The Jere Beasley Report September 2022

CAPITOL OBSERVATIONS

Navan Ward Represents Firm During Camp Lejeune Justice Act Presidential Signing

Navan Ward was honored to represent the firm at the White House last month, and he witnessed President Biden sign the Honoring our Pact Act. The Act included the Camp Lejeune Justice Act, a law that allows people who suffered injuries from exposure to contaminated water at U.S. Marine Corps Base Camp from 1953 to 1987 to bring a claim within two years of its enactment.

As the Immediate Past President of the American Association for Justice (AAJ), Navan worked with the group and others to ensure the bill was passed and enacted. The Honoring our PACT Act was one of several pieces of legislation Navan helped advocate for in his capacity as President of the AAJ. Navan served as AAJ’s 76th President from July 2021 until his term ended earlier this summer in June. Following the President’s signing of the Act, Linda Lipsen, Chief Executive Officer of AAJ, told the group’s members:

We celebrate the passage of this important bill to provide justice for veterans and their families, and we also thank all the veterans who have fought so hard for this legislation.

Throughout the summer, Beasley Allen’s Toxic Torts lawyers, led by Rhon Jones, have been investigating claims related to the Camp Lejeune water contamination and coordinating resources to handle the countless claims it anticipates receiving in the most effective way. We provide more details about this work in a later portion of this Report.

AAJ has created the Camp Lejeune Water Contamination Litigation Group to help members learn about investigating claims related to water contamination at Camp Lejeune and coordinate litigation strategy. It is one of more than 100 active litigation groups that AAJ has formed for the benefit of its members.

Sources: American Association for Justice

UPDATE ON THE CAMP LEJEUNE LITIGATION

Camp Lejeune Act Will Bring Justice For Thousands

The U.S. Senate has passed the Sergeant First Class Heath Robinson Honoring our Promise To Address Comprehensive Toxics (PACT) Act of 2022. The Camp Lejeune Justice Act of 2022 is an important part of the PACT Act. President Biden signed the Act into law on Wednesday, August 10, 2022.

Beasley Allen lawyers in our Toxic Torts Section are now filing claims for injuries caused by toxic water exposure at North Carolina Marine Corps Base Camp Lejeune. Over one million people were exposed to the contaminated water at Camp Lejeune between August 1, 1953, and December 31, 1987. The Act applies to military personnel, their families, and civilians exposed to the toxic water supply for at least 30 days between 1953-1987. 

Exposure to the toxic water at Camp Lejeune has caused multiple forms of cancer, neurological diseases, miscarriage, and death, among other injuries. The requirements for recovery under the Act include:

The water was contaminated with volatile organic compounds, degreasers, chemicals used on heavy machinery, and more than 70 other highly toxic substances. It was used for drinking, cooking, and bathing in enlisted family housing, barracks, schools, base hospitals, recreational areas, and administrative offices. The government knew about this contamination but took no action. It ignored experts’ warnings about contamination, site inspections and reports, and comments from military service members and their families that the water tasted like chemicals. Beasley Allen lawyer Trisha Green had this to say:

It’s been a long road toward justice, and now we have to spread the word about this opportunity. The U.S. government has finally acknowledged the damage it caused to those at Camp Lejeune and MCAS New River, nearly seven decades after the contamination began. Now, victims have only a short time to bring claims. Unfortunately, many victims have died, and those still alive are largely unaware of this Act.

Common injuries include:

Bladder Cancer	Breast Cancer	Cervical Cancer
Esophageal Cancer	Kidney Cancer	Liver Cancer
Lung Cancer	Ovarian Cancer	Stomach Cancer
Birth Defects and Birth Injuries	Miscarriage	Multiple Myeloma and other Myelodysplastic Syndromes
Adult Leukemia	Aplastic Anemia and other Bone Marrow Conditions	Parkinson’s Disease
Renal Toxicity	Neurobehavioral Effects (such as Parkinson’s disease or Amyotrophic Lateral Sclerosis (ALS))	Sadly, death can be the end result of each of these injuries.

Claimants have only two years from either Aug. 10, 2022 (the date President Biden signed the Act) or the date their administrative claim is denied, whichever is later. With this extremely limited time frame, we encourage lawyers to act now on behalf of their affected clients.   The administrative claims process for the Camp Lejeune Justice Act is brand new, and our Toxic Torts lawyers have been diligently working to determine the best way to obtain a recovery for our clients. 

You can contact a lawyer on the Camp Lejeune Litigation Team at Beasley Allen to help evaluate your Camp Lejeune toxic water exposure cases. If you have any questions about the Act, contact Julia Merritt, a team member.

Camp Lejeune Litigation Team

The Camp Lejeune Litigation Team consists of Rhon Jones (Section Head), Julia Merritt, Matt Pettit and Trisha Green. Additional lawyers will be added to the team as needed. If you have any questions or need to discuss a potential claim, contact a team member.

THE FACEBOOK LITIGATION

The Meta Litigation Update

Led by Joseph VanZandt, a team of Beasley Allen lawyers (collectively the Meta Litigation Team) represents individuals suing Meta Platforms, Inc., Instagram, LLC, and other subsidiaries for their creation and dissemination to the public of the Facebook and Instagram platforms, without adequate protections or warnings, which has caused hundreds, if not thousands, of adolescents to commit suicide, experience frequent periods of suicidal ideation, engage in various forms of self-harm, develop an eating disorder(s), suffer from severe depression and anxiety, among other harms, which can cause or contribute to additional diseases.

To date, our Meta Litigation Team has filed 19 lawsuits in federal courts across the country – in Alabama, Colorado, Texas, Florida, Pennsylvania, Kentucky, Missouri, Delaware, Illinois, California, Tennessee, and Georgia. Along with filings by other law firms, at least 30 lawsuits are filed in 17 different federal courts throughout the country. This litigation effort aims to redress harms that Frances Haugen, a former Facebook employee turned whistleblower, detailed before Congress on October 5, 2021.                

To advance the goal of litigating these cases as efficiently and expeditiously as possible, on Aug. 1, 2022, the Meta Litigation Team filed a petition on behalf of plaintiff Briana Murden—who is the plaintiff in Murden v. Meta Platforms, Inc., et al., No. 3:22-cv-01511 (S.D. Ill.)—and 27 other plaintiffs asking the United States Judicial Panel on Multidistrict Litigation (“JPML”) to consolidate these cases for pretrial proceedings and transfer these actions to Judge Sara L. Ellis, U.S. District Judge, Northern District of Illinois, or, alternatively, the Western District of Missouri before Judge Stephen R. Bough. See Mot. for Transfer and Coordination or Consolidation under 28 U.S.C. § 1407, In re Social Media Adolescent Addiction/Personal Injury Product Liability Litigation, MDL No. 3047 (J.P.M.L.)   

Meta Litigation Team

If you have a potential claim or need more information on our Meta litigation, contact Andy Birchfield or any of the lawyers on the Meta Litigation Team. Members of the team are Andy Birchfield, Joseph VanZandt, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding.

AN UPDATE ON MOTOR VEHICLE LITIGATION

$45 Million Settlement For 9-Year-Old Paralyzed After Crash With Jeep Raised To Illegal Height

Penn Law and Beasley Allen lawyers have secured a more than $45 million settlement on behalf of a 9-year-old boy crushed in an automobile vehicle crash and left paralyzed. The lawyers uncovered evidence that an illegal lift kit installed in a Jeep Wrangler Unlimited contributed to the child’s injuries, including paraplegia. Beasley Allen lawyer Chris Glover had this to say:

The lift kit was designed so that in a foreseeable crash, the lifted vehicle would impact a passenger vehicle at a higher area than what is compatible for crashworthiness structures to be effective. This severely amplified the potential for serious injury and/or death to occupants in a crash that the defendants should have known was reasonably foreseeable.

On Jan. 14, 2019, in Coweta County, Georgia, plaintiff Ann Marie Brown was stopped in westbound traffic on Georgia Highway 16. Ms. Brown was driving a 2001 Honda Civic, and Dominick Perez, a minor, was in the rear passenger’s seat. Suddenly, defendant Gregory Newman failed to slow the Jeep he was driving in time to avoid a collision with the plaintiffs’ vehicle and struck them from the rear. Newman’s 2012 Jeep Wrangler Unlimited was fitted with an aftermarket lift kit, raising it to an illegal height.

The rear of the Honda Civic was crushed significantly due to the difference in the vehicles’ heights. The passenger compartment survival space crumpled, causing Perez’s life-altering injuries. 

The 4-inch lift kit manufactured, assembled, tested, and sold by defendant Pro Comp increased the Jeep’s height. Lift kits over two inches are illegal in Georgia. The lift kit was pre-installed in the Jeep when Newman purchased it from a local dealership.

All cars sold in the U.S. are required to comply with the Enhanced Vehicle to Vehicle Crash Compatibility Agreement, which addresses bumper compatibility between vehicles by setting bumper heights at a predesignated level. This helps assure that the crashworthiness structures of vehicles line up in the event of a collision. Bumpers are designed to absorb energy from the impact of a collision and mitigate damage. These compatibility standards help prevent bumper override conditions like the one that paralyzed Perez.

The key to this case was persistence on behalf of the lawyers and staff involved. Pro Comp denied manufacturing and selling the lift kit. Instead, the company claimed it was likely a “Chinese knockoff.” Through substantial discovery and, as Chris says, “Frankly, getting our hands dirty,” our lawyers found out who actually made this lift kit. Chris spent hours underneath the Jeep until he found a part with Pro Comp’s serial number. He says:

That’s when the case began to turn in our client’s favor. Dominick needed our help, and I knew we had to do whatever it took to help him. I’m proud our firms could come together to do just that.

The lawyers reached a $36 million settlement with Pro Comp. The plaintiff reached prior settlements with other defendants totaling $9 million. Penn Law lawyer Darren Penn explained that the case presented substantial obstacles.   Darren observed:

There were five separate insurance companies that had to come together to agree to settle this case. They all had their own issues that had to be resolved. I’m proud of the work we did from the beginning to the end, helping this deserving young man. Despite the devastating injuries he suffered, Dominick continues to amaze me with his positive outlook on life. But his life was changed forever by this tragic event. I’m most thankful we were able to help secure the means for him to have the best possible care for the rest of his life.

The case continues against Honda for the design of the Honda Civic that Dominick Perez’s family trusted to protect him in the event of a crash. There are numerous lifted vehicles on the road and higher vehicles. It isn’t reasonable to only trust your bumper to protect the occupants of your car. Chris says:

The fronts of vehicles utilize upper frame rails and high-strength steel above the bumpers to protect occupants in override conditions. It is just as likely that the rear of a vehicle will experience an override impact. Car manufacturers have a responsibility to protect occupants in all manner of foreseeable impacts. This crash was only an 18-mph Delta V. The rear of the vehicle should have been better protected, and Dominick should have walked away unhurt.

The plaintiffs were represented by Darren Penn and James I. Seifter from Penn Law, along with Beasley Allen lawyers Chris Glover and Alyssa Baskam.

Ford Hit With $1.7 Billion In Punitive Damages In Contentious Rollover Case

A Gwinnett County, Georgia, jury returned a $1.7 billion punitive damages award last month against Ford Motor Company in a case involving a South Georgia couple who were crushed to death when the roof of their Ford pickup flattened during a rollover accident. The punitive damages award is in addition to a $24 million compensatory damages verdict the jury awarded in the first phase of the trial the day before. The jury determined Ford acted “willfully and wantonly” when designing the defective roof.

The lawsuit was filed by Kim and Adam Hill, sons of Melvin and Voncile Hill, the couple who perished in the accident. In 2014, the elder Hills were driving to Americus to pick up a tractor part when the tire of their Ford F-250 blew out. The pickup rolled over, and the roof flattened, crushing the couple to death. During the trial, the plaintiffs submitted evidence of nearly 80 similar rollover wrecks involving truck roofs being crushed that injured or killed motorists.

Kim and Adam Hill filed lawsuits against Pep Boys for putting the wrong load range tire on their parents’ truck and Ford for skimping on the steel it used to manufacture the truck and knowingly selling pickups with roofs that were not safe. The younger Hills settled with Pep Boys, but the Ford case would become contentious and drag on for several more years.

In 2018, during the original trial against Ford, Gwinnett County State Court Judge Shawn Bratton issued sanctions against Ford for repeatedly violating his orders. Ultimately, Judge Bratton ordered a mistrial after determining that “in the interest of justice, this case can no longer proceed.” 

During a series of appeals, Ford tried its best to reverse sanctions from the first trial but to no avail. The retrial was again delayed due to COVID-19. Four years later, the parties returned to Gwinnett County State Court with several new lawyers and a new judge. In July, Judge Bratton “handed the case off to Senior Judge Joseph Iannazzone,” Law.com reported.

The $24 million compensatory damages verdict includes $3.5 million for Mrs. Hill’s pain and suffering and $4.5 million for Mr. Hill’s pain and suffering. The jury also awarded $6 million for the value of Mr. Hill’s life and $10 million for the value of Mrs. Hill’s life. The award also includes $8,000 each for funeral expenses and $22,500 for the truck’s value.

The plaintiffs are represented by Jim Butler and Dan Philyaw of Butler Prather in Atlanta, Michael Terry and Laurie Taylor of Bondurant Mixson & Elmore in Atlanta and Gerald Davidson Jr. of Mahaffey Pickens Tucker in Lawrenceville, Georgia. The case is Hill v. Ford, No. 16 C 04179-S2.

Source: Law.com

Recalls Affecting Ford, Jeep, Toyota, Nissan, And BMW Models

Several auto manufacturers are issuing recalls for thousands of models of vehicles because of the danger they pose to people. The National Highway Traffic Safety Administration (NHTSA) urges people not to drive certain recalled cars. Contact your dealership immediately if you own any affected models, and if your model has a problem, the dealer will fix it for free. The latest vehicle recalls are described below.

Audi and Volkswagen

More than 1,200 models of 2016 Audi and Volkswagen vehicles are subject to a recall. The vehicles have a problem with the front passenger airbag that may explode or deploy improperly during a crash. They include:

• Audi TT Roadster
• TT Coupe
• A3 Sedan
• S3 Sedan
• R8 Coupe
• A3 Etron
• A3 Cabriolet
• Volkswagen Sportwagen
• Golf R
• Golf GTI
• E Golf
• Golf A7

A separate recall has been issued for nearly 50,000 2019-2021 Audi Q8 and 2020-2021 Audi Q7 vehicles over fuel pump issues. Failure with the fuel pump can cause an engine to stall, increasing the risk of a crash, the recall explains. For more information on this recall, visit the NHTSA website or contact Audi customer service at 1-800–253-2834. Certain 2022 Audi S3 and A3 sedans are also being recalled by Volkswagen. The problem is with the seat belt tensioner on the driver and front passenger seats. The company says that nearly 3,000 vehicles have defective components that can fail to restrain people during a crash. For more information on this recall, visit the NHTSA website or contact Audi customer service at 1-800-253-2834.

BMW

According to BMW, some of its vehicles could have a battery with internal damage. This problem could lead to an electrical short-circuit, which increases fire risk. The impacted vehicles include certain 2022-2023 iX xDrive50, iX M60, 2022 i4 eDrive40, and i4 M50 models. The recall notice warns, “Owners are advised not to drive or charge their vehicles, and to park outside and away from structures until the remedy is complete. Dealers will replace the high voltage battery, free of charge.” For more information on this recall, visit the NHTSA website or contact BMW customer service at 1-800-525-7417.

Ford

A defective steering wheel attachment bolt may loosen and separate from the steering column in two Ford models. The 2022 F-53 Motorhome Stripped Chassis and F-59 Commercial Stripped Chassis have been affected by the defective steering wheel attachment bolt. For more information on this recall, visit the NHTSA website or contact Ford customer service at 1-866-436-7332. Ford’s number for this recall is 22S50.

Jeep

A tail light side marker assembly on certain 2022 Jeep Grand Cherokee and 20221-2022 Jeep Cherokee L vehicles has prompted a recall. The recall notice states, “A tail light side marker that does not illuminate can reduce vehicle visibility to other drivers, increasing the risk of a crash.” As a result, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard number 108, “Lamp, Reflective Devices, and Associated Equipment.” For more information on this recall, visitthe NHTSA website or contact FCA US, LLC customer service at 1-800-853-1403. FCA US, LLC’s number for this recall is Z50.

Nissan

A problem with the infotainment head unit has led to the recall of more than 10,000. The recall notice from the NHTSA explains that when the Sirius XM subscription is set to “Not Subscribed,” it may cause the infotainment head unit to reboot. This can cause the rearview camera not to operate, increasing the risk of a crash. The recall involves certain 2021-2022 Rogue, 2022 Frontier, Pathfinder, and Titan rental vehicles. For more information, contact Nissan’s customer service at 1-800-867-7669. Nissan’s number for this recall is R22A5 PC901 PC902.

Toyota

Toyota has two separate recalls. In one recall, approximately 60,000 2022 Rav4, Rav4 Hybrid, and Rav4 Prime vehicles may have incorrectly assembled front passenger seats, which could lead to a faulty detection in the Occupant Classification System (OCS) sensor. The NHTSA explains that in the other Toyota recall, one or more of the individual welds in the upper child seat anchors may be insufficient in certain 2022-2023 Tacoma vehicles. This makes the vehicles incompatible with Federal Motor Vehicle Safety Standard number 225. For more information, contact Toyota’s customer service at 1-800-331-4331. Toyota’s number for this recall is 22TB09/ 22TA09.

Source: Charlie Tripp, Komando.com

NHTSA Opens Investigation Into Engine Failures In Some 2021 Ford Bronco Models

Last year, after a 25-year gap, Ford Motor Co. brought back its rugged Bronco SUV to much media fanfare. Unfortunately, the celebration was short-lived. In July, the National Highway Traffic Safety Administration (NHTSA) announced that it was opening an investigation into reports of “catastrophic engine failures” in 2021 Ford Broncos powered by the 2.7-liter EcoBoost V6. Ford Broncos, with the smaller 2.3-liter EcoBoost I4 engines, are unaffected.

NHTSA has received 26 complaints from Bronco owners that their vehicles experienced “a loss of motor power at highway speeds without restart.” No accidents, injuries, or deaths related to the issue were reported.

