further, after the bank repossessed a vehicle, it did not correctly handle the repossession process and how the vehicles were sold after repossession.

Mortgage loan borrowers

Wells Fargo also improperly managed mortgage loans. It wrongly refused to honor loan modification requests by borrowers trying to prevent foreclosure. Some customers were charged incorrect fees or faced other costs, while other customers were incorrectly reported as deceased. The bank also overstated attorney fees resulting in the denial of applications, and wrongfully implemented thousands of forecloses.

Bank account holders

Surprise overdraft fees on debit purchases and ATM withdrawals were improperly charged to some customers even when they had enough money in their accounts to cover the purchases at the time they were made. Wells Fargo charged monthly fees to some accounts that should not have been charged. One of the bank’s advertisements told customers they would not be charged fees if they made “10 or more debit card purchases and/or payments” monthly. However, the provision applied to limited types of eligible payments and debit transactions that posted days later were not included. Wells Fargo would wrongly freeze a customer’s account for weeks if it believed a deposit was fraudulent.

Source: USA Today and AL.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases

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

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

Resources to Help Your Law Practice

Beasley Allen lawyers receive inquiries from some in corporate America asking if our firm would consider defending them in lawsuits. Our response is that Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. We do no defense work of any kind. All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers for victims of wrongdoing. Our firm does no “defense work” at all for corporate America. I made that decision in 1979, and the firm has stuck to it ever since.

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

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

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

Webinars

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

The Jere Beasley Report

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

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

PRACTICAL TIPS FOR TRIAL

Handling E-Discovery In Litigation

Electronically Stored Information (ESI) refer to discoverable information “stored in any medium from which the information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form,” according to the Federal Rules of Civil Procedure. This month, Suzanne Clark, Discovery Counsel for the firm’s Mass Torts Section, details a step-by-step process she uses to unpack and assess incoming ESI. Suzanne has a great deal of experience in this area of discovery. Let’s take a look at her approach.

Capturing The Landscape Of Incoming Productions: Techniques For Assessing The Documents And ESI Received From Opposing Parties

You have just received a production of documents and ESI in response to your Request for Production. What now?

It is time to unpack what you have received and there are many different methodologies that can be employed to tackle this task. The following are techniques I use to accomplish initial assessment of incoming productions of ESI.

I. Ingest the Production and Conduct Pre-Assessment Work

My first step when opposing counsel provides a production (typically by FTP link) is to send that link to the eDiscovery service provider we have in place for the litigation. The vendor’s project manager then ingests the production into the document review software and lets me know of any issues or problem that are identified.

While the vendor is doing their part, I pull together any documentation that could be helpful in guiding me through the production assessment, including:

• the ESI Protocol,
• discovery requests,
• discovery responses and/or objections,
• opposition’s initial disclosures,
• cover letters that relate to or accompany the production(s), and
• lists of search terms, custodians, and data sources.

The above information arms me with a picture of what should be in the production by answering some relevant questions at the forefront. For example:

• What metadata fields are going to be produced (e.g., file name, folder path, date, custodian, sender, recipient(s), etc.)?
• What are the expected date ranges?
• Will all custodians and data sources be produced at once, or will there be rolling productions?
• If there will be rolling productions, which custodians and data sources should I expect to find when I “unpack” this particular production?
• Which topics should I expect to find: for example, in medical device and drug litigation: regulatory, marketing, testing, etc.?
• Am I able to predict ahead of time which concepts I expect the software to show me?

If the ESI Protocol identifies certain metadata fields, and those fields are empty, I have the ESI order/agreement in hand to quickly identify those fields for opposing counsel and request they remedy the deficiency immediately before document review begins. Also, if a cover letter asserts that the first production is of non-custodial data sources, then there is no need for me to waste time determining if all custodians are produced because I know those productions will come later. Additionally, if I know there will be a rolling production, and I see fewer documents for one custodian than another, a different date range, or less information on a topic than I expected to see, then I will know to look out for that information in a future production before prematurely becoming alarmed that ESI is missing.

