MARCH 2 017

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BeasleyAllen.com I. As a result of the cab guard litigation Generation One car owners have an handled by our firm, two of the compa- option of a buy back is due to VW admit- CAPITOL nies making the cab guards have made sig- ting they are not able to “fix” the Genera- OBSERVATIONS nificant safety-related changes. Those tion One vehicles. guard manufacturers now say on their VW is unsure whether they will be able websites that cab guards should not be to “fix” the remaining 60,000 vehicles in used as safety devices on log trucks. In the Generation Two category; therefore, Cab Guard Litigation Prompts Warning fact, when clicking on “cab guard” on one VW has until fall 2017 to discover a “fix” Labels On Products company’s website, a warning box for these vehicles. If an emissions fix is If “heavy truck cab guard” is searched appears stating the device will not prevent found, VW will implement it on all Gener- on Google, more than 1.5 million results serious injury or death. The company now ation Two vehicles, and the owners will appear. And, at least on the first page, says that the cab guards are not to be used receive cash compensation of $7,037 to none of those results will tell you that on log trucks. The warnings are a $16,114. If VW does not discover a “fix” by many of them—if not most—do not work, welcome step in the right direction for fall 2017, owners will have the option to although a majority of trucks on the road protecting unsuspecting log truck drivers sell their cars back to VW. use the devices. What does it look like who think they are safe. In the Albritton In addition to the repairs and buybacks, when a cab guard, which as its name sug- case, the jury returned a $16.8 million part of the settlement requires VW to pay gests, is intended to protect the truck cab verdict against the manufacturer. The $225 million into a mitigation trust, whose during a crash from shifting load, fails to changes by the two companies that manu- do so? It will result in either severe injury facture and sell cab guards are the direct IN THIS ISSUE or death. This was the scenario in a case result of the litigation against them by filed in Alabama on behalf of Larry Albrit- our firm. I. Capitol Observations...... 2 ton’s family. He was killed on Oct. 7, 2013, II. More Automobile News Of Note. . . . 2 while driving a log truck when the load on his trailer shifted, causing the log truck II. III. Purely Political News & Views. . . . .6 to roll over on its side. When the load of logs shifted forward in the rollover, they MORE IV. Legislative Happenings...... 7 breached the truck’s cab and struck the AUTOMOBILE driver, resulting in his death. V. The National Scene...... 7 Few people know the aluminum guards NEWS OF NOTE as currently designed are too weak to save VI. Whistleblower Litigation ...... 8 a driver’s life. Thousands of log trucks use cab guards that are worthless for protec- Judge Breyer Preliminarily Approves VW’s VII. Product Liability Update ...... 11 tion. The guards attach to the backs of $1.2 Billion 3-Liter Emissions Settlement 18-wheelers pulling flat beds, trailers and VIII. Mass Torts Update...... 12 log trailers and should function to prevent This past month has seen a significant shifting cargo from hitting the cab of large development involving the Volkswagen IX. Insurance And Finance Update. . . .16 trucks. However, as we have discovered, litigation. On Feb. 16, 2017, U.S. District that’s not the reality. Most of the cab Judge Charles Breyer, the federal judge X. Premises Liability Update...... 17 guards are not strong enough to withstand who has the U.S. Litigation, granted pre- XI. Workplace Hazards...... 19 the movement of even one log on a log liminary approval of a class action settle- ment worth at least $1.22 billion, truck, much less the large numbers that XII. Transportation...... 20 are placed on the trailers. concerning 80,000 3.0 Volkswagen cars implicated by in the automaker’s emission In a quest to increase profits, cab guard XIII. Environmental Concerns...... 24 manufacturers often choose to use alumi- cheat scandal. The class action stems from the Environmental Protection Agency’s num rather than something stronger like XIV. Update On Nursing Home Litigation . .25 steel, which would not sacrifice safety, (EPA) discovery in 2015 that Volkswagen without accurately testing the conse- sold diesel cars equipped with software XV. An Update On Class Action Litigation. .26 quences of the decision. For instance, one designed to disguise nitrogen oxide emis- brand of cab guard available for purchase sions in violation of the Clean Air Act. XVI. The Consumer Corner...... 27 through the “heavy truck cab guard” The settlement breaks the vehicles Google search states, “All Cab Racks are down into two “Generations.” The settle- XVII. Recalls Update...... 30 tested to uniform static resistance.” In ment separates the two generations by technical terms, it is saying its ability to engine type, and each generation receives XVIII. Firm Activities...... 35 protect a driver was tested while the truck different consideration in the settlement. was not moving. No wreck is static; one Generation One vehicle owners may XIX. Special Recognitions...... 36 log could cause a failure. Cab guard manu- select between having VW buy back their XX. Favorite Bible Verses...... 37 facturers’ shortcuts continue to prove cars, or have the cars modified to become more fuel-efficient. These automobile costly for consumers who believe they are XXI. Closing Observations...... 38 protected because of a cab guard owners will also receive cash compensa- tion ranging $7,755 to $13,880. The reason being in place. XXII. Parting Words...... 39

2 BeasleyAllen.com purpose is funding projects that reduce • The owner has a lease that is or was • Volkswagen Jetta TDI 2009-2015 NOx emissions. The final approval issued by VW Credit, Inc., and is a hearing is set for May 11, 2017. Owners current lessee of, or, on Sept. 18, • Volkswagen Jetta SportWagen who previously sold their vehicles may 2015, or Nov. 2, 2015, were a lessee TDI 2009-2014 still be eligible for cash compensation. of, an Eligible Vehicle. • Volkswagen Beetle TDI 2012-2015 Below are the eligibility requirements for both Generation One and Generation Two U.S. District Judge Charles Breyer also • Volkswagen Beetle Convertible vehicles. preliminarily approved a $372.5 million TDI 2012-2015 If an emissions fix is found before the deal between drivers and parts manufac- fall of 2017, VW will implement it on all turer Robert Bosch GmbH for the auto • Audi A3 TDI 2010-2015 parts manufacturer’s role in designing the Generation Two cars and drivers will • Volkswagen Golf TDI 2010-2015 receive a cash compensation ranging from emissions cheat software. Details of the $7,039 to $16,114. If not, and Judge Breyer Bosch settlement appear in the follow- • Volkswagen Golf SportWa- finds good cause, he can grant an exten- ing article. gen TDI 2015 sion of the deadline. VW can also literally Beasley Allen lawyers Dee Miles, Archie • Volkswagen Passat TDI 2012-2015 buy itself more time−under the settlement Grubb and Clay Barnett are performing Plaintiffs Steering Committee duties on agreement, the car company can opt for 3.0-LITER CLASS VEHICLES an extension as long as 90 days, and will behalf of the claimants. If you have any have to pay $500 per vehicle for every questions, contact Clay Barnett at 800- • Volkswagen Touareg 2009-2016 30-day period. If a fix isn’t discovered, 898-2034 or by email at Clay.Barnett@bea- • Audi Q7 2009-2015 owners will have the option to sell their sleyallen.com. cars back to VW and lessees will be able • Audi A6 2014-2016 to opt out of their leases. That could bring the compensation total up to $4.04 billion. Judge Breyer Preliminarily Approves • Audi A7 2014-2016 Related Consumer Settlement With Bosch Defendants • Audi A8, A8L 2014-2016

Eligibility Requirements • Audi Q5 2014-2016 On Feb. 16, 2017, Judge Charles Breyer Owners who have owned an eligible also preliminarily approved a settlement • Porsche Cayenne Diesel 2013-2016 vehicle on Sep. 18, 2015, or Nov. 2, 2015, reached between Robert Bosch GmbH Bosch will pay $327.5 million to resolve and sold it before Jan. 31, 2017, may still and Robert Bosch LLC (Bosch) with all claims of consumers and reseller be eligible to participate as an Eligible counsel for the consumer class related to dealers that are pending in the Clean Former Owner; however, Owners must defeat device software the VW Defen- Diesel Cases. Lawyers representing the register by May 1, 2017 to claim benefits dants installed to bypass emissions stan- class will seek attorneys’ fees of a under the Settlements. See below for a list dards in certain 2.0-liter and 3.0-liter maximum of 16 percent of the Bosch Set- of models and description of those who diesel vehicles manufactured by Volkswa- tlement fund plus expenses, but the Court are and are not eligible. gen, Audi and Porsche. The Bosch Settle- ment is part of litigation called In re must approve any fees and expenses Generation One Vehicles: Volkswagen “Clean Diesel” Marketing, before they are paid. Sales Practices, and Products Liability Class members in the VW Settlements • Volkswagen Touareg—2009-2012 Litigation, Case No. 3:15-md-02672-CRB whose claims in those settlements are approved or will be approved in the • Audi Q7—2009-2012 (MDL 2672), in the United States District Court for the Northern District of Califor- future and who do not exclude them- Generation Two Vehicles: nia. Claims against the Volkswagen, Audi selves from this Bosch Settlement will and Porsche defendants also have recently automatically receive a cash payment by • Volkswagen Touareg—2013-2016 settled (the “2.0-liter Class Action Settle- way of a check in the mail. Those who did not, and do not in the future, file a claim • Audi Q7—2013-2015 ment” and “3.0-liter Class Action Settle- ment”). The Bosch Settlement is in in either of the VW Settlements, including • Audi A6, A7, A8, A8L, Q5—2014-2016 addition to the VW Settlements and the anyone who opted out of either or both of final approval hearing is set for both set- the VW Settlements or who did not timely • Porsche Cayenne Diesel—2013-2016 tlements on May 11, 2017. register as an Eligible Seller in the 2.0-liter Class Action Settlement or Eligible Former Owners are eligible for relief if: The Bosch Settlement provides addi- tional compensation to vehicle owners, Owner in the 3.0-liter Class Action Settle- • The owner currently holds title to an former owners, lessees and former lessees, ment, must file a separate claim form to Eligible Vehicle in the United States including reseller dealers who filed or will receive a payment from this Bosch Settle- or its territories or hold it by bill of file approved claims in the VW Settle- ment. The deadline for Eligible Sellers and sale dated before Sept. 30, 2019; or ments. The Bosch Settlement also pro- Eligible Former Owners who did not file vides the opportunity for compensation to claims in the VW Settlements to file a • On Sept. 18, 2015, or on Nov. 2, 2015, certain VW Class Members who opted out claim form is May 1, 2017. The deadline owner held title to an Eligible Vehicle of or who are otherwise not participating for class members who opted out of the in the United States or its territories in the VW Settlements. VW Settlements to file a claim form is or held it by bill of sale dated on or Aug. 15, 2017. before Nov. 2, 2015; or 2.0-LITER CLASS VEHICLES

JereBeasleyReport.com 3 The Federal Trade Commission (FTC) is Settlement, the $1,500 payment will the effects of firsthand during four cases an independent government agency be split equally ($750 each) between settled for confidential amounts last year. whose mission is to prevent business prac- the Eligible Owner and the Eligi- Each case involved a Takata airbag inflator tices that are anticompetitive, or decep- ble Seller. exploding and causing injuries instead of tive or unfair to consumers. Acting as an ensuring protection. independent third party to the litigation 2. An Eligible Owner will also receive In one of the cases, Angelina Sujata was between Class Counsel and Bosch, the $750 if an Eligible Former Lessee has driving her 2001 Honda Civic in 2012 at Commission’s counsel met with Bosch identified himself or herself and filed about 25 miles per hour near Columbia, and directed an allocation of the Bosch an approved claim for the Eligible South Carolina, when the vehicle in front Settlement fund among members of the Vehicle in the 3.0-liter Class Action of her slammed on the brakes. The next Bosch Settlement Class that Commission Settlement. thing Angelina remembered was a sharp counsel would recommend that the Com- 3. If two Eligible Former Owners have pain in her chest, which was sliced open mission accept. The FTC required that the identified themselves and filed to the bone. In another case, Jennifer Grif- parties accept its allocation. Bosch ten- approved claims for the Eligible fin’s airbag exploded in her Honda Civic dered a final offer consistent with this Vehicle in the 3.0-liter Class Action while she was driving in Orlando, Florida. allocation and Class Counsel accepted that Settlement, the $1,500 will be split A two-inch piece of shrapnel was sent allocation. among the Eligible Owner and the flying. When highway troopers found Jen- nifer with blood gushing from a gash in • Persons eligible to participate in the two Eligible Former Owners, with $750 going to the Eligible Owner and her neck, they were baffled by the extent 2.0-liter Class Action Settlement will of her injuries. receive a total of $163,267,450, to be $375 each to the two Eligible Former Owners. Through a series of conscious decisions, shared among 2.0-liter Class Members Takata and Honda risked lives for their as set forth below. (v) An Eligible Lessee in the 3.0-liter economic bottom lines. Takata opted to • Persons eligible to participate in the Class Action Settlement will receive use ammonium nitrate, a compound that 3.0-liter Class Action Settlement will $1,200. The above payments are net destabilizes over time particularly if receive a total of $113,264,400, to be payments to Class members. They exposed to high temperatures and humid- shared among 3.0-liter Class Members will not be reduced by attorneys’ fees ity, to reduce costs despite other airbag as set forth below. or expenses. manufacturers refusing to use it over safety concerns. However, Takata contin- The Bosch Settlement funds will be The entire Bosch Settlement fund, plus ued to pursue its use despite internal allocated to individual Class members any interest, will be distributed over the red flags. as follows: course of the settlement process through In a January 2016 deposition taken as a combination of one or more payments to part of another personal injury suit (i) An Eligible Owner of an Eligible Bosch Settlement Class members, and if against Takata and Honda, Mark Lillie, a Vehicle in the 2.0-liter Class Action approved by the Court, payment of attor- former propellant engineer at Takata in Settlement will receive $350, except neys’ fees and expenses from the settle- the 1990s, when the company first began that if an Eligible Seller has identified ment. The full details of the Bosch using the unstable compound in its himself or herself and filed an Settlement are available online at www. airbags, testified that there was “[n]ever approved claim for the Eligible BoschVWSettlement.com. Beasley Allen any evidence, never any test results, never Vehicle, or if an Eligible Lessee has lawyers Dee Miles, Archie Grubb and Clay any test reports, nothing to substantiate identified himself or or if an Eligible Barnett are performing Plaintiffs Steering they had overcome the phase stability Lessee has identified himself or Committee duties on behalf of the claim- problem.” Lillie later was interviewed and herself and filed an approved claim ants. If you need more information stated he told Takata that someone would for the Eligible Vehicle, the Eligible contact Clay at 800-898-2034 or by email be killed if the design went forward. Owner will receive $175. at [email protected]. We have learned that Takata manipu- (ii) An Eligible Seller in the 2.0-liter lated tests and data to make its airbags Class Action Settlement who has iden- appear safer than they were. Honda was Millions Of People Still At Risk From tified himself or herself and filed an alerted to the safety issues relating to the Faulty Takata Airbags approved claim will receive $175. air bags as early as 2004, when an Accord airbag in Alabama exploded and shot (iii) An Eligible Lessee in the 2.0-liter When people hear the word airbag, shrapnel throughout the vehicle interior. Class Action Settlement will most of them immediately relate it to Honda settled four lawsuits before issuing receive $200. safety. An airbag’s purpose is to protect a small recall in late 2008. Within just six occupants and keep them as safe as possi- months, Jennifer’s airbag, which the recall (iv) An Eligible Owner of an Eligible ble during a vehicle crash. Unfortunately, did not cover, exploded. By August 2009, Vehicle in the 3.0-liter Class Action as the recall on 46 million airbags manu- four injuries and a death were linked to Settlement will receive $1,500, with factured by Japanese automotive supplier ruptured airbag inflators in Honda three exceptions: Takata Corp. proves, that is not always the vehicles. case. Approximately 29 million vehicles in Takata and Honda commissioned a 1. If an Eligible Former Owner has iden- the United States are not as safe as they tified himself or herself and filed an study (that per contract could not be should be due to manufacturer error, an linked to them) in 2012 that concluded approved claim for the Eligible error lawyers at Beasley Allen witnessed Vehicle in the 3.0-liter Class Action ammonium nitrate was too sensitive to

4 BeasleyAllen.com changes in pressure to use in airbags. and often caused near-accidents or life- vehicles that they purchased or Despite extensive knowledge that ammo- threatening situations, particularly leased, as such defects were hidden nium nitrate was not suitable for airbag because driving in a highway passing lane and not discoverable through rea- inflators, Honda did not expand the recall or congested traffic, navigating a disabled sonable efforts by plaintiffs and the of its airbags until 2014. The recall eventu- vehicle to a shoulder or different lane can other class members. ally affected vehicles manufactured by be extremely dangerous. BMW, Chrysler, Daimler Trucks, Ford, The affected cars contained a Delphi We are seeking to represent a nation- General Motors, Honda, Mazda, Mitsubi- sixth-generation electronic throttle body. wide and statewide classes of Alabama, shi, Nissan, Subaru and Toyota. They include model years 2011 to 2015 California and Florida residents who On Jan. 13, Takata agreed to plead guilty Mustang with 3.7L TiVCT engines, model owned or leased the affected Ford vehi- to criminal wrongdoing and pay total of years 2011 to 2015 Edge with 3.5L TiVCT cles. The Plaintiffs are represented by Dee $1 billion in criminal penalties stemming and 3.7L TiVCT engines, model years 2011 Miles, Clay Barnett, Archie Grubb and from the company’s fraudulent conduct, to 2015 Lincoln MKX with 3.7L TiVCT Andrew Brashier from our firm; David S. according to the U.S. Department of engines, and model years 2011 to 2015 Stellings, Jason L. Lichtman, Fabrice Justice (DOJ). The National Highway F-150 with 3.5L TiCVT and 3.7L TiVCT Vincent and Andrew R. Kaufman of Lieff Traffic Safety Administration (NHTSA) engines. The complaint states: Cabraser Heimann & Bernstein LLP; and estimates that only about 12.5 million of Anthony J. Garcia of AG Law. the 46 million defective airbags have been Upon information and belief, Ford repaired. This means that millions of lives has known of the aforementioned continue to be at risk until all of the problems with the Delphi Gen 6 elec- BMW Settles Water Damage Suit airbags are repaired. Until that happens, tronic throttle body since at least as vehicle occupants won’t be safe. early as 2009, but has failed to dis- BMW of North America LLC has agreed Takata Corp. entered a guilty plea to close this material information to to conduct vehicle checks and repairs and one count of wire fraud in a Michigan the owners and purchasers of class reimburse out-of-pocket expenses to settle federal court last month as part of its plea vehicles. Ford first learned that the a proposed class action lawsuit in New deal with prosecutors over the company’s specific Delphi Gen 6 ETBs placed in York federal court. The lawsuit involves a deadly air bag inflators. The plea agree- class vehicles were defective soon design defect that leads to electrical ment is part of the settlement Takata after the vehicles were damage through leaky trunks. The pro- reached with the U.S. Department of released in 2011. posed class, which is made up of owners Justice in January. The company entered and lessees of model year 2004-2010 BMW Customer complaints began coming in 5-series vehicles in New York, asked U.S. its plea before U.S. District Judge George years ago to Ford and the National Caram Steeh. The settlement resolves the District Judge Katherine B. Forrest to Highway Traffic Safety Administration grant preliminary approval of the settle- DOJ investigation into the company and (NHTSA) about the throttle defects. In its affiliates. ment. The settlement arises from claims January 2014, Ford investigated identical that sunroof drain tubes can become Source: Law360.com safety complaints about a specific version clogged and leak into the trunk of the of the Delphi sixth-generation electronic vehicles, causing damage to the tire pres- throttle body that was installed in differ- sure monitor and other electronic compo- Ford Hit With Throttle Deceleration Defect ent Ford vehicles and Ford claimed then to nents that are placed in and around the Class Action have discovered and resolved a defect vehicle’s tire well. with the throttle body in those vehicles. Under the terms of the settlement, pro- Our firm, working with several other However, Ford did not resolve the prob- posed class members will be able to take law firms, has filed a new class action lems with the materially identical versions their vehicles to authorized BMW centers lawsuit against Ford Motor Co. Ford failed of the Delphi sixth-generation electronic to receive checks for water damage and to warn customers that certain Mustangs, throttle bodies within the vehicles at the electrical failure. If a component is found Lincolns and other Ford models had defec- center of the instant class action. Instead, to be faulty, BMW will replace it, free of tive throttles that caused the vehicles to Ford continued to sell a significant charge. The program follows a 2010 tech- spontaneously stall or decelerate. Custom- number of vehicles with defective ETBs nical service bulletin released by BMW ers who owned or leased certain Ford that present enormous safety risks. The detailing the same program. For those Mustang, Edge, Lincoln MKX and F-150 complaint states: who already replaced damaged compo- models equipped with a Delphi sixth-gen- nents through an authorized dealer or eration electronic throttle body filed the Despite its knowledge of these third party and paid for the repairs, BMW suit, claiming Ford concealed and failed to defects, Ford failed to disclose, con- agreed to reimburse those class members disclose to consumers that it knew about cealed and continues to conceal, up to $1,500 each. There are six elec- the throttle defects in the hope that Ford’s this critical information from plain- tronic components covered under both limited warranty would expire before tiffs and the other members of the the replacement and reimbursement consumers became aware of the problem. class even though, at any point in program, including the tire pres- Plaintiffs Fernando Aviles, Barry Kiery, time, it could have done so through sure monitor. Michael Kelder and James Cowen com- individual correspondence, media In addition to the replacement and plained that the cars would spontaneously release or any other means. Plain- reimbursement, BMW will add a new label stall or suddenly decelerate to a near-idle tiffs and the other class members to the vehicle warning not to place liquids speed. The abrupt deceleration often hap- justifiably relied on Ford to disclose in the trunk as they may damage the sensi- pened when traveling at highway speeds these material defects in the Ford

JereBeasleyReport.com 5 tive components underneath. Those fined up to 30,000, or about $32,000, per Reuters. The Seoul Central District Prose- accepting the reimbursement will have to vehicle. And if a member country isn’t cutors’ Office has launched an investiga- submit a claim form detailing the repair, willing to levy a fine, the Commission tion into Nissan after a criminal compliant cause and mileage of the vehicle, among will. Those penalties should be directed was filed by the ministry. other things. to supporting market surveillance, recom- Makers of imported cars, which have Under the terms of the settlement, pense affected consumers and for envi- surged in popularity in recent years in owners or lessees who suffered a defect ronmental protection if appropriate, South Korea, have been facing growing from misuse, such as a failure to adhere to according to the statement. The proposal scrutiny in the country following Volk- state traffic laws, will be excluded from will be voted on by a full house in an swagen’s emissions-test cheating scandal. the reimbursement program. The settle- upcoming plenary session, according to The latest government action follows an ment motion also requested the court to the statement. announcement by South Korea’s environ- schedule a fairness hearing. Recently, the European Parliament ment ministry in January that the sale of Catalano and the proposed class are upheld by a narrow margin a new vehicle 10 models of Nissan, BMW and Porsche represented by Edward A. Wallace and emissions plan from the bloc’s executive had been banned after the carmakers Amy E. Keller of Wexler Wallace LLP, authority that, if finalized, will temporar- were found to have fabricated documents William A. Kershaw, Stuart C. Talley and ily raise limits while requiring real-world on emissions and noise-level tests. The Ian J. Barlow of Kershaw Cutter & Ratinoff testing outside a lab. On Feb. 3, members models banned include BMW’s X5M and LLP, Stephen M. Harris of The Law Offices voted 323-317, with 61 abstaining, not to Porsche’s Cayenne and Macan models. of Stephen M. Harris PC, Robert L. Starr of veto the European Commission’s proposal The investigation was expanded to The Law Offices of Robert L. Starr and to temporarily double nitrogen oxide whether the three carmakers have falsi- Joseph R. Santoli of The Offices of Joseph emission limits from the current 80 mg fied documents on fuel economy tests of R. Santoli. The case is Catalano v. BMW per kilometer. The limit would eventually the 10 models as well. Nissan overstated of North America LLC et al. (case number be set at 120 mg/km by 2020 in order to the fuel economy of the Q50 so that it is 1:15-cv-04889) in the U.S. District Court ensure automotive manufacturers can 3.4 percent higher than the actual test for the Southern District of New York. actually meet the more difficult to hit real- result. It appears they manipulated the Source: Law360.com world limits, according to the parliament test results of the car “to make the fuel announcement. The vote follows promises economy look better.” from the Commission—made up of one The complaint adds to the troubles in European Parliament Wants Tougher Car Commissioner from each of the bloc’s 28 South Korea for Nissan, which is already Testing Rules member countries—to implement a accused of cheating on emissions of its review clause for the new requirements. Qashqai diesel model. A South Korean A European Parliament committee has If implemented, Europe will be the only court has sided with the government, voted to overhaul the bloc’s rules for region in the world to require such which had said the Japanese automaker safety and environmental testing of cars testing. Real driving emissions (RDE) used a so-called defeat device in its and to strengthen the bloc’s oversight of testing is thought to be more difficult to Qashqai sport utility vehicle to turn off its vehicles already on the road. This is said fool. However, Parliament cited the Com- emissions reduction device during to be an effort aimed at avoiding a repeat mission as arguing that relaxed limits are regular driving. of the Volkswagen emissions cheating necessary because of “technical uncer- Source: Automobile News scandal. The draft bill—which passed the tainties” with the Portable Emission Mea- internal market committee by a 33-4 surement Systems device and the fact that vote—would require EU member coun- the on-the-road limits are more difficult to tries’ market surveillance programs to be meet than limits tested for in a lab. III. approved by the European Commission. It’s rather interesting—and actually dis- PURELY POLITICAL The Commission would also be empow- turbing—that while European countries ered to compel countries to test specific are getting tougher on regulation, the NEWS & VIEWS vehicle makes or to conduct the tests United States is heading in another direc- itself. European Parliament member tion. Hopefully, consumer advocates will Daniel Dalton said in a statement: be able to turn the tide and make safety a U.S. Attorney General Jeff Sessions real priority for U.S. Regulatory agencies. Jeff Sessions is now the U.S. Attorney With today’s vote the Internal Source: Law360.com Market Committee has sent a clear General and is the top law enforcement signal to national governments and officer for the nation. Jeff, a lifelong consumers that it is about time we Republican, served in the United States Nissan, BMW And Porsche Face Fuel addressed the weaknesses that Senate from Alabama from 1997 until Economy Probes In South Korea th allowed the emissions scandal to 2017. He is the 84 U.S. Attorney General. Despite the controversy over his nomi- take place. We agreed that the key to South Korea has filed a complaint nation, Jeff’s confirmation was greeted rebuilding consumer trust in the against Nissan Motor’s South Korean unit with warm applause by his constituency, motor vehicle approval system is alleging that the Japanese carmaker and he extolled the virtue of open, pas- more rigorous and systematic over- manipulated the fuel economy test results sionate debate in Congress as critical to sight at every stage. of its Infiniti Q50 sedan. The transport forward progress. Jeff urged Congressio- ministry is also investigating BMW and Under the proposal, carmakers that fake nal leaders to work together to reconcile test results or violate other rules can be Porsche on a similar matter, according to