NHTSA considered launching the probe in May after receiving initial consumer complaints. During a meeting with Ford in June, the automaker told the federal agency that the issue was due to the valve “keepers” not holding the retainer in place. This allows the valve spring to detach from the valve resulting in interference between the valve and piston. This issue can result in the engine locking up, the company says. An estimated 25,538 vehicles could be affected. No recalls have been announced to date.

NHTSA says it decided to launch the investigation in July to “assess the scope, frequency and potential safety-related consequences of the alleged defect.”

Ford said it would “cooperate with the NHTSA as we always do.” Previously, the company said that the five-year, 60,000-mile powertrain warranty on its 2021 Broncos covers engine failure.

Source: Law360, Bloomberg, CNET

A Third Desperate Attempt By GM To Disqualify Class Representative In Faulty Engine Suit

General Motors LLC (GM) has asked for a third time for California federal judge to dismiss claims from the California class representative in a suit alleging GM sold vehicles with defective engines that consumed too much oil. The automakers argue that the class representative can’t show his vehicle ever had a problem. GM took aim at claims by class representative Garet Tarvin, who was added as an intervenor plaintiff to a class suit led by another class representative Manuel Fernandez after the prior California representative sold his vehicle and thus was no longer part of the class, which is limited to current owners and lessees of various GM-made vehicles from model years 2011 to 2014.

GM claimed that Tarvin’s vehicle, a 2012 GMC Sierra he bought new in May of that year — has never needed repairs in the 10 years that he has driven it. While he has alleged that he believed his vehicle was consuming oil in 2014, an oil consumption test in 2021 showed that it was consuming oil at a rate within normal parameters. However, GM ignores the fact that the “oil consumption test” unequivocally revealed that his vehicle was consuming oil at a rate of one quart for every 2000 miles. Not normal for any passenger vehicle. For example, Mr. Tarvin’s Honda Odyssey suffers no measurable oil consumption.

The suit against the Michigan-based automaker dates back to December 2016, when the vehicle owners brought a putative class action alleging that the Generation IV Vortec 5300 LC9 engine contained internal defects that causes the engine to consume high amounts of oil and could lead to safety risks. The plaintiff class members, represented by our firm and two others, allege that the primary cause of the defect is the piston rings installed by GM.

In January, U.S. District Judge Edward M. Chen ruled that GM could limit, but not entirely exclude, expert testimony from a professor with experience in aerospace engineering proffered by the proposed class. In particular, Judge Chen ruled that Werner J.A. Dahm could not testify that piston rings are the root cause of the alleged defect or about safety issues, mainly because such evidence was already contained in the documents produced by GM that will be presented to a jury. The trial is set to begin in San Francisco Federal Court on Sept. 19.

Plaintiffs and the proposed classes are represented by Dee Miles, Clay Barnett and Mitch Williams of Beasley Allen Crow Methvin Portis & Miles PC, John E. Tangren, Adam J. Levitt and Daniel R. Ferri of DiCello Levitt Gutzler and Jennie Lee Anderson and Lori E. Andrus of Andrus Anderson LLP.

The case is Raul Siqueiros et al. v. General Motors LLC, case number 3:16-cv-07244, in the U.S. District Court for the Northern District of California.

Source: Law360.com

BIG TRUCK ACCIDENT LITIGATION

Faulty Maintenance Accounts For Numerous Truck Wrecks

On-the-road accidents happen quite often because commercial vehicles’ parts and systems experience mechanical failure. Motor carriers are required by federal law to thoroughly inspect, maintain and repair all motor vehicles they control. These regulations also require that the truck and its parts operate safely. A motor carrier can be held responsible for any injury caused by its failure to properly inspect, maintain or repair any equipment on vehicles in its control.

In 2010, 13.5% of the vehicles inspected were placed out of service because of bad brakes. Those statistics have not improved, and we routinely see vehicles put into service with numerous maintenance violations. It should not be assumed that a truck on the highway is well maintained because there is a good chance it is not. 

Carriers are required to keep records on each vehicle for one year in the place where the vehicle is “housed or maintained” and for six months after the carrier no longer controls the vehicle. Records are to contain the below information:

• “An identification of the vehicle including company number, if so marked, make, serial number, year, and tire size. In addition, if the motor carrier does not own the motor vehicle, the record shall identify the name of the person furnishing the vehicle;
• A means to indicate the nature and due date of the various inspection and maintenance operations to be performed;
• A record of inspection, repairs, and maintenance indicating their date and nature; and
• A record of tests conducted on pushout windows, emergency doors, and emergency door marking lights on buses.”

Carriers are required to ensure proper lubrication of each vehicle and ensure the vehicles have no oil or grease leaks.

Given the above requirements, a carrier cannot allow a vehicle to be driven if the vehicle’s condition is likely to result in an accident or breakdown. If the vehicle’s condition is found unsafe while on the road (unsafe enough to remain on the road would endanger the public), the driver must drive it only far enough to find a location to repair the vehicle safely. 

Beasley Allen lawyers in our Personal Injury & Product Liability Section, handle cases involving faulty maintenance on tractor trailers. If you have a question regarding this topic or any truck wreck case, contact Chris Glover in our Atlanta office.

Source: Federal Motor Carrier Safety Administration 49 CFR § 396.3

PRODUCT LIABILITY UPDATE

15-Passenger Vans: Safety Risks And Mitigation Strategies

Despite their popularity as the transportation of choice for churches, school groups, and other similar organizations, the 15-passenger van is plagued with numerous safety problems. Many of these problems stem from the fact that the vans were not originally designed to be used in the passenger transportation context.

These vehicles do not have to collide with another vehicle to roll over. In a 2009 report, the National Highway Traffic Safety Administration (NHTSA) found that 15-passenger vans carrying more than ten people were three times more likely to suffer a rollover. NHTSA noted:

These crashes have raised the question as to whether fifteen-passenger vans, especially loaded fifteen passenger [sic] vans, are unusually susceptible to rollover. Fifteen-passenger vans differ from most light truck vehicles in that they have a large payload capacity and the occupants sit fairly high up in the vehicle. Therefore, when loaded, the vehicle may have a much worse rollover propensity than when unloaded. 

The safety issues became so frequent and severe that individual states conducted studies to try and figure out what was wrong: the Tennessee General Assembly released a report in 2009 that attributed the van’s safety problems to a mixture of 1) top-heaviness, 2) susceptibility to tire failure and 3) a lack of safety features commonly found in passenger transportation vehicles.

Even though these safety issues stem from the vehicle’s design, NHTSA used a 2018 report to publish safety recommendations to the passengers and drivers of these vans to help cope with and lessen the risk of injury. Following these recommendations can help reduce the risk of rollover often associated with these vehicles. Examples of these safety recommendations include:

• van drivers should be limited to those with experience – CDL-certified drivers are ideal,
• seat belts should always be worn,
• van tires should constantly be monitored for appropriate inflation levels and other wear and tear, and
• 15-Passenger vans should never transport more than fifteen people at a time and should always be loaded from front to back to help keep weight in front of the rear axle.

Lawyers in our firm are currently handling a 15-passenger van case stemming from an accident in Gwinnett County, Georgia. There were 16 occupants in a 2002 Dodge Ram B3500 van, and all were adult members of a group home. The individuals were on their way to a program meeting. The van driver attempted to change lanes to exit the interstate when the van lost control due to its inherent instability. The vehicle then tipped over and caught on fire. Several occupants were unable to escape and subsequently burned alive. 

In addition to its inherent instability and increased likelihood of a rollover during foreseeable conditions, the subject van was equipped with rear tires that were of the incorrect load range/load index for that vehicle. Further, newly purchased tires had been placed on the front of the vehicle instead of the rear. This contributed to the vehicle being unreasonably dangerous, unstable, and more likely to roll over as more persons were carried in the van. This also interfered with the driver’s ability to maintain control of the van during normal operation.

Electronic Stability Control (ESC) is being offered for certain types of these vehicles and can help. A fix originally contemplated by Ford engineers, but rejected for cost reasons, involves placing dual rear wheels on the vehicles to increase the stability and lessen the risks associated with rear tire blowouts. However, the safest alternative is not to drive these vehicles at all. Small buses available on the market are much safer than these vans. Unfortunately, 15-passenger vans remain inherently dangerous because of the way that they are designed. Beasley Allen lawyers have successfully handled a number of cases involving 15-passenger van accidents. Contact Chris Glover in our Atlanta office for more information.

Sources: National Highway Transportation Safety Administration, TN.Gov

Mobile Office Files Lawsuit For Client Blinded By Defective Airbag

Our firm is proud to have multiple office locations throughout the southern United States to better serve our clients. Although Beasley Allen was founded in Montgomery, Alabama, in 1979, we now have offices in Atlanta and Mobile. That allows our lawyers to help clients involved in motor vehicle accidents in those areas.

With many automobile crashes, product defects have caused horrible injuries and deaths to drivers and passengers in those vehicles. Unfortunately, airbags, designed to protect occupants, have been the source of many injuries and deaths. While airbags have been the subject of many defects, one sometimes overlooked defect is an overly aggressive and improperly tethered airbag. When an airbag is excessively aggressive and improperly tethered, instead of protecting occupants, the airbag can cause horrible injuries, including brain damage, blindness and death.

 Tom Willingham, a lawyer in our Personal Injury & Product Liability Section, has recently filed a product liability claim on behalf of Calvin Patterson of Mobile, Alabama. The case involves a 2009 Honda Accord vehicle and is currently pending in Mobile County, Alabama. Tom intends to prove that Mr. Patterson was blinded when the passenger side airbag in his Honda Accord deployed in an overly aggressive manner was not properly tethered and impacted his eye, causing blindness. While the crash was relatively minor, the injury to our client’s eye was not and was caused solely by the defective airbag.

Tom is battling to bring about justice for Mr. Patterson. If you or someone you know has been in a motor vehicle accident in the Mobile area, and need help, contact Frank Woodson, who manages the Mobile office.

Tread Separations Can Cause Deadly Results

Tire failure increases the chance of a driver losing vehicle control and causing fatal accidents. Fortunately, tire failure can often be detected and prevented. To do so, it is important to know the causes and signs of tire failure.

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

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

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

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

Beasley Allen lawyers in our Personal Injury & Products Liability Section have successfully handled a number of cases involving fatal and non-fatal accidents involving tire failures. For more information or if you have any questions, contact Cole Portis or Ben Baker, lawyers in the Section. Both Cole and Ben handle tire-related litigation for our firm.

WORKPLACE LITIGATION

On-The-Job Product Liability – Amputations In The Workplace

Since Jan. 1, 2015, employers have been required to report all work-related hospitalizations, amputations and loss of an eye within 24 hours to the Occupational Safety and Health Administration (OSHA). Before this change, OSHA only required employers to report workplace fatalities and events requiring hospitalization of three or more employees. According to recent data, there are, on average, seven amputations per day in the workplace! Most amputations involve lost hands, feet, and other body parts used and relied on for everyday living.

Among other injuries in the workplace, amputations result in some of the most serious and life-altering workplace injuries. OSHA statistics reveal that food processing workers are up to three times more likely to suffer from serious injury than the average American worker. While these workers provide a necessity for many humans, their workplace environment can be one of risk and injury. Much of the food processing industry consists of workers who process chickens, cows, and pigs for human consumption. These facilities are equipped with machines designed to transport, shear, crush and cut to effectuate meat processing for restaurants, grocery stores, and eventually for enjoyment and consumption at the dinner table.

However, despite advancements in the regulation of employers, OSHA’s jurisdiction only extends to the employment arena. Its regulators focus solely on what the employer can do to minimize amputation injuries. OSHA citations following amputation injuries normally discuss lockout/tag out and training procedures for employees. Because most food processing jobs are production-based, employees are more likely to make mistakes and/or the employers are less likely to stop the process to address obvious or potentially dangerous conditions.

OSHA has commonly cited inadequate guarding on certain equipment used by employers. According to OSHA, defectively designed machines that lack adequate guarding and other safety mechanisms are primarily responsible for amputation in the workplace setting. However, OSHA has no authority over the designers, manufacturers and/or installers of machinery; instead, it is the responsibility of the employer at that point to maintain safety mechanisms and procedures.

While guarding has proved to play an effective role in protecting workers from injuries, the most effective and preventive step is for the actual designer, manufacturer and/or installer to identify and guard hazards before the machines are placed into the stream of commerce, taking the responsibility off the employer and worker. After all, it is universally recognized that designers and manufacturers are in the best position to identify and eliminate/reduce machine hazards. 

Lockout/tag out procedures and training place the responsibility to prevent injuries on human conduct, while guarding techniques do not. On the front end, properly guarded and/or eliminated hazards reduce the need for human conduct and observance of procedures, allowing the worker to focus on production rather than their protection. At Beasley Allen, our lawyers have handled thousands of amputation cases where the employee failed to follow the machine procedure that led to an injury. These lawyers have also had cases where management instructed employees to disregard procedures to maintain production numbers. When guards and other presence sensing devices and technology are used, the likelihood of injury is greatly reduced whether procedures are followed. Guards and sensing safety devices allow workers to stay safe and return home with all their body parts intact.

Industry management must take action to avoid exposing employees to unnecessarily hazardous conditions to secure corporate profits. For the betterment and well being of their employees and their companies, management should identify practices and procedures that will allow employees to work in a safe and efficient environment. Guarding techniques and other safety devices, when maintained properly, can serve as the most effective and reliable protection for all workers both in the food industry and beyond. This level of protection can secure profits while also caring for employees’ safety and well being.

Kendall Dunson represents Aretina Robinson-McLean in a case against the designer/manufacturer of tuna processing machinery. Our client’s hand was seriously injured while working at a facility in South Georgia. Her hand is permanently injured. Our client lost multiple fingers and sustained nerve damage, limiting her ability to use that hand. Her ability to earn income and care for her family, including a newborn baby, is also severely limited. Ms. Robinson-McLean will have to live the rest of her life essentially one-handed. Kendall says the lack of adequate guarding on the machinery was the cause of her injury. 

Ms. Robinson-McLean’s case was filed and is pending in the State Court of Chatham County, Georgia. Kendall says he hopes to go to trial soon. Jeffrey Kaufman with Kaufman Law, P.C. and Rick Sizemore with Clark, Smith & Sizemore in Macon, Georgia, are on this case with Kendall. If you need more information, contact Kendall.

AVIATION LITIGATION

Beasley Allen Lawyers Settle Georgia Plane Crash Case

Beasley Allen lawyers, Mike Andrews and Cole Portis, along with the firm of Mason Carter, have settled a lawsuit for the family of Lauren Harrington against the Estate of Jonathan Rosen, who was piloting a plane that crashed upon taking off at the Dekalb-Peachtree Airport near Atlanta in October 2021.

When it crashed, Ms. Harrington, 42, was one of four people aboard the Cessna P210N airplane. The accident also killed Mr. Rosen and two children aboard the plane. There were no survivors.

“When we investigated the flight profile, the type of equipment and the weight on board, we knew immediately there was a problem,” said Mike Andrews, who specializes in aviation litigation. “Proper weight and balance are critical in aviation and often mean the difference between life and death.” 

Federal investigators reported that the plane was fully fueled when it departed DeKalb-Peachtree for Houston. The aircraft became airborne about 1,000 down the runway and reached an altitude of about 75 feet when it rolled to the left and crashed nose-first to the ground. The aircraft was incinerated after an impact explosion and fire fed by its fuel load. 

The lawsuit asserted that Mr. Rosen was inadequately trained to operate the recently modified plane, whose engine had been upgraded with a Rolls Royce turbine engine and an additional fuel tank to meet the new engine’s need for extra fuel consumption. Mike says:

Because the aircraft had been extensively modified, it was important to understand its limits and capacities. We worked closely with aviation experts and builders to learn the ‘as modified’ limits, and from that, we were confident that the crash could have been avoided by following simple rules of weight and balance.

Mr. Rosen had less than two flight hours’ experience with the modified plane and had participated in just one day of a five-day flight training course with the aircraft. Mr. Rosen negligently and improperly calculated the plane’s center of gravity, resulting in a weight distribution exceeding the aircraft’s operating limits and causing instability. Mike had this to say about the settlement:

While we cannot ever give the family what they truly want – their daughter – we are hopeful that resolving this case helps by providing our clients answers to the questions they have struggled with regarding the crash. We are grateful to have been able to work for such a deserving family and are thankful for their trust in our work. 

If you have any questions or need more information, contact Mike Andrews.

THE TALC LITIGATION

Making a Difference: Beasley Allen Talc Lawyers On J&J’s Removal Of Talc, Baby Powder From Market Worldwide

In a long overdue move, Johnson & Johnson (J&J) announced last month it will stop selling talc-based Baby Powder worldwide next year. It was a development the Beasley Allen Talc Litigation Team has diligently pursued for nearly ten years. The firm’s Mass Torts Section Head, Andy Birchfield, has been working with the team in its efforts. Andy had this to say:

Today we can see with crystal clarity the positive impact our work has on a global scale!

Johnson & Johnson announced that it will no longer sell its talc-based, cancer-causing Baby Powder any place in the world. The withdrawal of this sweet-smelling but deadly product that has been in homes around the world for generations is HUGE for public health. This move is a result of the effort led by the Beasley Allen team to litigate and make known the dangers of talc-based Baby Powder.

J&J is one of the richest, most powerful corporations in the world. And in recent times, at least, it operates as the mafia of the corporate world. J&J’s Baby Powder was not just one of its many products – Baby Powder was its flagship brand and has long been closely associated with its image. So, this withdrawal was fiercely resisted. It is monumental and will save countless lives!

The fight continues to get financial relief for J&J’s cancer victims but today is a day to celebrate the positive difference we are making in the world. I am incredibly proud and thankful to be part of the Beasley Allen Team!

Ted Meadows explained that when he and David Dearing and Ted’s paralegal, Katie Tucker, started looking closely at the possibility of suing J&J over its talc-based Baby Powder, “many thought we had lost our minds.” Ted continued, saying:

But Beasley Allen’s leadership never hesitated to get behind the effort. They had seen what we [the firm] had done in a ten-year effort to bring justice for thousands of breast cancer victims of hormone therapy and knew we had the knowledge base, experience and stamina to take on a corporate giant in yet another women’s health litigation.

In 2013, the lawyers on what would become Beasley Allen’s Talc Litigation Team first learned of the increased risk of ovarian cancer for women who used talcum powder as part of their daily hygiene routine. The team has since successfully compiled evidence showing the hazards of Johnson’s Baby Powder and Shower to Shower. Our lawyers discovered and exposed J&J’s own internal documents demonstrating the company’s knowledge that its talc-based products significantly increased a woman’s risk for ovarian cancer.