II. Assess the Landscape of the Production

The next step is to dive into the data. Looking at a high-level overview of what has been produced enables me to get an understanding of the sources of ESI and the content of the ESI. At this phase, I concentrate on what has, in fact, been produced. In addition to looking for red flags and anything that stands out, I also simply look for what story is told by analyzing data volume, time frames, people, and data types. This provides a framework or landscape of the production. All of this assessment work allows me to make an intentional plan for analyzing and reviewing the data in an efficient and effective way, a plan that is often different from a linear review in order of Bates page number.

a. Review a Small Random Sample

If I find value in laying eyes on a few documents at this stage, I do so. Typically, the document review software will allow me to take a small sample of a random selection of documents. When using this technique to get a feel for the data, I like to divide the production into tranches by data source and/or custodian and look at 10-50 documents for each to see exemplars or examples of what kind of information is contained in that source.

b. Run Search Terms and Review Search Term Reports

I also run search terms and create a search term report to get a visual picture of how many documents hit on the search terms, with and without family (email and attachments), and how many unique hits occur for each term. Unique hits can show how valuable a term is and whether there were false hits that could indicate irrelevant documents were produced.

c. Run and Review Conceptual Analysis

Another tool available through many document review platforms is conceptual analytics, which shows the relevant concepts and terminology in the data, including code words and nicknames that might not have been contemplated during discovery and search term negotiations, as well as how the concepts found in the dataset relate to one another. This is another excellent way of seeing a big picture of the production and/or homing in on important documents, rather than having to build that picture brick by brick through reading documents in a linear fashion.

d. Study the Metadata

One more technique I use is to study the metadata by using filters to pull files names or folder paths with key concepts and, by doing so, identify important documents. Metadata is a rich source of information. Scrolling through thoughtfully filtered file names or sorting and isolating folder paths can quickly get you up to speed on what topics you will encounter once review begins.

e. Examine the Custodians

Yet another approach is to look at which custodians have been produced and cross reference that to the custodian list. I then take each custodian separately and look at the volume of the document produced, date ranges, and search term hits. Next, I compare that to their role and tenure at the company to spot gaps in date ranges and get a feel for their relevant topics. I also may be able to identify additional potential custodians through this work.

f. Inspect File Types

An additional task is to look at file types and what is the percentage of emails, attachments, and stand-alone documents. Are there any atypical sources of ESI being produced, such as text messages or ESI from workplace collaboration tools (such as MS Teams or Slack data)? What file types are they, and what is their volume compared to the production as a whole?

III. Conclusion

Once I have gone through the above exercise, I compare what I have discovered from the data itself to the requests and the responses/objections, along with my knowledge of the facts from other research and sources, to determine the completeness of the production and to make a plan for how to review the production in the most effective and efficient way. By implementing these methods, I gain a fulsome understanding of what has been produced that I can share with the rest of the litigation team even before “document review” has begun.

If you have any questions, contact Suzanne Clark, who has extensive experience handling e-discovery issues, at 800-898-2034 or by using the form on the bottom of this page.

RECALLS UPDATE

A large number of safety-related recalls were issued during January. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We are putting the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Jere Beasley Report, by using the form on this page if you have any questions or to let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.

FIRM ACTIVITIES

Lawyer And Employee Spotlights

Jessica Kayla Burdick

Jessica Burdick is a Legal Secretary in the firm’s Personal Injury & Products Liability Section working with Beasley Allen lawyer Ben Baker. Jessica is responsible for preparing pleadings and other important documents, maintaining their cases within the firm’s case management system, indexing discovery documents, maintaining the lawyer’s calendar, preparing invoices for necessary approvals for payment, and other projects as needed to help things run smoothly. Jessica has been with the firm for just over a year. She truly cares about the work she does. Ben says Jessica “does an outstanding job, too!” We are blessed to have Jessica with us!

Jessica shares that she and her husband, Joe, were high school sweethearts and have been married for nearly 21 years. They have three children, Josie (17), Jolie (15), and Joel (12). Their family includes two “adorable dogs,” Browning, a Cocker Spaniel, and Bingley, a Dachshund. Jessica says that her family is very close-knit, and their faith is very important to them. Her hobbies include reading, particularly historical fiction, spending time outdoors, serving at her church, and any adventure with her family. She says her favorite thing to do is cheer her children on as they participate in their passions.

Jessica says that in the 22 years, she has worked in the legal field, the environment and people at Beasley Allen are simply amazing. She says, “to receive daily Bible devotions is such as blessing. To be encouraged to prioritize my faith, family, and the job is inspiring!”

Jessica is a hard-working, dedicated employee who strives to see what clients she works for receive justice. We are blessed to have her with us.