6 BeasleyAllen.com their differences to move the nation came as little surprise. However, it was that must be dealt with. The need for addi- forward. He had this to say: not without controversy. tional revenues is as clear as a bell and Luther has announced that he will seek that need must be dealt with before any of I can’t express how appreciative I reelection. Some political observers the major problems such as medical am for those of you who stood by believe he will be the favorite in the race. funding, prison reform and needs of me during this difficult time. By However, I believe there will be several public education at every level can be your vote tonight, I have been given strong candidates getting into this race. dealt with. It’s time for both Gov. Robert a real challenge. I’ll do my best to be Whether Luther will be the favorite Bentley and all of the legislators to face worthy of it. remains to be seen. Ignoring any sugges- that reality. Hopefully, this will be a Jeff graduated from Huntingdon College tion of impropriety, upon his appointment session of the legislature where reason in Montgomery, Alabama, in 1969 and Luther pledged to focus on representing and the real interests of the people of earned his law degree from the University the people of Alabama. There is a question Alabama override politics and political of Alabama School of Law in 1973. He as to when the special election will be agendas. I really don’t believe that is too entered private practice in Russellville held. Stay tuned on that question and much to ask of our elected officials. before making his home in related matters. Mobile, Alabama. Jeff was an Assistant U.S. Attorney in V. the Office of the U.S. Attorney for the Steve Marshall Becomes Alabama’s Southern District of Alabama beginning in Attorney General THE NATIONAL 1975. In 1981, President Ronald Reagan SCENE nominated Jeff to be the U.S. Attorney for Governor Robert Bentley named Steve the Southern District of Alabama. The Marshall as the state’s new Attorney Senate confirmed him and he held that General. Steve has been District Attorney Public Advocates Sue Trump Administration position for 12 years. for Marshall County since 2001 and has a To Stop Anti-Regulation Order Jeff was elected Attorney General of strong background in law enforcement. He has done a tremendous job in his role Alabama in 1994. Even though I am a Public interest groups are suing the as District Attorney and is universally Democrat, I supported Jeff in that race. In Trump administration over a bullish and respected by his peers in the law enforce- 1996, Jeff won the Republican primary for “irrational” executive order mandating ment community. U.S. Senate, after a runoff, and then that federal agencies arbitrarily eliminate Steve also frankly addressed the issue of defeated Democrat Roger Bedford in the two regulations for every new regulation the potential impeachment investigation November general election. Jeff suc- passed. The order, signed by President of Gov. Bentley. At the time, he said he did ceeded my friend Howell Heflin, who had Trump on Jan. 30, also sets a zero budget not have confirmation that the governor retired after 18 years in the Senate. Jeff for rulemaking this fiscal year, which runs was under investigation. However, just won his second and third terms with rela- through the end of September. This effec- two days after being sworn in, on Feb. 15 tive ease. tively kills efforts to improve public health Steve confirmed there is an ongoing inves- I believe that Jeff will be an outstanding and safety by purposefully ignoring the tigation and he correctly recused himself. Attorney General. I have complete confi- value new rules would have on public He appointed former Montgomery County dence that he will follow the law in a fair protections. District Attorney Ellen Brooks to lead the and impartial manner. Having the Attor- Public Citizen, the Natural Resources investigation. ney General from Alabama is a tremen- th Defense Council, and the Communica- Steve Marshall is the 48 Attorney dous honor for our state. I wish Jeff the tions Workers of America filed the com- General of the State of Alabama. It’s good very best as he undertakes a huge plaint in federal court in Washington D.C. to have an experienced District Attorney challenge! The lawsuit asserts that the executive in the most important office. I predict that Sources: The New York Times, The Washington order not only aims to help big business at Steve will be an outstanding Attor- Times, Wikipedia the public’s expense, but “exceeds Presi- ney General. dent Trump’s constitutional authority, vio- Sources: Montgomery Advertiser, WHNT-19 News, lates his duty under the Take Care Clause ABC News, Yellowhammer News Luther Strange Selected To Fill Sessions’ of the Constitution, and directs federal Senate Seat agencies to engage in unlawful actions that will harm countless Americans, With the confirmation of Jeff Sessions IV. including Plaintiffs’ members.” as the new U.S. Attorney General on Feb. In addition to the President, the com- 8, the big question in Alabama was whom LEGISLATIVE plaint also names as Defendants the acting Gov. Robert Bentley would appoint to fill HAPPENINGS director of the Office of Management and the vacant Senate seat. As Jeff Sessions Budget (OMB) and the heads of more than was sworn in as the Attorney General on a dozen executive departments and agen- Feb. 9, Gov. Bentley announced Luther The Regular Session Gets Underway In cies. The complaint asserts that these Strange, Alabama’s Attorney General, Alabama administrators and directors cannot law- would represent the state in the U.S. fully comply with the executive order Senate. Luther was on the short list to fill The first two weeks of the regular because doing so would violate the stat- the Senate Seat, so the announcement session were pretty much uneventful. utes under which the agencies operate as There are a multitude of problem areas well as the Administrative Procedure Act.

JereBeasleyReport.com 7 The complaint specifies ways in which tions, fraud, concealment, money ers may file suit on behalf of the United the executive order would be great for big laundering and other wrongful States to recover for fraud committed business, but a blow to consumers. For conduct. These individuals and cor- against the federal government. instance, OMB guidance issued in Febru- porations that benefited by stealing Increasing the FCA’s civil penalties ary “states that regulators can only con- from taxpayers must not only pay strengthens the government’s negotiating sider the costs to businesses of new the state’s losses, but state law position in FCA cases. This strengthened energy consumption standards for home requires that they must also forfeit position helps the government secure appliances and not the benefits of lower and return the entire amount of the additional settlements and larger civil pen- energy costs for consumers when consid- contracts paid by the state. alties. The penalty increase does more ering the costs of such rules,” according than keep up with inflation; it also is a to Law 360. The complaints allocate the biggest vital tool that returns additional taxpayer “No one thinking sensibly about how to share of the damages claimed by the state money to the Treasury so it can be spent set rules for health, safety, the environ- to Pittsburgh-based prison health care in the way it was intended. ment and the economy would ever adopt provider Wexford Health Solutions, with The war on fraud is fought not by sol- the Trump Executive Order approach— $294 million in contracts allegedly pro- diers, but by ordinary citizens, and that is unless their only goal was to confer enor- cured through bribery; Florida-based very important. The FCA provides citizens mous benefits on big business,” Public prison operator GEO Group, with $256 the opportunity to combat fraud accompa- Citizen President Robert Weissman said in million in allegedly tainted contracts; nied with monetary incentives and statu- a statement. Utah-based inmate education and training tory protection. Whistleblowers who file “When presidents overreach, it is up to provider Management & Training Corp., FCA claims are eligible for a reward up to the courts to remind them no one is above with $114 million worth; and Mississippi- 30 percent of the amount recovered by the law and hold them to the U.S. Consti- based prison construction outfit AJA Man- the government. Additionally, the FCA tution,” said Patti Goldman, a lawyer with agement & Technical Services Inc., with provides protection from retaliation Earthjustice, one of the organizations pro- $80 million worth. against whistleblowers. viding legal counsel for the Plaintiffs. The state’s complaints say that by law “This is one of those times,” she added. the state is entitled to the full value of the illegally procured contracts. Other compa- It will be most interesting to see how FERA Expands Conspiracy Liability Under nies named in the suit include Health this lawsuit turns out. If reason and right The False Claims Act prevail the Plaintiffs will win. Public inter- Assurance LLC; Keefe Commissary est would then be well served. Network; CGL Facility Management LLC, The Fraud Enforcement and Recovery with $10.8 million worth; Global Tel-Link Sources: Law360, Public Citizen and Righting Act of 2009 (FERA) was signed into law by Injustice Corp.; Branan Medical Corporation/Drug President Obama on May 6, 2009. This law Testing Corp.; AdminPros,; and Sentinel not only changed the False Claims Act Offender Services. (FCA), but also retroactively overturned a Source: Law360.com Mississippi Attorney General Sues To Supreme Court case. Likewise, Congress Reclaim $800 Million From Bribery Scheme crafted FERA’s 31 U.S.C. § 3729(a)(1) amendment to have taken effect on June 7, The State of Mississippi has filed a VI. 2008, the date the Supreme Court decided number of civil racketeering lawsuits in Allison Engine. By backdating the effec- state court as officials try to claw back WHISTLEBLOWER tive date of the FERA provision, Con- money spent on prison contracts that the LITIGATION gresses rendered the unanimous Supreme state claims were obtained through a Court decision worthless. bribery scheme that has resulted in Before the FERA, a person was liable several federal convictions. Attorney under the conspiracy provision of the FCA False Claims Act Civil Penalties Increased General Jim Hood filed 11 lawsuits under only if that person conspired to defraud the state’s Racketeer Influenced and The Department of Justice (DOJ) has the Government by getting a false or Corrupt Organization (RICO) Act against announced that the penalties under the fraudulent claim allowed or paid. Looking several major prison services companies False Claims Act will once again increase. to the language of the statute, the as well as several individuals involved in The increases are pursuant to The Biparti- Supreme Court ruled in Allison Engine the kickback scheme. san Budget Act of 2015. The Act requires that 31 U.S.C. § 3729(a)(3) required proof The plot hinged on more than $1 annual re-indexing of FCA penalties for that the Defendant intended the false million in bribes directed toward then- inflation. On Feb. 3, 2017, the minimum statement to be material to the Govern- Department of Corrections Commissioner per-claim penalty increased from $10,781 ment’s decision to pay or approve the Christopher Epps, in exchange for govern- to $10,957, and the maximum per claim claim. The Court came to that decision ment contracts—generally through a “so- penalty increased from $21,563 to due to the phrase “by getting a false or called consultant,” as the complaint terms $21,916. These adjusted civil penalty fraudulent claim allowed or paid,” which the go-betweens. Epps pled guilty in Feb- amounts are applicable only to civil penal- is how the FCA read prior to FERA. ruary 2015 in federal court. Attorney ties assessed after Feb. 3, 2017, whose By removing the phrase “by getting a General Hood said in a statement: associated violations occurred after Nov. false or fraudulent claim allowed or paid” from 31 U.S.C. § 3729(a)(3), FERA signifi- The state of Mississippi has been 2, 2015. As we have mentioned on numer- ous occasions, the False Claims Act (FCA) cantly expanded liability under the con- defrauded through a pattern of spiracy provision to include conspiracies bribery, kickbacks, misrepresenta- provides a means by which whistleblow-

8 BeasleyAllen.com to violate any provision of § 3729(a). care funds available for needed services. any questions about whether you qualify Therefore, FERA greatly bolsters the FCA Former Acting Assistant Attorney General as a whistleblower, you can contact a by allowing conspiracy claims to encom- Stuart F. Delery stated: lawyer at Beasley Allen for a free and con- pass not only regular false claims, but also fidential evaluation of your claim. There is reverse false claims. The Justice Department has long- a contact form on our firm’s website, or A reverse false claim occurs when an standing concerns about kickbacks you may email one of the lawyers on our entity defrauds the government in order and the routine waiver of co-pay- whistleblower litigation team: Andrew. to avoid an obligation to pay, as opposed ments, because they can impose sig- [email protected], Archie. to an entity defrauding the government in nificant cost on federal health [email protected], Larry.Golston@ order to obtain some sort of payment. The programs that are not medically beasleyallen.com or Lance.Gould@beas- former is known as a reverse false claim justified. leyallen.com. You can also call them at because the subject of the fraud flows One of the largest areas of FCA litigation 800-898-2034. opposite of the usual direction. After is health care fraud. For example, since Sources: 59 FR 65372-01, 1994 WL 702552 (F.R.)., FERA, the court could hold one liable for January 2009, the government has recov- U.S. Department of Justice conspiring to commit either type of fraud. ered $19.3 billion from health care fraud actions alone. The FCA contains a qui tam provision, which provides an avenue for $55 Million Health Care Fraud Scheme Waiver Of Medicare Copayments Could Lead ordinary citizens to aid the government in Discovered At Two Brooklyn Medical To FCA Liability detecting and deterring health care fraud. Clinics Furthermore, the FCA both protects and Waiver of Medicare copayments or rewards those brave individuals who step Medical clinics Prime Care on the Bay deductibles could result in liability under forward and report fraud. One way to (Prime Care) and Bensonhurst Mega the False Claims Act (FCA). A Medicare detect health care fraud is to look at the Medical Care, P.C. (Bensonhurst) have “deductible” is the amount a Medicare marketing practices of the providers, prac- pleaded guilty to conspiracy to commit beneficiary must pay before Medicare titioners, and suppliers. The following are health care fraud. Prime Care and Benson- pays for any items or services. Similarly, a seven marketing practices that could iden- hurst, located in Brooklyn, New York, copayment is the amount a Medicare ben- tify those who routinely waive Medicare along with several individuals associated eficiary must pay before Medicare pays deductibles and copayments. with the two clinics, submitted $55 the remaining balance of a medical bill. million in false and fraudulent claims to The routine waiver of deductibles and • Advertisements stating “Medicare Medicare and Medicaid. The scheme copayments are unlawful because they Accepted as Payment in Full,” “Insur- involved subjecting patients to medically result in violations of the Anti-Kickback ance Accepted as Payment in Full,” or unnecessary health services provided by Statute. Violations of the Anti-Kickback “No Out-Of-Pocket Expense.” unqualified staff. The two clinics admit- Statute are then actionable under the False ted further that, in order to cover up the Claims Act. • Advertisements promising Medicare fraud, occupational and physical thera- When a provider, practitioner, or sup- beneficiaries will receive “discounts.” pists falsified patient charts and medical plier routinely waives Medicare copay- • Routine use of “Financial Hardship” billings. Moreover, one of the Defendants ments or deductibles, they are misstating forms, stating the beneficiary is unable admitted they paid the patients to attend the actual charge. For instance, suppose a to pay the copayment/deductible. these clinics and the Defendants opened a practitioner, who claims $100 for a partic- bank account for the sole purpose of laun- ular service, routinely waives the copay- • Collection of copayments and deduct- dering funds and paying these illegal kick- ment of $20. The actual charge is $80, ibles only when the beneficiary has back payments. meaning Medicare should be paying 80 Medicare supplemental insurance In the government’s battle against percent of $80 and not 80 percent of coverage. fraud, the False Claims Act (FCA) has $100, a difference of $16. The misrepre- become an invaluable weapon. The FCA • Charges to Medicare beneficiaries that sentation results in Medicare paying an contains a qui tam provision that permits are higher than those made to other additional $16 each time the practitioner individuals to not only blow the whistle persons for similar services or items. charges for this service. on fraud, it also provides incentives for Routine waiver of copayments or • Failure to collect copayments or deduct- individuals to step forward and report deductibles could result in violations of ibles for a specific group of Medicare fraud. These incentives include 15 to 30 the Anti-Kickback Statute (AKS). The AKS patients for reasons unrelated to finan- percent of the funds recovered by the gov- makes it illegal to offer, pay, solicit, or cial hardship. ernment, as well as protection against receive anything of value as inducement retaliation. The monies recovered through to generate Medicare business. When a • “Insurance programs” covering copay- the FCA replenish the tax pool and serve provider, practitioner, or suppler routinely ments or deductibles only for items or to deter other companies from commit- waives Medicare copayments or deduct- services provided by the entity. ting the same fraud. ibles, for reasons other than financial One of the largest areas of FCA litigation Are you aware of fraud being commit- hardships, they may be violating the AKS is health care fraud. For example, since ted against the federal government, or a by inducing patients to purchase their ser- January 2009, the government has recov- state government? If so, the FCA can vices or items. ered $19.3 billion from health care fraud protect and reward you for doing the right Naturally, when Medicare overpays for actions alone. The qui tam provision pro- thing by reporting the fraud. If you have any item or service, there are less Medi- vides an avenue for ordinary citizens to

JereBeasleyReport.com 9 aid the government in detecting and been an increased rate of complaints higher rate than those who received deterring health care fraud. Furthermore, about the ready-to-use formula. fewer contacts, that Celgene knew the FCA both protects and rewards those Mead began an inquiry, but the lawsuit its promotional activities were deliv- brave individuals who step forward and says that investigators “falsely claimed” a ering results, and that marketing to report fraud. defective seal didn’t constitute a food doctors is generally effective. In safety or FDA compliance problem since addition, Brown presents evidence any spoilage resulting from a defective that hundreds of thousands of Mead Johnson Whistleblower Lawsuit seal would be obvious. It’s alleged: claims for off-label uses of Thalomid Claims Baby Formula Packaging Defective and Revlimid were presented to gov- It became clear that senior manage- ernment healthcare programs A whistleblower lawsuit has been filed ment’s hope was that the defective during the years when Celgene was against Mead Johnson, alleging that its products would make their way engaged in off-label promotion of baby formula is vulnerable to spoilage. through the marketplace without these drugs, that Celgene knew The whistleblower lawsuit was filed by a any major incidents of harm to con- Medicare would be called upon to former Mead Johnson Nutrition compli- sumers and without having to fulfill pay for many of these prescriptions, ance director who claims she was eventu- their legal obligations to report the and that Celgene played an active ally fired after raising concerns about known problem. role in facilitating the submission of packaging defects. Linda O’Risky, who Mead Johnson, whose Enfa family of certain claims. was a consultant and employee for Mead brands includes Enfamil infant formula, Johnson for more than 25 years, contends The biotech company had argued that denied the allegations in the complaint. the whistleblower could not identify a in a lawsuit filed in U.S. District Court in The company claims the packaging matter Chicago last month that the Glenview- particular claim that was submitted as a cited in the suit was thoroughly reviewed result of its off-label promotion. But the based maker of pediatric food products by the U.S. Food and Drug Administration, “touted its hermetically sealed liquid court said that Ms. Brown is not required and no action was required. to do so, and that her case can go forward. formula as safer than powdered formula.” Ms. O’Risky, who lost her job in Novem- But in reality, it’s alleged, “the seals on the “False claims were presented as a result of ber 2015, wants a jury trial and is seeking Celgene’s conduct,” Judge King wrote. 8-ounce product were prone to leaking, her job back, as well as two times back making it easier for microorganisms and The judge also dismissed Celgene’s argu- pay and compensatory and punitive ment that government health care pro- other contaminants to enter the damages, among other things. packaging.” grams were aware of the off-label uses and Source: Chicago Tribune The lawsuit says the Plaintiff spent continued to reimburse them. seven months in 2015 trying to persuade Judge King did dismiss some of Brown’s her managers to comply with Food and claims against Celgene, narrowing the Drug Administration (FDA) regulations Judge Rules Whistleblower’s Off-Label jurisdiction of the case. An allegation that and contacted the publicly traded compa- Marketing Suit Against Celgene Can Celgene provided kickbacks to doctors, ny’s “integrity concern hotline.” But it’s Proceed To Trial which caused submission of claims for off- alleged that she was eventually excluded label reimbursement, was dismissed by A federal judge in California has ruled from meetings and shunned. The lawsuit the judge. While Ms. Brown was hired by that a multi-billion dollar whistleblower says the company later fired her, claiming Celgene in April 2001 as an immunology lawsuit against biotech giant Celgene it was due to a cost-cutting restructuring, specialist, it appears she actually per- Corp. can proceed to a jury trial. The com- but the suit alleges that unlike the 50 formed sales work. plaint alleges that Celgene marketed two other Evansville workers who also lost Ms. Brown says she became concerned drugs for unapproved uses, causing the their jobs, Ms. O’Risky’s computer was when her manager instructed her to call government to pay for hundreds of thou- immediately confiscated, she was told to doctors to ask them to change billing sands of “off-label” prescriptions. Judge leave the premises by noon, and she was codes associated with prescriptions of George H. King, of the Central District of escorted out of the building. Ms. O’Risky Celgene’s drugs. Ms. Brown said she com- California, wrote in an order that former is alleging retaliations in violation of the plained to management about the prac- employee Beverly Brown had provided Food Safety Modernization Act, the Sar- tice, which she thought was illegal. She solid evidence to support her claim that banes-Oxley Act and the Dodd-Frank Wall later contacted the FDA and then hired a Celgene promoted Thalomid and Revlimid Street Reform and Consumer Pro- lawyer. In 2010, Ms. Brown filed her “false for use in cancer patients. The U.S. Food tection Act. claims” lawsuit against Celgene on behalf and Drug Administration (FDA) had Ms. O’Risky says she learned of defec- of the federal government, 24 states, the approved the drugs only for other pur- tive seals in March 2015, when she was District of Columbia, and the City poses, and the company was not permit- copied on an email stating that Mead of Chicago. ted to market it to doctors for unapproved, Johnson planned to reject nearly a million It’s alleged in the complaint that or off-label, uses. Judge King wrote: units of 8-ounce ready-to-use formula. She Celgene illegally promoted Thalomid, which was approved in July 1998 for a realized that those manufacturing dates Brown’s evidence shows that rare skin disorder, for a variety of cancer were nearly two months earlier—suggest- Celgene engaged in a systematic treatments. In May 2006, Thalomid was ing there could be more products with a campaign to promote off-label uses given a second approval for use, with similar problem. The lawsuit alleges that of Thalomid and Revlimid that phy- dexamethasone, in patients with newly Ms. O’Risky knew from her role in analyz- sicians who received more promo- diagnosed multiple myeloma. The com- ing consumer complaints that there had tional contacts prescribed at a

10 BeasleyAllen.com plaint covers the years 2000 to the Lawyers in our firm, and especially • Firearms unexpectedly fire without ini- present. Celgene won its first approval for those in our Personal Injury & Products tiating the trigger; Revlimid, in December 2005, for treat- Liability and Mass Torts Sections, see this ment of patients with transfusion-depen- pain and heartbreak on a daily basis, and • Toxic cosmetic products, such as talc, dent anemia due to myelodysplastic more often than not, the results can be cause cancer to users that were told the syndromes (MDS). According to the Amer- catastrophic. They include products were safe; ican Cancer Society, about 13,000 people instances where: • Drugs with side effects cause strokes, are diagnosed with MDS each year. That heart attack or death, like Vioxx; drug largely replaced Thalomid. Rev- • Takata airbags explode and maim or kill limid’s sales last year were $5.8 billion. occupants; • Defective medical devices, like trans- The U.S. Justice Department has not for- • Airbags fail to deploy; vaginal mesh, fail and painfully affect mally joined the case, but it has filed doc- the lives of tens of thousands of people; uments supporting its basic arguments. • Defective seatbelts do not work during Celgene could be liable for damages for an accident; • Defective heavy-duty equipment, such hundreds of thousands of claims submit- as a blowout preventer, contributes to ted to 20 states, Medicare, and other gov- • Tire defects cause blowouts, and ulti- the Deepwater Horizon oil spill; mately, deadly rollovers; ernment entities. • Products emit dangerous levels of radia- Source: statnews.com • Poor automobile roof design leads to tion and cause cancer. catastrophic roof crush; In our world of global commerce and • There is sudden, uncontrolled and unin- trade, one defectively designed product VII. tended acceleration of vehicles; can touch thousands, if not millions, of PRODUCT lives. Most of the time, recalls and correc- • Ignition switch defects cause vehicles tive action can stop defects in new devices LIABILITY UPDATE to stall at the worst possible time; and sometimes catch old defective devices • Defective cab guards on heavy duty before they reach and hurt consumers trucks allow loads to obliterate the driv- but, too often, we find where these prod- Product Liability Protects Lives er’s cabin; ucts have slipped through the cracks and hurt people notwithstanding corrective While much of today’s political discus- • There is faulty or compromised automo- action. As a result, the best defense sion involves social issues, most people bile reinforcement structure; against product liability heartbreak is pre- rarely think about the critical laws that vention, and that prevention is product protect all of us. Having litigated product • Poor automobile fuel lines or lubricant liability law and enforcement. A strong, liability cases for years, I can say without storage design cause a vehicle to burst fair and independent judicial system is hesitation that these laws, and our ability into flames; essential and absolutely necessary. to seek justice when a company violates • Pressure cookers, heaters and dishwash- The American people should be able to them, protect millions of lives throughout ers burst into flames due to cheap com- assume that the products they use are our country every single day. Many com- ponent parts; safe. The water we drink, the food we eat, panies would cut corners if these laws and the automobiles we drive, the planes we our ability to seek justice did not exist, • Fire alarms fail to work; fly, the air we breathe, the safety devices and, too often, cutting corners costs inno- we believe will protect us, the consumer • Poorly-designed hot tubs and baths trap cent lives. These laws establish an equilib- products we use—they all depend on the and drown the elderly; rium of sorts because they protect the assumption they are safe. We must never assumptions we all make in our everyday • Children’s toys are made with toxic sub- take those assumptions (and the laws that lives. We rarely think about these assump- stances, including lead paint; allow us to make those assumptions) tions because these laws exist and for granted. because to think otherwise can be too • E-cigarettes and cell phones explode scary to even consider. due to cheap parts or defective Unfortunately, product liability law, and batteries; An Update On The E-cigarette Litigation the right to a trial by jury, are under • ATVs and golf carts roll over effortlessly attack. The U.S. Chamber of Commerce, There have been a growing number of and kill occupants (many have no roof oftentimes mistaken by the public as a product liability lawsuits filed by consum- reinforcement); branch of government instead of the cor- ers alleging that some e-cigarette devices porate special interest group that it is, is • Guardrails impale vehicles and their and their lithium-ion batteries are defec- constantly seeking to erode products lia- occupants instead of protecting them; tive. These lawsuits claim that e-cigarettes bility law and the right to a trial by jury. and/or their lithium-ion batteries They are not concerned with safety, but • Automobile occupant seats col- exploded unexpectedly causing severe instead with further increasing corporate lapse or break; burns and injuries. Plaintiffs have largely profits. We see in our practice on almost a focused their actions against retail shops • Automobile door latches fail, causing daily basis the cost of these efforts—in and distributors. For many of these cases, ejections from belted occupants; money, pain and, many times, in it is difficult to include the manufacturer human life. • Diseased food severely sickens or kills; of the defective products, as they are

