The Jere Beasley Report September 2024

CAPITOL OBSERVATIONS

The Business Life And Recent Appointment Of Alabama’s “Yella Fella”

Jimmy Rane, known as the “Yella Fella,” is a successful entrepreneur from Abbeville, Alabama. He transformed a small treated lumber business into Great Southern Wood Preserving, famous for its YellaWood brand. Jimmy’s innovative marketing, featuring himself as a cowboy in commercials, helped build a strong brand identity. 

Jimmy is committed to his community, keeping his business in Abbeville. He has been a strong supporter of Auburn University. Jimmy has been on the Board of Trustees at Auburn University since 1999. Recently, Jimmy was appointed to the America 250 Commission. In this role, he will help plan the nation’s 250th anniversary celebrations in 2026. As you may know, the Commission was created by Congress. Former Presidents George W. Bush and Barrack Obama, along with Laura Bush and Michelle Obama, serve as Honorary Co-Chairs. 

The journey of a small-town businessman to a national figure highlights Jimmy Rane’s vision, dedication, and community spirit. In addition to his business and community contributions, Jimmy is also known for his philanthropic efforts. He has donated millions to various causes, including scholarships for students and funding for local infrastructure projects. His generosity has had a lasting impact on the lives of many, further cementing his legacy as a business leader who not only achieved personal success but also uplifted his community.

Jimmy and I first met in 1968, shortly after he graduated from Auburn University. We became friends immediately. I consider Jimmy to be one of the smartest men I have ever known. While he has received a long list of honors and achievements, more importantly, Jimmy has never forgotten where he came from. God has blessed Jimmy Rane, and he, in turn, has been a blessing to thousands of others. 

TALC LITIGATION

Beasley Allen To Continue Representing Plaintiffs In Talcum Powder Litigation

We have written about Johnson & Johnson’s attempt to disqualify Beasley Allen from the Talc litigation. But our firm will continue to represent plaintiffs in multicounty talc injury litigation in a New Jersey state court. This follows a ruling that was made after a judge found Johnson & Johnson (J&J) had failed to show that its former outside counsel shared information he learned while representing the company in earlier talc litigation.

In the order, Atlantic County New Jersey Superior Court Judge John Porto agreed with our firm’s argument that the “appearance of impropriety” standard no longer applies in attorney disqualification determinations. In his ruling, Judge Porto found that with the absence of a “smoking gun” showing its former counsel shared confidential information, J&J could not force our firm out of the litigation.

J&J began pursuing Beasley Allen’s disqualification in December 2023. This is yet another attempt to thwart the American Civil Justice System to avoid responsibility for over 50,000 talc injury and death claims. After filing bankruptcy twice and failing twice, J&J targeted our firm in an attempt to remove what it says is the company’s most vocal opponent to a third bankruptcy attempt.

Judge Porto said in his order: 

This court does not find there is any credible evidence or any credible inferences to support J&J’s allegation that [outside counsel] shared confidential and privileged information with Beasley Allen. [Outside counsel] is not found to be associated with the Beasley Allen law firm in any capacity, as counsel was never employed as a lawyer or as a nonlawyer by that law firm.

The Judge added further: 

This court finds that an attorney or a law firm’s disqualification cannot be based simply on unsupported suppositions or accusations that a client’s former attorney working in a nonlawyer capacity meets with and has various discussions regarding a business proposal even in that same litigation.

Andy Birchfield, who has led the Talc Litigation for our firm, issued a statement saying:

The abuse and manipulation of our judicial system by the company and the personal attacks J&J has pursued continue to be exposed as bullying tactics designed to intimidate and silence other lawyers, scientists, organizations, constituents, and members of the news media who have sought and exposed the truth. The deceit and denials by J&J will not deter us from seeking fair and equitable compensation for those victims.

Our talc litigation team is totally committed to keeping up their efforts in the battle against J&J. Beasley Allen will not be intimidated by this huge and powerful corporation. We are committed to our clients and to the pursuit of justice in this battle and we are in it to the very end. Our goal is to obtain complete justice for our clients. 

The multicounty litigation is In re: Talc-Based Powder Products Litigation, case number ATL-L-2648-15, in the Superior Court of New Jersey, Atlantic County.

South Carolina Jury Returns $63.4 Million Verdict Against J&J In Talc Case

A South Carolina jury awarded $63.4 million last month to Michael Perry who developed mesothelioma from using Johnson & Johnson’s talc products. Perry, diagnosed with cancer last year at 53, received $32.6 million in compensatory damages and $30 million in punitive damages against J&J. The jury also awarded $760,000 against American International Industries.

The trial began on August 5 and lasted for about 10 days. The plaintiff was represented by lawyers from Dean Omar and Kassel McVey. J&J claimed their talc products did not contain asbestos and that Perry’s mesothelioma could have been caused by exposure to asbestos in brake pads during his teenage years. That defense was rejected by the jury. 

J&J says it plans to appeal, arguing that the court made several erroneous rulings that prevented them from presenting their defense. 

Source: National Law Journal

Beasley Allen Talc Litigation Team

Because of J&J’s delaying tactics, the Talc litigation continues to move at a relatively slow pace. Both ovarian cancer and mesothelioma trials are scheduled in various state and federal courts throughout the country for the remainder of 2024 and into 2025. But, J&J’s repeated bad faith attempts to obtain bankruptcy protection through its shell company have produced litigation stays for the claims of talc victims.  

However, let’s be clear– Beasley Allen is totally committed to battling J&J on every front, and we will continue to fight the good fight in the right way and for the right reason to the very end.  

Beasley Allen lawyers Leigh O’Dell and Ted Meadows head our Talc Ovarian Cancer Litigation Team. From the beginning, they have been directly involved in all phases of the talc litigation. Andy Birchfield, who heads up our Mass Torts Section, has been actively involved with the team in all aspects of this litigation. This has been a tough battle, but it is a critically important and necessary one, and our lawyers do not intend to back down.

Beasley Allen will also continue its fight against J&J’s blatant abuse of the bankruptcy system. As stated above, that battle is not over. The following Beasley Allen lawyers are members of the Talc Litigation Team:

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

CAMP LEJEUNE LITIGATION

Camp Lejeune Claim Deadline Closes – Litigation Moves To Next Phase 

The federal government and Camp Lejeune litigants reported to the North Carolina federal court that nearly 550,000 administrative claims have been filed with the U.S. Navy over contaminated drinking water at the Marine base. 

The deadline for making a claim under the Camp Lejeune Justice Act (CLJA) closed on August 10, 2024. Nearly 550,000 administrative claims were filed with the Navy by veterans, their loved ones, and civilians for injuries and health conditions suffered because of exposure to the toxic water at the base.  

There are also about 2,000 complaints filed in North Carolina federal court as of Aug. 20, according to a recent report. Of those, 50 have been dismissed, of which 45 have been voluntarily dismissed. Five complaints were brought as pro se cases. The four judges overseeing the litigation each have roughly 500 cases assigned to them. 

Under the Act, plaintiffs must file administrative claims before filing suit. The suits claim exposure to water on the military base contained excessive levels of chlorinated solvents and other contaminants, causing bladder cancer, kidney cancer, lymphoma and other diseases. 

Our firm has been humbled by the many lawyers and law firms who have reached out to us for help in this litigation. They have referred cases or have brought us in as co-counsel on cases. In total, our Camp Lejeune litigation team has opened files on more than 22,000 cases. The next phase of this litigation has now arrived. 

The exposure of an estimated one million veterans and their families to polluted toxic water at Camp Lejeune is one of the worst instances of drinking contamination in our nation’s history. The CLJA was supposed to provide a swift and systematic review of claims and a source of compensation for these victims. However, nearly two years after it was signed into law, the government reported that it had only made approximately 208 settlement offers.  Of those, only 114 claims were successfully settled.   Against the odds, the litigation team at Beasley Allen has had some early success in resolving cases for our clients.

On September 19, members of our Camp Lejeune team will be presenting a webinar on the next steps for administrative claims. The webinar will cover claim amendments, claim substantiation, Elective Option and settlement, utilization of the Court ordered litigation-management platform – Rubris Crosslink, Short Form Complaint preparation, and bellwether/litigation updates.

U.S. District Judge James C. Dever III highlighted the litigation’s complexity, comparing it to the span of the Roman Empire. It’s definitely a massive undertaking. It should be noted that the judges have ruled the CLJA allows only bench trials and not jury trials. 

If you have filed administrative claims and have questions or need guidance, feel free to reach out to our firm.  We have a very knowledgeable and experienced team and welcome the opportunity to help other lawyers on this litigation. 

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

Camp Lejeune Litigation Team

Beasley Allen lawyers on our Camp Lejeune Litigation Team continue to be hard at work and are moving the claims of our clients forward.  As stated above, the team is handling thousands of claims and is continuing to accept new referrals and opportunities to co-counsel on filed claims.

Toxic Torts Section Head Rhon Jones is heavily involved in all aspects of the litigation, including in bellwether trial work and in leadership roles as a member of the Plaintiff’s Executive Committee. The lawyers on our litigation team will be glad and honored to work with you if you need help with a claim or have questions about the litigation. The lawyers on the team include Ryan Kral, Matt Griffith, Jeff Price, Elliot Bienenfeld, David Diab, Gavin King, Tucker Osborne, Elizabeth Weyerman, Saima Khan, Travis Chin, Wesley Merillat, and Miland Simpler. 

SOCIAL MEDIA LITIGATION

Social Media Addiction/Personal Injury Litigation Update 

Lawyers at Beasley Allen are currently pursuing claims on behalf of individuals arising out of their addiction to Social Media Platforms. Defendants in this litigation include Facebook, Instagram, Snapchat, TikTok, and YouTube. Injuries include but are not limited to, depression, anxiety, eating disorders, and suicidal ideation.  Additionally, our firm is representing school districts in this litigation for the massive expenses they have incurred due to problems related to their students’ social media addictions. 

Lawsuits are being filed in two different courts in California: the Northern District of California—Oakland Division (overseen by U.S. District Court Judge Yvonne Gonzalez Rogers) and the Superior Court for the County of Los Angeles (overseen by Judge Karen Kuhl). In both courts, Beasley Allen lawyers are involved through the Plaintiff Steering Committee in the MDL and as a co-lead in the Judicial Council Coordination Proceeding (JCCP). 

Bellwether Selections have been made in both courts, and the discovery phase is now underway. Beasley Allen currently has 11 Bellwether selections in the JCCP and 3 selections in the MDL. The first trial is set for June 2025. The comprehensive bellwether program is designed to test and evaluate liability and damages for both personal injury and school district cases in the MDL and JCCP.

Important Ruling: TikTok Algorithm Won’t Receive Section 230 Shield

The Third Circuit has revived a lawsuit against TikTok, alleging that its algorithm recommended a dangerous “blackout challenge” to a 10-year-old girl, leading to her accidental death. The court found that TikTok’s “For You Page” (FYP) algorithm, which curates content, is not protected by Section 230 of the Communications Decency Act (CDA), which typically shields platforms from liability for third-party content.

Tawainna Anderson, the mother of the deceased girl, Nylah, contended that TikTok’s algorithm acts as first-party speech and was not protected by the CDA. The court agreed, noting that the algorithm’s recommendations are TikTok’s own expressive content. This decision means TikTok could be held liable for promoting harmful content.

The lawsuit was initially dismissed by a lower court, which ruled that TikTok was protected under Section 230. However, the appeals court disagreed, stating that TikTok’s algorithmic recommendations are not immune from liability.

Plaintiff Anderson is represented by Jeffrey P. Goodman and Robert J. Mongeluzzi of Saltz Mongeluzzi & Bendesky.

The case is Tawainna Anderson v. TikTok Inc. et al., case number 22-3061, in the U.S. Court of Appeals for the Third Circuit.

Source: Law360

The Beasley Allen Social Media Litigation Teams

Joseph VanZandt, who leads our firm’s Social Media Personal Injury Litigation Team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California State Court. Joseph is also a member of the Plaintiffs Steering Committee in the MDL, helping lead the federal social media multidistrict litigation. The two Beasley Allen litigation teams handling the social media personal injury cases are set out below.

Social Media Personal Injury Litigation Team

Joseph VanZandt, who leads our firm’s Social Media Personal Injury Litigation Team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California State Court. Joseph is also a member of the Plaintiffs Steering Committee in the MDL, helping lead the federal social media multidistrict litigation. The two Beasley Allen litigation teams handling the social media personal injury cases are set out below.

Social Media Non-Personal Injury Litigation Team

The representation of the clients in non-personal injury cases involving Social Media Litigation is handled at Beasley Allen by lawyers in our Consumer Fraud & Commercial Litigation Section. Litigation representing State Attorneys General is also handled by those lawyers. Ali Hawthorne, Rebecca Gilliland and Zina Nour make up that team at this juncture. Members from the personal injury team will also assist the class action lawyers handling social media cases as needed.

If you need more information or need help on a class action case involving social media, contact Michelle Fulmer, Director of our Consumer Fraud & Commercial Section. She will have one of the lawyers listed above respond to you.

MOTOR VEHICLE & TRUCKING LITIGATION

Senate Bill 426: New Trucking Accident Law Is Now In Effect

Senate Bill 426 went into effect on July 1, narrowly limiting the circumstances under which a plaintiff can bring a direct action against a trucker’s insurance company. Before the amendment, under the original O.C.G.A. § 40-1-112 and O.C.G.A. § 40-2-140, plaintiffs could pursue a direct-action claim against an insurance company directly without having to name the insured motor carrier or driver as a defendant. Originally, these statutes provided plaintiffs with an opportunity to receive compensation from trucking company defendants evading service or being found.  