David Diab

David Diab joined our firm’s Toxic Torts Section in August 2019. He is currently handling cases involving environmental contamination of water systems. David also is a member of the team handling the State of Alabama Opioid litigation. He also represents persons injured due to nursing home neglect or abuse.

David did not take the traditional path to become a lawyer. He earned his Bachelor of Science degree in Environmental Design in 2004 and his master’s degree in Landscape Architecture in 2006, both from Auburn University. After the 2008 economic collapse, David worked with a Tuscaloosa antique importer and interior designer. He began wanting more, saying:

No matter how beautiful a piece of furniture or artwork was, my restoration or sale of that piece typically only helped a few people at a time. I knew that I wanted to help more than a few people. One of my old friends who I trusted most is a practicing attorney who gave me confidence that with my intention to help others, I could succeed and achieve career satisfaction in the law. When I first opened the study guide for the law school admissions test, I knew in that moment that I loved the law.

David earned his Juris Doctor and Environmental Law Advanced Certificate from Elisabeth Haub School of Law at Pace University in 2019. During law school, he interned for the Honorable Judge Patty Shwartz, U.S. Court of Appeals for the Third Circuit, Honorable Judge Laura Taylor Swain, U.S. District Court of the Southern District of New York, Southern Environmental Law Center and Alabama Disability Advocacy Program. David was also a student board member at the Pace Environmental Litigation Clinic, volunteered at the Pace Land Use Law Center and spent a semester as a United Nations intern with Pace Law’s Environmental Diplomacy Practicum. In addition, he served as Executive Productions Editor of Pace Law Review and President of the Honor Board. In 2018, David placed 2nd in the National Energy and Sustainability Moot Court Competition.

David says he enjoys the competition his legal career provides, explaining:

My answer is similar to when an athlete says they hate losing more than they love winning. Without a doubt, there is no greater satisfaction in the practice of law than resolving a case in our client’s favor. But what makes it even more satisfying is who we are winning against. The defendants we are winning against are some of the most shameful organizations led by some of the greediest people imaginable, and their lawyers are formidable, to say the least. One of my favorite things is beating the other side at every punch. From informal letter writing to asking a witness just the right question, to making timely objections, and even long sleepless days of brief writing, I just really love beating the other side.

David says he appreciates the character and wisdom of people at Beasley Allen. He adds:

In the past, many law firms and lawyers have had a bad reputation when it comes to morals and character. Beasley Allen is filled with attorneys and staff that walk the walk of integrity and morals. There are other firms that have good character people too, but the sheer number of high-character people at Beasley Allen leads to a wealth of wisdom. No matter the issue, whether legal, professional or otherwise, there is always someone at the firm who can provide wisdom and guidance. Oftentimes, a seasoned attorney with years of experience has gone through the exact problem that a younger attorney is facing and has even written the brief. That, coupled with Beasley Allen’s willingness to allow younger attorneys the opportunity to lead cases from workup to trial, is certainly unique among firms.

David is a member of the Alabama State Bar, the Tuscaloosa County Bar, the Alabama Association for Justice, the American Association for Justice, and the Montgomery Garden District Preservation Association. He has also served as a volunteer assistant coach for the University of Alabama Trial Team.

David is an exceptionally talented lawyer who works hard and truly believes in his clients’ pursuit of justice. He is a definite asset to the firm.

Frances Cheryl Easterwood

Cheryl Easterwood is a Staff Assistant in the firm’s Toxic Torts Section. She has been very busy assisting with the firm’s Roundup campaign. She is responsible for locating, contacting, and assisting families of clients who have passed away with completing the necessary paperwork to continue their claims. Cheryl is also involved in work in the Paraquat and Camp Lejeune litigations. She joined the firm in July of 2021 and has been an asset! Cheryl is hard-working and very dedicated to helping our clients obtain justice. We are thankful to have Cheryl with us!

Cheryl shares that she is a widow, but was married to Gene, her best friend and the love of her life, for nearly 40 wonderful years. They had two sons, Michael and Matthew. Cheryl has three grandsons, Oliver Gene (two years, ten months), Merrit Drayke (ten months), and Liam Ryder (two weeks). She loves to travel with her sister, Renea, to the beach, their favorite destination. Cheryl shares that she loves quilting, which is something she learned from her grandmother as a child. She is also an avid reader and enjoys woodworking, a talent that led to a complete home remodel she recently completed, and a woodshop remodel project that she and her son are working on currently.