JereBeasleyReport.com 11 often located in other countries such Talcum Powder treat. Complications from these infec- as China. tions include hospitalization, implant Recently, a New York court awarded a Johnson and Johnson has known for revision surgery, limited mobility, man $1.2 million in damages in a lawsuit decades that its talcum products, permanent disability, amputation filed against a retail store following an such as Shower to Shower and Baby and death. e-cigarette explosion that left him with Powder, can cause ovarian cancer. severe burns on his torso and thigh. The But J & J has failed to warn women of Lawyer: Melissa Prickett lawsuit alleged that a 37-volt lithium-ion the risk of using these products in the Primary Contact: Penny Davies 18560 battery that was intended for use in genital area. A Harvard medical ® electronic cigarettes exploded in the doctor says that he has studied the Invokana link between talc and cancer for 30 Plaintiff’s pocket. Because of the explo- ® years and believes talc is the likely Approved in March 2013, Invokana sion, the Plaintiff underwent debridement (canagliflozin) is an SGLT2 Inhibitor of damaged skin, and a skin grafting pro- cause for as many as 2,200 cases of ovarian cancer each year. used to treat adults with Type 2 dia- cedure. The Plaintiff’s hospitalization betes, manufactured by Janssen Phar- lasted six days. The case involved allega- Lawyers: Ted Meadows, Danielle maceuticals, a subsidiary of Johnson tions that the battery was defective and Mason and David Dearing & Johnson. SGLT2 inhibitors work by dangerous, that the retail store was strictly Primary Contacts: Katie Tucker, preventing high blood sugar by liable for the battery’s defect, the retail Gwyn Harris or Amy Brown helping the patient’s kidneys remove store negligently failed to provide a excess sugar through their urine. In proper warning, and that the battery’s Xarelto® May 2015, the U.S. Food and Drug defect constituted a breach of the prod- Administration (FDA) issued a uct’s express and implied warranties. Approved by the FDA in 2011, warning the drug has been linked to ® Previously, we reported that a Califor- Xarelto is one of the newest blood cases of ketoacidosis, a serious condi- nia jury awarded a woman $1.9 million in thinners on the market. It is manufac- tion where there is too much acid in damages in a lawsuit filed against a tured by Janssen Pharmaceutical (a the blood. Complications of diabetic retailer, distributor and wholesaler follow- subsidiary of Johnson & Johnson) and ketoacidosis include difficulty breath- ing an e-cigarette explosion that left the co-marketed by Bayer Healthcare. It is ing, nausea/vomiting, abdominal victim with similar burns. In that case, the prescribed to prevent blood clots in pain, confusion and unusual fatigue Plaintiff’s attorney used experts to show patients suffering from atrial fibrilla- or sleepiness. The condition can lead that the e-cigarette devices and their lith- tion, pulmonary embolism, deep vein to diabetic coma and/or death. ium-ion batteries lack appropriate safety thrombosis and stroke, and patients controls to prevent combustion. who have recently undergone hip or Lawyers: Danielle Mason and Our lawyers are continuing to investi- knee replacement surgery. Since its Melissa Prickett gate new e-cigarette explosion claims and approval, it has been linked to hun- Primary Contact: Penny Davies are filing cases on behalf of individuals dreds of injuries and deaths. We are injured by those devices. If you would like currently investigating claims of GI IVC Filter more information about these cases, you bleeding, hemorrhagic strokes or any Retrievable IVC filters are wire can contact Will Sutton, a lawyer in our other serious or fatal bleeding involv- devices implanted in the vena cava, Toxic Torts Section. He can be reached at ing Xarelto®. I will write in more the body’s largest vein, to stop blood 800-898-2034 or by email at William. detail on the Xarelto litigation below. clots from reaching the heart and [email protected]. Lawyers: David Byrne and lungs. These devices are used when Source: Verdict Search Melissa Prickett blood thinners are not an option. Primary Contacts: Susan Harding Manufacturers include Bard, Cook or Penny Davies and Johnson & Johnson. While per- VIII. manent IVC filters have been used 3MTM Bair Hugger since the 1960s with almost no MASS TORTS reports of failure, retrievable IVC UPDATE The 3MTM Bair Hugger is a forced hot filters were introduced in 2003, pro- air warming blanket, used primarily moted for use in bariatric surgery, to help maintain a patient’s body tem- trauma surgery and orthopedic Lawyers in our Mass Torts Section have perature during surgery. The 3MTM surgery. Risks associated with the been very busy. In fact, Andy Birchfield, Bair Hugger pushes warm air through retrievable IVC filters include migra- who heads up this Section, says the a flexible hose into a blanket draped tion, fracture and perforation, leading lawyers and support staff are busier than over a patient. However, warming to embolism, organ damage and ever. Andy has put together a tremendous blankets can recirculate contami- wrongful death. group in the Section. The lawyers in the nated air over a patient’s body, includ- Section will investigate any medication or ing over an open surgical site. This Lawyer: Melissa Prickett device claim involving catastrophic injury may result in infections like MRSA or Primary Contact: Penny Davies or death. The following are some of the sepsis. In particular, patients under- drugs and devices our lawyers and going knee or hip replacement support staff are currently working on: surgery are at risk of infections deep in the joint, which is very difficult to

12 BeasleyAllen.com Metal-on-Metal Hip Replacements including peptic ulcers and gastroin- populations. The most severe form of testinal reflux disorders, and are SJS is toxic epidermal necrolysis Metal-on-Metal hip replacement man- available both as prescription and (TENS). SJS occurs twice as often in ufacturers have been under heavy over-the-counter drugs. Popular PPIs men as in women. Most cases of SJS scrutiny over the past few years include Prilosec, Prevacid, and appear in children and young adults regarding the dangers of their metal- Nexium. Use of PPIs has increased in younger than 30. Females with SJS are on-metal hip devices. The main hip the U.S. from 3.4 percent to 7.0 twice as likely as males to develop devices under scrutiny are: percent among men and from 4.8 TENS, and have an even higher Johnson & Johnson/DePuy: ASR Total percent to 8.5 percent among women chance if taking a category of drugs Hip Replacement and ASR Resurfac- from 1999-2000 to 2011-2013, accord- known as NSAIDs, non-steroidal anti- ing System hip (Recalled on August ing to the National Health and Nutri- inflammatory drugs. 24, 2010); tion Examination Survey, and 14.9 million patients received 157 million Lawyers: Frank Woodson and • Johnson & Johnson / DePuy: Pinna- prescriptions for PPIs in 2012. Matt Munson cle metal-on-metal hip; Primary Contact: Renee Lindsey We are currently investigating cases • Zimmer: Durom Cup hip; involving PPI use and Acute Intersti- Testosterone Replacement Therapy tial Nephritis (AIN), which is a condi- • Stryker: Rejuvenate and ABG II tion where the spaces between the Testosterone Replacement Therapy Stems (Recalled on July 4, 2012); tubules of the kidney cells become products for men have been linked to inflamed. Case reports have linked an increased risk of death, heart • Biomet: M2a and 38 Diame- attack and stroke. Researchers found ter hips, and PPI use to AIN as early as 1992, and observational studies in 2014 and men who used testosterone therapy • Wright: (a) Conserve, (b) Dynasty, 2015 provided further evidence of the were 30 percent more likely to have a (c) Lineage and (d) Profemur link between PPIs and AIN. The heart attack, stroke, or die after three (femur fracture) hips. injury appears to be more profound years of use. Furthermore, men who in individuals older than 60. While started the study with clear, unob- Metal-on-metal hip patients from the individuals who suffer from AIN can structed coronary arteries were just above manufacturers have similarly recover, most will suffer from some as likely to have a heart attack, stroke reported problems after their initial level of permanent kidney function or die as men who entered the study implant surgery resulting in revision loss. In rare cases individuals suffer- with established coronary artery surgery. All have reported a variety of ing from PPI-induced AIN will require disease. Testosterone therapy, such as symptoms, including pain, swelling kidney transplant. Our lawyers are the prescription topical treatments and problems walking. These symp- currently investigating PPI-induced Androgel, Testim and Axiron, are toms are normal for patients follow- acute interstitial nephritis cases. used to help boost testosterone levels ing a hip replacement, but can be a in men who have a deficiency of the sign that something is wrong if they Lawyers: Roger Smith and Liz Eiland male hormone. Symptoms of low tes- continue or come back frequently. Primary Contact: April Worley tosterone include decreased libido Additionally, metal debris spreading and low energy. Lawyers in the in the hip area has been reported due Risperdal® section are currently investigating to the metal-on-metal friction claims of heart attack, stroke, DVT, ® involved from the metal components Risperdal is an atypical antipsy- pulmonary embolism and pros- moving together. chotic drug used to treat schizophre- tate cancer. nia and certain problems caused by Our lawyers will review any cases bipolar disorder and has been linked Lawyer: Matt Teague involving individuals who have had to the development of gynecomastia Primary Contact: Heather Hall any of the above metal on metal hip in boys and young men. Gynecomas- devices implanted and all individuals tia is a condition that causes boys to Viagra® unsure of the type of hip device grow breasts. implanted if the person has had revi- A preliminary study indicates that sion surgery, or the person is experi- Lawyer: James Lampkin erectile dysfunction drug Viagra® encing hip pain, hip swelling or Primary Contact: Crystal Jacks (sildenafil) may increase the risk of difficulty walking. developing melanoma, the deadliest Stevens-Johnson Syndrome form of skin cancer. The study, pub- Lawyer: Navan Ward lished in the JAMA Internal Medicine Primary Contacts: Donna Puckett and Stevens-Johnson syndrome is an journal, analyzed data from nearly Stephanie Dean immune complex hypersensitivity 26,000 men, 6 percent of whom had reaction that can be caused from an taken Viagra. The men who used Proton Pump Inhibitors infection or immune response to Viagra at some point in their lives had drugs. It is a severe expression of a about double the risk of melanoma Proton pump inhibitors (PPIs) were simple rash known as erythema mul- compared to men who had never introduced in the late 1980s for the tiforme. SJS is also known as ery- taken the drug. Men who were cur- treatment of acid-related disorder of thema multiforme major. It affects all rently taking Viagra were at an 84 the upper gastrointestinal tract, ages and genders including pediatric

JereBeasleyReport.com 13 percent greater risk of developing there have been no well-controlled migration, bacterial infection, sepsis, Melanoma. Our lawyers are currently studies in pregnant women. The FDA and even death. looking at cases involving men who has received nearly 500 reports of are taking or have taken Viagra and birth defects linked to Zofran®. Birth Lawyer: Melissa Prickett were diagnosed with melanoma. defect risks include cleft palate and Primary Contact: Penny Davies septal heart defects. Lawyer: Melissa Prickett In addition to the lawyers listed as Primary Contact: Penny Davies Lawyers: Roger Smith and Liz Eiland primary contacts, there are other lawyers Primary Contact: April Worley working on these projects. While I only Zimmer NexGen Knee Replacement named the primary contacts, if you have Taxotere difficulty reaching the contact lawyer Since 2003, more than 150,000 named for a specific project, contact Zimmer NexGen Flex-Knee implants Taxotere is a chemotherapy drug that Melissa Prickett at 800-898-2034 or by have been sold. Several different com- belongs to a family of drugs called email at Melissa.Prickett@beasleyallen. ponents used as part of the Zimmer taxanes. Taxotere is administered com. She will make sure you are con- NexGen Flex-Knee replacement intravenously and is approved to treat tacted by a lawyer who is knowledgeable system have been associated with breast cancer and other forms of about your specific request. increased risk of complications, cancer. In 2007, manufacturer Sanofi- including pain, swelling, loosening of Aventis touted the efficacy results of a component parts, and the need for clinical study involving Taxotere, but Fourth Talc Trial Starts In St. Louis follow-up/revision surgery. Several failed to inform the FDA, health care prominent surgeons want a Zimmer providers, and the public that a Beasley Allen lawyers returned to St. NexGen knee replacement recall to number of patients taking Taxotere Louis in early February to begin our be issued. At a March 2010 confer- experienced permanent hair loss. fourth talcum powder trial. Our firm rep- ence of the American Academy of While hair loss during chemotherapy resents Ms. Nora Daniels, who was diag- Orthopedic Surgeons, two knee sur- is a well-known side effect, patients nosed with ovarian cancer in May 2013 geons presented data suggesting that undergoing chemotherapy with Tax- after having used Johnson & Johnson talc the Zimmer NexGen Flex-Knee otere were not warned that they for more than 30 years. The case was a failure rate could be as high as 9 could potentially experience perma- “Defense pick.” Beasley Allen has repre- percent, and that the actual number nent hair loss, which is a devastating sented three prior Plaintiffs in talcum of complications that require revision condition, particularly for women. In powder cases in St. Louis, totaling nearly surgery could be even higher. The December 2013, the FDA announced $200 million in verdicts against Johnson lead author of the study, Dr. Richard that it had ordered Sanofi-Aventis to & Johnson and Imerys Talc America, the Berger, described the failure rate of change Taxotere’s label to warn mining company which supplies talc to the Zimmer NexGen CR-Flex Porous patients of the risk of permanent hair Johnson & Johnson. Femoral Component as “unaccept- loss. We are currently investigating Despite three prior trials, Johnson & ably high.” cases of women who suffered perma- Johnson still claims that its talcum nent hair loss following Taxotere che- powder products do not cause cancer. Our lawyers will review any cases motherapy. We—on behalf of Ms. Daniels—will involving individuals who have had a counter this assertion by presenting the Zimmer NexGen knee device Lawyers: Beau Darley and jury with evidence of studies dating back implanted, or individuals unsure of Melissa Prickett several decades showing an increased risk the type of knee device implanted, if Primary Contact: Penny Davies of ovarian cancer among genital talc that individual has had revi- users. Internal documents from its own sion surgery. Physiomesh files will demonstrate that the Defendants Lawyer: Navan Ward Physiomesh is a flexible polypropyl- knew of these risks. At press time we Primary Contacts: Donna Puckett and ene mesh used for hernia repair, were still putting on the Plaintiff’s case Stephanie Dean designed to reinforce the abdominal and Defense was expected to end its case wall to prevent future hernias. in early March. The lawyers from our firm Zofran® However, Physiomesh is actually who are involved include Ted Meadows, linked to a higher rate of hernia Danielle Mason, David Dearing, Roger Manufactured by GlaxoSmithKline, recurrence than other similar Smith, Ryan Beattie and Brittany Scott. ® Zofran (ondansetron) was approved meshes. In May 2016, Ethicon issued Ted and Allen Smith are co-leads to treat nausea during chemotherapy a voluntary recall of its product, in the case. ® and following surgery. Zofran works citing unpublished data that showed Four additional talc trials are currently by blocking serotonin in the areas of that people who underwent hernia set to take place in St. Louis this year. the brain that trigger nausea and repair with Physiomesh were more Additional trials are scheduled in Wash- vomiting. Between 2002 and 2004, likely to need future surgeries than ington, D.C. and California this summer as ® GSK began promoting Zofran off- patients treated with competitor well. If you need more information on this label for the treatment of morning products. Other potential complica- subject, contact Brittany Scott, a lawyer in sickness during pregnancy, despite tions include organ perforation, mesh our firm’s Mass Torts Section, at 800-898- the fact the drug has not been 2034 or by email at Brittany.Scott@beas- approved for pregnant women and leyallen.com.

14 BeasleyAllen.com Xarelto Litigation Update ongoing discovery. The first trial involving District of Arizona, in front of Judge David Plaintiff Joseph Boudreaux is set to begin Campbell. The Bard MDL is currently in I mentioned the Xarelto litigation on April 24, 2017, in the Eastern District of the process of selecting its first bellwether briefly, but more needs to be said on this Louisiana. Plaintiff Joseph Boudreaux will case. The bellwether process involves litigation. Currently, there are approxi- argue that he started taking Xarelto to taking to trial a small number of represen- mately 14,000 individual Xarelto cases control his atrial fibrillation in January tative cases. After those cases are tried or consolidated before U.S. District Judge 2014 and less than a month later was hos- settled, the process is repeated until an Eldon Fallon in the United States District pitalized for dangerous gastrointestinal overall resolution of all of the claims can Court for the Eastern District of Louisiana. bleeding requiring multiple blood transfu- be reached in some manner. The cases are part of multidistrict litiga- sions. The second bellwether trial involv- The Bard MDL started with a group of tion (MDL) as ordered by the Judicial ing Plaintiff Joseph Orr, Jr. is set to begin 48 cases—24 chosen by Plaintiffs’ counsel Panel on Multidistrict Litigation. MDL is a on May 30, 2017, in the Eastern District of and 24 chosen by Defense lawyers. This consolidation of civil cases transferred Louisiana. group will be narrowed down to six cases from different jurisdictions around the Lawyers in our Mass Torts Section are in April. The first of these cases will go to country to a single United States District currently taking cases involving serious trial in the fall of 2017. The Court has indi- Court to achieve certain pre-trial efficien- injuries or death related to Xarelto use. cated that other bellwether cases may go cies. The aim of this consolidation is to For more information, contact Andy Birch- to trial before the end of this year. preserve judicial resources, eliminate field, David Byrne, Beau Darley or Melissa The bellwether process is also under- duplicities in the fact-finding process, and Prickett at 800-898-2034 or by email at way in the Cook Medical, Inc., IVC Filters prevent inconsistencies in pre-trial [email protected], David. MDL. Three cases are currently being pre- rulings. In addition to the numerous [email protected], Beau.Darley@ pared for trial. Lawyers are taking deposi- claims before Judge Fallon in the MDL, beasleyallen.com or Melissa.Prickett@bea- tions of Plaintiffs, treating physicians, and claims involving Xarelto are pending in sleyallen.com. other fact witnesses, including sales repre- Pennsylvania and California state courts. Sources: Case Management Order No. 2D, In re: sentatives who visited the Plaintiffs’ Xarelto, a blood thinner developed by Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. doctors, as well as expert witnesses. The Johnson & Johnson unit Janssen Pharma- 2592 (E.D. La. Jan. 30, 2017) and The Legal Examiner first trial is expected to begin on Oct. 23, ceuticals, Inc. and Bayer Corp., was ini- 2017, with another trial to follow tially approved in 2011 to reduce the risk in May 2018. of blood clots, deep vein thrombosis IVC Filter Litigation Update Beasley Allen lawyers continue to inves- (DVT), and pulmonary embolism (PE) fol- tigate cases involving injuries caused by lowing knee and hip replacement surgery. More than 1,500 lawsuits are pending retrievable IVC filters. For more informa- It was later approved to reduce the risk of around the country against the manufac- tion, contact Melissa Prickett or Liz Eiland, stroke and blood clots in patients with turers of retrievable IVC filters, with Plain- lawyers in our firm’s Mass Torts Section, non-valvular atrial fibrillation, and to tiffs alleging that they were seriously at 800-898-2034 or Melissa.Prickett@beas- prevent the occurrence of blood clots in injured by the devices. Removable IVC leyallen.com or Liz.Eiland@beasley- patients with DVT and PE. When Xarelto filters are cage-like wire devices placed in allen.com. was first released on the market, the man- the inferior vena cava, a large vein that ufacturers advertised the drug as being carries blood from the lower body back to the “first and only once-a-day prescription the heart. The filters are designed to stop FDA Again Warns About Homeopathic blood thinner” that was proven to reduce blood clots that form in the legs from Teething Tablets the risk of stroke in patients with AFib not reaching the heart and lungs, and are used caused by a heart valve problem that in patients who cannot take blood thin- We previously reported that the FDA didn’t require routine blood monitoring. ners like Coumadin. had warned parents against using homeo- Whereas patients taking warfarin, the Permanent IVC filters have been in use pathic teething products. In September leading anticoagulant for decades, must since the 1960s with few complications. 2016, the FDA announced that it was con- undergo regular blood monitoring to be However, retrievable IVC filters have a ducting an investigation into the products sure the dose is correct, patients taking high rate of failure. Potential complica- in response to more than 400 adverse Xarelto were told they didn’t have to do tions from retrievable IVC filters include event reports over the past six years, that. Instead, they had only to take the device fracture, migration, and perfora- including 10 reported deaths. drug once a day with their evening meal. tion of the inferior vena cava, which can Now, the FDA says that its laboratory This was extremely appealing to both lead to embolism, organ damage, analysis found inconsistent amounts of doctors and patients and prescriptions of and death. belladonna, a toxic substance, in certain Xarelto skyrocketed. However, Janssen Litigation is moving forward against the homeopathic teething tablets, sometimes Pharmaceuticals and Bayer failed to warn manufacturers of these devices. Cases far exceeding the amounts claimed on the doctors and the FDA that in clinical trials, involving Cordis IVC filters are consoli- product’s label. Janet Woodcock, M.D., patients taking Xarelto had more gastroin- dated in California state court, while Bard director of the FDA’s Center for Drug Eval- testinal bleeds and needed more transfu- and Cook Medical IVC filter cases each uation and Research, said “[t]he body’s sions than those taking warfarin. have a multidistrict litigation (MDL) in response to belladonna in children under On Jan. 30, 2017, Judge Fallon entered federal court. two years of age is unpredictable and puts Case Management Order 2D, which post- The Bard IVC Filters Products Liability them at unnecessary risk.” The FDA again poned each of the previously scheduled Litigation (MDL No. 2461) is pending in warned parents not to purchase bella- bellwether trials by one month due to the United States District Court for the

