JERE BEASLEY REPORT June 2019 I

JERE BEASLEY REPORT June 2019 I. the American people. We have issues the company hasn’t been completely emails, text messages, telephone forthright about, the more information that CAPITOL records, and former company insid- is uncovered, the more questions are raised ers that we believe will prove a multi- about the development and certification of OBSERVATIONS year conspiracy to fix prices and the aircraft. divide market share for huge numbers of generic drugs. We all Alleged software glitch deactivates 44 States Join Together In A Drug Pricing wonder why our health care, and safety features Suit specifically the prices for generic prescription drugs, are so expensive Following the two fatal crashes involving A coalition of attorneys general, includ- in this country—this is a big the 737 MAX, as discussed in a previous ing Alabama’s very own Attorney General reason why. Report, preliminary findings from investi- Steve Marshall, was recently announced gations of the two crashes show alarming involving an antitrust lawsuit that was filed Pharmaceutical costs have been skyrock- similarities and at the heart of these find- against 20 of the nation’s largest generic eting in this country and lawsuits like this ings is how the AOA sensors, AOA indica- drug makers and 15 of their senior execu- serve to hold the wrongdoers responsible tor, AOA disagree light and the MCAS work tives. The attorneys general of 44 states and recoup taxpayer dollars. Lawyers in together in the 737 MAX. have alleged that the Defendant drug Beasley Allen’s Consumer Fraud & Com- More than a month after the Ethiopian makers conspired with each other from mercial Litigation Section have represented Airlines crash, Boeing was finally pres- July 2013 to January 2015 to artificially at least nine states through their Attorney inflate and fix prices, allocate market General’s Office, in various pharmaceutical IN THIS ISSUE share, and reduce competition for more and health care litigation. We welcome the than 100 generic drugs. The drugs at issue opportunity to investigate potential phar- I. Capitol Observations...... 2 span all types and treat a wide range of maceutical fraud litigation of which you conditions, from infections to diabetes, may be aware. If you have any questions II. An Update On The Boeing Litigation. . 2 cancer, epilepsy, multiple sclerosis, HIV, about our firm’s health care fraud practice, III. Opioid Litigation...... 4 ADHD and more. contact Ali Hawthorne, a lawyer in our The complaint is the second to be filed Consumer Fraud & Commercial Litigation IV. An Update On The Talc Litigation. . . .5 since 2016 in an ongoing, expanding inves- Section, at 800-898-2034 or by email at V. Regulation By The Federal tigation into generic drug pricing. As the [email protected]. Government Of Corporate America. . .7 Connecticut Attorney General’s Office Source: Connecticut Attorney General’s Office announced in a recent press release, the VI. Purely Political News & Views. . . . .7 complaint describes the frequent calls, VII. The Corporate World...... 8 emails, and text messages between senior executives for the drug makers that evi- II. VIII. Court Watch...... 8 dences their scheme of raising drug prices IX. Whistleblower Litigation ...... 9 and stifling competition. The industry AN UPDATE ON executives allegedly carried out their illegal THE BOEING X. Product Liability Update ...... 11 deals during meetings and social events LITIGATION XI. An Update On The Vaping such as lunches, dinners, parties and golf Health Crisis...... 12 outings. The lawsuit was filed in the U.S. District XII. Mass Torts Update...... 13 Court for the District of Connecticut Newly Revealed Software Glitch, Deception XIII. Employment and FLSA Litigation. . . 15 against Teva, Sandoz, Mylan, Pfizer and 16 By Boeing Raises More Questions About other generic drug makers. The 15 individ- Certification Of 737 MAX XIV. Premises Liability Update...... 15 ual senior executives that were named as XV. Workplace Hazards...... 17 Defendants were accused of having respon- For more than a year after the 737 MAX sibility for the sales, marketing, pricing and had been in service, Boeing kept mum XVI. Issues Involving Transportation operations of the drugs at issue, that report- about the fact that two critical safety fea- Litigation...... 18 tures were not performing as airlines edly accounted for billions of dollars of XVII. Toxic Tort Litigation Concerns. . . . 19 sales in the United States. would have expected. Boeing confirmed The complaint filed by the attorneys that it failed to disclose the error and indi- XVIII. Update On Nursing Home Litigation . .21 general alleges that the anticompetitive cated that both the company and the XIX. An Update On Class Action Litigation. .22 scheme resulted in drug prices increasing Federal Aviation Administration (FAA) in some instances more than 1,000%, missed the malfunction when the planes XX. Current Case Activity At Beasley Allen . 25 which affects the health insurance market, were certified in 2017. Airlines and others XXI. The Consumer Corner...... 30 Medicare and Medicaid, and private indi- did not learn about the problem until after viduals who now must pay artificially the first of two deadly plane crashes involv- XXII. Recalls Update...... 31 inflated prices for their prescriptions. The ing the aircraft. suit was led by Connecticut Attorney The malfunction involved alerts directed XXIII. Firm Activities...... 35 General William Tong who said in a to the cockpit when two Angle of Attack XXIV. Special Recognitions...... 36 statement: (AOA) sensors disagree and send conflicting data to the Maneuvering Characteristics XXV. Favorite Bible Verses...... 38 We have hard evidence that shows Augmentation System (MCAS), the new XXVI. Closing Observations...... 38 the generic drug industry perpe- flight control system. Combined with other trated a multi-billion-dollar fraud on XXVII. Parting Words...... 39

2 BeasleyAllen.com sured into admitting the company and the the alerts inoperable unless airlines Rejected alternatives to increase safety FAA allegedly missed a glitch in the soft- upgraded features that were supposed to ware that operates the MCAS in connection be standard safety features on all planes. Additionally, Boeing also admitted to with the AOA sensors, how the information The manufacturer minimized the impor- using data from only one AOA sensor in the is communicated—or not—to pilots tance of what it deemed optional features, MAX version of the 737 while previous ver- through the AOA indicator with the dis- saying that the alerts were supplemental sions of the aircraft used data from two agree light serving as a warning, the Wall safety features and were not necessary to AOA sensors. Experts and industry stake- Street Journal reported. safely fly the plane. This led some airlines holders question Boeing’s reasoning for In previous versions of the 737, the AOA to delay purchasing the features or forgo- relying on a sole AOA sensor, especially sensors, indicator and disagree light had ing purchasing them altogether. after the FAA had flagged it 216 times for been standard. The sensors collect the data Boeing has not provided many specific failing, requiring maintenance or needing and feed it to the indicator, which displays details about the glitch or what initiated to be replaced, according to Business it for the pilots. If the data from the sensors the confusion over the once-standard Insider. Approximately one-fifth of the inci- was conflicting, the disagree indicator on alerts. Yet, former employees have been dents involved Boeing aircraft so the the aircraft’s flight deck would light up to revealing details that paint a picture of a company was well aware of the sensor’s warn pilots that the data may be flawed. haphazard development process that tendency to malfunction. Using only one Pilots and airlines believed these features yielded a dangerously defective aircraft and sensor is shocking to many in an industry were also standard on the MAX. While the sacrificed hundreds of lives in order to that is wedded to redundancy to main- alerts were incorporated as part of the maintain a competitive advantage and contain safety. MAX, the MCAS was a new addition to tinue raking in profits. A former Boeing flight engineer, Peter counter the negative and unintended side Bloomberg has reported that among Lemme, told CNN that “[fr]om the begin- effects of the MAX’s redesign. The MAX’s those former employees speaking out about ning [the airplane’s system] should have alerts and MCAS, therefore, operated differ- the company are former Boeing engineers. been a fail-safe design, which would have ently. However, to keep a competitive Rick Ludtke was a Boeing engineer who relied on two inputs to make sure that you advantage, Boeing refused to inform pilots was part of the flight crew operation team. weren’t sensitive to one failure.” Boeing, about the MCAS. The team managed how pilots interacted however, continues to defend its design, The aircraft manufacturing giant devel- with the aircraft’s software and controls, explaining that “single sources of data are oped the 737 MAX to compete with its rival including the alerts and the MCAS. After considered acceptable in such cases by our Airbus’ equivalent aircraft the Airbus the MAX was certified, the team was cut by industry.” A320neo, which was as performing identi- half and Ludtke was laid off. He explained This wasn’t the first time the airline cal to its predecessor, therefore requiring that the constant shuffling of employees experienced a single-source failure in its no additional, expensive training for pilots. along with an internal culture that discour- aircraft, Bloomberg reported. Ten years Boeing adopted this strong selling benefit aged reporting things such as malfunction- ago, faulty readings from a single altimeter to compete for the business of especially ing aircraft parts has “eroded the forced a Boeing 737-800 to reduce the cost-conscious airlines, misleading regula- company’s ability to successfully design throttle, causing it to idle prematurely. tors to believe the system was the same and and manage programs.” Correct readings from the plane’s second declaring that there was no need for pilots What Ludtke reports lines up with the altimeter made no difference because the to acquire new training before flying shift in the company’s priorities beginning automatic throttle was connected to the the 737 MAX. nearly 20 years ago. The company’s focus faulty altimeter. The malfunction caused Consequently, it designed the MCAS to shifted to efficiency and profits with a the Turkish Airlines plane bound for be concealed and function independently message that shareholders’ interests would Amsterdam to crash. Nine people were from the autopilot system. If data from the come first. After the company’s current killed, 120 people were injured, and AOA sensor indicated the plane’s nose was Chairman and Chief Executive, Dennis Boeing was prompted to change the throt- pointed too high, the MCAS would auto- Muilenburg, took the helm in 2015, the tle system so that it no longer relied only on matically adjust the horizontal tail stabilizer focus on efficiency was heightened further. a single altimeter reading. and cause the nose to push down. Among other cost-saving steps, Muilenburg Finally, less than a month following the Boeing intended for the MCAS to only implemented a 7% cut in workforce and Lion Air crash, the FAA became aware of operate when it sensed an imminent stall; imposed stricter cost demands on engi- the AOA sensor problem and that it may be however, the system is flawed and, as neers. These steps served only to reinforce a bigger problem than anyone had realized. occurred during the Lion Air and Ethiopian the “no tell” culture so that when engi- One FAA official raised concerns that the Airline flights, the system engages when it neers discovered the malfunctioning AOA problems related to the AOA sensor, “may should not. Pilots who were never disagree light months before the first be masking a larger systems problem that informed about, much less adequately deadly crash, they did not report it to could recreate a Lion Air-type scenario.” trained on, the MCAS did not know what federal regulators. Weeks later, the Wall Street Journal was happening to the aircraft or how to After admitting yet another oversight, reported, “other internal emails referred to overcome the problems caused by a mal- Boeing has promised that the alerts would a ‘hypothetical question’ of restricting functioning MCAS. be made standard on all 737 MAX jets at no MAX operations.” One message specifically Further complicating dangerous circum- additional charge. All the while, Muilen- discussed how irresponsible it would be to stances, alerts that Boeing said were to be a burg continues minimizing the alerts’ allow the MAX to continue flying with an standalone feature that should continue to importance saying that they “provide sec- inoperable AOA disagree indicator and operate on all 737 MAX aircraft as they had ondary or supplemental information, not urged discussing grounding the aircraft in previous iterations, were not operable. critical safety data pilots must rely until the defect was fixed and pilots were Findings from the investigation of the two on to fly.” trained on the related displays. crashes revealed that the alerts were not The use of a single sensor will be part of operable on most of the aircraft. Boeing the investigation conducted by the House confirmed that a software glitch rendered Transportation and Infrastructure Commit-

JereBeasleyReport.com 3 tee. The committee’s chair, Representative III. announced the settlement on Sunday Peter DeFazio (D-Oregon) announced an morning. A future announcement from the investigation into the Boeing 737 MAX OPIOID LITIGATION Attorney General containing the specific design and certification process. It is in terms of the agreement will be made at a addition to other ongoing investigations later date. including a criminal probe by the Depart- An Update On The Opioid Litigation The trial started on Tuesday with ment of Justice (DOJ) and Department of Johnson & Johnson, along with its Janssen Transportation’s Office of Inspector U.S. District Court Judge Aaron Polster Pharmaceuticals Inc. subsidiary, as the sole General (OIG). continues to push the parties in the opioid remaining defendants in the case. As bellwether case towards its appointed trial reported, OxyContin maker Purdue More deception date of Oct. 21, 2019. In a ruling exhibiting Pharma LP had settled previously for what may be exasperation at the continued $270 million. Further, Boeing’s own test pilots have attempts to delay the trial date, the judge Oklahoma’s case against Teva targeted revealed that their advice and guidance refused to extend the deadline again, sales of generic opioids as well as two regarding the MAX’s development were sig- stating that the “Defendants spend signifi- brand-name fentanyl medicines: a lozenge nificantly limited toward the end of the cant time bemoaning the deadlines called Actiq and a tablet called Fentora. The development, according to the Wall Street imposed by the Court’s current Case Man- claims covered multiple companies that Journal. The test pilots are elite, full-time agement Order” and The Court has already Teva has acquired over the years, including pilots who test systems on new aircraft “addressed these concerns in a recent order Cephalon Inc. and Actavis Generics. before the designs and cockpit procedures and will not do so again.” With respect to J&J and Janssen, the are finalized. The pilots reported that they Judge Polster also expressed concerns state has alleged improper promotion were often locked out of key discussions that the number of experts both sides plan involving a fentanyl patch called Duragesic and did not receive detailed briefings about to call during the trial may make the evi- and a tapentadol tablet called Nucynta. the aircraft’s MCAS. They weren’t even dence impossible for the jury to follow. As Oklahoma has also spotlighted J&J’s past aware that the system was reliant on only a it stands now, the Plaintiffs plan to call 24 ownership of Tasmanian Alkaloids, which single AOA sensor. The pilots stopped short expert witnesses and the Defendants 90 supplied raw materials for opioid products, of saying that their involvement would experts. This may indeed prove unwork- and Noramco, which manufactured active have improved the final design of the able. Judge Polster commented on the ingredients for finished painkillers. MCAS but explained that their being number of experts the parties intended to The case is Oklahoma ex rel. Hunter v. excluded was a departure from Boeing’s call, stating “it’s the Court’s considered Purdue Pharma LP et al., case number longstanding practice of seeking their opinion that if Plaintiffs require 24 experts CJ-2017-816, in the District Court of Cleve- input to ensure the plane and its many to prove their case, no jury will be able to land County, Oklahoma. parts and systems were safe. follow the evidence, let alone find in their Source: Law360.com Although Boeing executives deny receiv- favor. And if Defendants require jury will ing warnings about keeping pilots out of reject their arguments. On top of that, the conversation and actively involved in there is no way either side could call even a the MAX development, one senior pilot dis- McKesson Pays $37 Million To Settle West small fraction of these experts within the agrees. He said he warned a Boeing execu- Virginia’s Opioid Suit time the Court has allotted for this trial.” tive that by leaving pilots out of the process Judge Polster held a closed conference “[s]omething is going to get by, and it’s not McKesson Corp. has agreed to pay $37 on April 23 with lawyers for the bellwether going to be pretty.” million to settle the opioid lawsuit filed by multidistrict litigation (MDL) cases set to go The details surrounding the MAX, its West Virginia. The settlement, announced to trial. Both Plaintiff and Defense counsel defective design and the certification by West Virginia Attorney General Patrick acknowledged that in order to hold a man- process will continue to unfold for some Morrisey, resolves the claims by the state ageable trial the number of claims and time. While consumers and families of that the company oversupplied West Vir- Defendants must be substantially reduced. those who perished in the two fatal MAX ginia with millions of doses of opioids. The The Court also denied another request crashes wait for more answers, evidence settlement is believed by Attorney General by the Defendants to delay the trial due to continues to mount that shows Boeing cal- Morrisey to be the largest state settlement outstanding discovery that had yet to be lously disregarded consumer safety and against a drug distributor. Under the terms completed the Defendants. Judge Polster human life as it worked to maintain its of the settlement, McKesson will pay $14.5 made it clear that there would be no competitive advantage with the MAX. million this year, with five more annual further delays in this litigation. The trial is If you need more information, contact payments of $4.5 million until 2024. expected to take nearly four weeks, and is Mike Andrews, a lawyer in our Personal The settlement will not affect claims set to conclude Dec. 13. Injury & Products Liability Section, at 800- brought by counties or cities in West Vir- 898-2034 or by email at Mike.Andrews@ ginia and they will continue. The state’s beasleyallen.com. Mike handles aviation lit- 2016 suit alleged that McKesson sent mil- igation for the firm, including Boeing cases. Oklahoma Settles With Teva Before Trial lions of doses of both oxycodone and hydrocodone between 2007 and 2012 and Sources: Wall Street Journal, Bloomberg and Starts Business Insider also distributed large amounts of other Teva Pharmaceuticals on Sunday May 25, narcotics. settled the opioid crisis case brought by In 2017, West Virginia made similar set- Oklahoma for $85 million. The settlement tlements with drug distributors Cardinal was reached just before the scheduled start Health and AmerisourceBergen for $20 of the nation’s first trial testing drugmaker million and $16 million respectively. Also liability for an epidemic of painkiller abuse. in 2017, McKesson agreed to pay a $150 Oklahoma Attorney General Mike Hunter million penalty to settle U.S. Department of