Cheryl says her favorite things about working at Beasley Allen are the people she works with and how the firm really cares about its employees. She added, “to be able to work in an environment that supports and encourages its employees individually and through teamwork is very exciting.”

Brandey Michelle Fulmer

Brandey Fulmer works in the firm’s Mass Torts Section as a Staff Assistant. She works with the Talcum Powder litigation team. Brandey is responsible for communicating with clients on the status of their cases and tracking their current health conditions. She also helps other staff on the team when needed. Brandey joined the firm in August 2021 and has been a hard-working and dedicated employee! We are blessed to have Brandey with us!

Brandey is a graduate of Troy University with a Bachelor’s degree in Human Services. She also recently graduated from the University of North Alabama with a Master’s degree in Business Administration in December 2022. Brandey lives in Gulf Shores, Alabama, and is currently engaged to be married this year! She and her fiancé have two rescue dogs, which Brandey says are basically their children. Brandey says she loves her family and says her mom, Michelle Fulmer, a Director in the firm’s Operations and Consumer Fraud & Commercial Litigation Section, has influenced her life tremendously. Her dad drives a truck across the county, and she has a younger brother who just turned 21. Brandey enjoys reading, especially now that she can enjoy reading books of her choice instead of all those college books. She also enjoys spending time outdoors at all sorts of sporting events or places with live music.

Brandey says that her passion is to help others, and she adds that Beasley Allen’s motto of “helping those who need it most” makes it a great fit for her. She says, “I enjoy assisting our clients and their cases and working with all my phenomenal co-workers!”

Mary Cam Raybon

Mary Cameron Raybon, who goes by “Mary Cam,” joined Beasley Allen as a law clerk in May 2019. She now practices in our firm’s Mass Torts Section handling cases involving high-viscosity bone cements, defective dietary supplements, weight loss drugs and the acetaminophen litigation involving autism and ADHD.

Mary Cam says her mother inspired her to become a lawyer. She explains:

If you ask my mom, she would tell you that ever since I was a little girl, I wanted to be a lawyer. It wasn’t until college that I officially made the decision to go to law school. I am the first lawyer in my family, and my mom is my biggest motivation for becoming a lawyer. She suffers from severe Multiple Sclerosis (MS), and although she has never fallen victim to a defective drug or device, others like her with disabilities certainly have. Because of her, I have a passion for drug and device litigation, and I am thrilled to be in our firm’s Mass Torts Section.

Mary Cam earned her bachelor’s degree in communication studies and English from Huntingdon College, graduating cum laude in 2014. She received the annual Lambda Pi Eta award for being the most outstanding graduate of the communication studies program. She was also included on the Dean’s List of High Honors and served as Vice President and New Member Educator of the Lambda Kappa Chapter of the Chi Omega Women’s Fraternity. In addition, Mary Cam was a presenter and panel member for the Alabama Political Science Association’s 2014 Conference, The Politics of Gender in the Media: Portrayals of Women in Media.

Mary Cam earned her Juris Doctor from Samford University’s Cumberland School of Law in 2020. During law school, she was selected as a traveling competitor for Cumberland’s National Mediation Team, received the Scholar of Merit award in Employment Law and was frequently on the Dean’s List. She was also a member of Cumberland’s Trial Advocacy Board, Women in Law and the American Constitution Society.

Mary Cam says she enjoys interacting with clients. She explains:

My favorite part of practicing law is client interaction. Very rarely do individuals reach out to lawyers unless they are going through some sort of hardship. Every client has a story. I love hearing those stories and being their advocate.

Mary Cam says sharing client stories and successes is part of why she enjoys practicing law at Beasley Allen. She adds:

Beasley Allen is a firm like no other. We share our successes and build each other up so we can advocate for our clients to the very best of our abilities. Beasley Allen lawyers genuinely care about each and every client’s success, both legally and personally.

Mary Cam is an Alabama State Bar member and serves as Secretary/Treasurer for the Women’s Section of the Montgomery County Bar Association. She also serves as the scholarship advisor for the Lambda Kappa Chapter of the Chi Omega Women’s Fraternity and is a “Friendly Foster” for the Montgomery County Humane Society.

Mary Cam is another of our firm’s exceptionally talented lawyers. She works hard for her clients and is dedicated to helping them receive justice. Mrs. Cam is a definite asset to the firm. We are blessed to have her at Beasley Allen.