JereBeasleyReport.com 15 donna-containing teething tablets and to process by an 8-7 vote. The FDA Advisory tributed between October 2008 and Sep- dispose of any in their possession. Committee was concerned that during the tember 2015, and encompasses Standard Homeopathic Company has first month of clinical trials for Invokana, approximately 3,600 of Zimmer Biomet’s not agreed to conduct a recall of its 13 participants receiving the drug had a shoulder systems. The recall states that Hyland’s homeopathic teething products. heart attack or stroke, compared to only patients who experience humeral tray However, according to the company’s one in the placebo group. fractures may need surgeries to revise the website, the product is no longer being Invokana has also been associated with failed shoulder arthroplasty, and could distributed in the United States. a number of other serious side effects, suffer “permanent loss of shoulder func- For more information on this subject, including diabetic ketoacidosis (DKA). As tion, infection or, rarely, death.” contact Melissa Prickett or Liz Eiland, you may know, DKA is a type of acidosis Zimmer Biomet began contacting lawyers in our firm’s Mass Torts Section, that develops when insulin levels are too patients who received the devices subject at 800-898-2034 or Melissa.Prickett@beas- low or during prolonged fasting that can to the recall in late December. Persons leyallen.com or Liz.Eiland@beasley- lead to difficulty breathing, nausea, vomit- who had the Zimmer Biomet Comprehen- allen.com. ing, abdominal pain, confusion and sive Shoulder System used in their total Sources: Law360.com, FDA.gov and Hyland.com unusual fatigue or sleepiness. We wrote in shoulder arthroplasty, and have since a recent edition of this Report that from experienced complications, may have a March of 2013, when the FDA approved it, claim. If you need more information, J&J And Jansen Pharmaceuticals Look To to October of 2015, the agency received contact Matt Munson, a lawyer in our Expand Uses For Invokana 101 reports of confirmable cases of acute Mass Torts Section, at 800-898-2034 or by kidney injury, some requiring hospitaliza- email at [email protected]. As lawsuits move forward over Invo- tion and dialysis. In approximately half of kana, Johnson & Johnson’s Type 2 diabe- the cases, the acute kidney injury tes medication, the pharmaceutical giant’s occurred within only one month of start- subsidiary Jansen Pharmaceuticals, which ing the drug. IX. manufactures the drug, hopes clinical In December, the Judicial Panel on Mul- INSURANCE AND trial results will be enough to earn it clear- tidistrict Litigation consolidated 55 cases FINANCE UPDATE ance later this year for use in treating dia- from across the U.S. into a multidistrict lit- betic patients’ heart problems. Invokana is igation (MDL). It also appointed U.S. Dis- a prescription medicine that is used along trict Judge Brian R. Martinotti to preside Class Action Lawsuit Filed By Beasley with diet and exercise to lower blood over the MDL that is pending in New Allen Lawyers In Washington sugar. It is normally taken in combination Jersey federal court. The cases allege Jansen failed to properly test the Type 2 with another drug, like Metformin or Glu- Lawyers at Beasley Allen have filed a diabetes drug and warn of the risks and cophage, to decrease insulin resistance, class action lawsuit in the Eastern District consequences of using it. As we men- because Invokana alone does not lower of Washington against Voya Retirement tioned in the February issue, Beasley Allen blood sugars enough to make it an effec- Insurance & Annuity Company (Voya) and lawyer Danielle Mason was appointed to tive single agent for the treatment Lincoln Life & Annuity Company of New the Plaintiffs’ Steering Committee. She of diabetes. York (Lincoln NY), along with their will help guide the process of pursuing When the U.S. Food and Drug Adminis- parent companies, for their unfounded justice for those suffering from J&J and tration (FDA) approved Invokana in 2013, cost of insurance (COI) increases. Both Jansen’s failures. it required Jansen to conduct a random- Voya and Lincoln NY are for-profit life ized controlled trial evaluating Invokana’s insurers, and per an agreement between cardiovascular risks. Jansen launched that the companies, as of October 1998, clinical trial seven years ago, called Cana- Zimmer Biomet Recalls Comprehensive Lincoln NY reinsures and serves as admin- gliflozin Cardiovascular Assessment Study Reverse Shoulder System Due To Excessive istrative agent for certain Voya policies— (CANVAS/CANVAS-R), which is expected Humeral Tray Fractures policies held by the Plaintiffs to the to wrap up later this year, according to action. The complaint alleges that the Zimmer Biomet has initiated a Class I ThePharmaLetter. The trial includes as Defendants have implemented the COI Recall of its popular Comprehensive many as 10,000 patients living with Type 2 increases ultimately to benefit sharehold- Reverse Shoulder System due to an exces- diabetes. ers and rid Voya and Lincoln of near-term sive number of fractures in the humeral One part of the trial has measured the liabilities they have accrued due to their tray component. Unlike traditional total effect of Invokana on patients’ major past poor investments and wrongful use shoulder arthroplasty systems, the Com- adverse cardiovascular events including of captive reinsurance companies. prehensive Reverse Shoulder System cardiovascular death, non-fatal myocardial Due to heavy investments in illiquid swaps the humeral head (ball) and glenoid infarction and non-fatal stroke. Janssen mortgage-backed securities just before the (cup) to the opposite sides of the glenohu- hopes that the results will allow it to add financial crisis of 2008, the Defendants meral joint in hopes of achieving greater an indication to reduce the risk of cardio- became severely financially distressed. As range of motion in patients undergoing vascular death in adult patients with Type a result, they devised a scheme to conceal total shoulder arthroplasties. The humeral 2 diabetes, like Jardiance (another drug in their true financial condition by moving tray holds a polyethylene cup at the top of the same class as Invokana). billions of dollars of liabilities for policy- the humerus bone. The cardiovascular indication may be a holder claims off their balance sheets by The recall is limited to joint systems pipe dream for Janssen. Invokana using wholly owned captive reinsurance containing 300 specific lot numbers dis- squeaked through the FDA approval transactions. But in reality, these liabilities

16 BeasleyAllen.com remain with the insurer, since the wholly Corrupt Organizations (RICO) Act, the by several insurance carriers, owned captive reinsurance companies common law, and other statutory including North River. (unlike traditional reinsurance with third- provisions. party reinsurers) are incapable of satisfy- Lincoln and Voya are not the only insur- The litigation began in 2010, when ing the assumed obligations. This allowed ance companies raising premiums and North River sued MSA seeking a declara- Defendants to “free up” billions of dollars cost of insurance in order to account for tory judgment that it was not obligated to they otherwise would be legally required wrongful use of captive reinsurance cover asbestos product liability claims to hold as reserves—dollars that Defen- schemes. Multiple other life insurers have under three personal injury policies dants could now use to pay shareholder sent their universal life and/or flexible together dating from 1980-1983. MSA filed dividends. Conveniently, the finances of premium policyholders letters informing counterclaims for breaches of contract these captives are hidden from consum- them of an upcoming raise in costs— and bad faith. ers, the public, and even most regulators, usually claiming these increases are due The case went to a jury trial in Septem- and both the Lincoln and Voya Defendants to “an increase in mortality rates.” In ber, and on Oct. 6 the jury found that used this lack of transparency to further order to avoid a loss of coverage, consum- North River breached the three contracts their scheme. ers are paying these increases—often- at issue. That led to the award of $10.9 However, because the captive reinsur- times tripling or quadrupling the million in compensatory damages, the full ance transactions did not actually transfer policyholders’ original costs. amount of the contractual damages at the underlying risk associated with these Lawyers at Beasley Allen have also filed issue in the case. Judge Stanton Hertzberg liabilities, Voya and Lincoln NY remain lawsuits against Banner Life Insurance then held a nonjury trial in December on responsible for meeting these insurance Company and Transamerica, and they are the question of bad faith, which led to the obligations as they come due. Importantly, currently preparing to file complaints most recent damages award. this included a need for cash to cover the against other companies, alleging similar MSA continues to do battle with North billions of dollars of insurance obligations wrongful activity. If you have seen this River and other insurers in several venues. for universal life policies issued by Voya practice by any life insurance company, One of these cases is scheduled to go to and reinsured and administered by there may be a valid claim. If so, our firm trial in April in the Superior Court of Dela- Lincoln National and Lincoln NY. would like to investigate those potential ware. Mine Safety Appliances is repre- In order to find new cash with which to claims. You can contact Andrew Brashier sented by George Stewart, Brian Himmel, fund future dividends, and delay the inevi- or Rachel Boyd, lawyers in our Consumer Robert Nicholas and Michael Sampson of table financial disaster that could occur Fraud and Commercial Litigation Section, Reed Smith LLP. The case is North River because of its near-term liabilities, the at 800-898-2034 or by email at Andrew. Insurance Co. v. Mine Safety Appliances Lincoln and Voya Defendants conspired [email protected] or Rachel. Co. et al, (case number GD-10-007432) in with each other to generate more cash, or [email protected]. the Court of Common Pleas of Allegh- cause policyholders to lapse or surrender eny County. their policies, thereby erasing Defendants’ Source: Law360.com liabilities, by hitting policyholders with MSA Awarded $47 Million In Punitives As A exorbitant charges that Defendants falsely Result Of Insurer’s Bad Faith told policyholders were based on COI X. increases. A Pennsylvania state court judge has In reality, the dramatic increases in awarded MSA LLC, a subsidiary of safety PREMISES monthly payments that Defendants levied equipment manufacturer MSA Safety Inc., LIABILITY UPDATE on policyholders are not due to legitimate nearly $47 million in punitive damages. COI increases but are the direct conse- This came after a long-running insurance quence of the Lincoln and Voya Defen- coverage dispute with North River Insur- $227 Million Settlement Reached In Deadly dants’ scheme to continue taking cash out ance Co. The punitive damages awarded Center City Collapse Case of their insurance company subsidiaries by Allegheny County Court of Common while masking their troubled financial Pleas Judge Alan Hertzberg are in addition The 17-week-long civil trial of lawsuits condition from the public. The improper to the $10.9 million awarded by a jury to filed in the deadly 2013 Center City build- increases are not permitted under the MSA LLC (formerly known as Mine Safety ing collapse came to an abrupt close on terms of the policies. Appliances Co.) in a breach of contract Feb. 8 with the announcement of a $227 These charges do not result because of lawsuit. The punitive damages were million settlement with the Salvation an increase in the COI, but rather are a awarded under a Pennsylvania statute cov- Army and New York real estate speculator result of a conspiracy on the part of ering bad-faith claims-handling matters. Richard Basciano. This civil trial was Defendants to address past practices of Kenneth Krause, MSA Safety Chief Finan- called the longest in Philadelphia state funneling billions of dollars out of their cial Officer, said in a statement: court history by Common Pleas Court insurance subsidiaries despite their finan- Judge M. Teresa Sarmina when the jury cial distress by raiding policyholder We believe the outcome of this case demonstrates that our subsidiary was told of the settlement. This settlement accounts and improperly charging was also the largest personal injury settle- insureds who have dutifully paid premi- MSA LLC has strong legal positions concerning its rights to insurance ment in Pennsylvania state court history, ums to Defendants for years, often according to reports. The settlement pro- decades. Because of these actions, Plain- coverage and the overall collectabil- ity of the amounts owed to MSA LLC ceeds will be divided among the families tiffs and Class Members are seeking relief of the seven people who died and the 12 under the Racketeering Influenced and who were injured as a result of the June 5,

JereBeasleyReport.com 17 2013, collapse of a Basciano building telling workers and customers about the Con Ed Agrees To $153 Million Settlement being demolished. The adjacent Salvation potential danger. Salvation Army officers In Deadly New York City Gas Explosion Army thrift store was crushed when the testified that they did not believe Sim- building collapsed. monds’ warnings. But the jury, in its liabil- New York State and Con Edison have The manner in which the money will ity verdict on Jan. 31, found that the reached a $153.3 million settlement over a be apportioned among the 19 Plaintiffs charity bore 75 percent of the responsibil- 2014 East Harlem gas explosion that will be up to an arbitrator who will evalu- ity for the shoppers being killed and destroyed two buildings and killed eight ate the individual claims. As with most injured in the collapse. The jury found people. The settlement was announced by civil trials involving death and personal that Basciano and his STB Investments Gov. Andrew Cuomo’s office that called injury, awards are based on such factors as Corp. were responsible for a total 18 the agreement the largest gas-safety lost earning potential, medical bills, and percent of the harm to shoppers killed related financial settlement in state the impact on victims’ families. The Plain- and injured in the collapse and 68 percent history. The settlement was approved by tiff who will definitely receive the largest of the harm to thrift store workers killed the New York State Public Service Com- portion of the settlement is Mariya Plekan, and injured. mission and Consolidated Edison. It a Ukrainian immigrant and regular cus- Trial testimony showed that Basciano includes a fund of more than $25 million tomer of the thrift store. Ms. Plekan, then and his top aide failed to do due diligence specifically for the company’s gas custom- 52, was buried under the store’s rubble for research before hiring Marinakos, who ers. That money will be spent in a way to 13 hours. Her injuries were so severe she had no major experience monitoring a be determined by the commission. underwent a “guillotine amputation,” the large commercial demolition. The testi- Con Edison also agreed not to seek surgical removal of the lower half of her mony also showed Basciano accepted reimbursement from consumers for $125.5 body at the hips. Ms. Plekan has under- without investigation Marinakos’ recom- million spent on leak-response activities gone 30 surgeries, survived kidney failure mendation to hire Campbell, an inexperi- since the explosion. Attorney General and lung problems, and lost her ability to enced and unlicensed contractor, to Cuomo said in a statement: speak because of throat damage from handle the demolition project. All of this The East Harlem explosion was dev- months on a respirator. She will require was a recipe for disaster. astating and entirely avoidable. round-the-clock nursing care for the rest The settlement’s announcement came This landmark action is a pointed of her life and her future medical after three days of testimony from several reminder to the energy companies expenses are estimated at $50 million. survivors and families of one of the dece- of their awesome responsibility to It was reported that $200 million of the dents. At the time of the settlement, the maintain safety first and foremost. settlement will come from the Salvation jury was deliberating on damages to com- Army and $27 million from the 91-year-old pensate the victims for their injuries and The Attorney General’s settlement does Basciano. No money is being paid by losses. Had the trial continued, the jurors not resolve outstanding civil liabilities Defendants Plato A. Marinakos Jr., an would have been in deliberations on puni- related to the explosion brought by indi- architect hired by Basciano to monitor the tive damages against Basciano and the Sal- viduals against the company. The settle- demolition of the vacant four-story build- vation Army. ment follows a 2015 report by the ing; demolition contractor Griffin Camp- The Plaintiffs are represented by Robert Department of Public Service that found bell; and Sean Benschop, Campbell’s Mongeluzzi, Larry Bendesky, Andrew Con Edison violated safety regulations in excavator operator. Federal court records Duffy and Jeffrey Goodman of Saltz Mon- the lead-up to the explosion. According to show that Marinakos emerged from bank- geluzzi Barrett & Bendesky PC, Steven the governor’s announcement, the ruptcy in 2012, the year before the col- Wigrizer and Jason Weiss of Wapner company failed to properly qualify lapse. It was reported that his liability Newman Wigrizer Brecher & Miller PC, employees to perform certain tasks and insurance coverage was exhausted. Camp- Andrew Stern and Elizabeth Crawford of did not install valves capable of shutting bell and Benschop, the only two crimi- Kline & Specter PC, Harry Roth and James down the gas system during emergencies. nally convicted in the disaster, are serving G. Begley of Cohen Placitella & Roth PC, National Transportation Safety Board long prison terms and are indigent. Adam Grutzmacher of Clearfield & Kofsky, (NTSB) investigators in 2015 said in a It was reported that the deciding factor James Golkow of Golkow Hessel LLC, public hearing that a line installed in an in reaching a settlement was the fact that Bernard Smalley Sr. and Jasmine Johnson adjacent building to the two that were the Salvation Army’s liability insurance of Tucker Law Group, the Law Offices of destroyed was improperly fused to the was capped at $100 million. The balance R. Emmett Madden Esq., Joseph Marrone, main line. When the main line began to of the settlement will have to come from Michael Pomerantz, Brian Marchese and sag due to soil erosion caused by a nearby the Salvation Army. Interestingly, accord- Keith West of the Marrone Law Firm LLC, sewer main rupture, the newly fused line ing to the Salvation Army’s 2015 annual Jonathan Cohen of Jonathan M. Cohen began to separate, which allowed gas to report, which is on its website, the LLC, and the Law Offices of Jerome seep through the ground and into the two national organization has $14.8 billion in Gamburg. The case is Angelo Harmon as buildings. assets and took in $2.9 billion in revenue administrator of the estate of Juanita The New York City Department of Envi- that year. Harmon, et al., v. The Salvation Army, et ronmental Protection was faulted because The Salvation Army’s thrift store build- al. (case number 130700720) in the Court it had been notified of the rupture as early ing was destroyed and two of its workers of Common Pleas of Philadelphia County. as 2006 but decided to leave it be. That were killed. The Salvation Army was sued Source: Phillynews.com hole in the sewer line allowed groundwa- for ignoring warnings of an imminent col- ter to seep into the area and erode the soil lapse of the building from Basciano’s top around the gas pipeline, causing it to sag. aide, Thomas Simmonds, and for not The NTSB investigators found, had the gas

18 BeasleyAllen.com segment been fused properly to the then- family in an individual suit against the The case will now proceed in New York sagging main line, soil erosion wouldn’t National Football League (NFL). Justice state court. In April, a Pennsylvania have mattered. What resulted was a blast Manuel J. Mendez of the Supreme Court of federal judge approved an uncapped set- that not only killed eight, but injured 50 New York State denied the NFL’s motion tlement in multidistrict litigation (MDL) and displaced twice that number, accord- to dismiss the complaint filed by the between the NFL and about 5,000 former ing to an NTSB report. deceased player’s son, ruling he had suffi- players seeking damages for concussions The explosion, which occurred in ciently asserted his claims of fraud, con- and degenerative neurological conditions March 2014 at around 9:30 a.m., collapsed cealment and negligence for the wrongful resulting from their playing days. In two five-story buildings on Park Avenue death suit to move forward. October, dozens of ex-NFLers filed a new and sent so much debris flying that Metro- Art DeCarlo Sr. was drafted by the Bears head injury class action in Louisiana North Railroad had to shut its service in the 1953 draft, but began his profes- federal court against the NFL and football down for seven hours to clear material sional career with the Pittsburgh Steelers. helmet maker Riddell Inc. over the blown onto its elevated tracks. For the next two years, though, he served harmful effects of repeated head injuries Source: Law360.com in the military and returned to play for the and concussions in football, alleging they Washington Redskins in 1956. Ultimately, conspired to mislead players and the he retired from the Colts. While playing public about the known risks. $248,000 Jury Verdict In Lawsuit Over for the Colts, DeCarlo played in back-to- This ruling by Judge Mendez is not only Damage To Home back championships in 1958 and 1959, a win for the DeCarlo family, but a win for including the game dubbed “The Greatest all those with cases involving latent inju- A Texas family has won their case Game Ever Played.” ries. Recognizing the inherent impossibil- claiming the LBJ freeway expansion According to the complaint, the player ity of filing a claim within a traditional damaged their home. The Plaintiffs, suffered numerous concussive and sub- limitations period without any diagnosis, Aurora and Felipe Rodriguez, were the concussive blows during his years playing as would be required had the court first of 223 Plaintiffs to go to trial against professional football. In his later years, treated CTE as the NFL argued, Judge Trinity Infrastructure. The Plaintiffs all and as a result of what we now know to Mendez entered a well-reasoned and sup- claim the construction caused the homes be stage IV out of IV Chronic Traumatic ported ruling that allows this case to go to shift and crack and be damaged. The Encephalopathy (CTE), DeCarlo suffered a forward as it should. If you need more jury awarded the Plaintiff $248,000 to slow decline in his cognitive abilities. information on this matter, contact rebuild their home, finding the contractor Unfortunately for DeCarlo, there is no way Rebecca Gilliland, a lawyer in our firm’s behind the project at fault. The Rodriguez to diagnose CTE until a post mortem Consumer Fraud & Commercial Litigation family’s case was a test case meant to autopsy can be performed. Section, at 800-898-2034 or by email at gauge a jury’s response to the homeown- That CTE cannot be diagnosed until [email protected]. ers’ arguments and damages. after death is a major part of why Judge Sources: Law360.com, the opinion, and the complaint Unlike some houses that have back- Mendez denied the NFL’s Motion to yards running up to the LBJ freeway, the Dismiss. In making the ruling, Judge Rodriguez family lives a quarter mile Mendez described the disease as being Austal Allowed Use Of A Tool It Knew Was away. Their victory was seen as highly sig- akin to asbestos because “damage caused Dangerous nificant for other homeowners who have by both can take up to 20 to 40 years to also filed suit. During the trial, lawyers for manifest.” The judge said in his order: Since 2011, dozens of workers at the Trinity argued that there was no evidence Austal ship manufacturing plant in If plaintiff was suffering from a to prove the homeowners’ claims. But the Mobile, Alabama, have been injured by a latent condition, and the ability to jury disagreed. However, the jurors did dangerous cutting tool. It was reported diagnose the condition is not avail- not find the company owed the Rodriguez that management at the company had able until the death of the injured family any money for the “nuisance” it referred to the tool as the “widow maker.” party, then under the discovery rule caused. Dallas lawyer Dean Gresham rep- Between January 2011 and March 2015, 53 the cause of action arises upon the resented the Plaintiffs in this first case. workers were injured by the tool, suffer- discovery of the latent disease, i.e., ing gashes to face, neck and arms, while Source: CBSDFW.COM at the time an autopsy is performed. some even lost fingers. This information The discovery rule, combined with the came from Austal injury logs obtained as latent nature of CTE and that the rule was part of an investigation by the Center for XI. designed exactly for these types of inju- Investigative Reporting (CIR). WORKPLACE ries, meant the claims were not time- It was reported that Austal workers on barred. Judge Mendez wrote further: the manufacturing side of the business HAZARDS had raised concerns to health and safety The date of Mr. DeCarlo’s death is officials at the company in March 2011. Dec. 21, 2013 and Plaintiff com- Workers had complained about the New York Court Denies NFL Bid To Dismiss menced this action on Nov. 15, 2015. cutting tool, calling it “unsafe” and Individual Concussion Suit Therefore, plaintiff’s claims are warning that “someone is going to timely as the date of accrual for the get hurt.” Beasley Allen, along with lawyers from causes of action under these circum- The tool, originally a grinding device Leiff Cabraser and Tom Sinclair of Sinclair stances was the date of DeCar- manufactured by Metabo, is designed to Law Firm, represent Art DeCarlo and his lo’s death. cut through metal in straight lines, but

JereBeasleyReport.com 19 Austal swapped out the original discs for California Expands Duty Of Care To Cover Lawyers in our Toxic Torts section are saw blade-style discs that are faster and Household Members investigating severe lung injury cases can carve around edges. The operating involving workers exposed to harmful manuals that come with the tool specifi- The California Supreme Court recently chemicals on the job. If you have any cally warn against using saw blades, ruled that employers using asbestos in the questions about these cases, contact Chris stating in the operating manual that “such workplace have a duty of care to protect Boutwell or Ryan Kral, lawyers in the blades create kickback and loss employees’ household members from Section, at 800-898-2034 or by email at of control.” exposure to that asbestos brought home [email protected] or Despite $60,000 in fines and penalties by the employee. The court’s opinion was [email protected]. handed down by the Occupational Safety issued on two coordinated “take-home” and Health Administration (OSHA) for asbestos cases. exposing workers to “amputations, severe • One Plaintiff, who was diagnosed with lacerations, and other injuries,” it appears XII. mesothelioma, linked his exposure to that a quarter of the 4,000-strong work- his uncle who brought home asbestos TRANSPORTATION force at Austal may still be using the tool fibers lodged in his clothing from his today. “The government expects that con- work in a Pneumo Abex plant. tractors, such as Austal, should not only Firm Settles Wrongful Death Case Against deliver a good product, but also conduct • The second case was filed on behalf of a Nationwide Trucking Company operations in a safe manner,” Joseph mother who passed away from meso- Roesler, OSHA’s area director in Mobile, thelioma after also having been On Feb. 9, 2014, Desmond Rachard said when he announced fines against the exposed to asbestos fibers found on her Woods was driving his 1989 Ford Crown company in 2014. husband’s clothing after working at Victoria northbound on Interstate 65 in Austal has appealed the fines and penal- BNSF Railway Company. Autauga County, Alabama, when the ties. Interestingly, it was reported that vehicle experienced mechanical problems Austal’s top safety manager stated in a The court ruled that employers have a and shut off. The vehicle stalled in the 2015 email to employees that all injuries duty to take reasonable care to prevent right-hand lane of the interstate. Woods sustained from the cutting tool were the transmission of asbestos where it is and two other passengers got out of the because of “carelessness, improper use reasonably foreseeable that workers or vehicle to check under the hood. Kim- and complacency.” However, current and their clothing will act as “vectors carrying berly Livingston and Marquita Speer, two former Austal employees have filed a asbestos from the premises to household sisters, were back-seat passengers in the lawsuit against the company, claiming it members.” This duty also applies to prem- Woods car. They remained inside while intentionally endangered them by forcing ises owners who use asbestos on their the other passengers were outside looking them to use the cutting tool that managers property and extends to cover any house- to see why the car had stalled. While knew to be dangerous. Metabowerke hold member, regardless of whether they Woods was checking under the hood, a GmbH and Metabo, manufacturers of the are a relative. truck driver for a nationwide trucking tool, are also named in the suit along with Addressing the Defendants’ concerns company drove his 18-wheeler into the Southern Gas and Supply Inc., which sup- that creating such a blanket duty could back of the Woods vehicle. As a result of plied the tools to Austal. Brian Duncan, a lead to tenuous claims, the court limited the collision, both vehicles caught on fire lawyer for the workers, stated: the duty only to household members who and the two passengers in the Woods are “in close and sustained contact with vehicle burned alive. How does any company in America the worker over a significant period of Chris Glover, a lawyer in our firm, along sit there and say, ‘I’m going to have time.” The court reasoned this would limit with Robert Bruner of the Birmingham dozens and dozens of my employees potential Plaintiffs to an identifiable cate- firm Belt & Bruner, represented the Plain- injured using the same tool,’ and gory of persons who likely suffered legiti- tiffs in this case. Plaintiffs brought negli- not get another tool? To me, it rises mate, compensable damage. gence and wantonness claims against the to the level of intentional The court ultimately determined that truck driver and the trucking company, misconduct. the Plaintiffs’ exposures to take-home and negligent hiring, training and supervi- asbestos was foreseeable and that this sus- The lawsuit has been allowed to move sion claims against the trucking company. tained contact with asbestos increased forward by the court. However, Austal has It was discovered through our investiga- their likelihood of contracting mesotheli- already appealed to the Alabama Supreme tion that the Defendant truck driver suf- oma. The court rejected the Defendants’ Court to have the suit dismissed. The fered from sleep apnea, and that he had argument that a scientific consensus is appeal is pending. J. Brian Duncan Jr., a lied about this to his employer. The truck required to establish foreseeability in the lawyer with the Mobile firm Cunningham driver was also taking medication to context of duty analysis. & Bounds, represents the employees in combat daytime sleepiness and shift work Instances such as these illustrate how this litigation. disorder, which he also failed to disclose easily those not directly exposed to dan- Source: Mobile Press Register to his employer. The driver testified in his gerous particulates can contract deadly deposition that he deliberately withheld lung diseases. Thus, it is imperative for this information for fear he would not get employers to ensure that workers exposed a commercial driving job. However, the to such particulates decontaminate them- driver was truthful about his diabetes selves and do not endanger the health of diagnosis. The driver was still allowed to their household members. drive, despite the company’s internal