4 BeasleyAllen.com Justice (DOJ) claims that it violated the tion of upper-level pharmaceutical of victims are also being handled by the Controlled Substances Act by filling mil- company executives accused of fueling the team. If you need more information on the lions of orders for drugs, including highly opioid epidemic through illicit marketing opioid litigation contact one of these addictive opioids, without sufficient anti- and prescribing, according to Andrew E. lawyers at 800-898-2034 or by email at abuse safeguards. McKesson in 2008 paid a Lelling, U.S. Attorney for the District of [email protected], Parker. $13.25 million civil penalty and entered Massachusetts. [email protected], Ryan.Kral@beas- into an administrative agreement for Kapoor and executives Michael Gurry, leyallen.com, Rick.Stratton@beasleyallen. similar violations, the DOJ noted Joseph Rowan, Rich Simon and Sunrise Lee com, [email protected] or at the time. allegedly contrived a speaker program to [email protected]. The West Virginia suit, as was true in the pay kickbacks and to buy gifts for doctors recent case in Oklahoma, is outside of the so that they would prescribe the company’s multidistrict litigation in Ohio federal court $19,000-a-month fentanyl spray Subsys in involving more than 1,600 cases over the greater quantities and higher doses. They IV. opioid crisis, filed largely by local govern- also misled insurance companies to cover AN UPDATE ON ments, Native American tribes and the cost of the drug. I agree totally with hospitals. what U.S. Attorney Lelling said in a THE TALC Source: Law360.com statement: LITIGATION Just as we would street-level drug dealers, we will hold pharmaceutical West Virginia Opioid Addiction Centers To executives responsible for fueling the Johnson & Johnson Loses Fight To Pay $17 Million Fraud Settlement opioid epidemic by recklessly and Provisionally Transfer Talc Asbestos Suits illegally distributing these drugs, To Federal Court A major investor-owned mental health especially while conspiring to and addiction treatment company will pay commit racketeering along the way. Johnson & Johnson (J&J) lost its motion the federal government $17 million to to provisionally transfer 2,400 personal The guilty verdicts are seen by knowl- settle claims it defrauded Medicaid in West injury and wrongful death suits over asbes- edgeable observers as being extremely Virginia. The federal government alleged tos-containing talc powder products to Del- important. The convictions will both reso- that a subsidiary of the publicly traded aware federal court when a judge found nate in the pharmaceutical industry and it Acadia Healthcare Co., which owns seven that the company failed to establish that will likely embolden opioid prosecutions. drug addiction treatment centers in West transfer was warranted. J&J had argued in As reported, the jury convicted five execu- Virginia, defrauded Medicaid over several April that the suits pending in state and tives of bribing doctors to prescribe years through false claims for laboratory federal courts alleging its talc contained opioids. This is a landmark verdict. The tests related to the opioid epidemic. asbestos should be transferred to Delaware, case marked the first successful prosecu- As has been reported, West Virginia is where its talc supplier, Imerys Talc, had tion of a top executive tied to addictive among the states hardest hit by the opioid filed for bankruptcy. The company argued painkillers, and observers of the closely epidemic, which has accelerated demand that moving the cases to Delaware would watched proceeding said it will lead to for addiction treatment. Acadia subsidiary streamline the resolution of the claims. more corporate bosses getting in the gov- CRC Health runs outpatient facilities in The personal injury and wrongful death ernment’s crosshairs. several towns across the state. There and claims allege Johnson & Johnson’s talc Federal prosecutors said the executives nationwide, treatment of opioid addiction products caused serious illnesses, includ- were driven by “greed” to sell as much has fallen increasingly on Medicaid, which ing mesothelioma and ovarian cancer, and Subsys as possible, incentivizing doctors to covers nearly 600,000 West Virginians. death. On May 9, U.S. District Judge Maryel- jack up doses or prescribe the powerful Acadia Healthcare Co. owns more than len Noreika said J&J has not met “the drug to people who didn’t need it. In 2018, 580 facilities across 40 states, Puerto Rico burden for immediate, ex parte relief, Insys Therapeutics agreed to pay $150 and the United Kingdom; its treatment which is rarely granted.” J&J hasn’t filed for million to settle charges brought by the options range from outpatient to residential bankruptcy and hasn’t established that it’s U.S. Department of Justice over inappropri- and partial hospitalization. Beyond addic- in financial distress, the judge said. ate opioid sales by former company tion, the company’s clinics treat behavioral “Notably the debtors themselves have not employees. health issues and post-traumatic stress dis- moved for transfer of venue or sought expe- The case is U.S. v. Babich et al., case order. Acadia reported more than $760 dited relief,” Judge Noreika stated. This number 1:16-cr-10343, in the U.S. District million in revenue in the first quarter of ruling means that the talc cases will stay Court for the District of Massachusetts. this year. put while Judege Noreika considers J&J’s Source: modernhealth.com Sources: Law360.com and TechTimes motion to transfer and makes an ulti- mate ruling. Judge Noreika also said J&J can’t show it Insys Founder And Other Executives The Beasley Allen Opioid Litigation Team is faultless in having created the apparent Convicted Of Illegally Pushing Opioid Sales emergency from which it now claims it Because of the enormity of the opioid lit- needs immediate relief. “J&J has been a A Boston jury has convicted John igation our firm has an “Opioid Litigation Defendant in the underlying state court liti- Kapoor, the wealthy founder of Insys Ther- Team” consisting of Rhon Jones, Parker gation for years,” Judge Noreika said. apeutics Inc., and four other executives of Miller, Ryan Kral, Rick Stratton, Will Sutton “J&J is responsible for the multiplicity and racketeering and bribery in order to boost and Jeff Price. Our firm represents the State timing of removal and the ensuing sales of the company’s potent and highly of Alabama, the State of Georgia, and remand motions.” addictive opioid fentanyl from 2012 to numerous local governments, as well as J&J made the venue transfer request 2015. This is the first successful prosecu- other entities. Individual claims on behalf under judicial procedure laws that allow

JereBeasleyReport.com 5 personal injury tort and wrongful death to testify. The hearings are likely to take tion further stated that “Powder is still con- claims to be shifted to the district court in place over several days. sidered a relevant product among AA the district where the bankruptcy case was In United States federal courts, the consumers…This could be an opportunity.” filed. That procedural rule applies to cases Daubert standard is a rule of evidence To increase sales and exploit the rele- where a non-debtor entity that has a close regarding the admissibility of expert vance of Johnson’s Baby Powder to women financial relationship with the debtor can witness testimony. A Daubert hearing is an of color and overweight women, J&J began seek relief, as Johnson & Johnson claimed it evaluation by a trial judge on admissibility working with Segmented Marketing Ser- has with Imerys Talc. The close relation- for a defined “expert,” and their scientific vices, Inc., which specialized in marketing ship between the parties goes back to 1989 or technical testimony and evidence. targeted to “ethnic consumers.” The mar- when Johnson & Johnson sold off the enti- Experts play a vital role in this litigation by keting firm distributed 100,000 gift bags ties that would later become the debtors, helping the jury understand complex scien- containing samples of its Baby Powder to the motion said. tific evidence. The judge serves as the gate- churches and salons in African-American Imerys and two affiliates filed for keeper. The task of gatekeeping, or and Hispanic communities. J&J also Chapter 11 on Feb. 13 with plans to set up a assuring that scientific expert testimony launched a $300,000 radio advertising cam- trust to cover liabilities they face in con- truly proceeds from scientific knowledge, paign designed to reach “curvy Southern nection with the litigation that has been rests solely on that trial judge. This requires women 18-49 skewing African American;” instituted against Imerys, J&J and other the trial judge to ensure that the expert’s ran digital and print advertisements with parties over the past few years related to testimony is “relevant to the task at hand” Weight Watchers magazine; promoted its talc that contained cancer-causing asbes- and that it rests “on a reliable foundation.” products through Lane Bryant, a clothing tos. Imerys said it has been sued by about Thus, the judge must find it more likely chain for plus-size women; and made 14,650 individual claimants. than not that the expert’s methods are reli- further promotions with Curves, a wom- The Plaintiffs are represented by Beasley able and reliably applied to the en’s-only fitness franchise. Allen Crow Methvin Portis & Miles PC, and facts at hand. A December 2018 Reuters investigation Levy Konigsberg LLP, Cohen Placitella & Beasley Allen lawyers anticipate moving revealed that the bosses at J&J had known Roth PC, among others. The case is In re: forward with our next trial against J&J in since the early 1970s that asbestos had Imerys Talc America Inc., (case number July 2019. We look forward to continuing been identified in J&J’s raw talc, Baby 1:19-mc-00103) in the U.S. District Court to represent our clients against J&J and Powder, and Shower to Shower products. for the District of Delaware. The bank- other Defendants. Our goal is for justice Asbestos has long been known as a carcino- ruptcy case is In re: Imerys Talc America to be done! gen, but J&J did not disclose the presence Inc. et al., (case number 1:19-bk-10289) in of asbestos in its products to regulators like the U.S. Bankruptcy Court for the District the FDA or to the public. of Delaware. Further, when Reuters inquired about Amid Growing Concerns Of Talc Safety, Beasley Allen lawyers are proud to be the marketing campaigns targeting African J&J Targeted Women Of Color And fighting for individuals who have been American and overweight women, J&J Overweight Women exposed to asbestos and later developed responded that it has targeted its marketing disease. These diseases not only impact the During the talc litigation, our lawyers toward many demographics and groups, person exposed, but also families and have learned how Johnson & Johnson (J&J) and that “we’re proud pioneers of the prac- friends. Our firm promotes our best efforts targeted certain groups, putting them at tice of multicultural marketing.” Shame on to seek justice for these individuals. If you severe safety and health risks. In 2006, a the bosses at J&J! have any questions or have been exposed working group of the World Health Organi- Sources: Reuters to asbestos and developed mesothelioma or zation’s International Agency for Research lung cancer, contact Beasley Allen’s meso- on Cancer (IARC) met, in part, to investi- thelioma team of lawyers: Sharon Zinns, gate the carcinogenic potential of cosmetic J&J Hit With $25 Million Talc Verdict In our lead mesothelioma attorney, at Sharon. talc-based body powder when applied to New York; Wins Case In South Carolina [email protected] or Ashtyne the perineal area. The working group’s Traylor, a lawyer on the litigation team, review of case-control studies observed “a A New York state jury awarded $25 at [email protected]. modest, but unusually consistent, excess in million last month to a woman who alleged They can be also reached by phone at risk” for perineal use of talc-based body that asbestos in Johnson & Johnson’s tal- 800-898-2034. powder. Based on all available data, IARC cum-powder-based products caused her to Source: Law360.com determined that perineal use of talc-based develop cancer, while jurors in a similar body powder is “possibly carcinogenic case in South Carolina ruled for J&J. The to humans.” two verdicts come as J&J faces some 14,200 The Talc MDL Is On Track Pediatricians had long warned of the talc-related lawsuits nationwide claiming danger to infants from inhaled talc baby its talc products, including Johnson’s Baby There are many things happening in the powder, which led to adults being the Powder, can cause ovarian cancer and talc multidistrict litigation (MDL) in New primary users, making up to 91% of baby mesothelioma, a form of cancer linked to Jersey. During the past several months, the powder users by the mid-2000s. So, J&J asbestos exposure. parties have conducted depositions of turned its focus to two key groups of long- expert witnesses. This summer, each party time Baby Powder users: African American The New York Verdict will file motions in support of or against and overweight women. In a 2006 internal allowing these witnesses to provide testi- J&J marketing presentation, the “right The New York jury awarded $25 million mony. In July and August of 2019, the MDL place” to target was “under-developed geo- to Donna A. Olson who said she developed Judge will conduct Daubert hearings and is graphical areas with hot weather, and mesothelioma from prolonged exposure to expected to issue rulings in the months fol- higher AA population,” abbreviating asbestos-containing talcum powder. The lowing as to which experts will be allowed African Americans as “AA.” The presenta- verdict was awarded entirely for compensa-