SPECIAL RECOGNITIONS

LaBarron Boone Is 2023 President Of The National Trial Lawyers Association

Beasley Allen’s LaBarron Boone began serving as President of The National Trial Lawyers Association Top 100 (NTLA) on Jan. 1. He was selected to the invitation-only organization in 2019 and joined the Executive Committee in 2020.

The NTLA comprises premier trial lawyers from across the country who meet stringent qualifications as civil plaintiffs and/or criminal defense trial lawyers. The organization promotes a unique and professional networking opportunity for trial lawyers while developing progressive ideas to pursue justice for those injured by the negligence of others, to educate the public about the importance of access to courts that are free of bias and undue influence, and to protect the American right of trial by jury.

As President, LaBarron intends to further the NTLA’s goal of promoting excellence and diversity in the legal profession through advocacy training, networking and education of trial lawyers. He will utilize the organization’s wealth of resources to support this mission, sharing his knowledge and experience through educational programs.

LaBarron joined Beasley Allen in 1995 and soon became the first African American to make partner at a major law firm in Montgomery, Alabama. LaBarron has been affiliated with numerous professional associations and currently serves as Chairman of the Montgomery Area Chamber of Commerce. He is also the Immediate Past President of the National Black Lawyers Top 100. LaBarron is the recipient of numerous accolades, including the Chad Stewart Award, the Marquis Who’s Who in America, and Lawdragon 500 Leading Lawyers in America. LaBarron has also been recognized by the Montgomery Advertiser as one of the “People to Watch in 2023.”

Beasley Allen Lawyers Named 2022 Midsouth Super Lawyers And Rising Stars

Super Lawyers rating service for the 2022 Midsouth Region has named 11 Beasley Allen lawyers to its 2022 Super Lawyers list and 14 lawyers to its “Rising Stars” list. The Midsouth Region includes Alabama, Arkansas, Mississippi and Tennessee.

The following lawyers were selected to the prestigious 2022 Super Lawyers list late last year: Greg Allen, Ben Baker, Andy Birchfield, Mike Crow, Kendall Dunson, Rhon Jones, Ben Locklar, Dee Miles, Mary Leah Miller and Cole Portis. This writer was also named a Super Lawyer for the 15^th straight year.

Here are some of the recent accomplishments of those lawyers recognized.

Greg Allen led the trial team that secured a very good settlement on behalf of David Welch and his four children for the death of his wife and the children’s mother, Kimberleigh Welch. Mrs. Welch was the only one on board the school bus she was driving in the course of her employment at the time of a fatal crash. The case involved defendants IC Bus and Navistar.

Ben Baker helped secure a $37 million settlement for his injured client against a tire manufacturer and distributor for its role in a heavy truck accident caused by a tire tread/belt separation.

Andy Birchfield leads the charge for personal injury clients against social media giants like Meta and e-cigarette manufacturer JUUL as the firm’s Mass Torts Section Head.

Mike Crow helped obtain a $700,000 jury verdict for a mother of five involved in an Autauga County, Alabama, motor vehicle wreck on I-65.

Kendall Dunson helped secure a $4.25 million verdict, subject to 49% apportionment, for the daughter of a man who was crushed to death by an M6 Avalanche street sweeper.

Rhon Jones represents the States of Alabama and Georgia in their opioid cases. He has been part of the litigation teams helping settle claims on the states’ behalf for almost a billion dollars. The work on the opioid cases is benefitting the states and their local governments. Rhon has resolved substantial claims for water systems that encountered problems with chemical contamination. He also oversees the firm’s Roundup, paraquat and Camp Lejeune litigation as head of Beasley Allen’s Toxic Torts Section.

Ben Locklar secured a $3 million settlement for a client injured in a trucking accident. Ben currently represents a client injured on the job in a Tennessee tobacco plant and the families of children exposed to E. coli bacteria at an Ashland, Alabama, McDonald’s restaurant.

Dee Miles heads our Consumer Fraud & Commercial Litigation Section. Last fall, Dee was part of the team that secured a $100.2 million class action verdict against General Motors for about 37,000 consumers. More recently, Dee was part of the litigation team that secured a $287 million nationwide class action settlement involving Toyota and Denso. This team represented 6.5 million class members in their claims over a defective Toyota fuel pump.

Mary Leah Miller has handled numerous automotive defect cases on behalf of those seriously injured and families of those killed. Mary Leah was a member of a trial team that secured a settlement on behalf of a family of a child seriously injured as a result of a defective child booster seat.

