MAY 2 016

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BeasleyAllen.com I. well, Parker Miller and David Byrne (who located across the Gulf States and they now works in our Mass Torts Section) obtained very good settlements for CAPITOL spent months away from their families these clients. helping clients hold on through the It is important to note that the primary OBSERVATIONS darkest days of the disaster. lawyers involved in the BP litigation have Before the Multidistrict Litigation been supported by other lawyers and (MDL) was formed in New Orleans, staff in our firm over the course of the The Deepwater Horizon Oil Spill Litigation Beasley Allen was one of the first firms effort. Ryan Kral, William Sutton, Rick Is In Its Final Stages to file a lawsuit against BP. By October of Stratton and Jeff Price have worked, and 2010, our lawyers had filed a number of continue to work. many long hours in Six years ago this month, the American lawsuits on behalf of those damaged by this litigation. They have played a major people bore witness to the most devas- the oil spill. The firm was also hired to role in the recoveries obtained for the tating environmental disaster in United assist then Attorney General Troy King clients. Other lawyers have also played States history. Just off the coast of Louisi- in the filing of Alabama’s lawsuit. important roles on behalf of the firm’s ana on the night of April 20, 2010, the This filing turned out to be extremely private clients, including Jenna Fulk, Deepwater Horizon oil rig was complet- important to the outcome of the entire Will Fagerstrom, Evan Loftis, Bea Sellers, ing drilling operations when a number of litigation. and Ben Gibbons. We also have talented catastrophic explosions ripped through In looking back over these past six legal assistants, secretaries, and other the drilling rig. Eleven people died that years, I am very proud of the work our administrative staff who played a key night. The fireballs from the explosion firm did in this once-in-a-lifetime case. were so large that fishermen observed Rhon Jones was appointed as a member IN THIS ISSUE them from miles away. Two days after of the oil spill Plaintiffs’ Steering Com- the explosion, the rig—a once-hailed mittee (PSC), and he tirelessly worked on I. Capitol Observations...... 2 technological marvel—sank into the almost every facet of the litigation. II. More Automobile News Of Note. . . . 3 depths of the Gulf of Mexico. Parker Miller served as Rhon’s second During the following days, attention chair on the committee, and was III. Drug Manufacturers Fraud Litigation. . 6 quickly shifted to whether the rig or the involved in numerous PSC initiatives in well was leaking oil. Initially BP claimed New Orleans. John Tomlinson became a IV. Purely Political News & Views. . . . .6 there was no leak. But later BP estimates major contributor to the unprecedented V. The National Scene...... 7 on the spillage, which initially was 1,000 economic assessment and was intricately gallons, ballooned to tens of thousands involved in the negotiations that led to VI. The Corporate World...... 7 of barrels of oil per day. Gulf Coast resi- the landmark multi-billion dollar private dents watched helplessly as efforts economic settlement. Chris Boutwell VII. Whistleblower Litigation ...... 8 during the following weeks to cap the played a key role in the PSC’s environ- well failed. Plumes of oil were so massive mental assessment, the vetting of VIII. Product Liability Update ...... 9 they were visible from outer space. Fish- environmental experts, and the property IX. Mass Torts Update...... 12 ermen, hired to participate in the oil damage frameworks of the private spill cleanup, were so taken aback by the settlement. X. Business Litigation...... 16 miles of oil-covered ocean that some The work of our lawyers and support committed suicide upon return- staff helped the PSC ultimately reach a XI. An Update On Securities Litigation. . .17 ing to port. settlement with BP that has paid private XII. Insurance and Finance Update . . . .17 Oil began hitting the barrier islands of claimants billions of dollars. Our lawyers Alabama in May 2010, and by around have represented in excess of 4,000 XIII. Employment and FLSA Litigation. . . 19 Memorial Day 2010, the oil slick came private claimants in the claims process, ashore—essentially ending Alabama’s and they helped recover tens of millions XIV. Premises Liability Update...... 19 Gulf Coast tourism season before it ever of dollars in compensation for XV. Workplace Hazards...... 19 began. Businesses and individuals were our clients. devastated. Fishermen were left to clean We also were the leading private firm XVI. Transportation...... 21 up oil in order to put food on the table behind the State of Alabama’s litigation for their families. Local and state govern- with BP and others. Rhon Jones super- XVII. Environmental Concerns...... 23 ments lost millions in tax revenues, and vised that effort and led settlement nego- XVIII. Update On Nursing Home Litigation . .24 precious resources from Louisiana to tiations for the State. Parker Miller Florida were heavily oiled. This was a spearheaded the day-to-day litigation XIX. An Update On Class Action Litigation. .25 disaster I never believed I would see in efforts for Alabama against BP. Rhon and my lifetime. Parker, along with Beasley Allen lawyers XX. The Consumer Corner...... 26 For those of us that experienced the Jenna Fulk and Rick Stratton, were depu- XXI. Recalls Update...... 28 oil spill in 2010, it is a time we will never tized as Deputy Attorneys General for forget. Our firm started receiving phone the State of Alabama to handle the litiga- XXII. Firm Activities...... 35 calls from fishermen and seafood proces- tion for the state. The hard-fought $2.3 sors within just a few days after the oil billion settlement for Alabama represents XXIII. Special Recognitions...... 37 spill. Within a week, the demand for arguably the most significant settlement legal representation skyrocketed. Our in Alabama’s history. In addition to the XXIV. Favorite Bible Verses...... 38 Environmental / Toxic Torts Section was Alabama case, Rhon Jones and Grant XXV. Closing Observations...... 38 tasked to manage the case for the firm. Cofer, another of our lawyers, repre- Rhon Jones, John Tomlinson, Chris Bout- sented numerous local governments XXVI. Parting Words...... 39

2 BeasleyAllen.com role in our efforts and were instrumental mental in ensuring the State received continue to negotiate and iron out all of in helping obtain justice for our clients justice in the form of damages in this the details of the proposed settlement. in this important matter. matter. If you have any questions about Consumers and other interested parties With the oil spill litigation now the settlement or any aspect of State of will have ample opportunity to review drawing to a close in New Orleans, I Alabama’s lawsuit, contact Parker Miller the proposed settlement once it is made would be remiss if I did not mention the at [email protected] or public. The court will not approve any outstanding work the Judges and their 800-898-2034. settlement until there has been an oppor- staff did in this litigation. The oil spill tunity for public review and comment. MDL is arguably the largest, most Judge Breyer will follow-up on the complex MDL in United States history. progress of the settlement negotiations Judge Carl Barbier and Judge Sally II. at the next status conference, which is Shushan, along with their staffs, deserve MORE scheduled for May 19. Also, Judge Breyer tremendous credit for their hard and set a June 21 deadline for the United effective work. To reach the point where AUTOMOBILE States and Volkswagen Defendants to file we can begin to say that major litigation a consent decree outlining the settle- is coming to an end in only six years is NEWS OF NOTE ment terms, and for the Plaintiffs’ Steer- simply incredible. By comparison, the ing Committee to file a motion for Exxon Valdez oil spill litigation took preliminary approval of a class-wide set- decades to resolve. Achieving a record Tentative Volkswagen Emissions Settlement tlement. The hearing on class settlement settlement—in record time—is a tremen- Announced approval will be held on July 26. dous accomplishment and it will be Judge Breyer noted outstanding issues recorded historically in that manner. We The framework has been reached for a with respect to resolution of claims that are humbled and also proud to have been settlement concerning 480,000 Volkswa- are pending related to Volkswagen/Audi/ a part of this matter. gen and Audi vehicles, according to Dee Porsche vehicles with 3.0 liter engines Miles, who heads up our firm’s Con- and with governmental fines and penal- sumer Fraud and Commercial Litigation ties. We expect progress toward resolu- Section. Dee is a member of the exclu- Consent Decree Order Approves Alabama tion of these claims over the next several sive Plaintiffs’ Steering Committee (PSC) weeks. Claims of auto dealers and Volk- Settlement selected to lead the litigation against swagen investors, and a criminal probe Volkswagen, Audi and Porsche following As a follow-up to the above, on April 4, remain ongoing. revelations that the manufacturers 2016, Judge Carl Barbier entered an order The Court has created an official cheated to pass emissions tests on many granting final approval of the consent website for the Volkswagen litigation: diesel vehicle models manufactured decree lodged jointly by the Federal Gov- http://www.cand.uscourts.gov/crb/ since 2009. ernment, BP and the Gulf States. As we vwmdl. This website contains the com- The tentative settlement was agreed to reported previously, confirmation of BP’s plaint, pretrial orders, and dates for in principle by the U.S. Environmental settlements with the Federal Govern- upcoming hearings. You may also Protection Agency (EPA), U.S. Federal ment and the Gulf States was contingent contact Archie Grubb, a lawyer in our Trade Commission (FTC), the California on Judge Barbier granting final approval firm, at 800-898-2034, or via email at Air Resources Board and the Plaintiffs’ of the consent decree. With his order [email protected], if you Steering Committee with the Volkswa- entered, the largest environmental settle- have questions regarding the Volkswa- gen/Audi/Porsche Defendants. It was ment in U.S. history will now move gen emissions litigation. announced by Judge Charles R. Breyer, forward. The consent decree had been Because of Judge Breyer’s very specific United States District Court for the proposed for public comment on order, however, neither our firm nor any Northern District of California, at a Oct. 5, 2015. other firm involved in this litigation can hearing on April 21, 2016. As our readers know, the State of Ala- discuss any of the specifics of the settle- The tentative settlement will provide bama’s oil spill settlement was a compo- ment or anything about the internal vehicle owners with the option to either nent part of the overall governmental matters and ongoing negotiations. This is participate in a buyback program, or settlements. With this new development, an ironclad confidential requirement have their vehicle modified to conform Alabama will begin receiving annual pay- that binds all parties and their respec- to federal and state emissions regula- ments beginning 90 days from April 4, tive counsel. tions. In addition, vehicle lessees will 2016, (also known as the “effective have the option to cancel their leases. date”). From that point on, Alabama Both owners and lessees will receive should receive its scheduled compensa- additional compensation in connection Honda Confirms Takata Air Bag Fatality In tion every additional year. with the options above. Specifics as to Texas; Death Toll at 12 In total, Alabama will receive $2.3 the amount of compensation and meth- billion in compensation, including com- The death toll for passengers in vehi- odology for determining compensation pensation for economic losses resulting cles equipped with Takata air bags has have not been revealed and cannot be from the oil spill, natural resource now reached 12—11 in the U.S. and one discussed at this juncture. In addition, damages, and an apportionment of Clean overseas. Honda has confirmed that the Volkswagen has agreed to establish an Water Act civil fines and penalties. Rhon rupture of a Takata air bag in a 2002 environmental remediation fund and will Jones and Parker Miller led this litigation Honda Civic that crashed in Texas last commit other funds to promote green on behalf of the firm for the State of month resulted in the driver’s death. automobile technology. Alabama. I mentioned the other Beasley American Honda Motor Co. Inc. con- Judge Breyer reiterated at the hearing Allen lawyers who worked on the state’s firmed that the death in Fort Bend that it is “critically important” that the case above. These lawyers were instru- County, Texas, was caused by a Takata parties maintain confidentiality as they

JereBeasleyReport.com 3 Corp. air bag and said the vehicle was a separate Washington state class, within Plaintiffs in the five consolidated class the subject of multiple recalls and a a defect suit over timing-chain tension- actions have alleged that an exhaust market campaign since 2011. Representa- ing systems that allegedly lead to total emission control system used in Caterpil- tives from the National Highway Traffic engine failure. U.S. District Judge Dean lar’s C13 and C15 heavy-duty on-highway Safety Administration, the Sheriff’s D. Pregerson said a class action is the diesel engines is defective. The cases Department of Fort Bend County, Texas, best way to resolve damages and the claim that buses or trucks with the and Takata were all present at the inspec- related safety issue. The judge signed off engines suffered repeated failures and tion where Honda confirmed the on a California and Washington class of fault warnings that resulted in time-con- cause of death. drivers consisting of those who have suming and costly repairs. Then, in mid-April, a Jacksonville, Fla., already incurred costs over the defect The engines contain technology, woman who sued Japanese auto supplier and another class made of up Nissan known as ACERT, that recycles exhaust Takata after the air bag in her 2001 owners and lessees in California who back through the engine to reduce emis- Honda Civic exploded with excessive have yet to pay for repairs. Judge Preger- sions, which Caterpillar developed to force died from her injuries. Patricia son found that the groups had common comply with a series of tougher emis- Mincey, 76, was involved in a 2014 crash claims, proof and damages stemming sions regulations that went into effect in that should have been relatively minor from the timing chain issue that would 2002, according to Salud Services Inc., with no air bag deployment. However, best be resolved through class-wide liti- which does business as Endeavor Bus the crash became catastrophic when the gation. The judge wrote: Lines. The bus line, which filed its suit Takata air bag erupted violently and in Florida federal court, contended that crushed Ms. Mincey’s spine, leaving her a The actual proof of common defect, the ACERT systems are particularly vul- quadriplegic. Ms. Mincey is now believed or defendants’ knowledge and sub- nerable to failure, including clogging to be the 11th person in the U.S. to die sequent actions, go to the merits of and repeated triggering of check- from injuries caused by defective the claim, but common evidence engine lights. Takata-made airbags. will be used to prove the claim Last year, the lawsuit survived Cater- As we have previously reported, either way. Further, the evidence pillar’s dismissal motion claiming that Takata air bags have been recalled world- cited by plaintiffs in their moving the claims were preempted by the Clean wide because of a defect linked to the papers is sufficient at this stage of Air Act. U.S. District Judge Jerome B. use of inexpensive, but volatile ammo- the case to make out allegations Simandle ruled in July that only one of nium nitrate that causes the air bags to common among the class as to the the claims made by the bus and trucking explode. Chemicals and shrapnel can be alleged vehicle defects, the effects company Plaintiffs—a federal warranty sprayed at passengers when this the alleged defects could have on claim—is preempted by the CAA. happens. Takata was hit with civil penal- the vehicle in terms of safety, and However, the rest of the Plaintiffs’ ties topping out at $200 million in Nissan’s knowledge of the defect. claims—for alleged violations of con- November, the largest penalty ever The case, filed in 2012 by 2005 Nissan sumer protection laws and breach of imposed by NHTSA. The manufacturer Pathfinder owner Kobe Falco as the express warranty—are not emissions has admitted that it failed to alert NHTSA named Plaintiff against Nissan and its control issues to be enforced by the U.S. of the defect despite knowing about it, parent Nissan Motor Co., involved claims Environmental Protection Agency and and admitted further that data submitted that 2004 to 2009 Quests and 2005 to can be litigated in federal court. to the agency about the defect since at 2007 Pathfinders, Xterras and Frontiers Judge Simandle also allowed their least 2009 was “selective, incomplete or were made with timing chain systems express warranty claims and the major- inaccurate,” according to the agency. prone to premature failure. Falco also ity of their consumer protection claims NHTSA announced in January that the claimed that Nissan was well aware of to stand, but dismissed the Plaintiffs’ number of vehicles affected by defective the alleged defect. It’s contended that breach of implied warranty claims and Takata air bag inflators was expected to even before the vehicles were made, certain other state law claims, finding grow by 5 million, up to 24 million the supplier of the parts had told the that they had not been adequately pled. total. That came after NHTSA confirmed automaker the system was prone to Source: Law360.com that a faulty rupture had caused a ninth breaking down. U.S. fatality. The death was due to an air bag inflator in a 2006 Ford Ranger that Source: Law360.com limited previous testing had found was Mitsubishi Admits To Cheating On Fuel not at risk. Ford has since recalled addi- Economy For 25 Years tional Ford Rangers for a new total of Caterpillar Agrees To $60 Million Days after admitting it manipulated more than 390,000. The latest death is Settlement In Bus Engine Defect Suit mileage test data on hundreds of thou- the 11th fatality linked to Takata air bag sands of cars it made in the last three inflators in the U.S. and the 12th con- Caterpillar Inc. has informed a New years, Mitsubishi Motors Corp. made a firmed death worldwide. Jersey federal judge that it agreed to pay $60 million to end bus and trucking stunning announcement that it has been Sources: Law360.com, Los Angeles Times, The Palm overstating fuel economy in millions of Beach Post companies’ class claims alleging that the company sold bus engines with a defec- its vehicles made and sold over the last tive anti-pollution system. The settle- 25 years. On April 26, Mitsubishi officials ment calls for a $60 million common said the fraud goes back as far as 1991. Nissan To Face Three Classes Within Engine fund. Class members would be eligible The scope of Mitsubishi’s fuel-econ- Defect Suit for between $500 and a maximum of omy scandal is so massive that company $10,000 per engine, or $15,000, for officials said they don’t know yet just A California federal judge has certified losses stemming from repairs. how many cars and trucks with over- three classes of Nissan drivers, including stated mileage it has sold over the past

4 BeasleyAllen.com quarter century. The problem also poten- investigation will be released as soon as Mazda Allegedly Hid Faulty Clutch Defect tially affects millions Nissan vehicles the probe is finished, according to the made by Mitsubishi in a joint venture. In automaker. We are watching this A class action lawsuit has been filed in fact, Nissan engineers were the first to matter closely. a California federal court against Mazda, discover the discrepancy last year when Sources: CNN, New York Times accusing the automaker of concealing a testing the performance of DayZ mini defect in certain Mazda 3 vehicles that cars made by Mitsubishi for Japanese can ultimately cause the clutch system or consumers. transmission to fail and put drivers at Initially, Mitsubishi president Tetsuro Volvo Accused Of Misrepresenting Electric risk of an accident. Eight individuals, the Aikawa admitted Mitsubishi engineers Car Mileage Plaintiffs, said Mazda Motor Corp. has knowingly gave its compact cars exag- known for almost a decade that the Drivers have filed a class action lawsuit gerated fuel ratings by manipulating the clutch release assembly is defective and in Illinois federal court alleging Volvo conditions under which the vehicles prone to premature failure, but that the misled them about the range the XC90 were tested. The company disclosed that automaker has refused to disclose the T8 vehicle can drive using its electric the fraud affected about 620,000 vehicles defect to prospective customers and charge. This is believed to be a first-of- sold in Japan since 2013. The fraudulent won’t fix the defect without charge, its-kind suit challenging automakers’ rep- mileage testing data was done for Mit- even if the parts are covered by war- resentations about electric battery subishi’s eK Wagon, eK Space, Dayz and ranty. The Plaintiffs said: capacities. Xavier Laurens, the Plaintiff, Dayz Roox minicar models—which were bought his hybrid T8 believing he could The defect can manifest at highway marketed as getting up to 71 miles per use it to commute daily in Chicago speeds or in dangerous driving gallon—and was handed over to Japan’s without using any gasoline, but says that conditions, subjecting the driver regulatory body, The Ministry of Land, the vehicle only provided eight to 10 and occupants of class vehicles, Infrastructure, Transport and Tourism. miles on a full electric charge rather others on the road, and pedestri- The Dayz models have also been sold than the 25 miles that Volvo Cars of ans to an increased risk of acci- to Nissan Motors Corp. since 2013, North America LLC had promised. He dent, injury, or death. according to a Mitsubishi statement. alleges in the complaint: Accounting for all cars through March, According to the complaint, model the company said it’s sold 157,000 of the As a result of this reduced electric year 2010-2015 Mazda 3 vehicles with eK Wagon and eK Space models and sup- battery capacity, plaintiff is unable 5-speed and 6-speed manual transmis- plied 468,000 thousand of the Dayz and to complete his daily commute or sions are installed with defective clutch Dayz Roox to Nissan. everyday tasks without using the release levers, bearings and pins that can Mitsubishi is halting production and gasoline engine, which prevents cause premature wear on the vehicle’s sales of the affected cars and says that plaintiff from obtaining the cost transmission and related components. “taking into account the seriousness of saving effects of foregoing gasoline The alleged defect ultimately causes the these issues,” it intends to launch an for local trips and the environmen- clutch system or transmission to prema- investigation into products manufac- tal benefits of operating solely on turely fail and can be expensive to tured for overseas markets, including the electricity. replace. More than the cost, though, the U.S. Mitsubishi said further: Plaintiffs said the defect severely affects Volvo repeatedly promised in market- the driver’s ability to control the vehicle In order to conduct an investiga- ing materials that the T8 could achieve a and ensure no one is hurt when the tion into these issues objectively range of 25 miles using just electricity, defect manifests. The Plaintiffs said: and thoroughly, we plan to set up a according to the complaint. In April committee consisting of only exter- 2015, Volvo issued a statement saying the Plaintiffs and numerous other nal experts. vehicle provides 17 estimated miles owners and lessees of the class based on U.S. Environmental Protection vehicles have experienced clutch The hit Mitsubishi has taken in its Agency criteria, but later that month the failure during operation. Each domestic market could be a potentially automaker reverted to its original claims. time premature clutch failure devastating one for the car company, Laurens said he paid an approximately occurred, the defect placed plain- which had already become a tarnished $20,000 premium for the hybrid model tiffs and those around them at brand in Japan following previous revela- of the T8, believing it offered both a immediate risk of serious injury. tions that it hid reports of dangerously smaller environmental impact and defective vehicles for decades. gas savings. The Plaintiffs alleged that Mazda has It’s still not known how Mitsubishi’s The Plaintiff seeks to represent a known about the defect for nearly a testing methods could affect its cars sold nationwide class of anyone who bought decade and has unsuccessfully tried to for the U.S. market. The tests Mitsubishi or leased a 2016 Volvo XC90 T8. The redesign the clutch assembly, yet the used are approved in the U.S. but not in complaint seeks compensatory damages automaker still refuses to inform pro- Japan because they produce more flatter- and actual damages such as disgorge- spective customers about the defect’s ing fuel-economy results in the lab than ment of Volvo’s revenues, as well as an existence. The automaker allegedly in actual real-world conditions. order enjoining Volvo from continuing refuses to disclose the defect to drivers Mitsubishi shares tumbled in value to a its allegedly unlawful practices. when they bring their vehicles in for record low following the announcement, routine maintenance and instead claims Source: Law360.com and the company has lost half of its that the clutch failure is due to driver market value. The scandal also prompted error. It’s alleged further that Mazda has Mitsubishi to withhold its earnings fore- received numerous complaints from con- cast when it announced its quarterly per- sumers, but refuses to repair the defect formance. The results of the overseas or offer customers a suitable replace-

JereBeasleyReport.com 5 ment. The automaker also refuses to take maceutical companies Impax Laborato- of Opana ER for at least 180 days. Accord- any action to repair the defect if it mani- ries, Inc. and Watson Laboratories, Inc. ing to the FTC, Endo also allegedly fests shortly outside of the warranty for allegedly delaying generic competi- entered into a second agreement to pay period, according to the complaint. The tion for the drugs Opana ER and Lido- Impax at least $10 million, purportedly Plaintiffs said: derm. While the FTC has filed other “pay as a separate development and co-promo- Had plaintiffs and other class members for delay” suits, this case is the first time tion arrangement. Between the two known about the defect at the time of the FTC has sued a drug company over unlawful agreements, Endo has paid purchase or lease, they would not have what is referred to as a “no authorized Impax more than $112 million. bought or leased class vehicles, or would generic” deal—which is an unlawful Similarly, the FTC claimed that generic have paid substantially less for them. “reverse payment” agreement between competition for the pain relief patch Plaintiffs and many class members also the drug companies not to market an Lidoderm was delayed because of an would have avoided the significant out- authorized generic. illegal deal in 2012 involving Endo, of-pocket costs they incurred to repair An authorized generic is chemically Watson and Teikoku. Watson, which is their vehicles following manifestation of identical to its counterpart brand-name now owned by Allergan PLC, allegedly the defect. drug, but sold by the brand company as a agreed not to market its generic version The Plaintiffs allege Mazda has vio- generic product under the same regula- of Lidoderm until September 2013. In lated several state consumer fraud stat- tory approval as the brand-name drug. A return, Endo agreed not to introduce an utes and the Magnusson-Moss Warranty “no authorized generic” deal means that authorized generic within a certain time- Act, as well as breached its express and the brand drug company agrees that it frame. For this particular “no authorized implied warranties. The Plaintiffs ask will not launch its own authorized- generic” deal, Watson received $96 that the court award them all actual, stat- generic when the first generic company million worth of free Lidoderm from utory, punitive and consequential begins to compete. When a brand Endo and Teikoku. It’s alleged in the damages they’re entitled to as well as company agrees to this, it significantly FTC’s Complaint: require Mazda to recall and repair their increases the first generic company’s rev- vehicles. enues, while at the same time causing Endo knew that generic competi- tion would decimate its sales of the Source: Law360.com consumers to pay substantially higher prices for the drug. FTC Chairwoman corresponding branded product Edith Ramirez said in a statement: and that any delay in generic com- petition would be highly profitable III. Settlements between drug firms for Endo, but very costly for that include ‘no-AG commitments’ consumers. DRUG harm consumers twice—first by delaying the entry of generic drugs These “pay-for-delay” agreements have MANUFACTURERS and then by preventing additional raised antitrust concerns for years now. FRAUD LITIGATION generic competition in the market The FTC has estimated that these deals following generic entry. This cost Americans $3.5 billion annually in lawsuit reflects the FTC’s commit- higher health care costs. Challenging drug makers over these anticompetitive The FTC Sues Endo Over Unlawful “Pay- ment to stopping pay-for-delay agreements that inflate the prices “reverse payment” agreements is just For-Delay” Agreement of prescription drugs and harm another way Plaintiffs can positively affect the price of prescription drugs in In the past decade, the Federal Trade competition, regardless of the form they take. this country. If you would like to know Commission (FTC) has been challenging more about this Pay-for-Delay litigation, a costly legal tactic that more and more The FTC filed its case in the Eastern contact Ali Hawthorne, a lawyer in our brand drug companies have been using District of Pennsylvania alleging that the firm’s Consumer Fraud and Commercial to stifle competition from lower-cost drug companies delayed the entry of Litigation Section, at 800-898-2034 or by generic medicines. This area of litigation, generic drugs for Opana ER and Lido- email at Alison.Hawthorne@beasley- often referred to as Pay-for-Delay litiga- derm. The FTC said that in 2010, Endo allen.com. tion, has not only been a hot topic with and Impax reached an anti-competitive Source: Law360.com the FTC, but it has been an emerging liti- “reverse payment” agreement concern- gation across the country. ing Opana ER. According to the FTC, In these “pay-for-delay” agreements, or Impax, which was the first company to “reverse payment” agreements, a brand- file for FDA approval to market a generic IV. name drug company and a generic rival version of Opana ER, agreed to delay locked in patent litigation reach a settle- entering the market with its cheaper PURELY POLITICAL ment. Historically, the brand-name drug generic until January 2013 in exchange NEWS & VIEWS company may offer cash or something for Endo’s agreement not to market an else of value to the generic drug authorized generic of the drug. Without company and, in return, gains more time the large payment, Impax would have The General Election Is Shaping Up to sell its brand drug without encounter- launched its generic version of Opana ER ing lower-cost generic competition. The prior to January 2013. This unlawful and The New York primary votes have vir- generic drug maker, meanwhile, also anticompetitive deal guaranteed that comes away with a large payment and an tually assured that Donald Trump and until January of 2013 Endo would have Hillary Clinton will face off in the agreement to sell its generic equivalent no competition and, in exchange, by at a specified future date. General Election. Short of a miracle January 2013 Impax would be the only these two will get the nominations of Most recently, the FTC sued Endo drug company selling a generic version Pharmaceuticals, Inc. and generic phar- their party. This should be a most inter-