6 BeasleyAllen.com tory damages. The jury also found that J&J old where the earth can no longer sustain air pollution restrictions and mercury should pay punitive damages. The second life as we know it. regulations. phase of the trial will take place to specifi- It’s not just a rollback of sound regula- Trump has opened public lands to cally address the Plaintiff’s punitive tions, it’s an assault on the policies and destructive commercial enterprises, and damages claims. We did not have that result institutions that have been handed down, mining and drilling on public property has at press time. built upon, and cherished by each subse- soared in recent months. The U.S. approved quent generation and government nearly 40 percent more oil and gas drilling The South Carolina Verdict administration. permits on public lands in 2018 than it did Several groups have called on the House the previous year, and logging on public Johnson & Johnson received a Defense Oversight Committee to investigate recent land has increased by 30 percent. verdict in the case tried in South Carolina. efforts by the White House to undermine In calling for a congressional investiga- This case also alleged that the talc product climate change studies and abolish envi- tion, EDF Action asks, “Who is influencing caused mesothelioma. The Plaintiff, Beth- ronmental protections that have made our this administration to completely abandon Anee Johnson, was diagnosed in 2016 with air and water cleaner. Consider some of the government’s role as steward of the mesothelioma after using J&J baby powder Trump’s appointments and you will see he environment? How deep do their special since the 1960s. is putting the “foxes” in control of the interests go? Are there secret backroom Source: Reuters various “hen houses.” Take a look at three deals in play? We simply don’t know.” appointments of Trump’s appointees and Hopefully, the word will get out to the see if you agree: American people on what Trump is doing to them. It’s literally a life or death situa- V. • President Trump appointed Andrew tion. When safety and health concerns and REGULATION BY Wheeler, a former lobbyist for the coal concerns over such things as climate industry, to head the Environmental Pro- change take a back seat to corporate greed, THE FEDERAL tection Agency (EPA). Addressing an folks will suffer. It’s time for a wakeup call! audience at an energy conference in Sources: Washington Examiner, EDF Action, GOVERNMENT OF Houston in March, Mr. Wheeler called Scientific American, Mother Jones, The New York CORPORATE environmentalists “oblivious” while Times, NRDC, Associated Press, Reuters touting “his administration’s rollback of AMERICA Obama-era environmental and climate change rules, in the name of ‘regulatory certainty’ for business,” the Washington VI. Trump’s Environmental Policies Prompt Examiner reported. PURELY POLITICAL Call For Investigation • Trump’s choice for Secretary of the Inte- NEWS & VIEWS From the very outset of his Administra- rior is David Bernhardt, “a former oil and tion, President Trump has been either can- gas industry insider who wants to roll celing or delaying regulatory actions. By back endangered species protections and Arnold Mooney Announces Senate Run December of 2017 he had already canceled open public lands and waters to mining, or delayed more than 1,500 planned regula- drilling, farming and other development,” according to the EDF Action, an State Rep. Arnold Mooney (R-Birming- tions. At that time, Trump stressed his ham) announced in early May that he will desire for “every cabinet secretary, agency advocacy unit of the Environmental Defense Fund. run for his party’s nomination for the U.S. head and federal worker to push even Senate seat currently held by Democrat harder to cut even more regulations in • To head the White House committee on Sen. Doug Jones. He joins U.S. Rep. Bradley 2018.” He said: “I don’t know if we’ll have climate change, Trump selected William Byrne of Mobile and former Auburn head any left to cut, but we’ll always find them.” Happer, a climate change skeptic who football coach Tommy Tuberville in the Safety, health and environmental protec- has said the earth is in a “CO2 famine” quest for the Republican nomination. It’s tions are badly needed and sadly most and needs more of the global-warming expected that Roy Moore will soon join the Americans don’t even know what has been gas in the atmosphere. field of GOP candidates. John McMillian happening and how badly they have been and Jim Zeigler are also being mentioned affected. Unfortunately, things will likely These appointments and others have by political insiders as likely candidates. get worse. already resulted in myopic policies with In the announcement of his candidacy When all the world’s leading scientists real-life consequences. on Twitter, Arnold billed himself as a “con- warn that we are racing toward a global, On June 1, 2017, Trump announced that servative and an outsider with a backbone,” climate-driven catastrophe, it should be a the U.S. would cease all participation in the stating his belief that is what the people of no-brainer that our government’s responsi- 2015 Paris Agreement on climate change Alabama are looking for. He touted his bility is to develop and implement policies mitigation. In August of the same year, he ability to stand up to the party line in favor that would ensure the future of our chil- disbanded the 15-person Advisory Commit- of his constituents by pointing out he voted dren and grandchildren. tee for the Sustained National Climate against the gas tax increase, which was Yet nearly every day comes news that the Assessment, an advisory panel of leading strongly supported by Republican Gov. Kay Trump Administration has appointed climate scientists that provided guidance Ivey. Arnold was one of 18 Republicans in leaders, adopted policies, and taken mea- on U.S. policies affecting climate change. the legislature who opposed the tax. sures that harm the environment, endanger The Trump Administration also rolled Arnold was elected to the state House of wildlife, put our public lands up for grabs, back clean car and light truck standards, Representatives in 2014 and is serving his and threaten public health and safety. All of relaxed rules governing methane releases, second term. He has been a commercial these things push us closer to that thresh- inspections and leaks; and continually chal- realtor in the Birmingham area for about 40 lenges other pollution standards, including years. He was campaign chairman for U.S.

JereBeasleyReport.com 7 Rep. Mo Brooks in his unsuccessful run in and other markets around the world, facturer fully informed the FDA of the 2017 special senate election. Arnold according to the prosecutor’s office. the justifications for the warning Republican nomination in that race went to Source: Law360.com required by state law and that the Roy Moore, who was ultimately defeated by FDA, in turn, informed the drug Doug Jones. manufacturer that the FDA would Arnold will likely be the most fiscally not approve a change to the drug’s $240 Million Wells Fargo Derivative Suit conservative candidate in the GOP primary. label to include that warning. He will definitely be a factor. Settlement Gets Initial Approval The high court sent back the case to the Source: AL.com The proposed $240 million settlement Third Circuit. David C. Frederick, one of that would end derivative litigation over the lawyers involved in the case, said in a Wells Fargo’s fake accounts scandal has statement: been approved by U.S. District Judge Jon S. VII. Tigar. Preliminary approval was given to This opinion protects access to justice THE CORPORATE the agreement between investors in the for injured patients. It reaffirms bank and its current and former top brass. Wyeth, which ensured patients can WORLD Judge Tigar found the proposed settlement hold drug companies accountable cleared the initial evaluation of its fairness, when they fail to warn about side reasonableness and adequacy. An August effects, and it provides the clarifica- Astellas And Amgen To Pay $125 Million date was set for a final hearing on what was tion the Third Circuit requested. To End Kickback Probe said to be the largest-ever insurer-funded Further, the opinion makes clear that cash settlement of a derivative action. The preemption can be established only Astellas Pharma US Inc. and Amgen Inc. Fire & Police Pension Association of Colo- by a formal FDA action prohibiting will pay a combined $125 million to settle rado and the City of Birmingham Retire- the manufacturer from changing its claims that they used charities to subsidize ment and Relief System are co-lead investor warning label to add any adequate Medicare co-pays for their own drugs in Plaintiffs. warning under state law. what amounted to illegal kickbacks. The The case is In re: Wells Fargo & Co. The Supreme Court’s decision was unan- U.S. Attorney’s Office for the District of Shareholder Derivative Litigation, (case imous with Justice Stephen Breyer writing Massachusetts announced the settlement. number 3:16-cv-05541) in the U.S. District the opinion. Justice Clarence Thomas The pharmaceutical companies are the Court for the Northern District of wrote a concurring opinion, as did Justice seventh and eighth companies to resolve California. Samuel Alito. More than 500 patients who similar charges in Massachusetts related to Source: Law360.com kickbacks to third-party foundations, took Fosamax before the addition of the known as patient co-pay assistance founda- warning about atypical femoral fractures in tions, bringing the total settlement amount 2011 have said the FDA rejected the pro- to more than $840 million. VIII. posed stress fracture warning because it U.S. Attorney Andrew E. Lelling said in a didn’t represent the type of injury they statement that Astellas and Amgen con- COURT WATCH allegedly sustained, not because of insuffi- spired with two co-pay foundations to cient evidence. create funds that functioned “almost exclu- The patients’ claims were dismissed in 2014 by U.S. District Judge Joel Pisano, who sively” to benefit patients taking the com- Justices Say Judges Must Interpret FDA found they were preempted by federal law, panies’ own drugs, in violation of the Rules Anti-Kickback Statute. but the cases were revived in March 2017 by the Third Circuit, which found that the Source: Law360.com The U.S. Supreme Court has ruled that a judge, not a jury, must decide if the U.S. drugmaker must prove to a jury that federal Food and Drug Administration (FDA) regulators blocked the warning and that would have rejected a proposed warning of there was a valid argument that Merck Porsche To Pay $599 Million Over the risks associated with Merck’s osteopo- could have received approval had it worded Emissions Cheating rosis drug Fosamax. The decision resolves a the warning differently. question over whether a judge or jury The patients are represented by David C. German prosecutors have imposed a should interpret ambiguities in FDA label- Frederick, Brendan J. Crimmins and Jeremy €535 million ($599 million) fine against ing rules. The high court found that a judge S.B. Newman of Kellogg Hansen Todd Figel Porsche AG for breaching supervision was better suited than a jury to decide if & Frederick. The case is Merck Sharp & duties that led to emissions cheating in the consumers’ claims are barred by federal Dohme Corp. v. Doris Albrecht et al., (case diesel cars. Porsche will not appeal the regulations. The decision reverses a Third number 17-290) in the U.S. Supreme Court. penalty, which ends the suit against the Circuit decision that revived multidistrict Source: Law360.com Volkswagen AG unit. The prosecutor’s litigation (MDL) after the panel found that office found that the luxury carmaker’s the crucial issue of why the FDA rejected development department had breached its the proposed fracture warning should be legal supervisory duties, contributing to decided by a jury, not a judge. The court’s Porsche vehicles violating emissions regula- opinion stated: tions since 2009. The penalty covers about 99,000 Porsche We here determine that this question AG diesel cars with V6 and V8 engines from of preemption is one for a judge to Audi AG that were distributed in Europe decide, not a jury. We also hold that ‘clear evidence’ is evidence that shows the court that the drug manu-

8 BeasleyAllen.com IX. missed Hunt’s claim as time barred under [a] qui tam relater is more aptly anal- the False Claims Act’s standard six-year ogized, not to a Justice Department WHISTLEBLOWER statute of limitations. The district court attorney who represents the United rejected Hunt’s argument that the statute’s States in litigation, but to a plaintiff LITIGATION three-year tolling provision had not started who asserts a private right of action to run until the government knew about under a federal statute. Congress’s facts material to the right of action. The decision to authorize private law- Supreme Court Upholds 10-Year Statute Of Eleventh Circuit agreed with Hunt and suits may often rest in part on its Limitations For False Claims Act Cases reversed the district court. belief that such actions will vindicate The Supreme Court’s decision means a societal interest in deterring and In a unanimous opinion written by that the default for pleading False Claims remedying violations of federal law. Justice Clarence Thomas, the Supreme Act violations reaches back 10 years from Court in Cochise Consultancy Inc. v. the date of the complaint, unless the Defen- Francisco also explained the high degree United States ex rel. Hunt held that a dant can prove that the government (not of authority the Justice Department has in 10-year statute of limitations applies to just the relator) knew or should have False Claims Act cases, even after passing suits under the False Claims Act. The case, known about the material facts sooner. on the chance to intervene in them. For decided May 13, 2019, affirmed the Elev- Although this decision will result in the example, the Justice Department can move enth Circuit Court of Appeals and further survival of some claims that would have to dismiss or settle cases over the objec- held that a relator is not an “official of the otherwise been dismissed as untimely, the tions of whistleblowers. It can also over- United States” for purposes of applying the more significant impact of the decision is rule a whistleblower’s proposed settlement False Claims Act’s statute of limitations. likely to be the increased statutory period or dismissal of a False Claims Act case. The False Claims Act, 31 U.S.C. § 3729, et for relators and the government to claw The DOJ lawyers in the civil division, as seq., is the federal government’s primary back monies from Defendants who have we have reported, have been more aggres- tool for combatting fraud. Whistleblowers, perpetrated long-running fraud schemes sive recently in asserting their authority to called “relators” under the statute, may (not to mention the accompanying treble dismiss False Claims Act cases. Under the bring claims on behalf of the government damages). Trump administration, the Justice Depart- when they have first-hand knowledge of The Supreme Court’s decision is a ment issued guidance urging prosecutors fraud that has not been publicly disclosed. victory for the integrity of the government to step in and move to dismiss whistle- The government may choose to intervene contracting process, as it will support the blower cases deemed to be meritless. In and prosecute a relator’s claim, or it may efforts of relators, regulators and investiga- December alone, the Justice Department allow the relator to handle the case on her tors to protect taxpayer dollars. Beasley moved to dismiss 11 whistleblower law- own. Relators receive a percentage of the Allen lawyers investigate and file meritori- suits against drugmakers. government’s recovery from successful ous whistleblower claims under the False Source: Law.com suits under the False Claims Act. Claims Act. The Supreme Court’s decision in Cochise Sources: https://www.supremecourt.gov/ resolves a circuit split as to whether rela- opinions/18pdf/18-315_1b8e.pdf and Law360.com tors can invoke the False Claims Act’s FCA Cooperation Guidance Said To Lack tolling provision in cases where material Key Details facts are learned after the standard six-year statute of limitations has run and, if so, A Challenge To The Constitutionality Of New Justice Department guidance that whose knowledge starts the clock—the The False Claims Act breaks down how targets of False Claims relator’s or the government’s. The Court Act (FCA) suits can get credit for helping determined that yes, the tolling provision In the U.S. Supreme Court, the Justice investigators is a welcome step for Defen- applies to extend the False Claims Act’s Department (DOJ) is defending the consti- dants and their lawyers, but many experts statute of limitations to as much as 10 tutionality of a federal law that allows whis- say the new rules lack concrete details on tleblowers to recoup fraudulent claims for years; and only the government’s knowl- the benefits of cooperation. Many entities pa edge is sufficient to start the clock ticking. yment on the government’s behalf. U.S. subject to the FCA were looking for spe- Solicitor General Noel Francisco has called The case was brought by relator Billy Joe cific information about how much of a on the justices to reject a challenge to the Hunt, who in 2006 worked in Iraq for a benefit they would be entitled to for spe- False Claims Act arising out of a whistle prime contractor responsible for cleaning - cific types of cooperation, similar to the blower case that alleges lntermountain up munitions. Defendant Cochise Consul- scoring system used for calculating fines Healthcare, a Utah-based health care pro- tancy was awarded a subcontract to under federal criminal sentencing vider, fraudulently billed the government provide security services for the project. guidelines. for unnecessary treatments. Hunt alleged that Cochise procured the Cooperating companies want a “reason Intermountain’s lawyers argued that the contract through bribes paid to the Army’s to believe that there will be a benefit, and a False Claims Act violates the Constitution’s contracting officer. Hunt disclosed this meaningful benefit, and it’s that kind of appointments clause by allowing whistle information to the government in 2010 - policy that exists on the criminal side … while under investigation for his role in a blowers to bring civil cases prosecuting where entities can see the potential calcu- separate kickback scheme (for which he fraud against the U.S. government. lations and how cooperation or self-disclo- pled guilty and served 10 months in Assistant Attorney General Jody Hunt sure will impact that,” said Jacob Elberg, federal prison). and DOJ lawyers Michael Raab and Sarah associate professor at Seton Hall Law After release from prison, in 2013 Hunt Carroll have joined Francisco on a brief School. “And there’s nothing like that here.” filed suit alleging Cochise had secured its contesting the claim that the False Claims In the past few years, the U.S. Department contract through bribes in violation of the Act allows whistleblowers to effectively of Justice (DOJ) has made several efforts to take on the role of government officials. In False Claims Act. The district court dis- encourage voluntary cooperation from FCA the brief, Francisco argued that: targets, such as moving away from an “all