20 BeasleyAllen.com policy not to hire drivers with a glucose of years. Unfortunately, we have been nance include severe potholes, construc- more than 200 mg/dl. tone deaf to the data and the tion debris, items or equipment left in the Commercial carriers have the responsi- carnage on our roadways. If we fail path of traffic, excessive gravel or oil, or bility to make sure their drivers are medi- to take action, the death toll will poor drainage that allows water to pool cally qualified. This trucking company continue to rise. on the highway. had in its possession the driver’s Depart- Several years ago, our firm handled a ment of Transportation (DOT) long form About 4.6 million people required wrongful death case related to the death indicating he was diabetic. Therefore, he medical treatment after crashes, the safety of 15-year-old young man. This young man was not medically qualified to drive. The council said, an increase of 7 percent over died because of injuries he received in a Defendant trucking company had no 2015. The cost of deaths, injuries and one-vehicle accident that occurred in a system in place to monitor and enforce its property damage attributed to crashes highway construction zone on U.S. own safety policy regulations and was $432.5 billion, up 12 percent from Highway 80 near the Montgomery exposed the public to danger and risk of 2015. The safety council found a more Airport. The car was going through a tem- serious harm. Further, the company than 20 percent increase in traffic fatali- porary detour lane when it encountered a lacked any fatigue management program ties in seven states: New Mexico, Alaska, standing pool of water that covered nearly or program to monitor its drivers’ medical Hawaii, Iowa, Alabama, Kansas and New the entire width of the detour lane. The exams and medical conditions. Hampshire. Crash deaths declined by water caused the vehicle to hydroplane We were able to secure settlements for more than 10 percent in Wyoming, South and crash into a temporary barrier wall both families. The amounts are confiden- Dakota, North Dakota, Montana and and overturn. tial at the request of the Defendants. Chris Nebraska. There were less significant Evidence showed that the construction and Robert were honored to represent the drops in Delaware, Maryland, Minnesota, company doing work on behalf of the families of Kimberly Livingston and Mar- Pennsylvania, Virginia and Washington State of Alabama had failed to properly quita Speer. state. The District had 28 traffic deaths in maintain a drainage culvert, which caused 2016, an 8 percent increase from the pre- water to pool and back out onto the vious year. highway. Although the State was responsi- Source: The Washington Post There Was A Large Increase In Traffic ble for designing the construction project, Deaths On U.S. Highways Last Year the general contractor had the responsibil- ity under state specifications for providing The number of people killed in car The Hidden Hazards Of Highway Designs continuous maintenance and upkeep of crashes last year exceeded 40,000 for the the construction site to provide for the first time in a decade, reversing a trend Many folks do not realize that there can safety of the traveling public. that saw traffic fatalities dwindle for be hidden hazards in how a highway was Depending on what type of road is several years. Officials attribute the designed that often create safety issues involved, responsibility for the roadway increase mostly to the improved economy that contribute to causing deaths or inju- design or maintenance problems could lie and lower gas prices, which have led to ries each year in accidents. These hidden with the state-level transportation depart- more people driving for work and plea- hazards are becoming more visible ment or a city/county municipality. Unfor- sure. The statistics released by the because most of the highways and bridges tunately, many government agencies are National Safety Council offer the first full in the United States were built in the immune from certain types of injury picture of fatalities on the country’s road- 1950s and are now well past the end of claims. This immunity, commonly known ways in 2016. The numbers were signifi- their projected 50 years’ life expectancy. as “sovereign immunity,” can prove diffi- cantly higher than those projected by the Many of them are in desperate need of cult for personal injury claims. In the case National Highway Traffic Safety Adminis- repair or replacement. Even if the mentioned above, there was a private con- tration ­(NHTSA) due to a simple mathe- highway or bridge is not 50 years old, and, tractor hired by the State of Alabama that matical difference. despite the advances in roadway engineer- was responsible for the highway defect. The National Safety Council data shows ing and design in the last century, errors These are just a few of the potentially a 6 percent increase in deaths last year in design and construction still contribute dangerous roadway conditions faced by when compared with 2015 and a corre- to far too many motor vehicle accidents. drivers every day that could result in an sponding 3 percent increase in the There are two overall types of unsafe injury-causing car accident. Mike Crow, number of miles Americans drove last roadway cases: poorly designed roads and Julie Beasley and Ben Baker, lawyers in year. NHTSA statistics for 2016 will be poorly maintained roads. “Poorly designed the Personal Injury & Product Liability released later this year. Given the disparity roads” can include such things as tight Section, have successfully handled a in methods of calculations, NHTSA curves that cannot accommodate posted number of roadway design cases. If you counted 35,095 traffic fatalities in 2015, a speeds limits, inadequate or unclear road have any questions or if you would like to 7.7 percent increase from the previous markings, hidden or improper signs, dan- discuss a potential case, they can be con- year, while the National Safety Council gerous trenches, potholes or drop-offs; tacted at 800-898-2034 or by email at recorded 37,757. Deborah A.P. Hersman, blind intersections that put pedestrians [email protected], Julia. president of the National Safety Council and bicyclists at risk, improper grading or [email protected]. or Ben.Baker@ and former chair of the National Transpor- uneven roadways, or the lack of protec- beasleyallen.com. tation Safety Board (NTSB), said: tive equipment, such as guardrails. “Poor road maintenance” can also lead Motor vehicle fatality numbers have to serious car accidents and injuries. been ringing the alarm for two Examples of dangerous, defective mainte-

JereBeasleyReport.com 21 Federal Motor Carrier Safety Rules wheel training will help reduce crashes gerous aircraft. In fact, Scout Warrior Established No Minimum Hours Of Driver involving inexperienced truck drivers. reports that the U.S. Army is working with Training For Truck And Bus Drivers Furthermore, the leading commercial Bell Helicopter and the team from Sikor- driver’s license training schools already sky Aircraft and The Boeing Company to In July of 2012, Congress mandated require their students to complete a create a new fleet of aircraft that will certain rules in the trucking industry minimum number of hours behind-the- include a tilt-rotor technology design. under the “Move Ahead for Progress in the wheel training. The new federal standard As development and production contin- st 21 Century” Act, also known as MAP-21. falls short of even that. ues, the Army-led effort known as the The Federal Motor Carrier Safety Adminis- The current rule provides that training Joint Multi-Role Technology Demonstrator tration (FMCSA) was to establish providers must determine that each CDL has finished two high-tech, future ori- minimum training standards for entry- applicant demonstrates proficiency in all ented demonstrator helicopters. The dem- level driver training. required elements of the training in order onstrators, slated for ground testing later In 2014, the FMCSA announced its to successfully complete a program. The this year, anticipate taking their first flight intention to establish regulations for current rule that was issued on Dec. 7, next year. Designs for the new aircraft entry-level drivers training for drivers 2016, would go into effect on Feb. 6, 2017, fleet, or the Future Vertical Lift (FVL) operating commercial motor vehicles with full compliance by February of 2020. program, will allow the aircraft to travel both interstate and intrastate. On Dec. 7, It is hard to believe that a new truck much faster at 230 knots and have a longer 2016, the FMCSA announced a final rule driver does not receive any hours-behind- combat radius of 434 kilometers. New establishing a comprehensive national the-wheel training. Persons obtaining a designs and technology will also allow the minimum training standard for entry-level private pilot’s license have a minimum of next-generation aircraft to operate in commercial truck and bus operators 10 hours of solo flying; persons wanting “high-hot” conditions of 6,000 feet and 95 seeking to obtain a commercial driver’s to become a train engineer have 16 weeks degrees Fahrenheit—both of which create license (CDL). These standards address of on-the-job training where they actually difficult operating environments for heli- the knowledge and skill necessary for safe would control the train; and persons copters. Scout Warrior reports that operation of a commercial motor vehicle wishing to obtain a boat captain’s license advanced safeguards include future-ori- and provide entry-level driver training. have to be on a boat in the water for at ented sensors, weapons and guidance However, the initial proposed rule issued least 90 days of the prior 360 days prior to technologies, and minimal rotor in 2014 set forth 30 hours of training with issuance of a license. downwash. a minimum of 10 hours of behind-the- The final rule that was issued is not in Designed to operate as both an airplane wheel. The final rule issued on Dec. 7, the public interest because it does not and a helicopter, the tilt-rotor technology 2016, did not mandate the 10 hours of advance safety beyond the current prac- included in the Osprey’s design is a com- behind-the-wheel training. tice in which any and all untrained CDL promise that does not work, as reported On Jan. 3, 2017, the Advocates for applicants can perform basic minor move- previously in The Jere Beasley Report Highway and Auto Safety, the owner/oper- ments of commercial motor vehicles and (December 2016). Its tragically flawed ator independent driver’s association, obtain a commercial driver’s license designed has claimed 37 service members’ Truck Safety Coalition, and Citizen’s for without being exposed to the real world lives as a result of multiple issues over the Reliable and Safe Highways filed a petition experience of driving a commercial motor course of its lifespan, reports Righting for reconsideration asking the Federal vehicle on public roads while receiving Injustice. During one deadly accident in Motor Carrier Safety Administration to instruction from a qualified instructor. April 2000, an Osprey plummeted to the strengthen the rule to ensure that candi- Hopefully the Federal Motor Carrier ground while attempting to land at Arizo- dates applying for a commercial driver’s Safety Administration will reconsider the na’s Marana Northwest Regional Airport. license log a minimum number of behind- final rule that was issued and put in a The phenomenon known as the vortex the-wheel hours actually operating a com- minimum number of hours that new ring state (VRS) was responsible for the mercial truck on the public roads. applicants are required to spend behind deaths of all 19 Marines on board at the Advocates argue that without a minimum the wheel of a truck or bus. If you need time of the tragic incident. Quadcopter101 hour requirement for behind-the-wheel more information on this subject, contact explains that VRS occurs when a rotor- training, sufficient to provide exposure to Mike Crow, a lawyer in our firm’s Personal craft descends vertically too quickly. The actual operation of equipment, the final Injury & Products Liability Section, at propeller blades descend into the turbu- rule as published includes no measurable 800-898-2034 or by email at Mike.Crow@ lent downwash beneath the aircraft. means or minimum metric to ensure com- beasleyallen.com. Although VRS is a common problem for all mercial driver’s license applicants will Sources: www.fmcsa.dot.gove, www.fleetowner.com rotorcraft, the Osprey’s unique design can obtain some minimum training and expe- and Law360.com intensify the effect of the VRS by produc- rience both on the road and range. ing a sudden hard roll if only one of the Since the minimum final rule is not lateral rotors is affected. anchored in any measureable or quantifi- U.S. Military Hangs On To Osprey-Style, BreakingDefense explains that the able performance metric, the final rule Tilt-Rotor Design For Next-Generation Osprey’s rotors are about five feet shorter provides no means for insuring any Aircraft than what is ideal for its missions. The instructors will not take the easy, “one blades’ shorter-than-optimal length is nec- and done” alternative and render the final Tilt-rotor aircraft technology, similar to essary in order for the aircraft to fit on the rule ineffective. technology incorporated in the design of deck of an amphibious assault ship. Requiring candidates to drive a the U.S. Marine Corps V-22 Osprey, is not Further, the blades are twisted more than minimum number of hours of behind-the- going away despite its reputation as a dan- a helicopter’s, which allows them to grab

22 BeasleyAllen.com the air better when flying in airplane Times reported that she was accompanied manufacturing claims. It also held that the mode. The short, highly twisted blades by her 10-year-old daughter, Beth Crews, Act directed the FAA to create federal create downwash that can increase the and a 58-year-old retired orthopedic “minimum standards” for aviation safety, risk of VRS. The significant downwash surgeon, Dr. Virgil Becker. The three were but never intended to regulate the whole during brownout landings where dust and flying from Roche Harbor to Auburn, industry. dirt swathe the cockpit makes it nearly Washington, when the plane crashed just Two Ninth Circuit decisions also pro- impossible to land the craft safely—some- after 8:30 p.m. in the rugged terrain of the vided guidance in Becker. In Montalvo v. thing that is unavoidable in modern Bald Mountain area. The crash claimed Spirit Airlines, the Ninth Circuit held that combat locations. the lives of all three occupants. the federal Act did preempt state law The Bell-Boeing team, which currently The National Transportation Safety because the issue in that case, failure to makes the V-22 Osprey, recently received Board (NTSB) and the Federal Aviation warn about the increased risk of deep $138 million in additional funding for sup- Administration’s (FAA) local office investi- vein thrombosis from sitting for prolonged plementary work for V-22 aircraft that will gated the crash. Based upon the federal periods in cramped airplane seats, did fall be sold to Japan. The team also received investigators’ findings, Dr. Becker’s family within the FAA’s pervasive regulations of additional funding to complete repairs for claimed that a poorly manufactured car- passenger warnings. The Ninth Circuit the U.S. Navy’s version of the Osprey. buretor float caused the engine to stall, narrowed that holding in Martin v. While the Bell-Boeing team benefits which ultimately caused the crash. The Midwest Express Holdings, Inc. After from the supplemental contract funding, NTSB examined the carburetor float and falling down airstairs, a passenger sued which UPI reports could total $545 found that one of the float’s chambers was the airlines under state product liability million if all options are exercised, for the completely filled with aviation fuel. Court law. The court agreed that state law existing tilt-rotor aircraft, the industry documents explain that, “[a] float filled should prevail because the FAA had not giants all claim their designs are substan- with fuel can force the engine’s fuel feed “comprehensively regulated” the stairs tially advancing tilt-rotor technology. to remain open, causing the engine to and, therefore, had not intended to Bell’s V-280 Valor is a third generation tilt- flood and stall out.” The federal investiga- preempt state law. rotor aircraft with straight wings, which tion did not offer a reason for the filled Additionally, the Washington State Bell claims reduces the complexity of float; however, the family alleged that the Supreme Court also determined that the maneuverability. The Valor will include leak occurred because Forward Technol- history of the Act showed no Congressio- additional flapping in the rotor system ogy Industries Inc. (FTI), the company nal intent to preempt state law. On two along with individual controls making it that built the carburetor, failed to weld it separate occasions, in 1989 and 1993, pro- easier for the aircraft to operate and move correctly. posed legislation would have preempted at low-speed. The family filed suit against FTI alleging all state tort liability for general aviation The Sikorsky-Boeing duo’s Defiant uses a number of claims including a state accidents. Congress rejected both of these coaxial technology or large counter-rotat- product liability claim. The King County attempts to preempt state law. Specifi- ing rotor blades and some thrusting tech- Superior Court agreed with FTI’s argu- cally, in 1989, a Senate Judiciary commit- nology at the back. Details remain limited ment that federal law, the Federal Aviation tee report explained that committee as the designs continue to unfold, yet Act of 1994 (Act), preempted the state’s members did not want to take this right critics question whether the design product liability law because the Act’s reg- from the states. The committee members changes, evolving technology and prom- ulations were so pervasive that it excluded believed states should be able “to deter- ises for better safeguards will go far any other law’s authority—implied field mine their own standard of liability.” enough and better protect the pilots and preemption. The King County Superior Aviation cases in the future now have a crews than the first generation of the Court granted FTI’s motion for summary clear framework for determining when hybrid technology. judgment—dismissing the claim against federal preemption applies. Based on If you need more information about avi- FTI. The Washington State Court of Becker and decisions from the Third and ation product liability contact Mike Appeals agreed with the lower court. Ninth Circuits, federal preemption will be Andrews, a lawyer in our firm’s Personal However, the state Supreme Court over- a seldom occurrence. If you have any Injury & Product’s Liability Section, at turned the ruling, holding that the Act did questions contact Mike Andrews at 800- 800-898-2034 or by email at Mike. not preempt state product liability law. 898-2034 or by email at Mike.Andrews@ [email protected]. Mike handles The Washington State Supreme Court beasleyallen.com. aviation litigation for the firm. recognized two general guiding principles Sources: Seattle Times and Mondaq Sources: Scout Warrior, UPI, and cases handled by about state product liability law and Beasley Allen federal preemption. In general, state law governs product liability claims and, typi- cally, there is a presumption against State Product Liability Law And Federal finding implied federal preemption. It Field Preemption In An Aviation Case then relied on two recent federal courts’ opinions about a similar question of law to Brenda Houston was an experienced support its applying these principles to pilot who flew Boeing 737s, 757s and 767s the case at hand. for United Airlines. On the evening of July The Third Circuit, in Sikkelee v. Preci- 28, 2008, Ms. Houston was flying a much sion Airmotive Corp., held that although smaller airplane, a 1976 Cessna 172N, and the Act preempts the field of aviation it would be her last flight. The Seattle safety, it does not preempt all design and

JereBeasleyReport.com 23 XIII. Judge Rules That Monsanto Can’t Escape Judge Davila dismissed them with leave PCBs Suit to amend in August, finding that the cities ENVIRONMENTAL did not adequately show they have a prop- CONCERNS A California federal judge has ruled that erty interest affected by the PCBs. The Monsanto Co. can’t escape separate public cities simultaneously filed amended com- nuisance suits filed by San Jose, Oakland plaints in September that alleged a single and Berkeley seeking cleanup costs for cause of action, seeking compensatory California Cleared To Place Health allegedly contaminating the San Francisco and punitive damages for an alleged Warning Label On Roundup Bay with polychlorinated biphenyls public nuisance in the San Francisco Bay. (PCBs). U.S. District Judge Edward J. During 2014, farmers sprayed almost a The U.S. Environmental Protection Davila ruled that the cities have a legiti- pound of glyphosate—the active ingredi- Agency (EPA) has classified PCBs as prob- mate property interest in captured storm- ent in brand name Roundup weed killer— able human carcinogens, and PCBs may water under the state’s water code. on every acre of cultivated farmland in the also cause noncarcinogenic effects, The judge previously had granted Mon- United States. It is by far the most widely including reproductive effects and devel- santo’s motion to dismiss because the used herbicide in America, according to opmental effects, primarily to the nervous cities couldn’t show they owned stormwa- recent data findings. However, its popular- system. The chemical tends to accumulate ter that flows through municipal pipes to ity could pose potential health risks. By in the human body in the liver, fatty the bay, a requirement of a public entity to the end of January, California’s Environ- tissue, skin and breast milk. bring a non-representative nuisance action mental Protection Agency (Cal/EPA) San Jose is represented by J. Richard for damages. However, since then, new cleared a major hurdle in its efforts to list Doyle and Nora Valerie Frimann of the rules under California’s water code that glyphosate as a human carcinogen, Office of the City Attorney of San Jose. give cities a right to capture stormwater according to U.S. News & World Report. A Oakland is represented by Maria Bee, and put it to use have cleared a path for state court judge ruled against Monsanto, Barbara J. Parker and Otis McGee Jr. of the San Jose, Oakland and Berkeley to make the manufacturer of Roundup, saying the Oakland City Attorney’s Office. Berkeley their nuisance claims against the agro- state can require it to label its weed killer is represented by Lynne Sarah Bourgault chemical company. as a possible cancer threat. and Zachary Cowan of the Berkeley City While Judge Davila noted that public Glyphosate, a phosphonate compound Attorney’s Office. All three cities are also entities generally can’t bring nuisance that has no color or smell, has been linked represented by Carla Michelle Burke, claims against manufacturers, he said an to cancers, particularly non-Hodgkin’s Celeste A. Evangelisti, Paul Scott Summy exception exists if the Defendants “create lymphoma, and other health and environ- and Brett Land of Baron & Budd PC and or assist in creating a system that causes mental concerns, prompting Cal/EPA’s John Paul Fiske and John H. Gomez of hazardous wastes to be disposed of action. However, Monsanto has insisted Gomez Trial Attorneys. The cases are City improperly or ... instruct users to dispose consistently that it poses no risk to of Berkeley v. Monsanto Co. et al. (case of wastes improperly.” Judge Davila also humans. The company claims the pro- number 5:16-cv-00071); City of Oakland rejected Monsanto’s argument that a posed label would have “immediate finan- v. Monsanto Co. et al. (case number 5:15- statute of limitations bars any claims cial consequences for the company.” cv-05152) and City of San Jose v. Mon- against them since they stopped manufac- Monsanto sued California saying officials santo et al. (case number 5:15-cv-03178) turing PCBs in 1979, finding the cities’ illegally based their decision for the all in the U.S. District Court for the North- allegations of a causal connection warning label on the International Agency ern District of California. between Monsanto’s distribution of PCBs, for Research on Cancer’s (IARC) classifica- Source: Law360.com contamination of the bay and the alleged tion of glyphosate as a “probable human public nuisance were sufficient. The cities carcinogen.” IARC is a branch of the U.N. pled facts showing that Monsanto World Health Organization based in DuPont Settles Lawsuits Over Leak Of instructed users to improperly dispose of Lyon, France. Chemical Used To Make Teflon PCB waste, the judge added. The suit claimed that California violated This was the latest in a series of legal the state constitution by delegating DuPont and Chemours Co have agreed battles playing out across the West Coast authority to an unelected foreign body. to pay $671 million to settle thousands of between the agricultural biotechnology However, the state maintained that IARC lawsuits involving a leak of a toxic chemi- giant and local governments over its use is the “gold standard” for identifying cal used to make Teflon. According to of PCBs from 1930 through 1977. Con- human carcinogens and is used by other Chemours, it will pay half of the settle- gress had banned the toxin in 1977. The states and the federal government as a ment, even though liability for litigation suits allege that local governments have to source for health information. Cal/EPA is related to the chemical was passed on to pay to reduce the level of PCB discharge waiting until the judge officially issues a the company when DuPont spun it into San Francisco Bay waters, which formal decision, but if the proposed label off in 2015. occurs from stormwater runoff collected is carried out as expected, California The companies settled about 3,550 per- by their municipal stormwater systems. would be the first state in the U.S. to order sonal injury claims arising from the leak Berkeley, Oakland and San Jose brought the label be placed on Roundup. In that of perfluorooctanoic acid, which is also the instant suits against Monsanto and event, Monsanto, which is expected to known as PFOA or C-8, from its plant in units of Pfizer Inc. and Eastman Chemical challenge the ruling, would have a year Parkersburg, West Virginia. The leak alleg- Co., which used to be part of Monsanto, to comply. edly contaminated local water supplies over the past two years. Source: U.S. News & World Report and has been linked to six diseases, including testicular and kidney cancers.

24 BeasleyAllen.com Rob Bilott, a lawyer for the Plaintiff, said The lawsuit, filed under the federal cancer (e.g., testicular, kidney), liver in a statement: Resource Conservation and Recovery Act effects (e.g., tissue damage), immune (RCRA), seeks to force 3M, BFI Waste effects (e.g., antibody production and We look forward to working with Systems of Alabama, the City of Decatur, immunity), thyroid effects and other DuPont to finalize this settlement Morgan County and other entities to clean effects (e.g., cholesterol changes).” and get these injured class members up landfills and wastewater treatment Both chemicals were used primarily in paid as quickly as possible. plants the Plaintiffs say are still releasing manufacturing to create stain-resistant or DuPont said in a statement that it had those chemicals into the Tennessee River non-stick coatings on cookware, carpets, stopped using C-8 in operations at the and local groundwater. furniture fabric and other consumer prod- West Virginia plant more than a decade In the motions to dismiss, the Defen- ucts. The chemicals were used in com- ago. It had used the chemical there since dants argued that they were already acting mercial products Teflon and Scotchgard, the early 1950s. The settlement comes as with the Alabama Department of Environ- as well as common firefighting foam, until DuPont and Dow Chemical Co. expect to mental Management (ADEM) to clean up the health risks became more apparent. close their $130 billion merger later this some of the contaminated sites along the The EPA Health Advisory recommended year. In 2001, residents brought a class Tennessee River and that the chemicals in drinking water contain no more than 0.07 action against DuPont over C-8 exposure. question—perfluorooctanoic acid (PFOA) parts per billion combined of PFOA and The company agreed in 2004 to fund and perfluorooctyl sulfonate (PFOS)—did PFOS to avoid long-term health impacts medical monitoring programs and install not fit the definition of hazardous materi- from drinking the water over a number of new water treatment systems. als in the RCRA. But Judge Kallon ruled years. That announcement caused eight DuPont convened a panel of scientists the case could continue, noting “RCRA Alabama water systems to change their to determine whether any diseases were itself does not include a list of hazardous water sources to reduce concentrations of linked to C-8. The panel concluded that wastes nor a specific method for deter- PFCs below the advisory threshold. One there was a probable link with six ill- mining whether a waste is hazardous,” water provider, the West Morgan East nesses: kidney and testicular cancer, and that whether PFOA and PFOS were Lawrence Water Authority, issued a “do ulcerative colitis, thyroid disease, preg- hazardous would be the “crux of this not drink” recommendation to its custom- nancy-induced hypertension and high dispute.” David Whiteside, Tennessee ers until it could bring in outside water to cholesterol. Members of the class action Riverkeeper’s founder and executive dilute its supply, and then install a perma- lawsuit also sued DuPont individually, and director, said in a news release: nent filter. In its lawsuit, Tennessee Riverkeeper the litigation was consolidated in federal After nearly five decades of 3M’s pol- court in Columbus, Ohio. The company claims groundwater testing from the 3M lution of the Tennessee River, where facility in Decatur showed “[c]oncentra- agreed not to challenge whether C-8 can no one has held the defendants cause the diseases. tions of PFOA as high as 4,980 [parts per accountable, Riverkeeper needed to billion] and PFOS as high as 3,890 ppb,” Three verdicts in the litigation totaled act to protect this precious resource $19.7 million. Most recently, a jury thousands of times higher than the EPA and all the wildlife and restore advisory threshold. ordered DuPont to pay a plaintiff $12.5 justice to the hundreds of thousands million, including $10.5 million in puni- Other litigation involving these chemi- of people who rely upon her waters cals continues in north Alabama, and tive damages. The case is In re E.I. Du everyday. We don’t mind 3M Pont De Nemours and Company C-8 Per- around the country. The West Morgan making profitable products—but, East Lawrence Water Authority has a sepa- sonal Injury Litigation (case No. 13-2433) we cannot tolerate the defendants U.S. District Court for Southern Ohio. rate lawsuit against 3M and other manu- putting profit ahead of the health of facturing operations along the Tennessee Source: Reuters people, the environment, and River, seeking to force them to pay for our water. additional filtration equipment to remove The chemicals do not occur naturally, PFCs from the water it takes from the Alabama Water Pollution Lawsuit To river. Daikin America, one of the Defen- Proceed but according to U.S. Environmental Pro- tection Agency reports, some levels of dants in that suit, agreed last year to settle the claims against it for $5 million. The lawsuit in a federal court against PFOA and PFOS can be found in the blood- 3M and others over chemical pollution of stream of nearly every person on Earth Source: AL.com the Tennessee River near Decatur, because they are highly resistant to break- Alabama, will proceed. U.S. District Judge ing down in the environment and build up Abdul K. Kallon denied three motions to in animal tissue over time. Last year the XIV. dismiss filed by Defendants in the case. EPA revised its guidelines regarding these As we have previously reported, the chemicals, warning new research had UPDATE ON lawsuit, filed by environmental group Ten- shown the chemicals could be harmful to NURSING HOME nessee Riverkeeper, alleges that synthetic humans in lower concentrations than the chemicals manufactured by 3M at its plant Agency previously thought. LITIGATION in Decatur have been entering the Tennes- According to the EPA advisory, potential see River, including Wheeler Reservoir, a health effects of long-term exposure to major source of drinking water for these PFCs could include “developmental Nursing Home Oversight And Review decades, and that these chemicals pose a effects to fetuses during pregnancy or to threat to human health and the breastfed infants (e.g., low birth weight, Recently, South Haven Health and Reha- environment. accelerated puberty, skeletal variations), bilitation, a Montgomery, Alabama,