These internal documents presented clear evidence that the company refused to warn its clients of the dangers by repeatedly attempting to bury damning proof, including numerous epidemiological studies dating back to the 1970s, showing talc’s link to ovarian cancer. Our lawyers on the team joined with other law firms to file complaints in the Circuit Court of the City of St. Louis, Missouri, beginning in 2014. The lawsuits included hundreds of women and their families with the courage to take a stand against the corporate giant J&J. Ted recalled:

Over the next [more than] two years, our ranks would grow as we filed multiple lawsuits, hired experts and prepared for the first trial. In January 2016, Jere Beasley, David Dearing, Brittany Scott and I represented Marvin Salter (son of the late Jacqueline Fox) in what was the first plaintiff award in the Baby Powder Litigation – $72 million. By the way, Jere delivered the most brilliant 15-minute re-close I’ve ever seen in my life.

In 2013, Jacqueline (Jackie) Fox, a cousin to Civil Rights activist Rosa Parks, was diagnosed with ovarian cancer. It was linked to her daily use of J&J Baby Powder for feminine hygiene. As one of the first plaintiffs to go trial, Beasley Allen’s lawyers uncovered new evidence revealing J&J’s internal strategy regarding the marketing of Baby Powder during Ms. Fox’s trial. The evidence included documents detailing the company’s strategy to intentionally target women with deceptive marketing schemes, especially women of color.

J&J’s scheme was designed to prey on a cultural tradition of women of color – using talcum powder for daily hygiene. The campaign intentionally misled consumers with biased information about the safety of its products. J&J then used its influence in our nation’s capital to prevent regulators from classifying talc as a carcinogen.

Ms. Fox lost her battle with ovarian cancer two years after her diagnosis. Her son Marvin Salter continued her efforts to raise awareness about the dangers of talc-based products. Mr. Salter testified before Congress four years after her death, telling lawmakers his mother sought justice after learning the cause of her disease. He had this to say about his mother:

Her spirit was never broken despite what happened to her body. She smiled through it all. I was not involved in her decision to file a lawsuit, but I supported her fully. She wanted to raise awareness for women about the risk of cancer. Unfortunately, she never made it to her trial.

Ted explained what unfolded in the litigation following Ms. Fox’s trial: 

Over the next 16 months, David, Brittany, Ryan Beattie and I would return to St. Louis for five more trials and amass a 4-1-1 record – with additional wins and verdicts, including $55 million, $70 million and $110 million. In the second half of 2017, David, Ryan and I would also go to Los Angeles to win a $417 million verdict and to New Jersey, where we would lose a Daubert-like hearing that was later reversed by the New Jersey Supreme Court with choice words about the trial judge’s performance.

None of this would have been possible without the work of so many at Beasley Allen and other law firms who have contributed to the fight.

Ted described how all the firm’s early work laid a foundation that would be used by Leigh O’Dell and Michelle Parfitt, Co-Lead Counsel in the Talcum Powder Multidistrict Litigation (MDL), and by other law firms to create a compelling and thorough presentation of the science establishing causation between the genital use of talcum powder and ovarian cancer that would ultimately prevail in a Daubert proceeding. Just weeks after the MDL Court denied J&J’s motions to exclude the plaintiffs’ scientific evidence, J&J announced it would no longer sell Johnson’s Baby Powder in the United States and Canada. As Ted shared:

That announcement, by far, was the most satisfying moment of my 30-plus year career, but it was bittersweet as J&J callously declared they would continue selling it in other countries – ones with no civil justice system.

On August 11, 2022, J&J announced it would no longer sell Johnson’s Baby Powder with talc worldwide. After decades of knowing the cancer risks caused by its iconic brand, J&J finally did the right thing. Leigh O’Dell, who has done tremendous work in this litigation, commented on this climactic development:

It is inexcusable that J&J waited so long to take this step, but I am grateful that women, men and children from around the world – many of whom have no idea of the dangers, no consumer protection laws, and little to no healthcare – will no longer be put at risk.

The efforts of the Beasley Allen lawyers and staff personnel who started the battle to protect the public from J&J and to get a highly dangerous product totally off the market have finally ended with J&J’s announcement in August. All of us at Beasley Allen – and especially the lawyers and staff on the litigation team – are celebrating the tremendous victory described above. But the battle is not over and is still ongoing – J&J’s victims must be adequately compensated and J&J thoroughly punished. That is our goal!

J&J Bankruptcy Judge Appoints Estimator

Judge Michael B. Kaplan of the U.S. Bankruptcy Court for the District of New Jersey recently said he will appoint an expert to estimate the number and value of claims against LTL Management LLC.

Kaplan plans to appoint Kenneth R. Feinberg — an experienced and highly respected mediator –the special master for the 9/11 Victim Compensation Fund — to serve as the expert. The parties had until Aug. 11 to express objections to his appointment, and none came forth. Feinberg will be directed by the court to submit a report about the number and value of the claims sometime “before the weather gets cold.”

LTL Management argued in favor of an estimation process, but it had the process lasting well into the later part of 2023. That is totally unacceptable. The official committee of talc claimants opposed estimation, instead pushing for the termination of the debtor’s exclusive right to file a Chapter 11 plan, so the committee could propose its own plan and begin soliciting creditors in a process that would be completed in six months.

The court also denied a request from some talc plaintiffs to resume litigation for about a dozen lawsuits relating to Johnson & Johnson (J&J’s) talc products, saying that allowing those cases to go to trial, verdict and judgment would not provide any new information to the parties in bankruptcy.

Judge Kaplan said that once Feinberg’s report is filed, it will be presented to the parties, and they will participate in a mandatory mediation session before he considers the report.

The talc claimant committee said it was “pleased that the court rejected debtor’s and J&J’s effort to delay this case into 2024 and beyond. The Tort Claimant Committee will continue to vigorously argue on appeal that J&J’s sham bankruptcy was a bad faith filing that should be dismissed. Until the Third Circuit decides that question, we will advocate for cancer victims in accordance with the expedited valuation process and plan structure ordered by the court.”

As previously reported, (J&J) created a new subsidiary in October 2021 called LTL Management (LTL) and shifted all talc liabilities to this subsidiary before LTL filed for bankruptcy protection in North Carolina.  In November 2021, the bankruptcy judge in North Carolina issued a preliminary injunction, which stayed all talcum powder litigation against all J&J entities.  The bankruptcy judge then transferred the bankruptcy to Judge Michael J. Kaplan of the U.S. Bankruptcy Court for the District of New Jersey.

At the end of February, Judge Kaplan denied plaintiffs’ motion to dismiss the bankruptcy. Additionally, the judge issued another preliminary injunction, which continues the stay on all talcum powder litigation. 

Currently, our lawyers are appealing Judge Kaplan’s decision on the motion to dismiss to the U.S. Court of Appeals for the Third Circuit.  On July 21, the Third Circuit scheduled oral arguments on plaintiffs’ appeal for Sept. 19.

In the meantime, Beasley Allen lawyers continue investigating new cases involving women diagnosed with ovarian cancer after using Johnson’s Baby Powder or Shower to Shower.  For more information, contact Melissa Prickett or Brittany Scott.

Source: Law360.com

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head the Beasley Allen Talc 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 Eiland, Jennifer Emmel, Jenna Fulk , Lauren James, James Lampkin, Caty O’Quinn,  Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and 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.

OPIOID LITIGATION

Opioid Litigation Update

There has been a great deal of activity, including settlements and verdicts, in the ongoing Opioid litigation. We will discuss several of these developments below. The first is the case in which Walgreens, CVS and Walmart were ordered to pay $650 million in an Opioid lawsuit in Oklahoma.

U.S. District Judge Dan A. Polster ordered three of the country’s largest pharmacy chains to pay $650 million to two Ohio counties that they were found to have flooded with prescription painkillers. The judge said in a landmark judgment that CVS, Walgreens and Walmart must bear some of the cost that the opioid epidemic has wrought on Lake and Trumbull counties outside Cleveland.

Judge Polster wrote in his order that the pharmacy chains had dispensed the drugs “without effective controls and procedures” to prevent the pills from being abused and resold and are thus partially responsible for the damage the epidemic has caused in the two communities. The retailers will also be required to train personnel on the dispensing of controlled substances, create a hotline through which patients and employees can report inappropriate sales of painkillers, and appoint a controlled-substance compliance officer to review prescription validation processes.

The order is said to be a bellwether for thousands of other communities attempting to hold pharmacies responsible for their role in the opioid epidemic, which has killed half a million Americans since 1999, according to the Centers for Disease Control and Prevention.

Federal law requires pharmacies to determine that prescriptions have been issued for legitimate medical purposes before filling them. The retailers oversupplied the blue-collar counties in Ohio with more pills than could have possibly been medically necessary. Between 2012 and 2016, lawyers have estimated that pharmacies dispensed 61 million pills in Lake County, enough to supply every man, woman and child with 265 pills.

An expert who testified for the counties estimated it would cost them about $3.3 billion to recover from the epidemic. However, the judge accepted that some abuse and addiction would have occurred even without the retailers’ involvement. Judge Polster ruled that the pharmacies must pay the two counties more than $300 million each in installments over the next 15 years.

Texas lawyer Mark Lanier led the trial team for the counties, which consisted of Lake and Trumbull. The cases are County of Lake v. Perdue Pharma LP et al., case number 1:18-op-45032, County of Trumbull v. Purdue Pharma LP et al., case number 1:18-op-45079, and In re: National Prescription Opiate Litigation, case number 1:17-md-02804, all in the U.S. District Court for the Northern District of Ohio.

AmerisourceBergen, Cardinal Health and McKesson have agreed to pay $400 million to end claims from West Virginia local governments that claim the three drug distributors flooded the State with opioids, creating a public nuisance. The state’s claims were excluded from the national opioid settlement agreement because of prior settlements with AmerisourceBergen, Cardinal Health and McKesson, but local governments in the state were still able to pursue their claims. This settlement adds to the nearly $300 million previously secured for West Virginia by the Attorney General’s Office from drug manufacturers that contributed to the opioid epidemic.

A federal judge had ruled against two West Virginia local governments after a protracted federal court bench trial against these same three defendants earlier this year. 

The State of West Virginia is also pursuing claims against pharmacy giants Walmart, CVS, and Walgreen in State court for their role in fostering the opioid crisis. In response to the pharmacy’s motions to dismiss the State’s claims, the state court trial judge strongly disagreed with the federal court’s ruling finding AmerisourceBergen, Cardinal Health and McKesson not liable. The defendants in both cases argued that a nuisance, the plaintiff’s primary legal theory in both cases, required under West Virginia law, an injury to property was involved. In interpreting West Virginia state law, the federal court held that there was such a requirement. But the state court overseeing the State’s litigation found that there was no such express requirement under the law and said none should be read into it by implication.

In another opioid lawsuit, a federal court in California found Walgreens liable for creating a nuisance in San Francisco. The court found that Walgreens maintained a nuisance by filling tens of thousands of prescriptions of opioids where it should not have. One cause of such failure was a systemic understaffing of the pharmacy department in the pursuit of profit, making it impossible to perform any due diligence in filling prescriptions.  The case was bifurcated and moving into the damages phase at press time.

In other opioid litigation news, Teva and Allergan have announced tentative nationwide settlements in theory in the opioid litigation. The settlements announced are for $5 billion and $2.37 billion, respectively. Teva has been accused of deceptively marketing its Actiq and Fentora opioid painkillers to generate billions in profits at the cost of ruined lives and communities. Teva has also made billions in profits from many of those same communities that buy its generic treatments for opioid overdose. Allergan is accused of misleadingly marketing Kadian, an extended-release morphine product, and recklessly shipping generic opioids. Allergan later sold its generic prescription business to Teva.

Beasley Allen represents the State of Georgia and is pursuing these claims against Teva and Allergan. We also represent the State of Alabama and recently filed suit against Cardinal Health and AmerisourceBergen for their role in prolonging the opioid crisis in Alabama.

In summary, the Opioid litigation is far from over. The wrongdoers eventually will have to settle all of the pending cases.

Source: Law360

The Beasley Allen Opioid Litigation Team  

Beasley Allen’s Opioid Litigation Team continues to work on a large number of existing cases. There has been no slowdown at Beasley Allen in this litigation. As previously stated, Beasley Allen lawyers represent the State of Alabama and the State of Georgia, numerous local governments and other entities. Our lawyers also handle individual claims on behalf of victims in this litigation. Our Opioid Litigation Team includes

Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne, Elliott Bienenfeld and Matt Griffith.

If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above.

THE WHISTLEBLOWER LITIGATION

Biogen Settles Drug Kickback Case For $900 Million

Biotech company Biogen Inc. has agreed to a $900 million settlement to resolve a whistleblower lawsuit accusing the company of paying kickbacks to physicians to prescribe multiple sclerosis drugs. The agreement-in-principle last month came days before the trial was set to begin in federal court in Boston.

The settlement is subject to the U.S. Justice Department’s approval, which chose not to intervene in the case as it could have under the False Claims Act but instead left it to the ex-Biogen employee Michael Bawduniak to litigate. The settlement has been called the largest recovery under the False Claims Act by a whistleblower without the Government’s intervention or participation.

According to Reuters, “[t]he lawsuit was filed in 2012 under the False Claims Act, which allows whistleblowers to sue companies on the government’s behalf to recover taxpayer money paid out based on fraudulent claims. The lawsuit accused the company of directing millions of dollars in kickbacks in ‘sham’ consulting deals and speaker programs, lavish dinners and entertainment to prescribe its MS drugs Avonex, Tysabri and Tecfidera from 2009 to 2014.”

According to Bawduniak, medications to treat multiple sclerosis are expensive, and only a handful of products are approved to treat it. “Paying kickbacks allowed Biogen to compete in a market where just a few thousand doctors are prescribers.” Bawduniak further alleged that the scheme assisted Biogen in boosting sales of the drugs even as new competing products entered the market and establishing Tecfidera as a blockbuster drug when it was introduced in 2013.

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

Source: Reuters

Former Twitter Executive Blows The Whistle

Peiter Zatko, 51, is an Alabama native and former Twitter executive. The cybersecurity specialist sent a 200-page disclosure to U.S. lawmakers and regulators in July describing the company’s online vulnerabilities, according to AL.com.

Twitter hired Zatko in November 2020 to help improve its cybersecurity and privacy. The company fired him in January after Zatko raised the same concerns internally that he shared with lawmakers. However, the company claims he was terminated for poor performance. According to AL.com, Zatko told lawmakers that Twitter “has engaged in a series of security missteps and misled the Twitter board, shareholders and the public.” One claim is that “too many employees” can access sensitive information, such as user data. Zatko also claims that at least one current Twitter employee may be a member of a foreign intelligence service. Twitter denies the allegations.

Zatko is the son of a University of Alabama professor. He grew up in Tuscaloosa and Boston. He has led a cybersecurity grantmaking program at the Pentagon and advised U.S. lawmakers on how to fix security issues on the internet. Zatko also worked for Google, where he developed cutting-edge technology and built Stripe, a cybersecurity firm.

Source: AL.com

Centene Will Pay $33 Million To Settle Medicaid Fraud Suit

Centene Corp. has agreed to pay $33 million to Washington state and the federal government over allegations that it withheld discounts from Apple Health, the state’s Medicaid program, thereby overcharging the program. The settlement is the second-largest fraud recovery in the state’s history, Law360 reported.

In July, the state filed a lawsuit alleging that Centene and Coordinated Care of Washington, one of Centene’s subsidiaries, broke the law – the Washington Medicaid False Claims Act. Coordinated Care of Washington manages Apple Health as a contractor with Washington’s Health Care Authority. Coordinated Care of Washington negotiates pharmacy needs, including costs of drug prices, rebates and discounts, with pharmacy benefit managers.

Following warnings by a whistleblower, the state’s Attorney General’s Medicaid Fraud Control Division and the Health Care Authority jointly investigated the allegations. While Centene has not admitted wrongdoing, it has agreed to pay to end the accusations that it overcharged for pharmacy benefit management services. The $33 million award includes $19 million that will be paid to the state and $13 million to the federal government.

Before the Centene settlement, Washington’s largest pharmaceutical company recovery was in 2016. Drug maker Wyeth agreed to pay $46.7 million in federal and state Medicaid dollars, according to the Washington Attorney General’s Office.

The case is the State of Washington et al. v. Centene Corp. et al., case number 22-2-01860-34, in Thurston County Superior Court.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers continue to be very busy handling whistleblower cases. Fraudulent conduct continues to cause huge problems in many industries in this country. Our firm assigned a number of lawyers to the whistleblower litigation and significantly increased its healthcare whistleblower practice. Lance Gould, Larry Golston, Tyner Helms, Paul Evans, Leon Hampton and Lauren Miles, lawyers in our Consumer Fraud & Commercial Litigation Section work in this area known as “qui tam” or “whistleblower cases.” They continue to handle cases throughout the country involving fraud against governments. An example of the excellent work done by the team was a notable recovery in Birmingham. Our firm obtained a $14 million verdict in federal court involving a healthcare whistleblower issue.

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 our lawyers on our team who are listed above.

The experienced group of lawyers on our team is dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the Whistleblower Litigation 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.

SECURITIES LITIGATION

Settlement In Key Director Liability Case

Lawyers for a class of investors and ODP Corp. notified the Delaware Chancery Court that they had reached a tentative agreement resolving a stockholder derivative and class action lawsuit, Law360 reported. If approved, the agreement would settle allegations that ODP’s board abused its authority under a 2019 compensation equity plan awarding CEO Gerry Smith shares for achieving performance targets.

The lawsuit, Garfield v. Allen et al., has been closely watched for legal precedent, specifically in applying a “novel theory” of director liability.

Plaintiff Robert Garfield, an ODP stockholder, brought the lawsuit against ODP, Smith, and other executives after the company’s board of directors approved an Equity Compensation Plan to reward company shares to CEO Smith for strong performance. Although the plan limited the number of shares that could be granted for meeting performance targets, it later awarded option grants that could exceed the plan’s limits.