JereBeasleyReport.com 9 or nothing” approach to cooperation in lawyers recently obtained a $14 million articles were public disclosures, Kromena- civil fraud cases. verdict in Birmingham Federal Court ker was an original source of information The DOJ has significant discretion to dealing with a health care whistleblower because he provided independent knowl- reward cooperation under the FCA. It deliv- issue and continue to pursue other cases edge to the government that was a signifi- ered further guidance on May 7, “issuing an throughout the country involving fraud on cant addition to the disclosed allegations. update to the DOJ’s Justice Manual that the government. Our firm represents Mr. Kromenaker and spells out 11 specific forms of voluntary Source: Law360.com other whistleblowers like him who have cooperation and four potential remedial uncovered fraud involving a government measures that can earn entities coopera- contract. Common schemes involve dou- tion credit under the FCA. These mitigating ble-billing for the same service, inaccu- Kimberly-Clark Whistleblower Seeks factors include the voluntary disclosure of rately coding services, billing for services any potential false claims. Others factors Revival Of Dismissed Claims not performed, inaccurately testing prod- include disclosure of relevant facts, docu- ucts sold, and falsely representing the Frank Kromenaker, a former Kimberly- ments and potential damages, disclosure of quality of products sold. The Commission Clark employee and a Beasley Allen client, any individuals involved, and acceptance of on Wartime Contracting has warned that filed a whistleblower suit against Kimberly- liability or responsibility.” the lack of oversight of government con- Clark and its subsidiary, Halyard, in the While the factors that the DOJ will use tractors has led to massive fraud and waste. Northern District of Georgia. He alleged to assess cooperation were largely as Beasley Allen lawyers Larry Golston and that the Defendants knowingly sold the expected, it came with some surprises in Leon Hampton are handling the Kromena- government shoddy medical equipment what the DOJ said it would consider to be ker case. You can contact them at 800-898- such as surgical gowns, feminine care eligible for credit, most notably the admis- 2034 or by email at Larry.Golston@ products, feeding tubes, and endotracheal sion of liability or acceptance of responsi- beasleyallen.com or Leon.Hampton@beas- tubes. On March 27, the court granted the bility for alleged wrongdoing. “That was leyallen.com. Defendants’ motion to dismiss. The Defen- surprising because the data underlying an dants contended that Kromenaker’s allega- analysis Elberg conducted that explored tions duplicated those in earlier how the DOJ has appeared to credit coop- whistleblower cases and/or were public Recent Whistleblower Settlements eration in recent FCA settlements had not knowledge before he filed suit. shown any meaningful benefit for those This dismissal was based on two clauses The following are some significant settle- that admitted wrongdoing when compared contained in the False Claims Act (FCA): ments in whistleblower cases. We will to those that had denied it.” the “first-to-file bar” and the “public disclo- include a brief account of these While the guidance codifies when enti- sure bar.” The former states that when one settlements. ties can benefit from cooperating with the whistleblower files a claim, “no person DOJ, it fails to show how they can benefit, other than the government may intervene $17.5 Million Settlement Ends Professor Elberg said. The DOJ did note or bring a related action based on the facts FCA Kickback Suit that cooperation credit “most often ... will underlying the pending action.” The public be exercised by reducing the penalties or US WorldMeds LLC has agreed to pay disclosure bar likewise prohibits whistle- damages multiple sought by the depart- $17.5 million to resolve whistleblower blower claims if such claims were “publicly ment,” but could also include public claims that it paid doctors and patients disclosed” and the whistleblower was not acknowledgement of assistance, or aid with kickbacks to boost prescriptions for drugs the “original source of the information.” resolving any related whistleblower FCA that treat loss of motor control from Parkin- The court sided with the Defendants in case, or a note of acknowledgement to son’s disease and neck pain. The settlement finding that Kromenaker’s allegations were another agency that could inform suspen- agreement resolves claims centering on the duplicative of those in two prior suits alleg- sion, debarment or penalty proceedings. drugs Myobloc and Apokyn that originated ing that Kimberly-Clark marketed and sold The guidance also set a ceiling for how with whistleblowers Brian Bennett and Dr. surgical gowns that “failed industry stan- much credit can be provided, saying that Robert Chinnapongse. The whistleblowers dard tests and do not [meet] relevant stan- the maximum credit available “may not will receive almost $3.2 million from the dards” but represented the gowns as exceed an amount that would result in the settlement. John H. Durham, U.S. Attorney “impervious, impermeable, and resistant to government receiving less than full com- for the District of Connecticut, in a state- fluids and microorganisms” even though pensation for the losses caused by the ment, said: the company knew such representation Defendant’s misconduct.” This includes was false. Further, the court held that Kro- damages, interest, the cost of the related Pharmaceutical companies and menaker’s claims had been publicly dis- investigation, and the relator’s share, if any. other health care providers that pay closed in a “60 Minutes” exposé, and by a Some say the “DOJ’s indication that it could kickbacks to patients and physicians company recall of tubes and feminine limit the damages it seeks to single to improperly induce drug prescrip- products. damages—the FCA allows for treble tions drive up the costs of health care Nonetheless, Kromenaker has since filed damages—was valuable, as was the poten- and divert critical resources from the a motion with the court to alter its judg- tial for DOJ assistance in resolving an Medicare program. This case origi- ment. According to this motion, the court underlying qui tam action.” However, the nated with the filing of whistleblower did not apply the right legal test for deter- guidance does not expressly address the lawsuits currently pending in the mining whether the allegations in the Kro- issue of the timeliness of a voluntary disclo- District of Connecticut, and the whis- menaker case and those reported in the sure, a factor the DOJ uses in its coopera- tleblowers will be handsomely media were substantially the same. Conse- tion analysis. rewarded for exposing this scheme. quently, the court did not properly Fraud continues to be a huge problem in compare the media reports to his allega- The federal government accused US many industries in this country. Our firm tions, Kromenaker contends. Moreover, WorldMeds of using donations to a third- has increased its health care whistleblower even if the court still concludes that the party foundation to illegally cover the practice for this very reason. Beasley Allen

10 BeasleyAllen.com copay for patients’ Apokyn prescriptions ultimately, government purchasers to be between 2009 and 2016 there were 195 between January 2012 and June 2013, after overcharged. The settlement also resolves e-cigarette explosion-related injuries and the pharmaceutical company raised the claims that Informatica caused sales to the fires, resulting in 38 “severe” injuries. The price of the drug. The government claimed United States in violation of the Trade numbers have spiked in recent years, the donations constituted illegal induce- Agreement’s Act, which restricts the jumping from 15 incidents in 2014 to ments forbidden by the Anti-Kickback country of origin for goods purchased by 98 in 2016. Statute and FCA. The government further the government. The case is captioned The true number is far higher; many inci- asserted that US WorldMeds also bribed United States ex rel. Sullivan v. Informat- dents go unreported or not properly classi- two doctors so they would prescribe the ica Corp., Case No. 15-0716 (D.D.C.). fied. The explosions are largely the result drugs, including paying for a trip to the of malfunctioning lithium-ion batteries, Kentucky Derby with their wives. according to the report. Lithium-ion batter- In addition to the settlement, US World- ies tanked Samsung’s Gallery Note 7—but The Beasley Allen Whistleblower Litigation Meds entered into a five-year corporate they are especially dangerous in e-ciga- Team integrity agreement with the U.S. Depart- rettes because the structure of the ciga- ment of Health and Human Services, Office As we have stated previously, whistle- rette vaporizers make them more likely of Inspector General. The agreement blowers are the key to exposing corporate than other products to behave like requires the company to ensure its arrange- wrongdoing and government fraud. A “flaming rockets” if the batteries go bad. ments with third-party patient assistance person who has first-hand knowledge of When these batteries explode, patients programs fall in line with the law. fraud or other wrongdoing may have a can typically suffer flame burns and blast Shayne C. Stevenson, one of the lawyers whistleblower case. Before a person injuries. Flame burns are the most common who represented Chinnapongse, stated: reports suspected fraud or other wrongdo- injury and usually occur when a recharge- able battery explodes in a user’s pocket and Dr. Chinnapongse is precisely the ing—before they “blow the whistle”—it is important to make sure they have a valid catches their pants on fire. kind of whistleblower that the False “That will result in higher temperatures Claims Act is meant to reach—a sci- claim and that they are prepared for what lies ahead. Beasley Allen has an experi- being close to the skin for longer,” Dr. entist, researcher, doctor who stood Thompson, who said she has attended to up for the right things and helped enced group of lawyers dedicated to handling whistleblower cases. The lawyers on about 30 e-cigarette explosion cases, bring about this important explained. She added, “And that’s how you resolution. our firm’s Whistleblower Litigation Team are Larry Golston, Lance Gould, Paul Evans, get deeper burns.” These types of explo- The cases are U.S. ex rel. Bennett v. US Leslie Pescia, Leon Hampton, Tyner Helms, sions often result in third-degree burns to WorldMeds LLC, et al., (case number 3:13- James Eubank and Archie Grubb. the victim, causing damage to tissues and CV-363) and U.S. ex rel. Chinnapongse v. A lawyer on our Whistleblower Litigation nerves to the point of a person losing their US WorldMeds LLC, (case number 3:16-cv- Team will be glad to discuss any potential sense of pain. These types of injuries 0080) in the U.S. District Court for the Dis- whistleblower claim either in person or by require one or more skin grafting proce- trict of Connecticut. phone. You can reach these lawyers by dures, a process that Dr. Thompson phone at 800-898-2034 or by email at Larry. describes as “very painful” and leaves the Informatica Agrees To Pay $21.57 Million [email protected], Lance.Gould@ victim permanently scarred. If a patient is smoking or holding the For Alleged False Claims Caused By Its beasleyallen.com, Paul.Evans@beasleyallen. e-cigarette when it explodes, they can also Commercial Pricing Disclosures com, [email protected], [email protected], Tyner. suffer blast injuries. That can include Informatica LLC f/k/a Informatica Corpo- [email protected], James.Eubank@ broken teeth, face fractures, avulsions, loss ration has agreed to pay $21.57 million to beasleyallen.com or Archie.Grubb@beas- of eyesight and even death. resolve allegations that it caused the gov- leyallen.com. In 2016, Dr. Thompson and her Seattle ernment to be overcharged by providing colleagues published a letter in the New misleading information about its commer- England Journal of Medicine detailing the cial sales practices that was used in General 15 cases they had encountered in their hos- Services Administration (GSA) contract X. pital requesting increased regulation to negotiations. Informatica is a software PRODUCT improve safety. If you need more informa- development company headquartered in tion or have a potential claim, contact Will Redwood City, California, that sells tools LIABILITY UPDATE Sutton at 800-898-2034 or by email at for establishing and maintaining data [email protected]. warehouses. Source: https://www.thedailybeast.com/this-surgeon- has-treated-30-people-for-exploding-e-cigarettes Informatica allegedly knowingly pro- Surgeon Has Treated 30 People For vided false information concerning its com- Exploding E-Cigarettes mercial discounting practices for its products and services to resellers, who Dr. Callie Thompson, a trauma surgeon Tesla Sued In California For Death Of then used that false information in negotia- at Vanderbilt University’s Division of Apple Engineer tions with GSA for government-wide con- Trauma and Surgical Critical Care states tracts called “Multiple Award Schedule that she has seen at least one injury become Wei Lun “Walter” Huang was killed when contracts.” Under these contracts, GSA increasingly common: exploding e-ciga- his Tesla Model X’s autopilot system mal- uses commercial pricing disclosures to rettes, which can painful injuries like functioned, sending his vehicle into a road- negotiate the maximum prices that a third-degree burns, tooth loss, and tissue side barrier on March 23, 2018. Huang, vendor can charge government agencies. damage. A 2017 report from the Federal who was an engineer, had been driving his Here, Informatica’s false disclosures caused Emergency Management Agency’s (FEMA) Model X P100 D for 32 minutes the GSA to agree to less favorable pricing, and, U.S. Fire Administration estimates that morning of his death. He had activated his