6 BeasleyAllen.com esting contest. I don’t believe that the with felonies ranging from misconduct civil liability, the Justice “Stop Donald Trump” movement, which in office to tampering with evidence in Department said. has been carried out in a most inept relation to their roles in the city’s lead- In addition, Goldman will pay $875 manner, will be a factor at the GOP con- tainted drinking water crisis. The crimi- million to resolve claims by the New vention in Cleveland. In fact, the manner nal charges were the first filed since York and Illinois attorneys general, the in which this movement was carried out Michigan Attorney General Bill Schuette National Credit Union Administration actually made Trump stronger because it started an investigation in January. Few and the Federal Home Loan Banks of angered and energized his base. The pro- observers believed the Republican Attor- Chicago and Seattle. A state and federal tests at his rallies were definitely a plus ney General would aggressively pursue working group formed to investigate for Trump. any wrongdoers criminally. They were wrongdoing in the pre-financial crisis Hillary has stayed the course and run a wrong, and based on media reports the mortgage-backed securities market nego- very good campaign so far. Even though Republican Attorney General will have tiated the settlement, said New York the early polls show her beating Trump more persons charged criminally. Attorney General Eric Schneiderman. handily, I believe that race will be very As has been widely reported, Flint resi- The group has reached settlements with close. Trump is smart enough to bring in dents have had to contend with a con- five other major financial institutions some experienced individuals who have taminated water supply since April 2014, since 2012: J.P. Morgan Chase ($13 been involved in successful campaigns. when their drinking water source was billion), Bank of America ($16.6 billion), His combative style and the anti-estab- switched from Lake Huron to the Flint Citibank ($7 billion) and Morgan Stanley lishment feelings that prevail around the River without proper purity controls. At ($3.2 billion). country have gotten Trump this far and it press time the investigative team had not Source: Reuters may be a mistake to change things. interviewed—or even investigated—the It will be very important for Hillary to involvement of Michigan Gov. Rick bring the Sanders vote into her camp Snyder. The U.S. Department of Justice, once the nomination is in the bag. In my Federal Bureau of Investigation and the Occam Networks And Wilson Sonsini Settle opinion, she will be able to do that. U.S. Environmental Protection Agency Calix Merger Class Litigation There is little chance that Sanders’ voters (EPA) are also investigating possible Occam Networks Inc. and Wilson could vote for a Republican. The diffi- criminal and civil violations related to Sonsini Goodrich & Rosati PC have culty for the Clinton campaign will be to the Flint crisis. I would have to believe settled a shareholder suit accusing the keep the huge number of new voters the Governor is watching the investiga- company’s leadership of selling Occam energized. I believe that will be a help to tion with more than just casual interest. too cheaply in a roughly $200 million the outcome of the election and will Source: Law360.com merger in 2010 with Calix Inc. The set- likely determine who the next tlement came midway through a sched- president is. uled 10-day trial in Delaware’s Chancery Perhaps the most interesting develop- Court. Occam Networks had filed a ment thus far in the primary battles VI. cross-claim against Wilson Sonsini, alleg- involves the new Trump Campaign team. ing that they aided and abetted in fidu- The new bosses told the National Repub- THE CORPORATE ciary breach liability. Occam Networks lican Committee at a meeting in Florida WORLD had previously settled with the last month that Trump has been playing shareholders. to the crowds and will change once he The parties went to mediation during gets the nomination. While this normally Goldman Sachs To Pay $5 Billion To Settle the trial and it resulted in the settlement. wouldn’t be newsworthy in politics, Mortgage Bond Fraud Vice Chancellor J. Travis Laster approved when Trump is the subject—it’s news. a severance and stay of shareholder That’s because Trump has run as an out- Goldman Sachs Group Inc. has agreed claims against Wilson Sonsini on April 6, sider against the establishment and now to pay $5.06 billion to settle claims that it and said terms would be presented to the it appears it has been a charade. It will misled mortgage bond investors during court and to the class in a notice. be interesting to see how this new look the financial crisis. The settlement, dis- Source: Law360.com works for Trump. Stay tuned! closed by Goldman in January, arises from the company’s conduct in packag- ing, securitization, marketing and sale of residential mortgage-backed securities SEC Accuses Ski Resort Owner And CEO V. between 2005 and 2007. Investors suf- Of $350 Million EB-5 Fraud THE NATIONAL fered billions of dollars in losses from the securities bought during the period, The U.S. Securities and Exchange Com- SCENE according to the Justice Department. mission (SEC) has filed a fraud lawsuit The settlement comprises a $2.385 against the owner and CEO of a Vermont billion civil penalty and $1.8 billion in ski resort, accusing them of misappropri- ating the bulk of $350 million in invest- Individuals Charged Criminally In Flint other relief, including funds for home- ments obtained under the EB-5 Crisis owners whose mortgages exceed the value of their property, as well as dis- immigrant investor program. The suit There have been some criminal tressed borrowers. The government’s had been filed in Florida federal court charges in the Flint water crisis. Two ability to bring criminal charges against and unsealed on April 10. Federal securi- Michigan Department of Environmental Goldman is also preserved. The settle- ties regulators say Ariel Quiros, a Florida Quality water officials and one from the ment agreement does not release any entrepreneur and owner of the Jay Peak City of Flint were charged last month individuals from potential criminal or Inc. ski resort, and Jay Peak CEO William Stenger engaged in an eight-year fraudu-

JereBeasleyReport.com 7 lent scheme that raised $350 million as well as the investors. Gov. Shumlin firing, which he testified was done via from investors hoping to obtain visas had this to say: FedEx, cost him $9.6 million in eco- through the EB-5 program. This is a nomic losses. Ethicon contended that program designed to reward job-creating This is obviously a difficult day for Lippman put the company at legal risk by investments in the U.S. The Defendants Vermont and for the many people, romantically pursuing a woman who allegedly were to have used the funds to myself included, who are so worked in his department. Both parties build and develop the resort as well as a invested in growing jobs and eco- testified that their courtship was consen- biomedical research facility in Vermont. nomic opportunity. Most of all, this sual and consisted of emails, cards, The SEC said the two men, through is a difficult day for the hundreds flowers, music CDs and two overnight various companies including Jay Peak of employees in the Northeast trips, but was never consummated. The and Q Resorts Inc., used $200 million of Kingdom who rely on Jay Peak, Q Defense had portrayed the dynamic as the money in “Ponzi-like fashion” to Burke, and the related projects that one in which Lippman used his powerful cover losses in unrelated projects as well appeared to hold so much promise. position to take advantage of a young, as $50 million on Quiros’ personal The SEC is represented by Christopher career-minded woman. expenses. Andrew Ceresney, director of E. Martin and Robert K. Levenson. The Ethicon and J&J had won summary dis- the SEC’s Division of Enforcement, said case is in the U.S. District Court for the missal of Lippman’s lawsuit at the trial- in a statement: Southern District of Florida. court level, but that decision was overturned by the state’s Appellate Divi- The alleged fraud ran the gamut Source: Law360.com sion in September 2013. The New Jersey from false statements to deceptive Supreme Court agreed to take up the financial transactions to outright case in March 2014. Lippman is repre- theft. The defendants diverted mil- sented by Bruce P. McMoran, Michael lions of EB-5 investor dollars to VII. O’Connor and Justin D. Burns of their own pockets, leaving little WHISTLEBLOWER McMoran O’Connor & Bramley PC. They money for construction of the did a very good job for their client. research facility investors were told LITIGATION would be built and thereby putting Source: Law360.com the investors’ funds and their immigration petitions in jeopardy. J&J Unit Settles Whistleblower Claims Government Contractor Pays $5 Million To U.S. District Judge Darrin P. Gayles Johnson & Johnson medical device Settle False Claims Act Allegations granted the SEC’s motion for a freeze of maker Ethicon Inc. has settled a whistle- assets of Quiros, Jay Peak and various blower claim that it fired an executive, The U.S. Department of Justice (DOJ) related companies. The SEC alleges that not over his relationship with a younger, announced recently that Hayner Hoyt Quiros diverted the investor funds in female employee, as the company had Corporation has agreed to pay $5 million order to buy a $2.2 million luxury condo claimed, but in retaliation after he law- to resolve False Claims Act (FCA) allega- at Trump Place in New York, pay off his fully raised product safety concerns that tions. The government’s complaint income taxes and acquire an unrelated cost the company millions of dollars. The alleged that Hayner Hoyt was exploiting ski resort called Q Burke. The com- settlement came after almost five weeks contracting opportunities through a pro- plaint alleges: of trial and during jury deliberations in curement program with the Department of Veterans Affairs (VA). This program Quiros orchestrated and Stenger Middlesex County Superior Court. The settlement was in litigation that had been was designed to aid service-disabled vet- facilitated an intricate web of eran-owned small businesses. In order transfers between the various going on for a decade and had proceeded to trial after the New Jersey Supreme for a company to qualify for one of these defendants and relief defendants to contracts, the company has to be owned disguise the fact that the majority Court ruled in July that “watchdog employees” are covered under the state’s by a service-disabled veteran, who also of the seven projects were either controls the business, including handling over budget or experiencing short- whistleblower law. Plaintiff Joel S. Lippman, 61, had joined its strategic decisions and management. falls. These shortfalls were due in The Government contended that large part to Quiros pilfering tens Ethicon in 2000, after a decade as an executive at J&J subsidiary Ortho-McNeil Hayner Hoyt caused false claims to be of millions of dollars of investor made when it asserted to the Govern- money for his own use. Pharmaceutical LLC. During his time at Ethicon, his safety concerns derailed ment that 229 Constructors LLC met all The SEC alleges violations of the anti- profits for a coronary artery bypass graft the requirements to be a service-disabled fraud provisions of the Securities Act of surgery device, a gel used to prevent veteran-owned small business. However, 1933 and the Securities Exchange Act of post-surgery abdominal adhesions, surgi- investigations revealed that Bennett − a 1934 and seeks preliminary and perma- cal mesh and other products. After refus- service-disabled veteran who Hayner nent injunctions, financial penalties and ing an offer to resign, Lippman was fired Hoyt claimed served as president and in disgorgement of ill-gotten gains, as well in May 2006, five months after a recall charge of a $14.4 million government- as injunctive relief against Quiros and that cost the company $40 million. contracts portfolio − was actually not Stenger. Vermont state officials have filed During the trial, Lippman’s lawyers involved in making any important busi- their own civil suit against Quiros and argued that his concerns had pitted him ness decisions for the company. In fact, others that mirrors many of the SEC’s against executives who were under tre- Bennett was responsible for the tool claims. Vermont Gov. Peter Shumlin said mendous pressure to put new products inventory and plowing the snow from in a statement they were committed to on the market and revealed a “wide- Hayner Hoyt’s property. protecting the jobs of Vermont residents spread” corporate culture that put profits By making these assertions and con- before safety. Lippman claimed the tinuing the scheme, Hayner Hoyt was

8 BeasleyAllen.com denying legitimate service-disabled vet- aircraft. Ultra-fine magnesium powder is holding or importation of food when eran-owned small businesses the oppor- used in the flares for high-temperature they raise food safety issues to their tunity to acquire VA contracts. Richard S. burning that mimics the heat of an air- employer or the government. Hartunian, U.S. Attorney for the North- craft’s engine. Kilgore’s contracts with The U.S. Food and Drug Administra- ern District of New York, stated: the U.S. Army prohibited the use of mag- tion (FDA) is responsible for most of the nesium powder from foreign countries, regulations stemming from the sweeping As today’s settlement demonstrates, with the exception of Canada. food safety act that became law in this office will vigorously pursue The government alleged that ESM January 2011. However, the Secretary of those individuals and entities who knowingly misrepresented the content Labor is responsible for enforcing the game programs designed to help of magnesium powder imported from whistleblower provision of the Act. our nation’s veterans succeed in China to avoid paying anti-dumping Therefore, this portion of the law is starting small businesses. customs duties. Antidumping duties under OSHA’s domain. According to the I will once again briefly describe the protect against foreign companies final rule, OSHA crafted the regulatory role of a whistleblower. As we have pre- dumping products on the U.S. market at provisions governing complaints under viously mentioned, the FCA allows prices below cost. The government also the law to be consistent with other whis- private individuals to file lawsuits on alleged Kilgore used the illegally tleblower regulations issued by the behalf of the government when those imported Chinese magnesium powder it agency to the extent possible within the individuals have knowledge of a person bought from ESM in the counter-measure bounds of the statutory language of or company defrauding the government. flares it sold to the U.S. Army. Principal the FSMA. These lawsuits are filed under the qui Deputy Assistant Attorney General Benja- The rule establishes procedures and tam provision of the FCA. Ordinary citi- min C. Mizer, head of the Justice Depart- time frames for the handling of retalia- zens become whistleblowers by report- ment’s Civil Division, stated: tion complaints under the FSMA. The ing the fraud. The FCA provides rule provides that complaining employ- The Department of Justice is com- ees are protected under the FSMA as long monetary incentives and protection for mitted to ensuring that contractors these whistleblowers, which include 15 as they have a reasonable belief—defined do not cut corners in manufactur- in the regulation as a subjective, good- to 30 percent of the damages recovered. ing critical items sold to the U.S. The whistleblower in this case will faith belief and an objectively reasonable military. These settlements also belief—that the complained-of conduct receive $875,000 for his part in the case. show that the department will Are you aware of fraud being commit- violated the Federal Food, Drug and Cos- aggressively pursue those who metic Act. However, the complainant ted against the federal government or a avoid paying duties to gain an state government? If so, the False Claims need not show that the conduct com- unfair business advantage over plained of constituted an actual viola- Act can protect and reward you for doing competitors who abide by the rules. the right thing by reporting the fraud. If tion of law. you have any questions about whether The settlement with ESM resolved a If you need more information relating you qualify as a whistleblower, contact a lawsuit filed under the whistleblower to specifics under the new rule, contact lawyer at Beasley Allen for a free and provision of the False Claims Act, which Michelle Fulmer, the Section Head confidential evaluation of your claim. allows private parties to sue on behalf of Administrator of our firm’s Consumer There is a contact form on the firm’s the United States those who falsely Fraud and Commercial Litigation Section, website, or you can contact Archie obtain federal funds. The whistleblower, at 800-898-2034 and she will put you in Grubb, Larry Golston, Lance Gould or Reade Manufacturing Company, received touch with one of the lawyers on the Andrew Brashier, one of the lawyers on $400,000 as part of the settlement Beasley Allen Whistleblower Liti- our Whistleblower Litigation Team, at with ESM. gation Team. Source: Law360.com 800-898-2034 or by email at Archie. Source: Department of Justice [email protected], Larry. [email protected], Lance. [email protected] or Andrew- [email protected]. They will be OSHA Issues Final Food Safety VIII. glad to help you. Whistleblower Rule PRODUCT Source: U.S. Department of Justice The U.S. Occupational Safety and LIABILITY UPDATE Health Administration (OSHA) has issued a final rule governing its procedures for Defense Contractors Agree To Pay $8 retaliation complaints under the whistle- Supreme Court Upholds Jury Verdict Million To Settle False Claims Act blower provision of the FDA Food Safety Against Key Safety Systems Allegations Modernization Act (FSMA). Workers who disclose food safety concerns in various The Georgia Supreme Court last Two U.S. Defense contractors, Kilgore industries, including transportation, are month unanimously denied seatbelt man- Flares Company and the ESM Group, protected under the Act. The final rule, ufacturer Key Safety Systems’ appeal of Inc., have agreed to pay a total of $8 published in the Federal Register on the jury verdict that found the company million to settle allegations of selling April 21, outlines how the agency will liable for a defective seatbelt involved in defective counter-measure flares to the handle complaints under Section 402 of the death of Mrs. Penny Bruner. On Nov. U.S. Army in violation of the False Claims the FSMA. Employees are protected 26, 2013, a jury in Gwinnett County, Ga., Act (FCA). Infrared counter-measure against reprisals by entities engaged in found the seatbelt manufactured by Key flares are used by the military to divert the manufacture, processing, packing, Safety Systems, Inc., to be defective, enemy heat-seeking missiles away from transporting, distribution, reception, leading to the death of Mrs. Bruner. The

JereBeasleyReport.com 9 vehicle in which Mrs. Bruner was a Allen lawyers Chris Glover and Kendall a variety cases involving crashworthi- passenger was involved in a rollover Dunson, along with Anthony Powell and ness defects over the years, including: accident. Melody Glouton, both lawyers from Law- The jury awarded Mrs. Bruner’s family renceville, Ga., represented the Bruner • fuel fed fire cases where the fuel tank $4.639 million and assessed 80 percent family in this case. Also, Robin Frazer is located in a place on the car that fault to Key Safety Systems, making the Clark, a very good lawyer from from allows it to easily be penetrated company liable for $3,711,532.80 of the Atlanta, Ga., assisted with the appeal and upon impact; total verdict. The trial judge denied the she did an outstanding job. • seat back collapse cases where the pas- Defendant’s post-trial motions and the senger seat back falls backward upon seatbelt manufacturer appealed to the impact, which causes the passenger to Georgia Court of Appeals. On Nov. 19, Pursuing A Crashworthiness Claim In come out of the seat or allows the seat 2015, a three-judge panel of the Court of Alabama to fall backwards onto someone else in Appeals unanimously ruled in the Bruner the back seat; family’s favor, refusing to disrupt the I have found that many lawyers—even trial court result. some who regularly handle litigation— • seatbelt failures that do not properly The seatbelt manufacturer then know very little about product liability restrain the occupant or further injure appealed to the Georgia Supreme Court, litigation. That is understandable the occupant; which unanimously denied the compa- because it is a totally different animal. I • inadvertent airbag deployments that ny’s petition. To date, 12 jurors, one trial will discuss one area that is especially go off when they are not supposed to, judge and 12 appellate judges have found difficult for lawyers to understand unless which usually causes facial, spinal, and in favor of the Bruner family. The inter- they have handled such cases. That brain injuries; est accrued on the verdict was more than involves the doctrine of “crashworthi- $575,000 at press time. The Supreme ness,” and is still evolving. This very • roof crush cases where the structure Court has ordered that the verdict plus interesting area of the law has been of the roof does not hold up in a roll- interest and costs be paid, which is very developing over the last 30 years. over and intrudes into the passenger good news for our clients. The “crashworthiness doctrine” is space, which usually causes spinal and Mrs. Bruner was an occupant in a 2003 commonly referred to as the “second col- brain injuries or death; Jeep Wrangler with seatbelts designed lision doctrine” or the “enhanced injury and manufactured by Key Safety doctrine.” The doctrine developed out of • door latch failures, which allow doors Systems. She was ejected from the front cases where the defect in the product to fly open during a crash, ejecting passenger seat during a rollover crash on was not the cause of the accident, but parts or all of the occupant. Sept. 23, 2007, even though she correctly was only the cause of the injuries suf- wore her seatbelt. Mrs. Bruner’s ejection fered. The Alabama Supreme Court first Many crashworthiness cases go unin- from the Jeep Wrangler occurred recognized a cause of action for “crash- vestigated because lots of lawyers simply because the seatbelt failed and came worthiness” in General Motors Corp. v. do not understand to look for a defect unlocked during the rollover. Our lawyer Edwards, 482 So.2d 1176 (Ala. 1985). even if the accident was caused by the proved at trial that the seatbelt system In the Edwards case, a Chevrolet Che- driver. For example, in a typical single was defective and extremely dangerous. vette burst into flames after being struck vehicle crash where the driver admits to The seat belt tends to unlock during roll- from the rear by another automobile. speeding or becoming distracted and over crashes. This safety defect put the The driver and her husband were running off the road, a lawyer might not public at risk and would have been pre- severely burned and both of their chil- know to look for seatbelt, airbag, or vented if Key Safety Systems had dren died in the fire. The Court in other structural defects because they installed a web sensor on the seatbelt Edwards was persuaded by cases holding assume driver error was the cause. But in retractor. that “while a manufacturer is under no a crashworthiness case, it does not A web sensor is a redundant safety duty to design an accident-proof vehicle, matter that the driver caused the acci- feature that assures the belt stays locked. the vehicle manufacturer does have a dent as long as the driver did not misuse Virtually every vehicle in the 2003 model duty to design its product so as to avoid the defective component that caused his year used a web sensor seatbelt. The jury subjecting its user to an unreasonable injury. The Alabama Supreme Court has was shocked to discover that even the risk of injury in the event of a collision.” consistently held that: 2003 Jeep Wrangler had a web sensor Edwards at 1181. A plaintiff’s mere inadvertence or four feet away from Mrs. Bruner on Simply stated, a car should be crash- carelessness in causing an accident the driver’s seatbelt. Because of the web worthy. The Court’s reasoning in should not be available as an affir- sensor, the driver of the Bruner vehicle Edwards seemed to be that collisions mative defense to an AEMLD survived this rollover with only “are a statistically foreseeable and inevi- [Alabama Extended Manufacturer minor injuries. table risk within the intended use of an Liability Doctrine] action. To allow This was an extremely important automobile” and that “while the user a plaintiff’s negligence relating to verdict in the automotive industry must accept the normal risk of driving, accident causation to bar recovery because the verdict rendered was against he should not be subjected to an unrea- will go against the purpose of the a component level manufacturer (Key sonable risk of injury due to a defective AEMLD, which is to protect con- Safety Systems) rather than the automo- design.” Id. sumers from defective products. bile manufacturer. The jury’s verdict The crashworthiness theory dictates The defense of contributory negli- sends a message to component manufac- that an occupant should be protected gence in an AEMLD action should turers that they cannot hide behind the from consequences of foreseeable colli- be limited to assumption of the risk car companies and avoid their own sions. Lawyers in our firm have handled and misuse of the product. The responsibility for the defective products plaintiff’s negligence relating to they design and manufacture. Beasley

10 BeasleyAllen.com accident causation should not bar have prevented the cart from spontane- Mickalis Pawn Shop, Judge Bellis said, recovery. Dennis v. American ously accelerating when there is no where the court focused on the PLCAA’s Honda Motor Co., 585 So. 2d 1336, driver in the vehicle. A safer alternative language, specifically the phrase order- 1339 (Ala. 1991). design existed at the time the cart was ing a suit “may not be brought” against made. It was proved at trial that the cart gun makers. The Second Circuit: The important thing to remember is wasn’t fit for its intended purpose. that crashworthiness cases can be easily The trial judge allowed a “day in the Although the phrase ‘may not be overlooked. Lawyers in our firm have life” video showing how difficult daily brought’ suggests absence of juris- successfully handled many crashworthi- tasks are now for Mrs. Nester. The jurors diction, the phrase is not equiva- ness cases and will look at any single were also allowed to go outside the lent to a clear statement of vehicle accident involving catastrophic courtroom to see a live demonstration of Congress’s intent to limit the power injuries. For more information, contact the “kick-off” mechanism. The Nesters of the courts rather than the rights Cole Portis, who heads up the firm’s Per- were represented by Sean Breen of of litigants. ... In the absence of sonal Injury/Product Liability Section, or Howry Breen & Herman LLP and by such a clear statement, we must Greg Allen, our firm’s most experienced Craig Nevelow of Wright & Greenhill PC. treat the PLCAA as speaking only product liability lawyer, at 800-898-2034 These lawyers did an excellent job in to the rights and obligations of the or by email at Cole.Portis@beasleyallen. this case, which was tried in the U.S. Dis- litigants, not to the power of com or [email protected] trict Court for the Western District of the court. Texas. They got a good result for Therefore, Judge Bellis found that the their client. court has jurisdiction. The question of Textron Faces $16 Million Verdict After Source: Law360.com the Plaintiffs’ success in bringing the Acceleration Accident claims utilizing those exceptions “will wait for another day.” The families filed A Texas jury awarded $15.8 million last their suit for wrongful death and loss of month to a rancher whose Textron utility Remington Loses A Round In The Sandy Hook Shooting Litigation consortium in Bridgeport Superior Court cart suddenly accelerated and ran over over the Bushmaster AR-15 XM15-E2S her as she was opening a livestock gate. A Connecticut judge ruled on April 14 rifle Adam Lanza used to kill 26 innocent Plaintiffs Gini and Scott Nester and their that victims of the Sandy Hook mass people. An amended complaint was filed two children run a ranch in Buda, Texas, shooting have valid grounds to sue gun on Oct. 29 by the Plaintiffs. Motions to which is located south of Austin. On a maker Remington. This ruling came dismiss were filed by the Remington December day in 2011, Mrs. Nester was about in spite of a statute that shields Defendants, Camfour Defendants, and using the utility cart— part of Textron’s gun makers from liability in such cases. Riverview Defendants in December. line of golf carts—to transport feed for The ruling was in Connecticut Superior The families contend that “a mass their livestock. She got out of the cart Court, where the suit— by families of casualty event was within the scope of and opened a gate. At that time, a bag of nine of the 26 people killed in the the risk created both by the Remington feed that was left on the passenger floor- December 2012 shooting at a Newtown Defendants’ marketing and by the Defen- board fell onto the accelerator. Due to elementary school— is pending. The suit dants’ sale of the XM15-E2S to the civil- the faulty design of the cart, the bag had been remanded from federal court. ian market,” Judge Bellis pointed out. “kicked off” the parking brake. As the The suit is against manufacturer Reming- The families claim that rifle, which costs woman turned back around from ton Arms Co. LLC, distributor Camfour about $1,100 new, is designed for mass opening the gate, the cart ran over her, Inc. and retailer Riverview Sales Inc. and casualty assaults, with little civilian use pinning her underneath the cart. Mrs. involves the gunman’s use of a Bushmas- for self-defense or hunting, and that the Nester became a quadriplegic as a result ter rifle in the killing of 20 schoolchil- Defendants sold the rifle to the civilian of her injuries. dren and six adults. market in a way that foreseeably leads to The jury found that Mrs. Nester was 50 The Protection of Lawful Commerce its use in mass shootings. percent at fault for the accident. As a in Arms Act, (PLCAA), prohibits lawsuits An AR-15 is known as an M16 in the result, the verdict will be reduced by against gun makers with only limited military, and the XM15 variety is an M4. that percentage. The jury awarded exceptions. Superior Court Judge It makes a bullet travel at three times the damages to Mrs. Nester for past and Barbara Bellis noted the exceptions that speed of sound, according to gun histo- future physical pain and mental anguish, include against a seller for negligence rian C.J. Chivers, and weighs less than medical expenses, and earning capacity, and against a manufacturer or seller for six and a half pounds without bullets. among other things. The jury also violations of sale or marketing law that These weapons have no place in civil- awarded damages to her children and helped cause a harm. The families have ian hands. husband. Mrs. Nester was awarded $10.4 adopted the first exception for their neg- The Plaintiffs include the families of million and her family members a total of ligent-entrustment claim and the second nine innocent victims who were killed $5.4 million. In response to the verdict- for their Connecticut trade prac- and one injured teacher who survived. form question “Was there a design defect tices claim. The Plaintiffs are represented by Josh in the utility vehicle at the time it left the Under Connecticut practice, a motion Koskoff and Alinor Sterling of Koskoff possession of Textron that was a produc- to dismiss is confined to a discussion of Koskoff & Bieder PC. I wish them well in ing cause of the injury in question,” the whether a court has jurisdiction. Judge their pursuit of justice. The case is in the jury answered, “Yes.” However, the jury Bellis decided that the court did have Superior Court of Connecticut, Fairfield declined to award punitive damages. jurisdiction under the PLCAA and denied Judicial District. A trial date has been set Textron’s design was unacceptable and the Defendants’ motion. The Second by the trial judge. should not have included the ability to so Circuit had ruled “squarely” on this juris- easily disable what was supposed to be a Source: Law360.com diction question in a 2011 suit called failsafe. A functioning failsafe would