JereBeasleyReport.com 25 nursing home, was notified that it would injured party’s lawyer may not discover • allowing the patients to suffer multiple be losing its Medicare and Medicaid how many patients have been similarly falls and develop several infections due funding. Local news outlet WSFA reported harmed. Even if that information can be to substandard care. that South Haven was losing Medicare and collected by other means (such as a Medicaid benefits for its residents begin- request upon the ADPH or CMS), the The jury awarded the estates of Baird, ning March 1, 2017. The decision was information collected cannot be admitted Jones and Kee compensatory damages of made at the suggestion of the Alabama into evidence in the arbitration $50,000, $300,000 and $300,000, respec- Department of Public Health (ADPH) in proceeding. tively, and punitive damages to each estate conjunction with the Centers for Medicare Our senior citizens who have reached a in the amount of approximately and Medicaid Services (CMS). point in their lives where long-term care is $1.5 million. CMS is the federal agency that oversees in their best interests need more protec- The estates were represented by Rachel the operation of long-term care facilities, tions than are presently being afforded to A. Fuerst, Carmaletta L. Henson and such as South Haven, that receive govern- them. Expanded discovery and relaxed Thomas W. Henson Jr. of Henson & Fuerst ment benefits for their residents. It is a evidentiary rules are a must for nursing PA. The case is VanDevender et al. v. rare occasion when a nursing home loses home patients in Alabama. The legislature Blue Ridge of Raleigh LLC et al. (case its certification and benefits. In the case of needs to make changes in the current number 5:14-cv-00150) in the U.S. District South Haven, it is not known completely state of the law in Alabama. If you have Court for the Eastern District of at this time what the basis for the decerti- any questions relating to Nursing Home North Carolina. fication is, but history tells us that the Litigation, contact Ben Locklar, who Source: Law360.com offenses must be multiple. The ADPH has handles Nursing Home litigation for the reported numerous violations of federal firm, at 800-898-2034 or by email at Ben. law that warrant the withdrawal of gov- [email protected]. XV. ernmental benefits. Sources: WSFA.com and CMS.gov The decertification of this facility pro- An Update On vides a clear sign to residents of these Class Action facilities not to rely too heavily on the Jury Awards $5.2 Million In Nursing Home Litigation “star” rating system. A search of this facil- Deaths Litigation ity reveals that it has received four or more stars on a five-star rating system, A North Carolina federal jury found that indicating this is a quality health care a nursing home was at fault, causing the Judge Approves Transocean, Halliburton facility. In fact, the investigation of the deaths of three residents, and that it acted Agreements For Certain Deepwater Horizon government agencies reveals just with reckless disregard to their rights. Oil Spill Claimants the opposite. Their families were awarded $5.2 million Federal regulations require that nursing in compensatory and punitive damages. U.S. District Judge Carl Barbier has homes comply with 42 CFR Part 483, The jury determined that medical care approved two separate settlements for Subpart B, in order to receive Medicare given by nursing home Blue Ridge Health punitive damages worth a combined $1.24 and Medicaid benefits. Inspections of Care Center and management companies billion involving Halliburton and Trans- nursing homes are supposed to be unan- Care Virginia Management LLC and Care ocean and private claimants harmed by nounced, and inspection of the facilities One LLC was grossly negligent, inten- the 2010 Deepwater Horizon oil spill. may cover many days. Inspections cover a tional or in reckless disregard of the rights The settlements, initially reached in host of issues, such as staffing, training of of the three residents, Del Ray Baird, Eliza- June 2016, will pay about $903 million to staff, health condition of the residents, beth Jones and Bettie Mae Kee, and caused a “New Class” of claimants including com- number of reported incidents, quality of their deaths. The suit alleged that the mercial fishermen, and other groups that the facilities, competency of staff, record nursing home’s medical staff failed to were part of certain claims categories keeping and recording, and the like. properly monitor the patients, allowing involving punitive damages under general Our firm has a case pending against this them to remove their own breathing tubes maritime law. facility and is currently investigating at without proper safeguards in place, The settlements also pay about $338 least one other. The facility is owned by among other claims. The estates million to an assigned claims class, includ- Sava Senior Care, a health care company had alleged: ing several hundred thousand businesses that owns nursing owns in several states. that previously filed economic loss claims The issues with South Haven highlight • the patients all required ventilator or as a result of the BP oil spill. The assigned concerns that our firm has had with Ala- tracheotomy tubes, which the dis- claims cover those that BP lodged against bama’s law that tend to protect these facil- tressed patients were able to repeatedly its Deepwater Horizon partners Trans- ities. Nursing homes and other long-term remove on their own without medical ocean and Halliburton as part of a $9.2 care facilities are allowed to use that staff intervention. billion settlement the energy giant unconscionable benefit of arbitration. The reached in 2012 resolving economic and • Alarms that were supposed to monitor claims filed against these facilities, espe- property damages. the machines were found either turned cially those that are relegated to arbitra- BP has also paid about $13 billion in off or were manually turned off by staff. tion proceedings, occur in relative economic and medical claims as part of an secrecy. Also, when a lawsuit is filed • The nursing home is also accused of uncapped settlement in addition to a $20 against these facilities where the allega- administering anti-anxiety medication billion settlement resolving economic and tions relate to substandard patient care, an without proper monitoring; and

26 BeasleyAllen.com environmental claims filed by federal, The Seritage transaction is part of version of Actos and allowed the Plaintiffs’ state, and local governments. Lampert’s ongoing strategy to strip case to proceed on limited grounds. Sources: Law360 and Nola.com [Sears Holdings] of its valuable core A group of employee health funds and assets. [Sears Holdings] board purchasers of diabetes drug Actos filed a minutes confirm that Lampert was class action case against Takeda for alleg- Sears And Class Reach $40 Million the driving force behind the deal. edly delaying generic competition for the Settlement On 266-Store REIT Deal drug Actos. Takeda supposedly lied to the Other funds, including Fairholme U.S. Food and Drug Administration (FDA) Capital and affiliate Fairholme Funds, A shareholder lawsuit involving Sears about its patents to improperly extend its were accused of aiding and abetting direc- Holdings Corp. has been settled. The set- market exclusivity for Actos. tor breaches of duty. The suit alleged that tlement resolves complaints that con- The case concerns three Takeda patents four Sears Holdings directors had direct flicted insiders acquired control of $2.7 for Actos that were set to expire in connections to the Fairholme funds or ESL billion in company real estate while January 2011, and two follow-up patents and, as a result, stood on both sides of the paying only about 60 percent of the that were to expire in June 2016. The store transactions. Fairholme Capital owns overall value of its share. The suit, filed in Plaintiffs alleged that Takeda falsely stated 25 percent of Sears Holdings’ common mid-2015 as a derivative case on the com- to the FDA that the two follow-up patents stock, while Lampert and ESL own 54.6 pany’s behalf, accused company CEO and covered Actos ingredients, rather than percent. Seritage, meanwhile, was directly majority owner Edward S. Lampert—along methods of using the drug. That misrepre- controlled by Lampert and ESL, and “was with a hedge fund Lampert controls and sentation triggered a six-month exclusivity privy to all information about the relative seven directors—of playing a role in period for three generic drug companies values of the properties” involved in the unfair, undervalued agreements involving that were the first to seek approval from deal. All the directors involved, the suit 266 of Sears Holdings’ most valuable prop- the FDA to make generic versions of said, “were acting at the behest of erties, including both Sears and Actos, as well as a waiting period for six Lampert and ESL to approve the transac- Kmart sites. other generic drug companies that also tion. Seritage knew there was no indepen- Seritage Growth Properties, a real wanted to produce generic versions of the dence between the parties.” The estate investment trust (REIT), controlled drug. The Plaintiffs alleged that Takeda’s settlement, fee and incentive awards as by Lampert and ESL Investments Inc., misrepresentations to the FDA prevented well as broad liability releases agreed to acquired the properties by way of a rights competitors from timely marketing a by both sides all require approval by Vice offering structured to limit control or generic version of Actos. Chancellor J. Travis Laster. changes of control in the REIT. In turn, Specifically, the Plaintiffs claim that The Plaintiffs are represented by Chris- Seritage gained rights in some cases to Takeda’s false patent descriptions chan- tine S. Azar and Ralph N. Sianni of Labaton evict Sears or Kmart and market the prop- neled its competitors into a generic drug Sucharow LLP; Daniel C. Girard and Adam erties for more lucrative leases or redevel- approval process that granted the first-fil- E. Polk of Girard Gibbs LLP; Brian J. opment—a process already begun. The ing applicants a 180-day exclusivity Robbins, Stephen J. Oddo and Nichole T. complaint alleged: period, which in turn acted as a 180- day Browning of Robbins Arroyo LLP; Peter B. “bottleneck” to all later-filing applicants. While [Sears Holdings] may be Andrews and Craig J. Springer of Andrews Of the 10 generic applicants, nine took facing bankruptcy, Seritage has & Springer LLC; Alexander Arnold that route. Teva, on the other hand, increased in value and attracted Gershon and Michael A. Toomey of sought approval through another regula- sophisticated investors because of Barrack Rodos & Bacine; and Edward A. tory mechanism, but was thwarted when the properties it obtained in the Ser- Wallace and Mark R. Miller of Wexler the FDA announced that all generic manu- itage transaction and the terms of Wallace LLP. The case is In re: Sears Hold- facturers would be required to take the the master lease which favor ings Corp. Stockholder and Derivative “bottlenecked” route, which was Seritage. Litigation (case number 11081) in the Del- expressly based upon Takeda’s misrepre- aware Court of Chancery. sentation to the FDA regarding its patents. There were claims in the complaint that Source: Law360.com After the generic drug companies filed the property maneuvers and fiduciary their applications with the FDA to manu- breaches could lead to a bankruptcy filing facture their own generic versions of by Sears Holdings, at one time the nation’s Actos, Takeda sued the generics compa- third largest retailer. However, those XVI. nies for patent infringement. The Plain- named in the suit or their insurers will THE CONSUMER tiffs alleged that Takeda’s settlement with pay the $40 million, and not the the generic manufacturers resulted in a company itself. CORNER delayed market entry until August 2012 The lawsuit stems from Sears Holdings’ for the three first-filers and Teva and until announcement in April 2015 of its plans to February 2013 for the remaining six form Seritage as part of larger efforts to Actos Antitrust Lawsuit Kept Alive By The generics companies. The Plaintiffs ulti- boost liquidity. At the time of the Seritage Second Circuit mately alleged that they were wrongfully rights offering and store site acquisitions, obliged to pay monopoly prices for Actos half of the members of Sears Holdings’ On Feb. 8, 2017, the Second Circuit from January 2011, when Takeda’s patent board were affiliated with either ESL or Court of Appeals ruled that a class of on the active ingredient in Actos expired, Fairholme Capital, the company’s second- Actos purchasers plausibly alleged that to at least February 2013, when the mass largest investor. The lawsuit stated: drug company, Takeda, delayed market entry by Teva with respect to their generic of generic market entry occurred.

JereBeasleyReport.com 27 At the lower court level, U.S. District Whole Foods And Kombucha Maker Win $8 the court’s order. The class that was certi- Judge Ronnie Abrams dismissed the Plain- Million Mislabeling Settlement Approval fied includes people in the U.S. who pur- tiffs’ antitrust claims for failing to plausi- chased one or more of Millennium’s bly allege that Takeda’s false patent A California federal judge has granted kombucha drinks from March 11, 2011, to descriptions caused any delay in generic preliminary approval to an $8.25 million the notice date, which could comprise market entry. The district court reasoned settlement agreed to by consumers and millions of consumers. that the Plaintiffs failed to identify a viable Millennium Products Inc., and Whole In March 2015, Millennium was named regulatory route for generic drug approval Foods Market Inc. over mislabeling claims as the sole Defendant. The Plaintiffs later that would have avoided the 180-day bot- regarding the product’s antioxidant, added retailer Whole Foods, which sells tleneck, and that even if they had, they alcohol and sugar content. U.S. District and distributes GT’s Kombucha in its failed to plausibly allege how the generic Judge Philip S. Gutierrez had rejected a stores, to the suit. The complaint ulti- manufacturers would have avoided Take- previous settlement in September. The mately alleged violations of California’s da’s infringement lawsuits, all of which judge signed off on this agreement, which Consumer Legal Remedies Act, Unfair were voluntarily settled. The Court ruled in addition to the monetary payout to the Competition Law and False Advertising that it was incumbent upon the Plaintiffs class, requires certain labeling changes by Law; New York’s Deceptive and Unfair to allege that the generic companies knew Millennium Products Inc., the maker of Trade Practices Act and General Business of Takeda’s supposedly false patent the carbonated fermented tea drink Law; and other claims including fraud and descriptions to the FDA when they filed known as kombucha. Judge Gutierrez unjust enrichment. applications to manufacture their own wrote in his order: In September Judge Gutierrez denied versions of the drug but they failed to do preliminary approval of an earlier settle- The maximum settlement amount so. The Plaintiffs then appealed the ruling ment agreement, among other things, due of $8.25 million ... represents to the Second Circuit, which vacated a to the relationship between the amount of approximately 21 percent of the esti- portion of the District Court’s decision the settlement fund and alleged harm suf- mated potential recovery, which and revived the Plaintiffs’ case. fered by class members. The judge had falls well within the range of possi- The Second Circuit agreed with Judge also expressed concern over the disparity ble approval. Abrams only with respect to the generic in value between the cash and voucher companies other than Teva. The Second Jonathan Retta, Kirsten Schofield and options in terms of the award to be dis- Circuit held that with respect to Teva, Jessica Manire had claimed that Millen- tributed to class members. Under the because the Plaintiffs’ theory does not nium mislabeled its GT’s Kombucha current agreement, the cash award was require any knowledge on Teva’s part of product by using the term “antioxidant” increased to $3.50 for each purchased the false patent descriptions, the Plaintiffs when the drink allegedly doesn’t contain product, and a voucher is assigned the plausibly alleged that Takeda delayed any; saying the drink was “nonalcoholic” equivalent value. Teva’s market entry. Unlike Teva, the when it actually does contain alcohol; and Judge Gutierrez noted that since the court held that the other generic drug understating the amount of sugar in the maximum recovery at trial could amount companies would have to be aware of drink. Their suit was consolidated in to $38 million, the current $8.25 million Takeda’s allegedly false patent descrip- November with a related action in which settlement falls within the range of tions when they filed their applications consumers Nina Pedro and Rosalind Lewis approval, “in particular considering the for the Plaintiffs to have a viable case. The alleged that the fermented beverage leaks risks and expenses associated with contin- Second Circuit held that Teva, however, and can explode due to inadequate pack- ued litigation.” The consumers are repre- did not need to have knowledge of the aging and excessive carbonation. sented by Annick Marie Persinger, deceptions because its bid to market Under the proposed settlement, Millen- Lawrence Timothy Fisher and Yeremey O. generic Actos was thwarted by the FDA nium has agreed to stop ordering and Krivoshey of Bursor and Fisher PA; Clayeo based on Takeda’s patent descriptions. printing labels with the term “antioxi- C. Arnold and Joshua H. Watson of Clayeo The Second Circuit’s ruling that the dant;” to add a warning label that the C. Arnold APC; and John A. Yanchunis of class action Plaintiffs may pursue allega- drink contains naturally occurring Morgan & Morgan Complex Litigation tions that Takeda delayed Teva’s market alcohol; to add a warning label that “con- Group. The case is Jonathan Retta et al. entry due to its misrepresentations to the tents are under pressure” and that a v. Millennium Products Inc. et al., (case FDA is a positive ruling for class Plaintiffs. failure to refrigerate can “increase pres- number 2:15-cv-01801), in the U.S. District Beasley Allen has handled a large sure, causing product to leak or gush;” Court for the Central District of California. number of cases involving fraud, deceit, and to also ensure the accuracy of sugar Source: Law360.com and anticompetitive conduct within the content representation on the labels. The pharmaceutical industry. If any of our judge’s order certified the consumer class; readers are aware of these type of anti- appointed Retta, Schofield and Manire as Cookie Dough Company Owners To Step competitive acts, contact Ali Hawthorne, class representatives; appointed Bursor Down After Listeria Recalls a lawyer in our firm’s Consumer Fraud & and Fisher PA as class counsel; and also Commercial Litigation Section, at 800- ordered memoranda for the justification A cookie dough maker at the center of 898-2034 or by email at Alison.Haw- of proposed $2,000 incentive awards for recalled ice creams made by Blue Bell and [email protected]. the class representatives and for future other brands for listeria contamination Source: Law360.com attorneys’ fees requests. has said that its owners are stepping away Between March 2011 and October 2016, from the company following a recent U.S. Millennium sold nearly 275 million bottles Food and Drug Administration (FDA) of kombucha to distributors, according to warning letter. The owners of Iowa-based

28 BeasleyAllen.com Aspen Hills Inc., which supplies frozen inadequate to effectively control own a Vizio TV, you should go to your cookie dough and other products, have pathogens in your facility to prevent TV’s settings menu and look for informa- decided to cease their involvement in the contamination of food. Further- tion about automated content recognition company and are looking to wind up their more, Listeria monocytogenes found (ACR). You can find out more information affairs through a sale “or other orderly dis- in the environment of your facility on disabling those features there. position,” according to a spokesman for increases the risk of your finished Sources: Leada Gore with AL.com the company. product becoming contaminated. The process to step down has been The FDA acknowledged in the letter started and the company ended produc- FDCPA Violations Result In Settlement tion at the end of December, according to that Aspen Hills had taken steps to address the listeria issue, including hiring spokesman Jon Austin. He said in a The Federal Trade Commission (FTC) a third-party laboratory and consultant statement: recently announced that GC Services, a and revising its testing, cleaning and third party debt collection company, has Even so, we are committed to pathogen monitoring procedures. agreed to a settlement to resolve claims addressing any questions raised by Genetic testing of the samples taken that it violated the Federal Fair Debt Col- the FDA so that the agency can be from Aspen Hills showed that the listeria lection Protection Act (FDCPA). Pursuant assured that our commitment to the strain matched two samples taken from to the Settlement, GC Services agreed to safety and wholesomeness of our ice cream products tested by a commer- pay $700,000 in civil penalties and comply products will not waver even as we cial lab and one taken from a cookie with the FDCPA’s requirements. GC Ser- exit the market. To that end, we dough ingredient sample taken by the vices was accused of a number of FDCPA have detailed for the agency the state of Texas in 2016, according violations, including repeatedly contact- many changes to our procedures to the FDA. ing persons other than the debtor in an and practices we put in place in Source: Law360.com attempt to collect the debt. This is prohib- response to its oversight; we appreci- ited by the FDCPA because it not only con- ate the partnership and profession- stitutes harassment of persons that do not alism of its personnel throughout Company To Pay $2.5 Million For Tracking owe the debt, it also has the potential to this process. And Selling Data On 11 Million Customers embarrass the debtor if the person con- Texas-based Blue Bell Creameries Inc. tacted knows the debtor. If you own a Vizio smart TV, it’s very recalled all of its products in April 2015 The FDCPA is a federal statute intended likely that your viewing habits have been after 10 illnesses, including three deaths, to protect consumers from abusive debt tracked and sold to marketers. Television were reported. The illness onsets ranged collection practices perpetrated by third manufacturer Vizio will pay $2.5 million from January 2010 to January 2015, with party debt-collection agencies. Acts pro- to settle claims it tracked consumer incidents reported in Arizona, Kansas, hibited by the FDCPA include contacting viewing habits and then sold the informa- Oklahoma and Texas. The three deaths debtors after 9 p.m., threatening arrest, or tion. The agreement—which includes $1.5 were in Kansas, according to the U.S. using abusive language when contacting a million to the Federal Trade Commission Centers for Disease Control and debtor. The collection agency also may (FTC) and $1 million to New Jersey, the Prevention. not disclose debt related information to state that launched the investigation – was In September, the ice cream maker anyone other than the debtor, the debtor’s announced on Feb. 5. Kevin Moriarty, a announced—shortly after Blue Bell ice spouse, and the debtor’s lawyer. lawyer with the FTC’s Division of Privacy cream returned to stores in the Carolinas The FDCPA is enforced by the Federal and Identity Protection, stated: and Georgia—that it was recalling ice Trade Commission and the Consumer cream products made in its Sylacauga, This settlement stops Vizio’s unau- Financial Protection Bureau. However, it Alabama, plant because there was a poten- thorized tracking, and makes clear also provides a private right of action. tial that an Aspen Hills cookie dough that smart TV makers should get While the remedies available in court ingredient contained listeria. Other com- people’s consent before collecting under the FDCPA are somewhat minimal, panies, including Weight Watchers and and sharing television viewing it is highly likely that the collector’s activi- Cedar Crest Specialties Inc., also recalled information. ties constitute a violation of the Telephone ice cream products made with Aspen Consumer Protection Act (TCPA). The Hills-supplied cookie dough. Aspen Hills Vizio also agreed to delete any user data TCPA prohibits unsolicited phone calls also issued its own recall, according to the collected before March 1, 2016. According and imposes a statutory minimum penalty FDA’s letter. to the FTC, Vizio installed software on 11 of $500 per phone call. In order to invoke The FDA visited Aspen Hills in Septem- million smart TVs to track viewing habits this provision, however, the debtor must ber and October, according to a Jan. 10 without consumers’ knowledge. The data request that the debt collector cease its warning letter, and found listeria in swabs included second-by-second information phone calls. taken from a number of areas in its pro- from cable, internet, set-top boxes, DVD If you would like to discuss anything cessing facility. FDA staff wrote in players, over-the-air channels and stream- relating to the FDCPA or TCPA, contact the letter: ing devices. The tracking began with sets Jeff Price, a lawyer in our firm’s Toxic produced in 2014 but was added via soft- Torts Section, at 800-898-2034 or by email The presence of Listeria monocyto- ware updates on older models as well. For at [email protected]. genes in your facility is significant its part, Vizio said it never paired the data because it demonstrates your clean- with personal information such as names ing and sanitation practices are or contact details. The FTC said if you