The change prompted Garfield to send the board a demand letter asking it to reduce the maximum potential awards to conform with the plan’s limits. ODP, which owns Office Depot and Office Max, did not act on Garfield’s demands. Responding to the board’s inaction, Garfield acted as a whistleblower and brought claims for breach of contract, unjust enrichment, and breach of fiduciary duty. The plaintiff made the breach of fiduciary duty claim “because the directors did not respond to the whistle,” in the words of Vice Chancellor J. Travis Laster, who tried the case.

He added that his opinion comes with some “trepidation about knock-on effects” and said similar future claims and plaintiffs’ motives would have to be considered carefully, acknowledging potential abuse.

ODP and its directors argued that none of Garfield’s claims were ripe because the officer had not yet earned the shares that would exceed the plan’s limits.

In his opinion, Vice Chancellor Laster said ODP and its directors had “argued that none of the plaintiff’s claims are ripe.” The opinion said: “According to the defendants, a ripe challenge will not exist until it becomes certain how many shares Smith will retain.” The vice chancellor said further:

For decades now, the Delaware courts have dealt with variants of this argument. In earlier versions, defendants have contended that challenges to option grants were not ripe until the options were exercised. Past cases put those arguments to rest, and this decision rejects the latest reincarnation.

The vice chancellor said that when a committee set up by the company’s board approved the awards, it “granted a bundle of rights to Smith.” He ruled, “The plaintiff can challenge now whether that bundle complies with the 2019 Plan.”

In his opinion, Vice Chancellor Laster also highlighted “a novel theory” advanced by plaintiff Garfield. The vice chancellor said:

According to the plaintiff, all of the directors—including the directors who did not approve the challenged awards—breached their fiduciary duties by not fixing the obvious violation after the plaintiff sent a demand letter calling the issue to their attention. There is something disquieting about a plaintiff manufacturing a claim against directors by acting as a whistleblower and then suing because the directors did not respond to the whistle. Nevertheless, the logic of the plaintiff’s theory is sound: Delaware law treats a conscious failure to act as the equivalent of action, so if a plaintiff brings a clear violation to the directors’ attention and they do not act, then it is reasonably conceivable that the directors’ conscious inaction constitutes a breach of duty.

On the question of whether the failure to act constitutes a breach of duty, Vice Chancellor Laster said in his opinion:

There are obvious policy issues associated with such a claim. The artifice of sending a demand letter and then suing based on the failure to fix the problem could undermine salutary doctrines such as laches that force plaintiffs to bring claims in a timely fashion. It also could enable plaintiffs to expose new directors to litigation risk by presenting them with a problem that they did not create and asserting that they failed to fix it. And there is a lack of precedent for the theory. The wrongful rejection of a demand historically has affected only the question of who controls the derivative claim. It does not appear to have been analyzed as a separate fiduciary wrong.

Under Delaware law stemming from the case In re: Caremark International Inc. Derivative Litigation in the 1990s, directors are required to make a good faith effort to oversee a company’s operations and not ignore problems when they are aware of them. Vice Chancellor Laster said:

As this decision has explained, settled precedent establishes that a decision-maker acts disloyally and in bad faith by consciously disregarding a limitation in an equity compensation plan. Because conscious inaction is functionally the same as action, it follows that a conscious decision to leave a violative award in place supports a similar inference that the decision-maker acted disloyally and in bad faith.

Vice Chancellor Laster let Garfield’s “novel theory” advance past a “pleading-stage analysis” but said he did so “with admitted trepidation about knock-on effects.” The vice chancellor said:

In light of the policy implications that claims of this sort present, future decisions must consider carefully any attempts by plaintiffs to follow a similar path.

Plaintiff Garfield is represented by Brian E. Farnan and Michael J. Farnan of Farnan LLP. The case is Garfield v. Allen et al., case number 2021-0420, in the Court of Chancery of the State of Delaware.

Source: Law360.com

Scotiabank Settles Investors’ Metals Spoofing Claims

A proposed settlement between class acton representatives Casey Sterk and Kevin Maher and Scotiabank will end the lawsuit if approved, according to Law360. The plaintiffs filed the case after the bank settled with the U.S. government over similar allegations.

The class members, traders, claim Scotiabank engaged in manipulative trading of precious metals on the New York Mercantile Exchange and Comex from 2008 to 2016. They allege the manipulation occurred through spoofing. Law360 explains that spoofing is “a disruptive trading technique in which traders post one or more large orders in marketplaces to either buy or sell futures contracts to influence prices, all while intending to create a false sense of supply or demand and cancel the large order before it is fulfilled.”

In 2018, the U.S. government fined Scotiabank $800,000 for a related action. At that time, federal regulators say the bank gave them false statements about the matter under investigation. In 2020, the bank settled with the federal government for $127.4 million in exchange for deferred prosecution.

The settlement with the U.S. government included record-settling penalties of $42 million for spoofing and attempted manipulation, $17 million for false and misleading statements, $11.8 million for disgorgement and restitution and $6.6 million in market losses caused by the manipulative trading scheme.

Law360 reported that Scotiabank, Barckatsm Sicuete Generale and the London Gold Market Fixing Ltd. were included in the gold price-fixing case and accused of participating in a conspiracy to suppress the key benchmark price for physical gold for multiple years. After reaching a $60 million and a $42 million settlement, respectively, Deutsche and HSBC were dismissed from the litigation.

The traders are represented by James E. Cecchi of Carella Byrne Cecchi Brody & Agnello PC, Linda P. Nussbaum of Nussbaum Law Group PC, Christopher M. Burke, Thomas K. Boardman, Louis F. Burke, Amanda F. Lawrence and Michael P. Srodoski of Scott + Scott Attorneys at Law LLP, Patrick J. Coughlin and Alexandra S. Bernay of Robbins Geller Rudman & Dowd LLP, and George A. Zelcs, Randall P. Ewing Jr., Ryan Z. Cortazar, Jamie L. Boyer and Carol L. O’Keefe of Korein Tillery LLC.

The case is Sterk et al. v. The Bank of Nova Scotia et al., case number 3:20-cv-11059, in the U.S. District Court for the District of New Jersey.

Source: Law360.com

Beasley Allen Securities Litigation Team

Our firm is actively involved in securities cases, and we continue to grow this area of our practice. 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:

James Eubank, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team.

THE JUUL LITIGATION

First JUUL Trial Starts This Fall

The first trial in the sprawling multidistrict litigation over claims that JUUL Labs (JUUL) deceptively marketed its vaping products to minors will start in a California federal court in November. The case was brought by San Francisco Unified School District.

JUUL and Altria are battling claims that they stoked a youth vaping epidemic by misleading the public on the safety of e-cigarettes. Plaintiffs in the MDL claim that the e-cigarettes were designed to give users higher doses of nicotine than traditional cigarettes. More than 3,000 suits are in the MDL, including personal injury suits and claims brought by school districts, government entities and tribes. In addition to the MDL, over a dozen state attorneys generals have sued JUUL over its advertising practices. There is also consolidated litigation in California state court.

JUUL Valuation Decrease Continues

The value of JUUL Labs, Inc. (JUUL) has decreased in correlation to litigation progress and regulatory bans. We will discuss this development below.

On June 23, the Food and Drug Administration (FDA) rejected JUUL’s application to sell its current e-cigarette products. Facing counter pressure, on July 5, the FDA administratively stayed its order, noting “scientific issues unique to the JUUL application that warrant additional review.” The agency stated carefully in an update to a news release about the ban: “This administrative stay temporarily suspends the marketing denial order during the additional review but does not rescind it.”

Meanwhile, on June 28, 2022, Judge William H. Orrick of the U.S. District Court for the Northern District of California certified four classes of people who bought JUUL products.

Altria’s original $13 billion investment in JUUL is reportedly worth $450 million. Altria said it would maintain its investment with JUUL, including the agreement not to sell competing vaping products. JUUL was valued at $38 billion in 2018 but recently valued at $1.3 billion in some reports.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team. Team Members are set out below.

Sources: CNBC, Bloomberg, The Wall Street Journal and The Washington Post

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers in the Mass Torts Section, led by Joseph VanZandt, continue to be heavily involved in the JUUL litigation. The lawyers represent individuals suing JUUL Labs, the top U.S. vape maker, for the negative impact its products have had on the lives of victims. Our lawyers also represent a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team has filed lawsuits nationwide on behalf of school districts. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

Beasley Allen continues to file cases for individuals suffering from personal injuries and claims on behalf of school districts and government entities across the country. Beasley Allen’s Joseph VanZandt serves on the JUUL Plaintiff Steering Committee and is trial counsel for the first bellwether trial. Joseph and Mass Torts Section Head Andy Birchfield lead our firm’s efforts to hold JUUL accountable for the damage it caused to thousands of youths and communities around the country. Beasley Allen’s Beau Darley also serves on the PSC for the California state court litigation.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation Team at 800-898-2034 or by email. Members are: Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding or Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and works closely with the team on the JUUL litigation.

THE ASBESTOS LITIGATION

The Power Of Motions In Limine In Asbestos Litigation

The motion in limine is one of the most effective and powerful tools a trial lawyer has at their disposal.  These motions can serve multiple purposes.  Of course, motions in limine can serve to preemptively preclude certain evidence from being introduced at trial (or opposing parties attempting to introduce it).  Additionally, these motions can be used to educate courts about discrete and important issues. 

In asbestos litigation, certain topics that plaintiffs know defendants would love to discuss in front of the jury have zero relevance to the case but could greatly prejudice a plaintiff’s claims.  Some of these are specific to each case.  But others are more generally applicable.  For example, in every mesothelioma case, we bring a motion in limine to preclude mentioning a client’s smoking history. Smoking cigarettes has absolutely nothing to do with mesothelioma.  Defendants know this.  It is agreed upon by experts on both sides.  However, defendants know that the link between cancer (especially related to the lung) and smoking is so prevalent in jurors’ minds that getting a history of smoking into evidence will possibly confuse the jury into thinking that the smoking history has something to do with the mesothelioma. 

Another common motion in limine is to preclude defendants from trying to suggest “phantom” exposures to asbestos that have no basis in fact.  Defendants usually agree that asbestos causes mesothelioma, but they also argue that some other asbestos, not their asbestos, caused our clients’ cancer.  But defendants must be held to the same standard in proving exposures to other asbestos as plaintiffs are in proving exposures to the defendant’s asbestos.  Thus, if there is no evidence to suggest alternative exposures, we bring motions to preclude defendants from suggesting there were.  This eliminates “alternative exposure” arguments and focuses the court on just the exposures for which the defendant is responsible. 

These are just a few examples of potential motions in limine.  Bottom line, even if motions like the ones mentioned above are not granted, they serve to educate courts and lay the groundwork for future objections.  At Beasley Allen, our lawyers know the ins and outs of asbestos litigation and utilize all the tools at our disposal to ensure that when a case proceeds to trial, it is situated to get the best result for our clients.  If you have questions about the use of motions in Limine or any aspect of asbestos litigation, contact Charlie Stern.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to be extensive nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. Charlie has years of experience in asbestos litigation, so he was selected to lead the Beasley Allen team. If you need assistance with cases involving asbestos products, contact one of the team members.

MASS TORTS LITIGATION

Energy-Based Vaginal Rejuvenation Linked To Significant Injuries

A vaginoplasty is a minimally invasive procedure designed to tighten the vagina and correct pelvic organs that drop from their normal positions.  An alternative to vaginoplasty is a non-invasive vaginal tightening through heating tissues with radiofrequency waves or lasers.  Laser treatments date back to the 1960s for various skin conditions, but beginning in the early to mid-2000s, the use of these lasers for vaginal rejuvenation procedures became increasingly popular. Laser vaginal rejuvenation companies boast that the process can improve vaginal dryness and urinary incontinence and also claim to create a firmer and more youthful vaginal area. Several manufacturers also claim that the procedure is painless. 

Despite these claims, many women experience severe pain in their vaginal areas due to thermal burns from lasers.  The burns can subsequently cause scarring, muscle spasms, urinary issues, painful intercourse, infections, and inflammation.  Several studies have investigated the use of laser vaginal rejuvenation procedures, and all are skeptical that they are safe and effective.  In July 2018, Food and Drug Administration (FDA) Commissioner Scott Gottlieb, M.D., released a statement that laser devices used for these procedures have only been approved for removing precancerous cervical or vaginal tissue and genital warts. The devices have not been formally approved for vaginal rejuvenation procedures, and voiced concerns about the inappropriate marketing of several devices used for these procedures.

Beasley Allen is investigating cases on behalf of individuals who underwent a laser vaginal rejuvenation procedure and suffered adverse events, including severe pain, burning, scarring, and urinary issues.  For more information, please contact Melissa Prickett or Roger Smith, lawyers in our Mass Torts Section/

Sources: Statenews.com and Food and Drug Administration

General Discovery Underway In Philips CPAP MDL

General discovery is underway in the Philips CPAP MDL.  In a multidistrict litigation (MDL), federal court cases are consolidated for purposes of pretrial discovery.  This allows plaintiffs to coordinate efforts to review voluminous document discovery – often millions of pages – and conduct various depositions involving questions of liability and general causation.

Additionally, Judge Joy Flowers Conti will hold a joint “Science Day” with both the CPAP MDL and the SoClean MDL.  Science days are becoming increasingly common in MDLs involving pharmaceuticals or medical devices.  They are designed to educate the court on medical information regarding the products’ potential side effects.  Each side gets an opportunity to present to the court.  The presentations are supposed to be objective and non-adversarial.  Most MDL orders involving science days will note that the presentations are not admissible because they are only meant to educate the court. 

Judge Conti has set a joint Science Day for both the CPAP MDL and SoClean MDL this month.  While science days are typical in MDLs, “joint” science days are unique.  This is the first time that two MDLs have held their Science Day together on the same day.  The similarities between the CPAP machines and the devices used to clean those machines create a special circumstance to present the science together. 

Beasley Allen lawyers are investigating claims on behalf of users who suffered from adverse effects of the recalled Philips Respironics CPAP devices.  For more information, contact Melissa Prickett or Beau Darley.

Baby Formula & Necrotizing Enterocolitis

Cow’s milk-based infant formula has been shown to dramatically increase the risk of necrotizing enterocolitis (NEC) in premature, underweight infants.  NEC is a dangerous and often fatal condition that causes necrosis of the underdeveloped intestines of newborns, causing a myriad of immediate and long-term health problems.  Virtually every child health agency and advocacy group recommends human breast milk (either mother’s or donor’s) over cow’s milk infant formula, particularly for premature babies. 

Studies going back decades evidence a clear and consistent increased risk of NEC from formula, some showing risks as high as 200% to 300% compared with human breast milk.  Despite the known dangers of cow’s milk formulas, neither of the two major formula manufacturers, Mead Johnson (Enfamil) or Abbot Laboratories (Similac), offer any warning on their products. 

Beasley Allen lawyers represent many parents and children for claims against these two formula companies.  So far, our firm has filed twenty-four lawsuits in Madison County, Illinois, where at least one of the manufacturers is located.  These cases include twelve children and three adults who recovered from NEC but continue to deal with the consequences years later. The cases include the parents of nine children who died due to NEC brought about by cow’s milk formula.

As a litigation update, in a related Lake County, Illinois case, the defendant, Abbot Laboratories, moved to dismiss the case for Forum Non-Conveniens, arguing the case should be heard in Georgia, where the deceased infant was born. The court denied the motion to dismiss in an order entered on July 28, 2022, concluding Abbott had failed to meet its burden of showing that there is no connection to Illinois and other necessary factors.

A multidistrict litigation (MDL) court was created on April 8, 2022, in the U.S. District Court for the Northern District of Illinois – Eastern Division (Chicago).  Judge Rebecca R. Pallmeyer is presiding.  At the MDL status conference held on June 30, 2022, the parties disputed the appropriateness of a master complaint. The court entered a Case Management Order on Aug. 10, 2022, requiring the parties to submit a briefing on the issue by Aug. 17, 2022.

David Dearing, Brittany Scott, and Suzanne Clark, lawyers in our Mass Torts Section, are heading up the Baby Formula Litigation for the firm. They are aggressively investigating new cases.

Acetaminophen Linked To Autism And ADHD

Medications containing acetaminophen are among the country’s most widely used pain relievers. These medications are considered safe for all ages, including pregnant women and infants, with an estimated 70% of women using the painkiller while pregnant. In fact, these medicines have long been marketed as the safest and the only appropriate over-the-counter pain relief drug on the market for pregnant women.

However, experimental and epidemiological research shows that prenatal exposure to acetaminophen alters fetal development. This significantly increases the risks of neurodevelopmental disorders, including autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD).

According to one study which measured the amount of acetaminophen in newborn umbilical cord blood, children with the highest levels of acetaminophen in their cord blood were nearly three times more likely to be diagnosed with ADHD later in childhood and more than 3.5 times more likely to be diagnosed with ASD compared to children with lower levels of acetaminophen exposure.

Undisturbed human brain development in utero is vital to a child’s health and wellness. The human brain is vulnerable and extremely sensitive in utero. During this sensitive time in utero, certain chemicals have been found to cause permanent brain injury at low exposure levels. Once ingested by the mother, it is known to cross the placenta and blood-brain barrier.

ASD is a serious neurological and developmental disorder that affects how people interact with others, communicate, learn, and behave. In 2018, the CDC found that 1 in 44 (2.3%) 8-year-old children have been diagnosed with ASD. This is an increase from a prior CDC finding that 1 in 68 U.S. children born in 2002 have ASD, which already represented a more than 100% increase compared with children born a decade prior. Neurotic exposures, such as prenatal acetaminophen exposure, explain a trending increase in these diagnoses. The scientific community has long published studies showing that prenatal ingestion of acetaminophen-containing products can cause ASD and ADHD.

Despite mounting evidence linking ADHD and ASD to acetaminophen exposure prenatal and shortly after birth, manufacturers of acetaminophen-containing products continued to market the medicine to pregnant women – and pharmacies continued to sell it to them – without warning parents of the risks acetaminophen posed to unborn babies and young children. Believing it is safe to take, many women use these medicines during pregnancy electively and for treating headaches, muscle pain, back pain, and infection.

On July 10, 2022, a group of plaintiffs filed a motion with the U.S. Judicial Panel on Multidistrict Litigation to consolidate acetaminophen autism lawsuits filed in the federal court system before one judge. The number of acetaminophen autism lawsuits filed in the U.S. is expected to climb as more people become aware of the dangers of acetaminophen in pregnant women and young children and Big Pharma’s failure to warn them of these risks.

If you have any questions, contact Roger Smith or Melissa Prickett, lawyers in our firm’s Mass Torts Section.