JereBeasleyReport.com 11 autopilot system four times during that 346663) in the Superior Court of California popularity, rebelliousness, and time span, including a continuous for the County of Santa Clara. being ‘cool.’” 19-minute span prior to the crash. Huang Sources: Law360.com and Caranddriver.com With the advent of social media, these was driving down the California highway, viral marketing campaigns have become an in the left-hand lane, when the lanes split. even more effective way to reach young At some point the vehicle’s sensors people, particularly teenagers—as teenag- stopped detecting the car in front of it, and XI. ers tend to use social media far more than the vehicle veered left and accelerated into adults and tend to be more susceptible to the roadside barrier. The car impacted the AN UPDATE ON peer pressure. Since 2015, Juul Labs has end of the barrier at 71 mph, apparently THE VAPING been implementing a similar long-term attempting to return the vehicle to the viral marketing campaign via social media cruising speed of 75 mph. HEALTH CRISIS aimed at teenagers and young adults. Juul The vehicle’s front end was sheared by Labs even recruited social media influenc- the barrier up to the A pillars. Huang was ers like Christina Zayas and paid them to dragged out of the burning vehicle’s wreck- JUUL Epidemic Fueled By Targeted Social post content promoting Juul on their Insta- age, but was pronounced dead at the scene. Media Campaign gram and Facebook pages. According to sensors, he was not holding According to a consolidated complaint the steering wheel in the six seconds prior As reported in a previous issue, in April filed this year in the U.S. District Court for to the wreck. 11 members of the U.S. Senate sent a letter the Northern District of California, Juul’s Huang’s widow, children, and parents to vaping device maker Juul Labs Inc., inappropriate marketing tactics targeting brought suit against Tesla and the State of demanding answers from the company on teenagers are evident in many aspects: California Department of Transportation its tactics targeting youth. Also, a Florida (Caltrans), alleging that the safety systems couple filed a proposed class action against • Intentionally designing a campaign that on the Model X were negligently designed, Juul Labs and tobacco giant Altria Group was simple and would trigger an emo- and alleging that Caltrans was negligent in Inc. accusing them of intentionally target- tional response, particularly with failing to maintain roadside safety features. ing teenagers and concealing the addictive- young people; ness of vaping as well as their nicotine The suit centers on the fact that later • Intentionally designing flavored prod- content. More recently, North Carolina, the Tesla models have introduced improved ucts that would appeal to teenagers and first as a state, sued Juul Labs last month, autopilot software that included the ability young adults; to recognize highway interchanges and claiming deceptive marketing and target- automatically take pre-programed exits. ing youth. • Directing its advertising to teenagers and The Huang family claims that these According to CNN’s recent investigative young adults on social media; upgrades constitute a known defect in the report concerning Juul Labs’ marketing autopilot on the Huang Model X. strategies, health experts have voiced the • Utilizing third party influencers to This isn’t the first fatality that has raised same concern and slammed the company’s amplify its message around the Internet; concerns over the shortcomings of Tesla’s marketing tactics as following in the foot- • Utilizing other social media tools, such autopilot systems. On May 7, 2016, a Model steps of Big Tobacco, which aimed advertis- as hashtags, to encourage participation S operated in Florida ran into the back of a ing at young people in an effort to gain and word-of-mouth messaging by its tractor-trailer, killing that Tesla driver as lifelong customers. Now, in the era of customers; well. Tesla CEO Elon Musk said after that social media and its heavy teen presence, wreck that improvements in the autopilot those same experts worry that vaping • Amplifying the message through off-line system would have prevented that could put their developing brains at risk, advertising; and accident. get them hooked on nicotine early in life Musk further stated that owners of vehi- and be a gateway to smoking and • Using a pricing and distribution model cles equipped with autopilot would receive other drugs. designed to put the product within an update that he claims would cut certain The tobacco industry has long used reach of youth. crashes by more than 50%, explicitly men- “viral marketing campaigns” to push its To make the matter worse, Juul’s popu- tioning preventing crashes with objects of products on children, teens, and young larity among teenagers and young adults all kinds. adults. The landmark case USA v. Philip fueled by its youth-targeted marketing has While it is unknown what version of the Morris revealed that tobacco companies led to a new issue in tracking vaping among autopilot software Huang’s Model X was targeted adolescents for decades by: (1) youth. The Juul epidemic created a new implementing, CEO Musk also stated in employing the concept of peers in order to slang term “juuling” which entered the April that the next version of autopilot market to teenagers; (2) using images and youth lexicon in the wake of Juul’s robust would be “fail-safe” and claimed that the themes in their marketing that appeal to social media presence. According to Bloom- “probability of this computer failing is sub- teenagers; and (3) employing advertising berg, for some young people who use Juul stantially lower than someone losing con- and promotion strategies to knowingly devices, “juuling” is a verb in its own right. sciousness.” Earlier in May, Tesla reach teenagers. In terms of images and Teens say they don’t vape or smoke, but introduced a wireless update that included themes that cater to adolescents, the court they juul, which makes vaping hard to lane-keeping assist without autopi- found “overwhelming” evidence that track. Caleb Mintz, a 17-year-old who first lot engaged. tobacco companies intentionally exploited tried Juul at 15, told Bloomberg, “Hearing The National Transportation Safety adolescents’ vulnerability to imagery by the word Juul instead of vape makes it Board is still investigating the crash. The creating advertising emphasizing themes of sound a lot different. It did not look like case is Huang et al. v. Tesla Inc. dba Tesla “independence, adventurousness, sophisti- your typical vape. Giving it a fancy name Motors Inc. et al, (case number 19-CV- cation, glamour, athleticism, social inclusion, sexual attractiveness, thinness, made it seem like it didn’t have anything harmful in it.”

12 BeasleyAllen.com Anti-tobacco groups and health officials in September 2008 to treat pelvic organ IVC filters were typically designed to be worry that the use of the word “juuling” prolapse. This is a condition in which permanent implants in the body although instead of vaping has led to confusion pelvic organs begin to sag against the in 2010 the FDA issued a safety advisory when pollsters go out into the field to quiz vagina. During a follow-up visit just months stating that IVC filters should be for short- teens on their nicotine habits for the after receiving the implant, however, term placement. This has led to a signifi- National Youth Tobacco Survey (NYTS), an doctors discovered the Plaintiff was experi- cant number of adverse event reports filed important annual government survey that encing vaginal bleeding. They recom- with the FDA. Specifically, Bard has been plays a key role in shaping tobacco policies. mended she undergo a second surgery criticized for its manufacture of an IVC Because of this, this year for the first time, during which the doctors found that a device removal system without approval the poll specifically mentions Juul as an portion of the mesh had sawed into from the FDA. example of a vape device. her vagina. To date, thousands of lawsuits have been Given the importance of maintaining Four years after having the exposed filed against several IVC manufacturers and consistency with polling questions so that piece of mesh removed, the Plaintiff again these cases continue to move forward in lit- trends can be accurately tracked over time, began experiencing vaginal bleeding and igation. Matt Munson and Lisa Courson it would be an understatement to say that discomfort during sex. A subsequent exam- from Beasley Allen, along with Lance this unprecedented change in the NYTS is ination found that the mesh had become Cooper, will try the third Rex/Argon of significance. The results will likely come exposed in her vagina in two places, Option Elite IVC filter case in the country out late in the year. It will be interesting to requiring a third surgery to remove. She in late 2019 or early 2020. Matt Munson, see how this change affects the results as went on to undergo three additional sur- who is in our Mass Torts Section, says: the updated survey language is expected to geries between 2013 and 2017 to address capture kids who think juuling isn’t the additional mesh erosions was experienc- The evidence of sneaky off-label mar- same as using another vape product. ing, and two treatments in which she was keting of IVC filters for prophylactic Beasley Allen lawyers are investigating chemically burned in an attempt to remove use by these companies, coupled with cases involving teens and young adults who scar tissue that had built up the fact that thousands of serious have suffered adverse health effects from around the mesh. adverse events went unreported to JUUL, including seizures, nicotine addic- The Plaintiff is represented by Thomas the FDA will be damaging evidence tion, nicotine poisoning, breathing prob- Kline, Kila Baldwin, Michael Trunk and to the Defendants at trial. lems, behavioral and psychological Lee Balefsky of Kline & Specter PC. The Beasley Allen lawyers continue to inves- problems, and other serious health condi- case is Patricia Mesigian et al. v. Ethicon tigate cases involving people injured when tions. For more information, contact Joseph Inc. et al., (case number 140200399) before retrievable IVC filters migrate, fracture, or VanZandt, Soo Seok Yang, or Melissa Prick- the Court of Common Pleas of Philadelphia perforate the inferior vena cava. For more ett at 800-898-2034, or by email at Joseph. County, Pennsylvania. information, contact Matt Munson, Chad [email protected], SooSeok. Source: Law360.com Cook or Melissa Prickett at 800-898-2034, [email protected] or Melissa.Prick- or by email at Matt.Munson@BeasleyAllen. [email protected]. com, [email protected] or Sources: CNN.com; Law360.com; Consolidated IVC Filter Litigation Update [email protected]. Complaint filed in U.S. District Court Northern District of California (In re: Juul Labs, Inc. Product Litigation; Case No. 3:18-cv-2499); and Bloomberg.com This week, a Bard IVC Filter bellwether trial was set to begin in The United States Taxotere Litigation Update District Court for the District of Arizona with Senior United States District Judge Taxotere cases filed in federal courts XII. David G. Campbell presiding. The Court around the country have been consolidated held a final pretrial conference in April of in the United States District Court for the MASS TORTS this year and addressed issues raised by the Eastern District of Louisiana. The cases are UPDATE parties in their trial briefs and proposed part of a multidistrict litigation (MDL) as final pretrial orders. The case was resolved ordered by the Judicial Panel on Multidis- a few days prior to trial beginning. This trict Litigation. Multidistrict litigation is a would have been the fourth bellwether consolidation of civil cases transferred J&J Hit With $80 Million Verdict In Mesh trial to date. from different jurisdictions across the Case IVC filters, first introduced in 2005, are country to a single United States District small devices placed in the inferior vena A Philadelphia jury returned $80 million Court to achieve certain pre-trial efficien- cava to prevent blood clots from traveling in damages against a Johnson & Johnson cies. The aim of this consolidation is to pre- to the lungs. The inferior vena cava is a unit last month in the latest trial over serve judicial resources, eliminate large vein the carries deoxygenated blood chronic pain and other complications duplicities in the fact-finding process, and from the lower half of the body up to the caused by its pelvic mesh implants. The prevent inconsistencies in pre-trial rulings. heart. There are significant issues with verdict included $50 million in punitive Judge Kurt D. Engelhardt was originally “retrievable” IVC filters including perfora- damages. This was the eighth jury verdict selected to preside over this litigation. tion of the vena cava wall and migration up to go in favor of Plaintiffs out of 10 total However, Judge Engelhardt was appointed toward and to the heart; the legs or “struts” mesh-related cases that have gone to trial in to the U.S. Court of Appeals for the Fifth can also fracture and migrate to the renal Philadelphia. It brings the total amount of Circuit in May 2018 and the task of oversee- veins and heart; and tilting inside the infe- damages awarded against J&J unit Ethicon ing MDL No. 2740 was reassigned to Judge rior vena cava, which makes retrieval sig- Inc. to nearly $350 million. Jane Triche Milazzo. As of April 2019, more nificantly more dangerous and The case involved claims made by Phila- than 10,000 individual cases have been complicated. delphia-area resident Patricia “Jill” Mesi- filed in the Taxotere MDL. gian, 75, over a Prolift implant she received

JereBeasleyReport.com 13 Taxotere (docetaxel) is a chemotherapy Darley or Melissa Prickett, lawyers in our roughly 4,000 state and federal cases drug approved to treat breast cancer, non- Mass Torts Section, at 800-898-2034 or by in the U.S. small cell lung cancer, advanced stomach email at [email protected] or The Plaintiff is represented by Neal cancer, head and neck cancer and meta- [email protected]. Moskow of Ury & Moskow, Andy Childers static prostate cancer. It is administered Sources: Minute Entry, North, M.J., In re: Taxotere and Emily Acosta of Childers Schlueter & intravenously, and is a member of a family (Docetaxel) Prods. Liab. Litig., MDL No. 2740 (E.D. La. Smith and Yvette Ferrer of Ferrer Poirot of drugs called taxanes. It is used to try to March 27, 2019). and Wansborough. The case is Eugene prevent cancer cells from growing Roberto v. Boehringer Ingelheim Pharma- and dividing. ceuticals Inc. et al., (case number CPL- When Sanofi-Aventis started manufactur- $542,000 Verdict In Pradaxa HHD-CV-16-6068484-S) in the Superior ing Taxotere, it marketed and promoted it Court of the State of Connecticut, Judicial Bellwether Trial as more potent and effective than Taxol, a District of Hartford. competitive chemotherapy agent distrib- A Connecticut jury returned a $542,000 Source: Law360.com uted and produced by Bristol-Myers Squibb. verdict last month against Boehringer Sanofi-Aventis intentionally developed Tax- Ingelheim Pharmaceuticals. This was the otere to be twice as strong as Taxol in an first loss in several bellwether trials in a Ethicon Recalls Defective Surgical effort to claim a large market share in the consolidated proceeding over the alleged Staplers highly profitable chemotherapy market bleeding risk of the company’s blood segment. However, Taxotere has been thinner Pradaxa. The jury found the drug Ethicon is recalling 92,496 surgical sta- found to be significantly more dangerous caused Plaintiff Eugene Roberto’s internal plers because they can malfunction and and linked to a higher number of side bleeding and awarded him more than cause serious injury or death to patients. effects as compared to Taxol. Additionally, $500,000 plus punitive damages. Three The FDA has identified this as a Class I Taxol can be used at lower doses than Tax- prior Hartford juries had declined to award recall, the most serious type of recall. otere with similar efficacy. damages to Plaintiffs making similar allega- On April 11, 2019, Ethicon, a subsidiary In 2007, Sanofi-Aventis issued a press tions, most recently in October. of Johnson & Johnson, announced the release touting the efficacy of Taxotere The jury found that Boehringer failed to recall after an investigation of complaints based on a clinical study, GEICAM 9805. provide adequate warnings and instruc- and returned products. Following its inves- However, Sanofi-Aventis failed to inform tions for the use of Pradaxa. The jury found tigation, Ethicon confirmed that uncut the U.S. Food and Drug Administration further that if the company had given the washers in the stapler and malformed (FDA), health care providers, and the appropriate warnings the plaintiff would staples occur with their intraluminal circu- public that in the GEICAM 9805 study per- not have been prescribed the drug and that lar staplers due to insufficient firing, which manent hair loss persisted into the follow- he wouldn’t have suffered such severe can compromise staple line integrity. When up period (10 years and five months was internal bleeding on another blood thinner. the washer is cut, confirming completion the median follow-up) and was observed to The jury awarded $42,464 in economic of the firing cycle, the surgeon experiences be ongoing in 9.2% of the patients taking damages and $500,000 in noneconomic an audible and tactile crunch. Failure to cut Taxotere. damages, and found that punitive damages the washer suggests complete 360-degree Hair loss during chemotherapy is should be awarded against the pharmaceu- staple line failure. expected. It is a very common side effect of tical company. The amount of punitive Affected devices include the Endo-Sur- fighting cancer. However, patients under- damages will be decided by Connecticut gery Curved Intraluminal Stapler with going chemotherapy with Taxotere were Superior Court Judge Carl Schuman and Adjustable Height Staples and the Endo-Sur- not warned they could potentially experi- could be up to $1.095 million. gery Endoscopic Curved Intraluminal ence permanent hair loss. Permanent hair The suit was filed in May 2016 alleging Stapler with Adjustable Height Staples. loss is an extremely debilitating condition, that the Plaintiff, who was in his 70s, had a These staplers were used during gastroin- especially for women. The permanent loss 40-year history of gastroesophageal reflux testinal surgery, such as surgery for of hair is more than cosmetic. For cancer disease, a condition that increases the colorectal cancer or bariatric surgery, to survivors it is a constant reminder of their chance of internal bleeding from Pradaxa, create connections between structures. struggle and a completely unnecessary but was prescribed the drug without Ethicon has confirmed that two patients result of chemotherapy treatment. knowing about this danger. The Plaintiff who underwent planned resection of the Judge Milazzo has scheduled a series of suffered a life-threatening bleed in his upper rectum suffered serious injuries due five Taxotere bellwether trials, the first of upper gastrointestinal tract in January to misfiring. One patient required addi- which was to begin in May 2019. However, 2014, leading to a 10-day stay in the hospi- tional resection of the middle rectum and the date of the first trial has now been tal and months of recovery. The suit is one the other required additional resection of pushed back to September 2019. These of more than 3,100 Pradaxa cases pending the lower rectum. early trials will help each party evaluate across the nation, including roughly 3,000 Potential risks to patients include death, the relative strengths and weaknesses of in the consolidated proceeding in Connect- sepsis, bleeding, the need for permanent their cases. While the outcome of these icut. Currently, Roberto is the first Plaintiff ostomy “bag,” life-long nutritional and bellwether trials won’t directly affect the to win damages from Boehringer. digestive issues, leak in the closure, addi- thousands of other pending claims, it’s In October, a West Virginia federal jury tional surgeries, need for additional clo- always hoped the outcomes will provide awarded $1.25 million to the family of a sures, need for antibiotics, and need for essential guidance toward future resolution woman who died while taking the blood additional imaging studies. of the MDL cases. thinner. Five years ago, Boehringer Ingel- Beasley Allen lawyers would like to Beasley Allen lawyers continue to inves- heim agreed to pay roughly $650 million to investigate and review cases involving men tigate, review and file cases on behalf of settle claims in multidistrict litigation that and women who have suffered injuries fol- women that have suffered permanent hair Pradaxa caused serious injuries, including lowing surgery with Ethicon surgical sta- loss following chemotherapy with Tax- severe bleeding. The settlement resolved plers. If you or a loved one has undergone otere. For more information, contact Beau