JereBeasleyReport.com 29 FDA Releases Adverse Event Report Data were issued in February. If more informa- asking them to bring their vehicle to an To The Public tion is needed on any of the recalls, authorized Nissan retailer for remedy. “ readers are encouraged to contact Shanna The Food and Drug Administration Malone, the Executive Editor of the (FDA) announced in December of last year Report. We would also like to know if we Audi To Recall 600,000 Vehicles Over Air that it would begin releasing data related have missed any safety recalls that should Bag And Pump Issues to Adverse Event Reports (AERs) received have been included in this issue. by the FDA’s Center for Food Safety and German automaker Audi will recall Applied Nutrition (CFSAN), which over- more than 600,000 vehicles in the U.S. sees food and cosmetic safety. In the past, Nissan Recalls 341,000 Altimas Over Door over defects with airbags that could injure the CFSAN Adverse Event Reporting Opening Defect or kill passengers and coolant pumps that System (CAERS) has not made this infor- could catch fire. Forms the car company mation public, except through Freedom of Japanese automaker Nissan Motor Co. is filed with the National Highway Traffic Information Act requests. However, in recalling 341,000 Altimas in the U.S., Safety Administration (NHTSA) and pub- December CFSAN released the raw data citing a defect that causes a rear door to lished by the agency indicate that coolant for all AERs from Jan. 1, 2004, through inadvertently unlatch and open if its pumps could clog and catch fire in more Sept. 30, 2016, with plans to continue to window is rolled down. In paperwork than 340,000 vehicles of multiple model release data on a quarterly basis. filed with the National Highway Traffic types with powerful two-liter TFSI The public availability of this data is Safety Administration (NHTSA), the car engines. That problem can be solved with seen as a win for both consumers and company says the issue stems from a free software update that will cut power health care professionals hoping for more improper routing of the latch-lock cable, to the coolant pump and alert drivers if it transparency with regard to food and cos- which can block the window regulator, becomes clogged, the company said. metics. The ability to compile and review causing the rear passenger door to unlatch A second notice said 234,000 Audi Q5 AERs about a particular product may assist when the window mechanism is lowered. crossover SUVs between model years 2011 in spotting hazards. In a blog post about “If the rear passenger doors inadvertently and 2017 were recalled starting in Febru- the release, FDA officials stated, “We’re open while the vehicle is in motion, it may ary to replace or protect their side curtain hoping that this increased transparency increase the risk of injury to the rear pas- airbag canisters. Problems with the vehi- will result in more detailed and complete sengers,” Nissan said in a recall report. cles’ panoramic sunroof drainage systems reports that will help us to more rapidly The problem can be solved with modifi- could dampen and corrode the airbag can- identify red flags about a possible safety cation at a dealership, where a harness isters, Audi said. “If this happens, the issue with products we regulate.” protector patch and possibly a sealing airbag canister could fracture without However, the release of data comes screen replacement can be installed to airbag deployment, propelling fragments with several caveats. First, the FDA will prevent the wires from interfering. The into the passenger compartment, striking only release the raw data associated with defect only affects 2015 through 2017 and causing serious injury to vehicle occu- an AER. There is no conclusion of causa- models, all of which are still under war- pants,” the notice said. The Q5 airbag tion or risk. Second, the information is not ranty. The car company first become problem, which Audi first observed in filtered or verified in any way. Finally, aware of the problem in August 2016, cars in China and Israel last year, will there is currently no requirement that when Nissan was notified of a field inci- require the cars to be partly dissembled food and cosmetic manufacturers report dent involving the defect, according to by dealerships so the airbag canisters can adverse events to the FDA. Therefore, it is NHTSA filings. In September, the be inspected and possibly replaced. The possible that many adverse events go company was able to identify the issue, issue was addressed in the manufacturing unreported and will not be included in and concluded it was an isolated assembly process in July by adding a plastic liner this data. Therefore, while consumers can error, but implemented improvements in around the canisters. use this information as one means of iden- the manufacturing process to prevent it Nearly half of the Audi vehicles affected tifying potential risks, it does not provide from happening again. But over the next by the coolant-pump problem are also a full picture. several months, Nissan continued to Q5s, with almost 146,000 such vehicles of For now, it is too early to see how this review its manufacturing process and model years 2013 to 2017 impacted. About data will be used, including how it will found the misrouting continued to occur 105,000 Audi A4 sedans spanning model affect regulations, recalls and litigation, during installation of its trim panels. The years 2013 to 2016 will also need the soft- but the FDA has indicated that it will con- carmaker reviewed reports and learned of ware update, with the balance of affected tinue to modernize and streamline the other incidents that may have been caused vehicles made up of A5s, A5 Cabriolets, adverse event reporting process in hopes by the defective door, and on Jan. 10 A6s and A4 Allroad vehicles built over a of creating a more effective database. decided to issue a recall. The company similar timespan with the two-liter said it will notify all owners over the next TFSI engines. two months. Another notice published on the XVII. Nissan spokesman Steve Yaeger said in NHTSA’s website recently said 33,421 Audi an email that the recall was voluntary and cars with defective passenger seat airbag RECALLS UPDATE would come at no cost to consumers. inflators made by the scandal-wracked “Nissan is committed to the safety and Japanese airbag supplier Takata would security of our customers and their pas- also be recalled. Prolonged exposure to We are again reporting a large number sengers,” he wrote. “Owners of affected high temperatures, high humidity and fre- of safety-related recalls. We have included vehicles will be notified in early March, quent temperature fluctuations, or some of the more significant recalls that

30 BeasleyAllen.com cycling, increases the risk of the canister rghini’s dealer portal while car owners Bolton Furniture 4-Drawer Dresser Recall exploding into fragments that could injure were to receive notification in the mail or kill a passenger in an accident, said the between Feb. 24 and March 24. Bolton Furniture has recalled an esti- notice, which was dated Jan. 20. Audi, a Last year, the NHTSA concluded that mated 1,000 Two-Over-Two 4-Drawer unit of the German automaker Volkswa- tire pressure monitors in cars made by Dressers due to risk of serious tip-overs gen AG, began notifying dealers and Lamborghini, Tesla Motors Inc. and and consequential child entrapment, owners of the Takata-related recall Ferrari North America Inc. that don’t light injury and death hazards. This recall in February. up when they should aren’t a danger to involves certain Bolton Furniture Two- the public. The decision came after the Over-Two style 4-Drawer Dressers. The three automakers reported the defect to models included in the recall are Cam- bridge (model number 8614), Emma Lamborghini Recalls 1,400 Cars For Fire the NHTSA in 2014 and petitioned the (model number 8314), Essex (model Risk agency to declare the problem inconse- quential to motor vehicle safety. All three number 6614), Wakefield (model number Lamborghini is recalling 1,453 super- said they weren’t aware of any customer 8014) and the Woodridge (model number cars in the U.S. that suffer from a defect complaints, incidents or injuries related to 8414). The recalled dressers were sold in that could result in fires during “particular the issue. cherry, chestnut, espresso, honey, ivory, maneuvers” such as over-revving the According to the NHTSA, the tire pres- natural and white finishes. Model names engine while the vehicle is idle. A recall sure monitors turn on as they should upon and numbers can be found on the QC/pro- report was posted by the National detecting a tire problem, but the light duction sticker located on back of Highway Traffic Safety Administration doesn’t turn back on immediately after each dresser. (NHTSA). Automobili Lamborghini SpA the cars have been turned off and According to the CPSC, the recalled submitted the recall report for model year restarted. Instead, they turn on after the Dressers are unstable if they are not 2012 to 2017 Lamborghini Aventador, vehicles exceed 20 to 25 miles per hour anchored to the wall, posing a serious tip- including all limited editions. This for at least 90 seconds. The agency deter- over and entrapment hazard that can includes the Anniversario, Miura Homage, mined that because the problem only result in death or injuries to children. The Pirelli Edition, Super Veloce and the ultra- occurs at low speeds, it poses little risk to dresser, therefore, do not comply with the rate “one shot” projects: Veneno Coupe vehicle safety. performance requirements of the US vol- and Roadster. The company estimated that untary industry standard (ASTM F2057- every one of these vehicles is affected by 14). If you believe you have purchased or have in your possession any of the recalled the defect, and media reports showed that Zimmer Biomet Recalls Comprehensive dressers, please do not use them. Instead, more than 5,000 cars would be recalled Reverse Shoulder System Due To Excessive move the Dresser into an area in your worldwide. Humeral Tray Fractures Specifically, if the car’s fuel tank is over- home that children cannot access. You filled, certain conditions can cause liquid On Feb. 16, 2017, Zimmer Biomet initi- can then contact Bolton Furniture for a fuel to reach the car’s carbon canister, ated a Class I Recall of its popular Compre- free retrofit kit. You can install this retro- which is part of its evaporation control hensive Reverse Shoulder System due to fit kit or the tip-restraint strap originally system. If fuel reaches the purge valves, an excessive number of fractures in the sold with the Dressers themselves, or which control the amount of fuel vapor humeral tray component. Unlike tradi- contact Bolton who will provide a one- that’s purged from the canister, it can tional total shoulder arthroplasty systems, time, free in-home installation. affect the operation of the vehicle’s fuel the Comprehensive Reverse Shoulder These Dressers were sold at Full Line evaporation system. This situation is exac- System swaps the humeral head (ball) and Furniture and children’s specialty stores erbated in the winter, the company’s glenoid (cup) to the opposite sides of the nationwide and online at Amazon.com, report said. Faults in the evaporation glenohumeral joint in hopes of achieving Overstock.com, Target.com, ToysRUs.com, system could mean that fuel vapors aren’t greater range of motion in patients under- Wayfair.com, Zulilly.com and other online properly treated, and without that proper going total shoulder arthroplasties. The retailers from February 2011 to October treatment, maneuvers such as over-rev- humeral tray holds a polyethylene cup at 2016 for about $700. ving could bring fuel vapor into contact the top of the humerus bone. Contact Bolton Furniture at 800-545- with hot gasses. Such a situation risks fire, The recall is limited to joint systems 8982 from 8 a.m. to 4:30 p.m. ET Monday especially if the car has an unapproved containing 300 specific lot numbers dis- through Friday or online at www.bolton- aftermarket exhaust system, the company tributed between October 2008 and Sep- furniture.biz and click on the “News” said. The smell of gas outside of the car tember 2015, and encompasses section and then Safety Recall. Photos could tip owners off to a possible approximately 3,600 of Zimmer Biomet’s available here: https://cpsc.gov/ problem, the report said. shoulder systems. The recall states that Recalls/2017/Bolton-Furniture- The company plans to notify everyone patients who experience humeral tray Recalls-Dressers who owns an affected vehicle and will fractures may need surgeries to revise the instruct them to make an appointment failed shoulder arthroplasty, and could with an authorized Lamborghini dealer suffer “permanent loss of shoulder func- La-Z-Boy Recalls Power Supplies Sold With who will upgrade the evaporation system tion, infection or, rarely, death.” Zimmer Lift Chairs Due To Shock Hazard for free. The upgrade includes new purge Biomet began contacting patients who valves that will prevent the fuel tank from received the devices subject to the recall La-Z-Boy Incorporated, of Monroe, overfilling, the company said. Dealers in late December. Michigan, has recalled about 2,500 power were notified on Feb. 17 through Lambo- supplies sold with lift chairs in the U.S.

JereBeasleyReport.com 31 and an additional 210 in Canada. The lift prongs inside, though no injuries had The chairs were sold exclusively at chair’s power supply cover can crack been reported. “Consumers should imme- Home Depot stores nationwide and online within the screw housing and break, diately stop using the recalled power at HomeDepot.com from January 2007 to causing the cover to detach and exposing adapters and register online for a free February 2016 for about $190 for two- the power supply’s electrical components, replacement adapter along with a Barnes piece patio set and $500 for a seven-piece posing a shock hazard to users. The recall & Noble $5 gift card,” the company said. patio set. Consumers should immediately involves the power supplies sold with B&N said it’s offering customers free stop using the recalled chairs and contact Gold Series electric Lift Chairs, the shipping to return the recalled adapter Casual Living Worldwide for a free repair Clayton Luxury-Lift (Model 1HL562) and and receive a replacement adapter in the kit. Contact Casual Living Worldwide toll- Power Lift (Model 1ML562), and Luxury- mail. Until the new adapter is received, free at 855-899-2127 from 8 a.m. to 5 p.m. Lift (Models 1LF505 and 1LF819). They owners were advised to charge their ET on Monday through Friday or online at were also part of conversion kits for older device through their computers using a www.casuallivingoutdoors.com and click lift chairs with Models 1LL320, 1LL508, USB cable, the statement read. The Nook on “Recall Information” for more informa- 1LL515, 1LM320, 1LM508 and 1LM515. The Tablet 7”, B&N’s latest installment of its tion. Photos available here: https://cpsc. power supply enables the chair’s seat to popular paperless reading device, hit the gov/Recalls/2017/Casual-Living-World- lift a consumer from a seated into a stand- market on Nov. 25 and sells for about $50, wide-Recalls-Swivel-Patio-Chairs ing position. The power supply casing is a though the device is not currently avail- black, plastic rectangular box measuring able for sale on the company’s website. approximately 6 inches by 3½ inches by Barnes & Noble is only the latest company Brown Jordan Services Recalls Swivel 3½ inches. Only power supplies with forced to issue a callback on account of a Patio Chairs Due To Fall Hazard LOT #150113 are included in this recall. handheld device charger. On Feb. 2, 2016, The model name, model number and lot Microsoft Corp. recalled 2.25 million About 1,500 Swivel Patio Chairs have number are printed on the back of the power cords associated with an assort- been recalled by Brown Jordan Services, power supply. ment of its Surface Pro tablet computers Inc., of Simpsonville, Kentucky. The base The chairs were sold at La-Z-Boy Furni- after concluding they posed a risk of over- of the chair can break during normal use, ture Galleries and independent furniture heating and shocking users. posing a fall hazard to users. This recall stores nationwide and online at la-z-boy. Then in September, mobile phone involves La-Z-Boy Kayla swivel dining and com from September 2015 through maker Samsung Electronics announced it lounge patio chairs. The chairs are made November 2016 for between $1,900 and would halt all sales of its Galaxy Note 7 of aluminum and steel with a round swivel $2,800. The power supplies were also smartphone and replace about 2.5 million base. The chairs have dark blue fabric sold separately for about $170 and pro- units on account of a propensity to catch covered cushions. La-Z-Boy is printed on a vided free under warranty as replace- fire resulting from a battery defect. A gold-colored tag on the back of the chairs. ments for use with previously-purchased month later, Samsung officially threw in The chairs were sold in a four-piece chairs. Consumers should immediately the towel on the Galaxy Note 7, announc- lounge set and a five-piece dining set. The stop using the power supplies to power ing on Oct. 11 that it was halting produc- company has received 16 reports of the the lift chairs and contact La-Z-Boy for a tion and would no longer stock the device swivel chairs breaking. No injuries have free replacement power supply. Contact on its shelves. been reported. La-Z-Boy toll-free at 855-592-9087 from 9 The chairs were sold exclusively at a.m. to 5 p.m. ET Monday through Friday Online at Sears.com from January 2016 or online at www.la-z-boy.com and click Casual Living Worldwide Recalls Swivel through July 2016 for about $1,260 for the on the Recall button for more information. Patio Chairs Due To Fall Hazard four-piece lounge set and $1,300 for the Photos available at: https://www.cpsc. five-piece dining set. Consumers should gov/Recalls/2017/La-Z-Boy-Recalls-Power- Casual Living Worldwide, of Simpson- immediately stop using the recalled chairs Supplies-Sold-With-Lift-Chairs. ville, Kentucky, has recalled its Swivel and contact Brown Jordan Services for a Patio Chairs. The base of the chairs can free repair kit. Contact Brown Jordan Ser- break during normal use, posing a fall vices toll-free at 855-899-2127 from 8 a.m. B&N Recalls 147,000 Nook Tablet Cords hazard to the user. This includes about 2 to 5 p.m. ET on Monday through Friday or Due To Shock Hazard million (in addition, about 30,000 were online at www.bjsoutdoor.com can click sold in Canada and about 14,000 were sold on “Customer Care” and then “Recall Barnes & Noble is recalling about in Mexico). This recall involves Hampton Information” for more information. Photos 147,000 power adapters associated with Bay Anselmo, Calabria, and Dana Point available at: https://cpsc.gov/ its new seven-inch Nook Tablet device, chairs as well as Martha Stewart Living Recalls/2017/Brown-Jordan-Services- citing a potential for the adaptor casing to branded Cardona, Grand Bank and Wel- Recalls-Swivel-Patio-Chairs break when plugged into an electrical lington swivel patio chairs. The chairs are outlet, exposing users to electrical shock. made of aluminum and steel with a round In a statement detailing the voluntary swivel base and arm rests. The chairs Bar Chairs Made by 3i Corporation recall posted on its website and through were sold as a pair and as part of a seven- Recalled Due To Fall Hazard the U.S. Consumer Product Safety Com- piece patio set with accompanying tables. mission, the book retailer said it had The company has received 25 reports of 3i Corporation, of Hong Kong, has received four reports of the power adapter the chairs breaking, resulting in bruising recalled about 315,000 bar chairs. The legs breaking or pulling apart while charging and scrapes from falls. can become detached from the center the Nook Tablet 7”, exposing the metal post at the weld, posing a fall hazard. This

32 BeasleyAllen.com recall involves allen + roth brand Safford seat to disengage and fall unexpectedly, England Ropes brand 7.5 mm and 8 mm model and Garden Treasures brand Lakev- posing a fall hazard to infants in the car static ropes and throwlines used for iew model bar chairs sold in sets of four. seat. This recall involves Britax B-Agile rescue operations. The recalled rope The chairs have a brown, aluminum frame and BOB Motion strollers (when used as a models are the CMC Escape Line and a beige sling fabric cover. The 4-foot- travel system with a car seat carrier 5/16”/8mm (orange with yellow tracer), tall chairs swivel 360 degrees and have attached). All models are folding, single or New England Ropes Aramid 7.5mm (tan arm rests on each side of the chair. The double occupant strollers and have Click with black tracer) and New England Ropes company has received 457 reports of the & Go receiver mounts that attach the car KM-III 5/16”/8mm (white with blue bar stool base breaking, resulting in 10 seat carrier to the stroller frame. All colors tracer). The recalled throwline model is reports of injury including head injuries, of the stroller are included. The model New England Ropes NFPA (yellow with broken ribs, bruising and scrapes. number can be found on the inside of the red tracer). Only ropes and throwlines The chairs were sold exclusively at stroller’s metal frame near the right rear with lot numbers that begin with 160101 Lowe’s stores nationwide and online at wheel for single strollers and in the front through 1609915 are included in this www.lowes.com from November 2008 to middle underside of the frame on double recall. The model name and lot number is August 2016 for about $700 for the set. strollers. printed on the end band label on the rope Consumers should immediately stop using Britax has received 33 reports of car and on the product’s packaging. The the recalled chairs and contact 3i Corpora- seats unexpectedly disconnecting from ropes and throwlines were sold in lengths tion for a free replacement base and a the strollers and falling to the ground, ranging from 150 to 2,400 feet. repair kit. Contact 3i Corporation toll-free resulting in 26 reports of injuries to chil- The rope was sold at CMC Rescue in at 866-267-7772 between 9 a.m. and 5 p.m. dren, including scratches, bruises, cuts Goleta, Calif., Extractor Sled in Escondido, ET Monday through Friday or online at and bumps to the head. In addition, Britax Calif., Excalibur in Sandy, Utah, Liberty www.lakeview-safford.com. Photos avail- is aware of 1,337 reports of strollers with Mountain in Sandy, Utah, Rescue Technol- able at: https://cpsc.gov/Recalls/2017/Bar- damaged Click & Go receiver mounts. The ogy in Carrollton, Ga., Rock-n-Rescue in Chairs-Sold-at-Lowes-Stores-Recalled strollers were sold at Babies R Us, buy buy Butler, Pa., Tahoe Sports in South Lake Baby, Target and other stores nationwide, Tahoe, Calif., and West Marine in Watson- and online at Amazon.com, albeebaby. ville, Calif. from January 2016 through Target Recalls 1,300 Patio Benches Due To com, buybuybaby.com, diapers.com, September 2016 for between $140 and Fall Hazard ToysRUs.com and other websites from $1,800. Consumers should immediately May 2011 through February 2017 for stop using the recalled ropes and throw- Target has recalled 1,300 threshold between $250 and $470 for the strollers lines and contact Teufelberger for a free patio benches due to a fall hazard, accord- and travel systems. Consumers should replacement. Contact Teufelberger Fiber ing to the U.S. Consumer Product Safety immediately stop using their Click & Go Rope Corp. toll-free at 844-361-7041 from Commission. Target initiated the recall receiver mounts and contact Britax for a 8 a.m. to 5 p.m. ET Monday through Friday after receiving six reports of the patio free repair kit for single strollers. Owners or online at www.teufelberger.com and benches collapsing while in use, resulting of the recalled double strollers should click on the “Static Rope Safety Notice” in one report of a knee injury. This recall stop using them with car seats attached. link for more information. Photos avail- involves Threshold Aluminum Top/Steel X Consumers can continue to use their able at: https://cpsc.gov/Recalls/2017/ Base patio benches that were sold individ- stroller or car seat independently without Teufelberger-Recalls-Rescue-Ropes-and- ually—for about $150—and as part of a the car seat attached to the stroller. Throwlines-Due six-piece dining set—for about $1,000. Contact Britax online at www.us.britax. The benches were sold in Target stores com and click on the Safety Notice on the and on its website from January 2016 homepage or visit us.britax.com/recall, Disney Recalls Mickey Mouse Night Lights through July 2016. Consumers should stop call toll-free at 844-227-0300 from 8:30 Due To Fire Hazard using the recalled benches and return a.m. to 7 p.m. ET Monday through Friday them to any Target store for a full refund. and from 9 a.m. to 3 p.m. ET Saturday or The Walt Disney Co. has recalled For more information, call Target at 800- email Britax at [email protected]. approximately 3,000 nightlights due to 440-0680 from 7 a.m. to 8 p.m., visit Photos available here: https://www.cpsc. fire hazard concerns. The recall involves target.com or go to Target’s gov/Recalls/2017/Britax-Recalls-Strollers the Happy Holidays! Mickey Mouse Night- Facebook page. light, which feature a Mickey Mouse head wearing a Santa hat. The hat is filled with Teufelberger Recalls Rescue Ropes And liquid and glitter. Liquid from the night Britax Recalls Strollers Due To Fall Throwlines Due To Fall And Injury Hazards light can leak, potentially causing a fire Hazard hazard if the liquid comes into contact Teufelberger Fiber Rope Corp., of Fall with an electrical outlet. Two incidents About 676,000 Britax B-Agile and BOB River, Massachusetts, has recalled about have been reported, including one electri- Motion Strollers with Click & Go receivers 95 Static ropes and throwlines. The cal fire, according to the U.S. Consumer have been recalled by Britax Child Safety recalled static ropes and throwlines are Product Safety Commission. The product Inc., of Fort Mill, South Carolina. An addi- mislabeled as being certified to specific was sold at Walt Disney World, Disneyland tional 36,400 were sold in Canada and voluntary NFPA safety standards and and via the Shop Disney Parks mobile app about 4,600 were sold in Mexico that are cannot be relied upon for any purpose, and DisneyStore.com from July 2016 included in the recall. A damaged receiver posing fall and injury hazards to users. through November 2016. Consumers mount on the stroller can cause the car This recall involves CMC and New should look for the date code FAC #

JereBeasleyReport.com 33 019808-16150 printed on the bottom rear • 40200563SIL Unframed Rectangle through Feb. 17, 2017 (2/17/17). No prod- of the night light and the UPC code 42 x 78 $1595 ucts except those on this list are subject 400009489637 printed on a sticker on the to this recall. To date, no illnesses have bottom of the product packaging to iden- • 40200562SIL Unframed Rectangle been confirmed by public health authori- tify recalled night lights. 24 x 80 $995 ties. Sargento Cheese advised Country Consumers should stop using the night • 40200561SIL Unframed Round Fresh of the issue and Country Fresh is lights immediately and request a refund 60 $1795 taking this action in the interest of pro- from Walt Disney Parks and Resorts U.S., tecting the public health. “Nothing is Inc. Call toll-free at 844-722-1444 from 9 • 106373SIL Framed Rectangle more important than ensuring that con- a.m. to 5:30 p.m. ET Monday through 30 x 40 $659 sumers enjoy nothing but high quality, Friday, or contact the company online at nutritious, and safe and wholesome prod- www.disneyparks.com and click on • 106372SIL Unframed Round ucts from us” said Bryan Herr, Country “Safety Recall” at the bottom of the page. 30 $579 Fresh’s President. Consumers who have purchased any of these products are urged to dispose of the Sargento Cheese Recall Prompts Listeria Restoration Hardware Recalls Antiqued product or return it to the place of pur- Warning In Alabama And 11 Other States Mirrors chase for a full refund. Consumers with questions may contact the company at Restoration Hardware is recalling 1,400 A Listeria warning by Sargento Cheese 281-453-3305, Monday through Friday, 9 of its 18th Century Venetian style glass Company last month has prompted a.m.-5 p.m. CDT. beveled mirrors because they could cause another recall by Country Fresh of Texas. lacerations. The glass is not properly The Marketside Garlic Cheese Stuffed Mushrooms are among products that glued to the mirror’s backing, and it can Dog Food Recalled After Euthanasia Drug could be contaminated with Listeria. The fall off and shatter. The affected mirrors Found In Can are antiqued silver with wood backings U.S. Food and Drug Administration (FDA) and are available in several different sizes said Country Fresh is recalling 2,552 cases It was New Year’s Eve when Nikki Mael and two shapes, according to the Con- of mushroom and fresh fruit and hatch fed her four pugs—Tito, Tank, Tinkerbell sumer Product Safety Commission on pepper cheese products because they and Talula—the single can of dog food, Thursday. The mirrors are either rectan- contain Sargento-branded cheeses, which Evanger’s Hunk of Beef, as a treat. Within gular or round. This recall only applies to could be contaminated with Listeria. The 15 minutes, the pugs were “acting drunk” mirrors with a “Hangman” hanging system items were shipped to retail locations in and “falling over.” Mael, who is from on the back with a production date after Alabama, Florida, Georgia, Kentucky, Lou- Washougal, Washington, quickly rushed April 1, 2015. The month and year of pro- isiana, Maryland, Mississippi, North Caro- them to the local emergency vet, where duction (04/2015) are stated on a green lina, South Carolina, Tennessee, Texas, the four dogs were placed in the intensive sticker affixed to the back of the mirrors. and Virginia. No illnesses have been con- care unit. One of the pugs that ate the The mirrors range from $845 to $1795. firmed. Young children, frail or elderly most canned beef died. A toxicology The following products have people, individuals with weak immune report later revealed the cause of her been recalled: systems and pregnant women are most at death. A drug called pentobarbital, a risk from Listeria infection, which can euthanasia agent, was found in both the • 40200969SIL Framed Rectangle cause high fever, severe headache, stiff- dog’s stomach and the Evanger’s dog food. 36 x 48 $845 ness, nausea, abdominal pain, diarrhea, “If this sample came directly from a can,” miscarriages and stillbirths. Customers the toxicologist wrote, “this is an • 40200565SIL Framed Rectangle may return the affected products to the 36 x 48 $895 urgent matter.” place of purchase for a full refund. To ask According to a U.S. Food and Drug • 40200968SIL Framed Rectangle questions, contact the company at 281- Administration (FDA) statement, Evan- 42 x 78 $1595 453-3305. There have been several other ger’s, a family-owned-and-operated cat Listeria-related cheese recalls this month. and dog food business, decided to volun- • 40200967SIL Framed Rectangle Visit the FDA website to learn more. 24 x 80 $895 Product Description Description of UPC Best-By Dates • 40200966SIL Framed Rectangle Packaging Country Fresh Tuscan 74641- February 14, 2017 thru 32 x 64 $945 Foam Overwrap Tray Style Mushroom 07211 February 17, 2017 74641- February 14, 2017 thru • 40200965SIL Unframed Round Country Fresh Stuffed Mushrooms Foam Overwrap Tray 60 $1795 07207 February 17, 2017 72036- February 14, 2017 thru Southwest Stuffed Mushrooms Foam Overwrap Tray • 40200964SIL Unframed Rectangle 88471 February 17, 2017 Marketside Garlic Cheese 681131- February 15, 2017 thru 36 x 48 $895 Clamshell Stuffed Mushrooms 14821 February 17, 2017 Ready Fresh Go Fruit and Hatch 41220- January 19, 2017 thru • 40200963SIL Unframed Rectangle Clamshell 30 x 40 $645 Pepper Cheese 03680 February 16, 2017