JereBeasleyReport.com 11 Intuitive Surgical Settles Case Before Jury Flavoring Additives Cause Devastating the containers or remaining in their pres- Can Return A Verdict Bronchiolitis Obliterans ence for long periods of time. Last year, five coffee roasters—from Intuitive Surgical Inc., a medical robot- Bronchiolitis obliterans is back in the cafes to midsize facilities—agreed to ics company, reached a last-minute settle- news again, and this time the devastating share their medical tests with the ment last month in the trial over a lung condition is tied to the coffee indus- Journal Sentinel and have the results woman’s serious internal injuries arising try. Our readers may recall the disease by reviewed by three doctors with experi- from a robot-assisted hysterectomy. its nickname, “popcorn lung,” due to its ence in diacetyl-related illnesses. Of the Jurors were in their third day of delibera- association with numerous microwave five workers, four had lung tests or symp- tions when the case was settled. The popcorn plant workers who developed toms consistent with hazardous value and terms of the settlement are the devastating disease in the early exposure. confidential. “In this case, I think a very 2000s. Consumers also developed the Diacetyl and 2,3 pentanedione are good thing has happened: The parties rare condition after frequently eating used in a number of applications, and have reached an out-of-court settlement,” microwavable popcorn and coming in could be a major hazard in the manufac- Santa Clara Superior Court Judge Mark contact with flavoring additive fumes. turing or cooking of the following: mar- Pierce told jurors before dis- Bronchiolitis obliterans is known to be garine, shortening, oil sprays, artificial missing them. caused by two toxic flavoring additives butter substitutes, microwave popcorn, Jurors, who had been deliberating in called diacetyl and 2,3 pentanedione. potato chips, corn chips, crackers, the case for two days, heard some dis- These chemicals are naturally occurring cookies, chocolate, cocoa-flavored prod- turbing facts about what happened to volatile organic compounds but are also ucts, candy, gelatin deserts, flour mixes, the Plaintiff, Michelle Zarick. She had synthetically made as food additives to flavored syrups, prepackaged frosting, undergone the surgery and her injuries mimic the taste of butter. As a result, sauces, soft drinks, chewing gum, ice became apparent about five weeks after they are incorporated in foods we cream, starter cultures used to make the surgery. The “da Vinci” robot was consume every day. Unfortunately, inha- butter, beer, wine, and now—in coffee. used in the surgery. lation of these chemicals at high concen- Lawyers in our firm are actively inves- After Mrs. Zarick had engaged in trations can cause quick, irreversible tigating cases where a diagnosis of bron- sexual intercourse with her husband, she lung damage, although symptoms typi- chiolitis obliterans has occurred. sat on the toilet and her bowels literally cally appear later. Bronchiolitis obliter- Oftentimes, the disease is misdiagnosed fell out of her body through a tear in the ans clogs small air pathways in the lungs as asthma, chronic bronchitis, emphy- wall of her vagina. The damages sought and forms scar tissue that severely sema or pneumonia. If you have any included more than $43,000 in medical restricts breathing. The disease is incur- questions about these cases, contact expenses, $5 million to $10 million in able, and without a lung transplant, is Parker Miller at 800-898-2034 or Parker. past pain and suffering, and $10 million oftentimes fatal. [email protected]. to $20 million for future pain and suffer- Prompted by an investigative report by ing. The Plaintiff’s lawyer had asked for the Milwaukee Journal Sentinel detail- $30 million in closing argument. ing how coffee industry workers could Mrs. Zarick underwent her surgery in be in danger of developing potentially IX. February 2009. She alleged that the gyne- deadly lung disorders, the U.S. Centers cologist who performed her surgery did for Disease Control and Prevention MASS TORTS not receive “adequate training” in using (CDC) started testing the air inside a UPDATE the da Vinci system. Mrs. Zarick began dozen coffee roasting facilities across the feeling sick five weeks after the surgery. country. The results showed very high Before her husband, a member of the concentrations of the two flavoring addi- New Jersey Appeals Panel Affirms $11 military, was to ship off for combat train- tives in the facilities. The National Insti- Million J&J Pelvic Mesh Judgment ing at the time, the couple engaged in tute for Occupational Safety and Health intercourse. Afterward, Mrs. Zarick bled (NIOSH) conducted its first study at A state appeals court in New Jersey and she called her doctor who assured Madison, Wisconsin-based Just Coffee has upheld an $11.1 million jury award to her it was fine, but said to go to the hos- last July, and found extremely high levels a woman who claims a Johnson & pital if the situation got worse. When of diacetyl and 2,3 pentanedione Johnson unit’s vaginal mesh product Mrs. Zarick used the restroom, the evis- throughout the facility. Interestingly, the caused debilitating nerve pain, saying ceration occurred, and she was rushed to facility did not use the artificial flavoring ample evidence presented at trial the hospital where she had to undergo a in its coffee. showed that better warnings of the prod- painful, invasive surgery. Mrs. Zarick Tests conducted by an industrial uct’s risks might have prevented her inju- was found to have suffered internal burn hygienist hired by the Journal Sentinel ries. The jury heard sufficient evidence injuries from the device. She and her in Just Coffee and another Wisconsin showing Linda Gross’ doctor might have husband filed suit in December 2012. coffee roaster found that diacetyl levels offered different guidance if he would The Plaintiffs in this case are repre- exceeded the government’s maximum have had more information about the sented by Francois Blaudeau of Southern safety level by four times. Workers at Just product’s risks. This might have led the Med Law, who did a very good job for Coffee were typically exposed to 7 parts woman to pursue a different course of them. The case was in the Superior of diacetyl per billion—surpassing the treatment and avoided her injuries. Court of the State of California, County CDC’s limit of 5 parts per billion. Diace- Johnson and Johnson and its subsidiary of Santa Clara. tyl concentrations inside storage bins Ethicon Inc., were Defendants in the Source: Law360.com containing roasted beans contained case. A three-judge panel ruled in the 7,000 parts per billion, prompting the bellwether case to this effect, saying in CDC to explicitly warn workers to the opinion: “The evidence was suffi- refrain from sticking their heads inside

12 BeasleyAllen.com cient to allow the jury to find an ade- trials, because the decision gives • Nesina, Kazano, and Oseni, all manu- quate warning would have prevented tremendous guidance to the courts factured and sold by Takeda Phar- plaintiff’s injuries.” that are going to hear these cases maceuticals. Linda Gross and her husband filed suit going forward. in 2008, alleging that Ethicon had failed Each of the drugs are relatively new to to fully disclose risks associated with its Mrs. Gross is represented by Adam M. the market and are intended to lower the Gynecare Prolift mesh product, which Slater and David A. Mazie of Mazie Slater blood sugar and HbA1c levels by trigger- Mrs. Gross used to repair a pelvic floor Katz & Freeman LLC. They have done a ing the pancreas to release more insulin collapse. The Gross case was the bell- very good job in this case, which is in after Type-2 diabetics eat their meals. wether in New Jersey’s multidistrict liti- the Superior Court of the State of New Takeda—no stranger to litigation as a gation (MDL) over Ethicon’s vaginal Jersey, County of Atlantic. result of bladder cancer being caused by mesh products, which it agreed to stop Source: Law360.com their diabetes drug Actos—intended selling in June 2012, even though it Nesina to be the first DPP-4 drug to be claimed the products were not harmful. released in the U.S. However, because The appeals panel agreed with the trial the FDA issued stricter cardiovascular Boston Scientific Testing Surgical Mesh safety requirements, Takeda was forced judge on all issues, noting the doctor’s For Fake Parts testimony that he would have counseled to conduct new safety trials before the drug was approved in 2013. against the procedure or spent at least 45 The U.S. Food and Drug Administra- Type-2 diabetes can be a deadly minutes discussing its drawbacks if he tion (FDA) is looking at claims that disease if untreated or inadequately had known it “should not be implanted Boston Scientific’s urogynecologic surgi- treated, and it affects millions of Ameri- in sexually active people.” The appeals cal mesh could contain counterfeit mate- cans. However, in some instances, court panel wrote: rials. The device maker has launched an patients can reverse Type-2 diabetes by investigation which is said likely to take The judge had also relied on the making significant lifestyle changes months. In an announcement on its plaintiff’s testimony that she would including a healthy diet and exercise. It website, the FDA said there are allega- not have selected the Prolift option is also important to remember that phar- tions the mesh “may contain counterfeit if she had known of the risks and maceutical giants like these two compa- raw material, and that health care profes- recognized there was overwhelm- nies are all vying to obtain their share of sionals and their patients should be ing evidence to show the company the multi-billion dollar industry. As a aware of this investigation.” had information about Prolift that result, rushing drugs to market by the The company will begin conducting it chose not to provide to the drug companies with little safety and tests that will probably take months to physician. efficacy data is now all too common. complete. “The additional testing should If you need more information on this be sufficient for the FDA to determine The panel’s ruling follows the decision subject, contact Matt Munson, a lawyer whether or not the urogynecologic surgi- by New Jersey Superior Court Judge in our firm’s Mass Torts Section, at 800- cal mesh manufactured from the alleged Carol E. Higbee who ruled on post-ver- 898-2034 or by email at Matt.Munson@ counterfeit raw material are equivalent dict motions and did not second-guess beasleyallen.com. the jury’s award in February 2013 of to the urogynecologic surgical mesh $3.35 million in compensatory damages manufactured from the original raw and $7.76 million in punitive damages to material supplier,” the FDA said. Surgical Ms. Gross for injuries caused by her use mesh is used to provide additional Update On Essure And Related Litigation of the Gynecare Prolift mesh product to support when weakened or damaged Essure is a permanent contraceptive repair a pelvic floor collapse. tissue is being repaired. There have been medical device manufactured by Bayer The trial featured testimony from a tremendous problems caused to women Healthcare. The device is a flexible, number of Ethicon employees who were by the mesh. As we have stated, there is a nickel-based coil that is permanently questioned about the design, testing and great deal of litigation. placed into each of the female fallopian marketing of Prolift, which Ms. Gross Source: Law360.com tubes. Thereafter, the device works to had implanted in 2006 to repair a pelvic induce scar tissue formation and form a organ prolapse. Ms. Gross had 18 subse- barrier that inhibits sperm from reaching quent surgeries to remove the mesh after FDA Adds Heart Failure Warnings To an egg, thereby preventing pregnancy. she said the product caused severe nerve Popular Type-2 Diabetes Medications The procedure usually takes less than 15 pain that ended her nursing career and minutes, and over the course of approxi- prevented her from enjoying time with The Food and Drug Administration mately three months, scar tissue forms her family or from having a normal (FDA) has added new warnings to around the coil inserts, effectively block- sex life. popular diabetes drugs containing saxa- ing the fallopian tubes and thereby Because the case is the first pelvic gliptin and alogliptin. This came after a keeping pregnancy from occurring. mesh case to go to trial in New Jersey, safety review showed an increase in the Essure was first approved by the FDA where Johnson & Johnson is headquar- risk of heart failure in patients who in 2002, and was designed as a less-inva- tered, Adam M. Slater, one of Ms. Gross’ already suffer from kidney and heart sive alternative to tubal ligation, a stan- lawyers said the ruling will have a mean- disease. The drugs containing these dard procedure for surgical sterilization. ingful impact for more than 9,000 other ingredients are sold under the following Essure has remained the only FDA- women who claim injuries related to brand names: approved non-surgical, permanent birth pelvic mesh use. He stated: • Onglyza, Kombiglyze XR, manufac- control method. However, women I’m happy for all the other women tured and sold by AstraZeneca; and implanted with Essure have experienced out there who are waiting for some of the following:

JereBeasleyReport.com 13 perforation of the fallopian tube or claims requires careful consideration and alleging Viagra caused or contributed to uterine wall; migration of Essure deliberation, as three categories of pre- cause their cancer. inserts through the fallopian tubes emption (express, field, and conflict) Plaintiffs in seven suits in December or uterus into the lower abdomen necessitate the framing of complex 2015 sought to centralize litigation over and pelvis; pelvic pain; infection; issues by courts with the MDA. the erectile dysfunction drug in the miscarriages; allergic reactions; Nevertheless, Essure lawsuits continue Northern District of California. The U.S. abnormal bleeding; joint or muscle to be filed with increasing hope and Judicial Panel on Multidistrict Litigation pain; muscle weakness; excessive potential for sustainability. In April 2016, noted that district has the unanimous fatigue; hair loss; weight changes; complaints filed by Essure claimants in support of all responding Plaintiffs and mood changes; and persistent fever. Alameda County Superior Court (Califor- manufacturer Pfizer, Inc. and that the nia) received complex case designation. court provides a convenient and easily In some cases, women have had to In the Court’s discretionary ruling, accessible location for the geographically undergo surgical procedures to remove complex designation assures that Essure dispersed litigation. the device, including hysterectomies. claims will receive exceptional judicial The proceedings were assigned to After years of receiving thousands of management due to the difficult or novel Judge Richard Seeborg. This multidistrict injury complaints, the FDA finally legal issues inherent in the claims as well litigation (MDL) will be watched closely responded. The FDA, based on concerns as expedition of the litigation overall. to see how things work out for the plain- for serious risks associated with Essure, If you need more information on the tiffs. If you need more information, has mandated that a special “Black Box” Essure litigation, contact Roger Smith, a contact Frank Woodson, a lawyer in our warning should be added to packaging lawyer in our Mass Torts Section, at 800- Mass Torts Section, at 800-898-2034 or for Essure. As we have previously men- 898-2034 or by email at Roger.Smith@ by email at Frank.Woodson@beasley- tioned, a “Black Box” warning is the beasleyallen.com. allen.com. most serious warning required Sources: Washington Post and FDA Source: Bloomberg BNA Product Safety & Liability by the FDA. Reporter Additionally, the FDA now requires a new, extensive “patient checklist” dis- cussing the risks associated with Essure Trial Judge Reduces Jury Verdict In First that women must sign prior to undergo- Hip Implant MDL Trial Jury Verdict In Benzene Exposure Case ing an Essure implant procedure. The FDA’s response further mandates that A Georgia federal judge has reduced On Feb. 24, 2016, a Jury in Philadel- Bayer must conduct a new study follow- by $9 million the damage award granted phia County Court, Penn., found that a ing at least 2,000 women for a minimum by an Atlanta jury last year against Defendant corporation’s benzene was of three years, which is designed to eval- Wright Medical Technology. This was the defective and that the Plaintiff’s expo- uate Essure’s risks “in a real-world envi- first bellwether trial in multidistrict liti- sure to the benzene materially contrib- ronment.” Even though the FDA recently gation over the allegedly defective metal uted to his development of acute responded strongly to concerns regard- hip implant. The company’s bid for a myelogenous leukemia (AML), which is a ing risks associated with Essure, the new trial was rejected by U.S. District cancer of the blood and bone marrow. device remains on the market today. Judge William S. Duffey. The judge left From 1973 to 2006, Plaintiff Louis As we mentioned in another section of intact the $1 million in compensatory DeSorba worked with printing solvents this issue, a number of lawsuits have damages the jury awarded to Robyn and inks containing Benzene. The Plain- been filed against Bayer for injuries Christiansen for complications arising tiff routinely cleaned various parts and related to Essure following the FDA’s from her Wright Conserve Hip Implant areas of presses and tools on a frequent “Black Box” warning announcement and System. However, the punitive damages basis. On Jan. 21, 2013, in his mid-50s, more are expected to be filed. However, award was reduced from $10 million the Plaintiff was diagnosed with AML. hurdles have been and continue to be down to $1.1 million. He sued U.S. Steel on claims under theo- ries of products liability and strict liabil- experienced by claimants. Federal pre- Source: Law360.com emption continues to be the primary ity, including design defect and failure to obstacle in the newly filed cases. warn, and claims of fraudulent conceal- Although the Medical Device Act (MDA) ment and recklessness. A number of An MDL Is Formed In California For Viagra contains a preemption provision, the other companies had been named as Suits clause does not expressly prohibit law- Defendants. The claims against those suits that hinge on state tort law claims, entities either were dismissed, or con- Two years ago a 10-year study was cluded, with the terms undisclosed, such as general negligence, products lia- released on men taking Viagra, the bility or fraud. That should allow the prior to this trial. highly marketed erectile dysfunction The Plaintiff’s lawyers contended at claimants to avoid preemption. medication. The purpose of the study Additional complexities for Essure trial that U.S. Steel, with actual knowl- was to determine if those men had an edge of benzene’s ability to cause leuke- claimants stem from allegations that increased risk of three types of cancer. Bayer failed to report known complica- mia and fatal blood diseases, No increased risk was seen for two intentionally withheld the information. tions from implantation of the device types, but the study showed an 86 and that the company actively concealed Internal memoranda from 1952 to 1953 percent increased risk of melanoma for discussing U.S. Steel’s concern about can- perforations. As a result, claimants have those who had taken Viagra. It is inter- encountered challenges tiptoeing around cer-causing risks in the area of its Pitts- esting to note the drug works along the burgh-based plant that made benzene federal preemption while still specifi- same metabolic pathway in the body that cally pleading state law causes of action. and questioned the requirement of melanoma does. Since the release of the putting warning labels on its benzene Pleading around preemption and alleging study, some men have filed lawsuits non-preempted versions of state law products, were presented to the jury.

14 BeasleyAllen.com The Plaintiff’s expert in industrial used by professional gardeners, green- to’s business model, the company has hygiene and engineering testified about house workers, and lawn and road main- aggressively defended the product as the worker’s exposure to benzene, tenance crews. Overall, glyphosate safe and has gone so far as to sue govern- which occurred by way of inhalation and represents more than 83 percent of the ments that have considered adjusting the skin absorption. According to the expert, chemical pesticides used annually in the designated toxicity of the substance. U.S. Steel failed to provide warnings that United States. Those efforts have come under fire on benzene caused cancers and fatal blood Glyphosate is at the center of Monsan- numerous occasions. diseases; failed to advise users to use per- to’s business model. Monsanto chemist Two labs conducting glyphosate safety sonal safety equipment like respirators; John Franz originally discovered the studies for Monsanto were cited for and in many cases, did not warn users compound as an effective herbicide in “routine falsification of data” and other that Benzene was in the product. 1970 and Monsanto brought it to market offenses. In 1996, New York Attorney The Plaintiff’s expert in epidemiology in 1974 under the trade name Roundup. General Dennis Vacco ordered Monsanto discussed the history surrounding ben- Since that time, Monsanto has developed to pull ads that said Roundup was “safer zene’s health risks. As early as 1897, it genetically modified crops that are resis- than table salt” and “practically non- had been known that benzene caused tant to glyphosate’s herbicide properties, toxic” to animals, birds and fish. To date, aplastic anemia, and by the 1920s, thereby allowing the crops to grow after Monsanto has refused to pull the ads reports began to emerge about benzene application while killing weeds. Each from any other states besides New York. being associated with leukemia, accord- year, approximately 250 million pounds In 2007, a French court convicted ing to the expert. U.S Steel denied that it of glyphosate are sprayed on crops, com- Monsanto of false advertising when the withheld information on the alleged mercial nurseries, suburban lawns, parks company advertised glyphosate as biode- health effects related to benzene expo- and golf courses. gradable and leaving the soil clean for sure and its experts in medicine/epide- Last year, the International Agency for use even though it was previously desig- miology maintained that the Plaintiff’s Research on Cancer (IARC) designated nated as “dangerous for the environ- U.S. Steel Benzene exposure did not glyphosate as probably carcinogenic to ment” and “toxic for aquatic organisms” cause his leukemia. humans with the most likely linked by the European Union. If you need In addition to finding that U.S. Steel’s cancer being NHL. NHL is a broad classi- more information, contact Parker Miller benzene was defective, and materially fication of malignancies that include mul- or Ryan Kral, who are lawyers in our contributed to DeSorbo’s disease, jurors tiple subtypes with varied characteristics firm’s Toxic Torts Section, at 800-898- determined that U.S. Steel acted with and possibly diverse etiologies. As a 2034 or by email at Parker.Miller@beas- reckless indifference to the rights and/or result, further studies are currently leyallen.com or Ryan.Kryal@ safety of others and fraudulently con- being conducted to identify which spe- beasleyallen.com. They will be glad to cealed material information about its cific subtypes of NHL are linked with talk with you. benzene. The jury awarded DeSorbo exposure to glyphosate. Thus far, the Sources: International Agency for Research on $824,000, including amounts for past strongest association proven has been Cancer; National Center for Biotechnology medical cost, future medical cost, past with B cell lymphomas. We expect addi- Information. pain and suffering, future pain and suf- tional studies to shed much-needed light fering, and lost wages and benefits. on the full range of NHL-related diseases John Tomlinson, a lawyer in our firm’s linked to glyphosate. Young Children Are Especially At Risk Toxic Torts Section, is handling the Shortly after the link was made, a From Lead Poisoning Benzene exposure cases for the firm. If number of lawsuits were filed against you need more information on this Monsanto, many of them by Plaintiffs Long term exposure to lead can cause subject, contact John at 800-898-2034 or that used Roundup on a consistent basis serious health problems. Lead is toxic to by email at John.Tomlinson@beasley and developed the dreadful cancer. Mon- everyone, but unborn babies and young allen.com. santo quickly moved to dismiss the law- children—especially those younger than Source: Verdict Search Products Liability/April 2016 suits as preempted under the Federal 3—are at the greatest risk because their Insecticide Fungicide and Rodenticide smaller, growing bodies make them Act (FIFRA). This past month, U.S. Dis- more susceptible to absorbing and retain- trict Judge Vince Chhabria of the North- The Roundup Litigation Is Heating Up ing lead. Lead is a naturally occurring ern District of California rejected the metal that is used in many products from In addition to diacetyl cases, lawyers motions, and found that “[t]he mere fact construction materials to batteries. Many in our firm are actively investigating that the EPA has approved a product toys and other products manufactured cases where workers developed Non- label does not prevent a jury from outside the United States have been Hodgkin’s Lymphoma (NHL) as a result finding that that same label violates found to contain lead. of working daily with the herbicide FIFRA.” The Plaintiff’s strict liability Although there are numerous ways a Glyphosate. As you may know, Glypho- claims were also spared. Similar motions child can be exposed to lead, children sate is the active ingredient in Monsan- are pending before a district court who live in older homes are at a greater to’s Roundup formulation. A in Hawaii. risk for lead poisoning. Most commonly, broad-spectrum systemic herbicide, The recent order was a major victory children get lead poisoning from lead- glyphosate is used to kill weeds, espe- in the Roundup litigation, and it con- based paint, which was used in many cially annual broadleaf weeds and firms that Monsanto will not be able to U.S. homes until the late 1970s, when the grasses that compete with crops. While hide behind FIFRA and the secrecy of its government banned the manufacture of row crop farmers are known to work internal testing practices. For years, sci- paint containing lead. Another common with Roundup or other herbicides con- entists and environmentalists have raised route of exposure is drinking water that taining glyphosate as a means to improve concerns over the safety of glyphosate. flows through old lead pipes or faucets. their crops, the chemical is also heavily Considering glyphosate and the product Roundup is critical to Monsan-