14 BeasleyAllen.com surgery of the gastrointestinal tract, such meet the definitions for exempt dangerous condition for anyone coming as appendectomy, bowel resection, colec- employees. Thus, SnS’ failure to pay into contact with that area. tomy, colostomy, gastrectomy, gastric overtime was not a good As you probably know, a ground fault is bypass, gastric banding, or polypectomy, faith mistake. an inadvertent contact between an ener- and suffered severe bleeding, required a gized conductor and ground or equipment permanent ostomy “bag,” anastomotic leak, Steak ‘n Shake has entered into media- frame. The return path of the fault current sepsis, or death, there may be a valid claim. tion with another group of more than 1,300 is through the grounding system and any If you would like to discuss a potential managers who have filed a similar lawsuit. person or equipment that becomes part of claim, or you need more information, This group is comprised of managers who that system. please contact Beau Darley or Melissa Prick- are part of Steak ‘n Shake’s St. Louis group In a properly wired system with an ett at 800-898-2034 or by email at Beau. market, but who are based outside equipment grounding conductor that com- [email protected] or Melissa.Prick- of Missouri. plies with the applicable Building Code and [email protected]. Source: Law360.com the National Electric Code, a ground fault event will trigger a circuit protection device such as a fuse box or circuit breaker. When triggered, the circuit protection XIII. XIV. device will shut off the power source and EMPLOYMENT AND PREMISES eliminate the danger until the ground fault can be fixed. There was no such protection FLSA LITIGATION LIABILITY UPDATE at the park where Melquan Robinson, Jr. died. The circuit protection device at the park could not be triggered because A Class Of Steak ‘n Shake Managers Win Case Pending In Georgia Involves A Tragic Augusta-Richmond County never installed $7.7 Million Electrocution Death an equipment grounding conductor. The Code of Ordinances for Augusta- Recently, a Missouri federal judge Each year in the United States, thousands Richmond County, Title 7, sets forth The awarded a class of Steak ‘n Shake managers of children and adults are seriously injured Building Code and applies to “the construc- in the St. Louis area about $4.6 million in or killed due to contact with electrified tion, alteration, repair, equipment, use and liquidated damages and attorneys’ fees on objects causing electrocution. Most of occupancy, location, maintenance, top of an approximately $3 million verdict these objects should not have been electri- removal, and demolition of every building they won in an overtime lawsuit. The fied at the time of contact. The vast major- or structure or any appurtenances con- lawsuit accuses the restaurant chain of mis- ity of these tragic events would be nected or attached to such buildings or classifying the managers as exempt from preventable if the owner or occupier of the structures.” overtime and stiffing them on property utilized the best available preven- The Building Code specifically incorpo- overtime pay. tive maintenance, inspection, and repair rates and requires that every building or The court’s judgment doubled the practices that are required by law. Our City, structure comply with the National Electric roughly $3 million a jury awarded to 286 County and State governments are equally Code. “The provisions of the National Elec- Steak ‘n Shake store managers who alleged responsible for making sure that all govern- trical Code shall apply to the installation of they had to work 50 to 70 hours a week ment buildings, parks and other structures electrical systems, including alterations, without receiving overtime pay. The court are safe. Aging government infrastructure, repairs, replacement, equipment, appli- granted $3 million in liquidated damages to including electric wiring, must comply ances, fixtures, fittings and appurtenances the managers. The judge also ordered Steak with the current building codes and the thereto.” Section 7-1-4(c). ‘n Shake to pay the managers’ lawyers National Electric Code to maintain safety The electrical system and wiring at almost $1.6 million in attorneys’ fees and and prevent electrocutions. Fleming Athletic Complex violated the about $40,000 in costs. Our law firm is privileged to represent National Electric Code and failed to comply Under the Fair Labor Standards Act the family of Melquan Robinson, Jr., a with the most elementary requirements of (FLSA), employers found liable for not 12-year-old boy who was electrocuted and the Code. Specifically, the electrical wiring properly paying overtime can be on the died on a baseball field at Fleming Park in at Fleming Park failed to comply with Sec- hook for double damages unless they show Augusta, Georgia on Oct. 15, 2018. The tions 250.4A3 and 250.4A5. The wiring at they had “good faith and reasonable ballpark was owned and maintained by the Fleming Park did not have an equipment grounds” to think they weren’t flouting the consolidated government of Augusta-Rich- grounding conductor. statute. The court noted that evidence pre- mond County. Melquan was playing with If the wiring at Fleming Park had an sented during the case indicated the man- friends in the outfield when he came into equipment grounding conductor in compli- agers were performing tasks of nonexempt contact with the right field fence. The ance with the National Electrical Code, the workers on a daily basis. The court said: metal fence and the area around it were electrical fault in the right field pole would electrified due to a ground fault event that have blown a fuse in the field house and Indeed, SnS senior management testi- had occurred inside the right field shut off the power, thereby preventing this fied that it was aware of chronic and light pole. event. Because there was no such wire, the widespread understaffing. The evi- Our investigation revealed that Augusta- power continued to flow and led to this dence at trial showed that SnS’ Richmond County knew for years that the electrocution. primary solution for understaffed electrical wiring at the park would cause The hazardous and dangerous conditions stores was to use salaried managers ground fault events in the outfield light that caused Melquan Robinson, Jr.’s death working overtime and that SnS must poles. These events often occurred when a were present and known by Augusta-Rich- have known that those managers light ballast went bad. Such an event would mond County for many years. Multiple chil- were simply too busy performing route high voltage electricity into the light dren were previously shocked by production and service duties to pole and the fence around it, creating a electrified fences and light poles at this ball

JereBeasleyReport.com 15 park. The employees responsible for the among the Plaintiffs in a $50 million pro- Lawrence, Andover and North Andover safety of the facilities at this park were neg- posed class action related to the explo- made claims for damages to the company ligent in the performance of the most basic sions. That case is ongoing. after the explosion. and ministerial of their duties. Columbia Gas has replaced the entire Of the $80 million, $57 million will go The tragic death of this child was clearly 45-mile pipeline system that was affected toward paving and restoring the affected preventable. We intend to hold Augusta- by the explosions. In October, following an streets, while $10 million will be distrib- Richmond County accountable for the initial review, the National Transportation uted to the towns for claims. The remain- safety of its citizens. In addition to pursu- Safety Board (NTSB) said the explosions ing $12.8 million will be divided among the ing claims in the case for the wrongful had been caused by gaps in construction towns after they show documentation of death of Melquan Robinson, Jr., we are work orders prepared by Columbia Gas. losses directly caused by the explosion. demanding that the City inspect all of its On the day of the incident, a Columbia Under the agreement, the towns will be public parks and ensure that every light at Gas-contracted crew was working on a responsible for contracting out and con- every park has a proper equipment ground- project to replace a cast-iron distribution ducting the repairs over the next four ing conductor. main, which had sensors to detect and years, with Columbia Gas footing the bill. If you need more information, contact control pressure, according to the report. In exchange, the towns will release any Rob Register, a lawyer in our Atlanta office The work orders failed to instruct the crew other claims stemming from the explosion. who heads the litigation team in the Robin- to deactivate pressure sensors from the old Source: Law360.com son case, at 800-898-2034 or by email at pipeline, which was being replaced with a [email protected]. Rob new plastic distribution main. As a result, handles personal injury and death product the sensors detected a drop in pressure and Georgia Jury Returns $2.2 Million Verdict liability cases for the firm. He is the lead gas was automatically pumped in, exceed- lawyer in the case. ing the maximum allowed. Against Golden Isles Cruise Ship Just before the explosions, the Columbia A jury in Glynn County, Georgia, has Gas monitoring center in Columbus, Ohio, returned a $2.2 million verdict against the received two high-pressure alarms for the Columbia Gas Settles Suit With Family operator of a coastal Georgia casino ship in South Lawrence gas pressure system, favor of Robert Lowie. Lowie, then a according to the report, but the center had Members of a Massachusetts family have 66-year-old retiree, fell 10 feet through an no way to open or close the valves. In the settled their lawsuit against Columbia Gas open and unguarded hatch on the Emerald February regulatory filing, NiSource of Massachusetts. You will recall that it was Princess II in late 2014, injuring his head revealed it was being investigated by the reported the family’s house was destroyed and fracturing his spine. Lowie and his U.S. Securities and Exchange Commission in the series of gas explosions last Septem- wife relied on assurances from the CEO of (SEC) in connection with its financial dis- ber. In addition to a monetary settlement the ship’s owner and its insurance adjuster closures before the explosions. for an undisclosed amount, the utility that they would cover his medical bills and The company also said in November that company agreed to provide a motorized pay for pain and suffering. Instead, after a it was under criminal investigation by the wheelchair, a mobility van and modifica- year elapsed, the cruise line’s insurer U.S. Attorney’s Office for the District of tions to the family’s home for a daughter claimed a boarding pass barred any claims Massachusetts, in addition to inquiries by whose legs were severely injured. related to the accident. the Massachusetts attorney general’s office The Figueroa family had filed suit in After the incident, Lowie and his wife and the Massachusetts Department of Essex County Superior Court in the wake were repeatedly assured by the Emerald Public Utilities. of the explosions and fires—caused by out- Princess’ owner and insurer that he did not NiSource Inc., which owns Columbia dated infrastructure and over-pressurized need to file a legal claim. This was found to Gas, said in a February regulatory filing pipelines—that rocked the Merrimack be sufficient to avoid a one-year statute of that it had about $800 million in liability Valley last September. limitations printed on the back of Mr. insurance, but that total expenses related Omayra Figueroa’s daughter, Shakira, Lowie’s boarding pass. to the incident exceeded $1 billion in 2018. was inside the family’s house when it In denying a defense motion for The Figueroa family is represented by exploded. She suffered what were summary judgment, the judge ruled that Socrates De La Cruz of DLC Law Group PC, described as “catastrophic crushing inju- Mr. Lowie and his wife proved “clearly, sat- Paul F. Zerola of Zerola & Associates PC ries” to her pelvis and legs. According to isfactorily, and convincingly” that they and Wendy Y. Estrella of Estrella Law the lawsuit, she will need years of physical relied on repeated representations “to their Offices PC. The case is Omayra Figueroa therapy to restore function, “if it can be detriment” that they didn’t need to hire a et al. v. Bay State Gas Company, doing restored at all.” lawyer or file a lawsuit. The conduct of the business as Columbia Gas of Massachusetts Figueroa’s son, Christian, was in the pas- adjuster handling the Lowie claim was et al., (case number 1877CV01396) in the senger seat of a car in their driveway when unbelievably bad and designed to mislead Essex County Superior Court of Mas- the car was crushed by a falling chimney. the claimants to their detriment. sachusetts. His pelvis was fractured. Leonel Rondon, In August, Judge Anthony Harrison an 18-year-old friend of the family, was Source: Law360.com denied summary judgment on the Defense sitting in the driver’s seat of the car. He was claim that the boarding pass language killed in the incident. This was the lone barred the action. He issued a certificate of fatality that resulted from the explosions. Columbia Gas To Pay $80 Million To Three immediate review, but the Georgia Court of More than two dozen people were Towns In Massachusetts Appeals declined to hear Golden Isles’ injured as a result of the explosions and appeal. At trial, the jury awarded fires, and about 8,600 households in Law- Columbia Gas of Massachusetts has $2,236,850 in damages, with no liability rence, Andover and North Andover were agreed to pay $80 million to three towns apportioned to Lowie. The plaintiffs were forced to evacuate and relocate. Omayra, that suffered damage in the September represented by Carl Varnedoe and Billy Shakira and Christian Figueroa are also natural gas explosion in Merrimack Valley.