• 40200962SIL Unframed Rectangle The product bears “BEST IF USED BY” tarily recall five lots of the product—all of 30 x 48 $695 dates between Jan. 19, 2017 (1/19/17) the Hunk of Beef products that were man-

34 BeasleyAllen.com ufactured that same week. The products Once again there have been a large lawyer in October 2012. She is currently were distributed to retail locations and number of recalls since the last issue. working in our firm’s Consumer Fraud & sold online in 15 states: Washington, Cali- While we weren’t able to include all of Commerical Litigation Section on cases fornia, Minnesota, Illinois, Indiana, Michi- them in this issue, we included those of related to Average Wholesale Pricing gan, Wisconsin, Ohio, Pennsylvania, New the highest importance and urgency. If (AWP) / Medicaid Fraud litigation, which York, Massachusetts, Maryland, South Car- you need more information on any of the seeks to recover millions of dollars lost by olina, Georgia and Florida. recalls listed above, visit our firm’s web state Medicaid agencies as a result of Despite having worked with the sup- site at www.BeasleyAllen.com or www. fraudulent price reporting by the nation’s plier of this specific beef for about 40 RightingInjustice.com. We would also like largest drug manufacturers. Rebecca also years, Evanger’s cut its ties with the sup- to know if we have missed any significant is currently involved in several class plier, which also serves a number of other recall that involves a safety issue. If so, actions, including claims against Angie’s companies. “Something like this seemed please let us know. As indicated at the List, ACE American Insurance Company impossible,” Evanger’s said in its state- outset, you can contact Shanna Malone at and Aramark, and multidistrict litigation ment. “All of our raw materials are [email protected] for against Blue Cross and Blue Shield. sourced from USDA-inspected facilities, more recall information or to supply us Rebecca landed in the legal profession and many of them are suppliers with with information on recalls. in perhaps a less direct way than most. whom we have had long-standing rela- She always planned to follow her father tionships.” into the medical field, but after complet- The source of the contamination is still ing her commitment to the U. S. Marine unknown. But since pentobarbital is rou- XVIII. Corps with an honorable discharge and tinely used to euthanize animals, the most FIRM ACTIVITIES pursuing her bachelor’s degree at the Uni- likely way it could get into dog food would versity of West Florida, she was not so be in rendered animal products, accord- sure of her path. Rebecca jumped ing to a 2002 FDA report. Rendered prod- Employee Spotlights majors—from studio art to accounting— ucts undergo a process that converts and finally landed in criminal justice, the animal tissues to feed ingredients, the only legal-related degree her college report stated, and pentobarbital seems to TRACY EDGE offered. Upon graduating with her bache- be able to survive this process. If animals Tracy Edge, a Legal Assistant to Beau lor’s degree, she began pursuing her mas- are euthanized with pentobarbital and Darley in the Mass Torts Section, has been ter’s degree, but switched courses after subsequently rendered, pentobarbital with Beasley Allen almost two years. moving to Montgomery with her husband, could remain in the rendered feed ingredi- However, she has spent nearly 24 years who suggested she try law school. ents. But, Evanger’s said, research sug- working in the legal field. Some of the liti- Though she was not always set on being gests pentobarbital is most pervasive in gation Tracy is currently helping with a lawyer, Rebecca has found she cannot dry dog foods that source rendered ingre- involves transvaginal mesh and the che- imagine doing anything else. She says her dients, unlike Evanger’s, which primarily motherapy drug Taxotere. favorite part of practicing law is not actu- manufactures canned foods that would Tracy grew up in Talladega, Alabama, ally litigation related. Rebecca’s favorite not contain any rendered materials. and graduated high school there before aspect of her job is helping clients talk The company said it was previously receiving her Paralegal Certificate through their issues, finding that some of “unaware of the problem of pentobarbital through PCDI in 2004. She and her those who come to her for legal assistance in the pet food industry.” It said that after husband Marty, who works as the Finan- just need advice and have complaints that looking into it and speaking with several cial Advisor for First Community Bank of can be resolved without a lawsuit. She suppliers, it discovered a number of holes Central Alabama, will be married 10 years finds tremendous satisfaction in knowing in regulations by the Food and Drug this upcoming July. Together, the couple that she has helped someone find an easy Administration and U.S. Department of has shared three children: Tucker, age 28, solution for a dispute, and she credits the Agriculture. Chelsea Sher, whose parents Peyton, age 21, and the youngest, Garrett, atmosphere at Beasley Allen for allowing own the company, said in a video state- age 19. Tracy and Marty also have one her to do that. ment that the company’s goal is now to grandson, Jaxson, age 18 months, and Rebecca says the best part of working “close that gap” to ensure that no eutha- who she describes as a daughter-in- for the firm is the culture that allows her nized animal ever makes it into the pet “love,” Jessica. to counsel potential clients in how to food stream. In their spare time, Tracy and Marty resolve disputes, even if that does not Evanger’s donated the full $5,800 fund- enjoy traveling, watching both national involve litigation. Ultimately, she believes raising goal on the crowdfunding page and college football, kayaking, whitewater it is the firm’s goal of striving to help that Ms. Mael created to raise money for rafting, exercise and spending time with those in the community, whether they be her pugs’ veterinary bills. “We at Evan- their family. The couple also helps with clients or neighbors, that sets it apart. ger’s are deeply horrified about this,” the the children’s ministry at their church, Rebecca is married to Keith Gilliland, company said in a message to Ms. Mael, East Memorial Baptist Church. Tracy is a and they make their home in Wetumpka, adding “we also feed our own dog, Lilly, hard-working, dedicated employee who Alabama. They have four children, Scott, this food.” The company later said it does very good work. We are fortunate to Will, Lilly and Kaden, and attend First would be making a donation to a local have her with us. Baptist Church in downtown Montgom- shelter in honor of Talula. ery. Rebecca is a talented lawyer who REBECCA GILLILAND does exceptionally good work. She is Rebecca Gilliland joined Beasley Allen totally dedicated to serving her clients’ as a law clerk in November 2010 and a

JereBeasleyReport.com 35 best interests. We are blessed to have assists with case management, client April has earned a bachelor’s degree in her with us. contact and general secretarial duties. justice and public safety, master’s degrees Valerie and her husband Mike have in both judicial administration and public STEPHANIE MONPLAISIR been married 14 years. She has two chil- administration, and her paralegal certifi- Stephanie Monplaisir started with the dren by a previous marriage who have cate over the course of her studies. firm as a Law Clerk in our Personal Injury blessed her with four grandsons, as well With a teenage son and three small dogs & Products Liability Section in April 2011. as three stepchildren who have blessed with huge personalities, April stays busy She had graduated Summa Cum Laude her with nine more grandchildren. Valerie both in the office and at home. Her son, from Troy University in 2007 with a and Mike also have a great grandchild. Micah, is 17 years old and plays football double major in Political Science and Psy- In her spare time, Valerie and her family for Prattville High School. He is a cancer chology. Stephanie also graduated Summa serve God and her church family at First survivor and completed 28 months of che- Cum Laude from Thomas Goode Jones Baptist Church Posey Crosswoods in Prat- motherapy in August 2013.The two love to School of Law in May 2011. While in law tville, Alabama. Her hobbies include watch college football together and try to school, she received 10 Best Paper Awards spending time with her family, reading attend as many Alabama football games as and the Best Advocate Award in Trial and cheering on the Alabama they possibly can. Micah hopes to attend Advocacy. Stephanie served as a Senior football team. the University of Alabama when he gradu- Editor on the Faulkner Law Review and as ates next year. April considers her family a Senior Member of the Board of WILL SUTTON to be incredibly blessed. Advocates. Will Sutton, an Associate in our firm’s in In addition to her love of football, April Stephanie became a Staff Attorney in our Toxic Torts Section, graduated from says she enjoys dining out—because “who the Personal Injury & Products Liability Auburn University in 2007 with a B.A. in does not love a great meal?” She also Section after passing the Alabama Bar Political Science. Will then went on to enjoys traveling, especially taking road Exam in October 2011. Her practice in obtain his Juris Doctor degree at Thomas trips. April is a dedicated, hard-working that section focused on complex litigation Goode Jones School of Law in 2010. He employee, who does very good work. We and appellate proceedings for the Section. also studied international criminal law are fortunate to have her with the firm. Thus far, Stephanie has been a part of trial abroad at the University of Amsterdam. He teams that have obtained more than $30 says he decided to become a lawyer upon million in verdicts or settlements. realizing his love for helping others From a very young age, Stephanie says through his strengths of reading, writing XIX. she knew she wanted to become a lawyer. and analysis. While attending law school, SPECIAL She feels as though God made her to be a Will worked as a Law Clerk in our Con- peacemaker and practicing law allows her sumer Fraud & Commercial Litigation RECOGNITIONS to fit that role. Stephanie says that she is Section. He is a member of the American convinced Beasley Allen is blessed with Association for Justice. some of the greatest trial lawyers in the Will’s favorite part of being a lawyer is Auto Safety Advocate Clarence Ditlow nation and that she is fortunate to have assisting families that truly need a helping Leaves Behind A Life-Saving Legacy been mentored by them. She also believes hand. He has learned through experience young lawyers like herself can thrive by that lawyers are responsible for helping Clarence Ditlow, an unrelentingly fierce the example of those lawyers and practice families get through what is usually one of auto-safety advocate who crusaded for law with integrity. the greatest problems they will encounter airbags, seatbelts, crash avoidance Stephanie and her husband, David, are in their lives. systems, numerous recalls, and other life- members of Frazer United Methodist Will says he believes Beasley Allen pro- saving measures, died on Nov. 10 at the Church. They enjoy spending time with vides a unique working environment in age of 72. Lawyers in our firm had very their daughter, family and friends. Stepha- that it is similar to one big family. He says good personal and professional relation- nie is a very good lawyer, who works very the entire firm focuses itself to helping ships with this man. The American people hard and is totally dedicated to represent- one another, allowing the firm to be in a owe Clarence a tremendous debt of grati- ing her clients. She does exceptionally better position to help our clients. Will is tude for all that he did during his lifetime. good work especially on motion practice a very good lawyer. He too is a hard He fought the good fight and did so and appellate work. We are blessed to worker and is totally dedicated to the against tremendous odds. Interestingly, have her with the firm. mission of the firm. We are very fortunate Clarence was both an engineer and a to have Will with us. lawyer, having graduated from Harvard VALERIE SCROGGINS Law School, and he used that combination Valerie Scroggins began her tenure at APRIL WORLEY effectively in his work. Beasley Allen in 2000—almost 17 years Since joining Beasley Allen in 2001, “He was the nightmare of the misbehav- ago—as a receptionist in the Consumer April Worley has worked in our firm’s ing auto industry and the dream of safety- Fraud section. She then moved to work in Mass Torts Section. She currently assists conscious motorists,” Ralph Nader, who Public Relations where she helped publish Roger Smith as a paralegal and helps mentored Clarence and collaborated with the Jere Beasley Report. Afterward, she handle Actos, Mirena IUD, proton pump him on a number of safety campaigns and became a Legal Secretary to Roman Shaul inhibitor, selective serotonin reuptake projects, told The New York Times. “He and the late Ron Canty. However, upon inhibitor and Zofran litigations. Addition- was also honest, ethical and self-effacing.” Canty’s passing, she moved to work as a ally, April works to resolve bankruptcy Clarence, who died at George Washing- Legal Secretary for Larry Golston in April issues for the section. ton University Hospital in Washington 2004, where she has since stayed and D.C. from cancer, leaves behind a legacy

36 BeasleyAllen.com that will continue to shape the auto indus- given us is a great inspiration to live our with thanksgiving, present your try and save lives for years to come. lives with a relentless effort to share the requests to God. And the peace of As head of the Center for Auto Safety in good news of God’s grace to all, no matter God, which surpasses all under- Washington D.C., Clarence played a criti- how fierce the opposition. Paul faced standing, will guide your hearts and cal role in tackling some of the deadliest imprisonment, hardship in every city, but your minds in Christ Jesus. Philip- defects and scandals to rock the auto was willing to count it all worthy to suffer pians 4:6-7 industry in the past 40 years. These issues for God’s glory and to finish strong. included sudden acceleration in Toyota Rebecca had this to say: vehicles, Ford Pintos with gas tanks prone However, I consider my life worth nothing to me; my only aim is to Besides the obviously comforting to exploding, and General Motors pickup intent of the passage, I find solace in trucks with flawed gas tanks that also finish the race and complete the task the Lord Jesus has given me— these words for other reasons. It is exploded in crashes. not only a passage about finding “With a budget of less than half the cost the task of testifying to the good news of God’s grace. Acts 20:24 peace in God, but is a reminder that of one General Motors Super Bowl com- you must continually place your mercial, Clarence took on auto industry Greater love has no one than this: to burdens upon Him. It is a reminder giants in lawsuits that tightened standards lay down one’s life for one’s friends. to prayerfully and thankfully place for ignition systems, airbags and fuel effi- You are my friends if you do what I your burdens on the Lord. Do not ciency. He lobbied government agencies command. John 15:13-14 expect to be given an easy or peace- to ban driving while texting or using cell- ful life—you must offer your phones. Clarence also helped to bring John says he finds great encouragement burdens to the Lord—and, as you do about ‘lemon laws’ in all 50 states that from our Lord’s declaration that we are so, thank God that he is there to made it easier for buyers to return defec- His friends by His sacrificial death on the take your burdens. Once you have tive vehicles,” The New York Times cross. Jesus in return asks us to love prayerfully and thankfully placed reported. Clarence’s work also “called others as He loves us. That is impossible to your burdens at His feet, THEN the attention to vehicles prone to roll over, do unless we fully understand He went to peace beyond all understanding slip out of gear from park to reverse, and the cross on our behalf, while we were comes to you and will guide your experience a complete loss of power yet sinners and all unworthy of Jesus’ heart and mind. God freely grants during operation.” unconditional love. his love and peace when it is sought, In a 2014 article in The New York Robin Parkhurst, who works in our but we must be mindful to con- Times, Clarence and Ralph Nader jointly firm’s Accounting Department, also fur- stantly seek it. wrote, “When regulators sleep and auto nished two verses this month. She says companies place profits over safety, safety these verses have helped her to deal with ReNay R. Robertson, a legal secretary in defects pile up.” These two consumer situations in her life that caused her to our firm, furnished a verse for this issue. advocates stated in the article: worry and be concerned at times. Robin She says Romans 8:28 speaks to her in says she has learned to trust God and to every situation. In good times, it’s easy to A record number of vehicles—more have hope. praise God for His goodness and blessings. than 50 million—have been recalled She stated: this year, a result of congressional That is why I tell you not to worry hearings and Justice Department about everyday life—whether you All Things! In sad times, we ask for prosecutions, which exposed a mass have enough food and drink, or peace and comfort that only He can of deadly defects that the auto enough clothes to wear. Isn’t life give. All things. In times of trouble industry had concealed. more than food, and your body and uncertainty when our very more than clothing? Matthew 6:25 nature is to be angry and ask “why We will all miss our friend Clarence me,” “why my child,” “Lord, why Ditlow, a great American, and a good man Trust in the LORD with all your won’t you”—that little word “all” is in every respect. His tremendous work heart; do not depend on your own so hard to say. all things…. These benefited this country and its people understanding. Proverbs 3:5 are the times when it’s hard to trust beyond measure. Rebecca Gilliland, a lawyer in our firm’s God and pray “Your will be done, Source: The New York Times Consumer Fraud & Commercial Litigation Lord.” All Things! We must ask God Section, sent in a message from Philippi- what He’s trying to teach us in all ans for this issue. Rebecca says she shares situations—that we may serve XX. a journal with her best friend back home Him better. FAVORITE BIBLE in Florida. They take turns writing devo- And we know that all things work tionals and mail the book back and forth. together for good to them that love VERSES The last one that Rebecca sent was about God, to them who are the called Philippians. She chose verses 6 and 7, not according to His purpose. for the “peace beyond all understanding” Romans 8:28 My friend, John Gibbons, the State language that most people know it for, but Director for the Fellowship of Christian for verse 6. My good friend, Dr. Terry Stallings, fur- Athletes (FCA), furnished two verses for nished three verses dealing with “faith” this issue. Paul’s challenge to “finish” the Be anxious for nothing, but in for this issue. Terry is a man who not only race and complete the task the Lord has everything, by prayer and petition, “talks the talk” he “walks the walk” daily

JereBeasleyReport.com 37 and has been a real inspiration to lots potential jurors as part of its strategy in tions about talc’s safety. Shamefully, of folks. defending the ongoing litigation. The fol- those products remain available lowing is an op-ed piece in opposition to despite a raft of studies and meta- In this you greatly rejoice, though what Johnson & Johnson is doing that studies that have drawn lines from now for a little while, if need be, you appeared in a St. Louis newspaper. talc use to ovarian cancer. Johnson & have been grieved by various trials, Johnson’s own toxicologist wrote in that the genuineness of your faith, Don’t Fall For Corporate Lobbyists’ 1994, “Anybody who denies (the pub- being much more precious than Junk Science, ‘Judicial Hellhole’ lished research) risks that the talc gold that perishes, though it is tested Claims industry will be perceived by the by fire, may be found to praise, public like it perceives the cigarette honor, and glory at the revelation of What should we think when a corpo- industry: denying the obvious in the Jesus Christ. 1 Peter 1:6-7 rate-funded lobbying group places face of all evidence to the contrary.” our local courts at the very top of its Now faith is the substance of things annual “Judicial Hellholes” list? That St. Louis juries were no doubt hoped for, the evidence of things not was the message last month from the alarmed to learn how Johnson & seen. Hebrews 11:1 American Tort Reform Association, a Johnson aggressively marketed its talc But without faith it is impossible to group funded by large tobacco, phar- products to African-American and please Him, for he who comes to maceutical, insurance, energy and Hispanic women even after these God must believe that He is, and chemical corporations. safety concerns became apparent. They even heard from a Johnson & that He is a rewarder of those who With a page straight from Big Tobac- diligently seek Him. Hebrews 11:6 Johnson whistleblower who testified co’s playbook, the ATRA is deliber- that supervisors instructed her to Julia Anne Beasley, a lawyer in the firm, ately ignoring difficult facts and is alter hundreds of Adverse Event supplied a timely verse for this issue: trashing our courts through a nega- Reports, which the FDA often relies tive public relations campaign to upon to monitor product Love suffers long and is kind; love change the rules of our courts and safety issues. does not envy; love does not parade shield its corporate funders from itself, is not puffed up; does not responsibility. Don’t be fooled; there Naysayers and corporate lobbyists behave rudely, does not seek its is no methodology behind the “Hell- now shout “junk science” only own, is not provoked, thinks no evil; hole” list. St. Louis and every other because scientific research from does not rejoice in iniquity, but court deemed a “Judicial Hellhole” some of the most respected scientists rejoices in the truth; bears all things, are singled out for one reason only— and medical experts in the world believes all things, hopes all things, these are courts in which citizen doesn’t agree with the bottom line endures all things. Love never fails. jurors have found big corporations and because they want our lawmak- But whether there are prophecies, liable for dangerous products and ers to change the legal rules to they will fail; whether there are practices. their benefit. tongues, they will cease; whether there is knowledge, it will vanish Our city drew the attention of this Rather than respecting our civil away. 1 Corinthians 13:4-8 big-business cheerleader based on justice system—a uniquely American three recent verdicts against Johnson institution consecrated in the Seventh & Johnson. In each of these trials, Amendment of the U.S. Constitu- jurors considered three weeks of tes- tion—Johnson & Johnson and the timony before concluding that ATRA are trying to dodge responsibil- XXI. Johnson & Johnson had ignored ity with a massive negative PR cam- CLOSING dozens of published medical and sci- paign. Their embrace of the term entific studies and decades of mount- “junk science” comes straight from OBSERVATIONS ing evidence highlighting links Big Tobacco’s unsuccessful attempts between genital application of talcum in the 1970s to polarize debate and powder by women and ovarian discredit the scientific evidence Johnson & Johnson Uses American Tort cancer. These juries punished linking tobacco to cancer. They’d Reform Association As Attack Dog Johnson & Johnson for a culture that prefer to take these women out of places profit over safety. court and to closed-door arbitration, Johnson & Johnson has put out lots of where the cards are stacked against information over the past few months that Thanks to the central location and individuals and any testimony and can be put in the category of “alternative efficiency of our courts, dying results are hidden from the public. facts” relating to the talcum powder litiga- women have been given a voice. Our tion ongoing in Missouri and other states. juries have seen documents that Use of the term “Hellhole” ignores The giant drug company has used the Johnson & Johnson would prefer to the plight of those truly going American Tort Reform Association as its keep hidden, including a 1974 letter through hell—the 24,000 women primary attack dog. It’s quite obvious that to the U.S. Food & Drug Administra- diagnosed with ovarian cancer in the Johnson & Johnson is trying to influence tion in which the corporation U.S. every year, as well as the families the judicial and legislative branches of pledged to discontinue talc products of approximately 14,000 women who government. The company may also be if any scientific studies revealed ques- die from the disease annually. A 1999 attempting to prejudice the public and

38 BeasleyAllen.com Harvard study concludes that I am still determined to be cheerful could still win when that seemed abso- banning talc use would reduce the and happy, in whatever situation I lutely impossible. To do this required tre- number by at least 10 percent. may be; for I have also learned from mendous leadership skills and Brady came experience that the greater part of through with flying colors. I’ve been trying cases in St. Louis our happiness or misery depends The Atlanta Falcons, a very good foot- courts for more than 30 years, and upon our dispositions, and not ball team with a 25-point lead, seemed to I’ve seen first-hand how our jurors upon our circumstances. have the game in the bag with a little over take their work seriously and do their seven minutes left in the third quarter. best to get it right. Maybe these pro- Martha Washington (1732—1802) However, for the rest of the game the business lobbyists should visit St. Falcons were no match for the Patriots. Louis and sit through a monthlong The only title in our Democracy There were lots of lessons to be learned trial before making such a baseless superior to that of President is the from this game. claim. The group would find a diverse title of Citizen. The outcome was a classic example of a and business-friendly city that “never give up” attitude. After the Falcons inspires startups. And perhaps they Louis Brandeis, 1937 made the score 28-3 early in the third would get a better, more accurate U.S. Supreme Court Justice quarter, how many of those watching the answer to their question. game believed that the Tom Brady-led Roger Denton is a St. Louis attorney. The dictionary is the only place that Patriots had a chance to even make the He is not involved in the litigation success comes before work. Hard game close—much less to win it? I must against Johnson & Johnson. work is the price we must pay for confess I thought it was over at that junc- success. I think you can accomplish ture. However, it was evident that the Source: St. Louis Post Dispatch anything if you’re willing to pay Patriots, and especially Tom Brady, had no the price. intention of giving up. The lessons learned in sports carry over Vincent Lombardi Our Monthly Reminders into all aspects of life. There will be times when things appear to be so bad for us If my people, who are called by my that we have no chance of turning what- name, will humble themselves and ever faces us around. Many of us have a pray and seek my face and turn XXII. tendency to give up when things are from their wicked ways, then will I going really bad for us. There will be hear from heaven and will forgive PARTING WORDS “storms” in our lives and we have to find their sin and will heal their land. ways to survive those storms. 2 Chron 7:14 We can all learn some valuable life Most all of us will have experienced lessons from the world of sports and a defeats and have known suffering, strug- prime example was the 51st Super Bowl. gles and losses at some point. We might All that is necessary for the triumph This was a great game with a number of be facing health problems, financial of evil is that good men do nothing. records being set. No team had ever done issues, family problems or difficulties at Edmund Burke what the New England Patriots did in work and there simply won’t appear to be coming back from a 25-point deficit to any answers available to us for those prob- win a thriller in overtime. In fact, no team Woe to those who decree unrigh- lems. That is when we have to rise up and had ever been behind by more than 10 teous decrees, Who write misfor- elect not to give up. We have to remem- points and gone on to win a Super Bowl. tune, Which they have prescribed. ber that God is always with us regardless The Patriots won their 5th Super Bowl as To rob the needy of justice, And to of what problems are facing us and that did Tom Brady. This was also the first take what is right from the poor of nothing is impossible for Him. overtime game in Super Bowl history. My people, That widows may be My prayer is for each of us to never give While the win was a team effort by the their prey, And that they may rob up on anything of importance in life and Patriots, Tom Brady was the key to the fatherless. to trust God to help us deal with the prob- keeping his team in the game. The veteran lems that we will certainly face. Isaiah 10:1-2 quarterback kept his team believing they

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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.