EMPLOYMENT AND FLSA LITIGATION

Beasley Allen Litigates Federal And State Employment Law Matters

Over the past 40 years, the lawyers at Beasley Allen have helped thousands of clients resolve workplace disputes, including wage and hour disputes, wrongful termination, retaliation, discrimination, whistleblower protections, and sexual misconduct.  The firm created a team of employment lawyers several years back. Employment law is a broad area of the law that covers the rights, obligations, and responsibilities of an employer and its workers. Numerous federal and state laws, regulations, and judicial precedents relate to the employer-employee relationship and define their respective rights and responsibilities. Each area of employment law will be discussed below.

Wage and Hour

The Fair Labor Standards Act (FLSA) is a federal law passed by Congress in 1938 that applies to most businesses in the U.S.  The FLSA establishes a national minimum wage, guarantees overtime pay for hours worked more than 40 per week in certain jobs and prohibits employers from exploiting minors and engaging in “oppressive child labor.”  While the FLSA applies to nearly every business or organization in the U.S., it does not apply to independent contractors or volunteers because they are not considered “employees” under the FLSA.

A cornerstone of wage and hour litigation is the Equal Pay Act, the “Equal Pay for Equal Work” law that prohibits sex-based wage discrimination between men and women in the same establishment performing jobs that require equal skill, effort, and responsibility under similar working conditions.  According to the Equal Employment Opportunity Commission (EEOC), wages can include more than just hourly or annual pay; they include bonuses, company cars, expense accounts, insurance, and other forms of compensation.  If an employee proves he was paid an unequal amount, the court can award back pay, attorney’s fees and litigation expenses.

Employment Discrimination

Employment discrimination can be considered a form of workplace injury.  This refers to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination and compensation, and various types of harassment.  Both federal and state laws regulate workplace discrimination so that it can vary from state to state.  Federal law prohibits employers from making professional decisions based on the following: age, disability, national origin, race, religion and sex.  The EEOC notes that discrimination based on race and gender are the two most commonly “reported” areas of discrimination.  However, that does not necessarily mean these are the two areas with the most discrimination.

Wrongful Retaliation

Closely related to the issue of discrimination is workplace retaliation.  Retaliation may occur in the workplace when an employer punishes an employee for an action permitted by law but which the employer wants to discourage.  For example, an employer may retaliate against an employee who makes harassment or discrimination complaints, reports workplace injuries, reports fraud or other wrongdoing or participates in an investigation.  Retaliation may come in many forms, from outright firing to demotions, being denied a promotion or a pay raise, or reassigned to a less desirable job or shift.  There are federal and state laws in place that protect employees from illegal retaliation in the workplace. 

Wrongful Termination

Wrongful termination occurs when an employee is fired for an illegal reason, such as unlawful discrimination.  Federal employment law provides that no employee can be fired based on race, gender, ethnic background, religion, or disability.  An employee may also have a wrongful termination case if fired for lodging a legal complaint against the employer or making whistleblower allegations exposing the employer’s wrongdoing.  Firing an employee for these reasons is illegal, even if she is an at-will employee.

Sexual Harassment

Sexual harassment is outlawed by Title VII of the Civil Rights Act of 1964 because it is a form of discrimination, as stated by the EEOC.  The agency defines sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”  More specifically, quid pro quo harassment involves a supervisor or person who has the power to make or recommend employment decisions, requiring an employee to accept unwanted advances or to participate in a sexual relationship in exchange for keeping their job or getting a promotion.

As stated last month, the Beasley Allen lawyers on the firm’s Employment Litigation Team are involved in ongoing trials or preparation for upcoming trials. Therefore, we will not write on the activity in those cases in this issue. We will keep our readers updated on future issues.

Beasley Allen lawyers have helped thousands of clients resolve workplace disputes under federal and state laws.  If you have questions about whether you are a victim of workplace violations or need help on a case, you can contact one of our lawyers on the Beasley Allen Employment Litigation Team. These lawyers are on the Team:
Lance Gould, Larry Golston, Leon Hampton, Lauren Miles and Jessi Haynes.

PREMISES LIABILITY LITIGATION

Atlanta’s Music Mid-Town Cancelled Over Fears Of Weapons

As many of our readers may be aware, states across the nation have passed laws permitting the concealed carry of firearms without a license on most public property. Alabama and Georgia are no exception, as they passed laws earlier this year legalizing concealed carry without a permit. We will save the argument on whether this is a good or bad idea. Still, the unintended consequences of the laws are a perfect example of why a rush to craft legislation can hurt local economies and potentially threaten human lives.

Recently, Atlanta canceled its annual Music Midtown event due to Georgia’s concealed carry law. Many artists and their labels reportedly feared performing in front of a large crowd where some – if not many – could be armed and under the influence of alcohol.  With some exceptions, the massive music festival has been occurring in Atlanta’s Piedmont Park since 2005 and has, at times, drawn as many as 300,000 attendees per year. The new law carries particular importance to Music Midtown because the festival takes place on public property (instead of private property, which is where concerts commonly occur). As a result, organizers could not prohibit the carrying of firearms at the festival. 

As a result of the cancellation, the City of Atlanta stands to lose at least $50 million in economic impact from the festival.  Our firm has previously worked on mass shooting events, including in Atlanta. For example, a few years ago, Beasley Allen lawyers were retained to help two families when two young men were murdered in a mass shooting at the Masquerade in downtown Atlanta. In that shooting event, two intoxicated individuals were allowed to enter the property and attend a concert with handguns. That night, they opened fire, and bullets hit four people – killing two of our clients’ loved ones. As our lawyers learned that night, handguns and intoxication do not mix, and the combination can lead to catastrophic consequences.

Lawyers in our firm have represented families in high-stakes, security-based shooting cases over the years. If you have any questions about these cases, contact our lead attorney on these cases, Parker Miller. Parker is in our Atlanta office and the firm’s Personal Injury & Products Liability Section.

Non-Delegable Duty Of Property Owners

Georgia law makes abundantly clear that a property owner owes a duty to invitees to exercise ordinary care to keep its premises and approaches safe. Sometimes, however, an invitee is injured due to a condition on the owner’s premises created by the owner’s independent contractor. This does not necessarily relieve the property owner of liability, however.

While it is true that an employer is generally not liable for the torts of its independent contractor, there are exceptions to this rule. One such exception exists where the independent contractor is performing the employer’s nondelegable statutory duty – and such a duty exists under OCGA § 51–3–1, referenced above. For example, in Kroger Co. v. Strickland, the Georgia Court of Appeals held that a business that hired an independent contractor to clean its floors could be held liable for the negligence of an independent subcontractor where the subcontractor’s negligence rendered the premises and approaches unsafe.

The property owner may only be relieved of its duty when it surrenders full possession and control to another party. The property owner can still be held liable even if it had no knowledge of a dangerous condition or was otherwise negligent in its own right.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these cases and numerous other premises liability and negligent security cases in Georgia and other states. If you have any questions about these cases, contact Parker or Houston.

Sources: OCGA § 51–3–1, Carpenter v. Sun Valley Properties, LLC, 645 S.E.2d 35 (2007), Kroger Co. v. Strickland, 548 S.E.2d 375 (2001)

TOXIC TORT LITIGATION

Bankruptcy Court Won’t Shield 3M Co From Bankruptcy

To shirk liability, 3M subsidiary Aearo recently filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of Indiana. In its initial filings, the company argued the lawsuits should be resolved in bankruptcy court, claiming the MDL process had failed and only a bankruptcy proceeding could deliver a fair outcome. Yet, in the same filings, the company only committed $1 billion to resolve roughly 230,000 claims. You can do the math on that and see that the amount is grossly inadequate. But more concerning is that Aearo created the bankruptcy circumstances by agreeing to indemnify 3M for all liability related to the defective earplugs just days before the filing.

Unsurprisingly, 3M and Aearo have faced harsh criticisms for these tactics. In response, veterans filed motions to block the bankruptcy plan. For example, one veteran argued that 3M cannot now say it is not liable for its subsidiary’s products because it failed to raise that defense over three years of litigation. Separately, another veteran requested that the federal judge overseeing the MDL issue an injunction barring 3M from taking any legal action to stop plaintiffs from pursuing earplug claims against it in district court.

During the hearings on those motions, U.S. District Judge M. Casey Rodgers of the Northern District of Florida, the federal judge overseeing veteran’s claims, expressed severe concerns that 3M’s strategy of dumping its liabilities onto a newly bankrupt subsidiary was an effort to dodge her rulings in the MDL.

In a subsequent hearing, Law.com reported that Judge Rodgers invoked the All Writs Act, ordering 3M not to relitigate the district court’s rulings in bankruptcy court. Judge Rodgers wrote:

Aearo’s written submissions and oral representations to the bankruptcy court are replete with substantive challenges to this court’s many legal and evidentiary rulings in the MDL. From this, the threat to this court’s previously exercised jurisdiction is undeniable. It cannot and will not be countenanced, and compels immediate action from this court by means of an All Writs Act injunction prohibiting 3M from attacking this court’s prior orders.

Judge Rodgers noted that she would commence contempt proceedings if 3M failed to uphold her order.

Judge Rodgers’ ruling came a day after the Chief Bankruptcy Judge Jeffrey Graham, in the Southern District of Indiana, started a hearing on Aearo’s motion for preliminary injunction extending bankruptcy protections to 3M regarding earplugs claims. After that hearing, Bankruptcy Judge Jeffrey J. Graham in Indianapolis ruled on Aug. 26 that 3M Co must face the more than 230,000 lawsuits accusing the company of selling defective earplugs to the U.S. military. The judge ruled that the bankruptcy of a 3M subsidiary did not stop lawsuits against the non-bankrupt parent company.

While the “sheer size” of the consolidated litigation may have spurred 3M and Aearo to seek “additional leverage” through the bankruptcy proceedings, that did not create a legal need to protect 3M, Judge Graham ruled.

Companies have in recent years increasingly abused the bankruptcy system by using bankruptcy proceedings to protect non-bankrupt owners and affiliates from litigation, with Johnson & Johnson’s effort to offload lawsuits alleging that its talc-based baby powder caused cancer is a recent example. The public will not tolerate blatant abuse of the bankruptcy courts. The 3M ruling is correct and will be overwhelmingly supported by the American people.

Melanie Cyganowski of Otterbourg PC, one of the lawyers who opposed Aearo’s request to extend the bankruptcy automatic stay to 3M, hailed Judge Graham’s decision during a call to Law360. She said:

This is a decision of major significance. It’s going to have ramifications for many other cases, including MDLs and other, similar cases that are pending on behalf of the complainants. We are very grateful for the thoughtful decision that the Indiana bankruptcy court gave this afternoon.

A spokesman for 3M said it intended to appeal Judge Graham’s order.

Sources: Law360, Reuters, and National Law Journal

Update On Paraquat MDL

The Paraquat Products Liability Litigation MDL was formed on June 8, 2021 (case No. 3:21-MD-3004), with Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois presiding.

The Paraquat Products Liability Litigation MDL is focused on plaintiffs who applied the total-kill herbicide paraquat and developed Parkinson’s disease.  Parkinson’s disease is a progressive neurodegenerative disorder of the brain that affects the motor system.  Scientists who study PD generally agree that fewer than 10% of all PD cases are caused by inherited genetic mutations alone and that more than 90% are caused by a combination of environmental factors, genetics, and the aging process. 

Paraquat is one such environmental trigger that has been shown to cause PD.  Paraquat creates oxidative stress in plants, which causes the degeneration and death of plant cells.  Paraquat also injures and kills human and other animal cells in the same way: by creating oxidative stress. A single molecule of paraquat can trigger this effect.  The oxidative stress created by paraquat is a major factor in proving causation between paraquat and Parkinson’s disease in the Paraquat MDL.

Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL.  The paraquat litigation team will be glad 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 accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms.

The Paraquat Litigation Team at Beasley Allen is made up with lawyers in our Toxic Torts Section. These lawyers handle the paraquat applicator cases. The lawyers on the team are:

Julia Merritt, who heads the team, Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section, and he works with the team on this important litigation. You can contact these lawyers for more information on the litigation, including the MDL.

PFAS Litigation Continues As Regulators Tighten Limits

Litigation over “forever chemicals” continues to be one of the fastest growing areas in toxic torts. Regulators continue to take action on per- and polyfluoroalkyl substances (PFAS), which have thousands of uses, from firefighting foam to food packaging to cosmetics. The label “forever chemicals” came about because of the longevity of PFAS in the human body and the environment. The chemicals have been found all over the country. The litigation is against the major manufacturers of PFAS, including 3M Co., DuPont de Nemours Inc., Tyco Fire Products LP and Chemours Co.

If ingested over a safe standard, PFAS can pose a cancer risk and affect the liver, immune system and fetuses during pregnancy, according to the U.S. Environmental Protection Agency, which drastically lowered the allowed levels for PFAS in drinking water earlier this summer.

Industry Mounts Legal Challenges To EPA On The PFAS Guidelines

On June 15, 2022, the EPA announced updated health advisories for PFAS chemicals.  Based on new science considering lifetime exposure, the updated levels for PFOA and PFOS are near zero.  EPA recommends that states, tribes, territories, and drinking water utilities that detect PFOA and PFOS take steps to reduce exposure.

The American Chemistry Council filed a lawsuit against the EPA over the new advisories.  The trade group for the chemical industry alleges that the EPA did not consider issues like economic realities and technological feasibility.  The advisory levels are not legally binding thresholds like Maximum Contaminant Levels or MCLs.  The EPA plans future regulations that will likely lead to such enforceable limits on water utilities.  Chemours, a DuPont spinoff known for PFAS manufacturing such as GenX, has also filed a lawsuit against the EPA, alleging the agency’s decision lacked scientific integrity.

As part of EPAs efforts to assess PFAS, the agency has been reviewing various issues to address PFAS contamination.  The EPA Science Advisory Board for PFAS has not yet finished its review of PFAS.  Some advisory board members have taken issues with the EPA’s systematic review, while other members agree with the determination that PFOA is a likely carcinogen.

These lawsuits are likely to be the beginning of ongoing challenges by industries that have been resistant to PFAS regulation for decades. If you have any questions, contact David Diab.

Roundup Litigation Update

Monsanto has petitioned the Eleventh Circuit to reconsider its recently published opinion concerning Dr. John Carson’s failure to warn claim, brought under Georgia state law. Monsanto says the decision does not align with current U.S. Supreme Court precedent. Specifically, Monsanto believes that the Eleventh Circuit used the incorrect test to review the preemption issue. By using a force of law test, a test that the Supreme Court has never applied to laws that expressly preempt state law requirements that differ from federal requirements, Monsanto is concerned that the Eleventh Circuit’s panel decision will have broad consequences beyond pesticide litigation by threatening issues for settled preemption principles existing in the medical and food labeling fields.

Meanwhile, the Ninth Circuit denied the EPA’s extension request to submit a reevaluation of an ecological assessment related to the EPA’s determination that the active ingredient in Monsanto’s Roundup was not likely to cause cancer. The EPA states that because of an Endangered Species Act consultation, which requires the agency to work with the U.S. Fish and Wildlife Service and the National Marine Fisheries Services, the agency will not be able to meet the deadline since the other agencies it must work with are not under any obligation to meet the court’s deadline.

Lastly, a new Roundup trial began in Missouri in August. The case involves three plaintiffs who developed different varieties of non-Hodgkin’s lymphoma. The jury trial is expected to last four to six weeks.

Beasley Allen’s Toxic Torts lawyers have been working closely with Monsanto to protect their clients’ best interests and are seeking a fair and reasonable resolution for them. Contact Rhon Jones, Will Sutton, or Matt Pettit for more information.

Bayer AG CEO Ordered To Testify In Roundup Case

Bayer AG is facing approximately 138,000 lawsuits claiming Roundup caused non-Hodgkin lymphoma, including a claim by agricultural worker Cornelius Kilgore and Labommie Kilgore. Last month, an Arkansas state Circuit Judge Robert Gibson ordered Bayer AG CEO Werner Baumann to be deposed about the cancer risks of the weedkiller Roundup, manufactured by Bayer AG subsidiary Monsanto. The ruling is the first time an executive has been ordered to testify about the weedkiller. Judge Gibson said:

Further, the plaintiffs have already agreed to go to Germany. Thus, there is very little burden for Mr. Baumann to take one day to be deposed on what may be the biggest issue his organization is facing.

 In 2018, Bayer purchased Monsanto for $63 billion, finalizing plans that began developing in 2016 after Baumann became CEO. Shortly after the purchase of Monsanto, Bayer lost its first Roundup trial. A California state jury agreed with the plaintiff, a school groundskeeper, that the weedkiller caused his cancer. The jury awarded the plaintiff $20.6 million. Bayer agreed to an $11 million settlement agreement in June 2020, saying that the amount “covered all claims with about 75% complete, and an allowance for the rest,” according to Law360.

The Kilgores filed their lawsuit in October 2021, three years after Cornelius was diagnosed with cancer at 43. Until then, he was unaware of the alleged link between the weedkiller and cancer. The Kilgores filed their lawsuit in Drew County Circuit Court in Arkansas. Mr. Kilgore explained that he had worked in various agricultural and maintenance landscaping positions for over two decades. According to his suit, he regularly came into contact with Roundup while working and maintaining his and his family’s properties.

The Kilgores are represented by Bart Rankin, Jay Utley, Joanna Raines McKinney and Joshua Richardson of Forrest Weldon Law Group LLP, James Onder, Mark Berns and W. Wylie Blair of Onder Law LLC, and McAlan Duncan and Matthew Stubbs of Duncan Stubbs PLLC.

The case is Kilgore v. Monsanto, case number 22CV-21-138 in the Circuit Court of Drew County, Arkansas.

Class Action Litigation

Honda Idle Stop Defect Class Action Lawsuit Filed

In June, our firm’s auto defect class action group filed a new defect class action against Honda Motor Company in the U.S. District Court of California’s Central District. Our plaintiff, Hamid Bolooki’s 2016 Honda Pilot, suffers from the Idle Stop Defect that renders his vehicle inoperable without notice. The defective Class Vehicles are the 2016-2020 model year Honda Pilot, Honda Odyssey, Acura TLX, and Acura MDX vehicles equipped with the idle stop feature.