JereBeasleyReport.com 15 Each year in the United States, 310,000 The rule updates loopholes in the law of Investor Protection at the Consumer children between the ages of 1 and 5 are that have allowed certain financial advis- Federation of America, said: “That found to have unsafe levels of lead in ers to avoid liability for losses their enforceable contract provides a hook for their blood. Once lead gets into a per- imprudent advice caused their clients by litigation.” son’s system it is distributed throughout requiring that companies either change It’s expected that there will be more the body just like helpful minerals such their compensation models or enter into litigation because of the new rules. Ms. as iron and calcium. Some of the damag- a contract with investors affirmatively Roper added that the so-called best inter- ing effects of long-term lead poisoning acknowledging their fiduciary status. est contract exemption (sometimes include: decreased bone and muscle While these contracts may still contain simply called BICE), which allows growth; poor muscle coordination; forced arbitration provision and/or a brokers to continue to collect commis- damage to the nervous system, kidneys, waiver of punitive damages and rescis- sions from sales as long as they acknowl- and/or hearing; speech and language sion as a remedy for breach (but only as edge their fiduciary duty to clients, and problems; developmental delay; permitted by applicable laws), contracts disclose conflicts of interest, will elimi- and seizures. may not contain any provisions disclaim- nate ambiguity over whether fiduciary High levels of lead can cause a wide ing or otherwise limiting liability, includ- standards apply to brokers that give range of symptoms including headaches; ing any waiver of an investor’s right to advice to retirement accounts. The con- stomach pain; difficulty concentrating; participate in a class action or any pre- tract rule was developed in order to loss of appetite; anemia; sluggishness or dispute agreement to an amount of liqui- provide investors with a legal basis to fatigue; muscle and joint weakness or dated damages or other damages cap. bring a claim if brokers and broker- pain; and/or seizures. However, many One of the most controversial changes dealer firms breach their fiduciary duty children with lead poisoning show only to the rule is the definition of fiduciary, commitments. This allows for claims that mild symptoms or no symptoms at all. It and a fiduciary’s requirements, under weren’t previously available under the is important to eliminate the risk of lead ERISA. Paul Borden, a lawyer with Morri- Employee Retirement Income exposure at home and to have young son & Foerster, says some firms that sell Security Act. children tested for lead exposure. securities to individual retirement A major benefit to the changes in the Lawyers in the Toxic Torts Section at accounts or pension plans will become definition of a fiduciary is that it allows Beasley Allen are currently investigating fiduciaries under ERISA under the new claims for breach of fiduciary duty potential claims on behalf of children rules. He said this opens up another against parties that previously disclaimed who suffer adverse health effects from avenue for litigation, adding: “Becoming any fiduciary relationship. For example, prolonged exposure to high levels of a fiduciary under ERISA will expose “[t]he primary claim brought against bro- lead. If you would like more information them to the fiduciary breach and self- ker-dealers in FINRA arbitration is viola- or have questions you can contact Chris dealing prohibited transaction provisions tion of fiduciary duty, even though they Boutwell, a lawyer in the Section, at 800- of ERISA.” don’t legally have a fiduciary duty,” Ms. 898-2034 or by email at Chris.Boutwell@ The rule will require those financial Roper said. A 2015 report from the beasleyallen.com. professionals who provide investment Public Investors Arbitration Bar Associa- Source: Kids Health advice to plans, plan sponsors, fiducia- tion found that many brokers advertise ries, plan participants, beneficiaries, that they act in customers’ best interests, IRAs, and IRA owners to do so without but deny that they have any fiduciary regard to their own interests, or the duty behind the closed doors of arbitra- X. interests of anyone else other than the tion fights. In that kind of case, Roper customer. This includes a requirement said, the new rules will make it easier for BUSINESS that they charge only reasonable com- investors to prevail by eliminating the LITIGATION pensation, make no misrepresentations need to prove that a broker-dealer had a to their customers regarding recom- fiduciary duty or claimed that it was mended investments, and assume a fidu- acting with the investor’s best interests. ciary responsibility for which they will There is already opposition to the new New DOL Rules Require Brokers To be legally accountable upon the provi- rules. In fact, three Republican senators Consider Investors’ Best Interest Instead sion of conflicted or biased advice that is have banded together to try to kill the Of Their Own not in the investor’s best interest. Labor Department’s new fiduciary rule. Experts have said the rules provide Senators Johnny Isakson of Georgia, The U.S. Department of Labor (DOL) investors and their attorneys an impor- Lamar Alexander of Tennessee and Mike has issued new fiduciary rules regarding tant new tool to bring claims when they Enzi of Wyoming have introduced a reso- investment decisions, giving more power suspect their broker-dealer doesn’t have lution to stop implementation of the new to retirement savers. Considered the their best interests at heart. Not only regulation that was released April 6. If biggest change in retirement planning does the regulation provide some protec- the Senators can manage to get the reso- services since Congress passed the tion to investors on the front-end—when lution passed, which is very doubtful, Employee Retirement Income Security the investments are made—it provides President Obama will certainly veto it. Act of 1974 (ERISA), the rule released in an extra avenue for enforcing proper Investors and consumer advocates alike early April was six years in the making. It investment procedures on the back-end. have lauded the new rules for the protec- was crafted in response to major changes The regulation’s requirement that tions and enforcement provisions they in retirement financial services during brokers enter a contract with clients create. The ability to claim breach of the decades since ERISA was enacted, affirming they will uphold the client’s fiduciary duty against investment advi- when pensions increasingly gave way to best interest— or disclose when they sors that previously disclaimed a fidu- 401(k)s and assets held in IRAs and can’t— has provided a new and definite annuities. avenue for investors to bring claims over bad advice. Barbara Roper, the Director

16 BeasleyAllen.com ciary relationship is good news for pared to only one in 2014. The increase The study indicates, overall, an investors. was probably due to a corresponding rise increase in successful resolutions bene- Sources: Law 360.com; www.investmentnews.com in cases with very high “estimated fiting consumers. Consumer advocates and www.accountingweb.com damages,” a simplified calculation repre- and investors alike should be pleased senting a proxy for damages. The median with the progress of these claims. “estimated damages” for mega settle- Because of the typically low individual ments in 2015 was the second highest in damages, class actions in the financial XI. the past 10 years. Average “estimated sector are the best and most efficient damages” increased 151 percent from means of correcting corporate miscon- AN UPDATE ON 2014. Since “estimated damages” is the duct and fraud. The upswing in settle- SECURITIES most important factor in predicting set- ments is considered to be a boon to LITIGATION tlement amounts, this increase contrib- investors. uted to the substantially higher average Source: Accountingtoday.com settlement amounts in 2015. Median set- tlements as a percentage of “estimated Securities Class-Action Lawsuits Reach damages” decreased to historically low Highest Level Since 2010 levels last year. XII. Class-action litigation—and especially Securities class-action lawsuits, includ- cases involving securities’ issues—are INSURANCE AND ing claims against auditing firms, have always difficult and require both experi- FINANCE UPDATE reached a five-year high, according to a ence, ability and a good work ethic. Pro- new report by Cornerstone Research fessor Joseph A. Grundfest, Director of titled “Securities Class Action Settle- the Stanford Law School Securities Class Banner Life Lawsuit Filed By Beasley Allen ments—2015 Review and Analysis.” A Action Clearinghouse, stated: total of 80 securities class-action settle- Lawyers ments gained approval in 2015, the Settlements in class-action securi- highest number since 2010. Total settle- ties litigation can be viewed as Lawyers at Beasley Allen have recently ment dollars also rose to more than $3 rather predictable phenomena. filed a class action lawsuit in the District billion last year, an increase of 184 You can only get a high settlement of Maryland against Banner Life Insur- percent over the historic low in 2014. value for a strong case that alleges ance Company for its unfounded cost of The report found that total settlement substantial damages, and those insurance increases. The complaint dollars in 2015 were 9 percent higher factors can often be assessed rela- alleges that these increases are being than the average for the prior five years. tively early in the litigation process. implemented ultimately to benefit share- The average settlement size increased When the number of mega filings is holders and rid Banner of near-term lia- from $17 million in 2014 to $37.9 million up, you can expect an increase in bilities it has accrued due to its wrongful in 2015 (an increase of 123 percent), mega settlements three or more use of captive reinsurance companies. while the median settlement amount years down the road, with the Banner Life, and its parent corpora- (representing the typical case) remained larger settlements taking longer to tions, Legal and General America, Inc. relatively flat ($6.0 million in 2014 and reach, and that’s the process that (LGA) and Legal and General Group PLC $6.1 million in 2015). seems to be at work in the 2015 set- (L&G), have devised a scheme to take In 2015, 35 percent of accounting- tlement data. funds set aside to pay policyholders’ related cases had a named auditor Defen- death claims, and convert them into dant, representing a 50 percent increase While larger damages appear to have investors’ and executives’ benefits. This over the previous 10-year average. That driven up settlement values for some scheme revolves around the use of same report noted that underwriter cases in 2015, other factors associated wholly owned captive reinsurance com- Defendants were named in 76 percent of with higher settlements were less preva- panies. For more than a decade, Banner cases with Section 11 claims. Laura lent. For example, the proportion of set- Life, under the direction of its parent Simmons, a senior advisor of Corner- tlements of $50 million or greater companies, has pretended to offload bil- stone Research and a co-author of the involving financial statement restate- lions of dollars of liabilities to its wholly report, stated: ments, public pension plan lead Plain- owned captives and other affiliates. tiffs, and/or SEC actions was lower than Because this created a false surplus on The surge in securities class-action most years since the passage of the the balance sheet, L&G was able to pay settlements in 2015 can be attrib- Private Securities Litigation Reform more than $800 million in extraordinary uted in part to three consecutive Act of 1995. stockholder dividends. In reality, Banner year-over-year increases in the While the proportion of securities Life was merely dumping billions of number of case filings. The class-action settlements involving finan- dollars of liabilities into wholly owned increases in case filings may cial sector firms was lower in 2014 and captive reinsurance companies that are suggest that higher numbers of set- 2015 compared to prior years, these incapable of satisfying their assumed tlements will persist in the near cases continue to be some of the largest obligations, thereby freeing up hundreds future. While settlement volume when measured by “estimated damages.” of millions of dollars Banner Life would fluctuates from year to year, the In 2015, 55 percent of financial sector otherwise be legally required to hold as size of the typical settlement tends cases had “estimated damages” greater reserves. These captive companies are to remain fairly consistent. than $1 billion. The Second and Ninth strategically domiciled in jurisdictions Circuits continued to lead all circuits in that allow the “reinsurers” not to file any There were eight mega settlements the number of settlements of securities public financials, hiding the true nature ($100 million or greater) last year, com- class-action lawsuits. and details of these transactions.

JereBeasleyReport.com 17 In order to find new cash with which An Update On Payday Lending In Alabama The problem represented by predatory to fund future dividends, and delay the payday lending practices has been inevitable financial disaster that could For those who don’t know about nationally recognized. Many other states occur because of its near-term liabilities, payday loans I will try and give a brief have banned payday lenders from charg- Banner Life has told policyholders that explanation. Payday loans allow individu- ing these types of triple-digit interest dramatic cost of insurance increases are als to borrow money by using a post- rates, and 16 states and the District of necessary because the company “did not dated check as collateral for a cash loan. Columbia have essentially banned adequately account for future experi- Unlike most other forms of credit, to payday lending altogether. In 2006, Con- ence,” i.e. the number and timing of qualify for a payday loan a borrower gress enacted the Military Lending Act, death claims, how long people would need only provide proof of income (such which caps interest rates to service keep their policies, how well the compa- as a paystub or verification of govern- members and their dependents at 36 ny’s investments would perform, and the ment benefits) and a bank account. percent and prohibits loans based on the cost to administer policies. Payday lending is a huge business in holding of postdated checks or future At no point in time before its August Alabama, with around 4 million transac- debit authorization. While Alabama is 2015 letter did Banner Life ever indicate tions occurring annually at storefront arguably behind the curve, the state is that the profitability of the policies was locations and more than 300,000 Ala- starting to reel in industry excesses. being severely eroded. Instead, policy- bamians taking out loans. Indeed, there In August 2015, the Alabama State holders were lulled into a false belief that are four times as many payday lending Banking Department began keeping their policies were performing ade- storefront locations throughout the state track of all payday loans in a centralized quately and building cash value. as there are McDonald’s restaurants. On database. The purpose of this database is Banner Life’s willful decision to allow the whole, Alabamians take out an to enforce the existing law prohibiting the policyholders’ damages to escalate to average of $15 million in payday loans borrowers from taking out more than a point where many policyholders would each week. $500 in payday loans at one time. Prior have no choice but to forfeit their poli- You may be shocked to learn that to the creation of this database, the $500 cies or allow their cash value to be taken current Alabama law allows payday limit was essentially unenforceable is tantamount to an attempt to cancel the lenders to charge up to 456 percent because borrowers could take out loans policies and/or raid the policies of accu- interest, in addition to a $17.50 service from multiple different lenders simulta- mulated policyholder savings. Because of charge per $100 borrowed, for a two- neously. While borrowers are still these actions, Plaintiffs and Class week period. The law prohibits people allowed to obtain loans from multiple Members are seeking relief under breach from taking out a total of more than $500 lenders, the new database ensures that of contract, unjust enrichment, conver- in loans at one time, regardless of the the cumulative value of these loans does sion, and fraud theories. number of loans used to reach that debt not exceed $500. Not surprisingly, Banner Life is not the only insurance limit. In theory, these types of loans are payday lenders sued Alabama’s Banking company raising premiums and cost of designed to help people meet a small, Department in 2013 to block the utiliza- insurance in order to account for its one-time expense, yet in practice most tion of this system, but the Alabama wrongful use of captive reinsurance payday loans are taken out to pay for pre- Supreme Court ruled in favor of the state schemes. Multiple other life insurers vious loans. More than three quarters of early last year. Since its creation, the have sent their universal life and/or flex- all payday loans are given to borrowers database has blocked several thousand ible premium policyholders letters who are renewing a loan or who have loans because they would have put bor- informing them of an upcoming raise in had another payday loan within their rowers over the $500 cumulative limit. If costs—usually claiming these increases previous pay period. Among all borrow- you need more information on this are due to “an increase in mortality ers, more than 80 percent conduct multi- subject, contact Grant Cofer, a lawyer in rates.” In order to avoid a loss of cover- ple transactions each year, and 60 our firm’s Consumer Fraud and Commer- age, consumers are paying these percent of all payday loans go to borrow- cial Litigation Section, at 800-898-2034 increases—oftentimes tripling or ers with 12 or more payday lending or by email at Grant.Cofer@beasley quadrupling the policyholders’ origi- transactions each year. allen.com. nal costs. According to the Consumer Federation Lawyers at Beasley Allen are getting of America, the use of payday loans doubles the risk that a borrower will ready to file complaints against other An Update On Trust And Estate Litigation companies alleging similar wrongful declare bankruptcy within two years, activity. If you have seen this practice by doubles the risk of being delinquent on Trust and estate litigation involves any life insurance company, there may credit cards, and tends to trap consum- numerous scenarios from celebrity dis- be a claim that our firm would be willing ers in a perpetual cycle of debt. The putes, to charitable contributions, to to investigate. You can contact Andrew average payday loan borrower in family feuds in your own backyard. In Brashier or Rachel Boyd, lawyers in our Alabama is trapped in debt for five to one of the larger estate disputes, parties Consumer Fraud and Commercial Litiga- seven months of the year due to the high have recently progressed settlement dis- tion Section, at Andrew.Brashier@ cost of these loans. If a borrower takes cussions in the latest litigation concern- beasleyallen.com or Rachel.Boyd@beas- out $300 and the interest is due ing A.I. duPont’s $56 million estate. In leyallen.com, or call us at 800-898-2034 biweekly, the loan would cost between his 1932 will, financier and philanthro- to discuss further. $575 to $785 in interest payments alone. pist A.I. duPont left the bulk of his $56 It is not surprising that payday lenders million estate to charity. The will estab- tend to set up shop in low-income areas, lished the Nemours Foundation, a chari- where they will have the greatest chance table organization, which now operates of issuing loans to borrowers who 50 facilities in five states, including the cannot immediately pay off their loans A.I. duPont Hospital for Children in and will incur sky high interest fees.

18 BeasleyAllen.com Rockland, Del. Specifically stated in his The retail giant argued that during the is the lead Plaintiff in the class-action will, DuPont intended for “first consider- trial the Plaintiffs used an unconstitu- lawsuit. The local irrigation district has ation” to be given to “beneficiaries who tional “trial by formula.” According to agreed to settle all claims for $18.1 are residents of Delaware.” This provi- Wal-Mart, the trial by formula used by million. The aging, 31-mile canal is a key sion ultimately sparked lengthy litigation the Plaintiffs was expressly bared by the component of the nation’s first federal beginning nearly 50 years ago. Supreme Court in its 2011 Dukes v. Wal- reclamation project, started in 1903. It’s The latest round of litigation began in Mart decision. At trial, only six Plaintiffs owned by the U.S. Bureau of Reclama- 2012 under Delaware’s then Attorney testified on behalf of the class and the tion, but managed by the Truckee-Carson General Beau Biden, who alleged that class’ experts used extrapolated evi- Irrigation District. The bureau concluded Delaware was no longer the primary dence to calculate the total amount of within two months of the breach that beneficiary of the trust. Lawyers for the damages suffered. burrowing rodents had weakened the State argue that rather than following In its appeal to the U.S. Supreme canal, causing it to fail. duPont’s intentions to first provide for Court, Wal-Mart argued that the high In July 2012, a federal jury returned a Delaware, Nemours is distributing those court needed to take up the case to verdict during the liability phase of the funds elsewhere. The litigation further prevent state courts from hamstringing trial finding the district’s history of negli- claims that Nemours failed to spend at corporations’ ability to defend them- gence in maintaining the canal was pri- least half of the $1.3 billion in duPont selves from class actions. The Plaintiffs, marily to blame. Soon thereafter, the trust distributions received over the last and ultimately the Pennsylvania Supreme district agreed to a $10-million settle- decade in Delaware. That requirement Court, reasoned that individual examina- ment, but then backed out. The damages was part of a 1980 settlement agreement tions of all 187,000 class members phase of the trial was scheduled to among the trust, Nemours and the State. weren’t necessary to determine whether resume two months ago, but the district Settlement discussions are still in the employees were forced to work through agreed to the new settlement terms after early stages, but if a settlement is their breaks. its members voted in February to raise reached, Delaware stands to gain mil- The Supreme Court did not elaborate money to finance the damage award by lions of dollars to support children’s on why it declined to review the appeal. selling off some water rights to the health care. Nonetheless, the Supreme Court’s deci- Truckee Meadows Water Authority. Lawyers at Beasley Allen are currently sion to not hear the appeal leaves in Judge Lloyd George approved the set- involved in litigating probate disputes place the lower court ruling and the tlement on March 31. A similar rupture concerning wills, trusts, and estates. $188 million jury award. Michael D. in the same vicinity had flooded 60 This litigation covers a multitude of situa- Donovan, a lawyer with the Donovan Lit- homes in December 1996. The $18.1 tions like the one above, cases involving igation Group, located in Berwyn, Penn., million settlement includes about $7.8 undue influence and lack of capacity, as represented the workers and he did an million in attorney fees and expenses. well as cases involving financial elder outstanding job for them. Nobody in the class objected to that part abuse. If you have a possible probate liti- Source: Law360.com of the settlement. gation issue, contact Beasley Allen Source: Las Vegas Sun lawyers Lance Gould or Leslie Pescia at 800-898-2034 or by email at Lance. [email protected] or Leslie. XIV. [email protected]. They will be PREMISES XV. glad to be of assistance. WORKPLACE Source: The News Journal LIABILITY UPDATE HAZARDS

XIII. $18.1 Million Settlement For Fernley Flood Victims Jury Verdict Against Dollar General In EMPLOYMENT AND North Alabama More than 200 northern Nevada flood FLSA LITIGATION victims will now be paid for damages A jury in Lauderdale County returned suffered when a century-old irrigation one of the largest personal injury ver- canal burst and sent a wall of water into dicts in the county’s history last month, U.S. Supreme Court Declines Review Of their homes in 2008. Fortunately, no one finding Dollar General at fault for inju- Wal-Mart’s $188 Million Dollar Break was killed or seriously injured, but 590 ries suffered by a delivery driver. The Lawsuit homes in Fernley were flooded when jury awarded Howard Luttrell compensa- water burst through a 50-foot breach in tory damages in the amount of $925,000. The U.S. Supreme Court has refused to the canal’s earthen embankment in The lawsuit was filed in 2013 against the review a $188 million award obtained by January of 2008. A 2-foot-tall wave company. Luttrell transported a delivery a class of Wal-Mart workers who were swamped the neighborhood and water from the Dollar General distribution denied rest breaks and meal breaks. Wal- collected eight feet deep in some parts of center in Scottsville, Ky., to a store in Mart’s appeal to the Supreme Court the rural town, which is located 30 miles Florence, Ala. follows a December 2014 ruling from the east of Reno. It was reported that more Upon arriving at the store, the driver Pennsylvania Supreme Court that than a dozen residents were rescued opened the back door of his truck to affirmed a trial court award in favor of from rooftops by helicopter, while unload the cargo. Part of the cargo came nearly 200,000 workers who were alleg- others were taken to safety by boats. crashing down on him. He suffered inju- edly forced to work off the clock and Judy Kroshus, the director of a tribal ries to his head, neck, back, shoulder and skip rest and meal breaks. health service resource center in Fernley, other parts of his body. The injuries

JereBeasleyReport.com 19 resulted in Luttrell undergoing extensive and Core Safety were responsible for the Because workers don’t always rec- medical treatment and incurring medical 55-year-old worker’s death in January ognize injuries at the time they expenses. 2014. While working on a pedestrian occur, the policy provides an incen- Dollar General was responsible for bridge for Baylor’s football stadium, tive for employees to not report packing the cargo into the delivery Suarez was tied off in a boom lift on the injuries once they realize they truck. It was proved that Dollar General corner of a barge on the Brazo River to should, since they are concerned loaded and prepared the trailer in a dan- work on the bridge. The lift fell off the that the timing of their report gerous and unsafe manner, loaded it in barge and Suarez was unable to free would violate the company’s policy such a way that the heavy totes caused himself and he drowned. It was con- and result in some kind of injuries to Luttrell. The Plaintiff was rep- tended that safety rules were not fol- reprimand. resented by Huntsville lawyers Joe King lowed on the worksite, including the fact and Joey Aiello, along with Albert Trous- that the lift was not chained to the barge Both of the workers mentioned above dale of Florence. These lawyers did a and that safety personnel were suffered injuries in February 2014. In one very good job in the case. not on-site. case that occurred on Feb. 12, 2014, a Core Safety and Robishaw were dis- full-time utility technician at U.S. Steel’s missed from the case prior to trial. The Clairton Plant, in Clairton, Penn., found a small splinter lodged in his thumb and OSHA And Anheuser-Busch’s New Jersey trial court found there was no evidence these Defendants contributed to the extracted it himself. He completed his Subsidiary Resolve Safety Violations safety lapses involved in the worker’s shift without further incident. But two days later, his thumb and hand were Federal labor officials have reached a death. During the trial, the other Defen- dants argued that sole responsibility for swollen noticeably, and he received settlement with a New Jersey-based sub- medical treatment for an infection. sidiary of the world’s largest beer maker the safety lapses lay with Austin Bridge & Road, and that the company had failed to When he reported the incident to his to settle claims of safety violations at a supervisor, the company imposed a five- distribution warehouse. The Occupa- follow safety rules it had known about for years. The jury agreed, holding day suspension without pay for his violat- tional Safety and Health Administration ing the company’s policy. U.S. Steel later (OSHA) reached the agreement with Austin Bridge & Road solely responsible for the death. The Suarez family is repre- reduced the suspension to two days. Anheuser-Busch Sales of New Jersey. In the other case that took place on OSHA says the company has corrected sented by Vuk S. Vujasinovic, Brian Beckcom and Kenneth B. Fenelon Jr. of Feb. 15, 2014, a full-time laborer at the the violations at the Jersey City site and Irvin Plant in West Mifflin, Penn., has paid a $150,000 fine. VB Attorneys PLLC. They did a good job for their clients. bumped his head on a low beam. That The company was cited by OSHA in employee was wearing a hardhat and December 2014 for what it called numer- Source: Law360.com didn’t feel any pain or any discomfort at ous safety violations at the warehouse. the time. However, several days later, he The alleged hazards included untrained experienced stiffness in his right shoul- forklift operators, obstructed exit routes U.S. Steel Corp. Is Sued Over Injury der and sought medical treatment, which and inadequate chemical hazard commu- Reporting Practices his representative reported to U.S. Steel nication training. The company con- as a possible worksite injury. When he tested the citations late last year. That led The U.S. Department of Labor has sued met with U.S. Steel’s representative to to the settlement in which the company U.S. Steel Corp. for allegedly retaliating discuss the issue, the company sus- will implement and maintain enhanced against two Pennsylvania-based employ- pended him for five days without pay. safety measures for workers at its distrib- ees who violated the company’s immedi- Both workers filed complaints with utorships in Jersey City and in the ate reporting policy for workplace OSHA, alleging that U.S. Steel had sus- Bronx, New York. injuries. The Department of Labor said pended them in retaliation for reporting on Feb. 22 that in 2014 two U.S. Steel workplace injuries. The agency found Corp. employees reported injuries that that in both cases the company had vio- $17 Million Verdict Returned In Worker may have resulted from worksite inci- lated the anti-discrimination provision of Death Case dents occurring a few days earlier. At the the Occupational Safety and Health Act, time of the incidents, the employees or Section 11(c), when the company used A Texas state court jury has returned a were unaware they had suffered injuries, its immediate reporting policy as a basis $17.7 million verdict against Texas as symptoms did not develop until later. for sanctioning employees who reported bridge-building contractor Austin Bridge When the workers realized and reported injuries “late.” Filed in the U.S. District & Road. The case was brought by the their injuries, U.S. Steel suspended both Court for the District of Delaware, the family of a worker who drowned while workers without pay for violating the lawsuit seeks the following: working on a pedestrian bridge for company’s immediate reporting policy. Baylor University’s football stadium. The The lawsuit against U.S. Steel seeks to • Enjoining U.S. Steel from violating jury in its verdict assigned 100 percent of reverse the disciplinary action taken Section 11(c)(1) of the Act; the blame for ironworker Jose Dario against these employees and amend the • Directing the company to rescind and Suarez’s death to Austin Bridge & Road company’s immediate reporting policy. nullify its immediate reporting policy; LP, one of several Defendants in the case. Richard Mendelson, Occupational Safety Suarez’s wife, two daughters and son & Health Administration (OSHA) • Permanently enjoining the company filed suit in March 2014, alleging Baylor regional administrator in Philadelphia, from enforcing an injury or illness University, Austin Commercial LP, Austin said U.S. Steel’s policy discourages reporting policy that requires employ- Bridge & Road, Derr & Isbell Construc- employees from reporting injuries for ees to report their workplace injuries tion LLC, Genie Industries Inc., Terex fear of retaliation. Mendelson said: or illnesses earlier than seven calendar Corp., Flinto LLC, Robishaw Engineering days after the injured or ill employee