With the enactment of Senate Bill 426, a claim can only be asserted against the commercial motor vehicle’s insurer when the motor carrier is insolvent or bankrupt, or when service cannot be perfected against the individual driver or the motor carrier company. Only under those particular circumstances can the plaintiff join the insurer in the current action as a matter of right, without motion or order of the court. 

This new amendment will only apply to trucking actions accrued on or after its enactment date of July 1, 2024. So, plaintiffs can still assert a “direct action” claim against insurers of motor carriers for all actions or motor vehicle collisions that occurred before July 1, 2024. Regardless, what once served as a crucial safeguard for public safety for many years is no longer. This new bill presents a significant risk of lowering safety standards, increasing trucking accidents, and decreasing any plaintiff’s chance of full and fair compensation. 

$16.2 Million Verdict Against Amazon After Delivery Driver’s Crash

A Georgia jury has awarded $16.2 million to the family of a child struck by an Amazon delivery driver in 2022. This verdict holds Amazon Logistics accountable for the actions of its delivery drivers despite them being employed by independent service providers.

The case involved an 8-year-old boy who was hit by a van driven by Jowann Cowan, an employee of Fly Fella Logistics, while crossing a street on an electric bike. The boy suffered severe injuries, including a broken pelvis and significant leg damage.

Plaintiffs contended that Amazon controlled the driver’s work, making Amazon responsible. Amazon denied control, but the jury found Amazon 85% liable for negligent training, Fly Fella Logistics and Cowan 10% liable, and a neighbor 5% liable. The jury awarded $4 million for the child’s past pain and suffering and $12 million for future pain and suffering.

This case sets a precedent in Georgia, establishing Amazon’s responsibility for its delivery system and drivers.

Source: Daily Report

Crashworthiness Investigations In Our Mobile Office

Lawyers in our Mobile office handle various types of cases including serious motor vehicle accidents. One primary factor that our lawyers consider when investigating motor vehicle accidents is crashworthiness. In short, vehicles should be designed and built to withstand certain foreseeable crash forces. Automobile manufacturers know this, yet fail to protect the public by ensuring that vehicles are crashworthy, and are able to withstand impacts while protecting occupants. 

One vital area impacting a vehicle’s safety is the roof and its strength in the event of an impact. Although too lax, federal standards address the strength of roofs and their ability to provide occupant safety during crashes. 

Federal Motor Vehicle Safety Standard 216 was originally implemented to set a benchmark for vehicle roof strength. The standard was developed using weight ratios, meaning that a vehicle’s roof must be able to withstand a certain multiple of its own weight. Current standards require a vehicle to support and withstand three times its own weight. 

While this is a step in the right direction, drivers and passengers continue to be injured and killed when failed roof structures significantly reduce the remaining space in the occupant compartment of a vehicle. 

The automobile industry must be held accountable to ensure that the public is adequately protected in foreseeable motor vehicle crashes. 

Lawsuit Moves Forward Against GrubHub

An Arizona state court judge has ruled that Grubhub must face a lawsuit brought by the family of Judge Rosa Mroz, who died after being struck by a Grubhub driver’s vehicle. The family claims the driver was distracted by the Grubhub app, which they argue can be considered a “product” under strict liability torts.

Judge John Napper ruled that the Grubhub app, mass-produced and distributed by the company, could be seen as a product because its use “as designed” causes significant public harm. Grubhub’s motion to dismiss the lawsuit was denied. Judge Napper said that the complaint properly alleges a claim under strict liability torts.

Judge Napper noted that while there is no existing case law or statute defining a software application as a product, the Grubhub app could be considered a product based on policy considerations like cost-shifting, public safety, and recovery policies. However, he dismissed the family’s product liability claim, as Arizona statutes define a “product” as a material object, which an app is not.

Grubhub argued that the responsibility for the accident lies with the driver, not the app. Judge Napper stated that these determinations will be made by a jury or during summary judgment proceedings after discovery.

A lawyer representing the family emphasized the importance of this ruling for gig economy companies, saying that apps like Grubhub’s pose significant risks to public safety and need to be re-examined. It will be important to see how Grubhub handles this case as it progresses into the discovery phase. Stay tuned!

The family is represented by Jessica A. Zink, Ray Norris and David C. Shapiro of the Shapiro Law Firm and Robert S. Glassman and Ryan Casey of Panish Shea Ravipudi LLP.

The case is Robert Mroz et al. v. Grubhub Inc. et al., case number 2023-018370, in the Superior Court of the State of Arizona, County of Maricopa.

Source: Law360

$287 Million Crash Verdict Against Harley-Davidson

A New York state jury has awarded $287 million in damages to Harold Morris and the estate of Pamela Sinclair in their lawsuit against Harley Davidson. The plaintiffs alleged a defective Harley-Davidson “trike” motorcycle caused a fatal crash in Pennsylvania. The bulk of the jury award consisted of punitive damages. The case was tried in the Livingston County Supreme Court.

The jury found Harley-Davidson liable for failing to repair a faulty software system on the Tri Glide Ultra motorcycle, which led to the crash in June 2020. Morris received $17 million for medical expenses and $19 million for pain and suffering, while Ms. Sinclair’s daughters received $6.5 million for loss of consortium.

The crash occurred when the motorcycle’s software malfunctioned, causing it to swerve and crash into an embankment. A similar incident happened in 2019, but Harley-Davidson assured Morris the vehicle was safe after servicing it. The company says it will appeal the verdict.

Morris and the estate are represented by Paul Edelstein and Arthur Blyakher of The Edelsteins Faegenburg & Brown LLP and Daniel A. Thomas of Law Offices of Daniel A. Thomas PC.

The case is Robert C. Sinclair Jr. et al. v. Harley-Davidson Motor Co. Group LLC, case number 000354/2021, in the Supreme Court of the State of New York, County of Livingston.

Source: Law360

GM Driver’s Truck Emissions Suits Partly Revived

A divided Sixth Circuit panel has revived state-law claims against General Motors (GM) regarding the marketing of Chevrolet Silverado and Sierra vehicles. The drivers allege that GM deceptively marketed these trucks as more environmentally friendly than they were. The panel rejected a district court’s finding that these claims conflicted with federal law and were preempted.

The 2-1 panel stated that the dispute involves “fraud on the consumer” claims, which are not preempted by the Clean Air Act. This contrasts with a previous ruling involving Ford, where claims were preempted by federal law due to “fraud on the agency.”

The majority opinion, written by U.S. Circuit Judge Karen Nelson Moore, emphasized that the claims against GM were based on fraudulent omissions to consumers, not the EPA. Therefore, these claims do not challenge the EPA’s determinations.

The panel reversed part of a previous decision that granted summary judgment to GM and Bosch on state-law consumer protection, fraud, and deceptive trade practices claims. However, it affirmed that the plaintiffs lacked standing to pursue a RICO claim.

The litigation involves emissions from 2011-2016 Chevrolet Silverado and GMC Sierra trucks with Duramax diesel engines. The case began in 2017 and includes multiple lawsuits consolidated for pre-trial purposes.

The drivers are represented by Steve W. Berman of Hagens Berman Sobol Shapiro LLP, E. Powell Miller of The Miller Law Firm PC, Christopher A. Seeger of Seeger Weiss LLP and James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC.

The Anderton, Pantel and Bulaon plaintiffs are represented by Eric D. Pearson and Charles W. Miller of Heygood Orr & Pearson.

The consolidated cases are Andrei Fenner et al. v. General Motors LLC et al., case numbers 23-1648, 23-1696, 23-1697 and 23-1698, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360

Ford Issues Do-Not-Drive Advisory For Vehicles With Takata Airbags

Ford Motor Co. has issued a do-not-drive advisory for certain vehicles that have not been repaired under three previous safety recalls: 15S21, 17S42, and 19S01. These recalls, dating back to 2015, involve Takata non-desiccated airbag inflators. This advisory aims to urge owners to get their vehicles repaired immediately due to the risk of the airbag inflators exploding and expelling sharp metal fragments during a crash, which could cause serious injury or death. The advisory affects the following vehicles:

Driver and passenger airbag inflators:

• 2004-2006 Ford Ranger
• 2005-2014 Ford Mustang
• 2005-2006 Ford GT

Passenger airbag inflators:

• 2006-2012 Ford Fusion, Mercury Milan, Lincoln MKZ/Zephyr
• 2007-2010 Ford Edge, Lincoln MKX
• 2007-2011 Ford Ranger

Ford has made over 121 million outreach attempts in the U.S. to contact affected customers, with more than 95% of U.S. customers having completed the recalls. Approximately 374,300 airbag inflators in Ford and Lincoln vehicles are impacted in the U.S., and 765,600 globally.

Hopefully, the message from Ford will be effective and help remedy a very dangerous condition. The need is obvious. 

Source: Reuters

Ford Recalls Vehicles Due To Engine Fire Risk

Ford Motor is recalling approximately 85,000 Explorer SUVs with the Police Interceptor Utility package due to potential engine fire risks, according to the National Highway Traffic Safety Administration (NHTSA). The recall involves models from 2020 to 2022 equipped with 3.3L hybrid and gas engines.

NHTSA stated that in the event of an engine failure, engine oil and fuel could leak into the engine compartment and accumulate near ignition sources like hot engine or exhaust components, potentially causing a fire.

Source: Claims Journal

New Tesla Recall Includes 9,100 Model X SUV’s 

Tesla has issued a recall for approximately 9,100 Model X SUVs in the U.S. due to a potential issue with the roof trim, which could detach and create a road hazard. This recall affects 2016 Model X vehicles and is the second recall for the same issue since 2020. The problem arises from roof trim pieces that may have been adhered without primer, increasing the risk of separation.

Tesla will test and reattach the trim pieces at no cost to owners. The company has been investigating reports and conducting tests since 2022, concluding that the 2020 recall remedy was insufficient. Although there have been about 170 related reports, there are no known crashes or injuries.

This recall is notable as Tesla typically addresses issues through software updates. In the first half of the year, Tesla recalled nearly 2.6 million vehicles, second only to Ford’s 3.6 million recalls in the U.S.

Source: Reuters

PRODUCT LIABILITY

Beasley Allen Lawyers Handle Product Liability Covering Broad Range Of Cases

Beasley Allen lawyers handle a large number of product liability cases that involve a broad range of products. The Consumer Product Safety Commission (CPSC) reports that defective products cause over $700 billion in damages annually. A huge percentage of these incidents could be prevented with better product design, manufacturing, and marketing.

Consumers harmed by defective and unsafe products can file lawsuits involving claims for design defects, manufacturing defects, or a failure to warn. Most claims come from the transportation, manufacturing, and consumer goods industries.

Beasley Allen lawyers are dedicated to consumer safety and rights, working to obtain justice for our clients. In addition to serving the specific interests of our clients, our ultimate goal is to help create a safer country for all Americans.

As we have previously reported, our firm has four separate sections handling litigation for plaintiffs. Lawyers in each of the sections handle cases in their designated practice area. These cases can involve defective and unsafe products. Let’s take a look at how this works:

• Personal Injury & Products Liability Section: Lawyers handle personal injury and wrongful death cases involving Product Liability issues arising from defective products. Our lawyers are available to help with any product liability issues you may face. Cole Portis heads up the Section. 

• Mass Torts Section: Lawyers in the Section handle cases involving personal injury and wrongful death involving product liability issues. Medical devices and pharmaceutical products are the usual culprits. Andy Birchfield heads up this Section.

• Toxic Torts Section: Lawyers in the Section handle product liability cases involving environmental or toxic exposure. Rhon Jones heads up the Section. 

• Consumer Fraud & Commercial Litigation Section: Lawyers in the Section handle product liability cases that involve economic losses caused by defective products. A class action or an MDL will be involved in those cases. Dee Miles heads up the Section. 

Beasley Allen is committed to holding manufacturers and sellers of products accountable for their wrongdoing relating to defective and unsafe products. Our lawyers are fierce advocates of consumer safety and for protecting the rights of consumers. Beasley Allen lawyers don’t just believe in helping those who need it most, our lawyers live by that creed. It is reflected every single day in their dedicated service to our clients.

Family Sues Dealership After Daughter’s Death From Exploding Airbag

The family of Selena Propes, an 18-year-old who died from shrapnel caused by a defective Takata airbag in April 2023, is suing the Honda dealership that sold the car and a trust fund set up to compensate victims of Takata airbags. The lawsuit, filed in Fort Lauderdale, Florida, claims that the crash was minor, but the airbag’s inflator ruptured, sending metal shrapnel into Propes’ chest, killing her.

The family opted out of the Takata Airbag Tort Compensation Trust Fund, arguing that the compensation offered was insufficient. They are pursuing their claims through the courts, holding Honda and the dealership, Coral Springs Honda, accountable. The suit alleges that both Honda and the dealership knew about the airbag defect but failed to inform customers, including Propes and her family.

Propes’ family is represented by Andrew Parker Felix and Steven E. Nauman of Morgan & Morgan PA.

The case is Propes v. PSAN PI/WD Trust et al., case number CACE24011853, in the Seventeenth Judicial Circuit Court of Florida.