Honda’s idle-stop feature is a fuel-saving measure that automatically shuts off the gasoline engine when the computer detects that the vehicle is sitting while in gear, such as at a stop light or in a line of traffic. If performing as designed, the idle-stop feature should restart the gasoline engine upon release of the brake pedal, promptly restoring motive power to the driver.  However, the Class Vehicles suffer a dangerous defect – the +engines do not restart upon release of the brake pedal – putting the safety of drivers and passengers at risk. 

Plaintiff Hamid Bolooki’s Honda Pilot fails to restart upon release of the brake pedal or use of the accelerator and separately refuses to restart upon activation of the engine start/stop button.  A defect of this magnitude renders the vehicles highly unsafe to drive.

Plaintiff Bolooki’s complaint alleges that he and all other Florida “purchasers and lessees of class vehicles unwittingly paid for a vehicle with an undisclosed and significant safety defect.”  Plaintiff Bolooki also alleges that Honda violated the Florida Deceptive and Unfair Trade Practices and Magnuson-Moss Warranty Acts, committed breach of warranty and fraudulent concealment/omission and was unjustly enriched through the sale and lease of the dangerous defective class vehicles. As a result, Bolooki seeks to represent a nationwide class and Florida subclass of consumers who purchased or leased a Honda vehicle affected by the idle-stop defect.

Our firm has successfully represented millions of consumers in class actions that present a danger to consumers.  We continue to do so, as with the Honda Pilot, to do our best to keep unsafe products off the market, especially off the roadways. Mr. Bolooki, and potentially all Honda Pilot owners, are represented by our lawyers Dee Miles, Clay Barnett, and Mitch Williams, in conjunction with fellow lawyers C. Moze Cowper of Cowper Law PC; Adam J. Levitt, John E. Tangren and Daniel R. Ferri of Dicello Levitt Gutzler LLC; and Andrew Trailor of Andrew T. Trailor, P.A.

We will keep our readers posted on any further developments in this case.

VW Diesel-Gate MDL Ruling On Software Divisibility Issue

Like many other regulatory agencies, the Environmental Protection Commission of Hillsborough County, Florida (EPC) filed claims against Volkswagen (VW) for violating its prohibitions on tampering by installing additional cheating software to certain diesel vehicles sold to customers with defeat devices already installed.

Specifically, the defeat devices initially installed in these vehicles allowed the vehicles to determine if it was undergoing an emissions test—in which case, the emissions control system would function as required (in “Dyno” mode) and limit the emissions put out by the vehicle.  If the vehicle determined no emissions test was being performed, the defeat device allowed it to bypass the emissions control system and run in “road mode” or “dirty mode,” emitting significantly higher levels of pollutants.

When the vehicles started exhibiting certain hardware failures, VW suspected the cause was due to the time the vehicles were spending in Dyno mode.  It engineered a software update on these vehicles that would (1) ensure the vehicles were starting in Road Mode rather than Dyno Mode and then switching to Road Mode; and (2) add a “Steering Wheel Angle Recognition Function” that would increase the vehicle’s ability to determine whether it was undergoing testing by analyzing the angle of the steering wheel. 

In order to avoid liability for these individual aspects of the recalls, VW asked the Northern District of California to limit the counties’ ability to discover and introduce evidence regarding the emissions results of each of these individual functions.  A hearing on the issue was held on July 15, 2022.  Holding that “any modification or alleged tampering that was accomplished at one time is indivisible and can qualify as only one instance of tampering under the relevant regulations,” U.S. District Court Judge Charles R. Breyer effectively narrowed the scope of discovery in the case.

While the EPC cannot test the ultimate effect on emissions of each of these individual update functions, the parties are now engaged in discovery for the overall emissions impact of the recall updates.  VW has filed a motion for partial summary judgment on this issue.

Importantly, EPC maintains that the relevant regulation does not require the updates to have had any certain impact on emissions for VW to be liable.  Rather, if VW intentionally tampered with the emissions control system of the vehicles—which it has publicly admitted it has—VW is necessarily liable under EPC’s Rule 1-8.

A hearing on VW’s partial summary judgment has been scheduled for September 30, 2022.  EPC is represented by Beasley Allen lawyers Dee Miles, Ali Hawthorne, Lance Gould, Rachel Minder, and Tyner Helms. If you need more information or have questions, contact one of these lawyers.

Class Action Settlements

Meta Agrees To $37.5 Million Settlement Resolving Tracking Tech Claims

A proposed $37.5 million settlement between Meta (parent company of Facebook) and social media users was presented to a California federal judge August 22. If approved, the settlement will “resolve users’ claims that Meta violated its own privacy policy when it collected, stored and monetized the users’ location data for taregeted advertising on Facebook, even after they turned off location services on their mobile devices,” Law360 reported.

Brendan Lundy, Myriah Watkins, Elizabeth Childers, Michelle Agnitti and Robin Hodge represent the class. Lundy and Watkins began the class action in November 2018, which included privacy, consumer protection and fraud claims. Childers joined the complaint after the court partially granted Meta’s motion to dismiss. She added Hodge and Agnitti and amended the complaint. The amended complaint removed the privacy claims from the original complaint and focused on contract, fraud and unjust enrichment claims instead. Although Meta attempted again to have the case tossed out of court, the court largely rejected the motion.

Class members include people in the U.S. who used the social media platform between Jan. 30, 2015 and April 18, 2019. Additionally, the users had iOS or Android devices with location services settings turned off for the Facebook app at any time during that period but whose location information Facebook inferred by tracking the user’s IP addresses.

The plaintiffs estimates that the class could be as large as 70 million people. They said, “Assuming a class size of approximately 70 million users, the settlement amount represents 53% of what plaintiffs could have recovered under a nominal damages theory based on a judgment of $1 per class member.”

The discovery was massive with the plaintiffs producing more than 3,000 pages of documents and the defendant producing more than 100,00 pages, according to Law360. The motion requesting the proposed settlement be approved said that the parties entered into mediation in June following discovery. It also noted that class representatives may seek up to $5,000 for service awards.

The users in the Meta case are represented by Sabita J. Soneji of Tycko & Zavareei LLP, Barrett J. Vahle and Jillian R. Dent of Stueve Siegel Hanson LLP, Franklin D. Azar, Paul R. Wood and Michael D. Murphy of Franklin D. Azar & Associates PC and Ivy T. Ngo of Roche Freedman LLP.

The case is Brendan Lundy et al. v. Meta Platforms Inc., case number 3:18-cv-06793, in the U.S. District Court for the Northern District of California.

Source: Law360.com

CVR Refining To Settle Forced Buyback Suit For $78.5 Million

A Deleware Chancery Court has been asked to approve a $78.5 million settlement agreement in a lawsuit over an involuntary buyback of units for Carl Icahn-affiliated CVR Refining LP in 2019. The former unit holders claim the buyback cost them $148 million. If approved, the settlement “would be distributed to stockholders after provisions for attorney fees, expenses and settlement administration costs,” according to Law360.

The former unit holders filed the lawsuit claiming damages based on the unaffected CVR units before the defendants announced a voluntary price cashout on Nov. 29, 2018. The amount was fixed at $6.45 per unit, or $147.8 million. A four-day trial was held in July 2021 and a post-trail argument was held in June. Chancellor Kathaleen St. Jude McCormick granted class certification July 21.

Plaintiffs argued that the defendants Icahn, Icahn Enterprises LP, CVR and its affiliates, purposefully kept public investors “uninformed and misinformed.” Then implemented the forced buyback effort after deciding to change CVR’s status as a master limited partnership. Plaintiffs say the defendants put into motion “a two-step plan that enabled a call-in of minority holder rights,” Law360 reported. However, this occurred following the defendant’s attempts to decrease the units’ value.

The first step “pushed through a $27.63 partial exchanges offer for CVR unites that enabled a later call-in of remaining units.” During the process, actions took place that plaintiffs allege decreased the price so that defendants only paid $10.50 per remaining units.

Icahn testified during trial that he, too, lost hundreds of millions on the deal and described the case as being based on an “oxymoron,” according to Law360.

The unit holders are represented by Joel Friedlander and Jeffrey M. Gorris of Friedlander & Gorris PA, Mark Lebovitch and Thomas G. James of Bernstein Litowitz Berger & Grossman LLP, and Lawrence Deutsch of Berger Montague PC. The case is In re: CVR Refining LP Unitholder Litigation, case number 2019-0062, in the Court of Chancery of the State of Delaware.

 Source: Law360.com

FirstEnergy Investors $180 Million Settlement Approved

U.S. District Judge Algenon L. Marbley granted final approval to investors suing electric company, FirstEnergy Corp for a $180 million settlement. The settlement will end the derivative suits consolidated in the Southern District of Ohio over a bribery scandal. The HB6 scandal involved the defendant company and the Ohio legislature.

Judge Marbley granted approval Aug. 23 and also ordered a reduction of attorneys fees in the case to $12 million. The settlement allows corporate governance reforms to begin, which Judge Marbley noted will remain in place for at least fiver years following approval of the settlement.

The governance reforms include the leaving of the six directors who were on the board during the occurrence of the bribery scheme. They include defendants defendants Michael J. Anderson, Julia L. Johnson, Donald T. Misheff, Thomas N. Mitchell, Christopher D. Pappas and Luis A. Reyes. Additionally, FirstEnergy agreed to active board oversight of its political spending and lobbying activities. It must also make specific disclosures to shareholders in its annual proxy statements. FirstEnergy has agreed to other governance reforms in exchange for deferred prosecution by the U.S. Department of Justice (DOJ).

The governance reforms have been evaluated by a Columbia law professor and Jeffrey Gordon, a corporate governance expert, Judge Marbley explained. The plaintiffs retained Gordon and he testified that the reforms “will significantly improve shareholder welfare at FirstEnergy” by assuring “against a recurrence of the conduct” that led to this case.

In July 2021, FirstEnergy admitted to bribing then-Ohio House Speaker Larry Householder and paid a $230 million penalty to the DOJ to forego prosecution. The bribe was for a $1.3 billion bailout of the defendant’s nuclear power plants.

The settlement is funded by the defendant’s insurers and is “among the largest derivative recoveries ever achieved” in the country and is “three times greater than any prior derivative recovery in the history of the Sixth Circuit,” according to the plaintiffs’ lawyers.

U.S. District Judge John Adams is overseeing one of two other derivative actions over the bribery scandal in the Norther District of Ohio. The other additional derivative action is pending in Ohio state court. However, Judge Marbley noted as part of the settlement that the parties agreed to jointly move to dismiss the other two actions and if denied, will appeal.

Judge Adams refuses to dismiss the action he is overseeing and called for new lawyers to be appointed to the case. He has criticized the settlement saying that it encourages forum shopping – to find a court that was more favorable to the proposed settlement than his court.

According to Law360, FirstEnergy’s cost in the litigation includes “$427.5 million in direct costs, including $60 million allegedly misappropriated as bribes, more than $100 million in compensation paid to individual defendants during the alleged scheme” in addition to the $230 million fine it paid to the DOJ. There is also “a $37.5 million pending settlement of the ratepayer class action.”

Donovan is represented by Subodh Chandra and Donald Screen of The Chandra Law Firm and David Stone of Stone & Magnanini LLP. The plaintiffs are represented by John Camillus of the Law Offices of John C. Camillus LLC and attorneys from Saxena White PA, Bernstein Litowitz Berger & Grossmann LLP and Cohen Milstein Sellers & Toll PLLC.

The case is Employees Retirement System of the City of St. Louis et al. v. Jones et al., case number 2:20-cv-04813, in the U.S. District Court for the Southern District of Ohio.

Source: Law360.com

Robinhood’s $20 Million Settlement Over Data Breach Gets Initial Approval

Robinhood users are one step closer to finalizing a $20 million settlement with the stock-trading app platform, Law360 reported. U.S. Magistrate Judge Susan van Keulen gave preliminary approval to the agreement during a hearing held via Zoom.

Class members include users in the U.S. who reported to Robinhood that unauthorized access had been granted to their accounts between Jan. 1, 2020, and April 27, 2022. It does not include those affected by a separate data security incident the company announced last November. Those claims are part of a separate pending litigation.

Judge Keulen determined that the deal seems fair and reasonable. The settlement will end a putative class action against Robinhood that alleges it did not do enough to protect the private information of thousands of user accounts exposed during a data breach.

She also noted that no class members had objected and the $500,000 proposed for attorney fees and expenses seem suitable. She doesn’t plan to rule on that part of the proposal until later.

Robinhood must pay class members up $260 each for those claiming out-of-pocket losses if approved. Robinhood’s payments will be capped at $500,000. The defendant will also provide two years of credit monitoring and identity theft protection services to class members. The benefits would be valued at approximately $19.5 million if used by all eligible individuals. Additionally, the plaintiffs’ lawyer says Robinhood agreed to make several data security improvements.

Siddharth Mehta filed the lawsuit in January 2021, claiming the defendant failed to take “industry-standard security measures” they believe could have prevented access to approximately 40,000 users’ accounts by third parties since 2020, Law360 reported. Mehta filed the lawsuit in state court, and Robinhood removed it to federal court. Afterward, Mehta amended the case to include Kevin Qian and Michael Furtado, two other named plaintiffs.

Judge Keulen dismissed approximately half the claims in the lawsuit in May 2021. She determined those claims were lacking for breach of contract and violations of the Customer  Records Act, the Consumers Legal Remedies Act, the False Advertising Law and the fraud-related prong of the Unfair Competition Law. However, she allowed the plaintiffs whose claims were dismissed the opportunity to address the deficiencies and replead their claims.

The plaintiffs amended their lawsuit and escaped another attempt to have the case dismissed. The parties went to mediation. Mehta, the original plaintiff, supports the proposed settlement but is pursuing an individual resolution in arbitration based on court documents, Law360 reported.

The plaintiffs and settlement class are represented by Julie Erickson, Elizabeth Kramer and Kevin Osborne of Erickson Kramer Osborne LLP.

The case is Siddharth Mehta et al. v. Robinhood Financial LLC et al., case number 5:21-cv-01013, in the U.S. District Court for the Northern District of California.

PwC Settles Sweeping Benefits Class Action

Parties in a PwC benefits class action asked U.S. District Judge J. Paul Oetken on Aug. 3 to stay further proceedings in the Employee Retirement Income Security Act (ERISA) case. The class of around 17,000 retirees and PwC say they have agreed to a settlement in principle and asked the court for 45 days to complete the agreement, according to Law360.

The retirees had claimed that PwC cheated them out of their lump-sum retirement benefits.

In 2006, the retiree plaintiffs filed the initial lawsuit against PwC, alleging that the company cheated them out of their lump-sum retirement benefits by defying ERISA’s standards for calculating the benefits. Although PwC earned $22.1 billion a year in revenue, the plaintiffs claimed that the company used the wrong rate to calculate pensions in order to save money. 

The district court, holding for the retirees in 2013, said PwC’s calculations were unlawful, and class certification was granted the next year. On appeal by PwC, the Second Circuit affirmed the district court’s ruling, finding that the defendant’s benefit calculation method violated ERISA. It sent the case back to the lower court, where PwC again sought dismissal. The district court agreed with PwC in its 2017 ruling that ERISA didn’t owe the retirees any remedies, Law360 reported.

The retirees appealed the ruling to the Second Circuit in 2019. They were supported by the U.S. Department of Labor, which filed an amicus brief on the plaintiffs’ behalf. PwC received support from the U.S. Chamber of Commerce, and in December 2019, the Second Circuit reversed the district court’s ruling in favor of PwC. As Law360 summarized, the Second Circuit found that “the workers were allowed to seek reformation of their retirement plan under Section 502(a)(3) of ERISA and enforcement of the reformed plan under Section 502(a)(1)(B).”

Last October, the parties were once again back in district court, and the defendants asked the court to reconsider its refusal to decertify the class and the partial summary judgment granted to the plaintiffs. The court refused. According to Law360, in June 2021, the U.S. Supreme Court denied PwC’s petition for certiorari.

The class is represented by Eli Gottesdiener and Albert Huang of Gottesdiener Law Firm PLLC. The case is Timothy D. Laurent et al. v.PwC, case number 1:06-cv-02280, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

A Record Settlement In The Class Action Litigation Involving Fifth Third Bank

On Aug. 5, U.S. District Judge Rebecca Pallmeyer approved a $50 million settlement in the case involving two banks over claims that the banks’ telemarketing calls violated California’s Invasion of Privacy Act. Fifth Third Bank, Vantiv Inc. and National Processing Co. are the defendants in the case.

Regarding the amount of the settlement, Judge Pallmeyer said that it “provides a substantial recovery and is larger than any prior settlement of a class action lawsuit brought under the California Invasion of Privacy Act.”

The suit was filed by three plaintiffs, Sat Narayan, Robert Meyer and Taysir Tayeh, doing business as Express Hauling, Mangia Nosh and Chief’s Market, respectively. They alleged that the banks violated the Act by hiring telemarketers who called merchants but failed to let them know the calls were being recorded.

There are more than 300,000 potential class members. The motion that was filed seeking approval of the settlement explained that the potential class members received approximately 1,153,324 recorded phone calls between May 2014 and July 2016. Individuals can submit a claim of up to $5,000 for each call they received according to the terms of the settlement agreement.

Additionally, Judge Pallmeyer determined that the requested attorneys’ fees are fair and reasonable “considering the value of the settlement, the benefits conferred on the class, the risks undertaken by settlement class counsel, [and] settlement class counsel’s knowledge and experience.”

After deducting the $15,000 incentive award for the three plaintiffs ($5,000 each) and administration costs, the attorneys’ fees award is about one-third of the settlement fund. Judge Pallmeyer said, “This request is consistent with the market rate for awarding attorneys’ fees in class cases in this circuit.”

Law360 noted that “[t]he court also granted class counsel’s request for reimbursement of $352,616.23 for their costs, which was mostly for the electronic hosting of the document production, deposition transcripts, legal research costs and copying costs.”

The judge said there was little opposition from class members to the settlement. None of the approximately 307,954 potential class members objected, and only 19 chose to opt-out. The judge reported that approximately 33,000 class members have submitted a claim and plan to participate in the settlement. The class member business owners specifically claimed in the suit that:

• banks, including Fifth Third and Wells Fargo Bank, hired International Payment Services and Ironwood to sell credit card and debit card payment processing services to businesses across the country.
• The companies then called merchants and asked about their monthly or annual credit or debit card sales volume without disclosing that the calls were recorded.