Cole Portis, Beasley Allen’s Personal Injury & Product Liability Section Head, helped resolve 15 cases for more than $2,000,000 in 2022. The cases involved 18-wheeler wrecks, automotive product liability claims and third-party, on-the-job accidents.

Super Lawyers also named 14 Beasley Allen lawyers 2022 “Rising Stars.” “Rising Stars” must be 40 or younger or have practiced law for 10 years or less. Evan Allen, Ryan Beattie, Tiffany Birley, Jenna Fulk, Leon Hampton, Ali Hawthorne, Tyner Helms, Warner Hornsby, Gavin King, Aigner Kolom, Ryan Kral, Stephanie Monplaisir, Will Sutton and Joseph VanZandt made the list.

FAVORITE BIBLE VERSES

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

Mary Cam Raybon

Mary Cam Raybon offers three of her favorite verses.

No one should seek their own good, but the good of others.

1 Corinthians 10:24

Greater love has no one than this, that someone lay down his life for his friends.

John 15:13

Therefore do not be anxious about tomorrow, for tomorrow will be anxious for itself. Sufficient is the day for its own trouble.

Matthew 6:34

David Diab

David Diab says he has several favorite Bible verses and the one that impacts him the most on any given day depends on his mood and the climate of the world. One verse he often thinks of reminds him that we cannot be satisfied by measuring our comfort based on our possessions. He says, “Although money and material possessions may take on an important role in my life, they should never obtain the level of love. So much of our lives are driven by the comfort that money can give to us and our families, yet we should not allow ourselves to fall in love with money, making it the most important thing, or else we are doomed to never be satisfied by the comfort that it brings. I imagine the princess and the pea on 100 of the finest mattresses, still uncomfortable from a solitary pea.

Whoever loves money never has enough; whoever loves wealth is never satisfied with their income. This too is meaningless.

Ecclesiastes 5:10

David says, “there are several great verses about the new covenant that are all so poignant in today’s climate. He really likes 2 Corinthians 3:6 and Hebrews 9:12. He says:

I know there are contrary verses that some people believe reconcile Jesus’s new covenant with the canons of the old testament, but I love these two verses and others that seem to almost poke fun at the ancient law of Leviticus which required strict adherence to how and when blood and grain sacrifices were made and which behaviors were punishable by death. While Jesus told the disciples in the Sermon on the Mount that He was not abolishing the law, there are clearly contradictions between the teaching of Jesus and the ancient canons like those in Leviticus. Contradictions that the Romans and Pharisees saw no doubt as part of the justification for crucifixion.

David continues by saying:

I think the new covenant is as important today as it has ever been as we see false prophets claiming every word in the Bible must be followed to the letter when even Jesus Himself seemed to teach otherwise. I realize there are plenty of other verses that people use to justify their beliefs, but in a more and more divisive world where people are looking to justify evils with ancient canon, the simplest teaching of the new covenant should guide us toward love and tolerance instead.

Who has made us sufficient to be ministers of a new covenant, not of the letter but of the Spirit. For the letter kills, but the Spirit gives life.

2 Corinthians 3:6

He did not enter by means of the blood of goats and calves; but he entered the Most Holy Place once for all by his own blood, thus obtaining eternal redemption.

Hebrews 9:12

Cheryl Easterwood

Cheryl Easterwood says her favorite verse means that she is never alone; God is with her every moment through everything life brings.

I can do all things through Christ who strengthens me.

Philippians 4:13

Cheryl says another favorite verse reminds her to have faith in the things she doesn’t understand or have the answers to.

Trust in the LORD with all thine heart; and lean not unto thine own understanding

Proverbs 3:5

Jessica Burdick

Jessica Burdick says that Psalm 91 has been her mantra through many difficulties in life. She says, “over and over again, God has proven to me that He is my help and that He always provides.”

Jessica says the Gospel of Luke reminds us that we are here to praise God. She says, “When all else fails, and you can’t find, or you don’t know your way, you can stop and praise Him.”

 “I tell you,” [Jesus] replied, “if they keep quiet, the stones will cry out.”

Luke 19:40

Jessica also says, “The thought of God rejoicing over me makes me smile. He made me on purpose and with a purpose, and He does not regret that,” according to another of her favorite Bible verses. This one is found in Zephaniah.

The Lord your God is with you, the Mighty Warrior who saves. He will take great delight in you; in his love he will no longer rebuke you, but will rejoice over you with singing.