Source: Law360

WORKPLACE LITIGATION

Recent Rise In Falls From Roofs On Construction Sites 

Beasley Allen lawyers are currently investigating multiple cases involving falls off or through roofs on construction projects in Alabama and Georgia.  Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, wrote this piece on that litigation. Kendall felt we needed to discuss two of these cases together given the number of similarities in the incidents and the convergence of liability issues beyond Workers’ Compensation benefits. The following is from Kendall:

Alabama and Georgia laws are similar in a number of respects for on-the-job injuries.  They both provide absolute immunity to the employer for general tort liability claims and limit employer responsibility to Workers’ Compensation.  Alabama law, unlike Georgia law, does allow an injured employee to bring a claim against a co-employee under limited circumstances.

The cases are similar in the following respects.  Both clients are Spanish-speaking male construction workers specializing in roof applications.  Both clients were on the job for a relatively short period of time before their falls.  Both clients were wearing safety harnesses when they fell.  The Alabama client fell from through a hole in the roof on his second day on the job.  The Georgia client fell off his roof when his safety rope reportedly broke. The Alabama client died from his injuries, while the Georgia client sustained a traumatic brain injury.  

Finally, both incidents were reported to OSHA for an investigation; however, we are unable to identify the OSHA reports at this time.  The failure to identify the specific OSHA investigation suggests there is a question as to which entity employed our client.  Recall, only the employers of our clients are entitled to Workers’ Compensation immunity.

The inability to identify an employer complicates our investigation because we cannot identify the specific OSHA investigation without the name of an employer.  We must also consider the possibility that our clients were independent contractors and/or were self-employed.  

Our experience with non-English speaking clients have reflect that construction entities will fashion work agreements with undocumented persons and/or non-English speaking employees to benefit the entity at the expense of the worker.  It is entirely possible that our clients were paid “under the table” and thus, do not exist as employees of any entity on the project.  

In most cases, we obtain the OSHA report before we file suit to determine which, if any entity is responsible for the incident.  Because of the circumstances, we may have to put the cart before the horse, and file suit first to use litigation process to find out what happened, why it happened and who, if anyone was responsible.  

When investigating cases involving undocumented or non-English speaking clients, lawyers have to navigate difficulties in communicating with their client, and/or their family in the event of their death or incapacity.  Additionally, the injured client will need guidance and assistance in obtaining medical treatment.  In instances of death, the family will need guidance and assistance in securing a funeral and transporting the body back to the decedents home country.  Finally, be prepared to have to file suit to properly investigate the claim.

Lawsuit Against Tesla Over The Electrocution Of A Worker

Sandra K. Gomez, the widow of Victor J. Gomez, an electrician who was fatally electrocuted on August 1 while working at Tesla’s Gigafactory in Austin, Texas, has filed a wrongful death lawsuit. The suit, filed in Texas state court, alleges that Tesla, along with property owner Colorado River Project LLC and Belcan Services Group Ltd, negligently allowed a dangerous condition to exist at the facility.

Victor Gomez, a licensed journeyman electrician employed by Belcan, was inspecting electrical panels when he was electrocuted by a panel that was not supposed to be powered on. He was taken to a local hospital where he was pronounced dead.

The lawsuit, filed by Sandra Gomez and the couple’s six children, alleges wrongful death, negligence, gross negligence, and premises liability. Both compensatory and punitive damages are being sought in the lawsuit. The complaint states that Tesla and the other defendants knew, or should have known, about the dangerous condition and failed to warn or remedy it.

Lawyers for the family requested a temporary restraining order to prevent Tesla from altering or destroying any evidence related to the incident. That’s because Tesla had not responded to their attempts to have an electrical engineering expert inspect the site.

The family is represented by Langdon “Trey” Smith, Frank Robertson and Will McMillan of Jim S. Adler& Associates.

The case is Sandra K. Gomez et al. v. Tesla Inc. et al., case number 0- -GN-24-004830, in the 419^th District Court of Travis County, Texas.

Source: Law360

EMPLOYMENT LITIGATION

A Circuit Split Becomes Evident After Home Depot’s ERISA Win

There is a definite split in the Circuit Courts of Appeals relating to an important aspect of the Employee Retirement Income Security Act (ERISA). The Eleventh Circuit recently upheld Home Depot’s win in a lawsuit where workers claimed their 401(k) plan was mismanaged. The trial court found that the workers were unable to link these issues to financial losses. 

A three-judge panel on August 2 affirmed Home Depot’s summary judgment victory at the trial court level. The case involved allegations of excessive fees and poor investments in the company’s retirement plan, which were claimed to violate the ERISA. The issue before the court dealt with causation. 

The decision highlights a divide among circuit courts regarding who must prove loss causation in ERISA claims. The Eleventh Circuit, aligning with the Tenth Circuit, rejected the idea that the burden of proving loss causation should shift to the employer if a fiduciary breach and plan loss are shown.

This ruling contributes to a growing split among the circuit courts. It is prompting calls for the U.S. Supreme Court to provide guidance.

Law360 reports that the Eleventh and Tenth Circuits have both rejected burden-shifting, while the Sixth, Seventh, and Ninth Circuits require plaintiffs to prove loss causation. Conversely, the First, Fourth, Fifth, and Eighth Circuits support shifting the burden to employers once a breach and loss are demonstrated. The Second Circuit has endorsed both approaches. If this seems confusing, that’s because it is. 

The U.S. Department of Labor supported burden-shifting in the Home Depot case, citing trust law principles. However, the Eleventh Circuit panel ruled that requiring defendants to disprove causation would upend usual civil liability principles.

The panel also addressed a semantic debate on ERISA fiduciary breach claims, focusing on whether a fiduciary “would have” or “could have” made the same investment decisions. The Eleventh Circuit dismissed this debate as irrelevant when the burden of proof remains with the plaintiffs.

There will likely be a petition for rehearing en banc in the Home Depot case. The Supreme Court needs to take up the issue and clear up the confusion that exists in the circuits. I believe all lawyers – regardless of which side they are on – will agree that loss causation in these cases is a core element of a plaintiff’s claim and that the Circuit split should be resolved. 

Stay tuned!

Source: Law360

Understanding The Department Of Labor’s New Overtime Rules

On July 24, 2024, the Department of Labor (DOL) issued a new final rule that significantly changed the overtime regulations of the Fair Labor Standards Act (FLSA). This rule expands overtime protections for millions of lower-paid salaried workers in the United States. 

The rule will apply to salaried bona fide executives, administrative, or professional employees who have a salary lower than that of the new thresholds. The thresholds will be changed in a two-step process. 

• The first step, which went into effect earlier this year, will allow salaried workers who earn less than $43,888 annually to be eligible for overtime pay. 

• The second step, which will go into effect in January 2025, will allow salaried employees who earn less than $58,656 annually to become eligible for overtime pay. 

According to the DOL, the rule is expected to impact approximately 3.6 million salaried employees by allowing them to be eligible to earn overtime pay. Additionally, starting in July 2027 the DOL will recalculate the salary threshold and issue increases as often as every three years.

By establishing this new rule, employers and employees are provided with predictable guidance on how overtime hours should be paid. This will allow for more stability and security for salaried workers who do not meet the salary requirements laid out in the new rule. It is expected that this new rule will have a major effect on workers and employers alike. Beasley Allen lawyers are monitoring updates related to this new change.  

Beasley Allen’s Employment Law Team monitors and closely follows changes in the employment law sector, including those from the DOL and related to the FLSA. If you have questions or need help with an employment-related case, contact Michelle Fulmer, Director of the Consumer Fraud & Commercial Litigation Section. She will have a lawyer in the Section respond to you. 

Source: U.S. Department of Labor

The Beasley Allen Employment Litigation Team

Lawyers in our Consumer Fraud & Commercial Litigation Section handle employment litigation for the firm. These lawyers also handle the firm’s Qui Tam Litigation (Whistleblower) cases. Many of the whistleblowers also have a retaliation claim related to their False Claims Act (FCA) claim. Quite often, an employee as a whistleblower is the “original source” of an FCA claim.

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

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

Whistleblower Litigation

A Look At The DOJ’s Whistleblower Pilot Program 

The U.S. Department of Justice (DOJ) has launched a three-year pilot program designed to reward whistleblowers who report significant corporate misconduct. Whistleblowers can receive up to 30% of forfeitures under $100 million and up to 5% for amounts between $100 million and $500 million. No awards are given for amounts above $500 million.

Deputy Attorney General Lisa Monaco explained that this program aims to cover gaps not addressed by other agencies’ whistleblower programs. Corporate employees are encouraged to report misconduct internally before contacting the DOJ. If they report to the DOJ within 120 days of their internal report, they may receive higher awards.

Nicole Argentieri, head of the DOJ’s criminal division, has noted that companies reporting misconduct within 120 days of an internal whistleblower report might avoid prosecution if they fully cooperate and remediate the issues.

There has been some early criticism over certain aspects of the program. Some whistleblower lawyers have criticized the program for its award caps and lack of enforceability. For example, Stephen M. Kohn with Kohn, Kohn & Colapinto says that the program fails to guarantee awards for qualified whistleblowers and imposes restrictions on those involved in misconduct. Jane Norberg and Erika A. Kelton with Phillips & Cohen LLP have raised concerns about the pressure on companies and the potential discouragement of whistleblowers due to award limits.

The DOJ stated that the pilot program’s terms are not final and may be updated based on feedback. Beasley Allen lawyers who handle whistleblower litigation are taking a closer look at the program to see how it affects our firm and the clients we represent. 

Stay tuned!

Source: Law360

Whistleblower Suit Against JPMorgan Won’t Be Revived By 11^th Circuit

The Eleventh Circuit Court has declined to reinstate a whistleblower lawsuit against JPMorgan Chase Bank NA. The suit, filed by foreclosure attorney Bruce Jacobs, accused the bank of forging mortgage loan documents and submitting false reimbursement claims to Fannie Mae and Freddie Mac. However, the court found that these allegations had already been publicized in three online blog articles, which fall under the False Claims Act’s (FCA) definition of news media.

Circuit Judge Andrew L. Brasher, writing for the panel, stated that the FCA requires the dismissal of suits whose allegations have been publicly disclosed. The Jacobs suit, filed in 2020, claimed that JPMorgan Chase forged endorsements on millions of loans acquired from Washington Mutual, which had collapsed in 2008. The bank allegedly used these forged documents to submit false claims for loan servicing costs.

In 2022, a Miami federal court dismissed Jacobs’ claims due to insufficient detail and prior public disclosure. The appellate court upheld this decision, emphasizing that the blog articles significantly overlapped with Jacobs’ allegations.

Jacobs sued Bank of America Corp. as a whistleblower, accusing the bank and its affiliates of using improper foreclosure-related practices, leading to a $5 million settlement in 2018.

Circuit Judges William H. Pryor Jr., Andrew L. Brasher and Jill A. Pryor sat on the panel.

Jacobs is representing himself. He is further represented by Benedict P. Kuehne and Michael T. Davis of Kuehne Davis Law PA, Roy D. Wasson of Wasson & Associates Chartered, The LS Law Firm, and Court Keeley.

The case is Bruce Jacobs v. JPMorgan Chase Bank NA, case number 22-10963, in the U.S. Court of Appeals for the Eleventh Circuit.

Source: Law360

The Beasley Allen Whistleblower Litigation Team 

Beasley Allen lawyers continue to represent whistleblowers across the country in claims against multiple bad or corporate actors. Whistleblower litigation is widespread and increasing at a rapid pace.

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 Beasley Allen lawyer for a free and confidential evaluation of your claim.  Lawyers on our Whistleblower Litigation Team are listed below:

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

Securities Litigation

Securities Litigation At Beasley Allen

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

You can contact a member of our Securities Litigation Team concerning any securities cases or issues relating to securities. The team includes the following lawyers: James Eubank, who heads the team, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team.

You can contact a member of our Securities Litigation Team concerning any securities cases or issues. The team includes the following lawyers: James Eubank, who heads the team, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team.

Premises Liability Litigation

Corporations Attempt To Contract Away Safety In Premises Liability Cases

In the summer of 2020, Shamecia Byrd lived at an apartment complex in Lawrenceville, Georgia with her two children. Just before midnight on June 15, 2020, Ms. Byrd suffered a fatal gunshot wound while she was in bed. An unidentified individual fired the deadly shot from within the complex’s premises.

Ms. Byrd’s estate and heirs filed suit against the property management company that controlled the complex. It was alleged that the criminal activity at issue was reasonably foreseeable and that the management company failed to take reasonable steps to prevent the deadly shooting. 

The management company moved for summary judgment on the plaintiffs’ claims, arguing the “exculpatory provision” contained in Ms. Byrd’s lease shielded the company from liability for third-party criminal acts. The trial court denied the company’s motion, finding the exculpatory provision unenforceable as a matter of public policy under O.C.G.A. §§ 13-8-2(a) and (b).

The case – First Communities Management, Inc. v. Tearria Byrd, et al., Case No. A24A0937 – is now pending before the Georgia Court of Appeals with the benefit of full briefing and oral argument. One of the important issues before the court is whether the exculpatory provision violates public policy because it functions to waive O.C.G.A. § 51-3-1’s statutorily imposed duty on the management company to keep the complex’s premises and approaches safe for invitees, like Ms. Byrd.

Premises liability practitioners should monitor this case closely due to its potential to alter how corporations defend these types of claims. If, for example, the Court of Appeals reverses the trial court and allows the exculpatory provision to stand, then we can expect to see a slew of similar contractual provisions in lease agreements across Georgia. Such a holding, however, would run contrary to the longstanding protections afforded to individuals under § 51-3-1. Mike Rafi of the Rafi Law Firm represents the plaintiff.