20 BeasleyAllen.com becomes aware of his or her injury complaint is filed in the United States knew or should have known of this fact. or illness; District Court for the District of Hawaii. The left vacuum pump on the subject air- Mike Andrews and Cole Portis from our craft failed during the flight at some • Rescinding the discipline and sanction firm, along with Melvin Y. Agena, a point prior to the subject aircraft’s rapid of the two employees; lawyer based in Honolulu, Hawaii, are descent. The lawsuit alleges negligence, • Directing the company to compensate representing the family in this lawsuit. gross negligence and vicarious liability. the complainants for any, and all lost The lawsuit is filed in the Circuit Court wages and benefits including interest, of the Fourth Judicial Circuit in and for Duval County, Fla. as well as compensatory damages; and Beasley Allen Files Lawsuit On Behalf Of Pilot Killed During Flight Training • Directing the company to post notices at all of its work sites for 60 days Lawyers in our firm have filed a Jury Awards $14.9 Million To Crash Victim stating that it will not discriminate or wrongful death lawsuit on behalf of the retaliate against employees involved in family of Adam Christopher Griffis, who A jury has awarded $14.9 million to activities protected by Section 11 (c) was killed March 24, 2014, when the Marcia Gray in a lawsuit arising out of a of the Act. PIPER PA-44-180 aircraft he was co-pilot- 2012 motor vehicle crash in Oakland, ing as a flight student crashed near Calif. The seat in her 1995 Mazda Protege This is a very important case and it Brunswick, Ga., after departing from collapsed in the crash, causing Ms. Gray will be watched closely. North Carolina, with the intended desti- to suffer severe permanent injuries. Source: The U.S. Department of Labor nation of Jacksonville, Fla. The plane was Responsibility was assigned by the jury not airworthy, and a mechanical failure to both Mazda and the driver who resulted in the crash, killing Griffis and crashed into Ms. Gray. the Pilot in Command during the flight, Ms. Gray was driving alone on an Inter- XVI. Andres Santiago Lopez. state highway when she braked suddenly TRANSPORTATION The plane was owned, leased and to avoid a wreck in front of her. A Chev- maintained and/or operated by the rolet pickup truck then rear-ended her, Defendants, Airline Transport Profes- and her seat flew backward. The truck sionals Holdings Inc., ATP USA Inc., ATP that hit her car crushed the seat back as Lawyers At Beasley Allen File Lawsuit For Flight Academy LLC, ATP Flight Academy it went back. This caused Ms. Gray to Family Of Marine Killed In Osprey of Arizona LLC, and ATP Aircraft 2 LLC. fold over. She had 13 crushed ribs, a frac- Helicopter Crash Mr. Lopez also was a student pilot at ATP tured vertebra that left her partially para- plegic, and a brain injury. Ms. Gray now Beasley, Allen, Crow, Methvin, Portis & Flight Academy in Jacksonville, Fla., at has limited movement and walks with Miles, P.C., has filed a wrongful death the time of the crash, and his estate also the aid of a cane. lawsuit on behalf of the family of a is named as a defendant in the lawsuit. A gear mechanism on the left of the Marine killed in a helicopter training Mike Andrews and Chris Glover are driver’s side was designed to collapse the mission in Hawaii. The V22 Osprey heli- representing Barbara Griffis Prince and seat backward in a wreck in order to copter in which Matthew J. Determan Guy R. Willis, co-administrators of the absorb the energy from a crash. Ms. Gray died crashed and burned during a Estate of Adam Christopher Griffis. The was put in more danger during the crash landing attempt. The complaint alleges flight school should have known the air- because it was the seat back that caused the engine air filtration system in the craft wasn’t properly maintained and most of her injuries. Mazda knew about V22 Osprey is defective and cannot prop- posed an unreasonable risk to all persons seat problems through crash testing in erly filter particulates from entering the operating, flying and being flown on 1995, according to testimony during the engines. As a result, the subject Osprey board. But they did not warn the pilots trial, but the company continued with suffered an engine failure and crashed. about possible problems with the air- the same design through 1998. There Defendants are The Boeing Company, craft, and they should have known that, were never any recalls of the design. Bell Helicopter Textron Inc., and Eaton as students, Mr. Griffis and Mr. Lopez did However, Mazda claimed it changed its Aerospace, LLC. Lawyers in our firm not have the training or experience to designs many times since 1995. have successfully handled cases involv- operate the plane under conditions they The jury in the verdict found Mazda 55 ing the Osprey before and are very famil- knew to be unsafe. As a result, our client percent responsible and the driver who iar with its history of crashes. Lance Cpl. lost his life. rear-ended Ms. Gray 45 percent responsi- Determan intended to be a career marine The subject aircraft was a complex ble. Ms. Gray is represented by David L. and was looking forward to a life of twin engine aircraft, having no de-icing Winnett, a lawyer with the Veen Firm, service. Instead he was killed as a capability on its wings and tail surfaces. located in San Francisco, Calif. He did a result of a dangerous and defective air- Radar indicated that the subject aircraft very good job for Ms. Gray. craft, which has killed many other was at an altitude of 8,000 feet at 5:40 young Marines. p.m. when it began a rapid descent Source: Bayareanewsgroup.com The accident occurred on May 17, reaching an altitude of 300 feet at 5:44 2015, when the Marines were launching p.m., and crashing following an in-flight break-up near Brunswick, Ga., causing the Marine MV-22 Osprey helicopter Settlement Ends Lawsuit In The Death Of A severe injuries and death to Mr. Lopez, from the Navy assault ship USS Essex for New York State Trooper practiced landing, unloading, reloading the Pilot in Command and Mr. Griffis. and turning to ship. The subject Osprey The right vacuum pump on the subject The widow of a state trooper killed in was descending to the landing zone at aircraft was inoperative prior to and at a 2013 highway crash has agreed to a set- Bellows Air Force Base in Waimanalo the time the subject aircraft departed tlement in U.S. District Court to resolve (Oahu) Hawaii when it crashed. The North Carolina. The ATP Defendants her wrongful death lawsuit. Amy

JereBeasleyReport.com 21 Cunniff, the widow of Trooper David Applicants seeking a “Class B” CDL (for chased with anything other than poor- Cunniff, had filed suit against the Cana- the operation of a heavy straight truck rated headlights. A vehicle’s price tag is dian truck driver who crashed into her such as a dump truck; or a school bus, no guarantee of decent headlights. IIHS husband’s police cruiser. The truck city transit bus or motorcoach) would be found that many of the poor-rated head- driver, Gary Blakley, and his employer, required to obtain a minimum of 15 lights belong to luxury vehicles. David GW McPherson Trucking, were sued in hours of behind-the-wheel training, Zuby, IIHS executive vice president and September 2014. It was alleged Blakley including a minimum of seven hours of chief research officer, said: “negligently, carelessly and recklessly” practice range training. There is no pro- failed to stay in his lane on Dec. 16, 2013, posed minimum number of hours that If you’re having trouble seeing when he unintentionally crashed his driver trainees must spend on the class- behind the wheel at night, it could tractor-trailer into Trooper Cunniff’s room portions of any of the individual very well be your headlights and marked car as the officer stopped a curricula. not your eyes that are to blame. driver speeding on the shoulder of Also under this proposal, mandatory, Government standards for headlights, the highway. comprehensive training would apply to based on laboratory tests, allow huge The truck driver, 67, had been working current CDL holders seeking a license variation in the amount of illumination 16 minutes beyond the 14-hour limit for upgrade or an additional endorsement; that headlights provide in actual on-road truck drivers when he hit the cruiser. and a previously disqualified CDL holder driving. With about half of traffic deaths Cunniff, 35, had been a trooper for nine seeking to reacquire a license. These occurring either in the dark or in dawn years. He died from his injuries in the individuals would be subject to the pro- or dusk conditions, improved headlights crash, leaving behind his wife and their posed entry-level driver training require- have the potential to bring about sub- two young sons. ments and must complete a course of stantial reductions in fatalities, according Blakley pleaded guilty last year to instruction provided by an entity that to the IIHS. criminally negligent homicide and is meets the minimum qualifications for The Institute said recent advances in serving a 3 1/2-year prison sentence. The training providers, covers the curricu- headlight technology make it a good trial judge ordered the record sealed. lum, is listed on FMCSA’s proposed Train- time to focus on the issue as high-inten- There is a second lawsuit against Blakley ing Provider Registry, and submits sity discharge (HID) or LED lamps have and GW McPherson Trucking brought electronically to FMCSA the training cer- replaced halogen ones in many vehicles by Eric Heller, the driver who had been tificate for each individual who com- and curve-adaptive headlights, which pulled over, for his injuries in the crash. pletes the training. swivel according to steering input, are Heller is represented by Joseph Brennan, It is vital that commercial vehicle also becoming more common. IIHS a Queensbury lawyer. Thomas drivers receive the necessary training research has shown the new headlight DiNovo and Scott Iseman, who are from required to safely operate large vehicles. types have advantages, but they don’t Albany, represented the Plaintiff in Safer drivers ensure greater safety on our guarantee good performance. The Insti- this lawsuit. highways and roads. Our firm applauds tute’s headlight rating system doesn’t Source: Timesunion.com any efforts to require entry-level truck favor one lighting technology over the drivers to receive the training necessary other, but simply rewards systems that to safely operate these commercial vehi- produce ample illumination without cles on our nation’s roadways. Unfortu- excessive glare for drivers of oncom- Mandatory Minimum Training Standards For nately, our lawyers are concerned that New Truck Drivers ing vehicles. the proposed rulemaking doesn’t go far Vehicles can be equipped with differ- enough and that it could be even further The U.S. Department of Transporta- ent headlights, so there are a total of 82 watered down during the rulemak- tion’s Federal Motor Carrier Safety headlight ratings for 2016 models even ing process. Administration (FMCSA) recently pro- though there are only 31 vehicles. The Our firm’s lawyers are experienced in posed a set of national prerequisite train- Institute said it is rating every possible handling tractor trailer and commercial ing standards for entry-level commercial headlight combination as it becomes vehicle wreck cases. If you would like truck and bus operators seeking to available from dealers. The Prius v earns more information about trucking cases obtain a commercial driver’s license a good rating when equipped with LED or the issue presented above, contact (CDL). A negotiated rulemaking commit- lights and high-beam assist. To get those Chris Glover at 800-898-2034 or by email tee comprised of FMCSA representatives headlights, consumers must purchase at [email protected]. Chris and a number of stakeholders responded the advanced technology package, is our firm’s lead lawyer in commercial to a Congressional mandate with their which is only available on the highest truck litigation. recommendations in the Notice of Pro- trim level. When equipped with regular posed Rulemaking (NPRM). The next halogen lights and without high-beam phase of the rulemaking will be to seek assist, the Prius v earns a poor rating. public comment. Insurance Safety Institute Finds Most Matthew Brumbelow, an IIHS senior Under this proposal, applicants Headlights Not Bright Enough research engineer, said: seeking a “Class A” CDL (for the opera- tion of a combination tractor-trailer type The Toyota Prius v is the only midsize The Prius v’s LED low beams vehicle weighting 26,001 lbs. or more) car out of 31 evaluated to earn a good should give a driver traveling would be required to obtain a minimum rating in the Insurance Institute for straight at 70 mph enough time to of 30 hours of behind-the-wheel training Highway Safety’s (IIHS) first-ever head- identify an obstacle on the right from an instructional program that light ratings. The best available head- side of the road, where the light is meets FMCSA standards, including a lights on 11 cars earn an acceptable best, and brake to a stop. In con- minimum of 10 hours of operating the rating, while nine only reach a marginal trast, someone with the halogen vehicle on a practice driving range. rating. Ten of the vehicles can’t be pur-

22 BeasleyAllen.com lights would need to drive 20 mph BMW 3 series during a flight were preempted by slower in order to avoid a crash. Chrysler 200 federal law. In that case, it ruled in the Ford Fusion aircraft engine makers’ favor. The panel Among the 44 headlight systems Lincoln MKZ said in the case: earning a poor rating, the halogen lights Subaru Legacy on the BMW 3 series are the worst. A Toyota Camry Recognizing that its grant of driver with those headlights would have partial summary judgment raised to be going 35 mph or slower to stop in Poor novel and complex questions con- time for an obstacle in the travel lane. A Buick Verano cerning the reach of Abdullah and better choice for the same car is an LED Cadillac ATS the scope of preemption in the air- curve-adaptive system with high-beam Chevrolet Malibu lines industry, the district court assist, a combination that rates marginal. Chevrolet Malibu Limited certified the order for immediate Curve-adaptive systems don’t always lead (fleet model) appeal, and we granted interlocu- to better ratings. The Cadillac ATS, Kia Hyundai Sonata tory review. Optima and Mercedes-Benz C-Class all Kia Optima earn poor ratings even when equipped Mercedes-Benz C-Class A decade after the Abdullah decision, with adaptive low and high beams. In Mercedes-Benz CLA the Third Circuit clarified in another the case of the Optima, a big problem is Nissan Altima ruling that the field of airline safety pre- glare. Its curve-adaptive system provides Volkswagen Passat empted by federal law is limited to “in better visibility than its non-adaptive air” operations, according to the opinion. lights, but produces excessive glare for Hopefully this information will prove The suit stems from a 2005 crash of a oncoming vehicles on all five low beam to be helpful. IIHS does a very good job Textron Lycoming engine made in 1969 approaches. and provides extremely valuable infor- and installed in a Cessna 172N that One of the best headlight systems eval- mation to consumers. crashed and killed David Sikkelee shortly uated has none of the new technology. Source: IIHS after he took off from a small North Car- The basic halogen lights on the Honda olina airport, according to the panel. His Accord 4-door earn an acceptable rating, widow, Jill Sikkelee, claims that his plane while an LED system with high-beam lost power and crashed as a result of a Appeals Court Rules That Aviation Act malfunction or defect in the engine’s car- assist available on the Accord earns only Doesn’t Preempt State Liability Law a marginal. IIHS tests headlights after buretor. Specifically, the defect caused raw fuel to leak out of the carburetor dark on a track at the IIHS Vehicle The Third Circuit Court of Appeals into the engine. Research Center. Researchers use a ruled last month that the Federal Avia- Jill Sikkelee first filed suit in 2007 in special device that measures the light tion Act does not preempt state law Pennsylvania federal court against 17 from both low beams and high beams as product liability claims, reversing a companies, asserting state law claims the vehicle is driven on five different lower court’s decision in favor of aircraft including strict liability, breach of war- approaches: traveling straight, a sharp engine manufacturers. The ruling came ranty and negligence. In 2010, the lower left curve, a sharp right curve, a gradual in a widow’s suit alleging that defects in court dismissed the suit, ruling that Sik- left curve and a gradual right curve. It a single-engine plane’s design caused her kelee’s state law claims, premised on also measures glare for oncoming vehi- husband’s fatal crash. In a precedential state law standards of care, fell within cles from low beams in each scenario to decision, a three-judge panel said that the preempted field of airline safety out- make sure it isn’t excessive. The follow- the text and history of the law show no lined in Abdullah. The widow then filed ing will set out IIHS Headlights Rating evidence that Congress intended the FAA an amended complaint, but this time she for 2016 midsize cars and will list the to preempt state law product liability also incorporated allegations of viola- best available headlight system for claims. The panel said that the Pennsyl- tions of numerous FAA regulations. The each model: vania district court faulted in concluding Plaintiff’s claims against Lycoming that an “aircraft type certificate” issued Good Engines, a division of Avco Corp., were by the U.S. Federal Aviation Administra- Toyota Prius v eventually narrowed to defective design tion for the aircraft engine meant that and failure to warn, according to the federal standard of care had been sat- Acceptable the panel. Audi A3 isfied as a matter of law. The panel said: Honda Accord 4-door Source: Law360.com In light of the presumption against Infiniti Q50 preemption, absent clear evidence Lexus ES that Congress intended the mere Lexus IS issuance of a type certificate to XVII. Mazda 6 foreclose all design defect claims, Nissan Maxima ENVIRONMENTAL state tort suits using state stan- S ubaru Outback dards of care may proceed subject (built after Nov. 2015) CONCERNS only to traditional conflict preemp- Volkswagen CC tion principles. Volkswagen Jetta Volvo S60 The lower court had apparently wres- $49 Million National Grid Gas Plant tled with the Third Circuit’s 1999 deci- Cleanup Settlement Marginal sion in Abdullah v. American Airlines, Acura TLX British energy giant National Grid and in which the panel held that state law Audi A4 insurer ACE Ltd. have settled their $49 negligence claims for injuries sustained BMW 2 series million dispute over pollution cleanup at

JereBeasleyReport.com 23 three former gas plants on Long Island, ation costs at eight locations in the state. XVIII. N.Y., on the third day of what was to be a Schneiderman said in a statement: lengthy trial. National Grid unit KeySpan UPDATE ON Gas East and ACE unit Century Indem- Oil spills are costly and dangerous nity Co. settled the dispute over a $31 to our communities. This settle- NURSING HOME million pollution cleanup in Sag Harbor, ment ensures that the state will not LITIGATION a $7.4 million cleanup in Glen Cove, and be forced to foot the bill to clean up a $10.3 million cleanup in Halesite. The hazardous oil spills that must be cleaned up to keep our fam- terms of the settlement are confidential. The Role Of The MDS In Nursing Homes With the settlement, ACE is now fin- ilies safe. ished with fights over five of seven sites Under the agreement, ExxonMobil will Nursing homes that receive Medicare originally at issue. Two were dealt with take over all future remediation activities or Medicaid are required to perform a in a 2014 trial, which KeySpan won, at four of the eight sites where the comprehensive assessment of new resi- three have now settled, with two more, cleanup efforts are ongoing or reimburse dents and then to perform routine or Hempstead and Bay Shore, still pending. the oil spill fund for any additional reme- follow up assessments at set times. These The cleanups were scars of a gaslight era diation expenses that are incurred. The assessments are referred to as Minimum in which many towns made their own spill sites were operated as gas stations, Data Set (MDS) reviews. The Centers for gas from coal. KeySpan was formerly some of which dated back to the 1930s, Medicare and Medicaid describe an MDS Long Island Lighting Co., once the owner Schneiderman’s office said in a state- in this fashion: of many gasworks on the bedroom-com- ment. The spill fund is used to help clean The MDS is a powerful tool for munity island. LILCO has insisted up petroleum spills, compensate spill implementing standardized assess- through almost two decades of litigation victims for financial losses in case the ment and for facilitating care man- that inactive “runoff” liability holding responsible party won’t, and to seek agement in nursing homes (NHs) insurer Century should help pay for the reimbursement from polluters for and non-critical access hospital three cleanups under excess liability pol- cleanup costs. swing beds (SBs). Its content has icies issued by forerunner Cigna in the The fund was set up in 1978 and is implications for residents, families, 1950s and 1960s. financed mainly by fees levied on barrels providers, researchers, and poli- LILCO says that for 18 policy years, of oil imported into the state, as well as cymakers …. from 1953 to 1969, the three long-shut- amounts collected in cost recovery tered plants were quietly leaching tar actions. The fund began paying for reme- into the groundwater. Those count as A number of different people from diation of the oldest of the spill locations varying disciplines may be involved in harms and give rise to coverage, the in 1989. DiNapoli said in a statement: company says. It was contended that MDS reviews. These individuals can include staff members from the adminis- “Century promised to protect KeySpan This settlement transfers the tration, nursing, therapy (physical, occu- against a legal claim that KeySpan caused responsibility of eight oil spill pational and speech), nutrition, damage to property belonging to cleanups from taxpayers to the psycho-social, physiatry, respiratory, and someone else.” Although the coal tar sat spiller, where it belongs. The oil other departments, depending upon the on LILCO property, the groundwater it spill fund is designed to help reason, length, and purpose of an admis- polluted was New York state’s. The protect our families and our com- sion to the nursing home. Most nursing damage occurred during the policy munities from the consequences of homes will designate an MDS coordina- years, as the water leached, Smith said— oil spills, because New Yorkers tor, and that person is most often a regis- even into the 1990s. Century says LILCO shouldn’t have to bear the burden tered nurse. The MDS coordinator is documents reveal inklings of trouble of these costs. related to the sites as early as 1992, but responsible for ensuring that the neces- that LILCO didn’t report the matter to In August, a New Jersey state court sary evaluation is done on each resident Century immediately. Century says this judge approved the state’s $225 million and that follow-up evaluations are prop- negates any coverage. settlement with ExxonMobil for the erly and timely performed. cleanup of pollution from oil refineries An MDS covers a variety of areas of Source: Law360.com in that state. Separately, New Hampshire potential concern, including: cognitive is asking the U.S. Supreme Court to pre- patterns; communication and hearing serve a $236 million trial judg- patterns; vision patterns; physical func- ExxonMobil Agrees To $10.8 Million Oil ment against ExxonMobil in the state’s tioning and structural problems; conti- Spill Settlement In New York long-running case accusing it of ground- nence levels; psychosocial well-being; water contamination. New Hampshire activity pursuit patterns; disease diagno- Exxon Mobil Corp. has agreed to pay won the judgment in 2013 against Exx- ses; other health conditions; oral/nutri- $10.75 million to cover the cost of eight onMobil over its use of the gasoline addi- tional status; oral/dental status; skin oil spill cleanups in New York, state tive methyl tertiary butyl ether, or MTBE. condition; medication use; and treat- Attorney General Eric Schneiderman Around $195 million of the judgment ments and procedures. announced. Schneiderman, along with meant for future cleanups was locked in Among these designated items, the State Comptroller Thomas P. DiNapoli, a trust, but the New Hampshire Supreme staff should evaluate things such as the said that the settlement with Exxon Court reversed that ruling on Oct. 2, medications received and their potential Mobil Corp. and ExxonMobil Oil Corp. ordering the funds be released to effects on the patient, fall risks, mood will reimburse the New York Environ- the state. and depression levels, and family dynam- mental Protection and Spill Compensa- Source: Law360.com ics and support. From this information, tion Fund—with interest—for oil spill nursing homes will utilize the MDS eval- cleanup and petroleum pollution remedi- uations to form care plans and to set

24 BeasleyAllen.com forth a plan to treat and monitor a home is paid more for that resi- Though no class members objected to patient/resident’s well-being and course dent’s care. the fees and costs, several complained of care and treatment while at the The lawyers in our firm have found that the settlement’s distribution plan is nursing home. the MDS forms to be important in the liti- unfair and inadequate, that it dispropor- The MDS reviews occur at least quar- gation process. That’s because they iden- tionately awards damages to certain terly and are a tool used by the nursing tify certain key persons involved in the types of trades, and that it uses flawed homes to ensure that a patient’s status care of a patient; establish important definitions, among other allegations. has not materially changed or that addi- matters such as cognitive abilities of the More than 1,300 class members will get tional needs are not required for proper resident; determine the course of treat- payments of more than $100,000 each care and treatment. This information is ment and any meaningful change in and more than 230 will receive over $1 compiled in a national database and is treatment over time; and indicate million apiece. The judge disagreed with relied upon to determine the levels of whether the MDS review is consistent the objectors, determining: care needed by residents and patients in with reports by nursing and other nursing homes. It is also used for other medical staff. The allocation formula has a rea- purposes, such as to monitor the rate of By the nature of the MDS—that it is sonable, rational basis, was recom- bedsore developments or other compli- government-mandated and created— one mended by experienced and cations among nursing homes. The MDS would believe that the nursing home competent class counsel and does review is a compiled form. staff would strive to adequately report not provide impermissibly favor- The MDS coordinator, and those on patient/resident conditions, changes in able treatment to any segment of the MDS review team, must follow the conditions, and issues that arise. If the the settlement class. form and complete the applicable sec- facility is accurately reporting this infor- The settlement covers anyone who tions. Most of the sections do not call for mation, CMS and State Health Depart- bought credit default swaps from or sold narratives but literally marking the ments should be better able to identify them to the Defendants or any alleged blanks or spaces that apply, compiling problem areas in different facilities by co-conspirator in any transaction scores, and recording the information. comparing problem rates between the covered by the settlement between Jan. Each person involved in the MDS review facilities. Unfortunately, the facilities 1, 2008, and Sept. 25, 2015, and was liti- is required to sign and print their name don’t always report adequately. gated largely by hedge funds, pension to the form indicating which section of For example, a facility that is over- funds, university endowments, small the report they addressed. Over time, reporting medication problems should banks, and other investors who sued as a the MDS review process has evolved be investigated to determine if the facil- group—around 13,000 investors. somewhat. The prior form was MDS 2.0; ity is giving its residents too much medi- the current form used is MDS 3.0. The cations or the medications are too strong. Sources: Law360.com, Washington Post and Bloomberg primary difference between the two is If you need more information, contact that the resident is now more involved in Ben Locklar, a lawyer who handles the process. Nursing Home Litigation for our firm, at From a practical standpoint, the 800-898-2034 or by email at Ben. Life Partners To Pay More Than $1 Billion amount of Medicare or Medicaid benefits [email protected]. To Settle Investor Suits a nursing home may receive is depen- Sources: www.CMS.gov and http://assistedliving. dent upon the MDS outcome, scores and about.com/od/nursinghomes/a/Mds-3-0-What-You- Life Partners Holdings court-appointed codes that are assigned to the patient. Need-To-Know.htm bankruptcy trustee, H. Thomas Moran II, This is referred to as the “daily rate,” has agreed to resolve for more than $1 which is based upon the coding and the billion class action litigation brought on “amount of resources used by residents.” behalf of thousands of investors who In other words, the more needs the resi- XIX. claim they were duped into purchasing dent has, the more the daily rate An Update On bad life insurance settlements with should be. promises of big returns. The settlement, For example, if a resident was admit- Class Action which must be approved by the court, ted for physical strengthening, the resi- Litigation covers legal claims brought on behalf of dent will certainly need physical therapy. more than 20,000 investors and resolves If the resident is having difficult eating, a major hurdle in Life Partners’ quest to getting in and out of bed, gathering her restructure after filing for bankruptcy thoughts, etc., then she may also need $1.86 Billion Settlement Ends CDS Action early last year. The settlement papers, speech therapy (which performs choke/ filed last month in Texas bankruptcy swallow assessments), occupational ther- U.S. District Judge Denise Cote gave court, come weeks after Chapter 11 apies (for assistance with activities of final approval recently to a $1.86 billion trustee Moran said in a report that Life daily living, or ADLs), additional nutri- settlement in a case that alleged Citi- Partners and its former CEO Brian Pardo tional support (for diet modification and group Inc. and others conspired to keep engaged in one of the largest frauds in nutrition), psychosocial assessments new participants from entering the Texas history. (such as a social worker following up to credit default swaps market (the instru- The trustee claims that under Pardo’s ensure the patient’s needs are being ade- ments in question are used as a hedge direction, Life Partners solicited inves- quately met and that those needs are against the possibility of borrower tors to purchase a stake in life insurance being relayed to the nursing staff), or default), keeping the price for trading in policies the company acquired. Life Part- others. As you might guess, the more the swaps artificially high and costing ners, according to the trustee, acquired needs of the resident, the greater the potential class members tens of billions the policies for less than the total value daily rate, which means that the nursing of dollars. of the policies, which mature when a person dies. It will take decades for all of