Zephaniah 3:17

Brandey Fulmer

Brandey Fulmer says she is encouraged, knowing that God’s timing is absolute and there is a time for everything. She says, “He is never late. He is above time and beyond time. Yet to our understanding, He is always right on time. Whatever we put forth to Him will be answered in His timing – not ours.” She savors this promise found in Ecclesiastes.

There is a time for everything and a season for every activity under the heavens….

Ecclesiastes 3:1

Brandey says, “The world is full of a lot of things, but it lacks love and mercy. This verse resonates with the mission set out by God for me to do, but it also gives me a command to always walk with God and be humble with that.”

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

Micah 6:8

Brandey adds that a favorite verse in Isaiah “marvelously captures the power of God’s grace, and His longing for reconciliation with us despite all the guilt and shame we carry. It is this unreserved love that convicts my heart to surrender.”

I have swept away your offenses like a cloud, your sins like the morning mist. Return to me, for I have redeemed you.

Isaiah 44:22

CLOSING OBSERVATIONS

The Aduhelm Investigation: The FDA’s Controversial Approval of Biogen, Inc.’s Alzheimer’s Drug – Part 1

The following article is Part 1 of a 3-part series regarding the FDA’s review and approval of Aduhelm, a controversial Alzheimer’s drug brought to market by Biogen, Inc.

The downfall of Aduhelm, the first new treatment for Alzheimer’s disease in two decades, can largely be described by three words that all too often describe pharmaceutical drug companies: profits over safety.

More than six million people in the United States live with Alzheimer’s disease, a number projected to increase to as many as fourteen million people by 2060. Seeking to capitalize on this, Biogen, Inc. developed Aduhelm, administered by infusion, as part of its Alzheimer’s disease portfolio. In June 2021, Biogen, Inc. was granted accelerated approval from the Food and Drug Administration (FDA) to market and sell aducanumab under the trade name Aduhelm. The initial indication for use on Aduhelm’s label was extremely broad – “for the treatment of Alzheimer’s disease.”

Despite concerns about the drug’s efficacy, safety, and affordability, Biogen had aggressive launch plans and brought Aduhelm to market for $56,000 per year. Following the launch of Aduhelm, the research and medical communities immediately responded with furor, concern, and confusion. Soon after, a congressional investigation was launched.

After an 18-month investigation conducted jointly by the Committees on Oversight and Reform and Energy and Commerce (the Committees), a report was published in December 2022 to provide policymakers, relevant agencies, and the public with an understanding of Aduhelm’s FDA approval process and Biogen’s pricing of Aduhelm.

Over the course of the investigation, the Committees’ staff held multiple briefings with the FDA and reviewed more than 500,000 pages of documents and information from the FDA and Biogen, including internal Biogen strategy documents, Biogen’s Board of Directors materials and launch plans, communications among and between senior Biogen and FDA leaders, and internal FDA correspondence and materials.

Documents obtained by the Committees show Biogen viewed Aduhelm as an unprecedented financial opportunity – estimating a potential peak revenue of $18 billion per year – and developed aggressive launch and marketing plans to maximize revenue throughout the drug’s lifecycle. Internal company documents show that Biogen set Aduhelm’s price without considering the anticipated financial impact on patients and the Medicare program.

Presentations prepared for Biogen’s Board of Directors as early as December 2019 emphasized the company’s goal of breaking industry pricing and revenue records with the launch of Aduhelm. One presentation prepared for the Board in December 2019 stated that Biogen’s goal was to have a “[b]lockbuster by 2021.” 

Biogen’s business had been shrinking for years, and it looked to Aduhelm as a financial lifeline whose success would set in motion a new era of record growth and profits. “Our top and bottom line will quickly rebound with the launch of” Aduhelm, read a 2020 presentation by a Biogen senior executive to the Board. A successful launch, it added, would represent a “change of magnitude for Biogen and humanity.”

More than a year before Aduhelm’s June 2021 approval, Biogen surveyed insurance companies and doctors about how much the Alzheimer’s treatment should cost. Biogen hired third-party consultants to survey 25 insurance companies and about 120 neurologists, testing their reactions to a range of potential prices for Aduhelm. The final report of the consultants’ findings presented a menu of pricing choices for Aduhelm.