$51 Million Verdict Awarded to Family After Carbon Monoxide Leak

A Texas jury has awarded $51 million to TiCourtney McMullen and her two children after they suffered carbon monoxide poisoning in their apartment in 2015. The jury found Red Bird Trails Apartments and a related company 90% responsible for the leak, which left the children with serious brain injuries. Urban Custom Plumbing, which worked on the boiler, was also found partially responsible.

The bulk of the award, $30 million, is for the children’s medical expenses, while $9 million was awarded in exemplary damages due to gross negligence by Red Bird Trails. The complex’s management knew about rust and corrosion on the boiler’s vent pipe but ignored it, leading to the leak. The children now suffer severe brain injuries, can only speak a few words, and have a reduced life expectancy, requiring lifelong supervision.

Red Bird Trails claimed the rust was superficial and not the cause of the leak and said the children’s condition was due to “selective mutism” rather than brain damage. Obviously, the jury did not agree with those defenses. This case highlights the importance of proper maintenance and robust preventive measures for potentially dangerous machinery.

Plaintiff McMullen is represented by Marquette Wolf, Richard Mann and Ted B. Lyon Jr. of Ted B. Lyon & Associates PC.

The case is TiCourtney McMullen v. Red Bird Trails Apartments et al., case number CC-17-00945-A, in the County Court-At-Law No. 1 of Dallas County, Texas.

Source: Law360 

$30 Million Settlement In Wrongful Death Case Involving A Falling Utility Pole

The family of Jeunelle Robinson, a South Carolina teacher who was tragically killed by a falling utility pole, has reached a $30 million wrongful death settlement with Dominion Energy and Comporium. 

Ms. Robinson, a history teacher at Wagener-Salley High School, tragically was killed on August 23 while walking downtown during her lunch break. A truck snagged a low-hanging utility line, causing the pole to fall and strike her.

The complaint filed in Aiken County state court alleged that the utility pole was over 70 years old, and that Ms. Robinson’s death was avoidable if the companies had maintained the poles properly. Both companies were accused of prioritizing profits over safety.

Ms. Robinson’s family plans to use part of the settlement funds to establish the “Jeunelle Robinson Teacher’s Hope Fund,” which will support teachers with school supplies. Ms. Robinson was remembered for her dedication to her students and her passion for teaching.

This case should put other utility companies on notice – their power lines must be inspected in a timely manner to make sure the poles are kept in good condition. Defective and dangerous poles must be replaced.

Source: Claims Journal

Negligent Security Involving Vacation Rental Services

Unfortunately, as vacation rental services such as AirBNB and VRBO have risen in popularity, we have seen a new category of cases develop: negligent security on the part of rental property owners and companies. Any individual or company providing housing is legally obligated to meet certain standards and requirements under a form of liability referred to as premises liability. 

This concept mandates that property owners or management companies ensure adequate security for renters and visitors while they are on the property by employing reasonable measures such as security cameras, proper lighting, and monitoring of persons on the property. 

While the law on this topic varies by state, the general concept is true that if a visitor is injured due to a negligent lack of security on the part of the premises owner, then the owner is legally responsible for the visiting person’s injuries. 

Negligent security cases stemming from vacation rentals take various forms. For example, some property owners neglect to install proper lighting despite knowing that there is potential for crime in the area. Other cases include when property owners neglect to install and maintain adequate locks and security systems at the entry points on the property. 

Beasley Allen lawyers are working to protect the public from negligent security on part of property owners.

Class Action Litigation

Larry Golston Appointed To Plaintiffs Steering Committee In AT&T MDL

Larry Golston, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, has been appointed to the Plaintiffs Steering Committee (PSC) in the ongoing AT&T Multi-District Litigation (MDL). 

The AT&T MDL, which consolidates numerous lawsuits related to alleged data breaches, is being overseen by the Texas Northern District Court. The litigation addresses claims that AT&T failed to adequately protect customer data, leading to significant breaches that compromised personal information.

Larry’s role on the PSC will involve coordinating the efforts of various plaintiffs’ lawyers, strategizing on key legal arguments, and ensuring that the interests of all plaintiffs are effectively represented. His appointment is a testament to his expertise in handling complex litigation and his dedication to holding corporations accountable for their actions.

Larry has built a distinguished career at Beasley Allen, focusing on whistleblower litigation, employment law, and class actions. His work has led to significant victories, including substantial settlements and jury verdicts in consumer fraud, employer retaliation, and discrimination cases. 

Larry’s vast experience managing large-scale litigation and his commitment to client advocacy will be most valuable as this case progresses. The PSC will play a crucial role in navigating the complexities of the MDL from discovery to trial, ensuring that the plaintiffs’ voices are heard and their rights protected.

As the AT&T MDL moves forward, Larry and the Plaintiffs Steering Committee will be at the forefront of the efforts to secure justice for those affected by the data breaches.

Class Action Lawsuit Filed Against Toyota And Subaru For Joint Venture Regarding Oil Consumption Defect 

Beasley Allen has filed a Class Action lawsuit representing Arkansas residents who own or lease a 2013-2016 Scion FR-S, 2017-2023 Toyota 86/GR86, or 2013-2023 Subaru BRZ (the “Class Vehicles”) equipped with four-cylinder boxer engines. The class defendants are Subaru Corporation, Subaru of America, Inc., Toyota Motor Corporation, and Toyota Motor North America, Inc. (hereinafter “Defendants”).

Specifically, the lawsuit alleges that, through a joint venture, defendants manufactured, promoted, and sold the Class Vehicles, which suffer from low oil pressure and loss of oil film. This starves the engines of oil, causing aggressive internal wear and damage to internal engine components. The oil starvation ultimately leads to partial or complete engine failure and vehicle disablement (the “Engine Defect” or “Defect”).

The Engine Defect often occurs at low mileage, within the warranty period, and is inconspicuous until engine damage levels are critical. The Engine Defect renders class vehicles inoperable and unusable. In some instances, the Engine Defect causes engine fires, which pose a great danger.

Despite knowledge of the defect, Subaru and Toyota kept it from the public. Neither manufacturer has recalled the Class Vehicles to repair the Engine Defect, nor have defendants extended the warranty of Class Vehicles, offered customers a suitable repair or replacement, or reimbursed consumers who incurred out-of-pocket expenses to repair the Engine Defect.

Subaru must respond to the complaint by the 20^th of this month, and Toyota must respond by October 7. We will keep our readers informed on this important litigation.

The Beasley Allen lawyers working on this case are Demet Basar, Clay Barnett, Mitch Williams, Dylan Martin, and Trent Mann, along with lawyers from Carella Byrne Cecchi Brody & Agnello, P.C.: James E. Cecchi, Jordan M. Steele and Jason H. Alperstein. Dee Miles who heads up our firm’s Consumer Fraud & Commercial Litigation Section, will also be involved in this case. 

The case is Young v. Subaru et al., Case No. 1:24-cv-07438, pending in the District of New Jersey. 

Crowdstrike Outage Causes Billions Of Dollars In Losses To Businesses And Consumers

On July 19, 2024, a worldwide computer outage occurred, impacting roughly 8.5 million Windows devices. The outage impacted small businesses, large businesses, and individual consumers. The outage was caused by a software update pushed out in the early morning by a company known as CrowdStrike.  According to CrowdStrike’s CEO, the “outage was caused by a defect found in a Falcon content update for Windows hosts.” In other words, CrowdStrike—a cybersecurity company (i.e., a tech company specializing in security technology)—released a faulty program on the world.  

This faulty computer program caused an estimated $5 billion in financial losses.  Some of this is attributable to lost business opportunities, some to non-refundable travel (or drastically altered travel plans), and some to businesses paying IT employees and/or vendors to try and fix the issue. 

So far, a class action on behalf of CrowdStrike shareholders has been filed, alleging they were misled about the company’s testing policies for testing software prior to implementation. Additionally, Delta, which canceled around 7,000 flights over five days, has threatened legal action against CrowdStrike while its customers have sued the airline. Ultimately, while the software issue may have been resolved, the legal issues and financial losses are still being determined.  

Beasley Allen lawyers are looking into potential avenues of class-wide relief that include losses related to IT and tech support costs for CrowdStrike-related work and attempted repairs.  As the litigation surrounding this software defect continues to progress, Beasley Allen lawyers will continue to closely monitor these cases and review these and other avenues of recovery on behalf of consumers.

Parents Settle BIPA Class Action Against Google

Parents have reached a settlement in a class action with Google over allegations that it illegally collected their minor daughters’ biometric data. Clinton Farwell, on behalf of his daughter, referred to in the case as “J.C.,” and Elizabeth Whitehead, on behalf of her daughter “M.W.,” accused Google of violating Illinois’ Biometric Information Privacy Act by collecting, storing and using millions of schoolchildren’s biometric data without seeking or obtaining consent from parents or legal guardians.

According to the complaint Google provided schoolchildren with access to its Chromebook laptops that have Google’s “G Suite for Education” platform already installed. The complaint further alleged that Google collected and stored biometric data of students such as facial scans, voiceprints, and other information that identified “children’s physical locations, the websites they visit, their personal contact lists, voice recordings, saved passwords and other behavioral data.”

The plaintiffs alleged that they used G Suite for Education at their respective middle schools at 13 years of age. “In April 2022, U.S. District Judge Sara Darrow denied Google’s bid to dismiss the suit, saying it would be premature to decide at the motion to dismiss stage whether the parents’ BIPA claims were preempted by the Illinois Student Online Personal Protection Act, the state’s student data privacy law that governs the collection of certain student information in Illinois grade schools.” 

In July 2024, the parties participated in a mediation which led to the above-referenced settlement. Further details regarding the settlement have not been released and are not yet publicly available.

Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section are ready to review or handle cases involving potential BIPA violations.

Our law firm will present this topic at a free webinar on October 16, 2024, for lawyers’ continuing legal education (CLE) purposes. Go to our firm webpage for details on the webinar.  

Source: Law360

Google Privacy Class Action Revived 

A federal appeals court has revived a lawsuit against Google by Chrome users who claim the company collected their personal information without permission, even when they chose not to sync their browsers with their Google accounts. The 9th U.S. Circuit Court of Appeals in San Francisco ruled that the lower court should have considered whether reasonable Chrome users consented to data collection while browsing online.

This decision follows Google’s agreement last year to destroy billions of records to settle a lawsuit alleging that the company tracked users who believed they were browsing privately, including in Chrome’s “Incognito” mode. Google disagreed with the ruling, stating that Chrome Sync offers seamless use across devices with clear privacy controls. 

The proposed class action includes Chrome users since July 27, 2016, who did not sync their browsers with their Google accounts. They contended that Google should have adhered to Chrome’s privacy notice, which stated that users did not need to provide personal information to use Chrome and that Google would not receive such information unless the “sync” function was enabled. 

The appeals court returned the case to U.S. District Judge Yvonne Gonzalez Rogers, who dismissed the case in December 2022.

The case is Calhoun et al v Google LLC, 9th U.S. Circuit Court of Appeals, No. 22-16993.

Source: Reuters

Uber’s $200 Million Settlement On Investors IPO Gets Approval 

A California federal judge has given preliminary approval to Uber’s $200 million settlement with investors who accused the company of making false and misleading statements before its $8.1 billion Initial Public Offering (IPO). The investors in the lawsuit claimed Uber misrepresented its passenger safety record, financial condition, and business model legality.

U.S. District Judge Richard Seeborg approved the settlement, stating it was fair, reasonable, and adequate. Uber will place $200 million in an escrow account, with net funds distributed to investors after deducting attorney fees, litigation, and administration costs. 

Uber had contended that its IPO registration statement disclosed all necessary information. The investors alleged violations of Section 11 of the federal Securities Act.

The lawsuit, filed in 2019, claimed Uber’s misrepresentations led to a significant stock value drop, with shares falling from $45 to $25 by November 2019. The settlement will primarily benefit those who bought Uber shares within six months of the IPO. Uber faced several legal setbacks, including the rejection of its dismissal bid in 2021 and class certification in 2022.

The class is represented by Jonathan Gardner, Alfred Fatale, Joseph Cotilletta and Beth Khinchuk of Labaton Keller Sucharow LLP.

The case is Boston Retirement System v. Uber Technologies Inc. et al., case number 3:19-cv-06361, in the U.S. District Court for the Northern District of California.

Source: Law360

Oracle’s $115 Million Settlement In Sale Of User Data Case Gets Approval

A California federal judge has given preliminary approval to Oracle’s $115 million settlement to resolve a proposed class action accusing the company of illegally selling users’ electronic profiles. However, the judge expressed concerns about the cumbersome opt-out process, which requires individuals to download, fill out, and mail a form. Oracle’s lawyers contended this process prevents mass opt-outs driven by counsel rather than individuals.

Each class representative may receive up to $10,000. The settlement also provides injunctive relief, requiring Oracle to stop certain data collection practices and implement an audit program.

The class action, filed in August 2022, alleged Oracle collected and sold personal data without users’ consent, generating $42.4 billion in annual revenue. The settlement covers those whose data was collected by Oracle’s advertising technologies from August 2018 to the final judgment date.

The consumers are represented by Michael W. Sobol, David T. Rudolph, Jallé H. Dafa, John D. Maher, Amelia A. Haselkorn and Nabila Abdallah of Lieff Cabraser Heimann & Bernstein LLP.

The case is Michael Katz-Lacabe et al. v. Oracle America Inc., case number 3:22-cv-04792, in the U.S. District Court for the Northern District of California.