Fifth Third Bank, Vantiv and National Processing Co. (now known as Worldpay ISO Inc.) have all been dismissed from the case due to the settlement. The court also dismisses Ironwood from the litigation as a result of the settlement. In March, the three defendant banks told the court they had reached a settlement. They said they would pay an “unprecedented” $50 million to settle the remaining claims, court documents said.

The plaintiffs are represented by Myron M. Cherry, Jacie C. Zolna, Benjamin R. Swetland, Jeremiah W. Nixon and Jessica C. Chavin of Myron M. Cherry & Associates LLC.

The case is Wang et al. v. Fifth Third Bank et al., case number 1:16-cv-11223, in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

$60 Million Morgan Stanley Settlement Gets Final Approval

New York federal judge, U.S. District Judge Paul A. Engelmayer, issued two rulings on Aug. 5 in a case involving Morgan Stanley and a class of current and former customers, Law360 reported. Judge Englemayer granted class certification and approved a $60 million settlement between the parties. He also approved attorneys fees, costs of litigation and the service awards for the lead plaintiffs in the case. Judge Englemayer lowered the requested $20 million to $13.6 million in attorneys fees.

The class includes 15 million current and former Morgan Stanley customers, and in addition to the $60 million paid to the class, the financial firm will provide two years of fraud insurance and prevention services to class members. The defendant will also pay all notice and administrative costs—the plaintiffs estimate this amount to be about $8.2 million.

According to Law360, “Morgan Stanley had agreed to pay a $60 million fine to the Office of the Comptroller of the Currency in 2020 over its alleged use of unsafe information security practices and was directed by the regulator at the same time to notify customers of a data breach in 2016.”

Judge Englemayer also approved $253,000 in litigation cost reimbursements and approved a $5,000 service award to each of the 11 named plaintiffs.

Plaintiffs filed lawsuits beginning in the summer of 2020 after the defendant notified consumers of “potential data security incidents” that resulted after two of its data centers were closed in 2016 and the replacement of computer equipment at one of its branches in 2019.

The class is represented by Jean S. Martin and Francesca Kester of Morgan & Morgan, and Linda P. Nussbaum and Susan R. Schwaiger of Nussbaum Law Group PC.

The case is In re: Morgan Stanley Data Security Litigation, case number 1:20-cv-05914, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Settlement In Gold Benchmark Manipulation Litigation

Final approval of a $50 million settlement agreement by New York federal judge U.S. District Judge Valerie E. Caproni will end a class action lawsuit against Barclays Bank PLC, Scotiabank, Societe Generale, London Gold Market Fixing Ltd. and gold traders. The traders claim that the banks colluded to fix gold market prices illegally.

Judge Caproni also awarded $15.6 million in attorneys fees to lawyers from Quinn Emanuel Urquhart & Sullivan LLP and Berger Montague PC for their role in the settlement, recognizing the lawyers’ “skill, perseverance, and diligent advocacy.”  Additionally, she certified the class including “all individuals and entities who traded gold or financial instruments with gold as their underlying asset between January 2004 and June 2013,” Law360 reported. Judge Caproni said:

The settlement … was fairly and honestly negotiated by counsel with significant experience litigating antitrust class actions and other complex litigation and is the result of vigorous arm’s-length negotiations undertaken in good faith.

The putative antitrust class action was filed in March 2014. It involves 18 consolidated suits. The settlement approved last month is the third and final settlement in the putative class action. It brings the total amount received by the plaintiffs to $152 million, the gold traders’ motion for preliminary approval filed in November said.

The plaintiffs claim that London Gold Market Fixing members met privately to share information on the real-time price of gold. They used the information to establish a rate that was beneficial to them. These members included Barclays, HSBC and Deutsche Bank, according to Law360 in citing the lawsuit.

Before this settlement, Deutsche Bank AG settled in December 2016 for $60 million, and HSBC Bank settled in December 2020 for $42 million. In 2018, the court dismissed UBS AG from the suit.

A $127 million settlement agreement was reached between Scotiabank and the U.S. government to settle claims of precious metals futures spoofing. Scotiabank has also agreed to settle a separate proposed class action linked to the precious metals spoofing claims. Plaintiffs Casey Sterk and Kevin Maher allege that Scotiabank participated in manipulative trading in the gold, silver, platinum and palladium futures contracts markets on the New York Mercantile Exchange and Comex. They allege this activity occurred from 2008 to 2016.

The gold traders are represented by Merrill G. Davidoff, Martin I. Twersky, Michael C. Dell’Angelo, Candice J. Enders and Zachary D. Caplan of Berger Montague PC and by Daniel L. Brockett, Sami H. Rashid, Alexee Deep Conroy, Christopher M. Seck and Jeremy D. Andersen of Quinn Emanuel Urquhart & Sullivan LLP.

The case is In re: Commodity Exchange Inc., Gold Futures and Options Trading Litigation, case number 1:14-md-02548, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Class Action Lawyers At Beasley Allen

Beasley Allen is heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the Section who handle class action cases are:
Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin.

THE CONSUMER CORNER

TJX Agrees To Pay $13 Million To The CPSC For Selling Dangerous Recalled Fisher-Price Rock ‘n Play Sleeper Products

On Aug. 2, the Consumer Product Safety Commission (CPSC) announced that it had entered into a settlement with TJX Companies. TJX agreed to pay a $13 million civil penalty for selling, offering for sale, and distributing previously recalled products, including hundreds of the Fisher-Price Rock ‘n Play inclined infant sleeper products linked to infant fatalities. TJX owns and operates the TJ Maxx, Marshall’s and HomeGoods discount retail chains.

The Consumer Safety Protection Act (CSPA) makes it unlawful to sell, offer for sale, manufacture for sale, distribute or import any consumer product that is subject to “voluntary corrective action” – a recall – by a manufacturer. Any person who knowingly violates this provision of the CSPA is subject to civil penalties.

The CPSC alleged there was ample evidence that TJX knew previously recalled products were offered for sale in its stores because TJX had been reporting to the CPSC for some time that it had identified such sales and promised to correct the problem. 

In addition to the Fisher-Price Rock ‘n Play Sleeper, the settlement covers a range of other consumer products that present choking, laceration, and fire risks, which were sold after they were recalled. The Fisher-Price Rock ‘n Play Sleeper poses a risk of infant suffocation due to its 30-degree incline. In total, between 2015-2019, TJX stores sold over 1,200 post-recall products, a large majority of which – 960 – were products that posed a risk of infant fatalities. These include one other inclined sleeper, the Kids II Rocking Sleeper, infant clothing, rattles, and highchairs. 

TJX sold what one CSPC commissioner called the “deadly” Rock ‘n Play Sleeper for just over five months after it was recalled on April 14, 2019. Yet Fisher-Price’s inclined sleepers account for a third of the recalled infant products TJX sold over five years.

The Rock ‘n Play Sleeper was wildly popular with parents because its inclined sleeping angle lulled babies to fall and stay asleep, allowing new parents to get much-needed rest and sleep themselves. It is now known that one hundred babies died in it because the angle of the sleeper can cause the babies’ heads to fall on their chests and constrict their windpipes. There may be more deaths that were not reported. There are also hundreds of reported cases of babies developing plagiocephaly and torticollis from being in the sleeper. These head and neck deformities often require infants to wear helmets and undergo physical therapy.

TJX’s $13 million settlement is close to the $15 million maximum civil penalty the CPSC could have recovered if it had sued the company and won.

As part of the settlement, TJX also agreed to develop and implement a compliance program with measures to ensure that recalled products are not sold in its brick-and-mortar stores and online, including a program to accurately and effectively identify, quarantine and dispose of the recalled products. In addition, TJX agreed to implement internal controls to ensure compliance with the Consumer Product Safety Act by establishing procedures to review claims, report safety concerns, and implement corrective and preventative action when deficiencies are identified, with oversight by senior management. TJX also agreed to submit annual reports to the CPSC regarding its compliance program and internal controls for the next five years.

Ironically, while the CPSC was successful in its dogged efforts to impose a hefty civil penalty on TJX for selling 1,200 recalled products over five years, the CPSC took no action against toy giant Mattel, which sold 4.7 million units of the Rock ‘n Play Sleeper over 10 years, all the while knowing of the infant deaths and injuries in its sleepers. Further, it was repeatedly warned that the Sleeper was dangerous and knew that the American Association of Pediatricians recommended that the only safe sleep environment for babies is on a flat surface free with no bedding.

In June 2021, the House Oversight Committee issued a 38-page report detailing its investigation of the Sleeper. It concluded that Fisher-Price “continued to market [the Sleeper] for overnight sleep despite clear evidence that this put infants at risk of serious harm or death.” The report also found the CPSC did not adequately exercise its oversight authority over Fisher-Price.

Interestingly, the CSPC had imposed civil penalties on Fisher-Price three times between 2001 and 2009 for failing to report dangerous toys and selling toys with lead paint, none of which had resulted in infant deaths.

Mattel finally recalled the Rock ‘n Play Sleeper in April 2019 after Consumer Reports published an article reporting thirty-two infants had died in the product.

Under the CSPC-approved recall, only consumers who purchased the Rock ‘n Play during the six months preceding the recall receive a refund. The vast majority who purchased the product before then receive a voucher to purchase a Fisher-Price product. Participation in the recall requires too much time and inconvenience to busy parents. Safety and recall experts have criticized the recall, which was prominently featured in a Senate report about failed recalls.

Lawyers in our firm are currently litigating a consumer fraud multidistrict litigation against Mattel and Fisher-Price In re: Rock ‘n Play Sleeper Marketing, Sales Practices, and Products Liability Litigation (Case No. 1:19-md-02903) in the U.S. District Court for the Western District of New York.  

Lead counsel Demet Basar and James Eubank, and Paul Evans of Beasley Allen represent the plaintiff class members. Terry Connors and Andrew M. Debbins of Connors, LLP, a Buffalo, New York, firm, also represent the class. If you need more information, contact Demet Basar.

PBM Transparency Act Of 2022

As state and federal legislators continue to recognize the serious adverse effects of the unfair and deceptive acts committed by pharmacy benefit managers (PBMs) in our country, the issue of putting a stop to it all has come to the forefront of U.S. health policy.

The U.S. Senate recently proposed The Pharmacy Benefit Manager Transparency Act of 2022 (the Act), which Senators Maria Cantwell and Chuck Grassley introduced.  The Act aims to require fairness and transparency of PBMs while vesting authority with the Federal Trade Commission (FTC) and state attorneys general with enforcement power to prosecute PBMs for their unfair and deceptive practices.

Among other practices, the Act would make it illegal for PBMs to engage in various unfair practices, such as spread pricing and clawbacks. PBMS would also be prohibited under the Act from arbitrarily and unfairly under reimbursing pharmacies for prescription drugs. 

The Act also attempts to make PBMs more transparent with drug pricing and fees.   For example, the Act provides that a PBM will not violate the Act if the PBM passes through 100% of its price concessions to a plan or third party payor and provides disclosure of (a) the cost of prescription drugs to each health plan, payer, and pharmacy; (b) all fees, markups, and discounts the PBM charges to each health plan, payer, and pharmacy; and (c) any rebate, discount, administration fee, and any other payment or credit obtained or retained by PBM from drug manufacturers.

The Act further requires various reporting requirements of PBMs, such as annual reports to the FTC concerning spread pricing, fees, clawbacks, and drug formularies, who then would submit certain reports to Congress.

One of the most powerful aspects of the Act is the enforcement power and the available penalties that can be recovered against a PBM for their violations of the Act.  The FTC and the state attorneys general have authority to enforce the Act, providing for civil penalties per violation.  While each state law may differ, the FTC can recover up to $1,000,000 in civil penalties. 

Legislation is undoubtedly a powerful tool to end the wrongful conduct of PBMs. Still, we should not be surprised to see an increase in litigation against PBMs across the country as they continue to become more concentrated and powerful in the healthcare industry. 

Over the years, Beasley Allen has joined the fight to combat the unfair and deceptive acts concerning drug pricing through our representation of states against drug manufacturers and PBMs. 

Our firm welcomes the opportunity to investigate potential drug manufacturers and PBM misconduct.  If you have any questions about PBMs and their unlawful practices, contact Dee Miles, Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section.

Source: The National Law Review

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
• Retirement Plans
• Toxic Exposure
• Whistleblower

Cases

The cases in the categories listed below are handled by lawyers in the appropriate 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
• Belviq
• Benzene in Deodorant
• Benzene in Sunscreen
• Camp Lejeune
• CPAP Devices
• Defective Tires
• JUUL Vaping Devices
• Mesothelioma
• NEC Baby Formula
• On-the-Job-Injuries
• Paraquat
• Social Media
• Talcum Powder
• Truck Accidents
• Vaginal Rejuvenation

Resources to Help Your Law Practice

Beasley Allen only handles litigation for individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. All of us at the firm are humbled and pleased 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. We consider that to be an honor and a privilege. Our firm does no “defense work” for Corporate America at all by choice.

Beasley Allen has 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. 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

Time Management Tips For Lawyers

Lance Gould, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, has some tips for lawyers that I believe will be helpful. Lance, a talented lawyer, has had vast trial experience over the years. Let’s see what Lance has for us.

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Your job is demanding. For many lawyers, long workdays are common, and the demands of the job can take more time than you have in a day. If you always find yourself buried under stress with too much work and too little time, here are some time-tested time management tips to help you focus and become more productive:

Understanding – Start with the basics of time management and assess the projects you handle throughout the day, including the time needed to complete the many tasks. Logging the hours spent on individual tasks can give a clearer picture of how you use your time. It can also highlight patterns in your workday. This information will serve as a benchmark for creating goals to improve time management.

Task List – Compiling a list of tasks allows you to see all that you have to do so that you can complete the items efficiently and by deadline. It also provides a system of accountability. As you wrap up a workday, set aside time to list all the tasks you need to accomplish the next day. This will help you prioritize and give you a clear idea of what exactly you need to do and will keep you motivated to reach a certain target. Be realistic when approaching this exercise, and don’t add more items than you can handle in a single day.

Set Deadlines – Adding internal deadlines to your calendar and respecting them like you do external ones, such as court deadlines, provides structure for managing and completing daily and routine tasks. Don’t forget to establish timeframes for finishing common tasks such as returning phone calls or checking and responding to emails.

Emails – Establish times for checking and responding to emails and stick to them. Once your allotted time is up, close it down. Leaving your email open all day creates a constant distraction, wastes time and is inefficient. Take charge of your email and stop letting it control how you work.

Stop Multitasking – In general, multitasking is second nature to lawyers. While it gives the illusion of saving time, research shows that attempting to work on more than one task at a time reduces your efficiency and effectiveness for any projects being handled this way. Switching between tasks requires several minutes to transition and re-focus. Focusing on one task for a prolonged period will help improve efficiency and effectiveness of all tasks.

Interruptions – Practicing law comes with a huge set of distractions, from drop-bys in your office to unscheduled phone calls and email alerts. Eliminating all distractions is not realistic. However, learning to limit them as much as possible will help you accomplish more in shorter workday periods. You may find closing your email, silencing your phone or leaving a note on your office door to not interrupt your work may help limit distractions.

Delegate – The only way to survive the frenzy of a busy day is to prioritize, then delegate. Most lawyers find it hard to turn down work, yet committing to too many tasks can thwart your ability to achieve the standards expected by your clients. Evaluate the items on your list that can be delegated to a law clerk, paralegal or legal secretary to reclaim time that can be used for more urgent and important tasks.  

Most Productive – Get your calendar in order and determine what time of day you operate at your peak level to maximize your productivity. Designate that time of day to complete tasks that require more brainpower. Plan to complete more routine tasks, such as checking emails and administrative tasks, at other points during the day to boost your productivity.

Time management is an ever-evolving skill that demands flexibility, active thought, practice and constant progress. Changes in work environments, job requirements, preferences and personality contribute to the need to try different methods. You will hone this skill as you practice and learn what works best for you. The result – more efficiency and productivity and better quality work – will happen.

Sources: Veritext, Lead IP, Law Technology Today and Postali

RECALLS UPDATE

A large number of safety-related recalls were issued during August. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We try to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact us 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

Employee Spotlights

Dixie Carter

Dixie Carter works in the firm’s Mass Torts Section as a Legal Secretary. She is responsible for various tasks and projects, including emailing referring attorney letters, mailing other types of letters, and updating the firm’s case management system as required. Dixie is also responsible for downloading medical images from the MicroDicom program and working with Staff Assistants on entering those images into the firm’s case management system. Dixie has been with the firm for seven years and has been an integral part of the Beasley Allen team in the Mass Torts Section.

Dixie and Steve live in Ramer, Alabama. Dixie shares that Steve is a Bowyer who makes custom longbows for customers worldwide. Dixie grew up in San Diego, California, but has lived in Alabama since the early 1970s. This came about after her father retired from the U.S. Navy. Soon after high school, Dixie attended school for Cosmetology and continued in that field until after having her children. Dixie says she has two beautiful daughters, Julie and Patricia, and three beautiful step-daughters, Sara, Sandy, and Katy. She says she also has ten precious grandchildren, whom she adores. Her hobbies include making their home and yard nice and cozy. She also enjoys cooking and planting beautiful plants.

Dixie says her favorite thing about working at Beasley Allen is the huge work family she describes as kind-hearted and helpful. She says, “it is nice to work somewhere where your co-workers and Director truly care about you!” We are blessed to have Dixie, a hard-working, dedicated employee, with us!

Sandra Moates

Sandra Moates is a Staff Assistant in the firm’s Mass Torts Section. In that role, Sandra’s responsibilities include handling medical records, where she primarily reviews files for specific criteria and requests records and documents as needed. In addition to her duties with medical records, Sandra assists with other projects in the Section as needed. Sandra has been a dedicated employee of the firm since 2005. Her steadfast commitment to doing excellent work is invaluable and much appreciated.

Sandra says she is blessed with a wonderful son and two beautiful granddaughters. She enjoys spending quality time and playing with her precious granddaughters. Sandra says she also enjoys nature walks while enjoying the beauty of all the wildlife and flowers. She added that family is important to her and says spending time with them is what she enjoys most! 

When asked what her favorite thing about working at Beasley Allen is, Sandra replied, “teamwork and having the opportunity to help others.” Sandra does an excellent job in all phases of her work, and we are very fortunate to have her with us!