16 BeasleyAllen.com Jones of Jones, Osteen & Jones, a firm more employees) to submit detailed infor- Elections have consequences. The weak- located in Hinesville, Georgia. mation on injuries at their facilities. The ening of OSHA’s purpose of promoting safe Source: Law.com rule changes benefited OSHA’s enforce- workplaces is an obvious consequence of ment of safe workplace rules, which led to the last election. If you need more informa- safer working environments for employees. tion, contact Kendall Dunson at 800-898- All of these benefits were lost this past 2034 or by email at Kendall.Dunson@ MGM Estimates $800 Million To Settle Las January when the Trump administration beasleyallen.com. Kendall is Beasley Allen’s Vegas Shooting Suits repealed these worker safety protections lead lawyer in litigation involving work- for tracking workplace injuries and place injury and death cases. Mediation is ongoing in the MGM Resorts illnesses. International litigation. If successful, law- The repeal of these workplace safety suits stemming from the 2017 mass shoot- reporting requirements will allow danger- ing in Las Vegas could be settled for up to Workplace Hazards- Confined Spaces ous employers to conceal incidents of $800 million. The number is according to a workplace injuries. Without this knowl- U.S. Securities and Exchange Commission Confined space environments are some edge, OSHA is less able to identify trends, (SEC) filing from the company. MGM, of the most dangerous workplaces for making it more difficult to serve its func- which owns the hotel where shooter employees. A confined space, much like tion of protecting workers in the work- Stephen Paddock launched his attack is in the name implies, is any enclosed or par- place. The workplace rules were repealed mediation with lawyers representing the tially enclosed structure that has limited or without any citation to information or evi- Plaintiffs. Should all the Plaintiffs partici- restricted entry or exit access and contains dence to support the move. pate in a settlement in the mediation, MGM a potentially harmful atmosphere. Con- Conversely, the supporters of the report- said it could end up paying up to $800 fined spaces are not designed for continuing requirements were able to demonstrate million to resolve the suits, according to ous occupancy and are difficult to exit in how having more information to review the 10-Q filing submitted to the SEC on the event of an emergency. People working contributed to increased workplace safety. May 7. With a minimum number of partici- in confined spaces face hazards that can be The repeal of the reporting requirements pants, the company could pay at least $735 life threatening, including toxic sub- demonstrated a preference to honor the million, the filing said, though it is unclear stances, electrocutions, explosions and requests of corporations who have an inter- what the minimum would be. asphyxiation. est in keeping this information private over It should be noted according to lawyers Examples of common confined spaces the interests of everyday working involved in the mediation that while it is are tanks, pits, silos, sewers, tunnels and Americans. true that progress has been made, the wells. Many confined spaces contain a Persons and entities interested in pro- parties are still far apart on a variety of harmful atmosphere due to dangerous moting workplace safety were outraged by issues. In fact, it appears MGM may be vapors, flammable gases, reduced oxygen the decision. “This is only the latest attack overly optimistic in its filing. levels or stored substances that can col- on the wallets and safety of working Ameri- MGM has been the target of suits over lapse or engulf a person. cans by this administration,” said Interna- the Oct. 1, 2017 shooting because it owns As with any potentially hazardous work tional President Lonnie Stephenson. Safety the Mandalay Bay Resort and Casino, where environment, it is essential for workers to nd Department Director David Mullen Paddock used his room on the 32 floor to identify confined spaces and assess the risk commented: shoot at crowds attending the Route 91 of performing work inside. OSHA mandates that certain confined spaces be posted as a Harvest country music festival. Paddock Those accident reports are worth “permit-required confined space.” killed himself after the shooting. more than gold because we can save A permit is required if the confined Lawyers representing Plaintiffs in all lives with the information that is in space contains or has any of the following pending suits have been engaged in media- them. It inspires a certain amount of characteristics: contains or has the poten- tion with MGM since February. The cases cynicism that they considered this a tial to contain a hazardous atmosphere; have been stayed while that process plays lifesaving regulation, a rule that lets contains material that has the potential to out. The statute of limitations on claims employers hide who gets hurt or engulf an entrant; has walls that converge over the shooting has been extended to killed, so important that they fast- inward or floors that slope downward and May 2020 while mediation takes place. tracked it through the shutdown. We taper into a smaller area that could trap or Source: Law360.com always say that OSHA rules are asphyxiate an entrant; or contains any written in blood. Somebody paid for other recognized safety or health hazard, every protection. such as unguarded machinery, exposed live XV. While the reporting requirement was wires, or heat stress. To reduce the risks of repealed, other important portions of the confined spaces it is recommended to: WORKPLACE rule were not affected. Employers are not • Whenever possible, eliminate the need allowed to retaliate against an employee HAZARDS for anyone to go inside the confined that reports an injury. This provision is space—for example, use mechanical essential to the intent and purpose of aids instead. OSHA enforcement of safe workplace regu- Trends In Workplace Safety Rollback Of lations. While the non-retaliation rule • Find out what is in the confided space Worker Safety Protections remains in force, advocates for workplace before entering. safety must be vigilant as this important In 2016, the Obama Administration provision could be removed with a stroke • Test the air in the confined space. Do not strengthened worker safety protections of a pen and workers would be left without assume it is safe. under Occupational Safety & Health any protections for reporting unsafe Administration (OSHA) rules by requiring working conditions. large employers (employers with 250 or

JereBeasleyReport.com 17 • Devise safety procedures for working destroyed as a result of Loftus’ violations of and all responsibilities for performing inside the confined space and provide its duties and responsibilities as general work. On duty time as identified in the induction and training. contractor on the project.” aforementioned section encompasses far Source: Law.com more than driving time. • Make sure that any cleaning compounds On duty time includes all time at the or equipment used in the confined space plant, terminal, waiting to be dispatched, is assessed. all time inspecting, servicing any commer- • Make sure anyone going into a confined XVI. cial vehicle, driving, all time loading and space has appropriate protection and an ISSUES INVOLVING unloading, etc. It is important to under- entry permit. stand this concept when determining TRANSPORTATION whether a driver has complied with these • Devise emergency and rescue regulations. The Federal Motor Carrier procedures. LITIGATION Safety Administration (FMCSA) hours of service rules are designed to eliminate the • Rehearse emergency and rescue proce- type of drowsiness that can lead to crashes. dures regularly. Hours Of Service And Violations For Truck Although many commercial motor vehicle drivers feel that they know when • Thoroughly train the people who work Drivers they are getting drowsy, various laboratory inside the confined space. Lawyers in our firm’s Personal Injury & tests have shown that persons are not good As is so often the case, hazardous work Products Liability Section have handled at estimating their own drowsiness. As environments can be mitigated through a numerous personal injury and wrongful such, drivers and carriers have duties to proper hazard analysis. It is imperative that death cases over the years against truck prevent crashes that can be tied to employers educate their employees of the drivers and their employees that involved drowsiness. hazards associated with confined spaces, driver fatigue. They have learned that this Beasley Allen lawyers have experience formulate a plan to mitigate those hazards, is a very serious and widespread safety handling preventable accidents against and always follow all protocols and problem. We will explain below the basis both drivers and carriers that breached procedures. for this type litigation. their duty to comply or supervise drivers. If If you need more information, contact Pursuant to 49 C.F.R. Part 395, drivers you have questions concerning hours of Evan Allen, a lawyer in our firm’s Personal are subject to the laws and regulations gov- service violations or how to prove a viola- Injury & Products Liability Section. Evan erning safe operation of commercial vehi- tion of such, please contact Ben Keen, a handles work-related personal injury and cles as it relates to hours of service (HOS). lawyer in our Atlanta office, or Cole Portis, death cases for the firm. He can be reached There are exceptions to HOS requirements head of our Personal Injury & Products Lia- at 800-898-2034 or by email at Evan.Allen@ such as when a driver is driving in adverse bility Section, at 800-898-2034 or by email beasleyallen.com. weather, as defined in 49 C.F.R. § 395.2 and at [email protected] or Cole. cannot because of those conditions safely Source: https://www.osha.gov/SLTC/confinedspaces/ [email protected]. and https://www.betterhealth.vic.gov.au/health/ complete the run within the maximum healthyliving/workplace-safety-confined-spaces driving time permitted by 49 C.F.R. § 395.3(a). Trucker Injured In Alabama Crash Awarded In this exception the driver is allotted $80 Million not more than two additional hours beyond $7.8 Million Settlement Reached In Lawsuit the maximum time to complete the run or Over Construction Worker’s Fall A trucker who was injured after falling reach a place offering safety. Absent other asleep behind the wheel on an interstate narrow exceptions, a driver cannot operate A man injured after falling 10 feet from a highway in Alabama after getting little rest a commercial vehicle for any period after platform on a construction site has settled was awarded $80 million last month by a having been on duty 14 hours following 10 his lawsuit against the general contractor Texas jury. The lawsuit, filed by Lauro consecutive hours off duty. See 49 for $7.8 million. The lawsuit was filed Lozano against his employer, Jorge Marin, C.F.R.395.3(a). against defendant Loftus Construction Inc. claimed Marin made him fudge his log A driver cannot operate a commercial by Raymond DeMarco. He claimed that a book to make it look like he rested for the vehicle after having been on duty 60 hours faulty railing on scaffolding caused him to federally required 34 hours. In actuality, in any seven consecutive days if the fall to the ground, resulting in spinal inju- Lozano had just finished a long route and employing motor carrier does not operate ries and his contracting pneumonia while was at home when his boss told him to commercial motor vehicles every day of in the hospital. DeMarco claimed that begin another shipment from Texas to the week and cannot operate a commercial Loftus violated Occupational Safety and Maryland in May 2015. vehicle after having been on duty 70 hours Health Administration (OSHA) standards by Lozano said he told Marin he could not in any consecutive eight days if the employ- not ensuring safe working conditions. safely or legally take the load, but Marin ing motor carrier operates vehicles every The accident occurred Nov. 16, 2015, at a told him to alter his log book to make it day. Any period of 34 consecutive off duty bridge in Philadelphia. DeMarco, an look like he had taken his 34-hour break hours will reset the seven or eight consecu- employee of Jupiter Contracting, was sand- and to return to the yard in McAllen, Texas, tive days. blasting and painting the bridge, which the next morning to take the load With such regulations revolving around passed over Southeastern Pennsylvania to Maryland. “on duty time” it is important to under- Transportation Authority train tracks, During the early morning of May 6, stand what “on duty time” entails. 49 C.F.R. when he fell. According to the Plaintiff’s while driving north on I-59 in Alabama, § 395.2 defines on duty time as all time settlement conference memorandum, Lozano fell asleep at the wheel and struck from the time a driver begins to work or is DeMarco will never return to work and another tractor-trailer from behind. Loza- required to be in readiness to work until “his life, and that of his family’s, has been no’s injuries included abdominal trauma, a the time the driver is relieved from work

18 BeasleyAllen.com crushed pelvis, crushed left foot and XVII. EPA continues to cite the corrupted studies broken ribs. in its own findings. In the lawsuit Lozano claimed his being TOXIC TORT Monsanto also continued to sell Roundup forced to change his logs and drive consti- with polyethoxylated tallow amine (POEA), tuted “negligence and gross negligence” by LITIGATION a surfactant that multiplies glyphosate’s Marin and his companies. The lawsuit also CONCERNS toxicity and is banned by the EU. Monsanto states that the three companies didn’t carry at the same time “refused to conduct workers’ compensation insurance, which cancer tests on its Roundup formula and opened them up to the lawsuit over Loza- ignored studies showing Roundup is easily Roundup Manufacturer Hit With $2 Billion no’s injuries. absorbed through the skin, stored and then Verdict It was alleged that Lozano sustained transported to the bones, where lymphoma “severe debilitating injuries” including a A California jury awarded more than $2 develops.” traumatic brain injury, crushed pelvis, billion to a couple who sued Monsanto The Plaintiffs were represented by Jenni- crushed left foot and broken ribs. The jury alleging its Roundup weed killer caused fer Moore, Aimee Wagstaff and Andras awarded Lozano $5 million in compensa- them to develop an aggressive form of Wagstaff of Moore Law Group. tory damages and $75 million in exemplary cancer after decades of treating their prop- Source: Reuters, Law360.com and Beasley Allen damages. The three defendants in the erties with the glyphosate-based herbicide. discovery and Rresearch case—JNM Express, Omega Freight Logis- Like thousands of other people seeking tics and Anca Transport—will each pay $25 health-related damages from Monsanto, million, although the three companies are Plaintiffs Alva and Alberta Pilliod suffer MDL Judge Appoints Ken Feinberg Mediator owned by the same person, Jorge Marin. from non-Hodgkin’s lymphoma (NHL), a In Roundup Settlement Talks Source: AL.com form of cancer affecting the body’s lymph nodes, blood cells, and immune system. A federal judge has appointed Kenneth During the five-week trial, the jury was told Feinberg as mediator for court-ordered set- One In Six Vehicles Operated By Uber And that had the Pilliods known Roundup could tlement talks in the federal litigation over Lyft Drivers Have Unrepaired Defects cause cancer, they would have “never claims that Bayer AG’s glyphosate-based touched” it. Covered By Outstanding Safety Recalls Roundup weed killer caused cancer. U.S. The Pilliod case was the third of about District Judge Vince Chhabria, who over- It has been reported that “more than one 13,400 similar cases against Monsanto to go sees the Roundup multidistrict litigation in six vehicles operated by Uber and Lyft to trial. The momentum was set in the first (MDL), instructed Feinberg to meet with drivers has unrepaired defects covered by two trials, which both ended with large lawyers for Bayer and Plaintiffs. There are outstanding safety recalls.” This is accord- judgments against the Roundup manufac- some 900 federal Roundup lawsuits. On ing to a new study by Consumer Reports. turer, which became part of the Bayer con- April 11, Judge Chhabria had ordered the Almost 94,000 vehicles were examined in glomerate last year. The jury found that it’s parties to start confidential mediation. New York City and Seattle, two cities more likely than not that Roundup was a Feinberg was appointed by the court after where ride-sharing has become a popular significant contributing factor in causing the parties failed to agree on a mediator. option. The study “found that one out of the Plaintiffs’ non-Hodgkin’s lymphoma. Ken Feinberg has a long history of suc- six Uber and Lyft drivers were operating The jury awarded the Plaintiffs $55 million cesses having facilitated dispute resolutions cars, trucks or crossovers with outstanding in non-economic and economic damages in a number of high-stakes litigations in the recalls.” and hit the agrochemical giant with $1 past. He led mediation talks over the Sep- th The publication “did not provide details billion in punitive damages for each tember 11 Victim Compensation Fund, the on what repairs were needed.” Experts Plaintiff. BP Deepwater Horizon disaster, Volkswa- such as former National Highway Traffic The U.S. Environmental Protection gen’s diesel emissions scandal and General Safety Administration (NHTSA) Administra- Agency (EPA) approved the herbicide in Motors ignition switch litigation. Lawyers tor Joan Claybrook “warn that even seem- 1974 based on safety studies that were later in our firm have had extensive experience ingly insignificant recalls can’t be ignored.” found to be fraudulent. Instead of then with Ken and can attest firsthand to his Uber “told The Associated Press it does flag pulling Roundup from the market, Monsan- competence and ability to handle signifi- any vehicle in its fleet subject to a ‘do not to’s internal documents show the EPA cant mediations. drive warning’ from the NHTSA.” But these worked with the company’s executives to More than 13,400 Plaintiffs nationwide are “issued only when a potential problem keep Roundup alive. This included engag- allege Roundup causes non-Hodgkin’s lym- is so severe as to raise the serious risk of ing in efforts to stymie a 2015 toxicology phoma and that the company failed to warn causing a crash.” review conducted by the Agency for Toxic about that risk. A majority of the lawsuits Substances and Disease Registry (ATSDR), a are pending in state courts across the Source: NBC News and Associated Press unit of the U.S. Centers for Disease Control country. Lawyers in our firm’s Toxic Torts and Prevention (CDC). section have cases both in the MDL and in For decades Monsanto executives state courts. Currently we our investigating covered up and suppressed scientific additional cases and the final number will research that related Roundup’s active be more than 1,000 cases. ingredient glyphosate to cancer. Those Bayer, which acquired Roundup maker efforts included ghostwriting bogus pro- Monsanto, in the past said it would comply Roundup academic papers and manipulat- with Judge Chhabria’s mediation order in ing scientific data. All of this “bad science” good faith. We will see if the company found its way into other scientific litera- follows up on that. Werner Baumann, Bayer ture. In the Pilliod case, it was shown the AG’s chief executive officer, said recently