Source: Law360

Pilgrim’s Pride Has Agreed To $100 Million Settlement With Chicken Farmers

Pilgrim’s Pride has agreed to pay $100 million to settle claims that it conspired with other chicken producers to suppress farmer compensation. This settlement, filed in Oklahoma federal court, addresses claims that Pilgrim’s Pride and over a dozen co-conspirators violated the Sherman Act and the Packers and Stockyards Act by suppressing compensation for broiler chicken growers from January 27, 2013, to December 31, 2019.

This $100 million settlement is said to be the largest ever for a class of growers in any litigation and brings the total recovery in this case to $169 million, including previous settlements with Tyson, Perdue, Koch, and Sanderson. Pilgrim’s Pride also agreed not to enforce arbitration clauses or class action bans for the next five years.

The plaintiffs urged the court to grant preliminary approval to the settlement, highlighting the significant recovery achieved and the lengthy litigation process that would otherwise continue.

The case, dating back to 2016, involves broiler chicken farmers accusing large poultry producers of scheming to suppress farmer pay through agreements and information sharing. Broiler chickens make up about 98% of the chicken consumed in the U.S.

The plaintiffs are represented by lawyers with Hausfeld LLP, Berger Montague PC, Riggs Abney Neal Turpen Orbison & Lewis, Mitchell Declerk PLLC, Burns Charest LLP, Davis & Taliaferro LLC, Chalmers & Adam LLC, Van Winkle Law Firm, Hentges & Associates PLLC, Whitfield Coleman Montoya PLLC, Butler Farm & Ranch Law Group PLLC, Cuneo Gilbert & Laduca LLP, Robins Kaplan LLP, Public Justice PC, Dampier Law Firm, Roach Langston Bruno LLP, Davis Bethune & Jones LLC, and Bonsignore Trial Lawyers PLLC.

The case is In re Boiler Chicken Grower Antitrust Litigation No. II, case number 6:20-md-02977, in the U.S. District Court for the Eastern District of Oklahoma.

Source: Law360

MASS TORTS LITIGATION

What Is A Mass Tort?

I was asked a question recently by a non-lawyer friend that needs an answer. He asked: “What exactly is a mass tort?” I realized that a definition was in order for non-lawyers. But it could also benefit lawyers who don’t handle mass torts litigation. So here it goes. 

A mass tort occurs when many individuals are harmed by the same act or omission, leading to claims against the same defendant or defendants. These cases will also involve multiple plaintiffs. The cases can be combined into a class action or can be in multidistrict litigation (MDL).

Mass torts refer to the law governing large groups of claimants, while class actions are a process for handling these claims. Class members have little involvement and no decision-making power once they join the class. Lawyers are selected by trial judges to lead this type of litigation. Obviously, there is much more to it. We will explain in a little more detail. 

At the outset, there must have been some sort of wrongdoing by the defendant or defendants. Tort law allows victims to seek compensation for harm caused by negligence or wrongful acts. While some torts affect only a few people, mass torts impact many individuals. Sometimes there will be thousands affected by the same wrongful act or omission. So, let’s take a look at class actions and MDL cases. The following will give you a general understanding of the basic difference between a class action and an MDL. 

• Class Actions: Plaintiffs are grouped into a single lawsuit with class representatives. There will be multiple class members. 

• MDL: Similar cases are grouped together in one court, but they remain separate lawsuits. Each plaintiff must prove their individual case. However, many MDL cases are resolved as class actions.

Mass Torts include single-site, single-events, and what is labeled a dispersed mass tort. Product defects can involve various types of pharmaceuticals, including drugs and medical devices.

As stated above, mass tort cases are often resolved through an MDL, where cases are heard by one judge to streamline the process and avoid inconsistent verdicts. Committees of lawyers facilitate various processes for all cases in the MDL.

Source: Forbes

Infant Formula Litigation Update

Beasley Allen lawyers continue to investigate cases where cow’s milk-based formulas and milk fortifiers have caused Necrotizing Enterocolitis in premature infants. Necrotizing enterocolitis (NEC) is a serious and often fatal condition that results in the degradation and subsequent perforation of the bowels.  

Studies clearly show that premature, underweight infants are at a much higher risk of this often-fatal condition when given cow’s milk-based formulas like Enfamil and Similac.  

Despite the overwhelming science, and the fact that virtually every pediatric medical organization worldwide recognizes the heightened risk of NEC from these formulas, these manufacturers offer no warning whatsoever on their products about the risk.  

In a recent trial in Missouri, a jury held formula manufacturer Abbott Laboratories liable for a plaintiff’s development of NEC and subsequent injuries.  In that case, the premature infant developed NEC after being fed Similac Special Care formula.  Following her NEC diagnosis, the infant had 75% of her intestines removed and suffered significant permanent injuries, including brain damage. 

The jury in that case found that the Similac formula was the cause of the plaintiff’s NEC and awarded $495 million. Although this case will be subject to appeals before any money is paid, we find these results to be very promising for the litigation. 

Update On The Kratom Litigation

Since nationwide recognition of the opioid epidemic, many individuals suffering from chronic pain have attempted to medicate using more natural remedies.  Kratom is a commonly used product advertised to treat pain as well as depression and anxiety and is taken alone and in combination with other drugs.  In low doses, it has effects similar to high levels of caffeine, whereas in high doses, it acts much like an opioid and on the same neurological receptors. The active compounds are mitragynine and 7-hydroxy mitragynine.  

Kratom has no known medicinal value, yet it has been linked to overdoses resulting in seizures, coma, liver failure and death.  As an herbal supplement, the FDA does not regulate kratom and has not approved any prescription or over-the-counter use of kratom products, although the Drug Enforcement Agency (DEA) has classified it as a “drug of chemical concern.”  In the U.S., it is ingested in tablet, capsule or liquid extract form. 

Cases have been filed against manufacturers and sellers of kratom products in multiple states.  One case has been tried to verdict, with a jury in Washington finding for the plaintiffs. In a second case in Florida, the trial judge issued a default verdict for the plaintiffs. There are dozens of other cases pending.  The lawsuits allege, in part, negligence for labeling, unsafe design, failure to display proper health and safety warnings on packaging, and breach of “implied warranty of merchantability.”  Kratom is sold in smoke and vape shops and health stores, as well as kratom bars, where it is added to coffee and tea.  

Hair Relaxer Litigation Update

Studies have shown users of hair relaxer products have a significantly increased risk of developing uterine, endometrial, and ovarian cancers. This serious health risk associated with these products has resulted in multiple lawsuits against the manufacturers of these products. The number of different products and different manufacturers involved in these lawsuits offers unique challenges compared to other pharmaceutical device or cosmetic cases. 

Currently, there are at least 16 different manufacturer defendants of the various hair relaxer products involved in litigation. These manufacturers include: Avlon Industries, Inc; Beauty Bell Enterprises, LLC; Dabur International Ltd. (“Dabur”); Dermoviva Skin Essentials, Inc. (“Dermoviva”); House of Cheatham LLC; L’Oréal USA; Luster Products, Inc.; McBride Research Laboratories, Inc.; Namasté Laboratories, LLC (“Namasté”); Revlon, Inc.; Sally Beauty Supply LLC (“Sally Beauty”); Strength of Nature LLC, Strength of Nature Global LLC (together “SON LLC”); Dudley Beauty Corp, LLC; Wella Operations US LLC; Bronner Brothers Inc.; John Paul Mitchell Systems; Murrays Worldwide Inc., RNA Corporation; and Roux Laboratories, just to name a few. 

Many victims of hair relaxer products have used multiple products over the years, which requires including more than one defendant in each plaintiff’s lawsuit. When multiple defendants are involved in lawsuits, the chance of delayed proceedings grows substantially. Delays often occur when some defendants are less organized than others when producing discovery and other evidence necessary for the prosecution of a case. 

Defendants can also slow the litigation process down when the coordination among the defendants is not handled efficiently. These occurrences can certainly frustrate the pace of litigation. Therefore, plaintiffs’ lawyers must maintain pressure on these defendants throughout the litigation process to ensure the best and quickest opportunity for case resolution.

GLP-1/Ozempic MDL Issues Several Key Procedural Rulings

U.S. District Judge Karen Marston oversees the GLP-1/Ozempic MDL in the U.S. District Court for the Eastern District of Pennsylvania. This litigation involves personal injury cases linked to severe stomach complications, intraoperative aspiration, blindness, and several other serious injuries.  The MDL has had many important rulings recently.  We have set out below a quick reference of each of the recent Case Management Orders (CMOs).    

CMO No. 10

CMO No. 10 is what we refer to as the “Rule 502(d) Order.”  This Order governs the inadvertent disclosure of documents for which the producing party claims a privilege or work product protection. 

CMO No. 11

CMO No. 11 involved a detailed process that the parties negotiated regarding a protective order and sealing process to protect the Defendants’ confidential trade secrets and similar information from their competitors. 

CMO No. 12

CMO No. 12 involves Plaintiff Fact Sheets (“PFS”).  The PFS process is common in MDLs and sets forth an expedited process for Plaintiffs to provide information about their case and produce requested documents. 

CMO No. 13

CMO No. 13 was a stipulation narrowing the appropriate parties for the network of companies behind Novo Nordisk, the maker of Ozempic, Wegovy, and other GLP1s.  

CMO No. 14

CMO No. 14 is the “Direct Filing Order.”  The Direct Filing Order allows plaintiffs from all over the country to file their cases directly in the Eastern District of Pennsylvania, which saves significant time and expense.  The number of filed cases more than quadrupled since the Direct Filing Order was entered in mid-July.    

CMO No. 15

CMO No. 15 involves the “ESI Protocol,” which sets out how parties will produce electronically stored information.  

CMO No. 16

CMO No. 16 appointed the Honorable Lawrence F. Stengel (Retired) as Special Discovery Master overseeing third-party discovery issues.

CMO No. 17

Finally, on August 8, 2024, the Court entered CMO No. 17, which establishes how parties will keep their time and expenses for the Common Benefit Fund.  The Common Benefit Fund is a fund that will be divided up at the conclusion of the litigation based on work that was performed that benefits all plaintiffs in the litigation.    

All the CMOs above were entered within a one-month span.  These foundational orders will determine how many key issues in the GLP-1/Ozempic MDL will proceed.

Second Circuit Appeal Filed For Acetaminophen And Autism/ADHD Lawsuits

On July 17, 2024, lawyers representing plaintiffs in the Acetaminophen and Autism/ADHD multidistrict litigation (MDL) filed a Second Circuit appeal of the MDL’s adverse ruling excluding plaintiffs’ general causation experts.  

The appeal argues that the MDL Court (S.D.N.Y.) misapplied Rule 702 by “viewing its role as more akin to a policy maker than a gatekeeper” and ruled based on its “view of the policy consequences rather than applying the rule of law.”  

The appeal further argues that, in part, the plaintiffs’ experts reliably applied a weight-of-the-evidence analysis involving the increased risk of autism and/or ADHD from prenatal acetaminophen use.  

The appeal comes after MDL Judge Denise Cote granted defendants’ motion to exclude plaintiffs’ general causation experts on December 18, 2023.  

The Judicial Panel on Multidistrict Litigation (JPML) consolidated cases to Judge Cote in October 2022 due to the increasing number of filings across the country alleging a link between prenatal acetaminophen exposure and autism and/or ADHD.  Beasley Allen’s Roger Smith is the MDL Chair of the Plaintiff’s Science and Expert Committee.

Beasley Allen lawyers in our Mass Torts Section continue to advocate for families whose children were affected by prenatal acetaminophen exposure and were subsequently diagnosed with autism or ADHD. 

Source:  Rutledge et al., v. Walgreen Co., et al., Case: 24-916, 07/17/2024, Dkt Entry: 118.1, Brief and Special Appendix for Plaintiffs-Appellants (2^nd Cir. 2024)

TOXIC TORT LITIGATION

How The Views Of Courts Can Affect PFAS Claims Differently

In recent years, there has been a large increase in lawsuits related to per- and polyfluoroalkyl substances (PFAS), particularly focusing on the failure of manufacturers to disclose PFAS in consumer products. These lawsuits claim that if consumers had known about the presence of PFAS, they would have either paid less or not bought the product at all.

At the outset of a case, PFAS claims must meet the standing test. Standing requires plaintiffs to show an injury caused by the defendant that can be remedied by the court. Article III of the U.S. Constitution provides the basis for defining control of the issue. Two recent cases highlight the importance of standing in PFAS litigation. 

In Lurenz v. Coca-Cola Co., the court dismissed the case because the plaintiff couldn’t plausibly allege that the specific product they bought contained PFAS. Conversely, in Winans v. Ornua Foods North America Inc., the court found the plaintiff’s allegations sufficient, partly because the product had been recalled due to PFAS in its packaging.

These differing outcomes underscore the evolving nature of PFAS litigation and the critical role of standing in determining the success of such claims. Courts’ interpretations of standing will significantly impact the future of PFAS-related lawsuits.

Source: Law360

A Further PFAS/ AFFF Litigation Update

The Aqueous Film–Forming Foam (AFFF) litigation is pending before the U.S. District Judge Richard Gergel in the U.S. District Court of South Carolina. The current “presumptive injuries” in the litigation are kidney cancer, testicular cancer, hypothyroidism/thyroid disease, ulcerative colitis, liver cancer, and thyroid cancer. 