To maximize the number of patients who could get the drug, it should cost between $15,000 and $20,000. Maximizing the value of Aduhelm “would favor not pushing the limit” on pricing, according to the presentation, which would mean charging $30,000 or less. “Limiting both payer and physician pushback” would require setting a price of less than $40,000, but “revenue maximization” would favor charging more than $40,000. According to the findings, 65% of insurers and 70% of neurologists considered $40,000 per year to be “overpriced.”

In June 2021, Biogen brought Aduhelm to market with a list price of $56,000 per year for an average-weight person. Internal company documents show that Biogen was aware the financial burden of its high price for Aduhelm would fall primarily on Medicare. Documents show that Biogen projected around 85% of potential patients would be Medicare beneficiaries. Even if just 250,000 people were to receive the drug, it would cost Medicare more than $12 billion a year, which would be 26% of the program’s annual budget for medicines administered in a physician’s office and nearly five times as much as the next costliest drug. If Aduhelm were to reach its full potential of treating 1.4 million patients in the United States, outside projections estimated that it could cost the government upward of $70 billion, more than the budgets of NASA and the State Department combined.

Internal company documents also show that Biogen knew from early pricing models that many Medicare patients would face challenges affording Aduhelm. Analyses conducted by Biogen estimated that some Medicare patients could face out-of-pocket costs for Aduhelm of up to 20 percent of their income. A June 2020 presentation noted that Medicare beneficiaries who do not have supplemental coverage, which Biogen estimated 11% of Aduhelm patients, would be required to pay a 20% coinsurance on Aduhelm.

Information compiled by Biogen’s federal public policy and government affairs team on Aduhelm affordability cautioned, “[o]ver 65 population will face challenges with ability to pay, creating need for appropriate assistance programs.” The team identified facts that make Medicare patients at risk for Alzheimer’s disease particularly vulnerable: (1) two-thirds have some out-of-pocket exposure; (2) more than 50% have income of less than $50,000 a year; and (3) 35% have assets less than $5,000.

Over the next several months, the “public scrutiny” that Biogen once feared decimated demand for Aduhelm and severely damaged the company’s reputation. Private insurers balked at paying for the drug, forcing Biogen to cut its price nearly in half by December 2021. A few months later, the Centers for Medicare and Medicaid Services implemented a policy that would all but forbid reimbursement for Aduhelm. By the end of 2021, Aduhelm, the drug that was supposed to double Biogen’s revenue, had brought in just $3 million. In early 2022, Biogen effectively ceased marketing Aduhelm, declaring defeat on the pioneering drug meant to transform its business.

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

OUR MONTHLY REMINDERS

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

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Bryan Stevenson, 2019

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

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

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

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

PARTING WORDS

The Life And Legacy Of Dr. Martin Luther King, Jr.

The Rev. Martin Luther King, Jr., had been pastor of Dexter Avenue Baptist Church in Montgomery, Alabama, for barely a year when the city’s small group of civil rights activists decided to take on racial segregation in Montgomery’s public bus system. Spurred by an incident on Dec. 1, 1955, during which Rosa Parks, a Black woman, refused to give up her bus seat to a white rider and, as a result, was arrested for violating the city’s segregation law.

Those advocates formed the Montgomery Improvement Association and chose Dr. King to lead them in the Montgomery Bus Boycott. Dr. King was young, well-spoken, and more than capable of linking Black aspirations for equality to widely shared democratic and Christian values and ideas. During his first speech as President of the group, Dr. King declared:

We have no alternative but to protest. For many years, we have shown an amazing patience. We have sometimes given our white brothers the feeling that we liked the way we were being treated. But we come here tonight to be saved from that patience that makes us patient with anything less than freedom and justice.

At that moment, the country was introduced to a fresh voice with skillful rhetoric. An inspiring personality at a dynamic time during the civil rights struggle.

Dr. King inspired African Americans to believe their case was just and consistent with traditional American egalitarian values. He appealed to the consciences of all Americans and built support for reforming civil rights. His strategy of calling for nonviolent protest and cooperation among people of different races enabled him to fight effectively against the Southern system that legalized racial segregation and to overcome racism and discrimination.

From that first speech during the Montgomery Bus Boycott until his assassination on April 4, 1968, Dr. King delivered some of the 20th century’s most iconic speeches, including the “I Have a Dream” speech and “Letter from a Birmingham Jail.”

As we celebrate Black History Month, we honor Dr. King’s life and legacy. We are reminded that one person’s vision can spark hope and inspire others to build on past successes.

Sources: The King Center, NAACP and Biography.com