JereBeasleyReport.com 25 the policies in Life Partners’ portfolio colluded with other businesses to artifi- tember, when announcing a $50 million to mature. cially inflate the prices of urethane settlement with Japanese manufacturer According to Moran, Pardo and Life chemicals, in violation of antitrust laws. Sumitomo Electric Industries Ltd., Partners trumpeted these investments After the judge presiding over multi- lawyers for the end payors said total set- utilizing life expectancy figures that district litigation (MDL) in Kansas certi- tlements for the Plaintiffs’ group had sur- were far shorter than they actually were, fied the class of buyers who purchased passed $200 million. deceiving investors, many of them Dow and other Defendants’ products A Michigan federal judge has approved elderly, who were led to believe they from 1999 to 2004, a number of the cus- a settlement between Mitsubishi, Takata would receive double-digit returns. The tomers, including Sherwin-Williams Co. Corp. and a number of other auto compa- agreement submitted to the court would and Leggett & Platt Inc., opted out of the nies, dismissing three individual consum- provide for the certification of a settle- class action, alleging that the price-fixing ers from the multidistrict litigation ment class in Life Partners’ bankruptcy activity took place from at least 1994 to without prejudice. The terms of the cases for purposes of voting on a Chapter 2004. Leggett & Platt reached a $38 agreement were not disclosed. 11 plan. The settlements would be million settlement with Dow, according Subsequently, a Toyota Camry owner broken into various subclasses, the to documents filed with the U.S. Securi- objected to multimillion-dollar settle- largest of which includes 11,322 ties and Exchange Commission. ments that auto parts companies had investors. Source: Law360.com agreed to with end payors in multidis- The total value of the settlement for trict litigation of an alleged price-fixing class members is currently estimated at scheme. The owner claimed the settle- $1,078,582,000. The settlement would ments invite “minitrials” and fraudu- also cap fees for Plaintiffs’ lawyers at $33 XX. lent claims. million. The present value of the fees, Last month’s filings by the end payors which would be paid out over time, is THE CONSUMER and the auto dealers said Mitsubishi’s $5,219,043 and must be approved by the CORNER alleged cooperation under the terms of bankruptcy court. the proposed settlement will help them Life Partners filed for bankruptcy in litigate their claims against the remain- 2015, after a $47 million jury verdict ing Defendants. It was stated in the filing Mitsubishi To Pay $84 Million In Parts obtained by the SEC. At the time of Life with the court: Antitrust MDL Partners’ bankruptcy, $1.4 billion in investor funds were at risk, according to The [end payors and auto dealers] Mitsubishi Electric Corp. will pay believe that this cooperation will the trustee. In September, Moran sued $84.4 million to settle claims by car Pardo for more than $40 million in show that one of the nonsettling buyers and auto dealers in multidistrict defendants—the largest conspira- damages over money he transferred to litigation (MDL) accusing the company of himself and his family. Pardo served as tor in these cases—withheld criti- conspiring with others to fix prices on cal evidence from the DOJ Life Partners’ CEO and chairman until auto parts. Mitsubishi will pay $64.23 early 2015. [Department of Justice], this court million to the end payors and $20.2 and the [plaintiffs] in this Source: Law360.com million to the auto dealers to resolve litigation. their claims that it conspired to allocate the supply of auto parts and sell them at The automobile dealer Plaintiffs are Dow To Pay $400 Million To Settle Opt-Out noncompetitive prices in the U.S. and represented by interim liaison counsel Urethane Price-Fix Claims elsewhere, according to motions for pre- Gerard V. Mantese of Mantese Honigman liminary approval of the proposed PC and interim co-lead counsel Jonathan Dow Chemical Co. has agreed to pay settlements. W. Cuneo, Joel Davidow and Victoria $400 million to settle antitrust claims by The MDL against manufacturers, mar- Romanenko of Cuneo Gilbert & Laduca customers who opted out of a class keters and sellers had been split into sep- LLP, Don Barrett and David McMullan of action accusing the company of fixing arate proceedings for different Barrett Law Group PA, and Shawn M. the price of urethanes. This settlement automotive parts. The parts at issue in Raiter of Larson King LLP. The end-payor came a month after the company agreed the instant suits include alternators, Plaintiffs are represented by E. Powell to drop its U.S. Supreme Court appeal starters, ignition coils, fuel injection Miller and Devon P. Allard of The Miller and pay class members $835 million. The systems, valve timing control devices, Law Firm PC, Steven N. Williams, Adam settlement was reached during a jury wire harness systems, hid ballasts and J. Zapala and Elizabeth Tran of Cotchett trial that began on March 8 in a New electronic powered steering assemblies. Pitre McCarthy LLP, Hollis Salzman, Jersey federal court. As a result of the set- Total payments in the case are now more Bernard Persky and William V. Reiss of tlement, District Judge William J. Martini than $288 million. The litigation will Robins Kaplan LLP, and Marc M. Seltzer, agreed to dismiss the suit with prejudice. continue against the remaining nonset- Steven G. Sklaver, Terrell W. Oxford and The settlement will result in net cash tling Defendants. The cases are part of a Omar Ochoa of Susman Godfrey LLP. payments of $250 million to the sprawling MDL that followed the U.S. The MDL is in the U.S. District Court for Plaintiffs. Department of Justice’s expensive, the Eastern District of Michigan. The company had agreed in February ongoing investigation into the auto parts Source: Law360.com to the $835 million class settlement industry that has yielded more than $2 instead of continuing to seek U.S. billion in fines. Supreme Court review of a $1 billion In April of last year, Hitachi Automo- judgment against it for price-fixing of tive Systems Ltd. had agreed to pay $46.7 urethanes. Like the Plaintiffs in the class million to settle claims that it fixed action, the opt-out plaintiffs allege Dow prices on auto parts in the MDL. In Sep-

26 BeasleyAllen.com Sony To Pay $19.5 Million To Settle Battery controlling a lithium manufactur- ensure that the claims of retired Antitrust Claims ing business. players are not given up in Source: Law360.com exchange for anything less than a Sony Corp. will pay indirect buyers of generous settlement agreement lithium ion batteries $19.5 million to negotiated by very able representa- settle multidistrict litigation (MDL) tives. ... It is a testament to the accusing the electronics giant and others NFL Concussion Deal Affirmed By Third players, researchers, and advocates of fixing battery prices. In a filed motion Circuit Court Of Appeals who have worked to expose the in California federal court seeking pre- true human costs of a sport so The Third Circuit Court of Appeals last liminary approval of the settlement, Sony many love. Though not perfect, month approved an uncapped settlement said it will pay $19.5 million to consum- it is fair. ers who indirectly purchased the batter- between the National Football League ies from January 2000 to May 2011. The (NFL) and several former players over To say this is an imperfect settlement parties also asked U.S. District Judge head injuries. The court rejected a chal- that most likely should have been Yvonne Gonzalez Rogers to certify a lenge from objectors who argued the set- approved is a pretty good assessment. nationwide class of buyers for purposes tlement was lacking for those who This litigation was extremely compli- of the settlement, and also certify a sepa- suffered from the degenerative brain cated and challenging. The lawyers for rate class of governmental entities in condition known as CTE (chronic trau- the plaintiffs—led by Chris Segers—did a California that indirectly bought the matic encephalopathy) and finding that very good job. batteries. the uncapped settlement is fair for the The proposed settlement follows class of retired players. Sony’s deal announced in February to In a unanimous three-judge decision, written by Circuit Judge Thomas L. Walgreens Fined For Misleading Ads In New pay $19 million to direct purchasers York such as the defunct retailer Circuit City. Ambro, the Third Circuit affirmed both the class certification for the former That settlement was approved by Judge Walgreens Co. has agreed to a players suffering from various ailments Rogers in March. The MDL alleges that $500,000 fine and advertising practices tied to repeated head injuries and con- both direct purchasers and indirect pur- “reforms” as part of a settlement with the cussions and affirmed the uncapped set- chasers—consumers and resellers—paid New York Attorney General’s office. The tlement reached between the league and higher prices as a result of an alleged Attorney General found the national class representatives Kevin Turner and price-fixing conspiracy involving Sony, drugstore chain and subsidiary Duane Shawn Wooden. The decision comes LG Chem America, Toshiba Corp., NEC Reade Inc. had regularly overcharged after several groups of players and indi- Corp. and other makers of rechargeable customers through misleading advertis- viduals opposed the agreement, arguing lithium ion batteries, which are widely ing. In a statement, New York Attorney that the settlement erred by extinguish- used in laptop computers and other elec- General Eric T. Schneiderman said an ing potential claims from players diag- tronic devices. Under terms of the new undercover investigation by his office nosed with chronic traumatic settlement, Sony is required to cooperate showed Walgreens and Duane Reade, encephalopathy, a degenerative brain in the case against the remaining Defen- which together operate about 500 stores disease linked to symptoms ranging from dants. If approved, Sony will become the in the state, would “deceptively induce” memory loss and confusion to progres- first of the Defendants to settle out of the customers to purchase products through sive dementia and that right now can case, which was centralized in Califor- a number of misleading practices. only be diagnosed posthumously. nia in 2014. In addition to publishing print adver- Under the concussion settlement, A hearing on the motion for prelimi- tisements that would not be honored in- former players diagnosed with Parkin- nary approval of the settlement is sched- store, Walgreens and Duane Reade son’s disease or Alzheimer’s disease uled for May 24. In January, the indirect would leave incorrect price tags on could receive as much as $3.5 million and direct purchasers urged Judge shelves to make customers think an item each, while players with amyotrophic Rogers to grant class certification, was being sold for one price, only to be lateral sclerosis could receive as much as arguing that the battery manufacturers’ charged differently at the register, $5 million each. However, while former alleged conspiracy became a “way of according to the Attorney General. players who already have died of CTE life” as they continued to collude on Michael Zucker, a researcher at union will receive $4 million each, the deal prices and production. The separate strategizing firm Change to Win, said in excludes those who pass away after a motions for class certification noted a statement: that Sanyo and LG had both pled guilty cutoff date, leaving those with no other to criminal price-fixing allegations over qualifying conditions nothing. Walgreens has failed to provide the lithium ion batteries brought by the U.S. The Third Circuit said that though staffing and systems needed to Department of Justice (DOJ) and said some will be dissatisfied with the result, accurately price its products. We’ve there is ample evidence of nationwide that is the nature of such settlement seen these deceptive practices in a price fixing that supports class certifica- appeals, noting that the deal will likely number of other states, costing con- tions. Sanyo and LG reached plea agree- provide more than $1 billion to the class sumers and violating the ments with the government in 2013. In of over 20,000 retired players. The public trust. court said: March, Judge Rogers denied Toshiba’s The drugstores also presented items in request to be removed from the MDL, [W]e do not doubt that objectors other misleading ways, as a “smart buy” saying Toshiba may have had a role in the are well-intentioned in making or a “last chance” purchase for example, alleged conspiracy despite no longer thoughtful arguments against cer- “thus implying that the product is avail- tification of the class and approval able at a reduced price only for a limited of this settlement. They aim to time,” according to the Attorney Gener-

JereBeasleyReport.com 27 al’s office. However, these products were CPSC, deaths, injuries, and property Highway Traffic Safety Administration often available at the reduced price for a damage from consumer product inci- (NHTSA). A driver may mistakenly “significant period of time” and some- dents cost the nation more than $1 tril- believe a car is in the “park” position times for nearly a year. Another decep- lion annually. The CPSC is committed to because the affected models contain tive practice the stores used was to imply protecting consumers and families from electronic shift levers that return to the customers would be receiving an imme- products that pose a fire, electrical, same position after each gear adjust- diate cash discount on a purchase, with chemical or mechanical hazard. ment, the statement said. advertisements saying the cost was “like The Commission’s work is to help FCA US, which hadn’t provided a date paying” or “like buying” even though the ensure the safety of consumer products of service availability at press time, said advertised discount would be applied such as toys, cribs, power tools, cigarette it will enhance warnings and “transmis- only to a future purchase. lighters and household chemicals. sion shift strategy” on these models to Walgreens has agreed to change its According to the CPSC, its work contrib- “automatically prevent a vehicle from advertising practices throughout New uted to a decline in the rate of deaths moving, under certain circumstances, York, in addition to the $500,000 fine. and injuries associated with consumer even if the driver fails to select the park The drugstores will no longer promote products over the past 40 years. If you setting.” No known evidence of equip- any product as a “last chance” or “clear- need more information on the CPSC, and ment failure was detected in the cases ance” item if it will remain in-store for an how it operates, you can go to www. that led to the 41 injuries, according to extended time, will remove all shelf tags cpsc.gov. the automaker. with expired offers or pricing within 36 This recall announcement comes on hours of their expiration, will limit the the heels of various other recalls issued stores’ use of “like buying” shelf tags, in recent months by the automaker, and will regularly conduct internal and XXI. including one in February to supply external price check audits throughout RECALLS UPDATE vehicle owners with tire chocks for all the stores. For every store that fails about 441,000 Dodge sedans, which two consecutive external audits, Wal- reportedly caused several injuries when greens will have to pay a $2,500 penalty We are again reporting a large number the jack wasn’t placed in a specific posi- to the state. of safety-related recalls. We have tion during tire changes; and a recall in Source: Law360.com included some of the more significant October of 180,000 vehicles due to a recalls that were issued in April. If more potential fire hazard in Jeep Cherokees information is needed on any of the and a problem with the rear axle of Ram recalls, readers are encouraged to 1500 pickups. Uber Settles Two Class Actions With contact Shanna Malone, the Executive The automaker has also been levied Drivers For Up To $100 Million Editor of the Report. We would also like with huge fines in the past year, includ- ing a $70 million penalty in December by Uber Technologies Inc. has settled two to know if we have missed any safety NHTSA for its admission that it underre- closely watched class actions with its recalls that should have been included in ported key warning data to auto regula- drivers in California and Massachusetts this issue. If so, contact Shanna at tors, such as reports of deaths and for as much as $100 million. The [email protected]. injuries related to its vehicles. Last July, company agreed that the drivers will additionally, Fiat Chrysler US was hit remain classified as independent con- with a $105 million civil penalty by tractors rather than employees. Fiat Chrysler Recalls 1.1 Million Vehicles NHTSA, the largest fine ever issued by The “ride-hailing giant” has faced hurdles Over Rollaway Issue the regulator, for failing to complete 23 as the number of lawsuits challenging its recalls covering more than 11 million business model and employment prac- Fiat Chrysler Automobiles US LLC vehicles—a penalty that included agree- tices has grown. The mounting legal (FCA US) has recalled approximately 1.1 ing to oversight by federal monitor for challenges have attacked a business million mid-size SUVs and full-size cars three years. model that’s given Uber the flexibility it’s worldwide over an issue in which vehi- needed to thrive, while allowing the cles may roll away after the driver has company to dodge paying set wages and exited without fully engaging the “park” employee benefits since it exploded onto function, even though they may believe Hyundai Recalls 173,000 Sonatas To Fix the scene in 2009 and quickly dominated they have done so. The issue—which has Power Steering the on-demand economy, experts led to 41 potentially related injuries to have said. date—includes 811,586 vehicles in the Hyundai has recalled most 2011 Sonatas, its midsize sedan, to fix a glitch Source: Law360.com United States, plus about 52,000 vehicles in Canada, 16,000 vehicles in Mexico that could cause loss of power steering, and nearly 250,000 vehicles outside potentially leading to a crash. Some North America, affecting certain model- 173,000 cars made from Dec. 11, 2009, to A Look At The Role Of The CPSC year 2012 to 2014 Dodge Charger and Oct. 31, 2010 are covered under the Chrysler 300 sedans and model year 2014 recall. Hyundai told the National The U.S. Consumer Product Safety to 2015 Grand Cheep Cherokee SUVs, Highway Traffic Safety Administration Commission (CPSC), an independent FCA US said in a statement. (NHTSA) that an electronic power steer- agency of the U.S. government, is The potential rollaways can occur ing circuit board can become damaged, charged with protecting the public from when a driver leaves a vehicle without resulting in loss of power steering. If that unreasonable risks of injury or death first selecting “park” and the engine is happens, the steering wheel can still be associated with the use of thousands of still running, according to an investiga- turned, but it will take a lot more effort, types of consumer products under the tion by the automaker and the National and could result in a crash. The problem agency’s jurisdiction. According to the

28 BeasleyAllen.com will be fixed by replacing the circuit Mexico as well as several countries in com to determine if your RZR ROVs VIN board, the automaker told NHTSA Latin America and the Middle East, for an number is included in this recall. in a filing. approximate total of 1.04 million. “The The VIN is normally located on the cost of the recall is not expected to driver’s side rear frame rail, above the be significant and is covered within PVT cover. Check your Owner’s Manual Tesla Recalls 2,700 SUVs Over Safety normal and customary warranty if you have any difficulty locating the reserves,” GM said. VIN. VINs are not sequential and not all Concern VINs in the ranges above are included in Tesla Motors recalled 2,700 of its new this recall. To determine if a specific Model X SUVs to fix a latch it said may GM Expands Headlight Recall To 180,504 ROV is included in this recall visit www. Polaris.com and click on “Off-Road Safety allow the third row of seats to snap More Vehicles forward during collisions. The auto- Recalls” under the “Rider Community” maker said it knows of no acci- General Motors (GM) is expanding a heading on the main page of the Polaris dents where the latch malfunctioned, recall of Buicks and Pontiacs with defec- website. The ROVs were sold at Polaris but tests showed the possibility of tive low-beam headlights to include dealers nationwide from July 2012 failure. Until repairs are made, the 180,504 more vehicles, the automaker through April 2016 for between $16,000 company asked drivers to avoid carry- said today. The recall now covers and $26,000. ing passengers in the third row. The all- 493,265 vehicles total. Of the additional The ROVs were manufactured in the electric, falcon-winged Model X, vehicles, 159,584 are being recalled in United States and Mexico and imported which costs $81,200, is Tesla’s latest the U.S. Those are the 2005 Buick and distributed by Polaris. Due to the vehicle. It debuted last fall after delays. LaCrosse and the 2007 Pontiac Grand serious risk of injury, owners and riders At the time, CEO Elon Musk proclaimed Prix. The other 20,920 vehicles are being should stop using these recalled vehicles it “the safest SUV ever.“ The recall is the recalled in Canada. Those vehicles immediately. Repairs will start on April first for the Model X. Futuris supplies include the 2005 Buick Allure—the 22. To schedule a free repair, consumers seat backs to Tesla and will cover the Canadian iteration of the LaCrosse. Over- should call their local Polaris dealer. cost of replacing the defective parts, heating in the electrical center in Contact Polaris at 800-POLARIS or 800- according to Tesla. The automaker dis- affected vehicles causes intermittent or 765-2747 from 8 a.m. to 9 p.m. CT covered the fault before its planned permanent failure of the low-beam head- Monday through Friday and 9 a.m. to 5 launch of the Model X in Europe. Seating lights. The lights can either stop working p.m. CT Saturday and Sunday or online was an obstacle in getting the Model X to as the vehicle is moving or fail to turn on at www.polaris.com and click on “Off- market, but it was the second row altogether, GM spokesman Alan Adler Road Safety Recalls” on the main page of that posed a design problem, according said in an email. There are no injuries or the Polaris website. to Musk. Tesla’s delivery of SUVs has crashes linked to this issue so far, he Source: CPSC been behind schedule, which Musk said. The automaker is working on a per- has blamed on a parts shortage. manent solution, but customers can have the part replaced as a temporary solution YTL International Recalls Drywall Lifts at any GM dealership. The Detroit News Due To Injury Hazard GM Recalls One Million Pickups Over Seat reported on the recall. Belt Problem YTL International, of Cerritos, Calif., has recalled about 17,000 Drywall lifts. General Motors Co. has recalled more Polaris Recalls RZR Recreational Off- The drywall lifts can fail during use than one million Chevrolet Silverado and Highway Vehicles Due To Fire Hazard causing the load of drywall to fall onto GMC Sierra 1500 pickups worldwide the lift operator, posing an injury hazard. over concerns about their seat belts, the The U.S. Consumer Product Safety This recall involves YTL drywall lifts automaker announced Friday. GM said Commission (CPSC) in cooperation with used for lifting sheets of drywall. The that it discovered through warranty data Polaris Industries Inc., of Medina, Minn., metal lifts are red, have three 30 inch that the steel cable that connects the seat announced a recall last month for about legs with casters at the base, horizontal belt to the vehicle can separate over time 133,000 Polaris Model Year 2013-2016 bars at the top to hold the drywall and a as a result of it being repeatedly bent RZR 900 and RZR 1000 recreational off- telescoping post that can extend verti- whenever the driver sits. The automaker highway vehicles (ROVs). The recalled cally to a height of 11 feet using the noted that no crashes, injuries or fatali- ROVs can catch fire while consumers are manual crank. The recalled drywall lifts ties connected to the issue have been driving, posing fire and burn hazards to have a label on the vertical mast stating reported. To fix the issue, GM said that drivers and passengers. Consumers were “PERFORMANCE BUILT,” “MUD BOSS” dealerships will “enlarge the side shield warned to stop using these recreational OR “150 LB. DRYWALL PANEL HOIST.” opening, install a pusher bracket on the vehicles immediately and contact their The company has received two tensioner and if necessary, replace the Polaris dealer for a free repair. Polaris reports of the drywall lifts failing and tensioner assembly.” Approximately agreed to voluntarily suspend sale of all dropping their load. No injuries have 3,000 new vehicles in the U.S. that are recalled vehicles until they are repaired. been reported. still in the possession of dealerships will Polaris has received more than 160 The lifts were sold at Lowe’s, Menards be repaired before being delivered to reports of fires with the recalled RZR and Orgill Inc. stores nationwide from customers. ROVs, resulting in one death of a 15-year- January 2013 through January 2016 for Approximately 900,000 vehicles are old passenger from a rollover that about $250. Consumers should immedi- affected in the United States, although resulted in a fire and 19 reports of inju- ately stop using the recalled drywall lifts GM said that it is also recalling vehicles ries, including first-, second- and third- and contact YTL for a postage paid ship- in other countries, including Canada and degree burns. You can visit www.polaris. ping label to ship them to YTL for a full

JereBeasleyReport.com 29 refund. Contact YTL International toll- Soothing Savanna Cradle ‘n Swing, gov/en/Recalls/2016/Staples-Recalls- free at 888-723-6534 from 9 a.m. to 4:30 CMR40 Sweet Surroundings Cradle ‘n Back-in-Motion-Office-Chairs/ p.m. PT Monday through Friday, or Swing, and CMR43 Sweet Surroundings online at www.ytlinternational.com and Butterfly Friends Cradle ‘n Swing. The click on RECALL for more information. swings have two different swinging Black Diamond Recalls Nylon Runners Due Photos available at http://www.cpsc.gov/ motions—rocking side-to-side, or swing- To Fall Hazard en/Recalls/2016/YTL-International- ing head-to-toe, and six different swing Recalls-Drywall-Lifts/ speeds from low to high. The product Black Diamond Ltd., of Salt Lake City, number is located on the seat under the Utah, has recalled its Nylon Runners. A pad. Fisher-Price has received two nylon runner with a tape splice (two cut Black Diamond Recalls To Inspect reports of a seat peg coming out from ends joined by masking tape) will fail in the seat, causing the seat to fall. No inju- Carabiners Due To Fall Hazard normal use, posing a risk of death or ries have been reported. injury due to a fall. This recall involves About 1.6 million Black Diamond Cara- The swings were sold at buybuyBaby, Black Diamond 18 mm wide nylon biners for Climbing have been recalled Target and other stores nationwide and runners that are 60 cm/24 inch or 120 by Black Diamond Equipment Ltd., of Salt online at Amazon.com and other web- cm/48 inches long that have a tape splice Lake City, Utah. The carabiner can unex- sites from November 2015 through (two cut ends joined by masking tape). pectedly open and allow the rope to March 2016 for about $170. Consumers The nylon runners were sold in red, become detached, posing a risk of injury should immediately stop using the blue, gold, green, gray and purple. “CE or death to climbers from a fall. This recalled cradle swing and contact Fisher- 0333” and 2014 or 2015 are printed on recall involves 16 models of Black Price for revised assembly instructions. the sewn-in label. Diamond brand carabiners with manu- Contact Fisher-Price at 800-432-5437 The runners were sold at Eastern facturing date codes between 4350 and from 9 a.m. to 6 p.m. ET Monday through Mountain Sports, Hansen Mountaineer- 6018. “Black Diamond” or the Black Friday, or online at www.service.mattel. ing, The Gear Coop, Peak Experiences Diamond logo is printed on the front of com and click on Recalls & Safety Alerts Inc., REI and other specialty outdoor the carabiners. The manufacturing date for more information. Photos Available stores nationwide and online at Back- code is printed on the side of the cara- At http://www.cpsc.gov/en/ country.com and BlackDiamond.com biners. All carabiner colors are included Recalls/2016/Fisher-Price-Recalls-Infant- from January 2014 through February in the recall. They were sold individually Cradle-Swings/ 2016 for between $5 and $9. Consumers or as part of a climbing gear set. should immediately stop using the The carabiners were sold by Eastern recalled nylon runners, inspect for the Mountain Sports, The Gear Coop, Staples Recalls Back In Motion Office presence of a tape splice and contact Hansen Mountaineering, REI and other Chairs Due To Fall Hazard Black Diamond for instructions on specialty outdoor stores nationwide and obtaining a free replacement nylon online at Backcountry.com, BlackDia- Staples the Office Superstore LLC, of runner. Contact Black Diamond at 800- mond.com and Bouldering.com from Framingham, Mass., has recalled about 775-5552 from 8 a.m. to 5 p.m. MT December 2014 to January 2016 for 2,000 “Back in Motion” Office Chairs. Monday through Friday or online at between $6 and $15. Consumers should The chair can tip over when leaning http://blackdiamondequipment.com and immediately stop using the recalled cara- back, posing a fall hazard. This recall click on “Recall for Inspection: Nylon biners and contact Black Diamond for involves Staples and Quill brand “Back in Runners” for more information. Consum- instructions on inspecting and returning Motion” office chairs. The black, bonded ers can also email the firm at warranty@ the product for a free replacement. leather chair has a tilt function and a bdel.com. Photos Available At http:// Instructions are also available on the base with wheels. The chairs have SKU # www.cpsc.gov/en/Recalls/2016/Black- firm’s website. Contact Black Diamond at 203439 and item number SBG 24422 Diamond-Recalls-Nylon-Runners/ 800-755-5552 from 8 a.m. to 5 p.m. MT printed on the white label on the under- Monday through Friday or online at side of the seat cushion. A second label, http://blackdiamondequipment.com and also located on the underside of the seat Brunton Outdoors Recalls Battery Packs click on “Recall for Inspection: Carabiner cushion, states “Reg. No. CA31704 (CN)” Due To Fire Hazard & Quickdraws” for more information on and “Made by LF Products PTE LTD.” inspecting the product. Consumers can The chairs were sold at Staples stores Brunton Outdoor Inc., of Louisville, also email the company at warranty@ nationwide and online at Staples.com Colo., has recalled about 1,050 recharge- bdel.com. Photos Available At http:// and Quill.com from January 2014 able battery packs in the U.S. and 40 that www.cpsc.gov/en/Recalls/2016/Black- through January 2016 for about $215. were sold in Canada. The power packs’ Diamond-Recalls-to-Inspect-Carabiners/. Consumers should immediately stop lithium ion polymer batteries can over- using the recalled office chair and heat and catch on fire during charging, contact Staples for a free replacement posing a fire hazard. This recall involves Fisher-Price Recalls Infant Cradle Swings base. Contact Staples toll-free at 844-442- Brunton’s Impel and Impel 2 recharge- 6980 from 8 a.m. to 5 p.m. PT Monday Due To Fall Hazard able, portable battery packs that are used through Friday or online at www.staples. to charge cell phones, tablets, laptops About 34,000 Cradle ‘n Swings have com and click on the Warranty & Recall and other devices. The Impel battery been recalled. When the seat peg is not link under the Customer Service tab at came in a rubberized shell in dark gray fully engaged the seat can fall unexpect- the bottom of the page for more informa- with orange or blue and the Impel 2 in edly, posing a risk of injury to the child. tion. Consumers can also register for the light gray with black trim. The battery This recall includes three models of the recall at www.officechairrecall.com. packs can be plugged into an A/C wall Fisher-Price cradle swings: CHM84 Photos Available At http://www.cpsc. outlet, a 12-volt car charger or an attach-