PFAS are long-lasting chemicals. Due to their widespread use and persistence in the environment, PFAS have been found in groundwater and soil at many federal facilities, including military sites. The Army also uses PFAS in foam to extinguish fires. Current peer-reviewed scientific studies have shown that exposure to certain levels of PFAS may lead to various health risks such as decreased fertility or increased high blood pressure in pregnant women, increased risk of certain cancers, reduced ability of the body’s immune system to fight infections, interference with the body’s natural hormones, and increased cholesterol levels and/or risk of obesity. 

On July 26, 2024, the U.S. Environmental Protection Agency (EPA) and the U.S. Army announced a joint project to conduct sampling and testing of private drinking water wells near certain Army installations. The nine priority installations are in the states of Alabama, California, Georgia, Kentucky, Tennessee, North Carolina, and Oklahoma. If the testing indicates PFAS levels above the new maximum contaminant levels established by EPA, the Army will work with both the EPA and state regulators to assess what actions are necessary to mitigate exposure. This joint effort is significant as PFAS poses risks to public health.  

J&J Settles With Family In Sunscreen Lawsuit

Johnson & Johnson (J&J) has settled a lawsuit filed by Dory Brendan Hux. It was alleged in the complaint that the plaintiff’s 14-year-old son, Braylan, died from leukemia after using benzene-contaminated sunscreen products. 

The settlement notice, filed in North Carolina federal court, did not disclose the terms. Thus, at press time neither the terms nor the amount of the settlement were known. Braylan was diagnosed with acute myeloid leukemia on April 15, 2021. He passed away less than a week later. 

The lawsuit, filed in April 2023, alleged that Neutrogena sunscreen, a J&J product, contained unsafe levels of benzene, a known carcinogen.

The family is represented by Brett E. Dressler of Sellers Ayers Dortch & Lyons PA, and David P. Matthews and Mark E. Chavez of Matthews & Associates.

The case is Hux v. Neutrogena Corporation et al., case number 3:23-cv-00215, in the United States District Court for the Western District Of North Carolina, Charlotte Division.

Source: Law360

Seattle Reaches A $160 Million Settlement In Case Against Monsanto

Seattle has ended an eight-year legal battle with Monsanto by settling its case for $160 million over the contamination of the Lower Duwamish River. The lawsuit, filed in 2016, accused Monsanto of polluting the river with harmful PCBs. 

The city will use the settlement funds to mitigate and remove PCBs from the Lower Duwamish River. Initially, Seattle sought over $700 million in damages, while federal officials estimated the full cleanup would cost $342 million in 2014. Of the $160 million, $35 million is allocated for PCB remediation, with the remainder reimbursing the city for its cleanup efforts.

The EPA declared the river a Superfund Site in 2001, and the funds will help Seattle Public Utilities further protect the river.

Source: Courthouse News Service

EPA Removes Harmful Weedkiller To Protect Babies’ Health

In a rare move, one not seen for almost 40 years, the Environmental Protection Agency (EPA) has issued an emergency order suspending all uses of Dacthal weedkiller, which has been linked to serious health risks for unborn babies. The EPA made “unprecedented efforts” for years to obtain health risk data from AMVAC Chemical Corporation, the pesticide’s sole manufacturer.

What is Dacthal?

Dacthal, also known as dimethyl tetrachloroterephthalate (DCPA), is an herbicide commonly used on crops like broccoli, brussels sprouts, cabbage, and onions. It has been a staple in agriculture for controlling weeds, but recent findings have raised alarming health concerns.

Health Risks

The EPA has found that exposure to Dacthal can lead to severe health issues for unborn babies, including:

• Low birth weight

• Impaired brain development

• Decreased I.Q.

• Impaired motor skills

People who work on farms are the most at risk of being exposed to this chemical. However, consumers can also be exposed to residue. DCPA can be absorbed by plants, so it goes beyond the surface level. 

These risks are particularly concerning for pregnant women who may not realize they are being exposed to the chemical.

The agency estimates that pregnant women handling DCPA products could be subjected to exposures four to 20 times greater than what’s estimated safe for unborn babies.

What’s Next?

The EPA is planning to permanently ban DCPA products. This process could take a few months if there are no objections. But it might take years if the manufacturer challenges the decision. In the meantime, an emergency suspension is in place to prevent further harm.

Some advocacy groups believe the EPA should have acted sooner. A 2019 study by the University of California at Berkeley found that over half of teenage girls from farmworker communities in California’s Salinas Valley had been exposed to DCPA. The chemical has been banned for use on crops in the European Union since 2009.

Beasley Allen lawyers are currently investigating the harmful effects of this weedkiller. We will keep you updated on their findings. Stay tuned!

Sources: Environmental Protection Agency and Chemical Safety and Pollution Prevention (OCSPP)

Paraquat: Taking A Closer Look At Oxidative Stress And The Relation To Parkinson’s Disease

Since the Paraquat litigation began in 2021, the amount of research and data demonstrating the link between Paraquat use and the number of Parkinson’s disease diagnoses is undeniable. Recently, a man in Washington filed a paraquat lawsuit for his toxic exposure to the herbicide. The plaintiff’s assertion focused on the effects of prolonged exposure by releasing toxins known as oxidative stress.

Oxidative stress occurs when there is an increased level of “free radicals” in the body. This is concerning because the brain is especially susceptible to free radical damage since it does not rely on many antioxidant defenses but is dependent on oxygen consumption for proper function. Free radicals can be neutralized by antioxidants, but if left uncontrolled, this oxidative stress can lead to severe health problems. As a result, such brain damage leads to neurodegenerative disorders such as Parkinson’s disease.

Based on the continuing research and studies, experts are uncovering the impact of Paraquat-induced oxidative stress over extended periods of time. This is especially dangerous for exposed individuals because the toxic herbicide further inhibits the flow of antioxidants and speeds up DNA cell damage. 

Even with the overwhelming amount of data that highlights the seemingly obvious link between Paraquat and its ban in over 60 countries, the sale of Paraquat still remains readily available in the state of California. 

The Environmental Protection Agency (EPA) continues to evaluate and reassess both the risks and benefits of Paraquat as its preliminary analysis grossly understands the harms caused by the herbicide. 

The public, farmworkers, and agricultural communities deserve the long-overdue protections, and they hope that the January 2025 EPA decision will completely ban Paraquat. 

Source: Earth Justice

Historic $600 Million Settlement Against Big Tobacco 

Philip Morris Inc. and RJ Reynolds Tobacco Co. will pay significant sums as part of a $600 million settlement with Massachusetts, resolving long-standing disputes over payments owed by cigarette makers. This settlement stems from a 1998 master agreement where tobacco companies agreed to stop marketing to children and pay states billions annually to cover smoking-related medical costs.

Attorney General Andrea Joy Campbell announced that this settlement ends arbitration proceedings related to withheld funds from 2005 to 2011. Massachusetts will receive $600 million this year and additional payments in the future. General Campbell emphasized the settlement’s role in holding tobacco companies accountable for their harmful marketing practices.

Former Attorney General and current Governor Maura Healey also praised the settlement agreement, highlighting the importance of addressing Big Tobacco’s misleading practices. The settlement includes a 46% credit for the manufacturers, with RJ Reynolds and Philip Morris paying the majority of the $600 million this fiscal year. Further payments are still under arbitration.

Source: Law360

Judge Compels EPA In Toxic Substances Lawsuit To Provide Records

A federal judge has ordered the U.S. Environmental Protection Agency (EPA) to produce the administrative record in a lawsuit under the Toxic Substances Control Act (TSCA). The lawsuit accuses the EPA of failing to meet information disclosure requirements. U.S. District Judge Loren L. AliKhan ruled that most of the plaintiffs’ claims are reviewable under the Administrative Procedure Act, requiring an administrative record for all counts except one.

The ruling favors five environmental organizations represented by Earthjustice and requires the EPA to provide the necessary records. Tosh Sagar, a senior attorney at Earthjustice, praised the decision and emphasized the public’s right to access information about toxic chemicals.

Judge AliKhan has instructed the parties to define the scope of the administrative record by September 17. The EPA is currently reviewing the decision. The plaintiffs, including the Environmental Defense Fund and the Sierra Club, seek to ensure the EPA complies with TSCA’s disclosure requirements. 

The case is Environmental Defense Fund v. Regan and is being heard in the U.S. District Court for the District of Columbia.

Source: National Law Journal

INSURANCE LITIGATION

A $100 Million Bad Faith Verdict Against Progressive Corp.

A Nevada state court jury has awarded $100 million in punitive damages against Progressive Corp. for bad faith in delaying medical bill reimbursements for Hal Goldblatt, who was severely injured in a 2022 accident. The jury also awarded $1 million in compensatory damages. 

Goldblatt and his wife Shawn sued Progressive after the insurer delayed payments, forcing them into debt. Progressive argued they followed standard practices, but the jury found systemic failures in handling the claim. Progressive says it’s considering an appeal. 

Kimball Jones, a lawyer for the plaintiff, highlighted at trial that the delay caused significant harm and emphasized that insurance companies should treat claims fairly without needing a lawyer involved in representing the named insured.

The case is Hal Goldblatt v. Lamonte Cunningham, case number A-23-868786-C in Clark County Circuit Court.

Source: Courtroom View Network

A SPECIAL LOOK AT A REPORT ON PBMs

A Scathing Report By FCA On PBMs

The Federal Trade Commission (FTC) recently released a blistering report on Pharmacy Benefit Managers (PBMs) that has surely put them in the “hot seat”—if they were not already there. If the American people were asked if they know what a PBM is, very few would say yes. 

PBMs are corporate middlemen in the pharmacy supply chain that play a big role with respect to how much patients and health plans pay for prescription drugs.  PBMs have been greatly criticized for the practices they claim allegedly lower costs, but in actuality, they have a detrimental impact on access to medications while also driving up drug costs.

After a two-year investigation into the extreme market control of CVS Health Corporation, the Cigna Group, UnitedHealth Group, Humana Inc, MedImpact Holdings, and 19 BlueCross BlueShields, the FTC has issued an interim report detailing its findings with respect to PBM practices. 

The report outlines how vertical integration and concentration have given considerable power to the country’s six largest PBMs, allowing them to control almost 95% of all prescription drugs filled in the United States with little transparency. 

Just the top three PBMs, CVS Caremark, Express Scripts, and Optum Rx, account for almost 80% of the market. The largest PBMs also integrate with the largest insurers and retail pharmacies, causing even more issues within our healthcare system. Increased concentration and vertical integration allow PBMs to control drug costs and patients’ access to medication.      

The report discusses how PBMs are inflating drug prices and overcharging patients, which is highly disturbing considering that PBMs were originally created to help control the rising costs of prescription drugs.   The report raises issues with PBMs driving patients away from less-expensive medications, which results in further increases in drug prices for patients.  

The FTC found that the PBMs controlling the market can set higher drug prices without any consequence to their business because they can just require patients to use the pharmacy that offers the PBM the best deal, as opposed to the patient. For patients on Medicare, their out-of-pocket expenses are increased because their cost-sharing is based on a percentage of the drug price.        

The report also addresses the impact PBMs have on independent pharmacies, suggesting that they may be contributing to the collapse of our nation’s independent pharmacies. PBMs have become so integrated with health plans and other entities that they have come at a great expense to the independent pharmacies whose patients are being steered away. 

The FTC’s findings include that PBMs often impose harmful contract terms on independent pharmacies that impede their ability to stay in business. Many independent pharmacies provide medication to rural and underserved areas; therefore, these patients’ access to medication in these areas may seriously be at risk. 

According to the FTC, approximately 10% of independent retail pharmacies in rural America closed between 2013 and 2022.

Chair of the FTC, Lina M. Khan, JD, commented that “The report also details how PBMs can squeeze independent pharmacies that many Americans—especially those in rural communities—depend on for essential care.”  She further stated:

The FTC will continue to use all our tools and authorities to scrutinize dominant players across health care markets and ensure that Americans can access affordable health care.

These revenue driving PBMs are working to increase profits by manipulating drug prices at the expense of patients and the independent pharmacies that are looking to fill their prescriptions. Douglas Hoey, PharmD, CEO of the National Community Pharmacists Association, stated the issues very succinctly:

In recent years, the pharmacy benefits space has undergone massive transformation. It’s no longer 2005. Without question—and as the interim report makes clear—the marketplace has exploded because of countless mergers and acquisitions as well as tactics like patient steering and take-it-or-leave-it contracting. It’s a system that may work for massive PBM middlemen, but it’s anti-consumer and anti-competitive. It has been abundantly clear for years that policymakers must level the playing field. Congress must swiftly enact reforms to rein them in, and states should continue doing so as well. Regulators at all levels must keep a close eye on these entities and enforce the laws that are on the books. And the FTC must continue its investigation and pursue the information that the PBMs have so far defiantly withheld. Patients and community pharmacies need this fight to be finished, and need it urgently.

This FTC report is anticipated to be just the initial result of a nationwide crackdown on PBMs and how they take advantage of and harm patients and independent pharmacists. 

Sources: Federal Trade Commission, Drug Topics, National Community Pharmacists Association

CONSUMER CORNER

CPSC Determines Amazon Is Responsible For Safety Of Products Sold On Its Platform

The Consumer Product Safety Commission (CPSC) recently determined that online retail giant Amazon, Inc. must recall hundreds of thousands of products on its platform for safety concerns.  The CPSC is responsible for promoting the safety of products sold to consumers by developing safety standards, investigating product injuries, and administering product recalls.  The CPSC’s decision is significant as Amazon has vigorously fought, often successfully, to be held liable for any unsafe products it sells. Further, the reasoning applied by the CPSC can likely be extended to other online retailers. 