Michelle Parks

Michelle Parks is the firm’s Director of Finance and CFO. It’s no surprise that Michelle says her job is “all about the numbers!” She leads a group of ten accounting staff who work together as a dynamic team, which is what it takes to keep up with all financial aspects of the firm, including internal controls that safeguard the integrity of the firm’s financial system, Michelle says. She is also regularly involved in research for new or recent changes in tax regulations to ensure the firm has the right financing in place for case expenses. Michelle joined the firm nearly four years ago. Her dedication and commitment to excellence are unwavering, and we are most fortunate to have Michelle with us! 

Michelle and her husband, Randy, will celebrate their 35^th wedding anniversary this fall! They have two children, Russ (31) and Rachel (26). Russ is an orthopedic surgeon and will soon go to Brown for a fellowship to specialize in spine surgery after finishing his residency in New Orleans this year. Rachel will begin her dermatology residency after completing medical school next year. Michelle and Randy have two rescue Pitbulls, Mack and LaRoux, which Michelle says are total couch potatoes!

Michelle said she loves to read, try new recipes, and spend time with her family. As a past board member and President of the Child Protect Children’s Advocacy Center, Michelle is a huge supporter of Children’s Advocacy. Michelle is also a big supporter of adopting pets and encourages adoptions from animal shelters or rescue groups. 

Michelle says her favorite thing about working at Beasley Allen is the people. She says, “I’m a people person, so that’s very important to me. I love what we stand for and the work that our firm does!”

Michelle has an extremely important position at Beasley Allen, and she does excellent work. We are blessed to have her with us.

Brittany Scott

Brittany Scott joined Beasley Allen in 2014. She practices with our Atlanta lawyers in the firm’s Mass Torts Section. Brittany primarily works on cases involving women’s use of talcum powder that led to ovarian cancer. She has helped secure verdicts totaling almost $200 million in talcum powder cases.

Initially, Brittany did not realize that her interest in medicine and healthcare issues would lead her into the legal profession. However, she now knows that her interest and education in pursuit of those interests are advantageous to clients in her everyday practice. She says:

“I have always had an interest in medicine and healthcare but did not have an interest in becoming a physician. Being an attorney allows me to use that interest in a unique way to help my clients.”

Brittany began college as a pre-med math major. She later switched to the Medicine, Health and Society major, graduating from Vanderbilt University with her Bachelor of Science degree in 2010. While attending Vanderbilt, Brittany was active in the Baptist College Ministries, Delta Gamma Fraternity and Sigma Phi Lambda Christian Sorority.

Next, Brittany pursued a joint graduate program at The University of Alabama at Birmingham and Cumberland School of Law at Samford University, earning her Master of Public Health and Juris Doctor degrees in 2014. She graduated cum laude from Cumberland, where she was a Dean’s Scholarship recipient and President of the Christian Legal Society. She was copy editor of the Cumberland Law Review and was included in two publications. In addition, Brittany was an oral advocate on the National Moot Court Team, competing in the 2013 and 2014 Cristol Kahn Paskay Cup and the 2013 and 2014 Duberstein Bankruptcy Moot Court Competition. She was also a 2012 Parham Williams Trial Competition quarterfinalist and a 2012 Saad Moot Court Competition finalist.

Brittany is a member of the Alabama State Bar and its Health Law, Women’s Law and Young Lawyers Sections. She is also on the Alabama State Bar’s Law School and Legal Education Task Force. Brittany is a member of the Montgomery County Bar Association and its Volunteer Lawyers Program. She is also a member of the Cumberland School of Law Alumni Admission Board.

Brittany says her favorite part of practicing law is interacting with her clients. She says:

I love getting to learn more about my clients and their lives and advocate on their behalf.

Brittany says she enjoys working for Beasley Allen and learning from other lawyers’ experiences. She adds:

I’m encouraged by the other lawyers in the firm who lend me their knowledge and experience so I can better represent my clients. Lawyers across the firm are always available to offer insight on how to address complex issues I may not have encountered in the past.

Brittany continues by describing what sets the firm apart from others, saying: “Beasley Allen allows us to be attorneys but also have a balanced life outside the firm.”

Brittany was awarded Best Lawyers: Ones to Watch in the Mass Tort Litigation/Class Actions – Plaintiffs practice area in 2021 and 2022. She was also recognized in the Best Lawyers: Ones to Watch 2022 Women in the Law list for her extraordinary work in Mass Tort Litigation/Class Actions.

Brittany is a tremendously talented lawyer who is dedicated to her clients’ interest and works hard to help them achieve justice. We are blessed to have her at Beasley Allen.

Mitch Williams

Mitch Williams is a lawyer in our Consumer Fraud & Commercial Litigation Section, where he previously worked as a law clerk for two years during law school. He specializes in product liability class actions and business litigation, frequently handling cases involving defective motor vehicle components.

Mitch achieved two of his most notable successes in cases against major automobile manufacturers, General Motors (GM) and Ford Motor Company. He obtained class certification for owners and lessees of 2011-2014 GM trucks and SUVs with defective piston rings that led to excessive oil consumption. He then defeated GM’s Motion for Summary Judgment. Further, Mitch achieved class certification for owners and lessees of certain 2013-2018 Ford F-150 trucks with defective master cylinders that caused brake failure. He also defeated Ford’s Motion for Summary Judgment.

Before joining Beasley Allen, Mitch attended the University of Alabama and completed his Bachelor of Arts degree in political science and public policy in 2016. In 2019, he graduated with honors from Faulkner University’s Jones School of Law, where he was a Walter J. Knabe scholar. Mitch served as a judicial intern for the Supreme Court of Alabama during law school. He was also the senior editor of the Faulkner Law Review and won the J. Greg Allen Intra-School Mock Trial Competition.

Mitch says he entered the legal profession to accomplish one primary goal – helping people. He strives to achieve that goal daily, following our firm’s motto of “helping those who need it most.” He also says assisting others with their problems is the most enjoyable aspect of his career. Mitch believes Beasley Allen stands above the rest. In that regard, he says:

Beasley Allen finds people who are good at their job and are themselves, good people. It’s not easy to find people who are good at both of those things, but every person is at the top of their game and cares about their clients and the work they do.

Mitch is a member of the Alabama State Bar, Montgomery County Bar Association and Hugh Maddox Inns of Court. He is a talented and hard-working lawyer dedicated to his clients and strives to see that justice is served in their cases. We are fortunate to have Mitch at Beasley Allen. He is a definite asset to the firm.

SPECIAL RECOGNITIONS

Best Lawyers Recognizes Beasley Allen’s Female Attorneys Among Top In The U.S.

Best Lawyers’ 2022 Business Edition featured four female lawyers from Beasley Allen. The four lawyers were recognized seven times across the magazine’s many different awards lists for stellar accomplishments in their legal fields. These award-winning lawyers attribute their accomplishments, in part, to the excellent environment for success and inclusivity that they say is cultivated at Beasley Allen. Tom Methvin, Managing Attorney at Beasley Allen, made this observation:

We understand the importance of diversity in leadership roles – in the firm and nationally. We empower our female attorneys to overcome obstacles and use their outstanding intelligence and drive to effect positive change in the world. That’s why the firm has been recognized as a leading workplace for women.

Leigh O’Dell

Leigh O’Dell was recognized in the Best Lawyers 2022 Women in the Law list for her outstanding work in three categories: Health Care, Mass Tort Litigation/Class Actions, and Personal Injury Litigation. Leigh practices in Beasley Allen’s Mass Torts Section.  She serves as Co-Lead Counsel in In re: Johnson & Johnson Talcum Powder Products Liability Litigation, a federal multidistrict litigation involving 35,000 women who are suffering or dying from ovarian cancer. Leigh is a trailblazer in litigation for women’s health-related issues, having represented injured women in talcum powder, transvaginal mesh, and Gardasil litigation.  Leigh had this to say:

It is a privilege to stand on the front lines of the battle for women’s health and safety. I am grateful for the opportunity to work shoulder-to-shoulder with my Beasley Allen colleagues to stand up to massive, exploitative corporations and demand justice for these women.    

Alyssa Baskam

Alyssa Baskam was recognized in the Best Lawyers 2022 Women in the Law list for her exceptional accomplishments in Product Liability Litigation and Personal Injury Litigation. Alyssa practices in the Personal Injury & Products Liability Section of the Beasley Allen Atlanta office.  She specializes in cases involving product defects, vehicle and truck crashes, and catastrophic injuries. Alyssa has helped hold numerous automakers responsible for the negligent or wanton design of their vehicles, including by securing over $300 million in verdicts and settlements. Before practicing law, she volunteered as a suicide and crisis hotline responder. Alyssa learned through that experience that helping people through the hardest moments of their lives was how she wanted to spend her life. Alyssa says:

I am grateful to work for a firm like Beasley Allen, where I feel like my perspective as a female trial lawyer is respected. In many ways, Beasley Allen sees more potential in me than I see in myself, and that trust and confidence in me has grown my practice in ways I could never have imagined when I first started out.

Stephanie Monplaisir

Stephanie Monplaisir was recognized in the Best Lawyers: Ones to Watch 2022 Women in the Law list for her impressive feats in both Personal Injury and Product Liability Litigation. Stephanie practices in the firm’s Personal Injury & Products Liability Section, where she handles complex litigation and appellate proceedings involving automobiles, heavy equipment, and consumer products. She has helped secure over $200 million in verdicts and settlements.  Stephanie helped obtain a $151 million verdict against Ford after her client was paralyzed while riding in a 1998 Ford Explorer that failed to meet the manufacturer’s own safety guidelines. Stephanie observed:

I consider myself lucky to have litigated alongside some of the best trial attorneys in the country. Jere Beasley and Greg Allen have taught me how to lead and litigate with integrity. I was most fortunate to start my career at Beasley Allen, working with Dana Taunton, a 25-year veteran litigator. She gave me great advice.  Being a great lawyer is all about relationships. The relationships I have developed with other brilliant and talented women at Beasley Allen have had an immeasurable impact on my professional and personal success. Beasley Allen is a place where we feel free to share our ideas, our successes, and our failures ­­– all to build each other up. Now that I am 11 years into my practice, Beasley Allen is a place where I can pay the mentorship I received forward to the new generation of women lawyers.

Brittany Scott

Brittany Scott was recognized in the Best Lawyers: Ones to Watch 2022 Women in the Law list for her extraordinary work in Mass Tort Litigation/Class Actions. Brittany practices in the Mass Torts Section of our law firm in Atlanta, where she combines her passions for health, medicine, and law to help victims obtain justice after life-altering injuries. She helped secure jury awardstotaling $200 million in three talcum powder cases related to ovarian cancer. Armed with a B.A. in Medicine, Health, and Society as well as a Master of Public Health on top of her law degree, Brittany utilizes her extensive knowledge and unique perspective on medical cases to help obtain justice for her clients. 

Brittany explains how Beasley Allen lawyers work together to support each other in striving to achieve the best possible result for clients. The support and leadership from other female lawyers in the firm have left an indelible mark on her law practice. Brittany says:

I’m encouraged by the other women in the firm who lend me their knowledge and experience so I can better represent my clients. Melissa and Leigh are great leaders and mentors in Mass Torts.

Brittany says working with these lawyers has helped her greatly. Melissa Prickett is a veteran lawyers and Director of the Mass Torts Section at Beasley Allen. Working alongside Leigh O’Dell on talcum powder cases also helped foster and strengthen Brittany’s knowledge and skills as a litigator. Brittany continues by saying:

Female attorneys across the firm are always available to offer insight on how to address complex issues I may not have encountered in the past.

FAVORITE BIBLE VERSES

Several of the lawyers and staff who are being featured this month share their favorite Bible verses.

Mitch Williams

Mitch Williams shares two verses with us this month.

Do not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God. And the peace of God, which transcends all understanding, will guard your hearts and your minds in Christ Jesus.

Philippians 4:6-7

I sought the LORD, and He answered me and delivered me from all my fears. Those who look to Him are radiant, and their faces shall never be ashamed. Oh, taste and see that the LORD is good! Blessed is the man who takes refuge in Him!

Psalm 34:4-5, 8

Dixie Carter

Dixie Carter says the following verse has always spoken to her heart. She says, “It doesn’t matter how bad things seem or how broken your heart feels; this verse says we will have joy in the morning. I pray many times that I will have joy ‘in the morning.'”

“…Weeping may tarry for the night, but joy cometh in the morning.”

Psalms 30:5b

Michelle Parks

Michelle Parks reiterates her passion for children’s advocacy. She says, “Children are truly the most vulnerable members of our society, and I feel that if I can do anything to help those who have experienced the worst of society, I will do it.” Her favorite verse reflects her desire to advocate for vulnerable children.

The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.

Matthew 25:40

CLOSING OBSERVATIONS

Conference Promotes Minority Lawyers For Mass Tort Litigation Leadership Roles

Corporate misconduct at the heart of many mass tort cases shares a common, unsettling reality: it disproportionately harms minorities and people of color. Yet, all too often, leadership roles in mass torts litigation and in class actions fail to include lawyers of color who can bring an important perspective and special force to the table.

The message of the inaugural Shades of Mass conference, which was held last month in Atlanta, was the need for more diversity in the mass torts and class actions litigations. The organization’s mission is to achieve legal representation that better reflects the communities most affected by corporate malfeasance. The conference was designed to bring together lawyers of color and allies to provide mentorship, advocacy, networking, and educational opportunities to help bridge the gap in the representation of lawyers of color in leadership roles in mass tort litigation.

Beasley Allen lawyer Navan Ward, who in July wrapped up a year serving as President of the American Association for Justice (AAJ), was one of the speakers at the three-day conference. Navan practices in our Atlanta office and focuses on litigation involving medical devices and pharmaceuticals. He tried his first mass tort case in 2011 when he was 34. Navan was the first Black male appointed to lead a multidistrict litigation (MDL) and the minority lawyer appointed to the most mass tort MDL leadership positions. Navan’s career has helped open his eyes to the extent predatory corporations exploit and damage minority communities with defective products, environmental hazards, and consumer fraud. Navan, who also serves as a Shades of Mass board member, observed:

Unfortunately, a lot of times, the voices of those harmed the most by corporate wrongdoing aren’t heard, and that can adversely affect the outcome of a case. That is why it is essential for people of color to handle these cases or serve in leadership roles in mass tort litigation.

Shades of Mass founders include Ben Crump (Ben Crump Law) and Diandra “Fu” Debrosse Zimmerman (Dicello Levitt Gutzler). Mr. Crump represented the families of George Floyd, Ahmaud Arbery, Trayvon Martin, and Breonna Taylor. Ms. Debrosse Zimmerman is an acclaimed product liability and civil rights lawyer and the first Black woman appointed to lead in an MDL. She has served in many other leadership capacities in MDL, class actions and other significant litigation.

The founding Executive Committee members include Navan Ward; LaRuby Z. May (May Lightfoot), who is serving in a leadership role for a major MDL; Gregory Cade (Environmental Litigation Group), who has litigated multiple significant environmental mass tort litigations; and Larry Taylor, Jr. (The Cochran Firm Texas), who is serving in a leadership position for a consolidated state court mass tort litigation.

Shades of Mass leaders say that there is no shortage of lawyers of color who are in every way capable of leading mass tort cases. Lawyers who identify with communities affected by a mass tort case bring a unique perspective and an unmatched thirst for justice. Yet, as founding Executive Committee member Greg Cade told Law.com, the final hurdle to overcome “is the misconception that [lawyers of color] don’t have what it takes.”

To overcome that obstacle, speakers at the Shades of Mass conference offered valuable tools and insights, such as setting up and funding a mass tort practice and working with the media to advance mass tort claims. The conference also featured special guests, including Honorable Cedric Richmond, Senior Advisor to the White House and Director of Public Engagement in the Biden Administration, Honorable Lucy McBath of the U.S. House of Representatives, 6th Congressional District, Georgia, and Honorable Kwame Raoul, Attorney General of Illinois.

During his year as AAJ President, Navan advocated tirelessly for a more demographically and professionally diverse federal bench that could better serve all Americans. His work with Shades of Mass is an extension of his passion for diversifying legal representation and ensuring all communities have access to justice.

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

I am including this month a devotion that my wife Sara wrote in 1994. Sara and I have been married for a long time. I was 22, and Sara was 21 when we were married in Adamsville, Alabama, on March 15, 1958. Sara had graduated in nursing from Emory University and was at Auburn University in the Fall of 1957 to get an education degree. We met on a blind date in early September. I realized immediately that Sara was not only smart and beautiful but that she was very “special.” I had dropped out of college and worked for two years on our family farm before returning in the Fall of 1957 to Auburn. I convinced Sara to take a chance and marry me. The rest is history.

During our 64 years of marriage, we have always had dogs, and Sara always had her favorite pup.  Her current favorite is “Jack,” who is just like “Lawyer,” except that Jack is much bigger.  Sara compares her relationship with Lawyer to her relationship with her Heavenly Father. I can say without reservation that Sara is a “saint” in every respect, and as she said in 1994, Sara is totally in love with Jesus. The devotion was in the St. James Methodist Church Devotion Book in 1994.

Sara Beasley Devotion

John 10:3
“HE CALLS HIS OWN SHEEP BY NAME AND LEADS THEM OUT…  HE GOES AHEAD OF THEM AND THE SHEEP FOLLOW HIM BECAUSE THEY KNOW HIS VOICE.”

I have a little dog named Lawyer.  He loves me very much and everyone knows that he is my dog.  He follows me around all day long.  When we walk down the hall, he takes a step or two and then he stops to make sure that I am with him.  If I sit down, he stays right beside my chair.  If I get up, Lawyer gets up; he is aware if I am not there.

How my Lord Jesus desires for our relationship to be this same way.  He wants us to be just as aware of His presence.  He wants me to be as excited when I greet Him as Lawyer is to see me when I return after having been away for a few hours.  He wants me to follow His every step – to listen to His every word – to be totally “in love” with Him.

Dear Father, May Your Holy Spirit empower me to be yielded to You that I will listen to Your every word, follow Your every step, and be totally consumed with Jesus as my “all in all.”  In His precious name, Amen.

Sara Baker Beasley
1994

On a personal note, I will mention that Sara suffered a second stroke in April. Her first stroke did not slow her down and she is now recovering at home from the second stroke. Sara’s faith in God and her love for Jesus has not wavered. Her current battle has been an inspiration to me, to our family and to Sara’s many friends. Please join with me and the family and pray for Sara and for a complete recovery. I know that Sara is in God’s hands and that He is in total control.