30 BeasleyAllen.com able solar panel for recharging. They The batteries were sold at Office upon receipt of the returned fan heaters. measure about 7.5 inches long by 7 Depot, Staples and other electronics Contact CE North America toll-free at inches wide by 1 inch thick. The lithium stores nationwide, and online at Toshiba- 844-645-3208 from 8:30 a.m.to 5:30 p.m. ion polymer battery packs have 16, and direct.com and other websites from June ET Monday through Friday, email at pro- 19 volt outputs and a USB port. The 2011 through January 2016 for between [email protected] or online at Impel model also has a 12-volt output. $500 and $1,000 for the laptop and www.cemglobal.com and click on the Brunton is embossed on the top of the between $70 and $130 for the battery “Product Recall” link at the bottom of battery pack, along with the power pack. Consumers should immediately go the page for more information. Photos button and five LED lights. The company to the company’s website and click on Available At http://www.cpsc.gov/en/ has received two reports of battery the battery pack utility link in the first Recalls/2016/CE-North-America- packs overheating and catching on fire; shadowed box on the page. Consumers Expands-Recall-of-Fan-Heaters/ with one incident resulting in about can also perform a manual check using $25,000 of property damage and another the laptop and battery pack’s model, part one in a garage burning down with prop- and serial numbers. If it is part of the Coleman Recalls Flashlights Due To Fire erty and smoke damage to the adjacent recall, consumers should power off the Hazard residence. No injuries have laptop, remove the battery and follow been reported. the instructions to obtain a free replace- About 8,500 Coleman® CTAC Lithium- The lights were sold by Adorama, ment battery pack. Until a replacement Ion Flashlights have been recalled by Austin Canoe & Kayak, Moontrail, REI, battery pack is received, consumers Kaper Industrial LTD, of Hong Kong, The Clymb and other outdoor equipment should use the laptop by plugging into China. The lithium-ion batteries can retailers nationwide and online at www. AC power only. Toshiba America Infor- overheat, posing a fire hazard to consum- amazon.com, www.backcountry.com, mation Systems Inc. toll-free at 866-224- ers. The recall involves three models of www.bhphotovideo.com, www.forestry- 1346 any day between 5 a.m. and 11 p.m. Coleman® CTAC Lithium-Ion Flashlights. suppliers.com, and www.opticsplanet. PT, online at http://go.toshiba.com/ Models include CTAC20 (model com from February 2011 through May battery or at www.us.toshiba.com and 2000013874), CTAC40 (model 2015 for about $300. Consumers should click on “Consumer Notices” under the 2000013873) and CTAC60 (model immediately stop using the recalled Support heading at the bottom of the 2000013872). The flashlights are black, power packs and contact Brunton for page. Photos Available At http://www. with “Coleman” printed in white along instructions on how to return the cpsc.gov/en/Recalls/2016/Toshiba- the handle and have the model number product for a full refund. Contact Recalls-Laptop-Computer-Battery-Packs/ in white print on the upper portion of Brunton Outdoor at 800-443-4871 from the handle next to the light. The flash- 10 a.m. to 7 p.m. ET Monday through lights are 6.5 inches long. The lithium- Friday or online at www.brunton.com CE North America Expands Recall Of Fan ion batteries inside the flashlights are and click on Impel Charger Product Heaters Due To Fire Hazard red with the Coleman logo printed in Recall the top or bottom of the page for white on the battery. Coleman has more information. Photos Available At CE North America LLC, of Miami, Fla., received two reports of the flashlight http://www.cpsc.gov/en/Recalls/2016/ has recalled about 8k,500 KUL fan batteries overheating, catching fire and Brunton-Outdoors-Recalls-Battery-Packs/ heaters. This is in addition to about causing minor property damage. No inju- 28,000 that were recalled in February ries have been reported. 2016. The fan heaters can overheat, The flashlights were sold at Academy Toshiba Recalls Laptop Computer Battery posing a fire hazard. This recall involves Sports + Outdoors, Green Supply, Sports- Packs Due To Burn And Fire Hazards KUL small, white portable fan heaters. man’s Supply Company and sporting The KUL logo is printed on the front goods stores nationwide and online at About 91,000 Panasonic battery packs bottom of the heaters next to the power www.coleman.com and www.amazon. used in Toshiba laptop computers have dial. The fan heater measures about 9 com from January 2014 through August been recalled by Toshiba America Infor- inches long by 5 inches wide by 10.5 2015 for between $65 and $75. Consum- mation Systems Inc., of Irvine, Calif. The inches tall. The fans weigh about two ers should immediately stop using the lithium-ion battery packs can overheat, pounds. An adhesive label is on the recalled flashlights and contact Coleman posing burn and fire hazards to consum- bottom of the heater with model number for instructions on returning the flash- ers. This recall involves Panasonic lith- “KU39221” and “Date: 0715” in the lower lights for a full refund. Contact Coleman ium-ion battery packs installed in 39 right-hand corner. KUL black units were at 800-835-3278 from 7 a.m. to 5 p.m. CT models of Toshiba Portege, Satellite, and involved in the previous recall. CE North Monday through Friday, email at consum- Tecra laptops. The battery packs were America has received one consumer [email protected] or online at also sold separately and also installed by report of the fan heaters overheating and www.coleman.com and click on “Safety Toshiba as part of a repair. Battery packs catching on fire. No injuries or property Information” under the “Customer included in this recall have part numbers damage have been reported. Support” tab at the bottom of the page that begin with G71C (G71C*******). Part The heaters were sold exclusively at and then click on “CTAC Lithium-Ion numbers are printed on the battery pack. H-E-B grocery stores in Texas from Sep- Flashlight Recall” for more information. A complete list of battery pack part tember 2015 through December 2015 for Photos Available At http://www.cpsc. numbers included in this recall can be about $15. Consumers should immedi- gov/en/Recalls/2016/Coleman-Recalls- found on the company’s website at ately stop using the recalled fan heaters Flashlights/ http://go.toshiba.com/battery. The and contact CE North America for company has received four reports of the instructions on returning the recalled battery packs overheating and melting. heaters with a prepaid shipping label. No injuries have been reported. The company will issue a refund check

JereBeasleyReport.com 31 GolfBuddy GPS Bands Recalled By Deca and ILI-S-E3 Gamewell-FCI fire alarm Photos Available At http://www.cpsc. International Due To Burn Hazard panels in commercial buildings. This gov/en/Recalls/2016/Ivanka-Trump- issue is limited to a specific configura- Scarves-Recalled-by-GBG-Accesso- About 3,000 GolfBuddy golf GPS tion of Signaling Line Circuit (SLC) ries-Group/ bands have been recalled by Deca Inter- devices. To occur, the SLC must include national Corp., dba GolfBuddy, of La at least two of the following detectors in Palma, Calif. The band charging ports any combination: Acclimate, 4-Warn, Rainbow Play Systems Reannounces Recall can produce an electrical charge to Photo/CO and iFAAST. The issue would Of Plastic Yellow Trapeze Rings exposed skin, posing a burn hazard to occur only if the detectors are addressed consumers. This recall involves Golf- within the same FlashScan polling group. Nylacarb Corporation, of Vero Beach, Buddy BB5 golf GPS LED bands. The Detectors installed in a different combi- Fla. and Child Works, of Carollton, Ga. band is a wearable GPS unit that operates nation are not affected. No incidents or have recalled about 121,000 Plastic as a pedometer, distance monitor and injuries have been reported. Trapeze rings. The rings can unexpect- watch and comes preloaded with golf The panels were sold at Authorized edly crack or break during use, posing a course information. It is made of plastic distributors from May 2015 through fall hazard to children. This recall with a stainless steel casing, has a LED August 2015 for about $800. Consumers involves only the yellow plastic trapeze display screen and a two-pronged con- should immediately contact the distribu- rings. They are triangular in shape with nector at the end for closure. The display tor to obtain the free repair, a firmware rounded sides and have a loop at the top. screen is flush with the top side of the upgrade. Contact Gamewell-FCI at 800- They measure about 8½ inches high by band and has four buttons on the perim- 274-4324 from 7 a.m. to 7 p.m. ET 6½ inches wide. The yellow rings come eter of the band. The wristband is about Monday through Friday or online at as a pair and were connected to a trapeze one inch wide and comes in black with www.gamewell-fci.com and click on bar. They were sold either as a separate interchangeable wristbands in large and “Safety Recall” for more information. component or as an attachment on the small sizes and in the colors lime, navy Photos Available At http://www.cpsc. following Rainbow®-branded residential and orange. GolfBuddy is molded on the gov/en/Recalls/2016/Gamewell-FCI- wooden playsets: All-American, Back- outer part of the band. The model BB5 is Recalls-Fire-Alarm-Panels/ yard Circus, Carnival, Fiesta, King Kong, on the back of the recalled unit below Monster, Sunray, Sunshine and Rainbow. the charging port. Recalled units do not All of these playsets have an aluminum have a yellow round sticker on the front Ivanka Trump Scarves Recalled By GBG plate located on the front of the wooden and on the packaging. The firm has Accessories Group Due To Violation Of swing beam with the following name received two reports of consumers Federal Flammability Standard stamped on it, “Playgrounds America,” being burned. “Rainbow Play Systems Inc.,” or “Sunray The bands were sold at PGA Tour About 20,000 Women’s Scarves have Premium Playgrounds.” Rainbow has Superstore, The Golfer’s Warehouse, been recalled by GBG Accessories Group received more than 100 reports of the Worldwide Golf Shops and other autho- (formerly LF Accessories Group, LLC), of rings cracking or breaking, including 15 rized golf dealers nationwide and online New York. The scarves do not meet the with reports of injuries consisting of at www.amazon.com and www.golfbud- federal flammability standards for cloth- bumps, bruises, lacerations, concussion dygobal.com from April 2015 through ing textiles, posing a burn risk. This and one broken finger. January 2016 for about $250. Consumers recall involves two styles of Ivanka The rings were Sold at Rainbow should immediately stop using the Trump-branded scarves, Beach Wave, in dealers nationwide from January 2007 recalled golf wristbands and contact blue, coral and yellow; and Brushstroke through December 2011 and at several GolfBuddy for instructions on how to Oblong, in blue, red, neutral and green. mass merchandisers including Sam’s update the unit with the latest firmware, Both scarves are 76 inches long by 24 Club, Toys R Us and Walmart from also available in the company’s website. inches wide. Scarves are 100 percent January 2009 through December 2009. Contact GolfBuddy toll-free at 888-251- rayon with a machine-rolled hem. A The playsets retailed for between $900 6058 from 8:30 a.m. to 5:30 p.m. PT black label with “IVANKA TRUMP” and $10,000. Consumers should immedi- Monday through Friday or online at embroidered in silver is sewn on the ately stop children from using the www.golfbuddyglobal.com and click on edge of the scarves. recalled rings, contact Rainbow for ring Recall Information link at the bottom of The scarves were sold at Century 21, removal instructions, then remove the the homepage for more information. Lord & Taylor, Marshalls, TJ Maxx and rings from the playset and receive a $10 Photos Available at http://www.cpsc. Stein Mart retail stores nationwide, and gift card. Contact Rainbow Play Systems gov/en/Recalls/2016/GolfBuddy-GPS- online at amazon.com and loehmanns. toll-free at 888-201-1570 from 8 a.m. to 5 Bands-Recalled-by-Deca-International/ com from October 2014 through January p.m. CT Monday through Friday or 2016 for between $12 and $68. Consum- online at www.rainbowplay.com and ers should immediately stop using the click on the Recall tab located on the top Gamewell-FCI Recalls Fire Alarm Panels recalled scarves and return them to the menu bar for more information. Photos place where purchased for a full refund. Available at http://www.cpsc.gov/en/ About 1,000 Gamewell-FCI fire alarm Consumers who purchased the scarves Recalls/2016/Rainbow-Play-Systems- panels (ILI-MB-E3 and ILI-S-E3) have online will be contacted directly by Recalls-Plastic-Yellow-Trapeze-Rings/ been recalled by Gamewell-FCI of North- online retailers with return instructions. ford, Conn. When configured in a Contact GBG Accessories Group toll-free certain way, the panels can become non- at 888-771-9047 between 9 a.m. and 5 responsive and connected detectors in p.m. ET Monday through Friday or via the area can fail to detect and respond to email at IvankaTrumpRecall@global- an alarm. This recall is for the ILI-MB-E3 brandsgroup.com for more information.

32 BeasleyAllen.com Boston Scientific Recalls Device After Fiskars Brands Inc., of Madison, Wis. The Academy Sports + Outdoors has Pieces Broke Off In Patients lopper handles can break when attempt- received one report of small metal shav- ing to cut branches, posing a risk of ings coming out of the product on first Boston Scientific, the state’s largest serious injury and laceration. This recall use. No injuries have been reported. The medical device company, has launched a involves Fiskars Titanium Bypass Lopper injectors were sold exclusively at: product recall following reports that shears with model number 6954. The Academy Sports + Outdoors stores parts of its medical device broke off and lopper shears have 32-inch dark orange nationwide and online at www.academy. lodged within some patients. Marlbor- steel handles and black rubber grips with com from September 2015 through ough-based Boston Scientific said the a gray strip. Plastic gears connected to December 2015 for about $20. Consum- recall of the Chariot Guiding Sheath is the pruning blades allow the consumers ers should immediately stop using the voluntary and was enacted three weeks to open and close the pruning blades by recalled marinade injectors and return ago, on Nov. 19. The Food and Drug moving the handles. “FISKARS” is them to any Academy Sports + Outdoors Administration (FDA) has classified the printed on one handle and product iden- store for a full refund or a free replace- move as a Class 1 recall, the most serious tification information, including model ment marinade injector. Contact type which can lead to death or serious number 6954, is printed on a label on the Academy Sports + Outdoors toll-free at injury. The device is a long, hollow cath- opposite handle above the barcode. The 888-922-2336 from 7 a.m. to 12 a.m. CT, eter through which even thinner devices company has received a total of 33 [email protected], or can be inserted in medical procedures to reports of incidents, of which 10 online at www.academy.com and click diagnose or treat blockages of the blood occurred after the October 2014 recall on the “Product Recall Info” link under vessels or other conditions. announcement. The reports include “Stores + Services” for more information. The company says it has received 14 pinched fingers, bruising and injuries to Photos Available At http://www.cpsc. complaints in which the catheter’s shaft the head and face, some gov/en/Recalls/2016/Academy-Sports- separated from the insertion device. required stitches. Outdoors-Recalls-Marinade-Injectors/ Four of those separations occurred on They were sold exclusively at Home the end that’s inserted into the patient’s Depot stores nationwide and online at body. No permanent injuries or patient HomeDepot.com from May 2011 through deaths have been reported, the June 2014 for about $40. Consumers Rollerblade USA Recalls Helmets Due To company said. should immediately stop using the Head Injury Hazard To date, there have been 21 reports recalled lopper shears and contact regarding the company’s Chariot Fiskars to receive a free replacement Rollerblade USA, of West Lebanon, device on the FDA’s website concerning lopper. Contact Fiskars toll-free at 855- N.H., has recalled about 500 Rollerblade adverse events related to medical devices. 544-0151 anytime or visit Fiskars’ website inline skating helmets. The helmet’s Those results span from June 15 (shortly at www2.fiskars.com and click on plastic shell can crack where the straps after the product was approved for use “Product Notifications” for more attach, causing the helmet to shift and by the FDA on June 9) through Nov. 24. information. move on the wearer’s head. This can The company said in the statement: result in a head injury hazard to the user The most severe outcome of this in the event of a fall. This recall involves failure is embolism of device frag- Academy Sports + Outdoors Recalls black Rollerblade brand Maxxum ments, which could lead to obstruc- Marinade Injectors Due To Ingestion Hazard helmets. “Rollerblade” is printed on the tion of blood flow or additional side of the helmet, a white inline skate intervention to remove a device Academy, Ltd. d/b/a Academy Sports + logo is printed on the back of the helmet fragment. Obstruction of blood Outdoors, of Katy, Texas, has recalled and a label on the inside of the helmet ® flow can result in injuries such as about 3,500 Outdoor Gourmet mari- contains the model number “YJ-219” and stroke, kidney damage or damage nade injectors. The injectors can have production date of October 2014 or to the intestines or limbs. small metal shavings left inside during earlier. The SKU number 06520210100 is the manufacturing process. The metal printed on the helmet’s box. The recall appears to be the second shavings can be deposited into the mari- The helmets were sold at Inline Ware- this year for the company, after none for nade during use and ingested by consum- house, Paragon Athletic Goods, Summit all of last year, according to the FDA’s list ers. This recall involves Outdoor Sports and other sporting goods stores of recalls. The company recalled its Gourmet® marinade injectors. They are and Rollerblade helmet dealers nation- RotaWire Elite Guidewire device in stainless steel, measure about six inches wide and online at www.amazon.com, March. It’s used to open narrowed arter- in length and have three metal rings at www.inlineskates.com, www. ies. Parts of the wire can break off inside the top. “Outdoor Gourmet,” “6-inch inlinewarehouse.com and www.roller- the patient. That recall was also classi- stainless steel injector,” style number blade.com from November 2014 through fied at Class 1, and resulted in one BGOG0047, UPC 400216227091 and the January 2016 for about $60. Consumers patient death following a medical inter- following date codes are printed on the should immediately stop using the vention to remove the broken wire, product packaging. recalled helmets and contact the according to the FDA. company for instructions on receiving a Date Codes for Marinade Injectors full refund. Contact Rollerblade USA at 800-232-7655 from 8:30 a.m. to 5 p.m. ET Monday through Friday, email at RCS@ Reannouncement Of Fiskars Recall Of 06/15- 06/15- 06/15- Rollerblade.com or online at www.roller- Bypass Lopper Shears 2549000 2549319 2549203 blade.com and click on Product About 277,000 Fiskars® 32-Inch Bypass Recall for more information. Photos Lopper Shears have been recalled by Available At http://www.cpsc.gov/en/

JereBeasleyReport.com 33 Recalls/2016/Rollerblade-USA- MedWatch Adverse Event Reporting Toy Company of Minneapolis. The round Recalls-Helmets/ program either online, by regular mail or plastic beads can break, posing a by fax. Complete and submit the report choking hazard. Busy Loops table top Online: www.fda.gov/medwatch/report. toys have orange, green, blue and purple Fetch™ 2 Aspiration Catheter Recalled htm\ Regular Mail or Fax: Download plastic tubing with plastic beads form www.fda.gov/MedWatch/getforms. threaded on the tubing that can slide up Boston Scientific has initiated a global, htm or call 800-332-1088 to request a and down. The tubes sit on a blue plastic voluntary recall of all models of its reporting form, then complete and base with an orange plastic suction cup. Fetch™ 2 Aspiration Catheter, a throm- return to the address on the pre- The toy is about 4.5” W x 4.5” L x 7” H. bectomy catheter used during proce- addressed form, or submit by fax to 800- The model number 700470 and lot code dures to remove small blood clots from FDA-0178. Health care professionals and FH are printed on the bottom of the blue coronary arteries. The Fetch 2 catheters consumers may report serious adverse base. The firm has received two reports were recalled on March 22, 2016, due to events or product quality problems with of beads breaking off the toy. No injuries complaints of shaft breakage. The U.S. the use of this product to Boston Scien- have been reported. Food and Drug Administration (FDA) tific by calling 800-811-3211 and to the The toys were sold at BuyBuy Baby and classified the action as a Class 1 recall. FDA’s MedWatch Adverse Event Report- other toy stores nationwide, and online This recall designation means that the ing program either online, by regular at Amazon.com and Kohls.com from Sep- use of the device exposes the patient to a mail, fax or phone. tember 2015 through January 2016 for reasonable chance of a serious adverse about $15. Consumers should immedi- health consequence or death. There have ately stop using the recalled toy and been no reports of patient injury or IKEA Recalls Children’s Bat Cape return it to the store where it was pur- chased or contact Manhattan Toy for a death, and there is no risk to patients Costumes Due To Strangulation Hazard who previously underwent a thrombec- full refund. Contact Manhattan Toy tomy procedure with the Fetch 2 cathe- About 11,000 Children’s LATTJO Bat Company at 800-541-1345 from 9 a.m. to ter. All reports of shaft breakage Cape Costumes have been recalled by 5 p.m. CT Monday through Friday or happened during the procedure, and the IKEA North America Services LLC, of online at www.manhattantoy.com and broken section was either removed while Conshohocken, Pa. The fabric hook and click on Recalls for more information. still partially attached to the catheter loop fastener at the neck of the bat cape Photos Available At http://www.cpsc. shaft or retrieved with a snare, without can fail to detach readily during use, gov/en/Recalls/2016/Manhattan-Toy- further patient complications. While posing a strangulation hazard to chil- Recalls-Table-Top-Toys/ unreported, the most severe potential dren. This recall involves IKEA children’s outcome of this breakage is embolism of bat cape costumes. The capes are black device fragments, which could lead to with gray stripes, 100 percent polyester, Miniland Educational Recalls Moogy Plush obstruction of blood flow or additional measure 30 inches long by 57 inches Toy Due To Choking Hazard intervention to remove a device frag- wide and have a fabric hook and loop fas- ment surgically. tener closure at the neck. IKEA, LATTJO About 2,000 Moogy plush toys have As part of the recall, all affected health and numbers 60311650 and 18937 are been recalled by Miniland Educational care facilities were advised to discon- printed on a white label sewn into the Corp., of Miami, Fla. The red button on tinue use of all Fetch 2 catheters immedi- seam of the cape. IKEA has received the Moogy plush toy’s left pocket can ately and return unused product to three reports outside of the United States detach, posing a choking hazard to Boston Scientific. Because Boston Scien- of the fabric hook and loop fastener at young children. This recall involves tific acquired the Fetch 2 catheter the neck of the costume failing to detach Moogy plush fastening toys for toddlers product line from Bayer Medical Care readily and scratching children’s necks. between 12 and 36 months of age. The Inc., all recalled inventory is packaged The capes were sold exclusively at: toy has zippers, buttons, buckles and and labeled as Bayer product. This device IKEA stores nationwide and online at laces. The Moogy toy has a blue and was manufactured between June 11, www.ikea-usa.com from November 2015 green face, red ears, a blue jacket with a 2014, and Feb. 19, 2016. There are cur- through February 2016 for about $13. red zipper, pink/red striped pants and rently 21,155 devices on the market Consumers should immediately take the pink and orange shoes with polka dots. subject to this recall. recalled bat capes away from children Moogy measures about 18 ½ inches tall. and return the capes to any IKEA store “Miniland,” item number R.96295 and lot Fetch 2 Catheter UPNs for a full refund. Contact IKEA toll-free at number 0115 1402813 085 are printed on FETCH2 US 109400-001 888-966-4532 anytime or online at www. a white tag sewn into the toy’s pants. ikea-usa.com and click on Press Room at Miniland has received one report of the FETCH2 OUS 109400-002 the bottom of the page, then Product button on the pocket falling off when a FETCH2 Canada 109400-003 Recalls for more information. Photos baby was playing with the toy. Available At http://www.cpsc.gov/en/ The toys were sold at specialty toy FETCH2 Japan 109400-004 Recalls/2016/IKEA-Recalls-Childrens- stores nationwide and online at Amazon. FETCH2 EU 109400-005 Bat-Cape-Costumes/ com, Gilt.com, HighlightsforChildren. com, ToysRUs.com and Zulily.com from Physicians and health care facilities July 2015 through February 2016 for can direct questions to their Boston Sci- Manhattan Toy Recalls Table Top Toys Due about $33. Consumers should immedi- entific representative or call 1-800-811- ately take the recall toy away from chil- To Choking Hazard 3211. Adverse reactions or quality dren and contact Miniland Educational problems experienced with the use of About 2,100 Busy Loops table top toys for instructions on cutting off the button this product may be reported to the FDA have been recalled by The Manhattan to remove the hazard in order to receive