The CPSC unanimously decided that Amazon is a “distributor” under the Consumer Product Safety Act such that the online retailer must ensure the safety of the products sold on its website.  Amazon argued that it was not a distributor because the sales were by third parties.  However, the CPSC rejected that argument and found that Amazon had control over the products sold on its website because it stores and ships the products to consumers from its distribution centers.  This ruling gives the CPSC the ability to force the retailer to issue a recall, which Amazon has fought against for years.

In its decision, the CPSC pointed to several unsafe products sold on its platform.  These included defective hair dryers and carbon monoxide detectors, as well as children’s sleepwear that fails to meet federal flammability standards.  Furthermore, although the CPSC did not mention it, Amazon was slow to remove sodium nitrite, a chemical commonly used in suicides, from its platform despite receiving numerous reports from families who had lost loved ones.

Lawyers at Beasley Allen in our Consumer Fraud & Commercial Litigation Section have been monitoring this development from the CPSC and how it might impact consumers on a large scale.

Source: Law360

Amazon Faces Pandemic Price-Gouging Claims

In another development involving Amazon, the Washington State Supreme Court has ruled that Amazon can be sued under the state’s Consumer Protection Act for alleged price-gouging during the early COVID-19 pandemic. The court found that Amazon raised its own prices for basic goods in 2020 and allowed vendors to do the same. However, the court did not agree with customers that the law bars specific markup percentages.

The court determined that the plaintiffs had adequately alleged Amazon engaged in unfair business practices, causing substantial injury by raising prices on essential goods. The proposed class action, first filed in April 2020, accused Amazon of driving up prices by as much as 1,000% during the pandemic.

The court rejected the argument that the act specifically prohibits price increases of 15% or more on consumer goods after a declared emergency, stating that such decisions are best left to the legislature. The ruling allows the case to proceed, with the determination of whether a specific price increase is “unfair” to be decided by a judge or jury based on the underlying facts.

The named plaintiffs are Alvin Greenbury, Michael Steinberg, Julie Hanson, Christina King and Ronnell Robertson. They are represented by Steve W. Berman, Ben Harrington and Benjamin Siegel of Hagens Berman Sobol Shapiro LLP.

The case is Alvin Greenberg et al. v. Amazon.com Inc., case number 101858-4, in the Washington State Supreme Court. The underlying case is Alvin Greenberg et al. v. Amazon.com Inc., case number 2:21-cv-00898, in the U.S. District Court for the Western District of Washington

Source: Law360

Alabama Extends Statute Of Limitations On Sex Abuse For Claims Against Boy Scouts Of America

Recently, Alabama Governor Kay Ivey signed the Scout’s Honor Bill into law, allowing Boy Scouts’ sex abuse victims to file claims against the Boy Scouts of America (BSA).  On February 18, 2020, after facing a firestorm of litigation, BSA filed Chapter 11 bankruptcy. In September 2022, the Bankruptcy Court approved a reorganization plan that included a landmark $2.46 billion settlement to be paid to victims. Under the settlement, decades-old victims could receive between $3,700 to $2.7 million. 

However, to recover, victims were required to file a claim and a subsequent filing to provide evidence of their abuse. The bankruptcy court appointed a special master to receive and review each victim’s claim and decide the recovery amount for each victim. 

In determining the amount of recovery, the special master considers whether the victim is entitled to recover under the state law where the abuse occurred and if the victim’s claim is barred by that state’s statute of limitation. Prior to the passage of the Scout’s Honor bill, many Alabama victims’ claims were barred by the applicable statute of limitation. 

However, the new law allows victims who were minors at the time of the offense to file a claim against a bankruptcy estate at any time, effectively removing the statute of limitation for BSA’s victims. While the new law was enacted to benefit BSA’s sex abuse victims, victim advocates believe it will serve as a blueprint for future sex abuse legislation. 

For example, a similar bill was introduced in the Alabama Senate that would allow a child sex abuse survivor to file a civil lawsuit up to 36 years after they turn 19. The bill garnered bi-partisan support in the Alabama legislature. Many advocates believe that some version of the bill will pass in the near future. 

Sexual assault victims deserve the right to bring civil lawsuits against their abusers. At Beasley Allen, our lawyers take great pride in representing sexual assault victims.

Consumer Protection Suit Again PNC Bank Revived by 4^th Circuit

A divided U.S. Court of Appeals for the Fourth Circuit has revived a lawsuit by William T. Lyons, a PNC Bank customer, who accused the bank of violating the Truth in Lending Act (TILA) by offsetting his home equity line of credit (HELOC) debt with funds from his deposit accounts. The court ruled that TILA’s offset provision, which prevents creditors from using consumers’ deposit accounts to offset credit card debt, applies to HELOCs.

PNC contended that a HELOC is not a “credit card plan” under TILA, but the Fourth Circuit disagreed. The American Bankers Association (ABA) supported PNC, arguing that applying the offset provision to HELOCs could increase foreclosure risks. However, the Consumer Financial Protection Bureau (CFPB) said that TILA’s offset provisions should apply to HELOCs.

The district court had previously dismissed the Lyons lawsuit, but the Fourth Circuit reversed this decision, remanding the case for further proceedings. Judge Roger L. Gregory wrote the majority opinion, joined by Judge A. Marvin Quattlebaum Jr., while Senior Judge Henry F. Floyd dissented, maintaining that a HELOC is not a “credit card plan” under TILA. The case is Lyons v. PNC Bank, No. 22-1943.

Source: National Law Journal

THE STRUCTURE OF BEASLEY ALLEN AND CASES HANDLED

The Structure Of Beasley Allen Is Designed To Work For Clients

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

 Beasley Allen lawyers have handled all sorts of civil litigation for plaintiffs. The Administrative Section supports the four litigation sections that could be described as “mini-firms” within Beasley Allen. Those four litigation sections are the Mass Torts Section, the Toxic Torts Section, the Consumer Fraud & Commercial Litigation Section, and the Personal Injury & Products Liability Section. 

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

The Mass Torts Section

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

The Toxic Torts Section

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

The Consumer Fraud & Commercial Litigation Section

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

The Personal Injury & Products Liability Section

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

The Administrative Section

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

Since we reorganized the firm’s structure, in 1998, the firm’s record speaks for itself. The structure has contributed greatly to our firm’s success. Section Heads and Directors have been able to concentrate on the cases in their section, and they quickly recognize when additional resources are needed. Lawyers in each Section have been able to focus on clients within their specialty and on achieving favorable client results. The efficiency and teamwork generated by the sections concept has resulted in our firm being recognized as one of the best litigation firms in the country. This has been for the benefit of the folks we represented. 

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases 

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

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

We will give a brief explanation for each category below:

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

Resources to Help Your Law Practice

From the firm’s beginning in 1979, Beasley Allen has been a civil litigation firm representing only plaintiffs. The firm, by choice, only represents individuals, companies and governmental entities that have been wronged and have suffered damages due to the wrongdoing of another. Our lawyers do not handle any defense work, neither civil nor criminal. There are no exceptions. The only time we represent companies in Corporate America is when they are victims of wrongdoing and are plaintiffs in civil litigation. This has been our policy since the firm’s establishment in 1979, and it will never change.

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

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

Co-Counsel E-Newsletter 

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

Webinars

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

Recalls Update

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

The Jere Beasley Report

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

TRIAL TIPS FOR LAWYERS

Lauren Miles, a lawyer in our Consumer Fraud & Commercial Litigation Section, provides some trial tips for our readers this month that will help “optimize” jury selection. As I learned years ago, effective jury selection is critically important for a trial lawyer. So, let’s see what Lauren has for us. 

Trial Tips: Optimizing Jury Selection

Every trial lawyer knows an advantageous jury selection, otherwise known as Voir Dire, holds an outsized significance to the trial’s ultimate outcome, but not every trial lawyer capitalizes on the in-person process when given the opportunity. A lawyer’s critical goal in voir dire is to elicit candid responses from potential jurors that express biases in their own words so to establish challenges for cause and make informed decisions about how to use available peremptory challenges. Too often, trial lawyers conducting voir dire misuse their limited voir dire by asking only binary questions, relying too heavily on juror demographics, and devoting too much time trying to charm a jury panel (venire). 

Only asking potential jurors “yes or no” questions on specific issues within a case is a common and ineffective method because binary questions provide little useful information to predict a potential juror’s judgment. Instead, a lawyer should prepare in advance key questions designed to address the relevant legal topics and specific facts of the case and to reveal strong beliefs held by a potential juror. A lawyer engaging with a panel should expect to ask simple, candid questions in an open-ended, hypothetical manner to individual venire members, then encourage further discussions within the venire using prompts formed from individual responses as necessary.

The nature of Jury selection compels a trial lawyer to rely on incomplete information when selecting a jury, but relying on only demographic information like age, gender, or the color of their skin is basic information that places too much confidence in stereotypes and assumptions that research shows aren’t reliable predictors of a juror’s inclinations. Considering jury selection is essentially juror exclusion, a decisive trial lawyer must critically listen to the venire’s discussion for bias. Once a venire member is identified for a preemptory challenge, the engaged lawyer must craft a record that justifies the member’s exclusion as quickly as possible, then progress to the next topic or juror. It is equally important to critically listen to a jury panel’s answers to your opponent’s key questions for Batson objections when race-neutral justifications to peremptory challenges aren’t obvious.

Finally, voir dire is the lawyer’s first opportunity to make an impression on a jury, so showing respect to the venire and thanking them for their time and honesty when sharing answers to your questions is imperative. But the most effective voir dire results from being the most prepared lawyer before a jury panel. Lawyers who use their limited voir dire time trying to gain the venire’s favor instead of information from venire members are wasting their only opportunity to select a desirable jury for their case. This exercise requires the lawyer to have the skills of a salesperson, the tenacity of a seasoned investigator, and the charm of a prince/princess all in one. 

The composition of the jury is a vital step in the trial, and as such, trial lawyers should endeavor by all practical means to collect invaluable information to identify the best and worst juror selections for a particular case. While these trial tips for jury selection are not meant to cover all the tactics of a winning voir dire, invoking these tips during voir dire should yield invaluable insights into the individuals who will ultimately determine the outcome of your client’s trial. 

I believe these trial tips will be helpful to all trial lawyers regardless of their trial experience level.

SPECIAL RECOGNITIONS

Lawyer And Employee Spotlights

Jessica Bullard

Jess Bullard joined Beasley Allen as a Staff Assistant in the Toxic Torts Section in 2022. She says she finally found her niche in managing the back-office emails and voice messages left by clients involved with Camp LeJeune, Roundup, and Paraquat cases. Working remotely, Jess expresses that she has adeptly learned to manage and direct this crucial communication, highlighting a noticeable increase in volume, which she finds enjoyable and rewarding.

When she’s not at work, Jess enjoys various creative and physical activities. From thrifting and crafting to photography and home decor, Jess says she appreciates the joy of creating—and the mess that often comes with it. Physical wellness is also on her radar; she enjoys walks and exercise, followed by what she describes as a refreshing jump into the pool. Jess describes her life as a vibrant one. Married to her husband Joey for ten years, she is a mother to four girls, with her household progressively emptying as her children grow up and venture out.

Jess says her favorite aspect of working at Beasley Allen is the palpable sense of support and camaraderie she experiences daily. She says, “Despite the challenges of remote work, I feel closely connected to my co-workers, ready to assist or receive assistance at a moment’s notice.” 

Jess is a hard-working, dedicated employee. We are thankful to have Jess with us!

Jakiya Gregory

Jakiya Gregory has been a part of the Beasley Allen team since 2022 as an Intake Specialist in the Mass Torts section. In her role, Jakiya is the firm’s first point of contact with clients. Her responsibilities include communicating directly with clients, gathering essential information, and creating an environment of trust and safety right from the outset. Jakiya’s role is foundational in maintaining the firm’s mission of helping those who need it most.

Jakiya says that family plays a significant role in her life. Being the youngest in her family, she cherishes the moments of fun and gatherings that bring everyone closer. She says, “These family occasions underscore the importance of community and support systems in my life.” Outside of her professional commitments, Jakiya engages in various activities to unwind and rejuvenate. Her after-work routines include heading to the gym, a practice that she says helps her stay fit and is a great stress reliever. Additionally, Jakiya says she enjoys pampering herself with nail care, immersing herself in the world of books, and shopping. 

Jakiya says the firm’s welcoming and flexible culture sets her experience at Beasley Allen apart from that of other employers. She adds, “The organization’s openness, coupled with the friendliness of my colleagues, makes working here enjoyable!” 

We are fortunate to have Jakiya, a hard-working, dedicated employee with us!

Mary Leah Miller

  Mary Leah Miller, a lawyer in Beasley Allen’s Atlanta office, stands out for her commitment to advocating for those affected by automotive defects. Her work primarily involves product liability cases, focusing on automotive issues such as vehicle stability, defective airbags, and faulty steering components. Before joining Beasley Allen, Mary Leah was notable for her significant achievements in Birmingham, Alabama, where she took on personal injury and product liability cases against big manufacturers, protecting consumers from harmful products ranging from automobiles to medical devices.  Mary Leah says that her decision to become an attorney was driven by her desire to impact lives positively, finding fulfillment in achieving outcomes that dramatically improve her client’s quality of life. 

Mary Leah enjoys a vibrant life in Birmingham outside the courtroom with her husband Rodney, a lawyer, their twins, Dalton and Mary Elizabeth, and two dogs. Their family is deeply involved in their church and community and enjoys sports, travel, and culinary explorations. Mary Leah is particularly passionate about supporting families navigating infertility, miscarriage, or infant loss through her work with CARRYWELL, a non-profit providing community support and financial assistance for treatments and counseling. 

Mary Leah believes that what sets Beasley Allen apart is its culture of genuine care for clients and the camaraderie among its attorneys and staff. She adds, “This culture fosters an environment of continuous learning and high ethical standards.”

We are blessed to have this hard-working trial lawyer with us at Beasley Allen. Mary Leah is totally dedicated to her clients in their pursuit for justice with us. 

Will Sutton

Will Sutton is a lawyer in the firm’s Toxic Torts Section. He is dedicated to representing clients in various civil litigation matters. His expertise spans product liability, mass torts, and toxic tort cases. Will has carved out a special niche in representing individuals severely injured by exploding consumer products and those suffering from asbestos-related diseases, such as mesothelioma and lung cancer. 

Will’s journey in law started as a law clerk in the Consumer Fraud & Commercial Litigation Section of Beasley Allen during his second year of law school. Upon earning his Juris Doctor from Faulkner University’s Thomas Goode Jones School of Law, Will transitioned to full-time attorney status in the firm’s Toxic Torts Section. His career also includes serving as counsel for the Alabama Secretary of State’s office in 2013, which provided him with a broad spectrum of civil litigation experience before he returned to Beasley Allen in 2015. 

As an Auburn University alumnus with a BA in political science, Will also enriches his law practice with an international perspective, having studied international law at the University of Amsterdam. When asked about his motivation for becoming an attorney, Will reflects on his lifelong aspiration to use the law to assist others. What drives him in his practice is the joy of continuous learning, problem-solving, and advocating for justice—coupled with the satisfaction of making a meaningful difference in his clients’ lives or improving product safety. 

Will credits Beasley Allen’s uniqueness to its compassionate and skilled team, highlighting its collaborative environment and commitment to prioritizing clients’ welfare. Outside the courtroom, Will enjoys a fulfilling personal life with his wife, Kristen Brown Sutton, from Beatrice, Alabama, their son, Robert, and their beloved goldendoodle.

Will is a hard-working lawyer who is totally dedicated to his clients and their pursuit of justice. We are fortunate to have Will at Beasley Allen. 

Candice Wyatt

Candice Wyatt has dedicated an impressive 22 years of her life to Beasley Allen. She plays a critical role as a Legal Secretary in the firm’s Personal Injury and Products Liability section. Her responsibilities are central to the legal team’s support, specifically Parker Miller, a lawyer in the section who she directly assists. Candice skillfully handles many tasks, from scheduling appointments, hearings, and trials to facilitating communication with clients and experts. 

Candice is instrumental in managing and preparing essential legal documents such as pleadings and motions, court filings, settling invoices, and organizing and summarizing medical records. Her meticulous physical and digital documentation management secures the comprehensive detail necessary in legal proceedings, markedly impacting the firm’s success in numerous cases.

Candice and her husband, Travis, whom she describes as a hard-working and devoted husband and father, have been married for nearly two decades.  She and Travis are proud parents to two daughters, Kaileigh and Kennedy, who have embarked on admirable career paths—one as a nurse in an emergency room and the other as a Millwright at a paper mill. Her family recently grew to include a granddaughter, Candice says, who has brought immense joy and pleasure to their lives!

Candice says her favorite aspect of working at Beasley Allen is the people. She highlights the passion, hard work, and compassion that her colleagues bring to the table, creating an intellectually stimulating and emotionally supportive environment. 

Candice is another hard-working employee who is dedicated to the clients she works with. We are fortunate to have Candice at Beasley Allen. 

BEASLEY ALLEN LAWYERS RECOGNIZED BY BEST LAWYERS

Beasley Allen Lawyers Recognized By Best Lawyers®

Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession, recognized 34 Beasley Allen attorneys for their outstanding professional excellence in private practice for 2025. As required by Best Lawyers, we are including the list without change below. 

Beasley Allen attorneys among The Best Lawyers in America® include:

• Ernest Franklin Woodson, Jr. – Mass Tort Litigation / Class Actions – Plaintiffs & Personal Injury Litigation – Plaintiffs

• J. Greg Allen – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• D. Michael Andrews – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Benjamin E. Baker, Jr. – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Clay Barnett – Mass Tort Litigation / Class Actions – Plaintiffs

• Jere Locke Beasley – Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs, & Product Liability Litigation – Plaintiffs

• Anthony Dow Birchfield, Jr. – Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs, & Product Liability Litigation – Plaintiffs

• LaBarron N. Boone – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• David B. Byrne III – Commercial Litigation, Corporate Law, Litigation – Health Care, Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs

• Michael J. Crow – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Kendall C. Dunson – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• R. Graham Esdale, Jr. – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Larry Golston – Commercial Litigation, Employment Law – Individuals, Litigation – Labor and Employment, Mass Tort Litigation / Class Actions – Plaintiffs, & Qui Tam Law

• C. Lance Gould – Commercial Litigation, Consumer Protection Law, & Litigation – Labor and Employment

• Alison Hawthorne – Commercial Litigation

• Rhon E. Jones – Environmental Law, Litigation – Environmental, Personal Injury Litigation – Plaintiffs, &Product Liability Litigation – Plaintiffs

• Benjamin L. Locklar – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Ted G. Meadows – Mass Tort Litigation / Class Actions – Plaintiffs

• Thomas J. Methvin – Consumer Protection Law, Health Care Law, Litigation – Environmental, Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs, & Product Liability Litigation – Plaintiffs

• W. Daniel Miles III – Commercial Litigation, Consumer Protection Law, Employee Benefits (ERISA) Law, Mass Tort Litigation / Class Actions – Plaintiffs, & Personal Injury Litigation – Plaintiffs

• Stephanie S. Monplaisir – Personal Injury Litigation – Plaintiffs

• Leigh O’Dell – Health Care Law, Mass Tort Litigation / Class Actions – Plaintiffs, & Personal Injury Litigation – Plaintiffs

• J. Cole Portis – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• W. Roger Smith III – Litigation – Health Care, Mass Tort Litigation / Class Actions – Plaintiffs, & Product Liability Litigation – Plaintiffs

• Matthew Teague – Litigation – Health Care & Mass Tort Litigation / Class Actions – Plaintiffs

• C. Gibson Vance – Consumer Protection Law, Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs, & Product Liability Litigation – Plaintiffs

• Soo Seok Yang – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Alyssa Baskam – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Chris D. Glover – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Parker Miller – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Robert Register – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Brittany Scott – Mass Tort Litigation / Class Actions – Plaintiffs

• Navan Ward, Jr. – Health Care Law, Mass Tort Litigation / Class Actions – Plaintiffs, Personal Injury Litigation – Plaintiffs, & Product Liability Litigation – Plaintiffs

• Thomas P. Willingham – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

2025 “Lawyer of the Year” Awards

Three of Beasley Allen’s Best Lawyers honorees were also named Lawyer of the Year. The Lawyer of the Year awards are presented annually to only one lawyer per practice area in each region with extremely high overall feedback from their peers. Beasley Allen’s Lawyers of the Year include:

• Kendall C. Dunson (Montgomery) – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Rhon E. Jones (Montgomery) – Litigation – Environmental

• Leigh O’Dell (Montgomery) – Mass Tort Litigation / Class Actions – Plaintiffs

Best Lawyers: Ones to Watch® in America

Additionally, Best Lawyers also recognized twelve Beasley Allen lawyers on the “Ones to Watch” list. These awards recognize early-career attorneys for outstanding excellence in private practice.

• Evan Allen – Personal Injury Litigation – Plaintiffs & Product Liability Litigation – Plaintiffs

• Ryan Beattie – Mass Tort Litigation / Class Actions – Plaintiffs

• Beau Darley – Mass Tort Litigation / Class Actions – Plaintiffs

• Paul Evans – Commercial Litigation

• Tyner Helms – Commercial Litigation & Mass Tort Litigation / Class Actions – Plaintiffs

• Warner Hornsby – Personal Injury Litigation – Plaintiffs

• Gavin King – Litigation – Environmental

• Aigner Kolom – Mass Tort Litigation / Class Actions – Plaintiffs

• Lauren Miles – Mass Tort Litigation / Class Actions – Plaintiffs

• William R. Sutton – Mass Tort Litigation / Class Actions – Plaintiffs

• Mary Leah Miller – Personal Injury Litigation – Plaintiffs

• Kenneth C. Wilson – Product Liability Litigation – Plaintiffs

Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation.

Source: Best Lawyers®

A SPECIAL ROLE FOR A BEASLEY ALLEN LAWYER IN THE ACTL

Kendall Dunson Appointed As ACTL Vice Chair Of Alabama State Committee For 2024-2025

Kendall Dunson was recently appointed Vice Chair of the Alabama State Committee for the American College of Trial Lawyers (ACTL) for the 2024-2025 term. This appointment recognizes Kendall’s exceptional contributions to the field of law and his unwavering commitment to upholding the highest standards of trial practice.

Kendall brings a wealth of experience and expertise to his new role. With over two decades of legal practice as a trial lawyer, Kendall has earned a reputation as a formidable trial lawyer known for his meticulous preparation, strategic insight, and dedication to justice. His career has been marked by numerous high-profile cases where his advocacy skills have consistently delivered favorable outcomes for his clients.

As Vice Chair, Kendall will play a pivotal role in shaping the direction of the Alabama State Committee. His leadership will be instrumental in advancing the ACTL’s mission to improve the standards of trial practice, promote the administration of justice, and enhance the quality of legal representation.

Kendall’s appointment is not only a recognition of his past achievements, but it also is a promise of continued excellence and dedication to the principles of justice and fairness. I am convinced that Kendall’s leadership and commitment to the legal profession will contribute greatly to the continued success and growth of the ACTL and the advancement of trial practice in Alabama.

FAVORITE BIBLE VERSES

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

Jakiya Gregory

Jakiya offers one of her favorite verses. She says it reminds her that no matter what life throws at her, she can still handle it because it’s only temporary and not a permanent issue. 

I can do all this through him who gives me strength. Philippians 4:13

Mary Leah Miller

Mary Leah provides several of her favorite bible verses:

Blessed is she who has believed that the Lord would fulfill his promises to her! Luke 1:45

For no word from God will ever fail. Luke 1:37

Now to him who is able to do immeasurably more than all we ask or imagine, according to his power that is at work within us. Ephesians 3:20

Will Sutton

Will furnished one of his favorite verses below.

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

Candice Wyatt

Candice shares several of her favorite verses. She says the first verse reminds her to stand firm in the Lord’s faithfulness, knowing he will give her strength and courage to get through difficult times.

Be on your guard; stand firm in the faith; be courageous; be strong. Do everything in love. 1 Corinthians 16: 13-14

Candice says the second verse reminds her that no one is perfect and that we will all make mistakes. She adds that this is okay because God is our perfection and is with us through adversity, guiding us to peace and understanding.

My flesh and my heart may fail, but God is the strength of my heart and my portion forever. Psalm 73: 26

CLOSING OBSERVATIONS

Four Top Government Policies Of 2024 At Mid-Year

Law360 has reported on the activity of Federal agencies thus far in 2024. Federal agencies have introduced several key policy changes in 2024 affecting contractors, focusing on whistleblower incentives, cybersecurity standards, and generative software procurement. The following are four significant updates:

1. Generative Tools Guidance: In April, the General Services Administration (GSA) issued guidance for purchasing generative software and hardware responsibly. This guidance, stemming from an October executive order, emphasizes considering the specific problem an agency aims to solve and ensuring compliance with existing acquisition requirements like domestic sourcing and cybersecurity rules.
2. Sustainability Rule: The Federal Acquisition Regulatory Council finalized a rule in April to enforce environmentally friendly purchases by federal agencies. This rule mandates the use of sustainable products and services, with limited exceptions, and requires agencies to justify decisions not to buy sustainable items.
3. DOJ Whistleblower Program: The Department of Justice (DOJ) launched a pilot program in April offering nonprosecution agreements to individuals who disclose corporate criminal misconduct, including contract fraud. This program aims to encourage whistleblowers to come forward with information about fraud against the U.S. Government.
4. NIST Cybersecurity Standard Update: The National Institute of Standards and Technology (NIST) updated its guidelines for protecting sensitive federal information. The new version of Special Publication 800-171 reduces the number of security controls and allows for organization-defined parameters, providing clearer guidance for contractors handling sensitive data.

These changes highlight the evolving landscape of federal contracting, emphasizing sustainability, cybersecurity, and the responsible use of emerging technologies.

Source: Law360

MONTHLY REMINDERS

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

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

2 Chronicles 7:14

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

Edmund Burke

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr. 

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

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

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

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

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

Bryan Stevenson, 2019

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

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

PARTING WORDS

The upcoming election to select our next President may well be the most important election in my lifetime. It will determine the future of our country. The two candidates are as different as daylight and dark. The life history of each candidate must be carefully examined. That should furnish all we need to make the right choice in this critically important election. 

A good way to make the right choice is to consider which of these two persons we would hire to run a company we own. That would require us to consider the life history of each applicant, including their prior job performance and personal life. The moral character and mental fitness of the two job applicants should be an important factor in our decision-making. Such factors as integrity, ethical conduct, truthfulness, respect for the rights and privileges of others, basic fairness, and respect for and adherence to the Rule of Law are all important and should be considered. 

The question is, which of the two candidates would we hire to run our business? As to the election of our next President, making the right choice shouldn’t even be a close call. So, let’s apply the same test and see if it tells us which person should never be President of our great country. I believe it does!