34 BeasleyAllen.com a full refund. Contact Miniland Educa- XXII. and Logan. They are members of Christ tional toll-free at 866-201-9069 from 8 Community Church. LaBarron is a tal- a.m. to 5 p.m. ET Monday through Friday, FIRM ACTIVITIES ented lawyer who has been responsible or online at www.minilandeducation- for helping lots of folks who badly alusa.com and click on “Products,” then needed help. He is extremely compas- on “Safety Information” in the dropdown LABARRON N. BOONE sionate about his clients and their cases. menu for more information. Photos Avail- LaBarron Boone, who joined the firm LaBarron has been a very important part able At http://www.cpsc.gov/en/ in 1995, has successfully handled a tre- of our firm’s success. We are blessed to Recalls/2016/Miniland-Educational- mendous number of individual cases have him in our firm. Recalls-Moogy-Plush-Toys/ involving defective products. His work in the Personal Injury/Products Liability LARRY A. GOLSTON Section has been primarily dealing with Larry Golston, a lawyer in the firm’s automobile cases involving defective Consumer Fraud and Commercial Litiga- Flying Tiger Copenhagen Recalls Wooden products. LaBarron handled a wide tion Section, is a native of Birmingham, Toys Due To Choking Hazard variety of cases involving crashworthi- Ala. Larry graduated from the University ness, seatbelt restraint systems, inadver- of Alabama in 1995 where he obtained About 1,000 Wooden Toy Blocks and tent airbag deployments, tractor rollover his Bachelor of Arts degree in Criminal Giraffes have been recalled by Flying litigation, and tire tread separation. One Justice. While attending college, Larry Tiger Copenhagen of New York. Parts of of LaBarron’s most notable verdicts was a was initiated into Alpha Phi Alpha Frater- the wooden toys can become detached, multi-million-dollar verdict in the case of nity, Inc. Larry is a graduate of the Uni- resulting in small pieces that can pose a Carolyne Thorne v. Wal-Mart Stores versity of Alabama School of Law. He choking hazard to young children. This tried in Montgomery Co. This trial exten- served as a judicial law clerk for the recall involves Flying Tiger Copenhagen sive coverage in the Wall Street Journal Circuit Judge James P. Smith of the 23rd wooden blocks and wooden giraffe toys. and other national media outlets. Judicial Circuit in Madison County, Ala. The Twist & Lock blocks were sold in a LaBarron received the 2003 University Larry also served as a law clerk for the combination of blue, green and yellow of Alabama Black Law Student Associa- Sue Bell Cobb, when she was on the and red, pink and yellow. Item number tion Alumni Honoree Award. He was the Alabama Court of Criminal Appeals. 1701354 is printed on the packaging for recipient of the “Chairman’s Award of Larry joined Beasley Allen in 2000 and the blocks. The Twist & Lock giraffe toys Excellence” presented by Montgomery primarily handles litigation cases involv- were sold in pink and red combination County Democratic Committee. On Sept. ing fraud, employment law, and business and a yellow and orange combination. 22, 2005, LaBarron was the first ever litigation. Currently, his practice is Item number 1701493 is printed on the recipient of the “Hands for Children” focused on whistleblower litigation, packaging for the giraffe. Award, presented to him at the Chil- retaliation, wage & hour litigation, The toy blocks were sold exclusively at dren’s Advocacy Center in Mont- sexual harassment, employment discrim- Flying Tiger Copenhagen in New York gomery, Ala. ination, business fraud and class actions. from November 2015 through December LaBarron serves on the Central Recently, Larry helped, in cooperation 2015 for about $3. Consumers should Alabama Community Foundation Board with the U.S. Department of Justice immediately take the recalled toys from of Trustees (CACF), which is one of the (DOJ), to secure a $30 million settlement young children and return the products largest charitable foundations in the state agreement to resolve whistleblower alle- to Flying Tiger Copenhagen for a full of Alabama, with assets exceeding $27 gations that private contractor U.S. Inves- refund. Contact Flying Tiger Copenha- million. In 2007 LaBarron received tigations Services, Inc. (USIS), formerly gen toll-free at 844-350-0560 from 7:30 Beasley Allen’s Litigator of the Year the Federal Government’s largest pro- a.m. to 5 p.m. ET Monday through Friday Award. In 2009 he was given the Resur- vider of security background checks, vio- or online at www.flyingtiger.com and rection Catholic Mission’s “Truth & lated the False Claims Act (FCA). This click on “Product Recalls” at the bottom Charity Award” for his exemplary and was in a most important and highly sig- of the page. Photos Available at http:// extraordinary support of the nificant case. www.cpsc.gov/en/Recalls/2016/Flying- Mission Center. Larry currently serves on the Board of Tiger-Copenhagen-Recalls-Wooden-Toys/ Prior to deciding on a career in law, Directors for the Montgomery County Once again, there have been a large LaBarron graduated from Auburn Univer- Bar Association and has served as presi- number of recalls since the last issue. sity in Industrial Engineering. That has dent of both the Alabama Lawyers Asso- While we weren’t able to include all of served him well in Product Litigation. He ciation and the Capital City Bar them in this issue, we included those we is involved in many community and Association. He is also a member of the believe to be of the highest importance social activities. He serves on the Cleve- Federal Bar Association. and urgency. If you need more informa- land Avenue YMCA Board of Manage- Larry serves on the Board of Directors tion on any of the recalls listed above, ment, the Resurrection Catholic Church for the Montgomery YMCA-Bell Road visit our firm’s web site at www.Beasley- Board of Trustees, Child Protect Board of Branch and regularly serves as a volun- Allen.com or www.RightingInjustice. Trustees, the Dexter Avenue King Memo- teer head coach for youth football and com. As stated at the outset, we would rial Foundation, and on the board of youth basketball with the YMCA. When also like to know if we have missed any Medical Outreach Ministries. LaBarron not engaged in the busy practice of law, significant recall that involves a safety was selected to serve in 2011 on the Larry also volunteers his time to speak to issue. If so, please let us know. As indi- Alabama State University Presidential high school and grade school students cated, you can contact Shanna Malone at Search Committee, and he must recently about the law, the importance of getting [email protected] for served on the Alabama State University a good post-secondary education, and more recall information or to supply us 2013 Presidential Search Committee. the importance of the judicial branch of with information on recalls. LaBarron is married to the former Lori government. David and they have two children, Micah

JereBeasleyReport.com 35 Larry is married to Danielle Golston sumer Fraud and Commercial Litigation ness of the occupational disease. She cur- and they have a daughter Lauren and a Section. His duties include document rently serves as Communications son Kyle. The Golston family attends review, writing investigatory memoran- Director, overseeing copywriting and Northview Christian Church-Safe Harbor das for lawyers, contacting clients, and content management for the firm’s main in Montgomery, Ala. Larry is a very good, helping draft complaints, motions, and website, beasleyallen.com; the main hard-working lawyer who is dedicated to other necessary legal documents. blog, RightingInjustice.com, and several helping getting his clients obtain justice. Chase received his Bachelors in case-specific and lawyer websites. Wendi We are blessed to have Larry with Science and Education from Delta State also manages the firm’s social media the firm. University. While at Delta State, he was presence, sharing our case news as well on the Student Government Association as lawyer news through channels such as LISA HARRIS as the Governmental Affairs Chairman, Facebook, Google+, YouTube and Lisa Harris has been with Beasley Allen and was the bridge between the students Twitter. She helps to direct other print for 25 years. She has been Executive and the congressional body of Missis- communications efforts for the firm, Director for the Firm since 1998. She is sippi. While there Chase was also such as marketing letters and emails, responsible for the daily operations of inducted into both the Pi Gamma Mu news releases, brochures and the firm, including firm management, International Honor Society for excel- advertisements. firm events, benefits, and human lence is social sciences, as well as Phi Wendi grew up in Montgomery and resources. Prior to that, she worked as a Alpha Theta National Honor Society for graduated from Auburn University Mont- legal assistant to Tom Methvin, before he excellence in history. gomery, where she earned a Bachelor of became Managing Attorney for the firm. Currently, Chris is attending Thomas Arts degree, with a major in English. She Lisa worked with Tom for eight years and Goode Jones School of Law, and will has a background in newspaper, having they tried a good number of Fraud graduate this May. Chase is a senior worked at the Montgomery Advertiser cases together. editor on the Faulkner Law Review, a and the Montgomery Independent; and Lisa attended Auburn University Mont- senior member of the Board of Advo- book publishing. Among her proudest gomery, where she earned a degree in cates, Secretary for the Federalist professional achievements was authoring Business Administration. One of Lisa’s Society, 3L Justice for the Student Honor the coffee-table book Montgomery: At favorite activities is spending time with Court, Faulkner Law Academic Success the Forefront of a New Century, in 1996. her daughter, Haley Henderson, her son- Dean Fellow, a member of Phi Alpha Wendi is a talented writer. in-law, Jordan Henderson, and their Delta Legal Fraternity, and Dean’s List Wendi is married to Eric Lewis, a local daughter, Lillian. Her granddaughter is recipient from 2014-2015 (2L year and 3L veterinarian. The couple have three cats, the apple of Lisa’s eye I am told. Lisa also fall semester, spring is still pending). Ico, Tito and Groucho; and one dog, enjoys traveling, especially to the beach, While in law school Chase has had Reef, and would likely have a larger any water activity, and bowling. Lisa has numerous clerkships and jobs that have menagerie if their house could hold them a tremendous job at Beasley Allen, one helped him further his legal career. all. In her spare time, Wendi enjoys she handles extremely well. She keeps a Chase started his current position with reading and traveling. huge operation going and has things in Beasley Allen in August of 2015 and he is The work Wendi does for our firm is good order. To say that Lisa does an still with us. extremely important. She does excellent excellent job is an understatement. We Chase and his wife, Sarah, were work and her attitude daily is a breath of are extremely blessed to have Lisa in this married on May 16, 2015. Sarah is a fresh air to all around her. We are fortu- very important position with the firm. research director for WSFA News in nate to have Wendi with us. Montgomery. She recently finished her RACHEL ANDRESS business degree at Huntingdon College. JASE SAYRE Rachel Andress has been with the firm Chase and Sarah are expecting their first Jase Sayre, a Law Clerk in the Firm’s for a little over four years. She serves as a child, “Charlie,” on May 17. They also Consumer Fraud and Commercial Litiga- Staff Assistant to Navan Ward in our Mass have Orvis, a 3-year-old Brittany Spaniel. tion Section, has been working with Torts Section. In this position, she assists Chase enjoys hunting, fishing, camping, Beasley Allen since Sept. 11, 2015. He Navan and the legal assistants in order- hiking, kayaking, and playing various will graduate in May 2016 from Thomas ing medical records, talking with clients, sports. He also enjoys woodworking. Goode Jones School of Law at Faulkner meeting case deadlines, reviewing case Chase also enjoys hands-on history, University with his J.D. and LL.M in files, and working on numerous matters and has camped at numerous battlefields Advocacy and Dispute Resolution. Jase relating to the pending cases. such as Shiloh, Fort Morgan, Fort Gains, was elected to Faulkner Law’s Student Rachel has a Bachelor’s Degree in Mar- Blakely Park, and Fort Toulouse. Chase is Bar Association for the 2015-2016 aca- keting from Troy University Montgom- an Ole Miss fan, and Sarah is an LSU demic year, and previously served as the ery. She has a son Clay, who will be 8 fan—a most interesting mix—which has treasurer and class senator. He is a Junior years old on June 27. Rachel says Clay to be quite interesting during football Editor on Law Review, a Dean Fellow in calls himself “The Lego Expert” and that season. When the Rebels and the Tigers the admissions, and competed in the he loves bike riding and playing video play each other, that game will deter- Greg Allen Trial Competition. Jase also games. Rachel enjoys spending time with mine who does the deep spring cleaning serves as the student representative on family, bike riding, crocheting, knitting at the Barber house that year. Chase is a the Faculty Pro Bono, Clinic, and Extern- and baking. Rachel is a very good hard worker and an asset to the firm. We ship Committee. employee who works hard and we are are fortunate to have him with us. During his law school career, in addi- fortunate to have her with us. tion to clerking for Beasley Allen, Jase WENDI LOHR LEWIS also clerked for Ashley Hamlett, an CHASE BARBER Wendi Lewis joined the firm in 2008 Alabama Administrative Law Judge. Jase Chase Barber came to the firm in as a “conversation architect,” writing a currently works as an extern in Faulkner August 2015 as a Law clerk in our Con- blog about mesothelioma to raise aware- Law’s Elder Law Clinic, where he is

36 BeasleyAllen.com working on a guardian/conservator been married for 10 years to Jason, and City of Montgomery. Kimberly says she transfer case. Jase has also worked as an together they have two children. Her and Steve just enjoy spending time extern in fall of 2015 in the Mediation stepdaughter, Catie, is 17 years old and together. Their current hobbies include Clinic, where he mediated in Montgom- enjoys her time in the high school band their grandchildren and all the activities ery’s small claims court; clerked at the and reading. The couple’s son, Sam, is 8 associated with seeing them grow. Kim- Alabama Law Institute, and interned for and he enjoys basketball, soccer, hanging berly is a very good employee and her the Elmore County Probate Judge out with his dad, and riding his bike … work is extremely valuable to the firm. John Enslen. in that order. Helen enjoys working in We are fortunate to have her with us. Jase comes from a long line of farmers, the yard, reading, riding bikes with Sam, dating back to 1902 in Fayette, Ala. and spending time with her family. Helen Although the family no longer farms, is a most valuable employee and she does they still own land that holds the heri- excellent work for the firm. We are fortu- XXIII. tage of generations, including hand-dug nate to have her with us. SPECIAL wells and terraces, and trees that his family planted more than 100 years ago. KIMBERLY YOUNGBLOOD RECOGNITIONS Jase credits his family for his work ethic, Kimberly Youngblood serves as the and is proud to be a first-generation firm’s System Software Specialist. She performs duties including adding, remov- college graduate and soon first-genera- Parker Miller And Danielle Mason Named ing, and modifying Users on service tion lawyer. To Law360 Rising Stars List Jase says he was inspired to become a accounts, downloading invoices and any lawyer watching his dad and uncle go related invoice data, analyzing invoices For the second time, J. Parker Miller, a through the litigation process after being where deemed appropriate, maintaining Principal with Beasley Allen, was named hurt on different on-the-job accidents, the various servers for Microsoft Updates to the Law 360 Rising Stars list. Joining and by watching his family refuse to seek and System Software, develops and Parker this year is Danielle Ward Mason, recovery after a neighbor cut over onto creates databases upon request within who also is a Principal with the firm. their land, out of fear of litigation cost. Microsoft Access or Concordance\Con- Law360’s Rising Stars profiles the top Jase says, “Collectively, after these three cordance Evolution, consistently admin- legal talent younger than 40. The incidents, I knew that I wanted to isters these databases for data validation winners are comprised of top litigators become a lawyer to protect my family and improvements, mass updates and and dealmakers practicing at a level and help others in similar situations.” I imports data per request from appropri- usually seen from veteran attorneys. believe he made a good decision. In his ate users, completes various Manage- Danielle has been with the firm in our free time, Jase enjoys spending time with ment Reports and maintains items like Mass Torts section since 2009. She is cur- his family, traveling, fishing, reading, the Seating Assignments and Employee rently working on the talcum powder playing chess, politics, attending church Directory for the firm. Also, Kimberly trial team that secured a $72 million and relaxing with his Siberian Husky, handles the Technology Tips sent to the verdict for the family of our client, Jac- Malley. Jase is a hard worker who does Employees on a periodic basis. She also queline Fox. The talcum powder litiga- good work for us. We are fortunate to works on our E-Discovery and Produc- tion consists of thousands of clients who have him with the firm. tion Document Processing and software claim that Johnson & Johnson knowingly updates on all our computers. promoted a carcinogenic product, baby HELEN TAYLOR Before coming to Beasley Allen, Kim- powder and Shower to Shower, to Helen Taylor has been the Public Rela- berly worked for Regions Financial Cor- women resulting in 1,400 deaths per tions Coordinator for Beasley Allen for poration in the Technology Division for year from ovarian cancer. Danielle is also seven years. She focuses on media and nine and a half years. She has received the lead attorney for Reglan litigation, community relations. Helen works specialized training in several aspects of which involves claims that the drug closely with local, legal and national IT and business. Kimberly is a certified Reglan is associated with the develop- media to coordinate interviews as well as Concordance Evolution Administrator. ment of uncontrolled muscle move- to provide background information on She continuously researches and reviews ments, a permanent and incurable cases that the firm has handled. She is new software products and keeps condition known as Tardive Dyskinesia. contacted regularly from the media to abreast on trends in E-Discovery and Parker joined Beasley Allen in 2008 get information on pending cases. Document Reviews to be able to assist and currently works in our Toxic Torts Helen also coordinates the staff and our Users in the best capacity. Kimberly section. Parker was a part of the Deep- lawyer’s involvement with many area says she has been around computers for water Horizon oil spill litigation, where agencies that help improve the lives of more than 30 years due to her father’s he represented the State of Alabama those in the River Region and elsewhere. extensive computer background for the against BP, Halliburton and Transocean. In addition, Helen has served on the United States Air Force. Parker served as co-counsel to Alabama Montgomery Area Chamber of Com- Kimberly and Steve, who have been Governor Robert Bentley, was deputized merce Total Resource Campaign for nine married 11 years, live in the Holtville\ a Deputy Attorney General of the State of years and the River Region United Way Slapout community. Kimberly says they Alabama by Alabama Attorney General Marketing and Communications Commit- really enjoy the serenity of country life. Luther Strange, and served as the lead tee for three years. Steve also works for Beasley Allen in the Beasley Allen day-to-day litigator for the Helen grew up in Montgomery. She IT department. The Youngbloods have State of Alabama. Parker was a point earned her Bachelor of Science degree two dogs, both Rottweilers. Their oldest person for Alabama before the Court, from Auburn University Montgomery, son, Stephen Jr., is a Police Officer with coordinated all discovery matters, was majoring in Business Administration the City of Millbrook and their youngest Alabama’s architect for the State’s eco- with an emphasis in Marketing. She has son, Christopher, is a Firefighter for the nomic and property damage models, and

JereBeasleyReport.com 37 served as a member of Alabama’s settle- walk just as He walked. 1 John being a pallbearer at Ben’s funeral. I ment negotiation team. After months of 2: 3-5 and 6 always figured that Bart got his tough- intense litigation, BP agreed to pay the ness from Ben and his compassionate State of Alabama $2.3 billion in what is Jill Crawly, the secretary for our firm’s spirit from his mother—a very good com- considered to be one of the most signifi- team of investigators, sent in a verse bination—and one that has cant settlements in Alabama’s history. In this month. served him well. addition, Transocean agreed to pay the Peace I leave with you; My peace I A reader of the Report sent me a State of Alabama $20 million. give to you; not as the world gives mission statement by Coach Lombarbi, We are pleased to have excellent do I give to you. Do not let your which is a reflection of how the coach lawyers like Parker and Danielle working heart be troubled, nor let it be lived his life and it also indicates what he at Beasley Allen. I’m sure we’re going to fearful. John 14:27 demanded from his players. It reads: continue to see great things from both of “Live a life of integrity and make a differ- them in the future. Jessica Peek, a student at Troy Univer- ence in the lives of others.” That is pow- sity, sent in a verse for this issue. Jessica, erful and can you imagine if each of us a future nurse, is in Professor John lived our life using that statement as a Beasley Allen’s Grant Cofer Included On Kline’s Leadership Class at Troy. guideline, how things would be in this country. “The List” “The Lord will fight for you, and Coach Lombardi was a great coach and you shall hold your peace.” Grant Cofer, an Associate at Beasley a good man. He was definitely a winner Exodus 14:14 Allen, was recently featured in RSVP and set high standards for his players and also for other coaches in the NFL. There magazine on “The List,” which profiles Rebecca Morris, who works at the are lots of very good and inspirational young professionals and business leaders United Methodist Children’s Home, also messages from Coach Lombardi that you who bring culture and energy to Mont- supplied a verse this month. gomery, Ala., and the surrounding River can get very easily by way of the inter- Region. RSVP is a community publication “But whoever drinks of the water net. He definitely was a good role model. with insight into the current social scene that I shall give him will never We badly need role models today for as well as the up-and-coming busi- thirst. But the water that I shall young people and more persons like ness leaders. give him will become in him a Coach Lombardi to fill that need. Grant joined Beasley Allen in 2010 fountain of water springing up after graduating from Harvard Law into everlasting life.” John 4:14 School. He practices in our Toxic Torts Our Monthly Reminders section and has spent most of his time for the past several years working on the Deepwater Horizon BP oil spill litigation. XXV. If my people, who are called by my Grant does a very good job for the firm CLOSING name, will humble themselves and and we are fortunate to have pray and seek my face and turn him with us. OBSERVATIONS from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land. As most folks know I am a very big XXIV. sports fan. Having played all sports in 2 Chron 7:14 high school and football and baseball for FAVORITE BIBLE one year in college, I have always been All that is necessary for the VERSES involved in sports in some manner. I triumph of evil is that good men now follow several teams now including do nothing. the Boston Red Sox, the Auburn Tigers, Ginger Avery Buckner, the Executive the Montgomery Biscuits, the Carolina Edmund Burke Director of the Alabama Association for Panthers and the Green Bay Packers. I Justice, sent in a verse last month. also pull for the Tampa Bay Rays when Woe to those who decree unrigh- they aren’t playing the Red Sox because teous decrees, Who write misfor- Then He who sat on the throne of the former Biscuits with the Rays. tune, Which they have prescribed. said, “Behold, I make all things Coach Vince Lombardi was one of my To rob the needy of justice, And to new.” And He said to me, “Write, favorite coaches. For that reason, com- take what is right from the poor of for these words are true and faith- bined with my admiration for QB Bart My people, That widows may be ful.” Rev. 21:5 Starr, I became a fan of the Green Bay their prey, And that they may rob Packers and I still pull for them. I got to Willa Carpenter, our Human Resources the fatherless. know Bart through his parents Ben and Liaison, sent one of her favorite verses Lula Starr who were longtime members Isaiah 10:1-2 for this issue. of St. James UMC where Sara and I Now by this we know that we know attend. Ben would travel around the state I am still determined to be cheerful Him, if we keep His command- to watch my daughter Julie play tennis in and happy, in whatever situation I ments. But whoever keeps His high school and later in college. He was may be; for I have also learned word, truly the love of God is per- retired after a career in the U.S. Air Force from experience that the greater fected in him. By this we know that as a “Top Sargeant.” Ben also was a cham- part of our happiness or misery we are in Him. He who says he pionship boxer while in the service and abides in Him ought himself also to he was tough as nails. I had the honor of

38 BeasleyAllen.com depends upon our dispositions, Fresno, California and purchased a Jesus was always encountering and not upon our circumstances. photograph for $2. When he looked people who were asking questions at it more closely he discovered that about life. One day some people Martha Washington (1732—1802) it was a rare picture of the legendary confronted Him and asked Him Billy the Kid. The photo has been about the values of life. Jesus said, The only title in our Democracy called “the Holy Grail of Western “What does it profit a man if he superior to that of President is the Americana,” and it is currently gains the whole world and loses his title of Citizen. valued at $5 million. A $5 million own soul? What will a man give in item was purchased for $2! exchange for his soul?” (Mark 8:36). Louis Brandeis, 1937 U.S. Supreme Court Justice David Gonzales bought a dilapidated Every day we are exchanging pre- house in the town of Elbow Lake, cious time for something we con- Minn., for $10,000. He was going to sider to be valuable. The question The dictionary is the only place fix it up. As he was removing some is—is it worth $2 or $5 million? Is it that success comes before work. of the newspapers used to insulate a a $200,000 treasure or just a $10,000 Hard work is the price we must wall, he found an old comic book dilapidated house? Are we so pay for success. I think you can tucked in with those newspapers. attached to some things that we accomplish anything if you’re He looked at it and thought it might swap our lives for something that is willing to pay the price. be worth something. not worth giving a second thought? Vincent Lombardi He was amazed to discover that it There were some missionaries who was one of the rarest comic books of had to be evacuated from a country Live a life of integrity and make a all time—the 1938 Action Comics recently. They had to flee for their difference in the lives of others. No. 1 that introduced the world to lives. They were not allowed to take Superman. The comic book will be any of their possessions. All they Vincent Lombardi auctioned for about $200,000. How could do was get out themselves. much was that $10,000 house When they were interviewed and really worth? asked how tough it was to leave all their possessions behind them, they XXVI. In January 2014, 26-year old Ken commented, “We carry our posses- Hoang was visiting Chicago and sions in our mind and heart, not PARTING WORDS using his cell phone to take photo- our hands.” graphs of the icy Chicago River when he dropped his cell phone on What is really valuable? What are I was going to write this month on the the ice. When he tried to retrieve you spending your life for? Check things that are considered valuable by the cell phone, he fell into the water. out Jesus’ answer in Mark 8:34-35. most of us. I had intended to discuss Lauren Li, one of his friends, then what really is valuable in life. But when I dropped down to help him, but she John Ed Mathison received my friend John Ed Mathison’s slipped into the river. They began to www.johnedmathison.org blog, I changed course. John Ed wrote yell for help and another friend I totally agree with all that John Ed had what I had intended to do, but did it came and stepped on the ice and fell much better. So here it is from John Ed. to say. As they say in Clayton, “he hit the into the water. nail squarely on the head.” You can listen What Is Really Valuable? Ken Hoang was pronounced dead at to John Ed Mathison’s one-minute daily Northwestern Memorial Hospital. devotional on Facebook. You can also go Lauren Li was missing for a couple directly to his personal page at https:// One of the most difficult things in www.facebook.com/johned.mathison/ life is determining the value of any of days before her body was pulled from the water. The third friend was and click “PLAY” on the audio YouTube item. When you go into a store, in order to listen. Or you can go to his price tags indicate how much a found alive, hospitalized, and released. ministry page at https://www.facebook. certain item is worth. Sometimes a com/JohnEdMathisonLeadership- store’s price tags get mixed up. In Cell phones are important. People Ministries/ life sometimes the price tags on get attached to cell phones, but are values get mixed up. you willing to swap your life to try How much is something worth? to retrieve a cell phone? Are you Recently an antique photograph col- willing to follow a friend into icy lector went into a flea market in water to help them retrieve what they think is valuable?

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Jere L. Beasley, Principal & Founder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. is one of the most successful litigators of all time, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now employs over 75 lawyers and more than 175 support staff. Jere Beasley has always been an advocate for victims of wrongdoing and has been helping those who need it most for over 35 years. Jere Locke Beasley , founding shareholder of the law firm Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., is one of the most successful litigators of all time, with the best track record of verdicts of any lawyer in America. Beasley’s law firm, established in 1979 with the mission of “helping those who need it most,” now

employs 44 lawyersNo representation and more is made than that the 200 quality support of services staff. to Jere Beasley has always been an advocatebe performed for victims is greater of than wrongdoing the quality of legal and services has been helping those who need it most for over 30performed years. by other lawyers.

No representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.