JereBeasleyReport.com 19 that the company faces 13,400 Roundup take effect, the state Department of Pesti- EPA is currently reviewing the ongoing suits. cide Regulation has recommended that uses of asbestos and could propose a ban or Sources: Reuters and Law360.com county agriculture commissioners adopt further restrictions. Unlike dozens of coun- stricter rules on where and how the chemi- tries around the world, the United States cal can be applied, including larger buffer does not currently have a complete asbes- zones. To help farmers make the transition tos ban in place. State Lawmakers Vote To Ban Widely away from chlorpyrifos, the state is adding Asbestos is a known carcinogen that Used Pesticide $5.7 million in new funding for safer alter- causes the death of nearly 40,000 Ameri- natives as part of the governor’s May revi- cans each year. It is the direct cause of California, the nation’s most productive sion budget proposal. mesothelioma, which causes about 3,000 agricultural state, will ban a widely used deaths annually, according to the 2017 toxic pesticide blamed for harming brain Source: https://www.cbsnews.com/news/california- CDC data. development in babies. The move would bans-chlorpyrifos-pesticide-agriculture-state-child- brain-development/ Beasley Allen lawyers are honored to be outlaw chlorpyrifos after scientists deemed fighting for individuals who have been it a toxic air contaminant and discovered it exposed to asbestos and later developed to be more dangerous than previously disease. These diseases not only impact the thought. California Environmental Secre- EPA Administrator Wheeler Commits To Ban person exposed, but also families and tary Jared Blumenfeld said it’s the first time Ongoing Uses Of Asbestos In friends. Our firm promotes our best efforts the state has sought to ban a pesticide and Congressional Testimony to seek justice for these individuals. If you that the move was overdue. have any questions or have been exposed The decision comes after regulators in During the recent hearing held by the to asbestos and developed mesothelioma or several states have taken steps in recent U.S. Energy and Commerce House Environ- lung cancer, contact Beasley Allen’s Meso- years to restrict the pesticide currently ment and Climate Change Subcommittee, thelioma Litigation team. Sharon Zinns used on about 60 different crops in Califor- Congressman Frank Pallone Jr. (D-NJ) ([email protected]) is our nia, including grapes, almonds and asked the Administrator of the Environ- lead mesothelioma attorney. Ashtyne oranges. Hawaii banned it last year and mental Protection Agency (EPA) a clear-cut Traylor (Ashtyne.Traylor@beasleyallen. New York lawmakers recently sent a bill to question; “Will you commit to banning com) is another lawyer on the team. They the governor outlawing use of the ongoing uses of asbestos under TSCA [the can be reached at 800-898-2034. pesticide. Toxic Substances Control Act]?” Andrew DowDuPont, which produces the pesti- Wheeler, who was confirmed in February Source: https://www.cnn.com/2019/04/17/politics/epa- cide, has criticized efforts to curtail its use as the EPA Administrator, gave a resound- asbestos/index.htmlhttps://www.asbestosdisease awareness.org and said it will hurt farmers who rely on it ing answer: “Yes.” to control insects. Blumenfeld said the state The Environmental Protection Agency acted in part because the federal govern- later announced a “nearly” complete ban ment allowed the pesticide to be used after on the manufacturing and importing of 3M Settlement With Water Authority Totals the Obama Administration tried to phase it asbestos. The rule aims to close loopholes $35 Million out. The U.S. Environmental Protection in a decades-old partial ban, with the EPA Agency (EPA) under President Donald conducting reviews concerning the limited 3M will pay the West Morgan East Law- Trump reversed that effort after re-evaluat- instances where asbestos is still used in rence Water and Sewer Authority $35 ing the science. Environmental groups and industrial processes or included in prod- million in a lawsuit settlement. According farmworkers challenged that decision and a ucts, said Alexandra Dunn, the agency’s to filings with the U.S. Securities and federal appeals court last month ordered assistant administrator overseeing chemi- Exchange Commission (SEC), the settle- the EPA to decide by July whether to ban cal regulation. However, when the agency ment amount was agreed upon in April. the pesticide. proposed the Significant New Use Rule, The company and water authority issued a A University of California-Berkeley study “SNUR,” last summer, safety advocates joint statement on the settlement of the in 2012 found that 87 percent of umbilical raised concerns that it would allow import- federal lawsuit filed by the water authority cord blood samples tested from newborn ers and manufacturers to apply for an EPA in 2015 against 3M over the release of babies contained detectable levels of the permit, and the prohibited uses were nar- chemicals known as per- and poly-fluoroal- pesticide. Studies in cities where the pesti- rowly construed. kyl substances (PFAS) into the Ten- cide was once used to kill cockroaches Asbestos is still used in a limited number nessee River. before it was banned for indoor use in of industrial settings, such as filtering According to the SEC filing, the authority 2000 and in rural farmworker communities chemicals, and is included in some vehicle will fund a new water filtration system. As showed it harmed brain development in brakes. One group that works to eliminate part of the settlement, 3M will indemnify fetuses and affected reading ability, IQ and asbestos-related diseases, the Asbestos the authority from liability from the resolu- led to hyperactivity in children. Even head Disease Awareness Organization (ADAO), tion of pending and future lawsuits against sizes were smaller in children whose said EPA’s actions were “deeply disappoint- the authority over damages related to PFAS. mothers were exposed to the pesticide. ing” and called for Congress to act on a The water authority had sued 3M to pay for One area that’s less well-studied is the more complete ban. Essentially, the rule a new water filtration system to remove impact of the pesticide on people who allows companies to seek approval from industrial chemicals that 3M manufactured consume produce that has a residue of the EPA to resume the manufacturing and and used for decades at its facility on the chemical on it. Solomon said with Califor- importing of asbestos for 15 obsolete uses, Tennessee River in Decatur. The water nia growing the majority of fruits and vege- leaving “the door open to their return in authority provides service directly or tables in the country there could be a the marketplace.” The rule does not through other utilities for about 20,000 ripple benefit for consumers in other states. address the continuing import of raw metered customers in north Alabama from While the ban—technically known as a asbestos into the United States or legacy an intake on the Tennessee River down- cancellation—could take up to two years to asbestos, those that remain in buildings. stream of the 3M facility.

20 BeasleyAllen.com PFOA and PFOS are not found in nature taminated the cities’ water supply, thereby higher risk of death if the elderly person is but were widely used to make non-stick, conferring jurisdiction in Alabama. unable to get up from the floor or is unable waterproof or stain-resistant coatings on Our firm is honored to represent the to call for help. The neglect of nursing facil- consumer products like non-stick cook- water systems in Gadsden and Centre. We ity staff members over their elderly resi- ware, waterproof clothing or Scotchgard filed these lawsuits to ensure that the dents is becoming increasingly alarming stain repellent. By nature, the chemicals Defendants, not ratepayers in Gadsden and across the United States. Each year, thou- are very slow to break down in the environ- Centre, would pay to decontaminate their sands of elderly Americans suffer from a ment. They can last for decades after use drinking water. wide array of nursing home abuses. and build up over time in human and Beasley Allen lawyers are investigating Beasley Allen lawyers are honored to be animal tissue. Though 3M stopped produc- other PFC contamination cases. If you have representing residents of nursing homes ing those chemicals in the early 2000s, any questions on this subject, contact Rhon who have suffered abuse. If you have any they are now so widespread that nearly Jones, Rick Stratton or Ryan Kral, lawyers questions or would like to discuss a poten- every person on earth has some level of in our firm’s Toxic Torts Section, at 800- tial nursing home case, contact Chris Bout- them in their blood. However, in 2016, the 898-2034 or by email at Rhon.Jones@beas- well, a lawyer in our Personal Injury & U.S. Environmental Protection Agency leyallen.com, Rick.Stratton@beasleyallen. Products Liability Section, at Chris.Bout- (EPA) warned that those chemicals were com, or [email protected]. [email protected] or 800-898-2034. associated with health problems, including cancer at concentrations as low as 70 parts per trillion. XVIII. Georgia Nursing Home Ordered To Pay $1.8 Source: AL.com Million To Family Of Resident UPDATE ON NURSING HOME A jury in DeKalb County, Georgia, has Alabama Supreme Court To Hear Oral awarded $1.8 million to the family of a frail Arguments In PFC Water System Cases LITIGATION nursing home patient who suffered a brain injury after an aide rolled her off her bed, The Supreme Court of Alabama has causing her to fall to the floor and hit her head. Christine Mitchell, who was already agreed to hear eight petitions for writ of Beasley Allen Representing Family Of mandamus filed by carpet manufacturers in poor health, died a month after the 2015 Vestavia Hills Nursing Home Resident Who and chemical suppliers who allegedly con- fall at Grace Healthcare of Tucker. The jury Died As Result Of Nursing Home Neglect taminated the water supply of two Alabama did not find the nursing home responsible for the resident’s death, but it did find the drinking water filtration systems. The Beasley Allen lawyers have filed suit on skilled nursing facility liable for her pain Court set oral arguments for June 4, behalf of the family of James F. Turner Jr. and suffering in her final days. between the respondents/Plaintiffs (the following his death as a result of nursing Grace Healthcare of Tucker, a 136-bed Water Works and Sewer Board of the City home neglect in October 2018. Mr. Turner for-profit facility, is part of a Tennessee- of Gadsden and the Water Works and Sewer was a resident of Town Village Vestavia based chain that operates more than 30 Board of the Town of Centre) and nearly 20 Hills, a nursing home and assisted living homes in multiple states. The facility admit- petitioners/Defendants. Our firm repre- facility located in Vestavia Hills, Alabama. ted liability in this case, but said the sents the Plaintiffs in the cases. As part of the Town Village policy, each amount of the verdict was out of line with Although separate cases, the allegations resident is instructed to check in with the the evidence. are essentially the same: the Defendant facility’s staff by 10 a.m. each morning via The home currently has a 1-star rating— carpet and textile companies, manufactur- an electronic monitoring system located in the lowest—on the federal government’s ers, and chemical suppliers located each resident’s unit. Residents who fail to “Nursing Home Compare” website. The upstream in Dalton, Georgia, are responsi- check in by 10 a.m. each morning are to be federal website rates the facility as “much ble for contaminating the Coosa River and checked on by facility staff to verify the below average” on the three key categories Weiss Lake with perfluorinated chemicals safety and welfare of those residents. of health inspections, staffing and (PFCs), which are used to impart stain- On Sept. 30, 2018, Mr. Turner failed to quality measures. resistance to textile products such as activate his electronic monitoring system Ms. Mitchell was 70 when she died in carpets. Dalton is considered the carpet and alert facility staff. A neighbor even 2015, 31 days after the fall and the injury. manufacturing capital of the world because reported hearing unusual noises from Mr. The facility’s policy was to have two aides it contains more than 150 carpet manufac- Turner’s unit and informed facility staff, yet help when changing bed linens when the turing plants and is responsible for produc- no action was taken by the staff to check resident was in the bed because it is a ing more than 90% of the world’s carpet. on his wellbeing. Furthermore, staff at restraint-free facility that doesn’t use bed The petitioners’ mandamus petitions Town Village never contacted, visited or rails. But only one aide was handling Ms. challenged the Etowah County and Chero- checked on the welfare of Mr. Turner in Mitchell’s change. The lawsuit said the aide kee County trial courts’ orders finding the any way that day. used too much force when rolling the resi- courts had personal jurisdiction over the It was not until 6 p.m. the following day dent, which pushed her off the bed instead Defendants to adjudicate the cases. The that Mr. Turner’s son discovered his father of simply rolling her to her side. petitioners argue these courts do not have lying on the floor of his residential unit, The resident moved into the Tucker facil- specific jurisdiction because the alleged having fallen a day earlier and been unable ity in 2012, where her two sons visited tortious conduct giving rise to the lawsuits to get himself up. Mr. Turner was trans- almost every day and stayed for hours. One occurred in Georgia instead of Alabama. ported to a local hospital where he son continued to do his mother’s laundry, We contend the pollution generating activi- remained until his death several bringing it back washed, ironed and ties were aimed at downstream users in weeks later. sprayed with perfume. Alabama and, as a result, foreseeably con- Medical studies have found that falls among the elderly can lead to death or a

JereBeasleyReport.com 21 The jury agreed that Ms. Mitchell died statute governing general removal author- Beasley Allen Files Class Action Against due to a myriad of health issues, not specifi- ity or the Class Action Fairness Act.” ZF TRW, FCA, Honda And Toyota For Airbag cally from the head injury. But the jurors As a result of the ruling, Home Depot Control Unit Defect decided that it was a serious failure to drop USA Inc. will be unable to get a federal an elderly person on her head, leaving her venue for its consumer fraud class-action Beasley Allen lawyers Dee Miles, Clay in pain in her final days. Evan W. Jones, an counterclaim brought against it in a North Barnett, Leslie Pescia and Chris Baldwin Athens, Georgia, lawyer with Blasingame, Carolina state court. The claim was have filed a class action lawsuit against ZF Burch, Garrard & Ashley PC, represented brought by George Jackson, the original TWR, the manufacturer of airbag control the Mitchell family. defendant in a debt collection case initiated units, and auto manufacturers Fiat Chrys- Source: The Atlanta Journal Constitution by Citibank NA. ler, Honda and Toyota, which feature the 28 USC § 1441, the general removal airbag components, for a safety defect that statute, allows “the defendant or the defen- inhibits airbag and seatbelt pretensioner dants” to remove “any civil action” brought activation during crashes. Federal officials The Beasley Allen Nursing Home in state court that a federal court would investigating the defect have linked the Litigation Team have original jurisdiction over. Addition- defect to at least eight deaths. ally, CAFA normally allows “any defendant” The National Highway Traffic Safety Lawyers in our firm continue to fight to to move a qualifying class action from state Administration (NHTSA) said that its Office protect the safety and well-being of nursing to federal court, but “circuit courts have of Defects Investigation has expanded the home residents in facilities around the held that this authority only extends to the probe to include both the airbag manufac- country. Our nursing home lawyers repre- original defendants in a case, not third- turer and six automakers that use the sent the victims or families of those who party defendants added later.” Justice Clar- potentially defective devices in their vehi- have suffered death or serious injury ence Thomas wrote: cles—Fiat Chrysler, Honda, Hyundai, Kia, because of nursing home negligence, abuse Mitsubishi and Toyota. NHTSA’s investiga- and neglect. These lawyers handle nursing Because in the context of these tion now covers about 12.3 million vehicles home litigation on a regular and recurring removal provisions the term “defen- from model-years 2010 to 2019. basis. Handling nursing home litigation dant” refers only to the party sued by The lawsuit and NHTSA allege the ZF requires lawyers and support staff to have the original plaintiff, we conclude TRW airbag failures are caused by an elec- specific experience in this type case. that neither provision allows such a tronic defect. Investigators suspect electri- If you have suffered serious injury or if a third party to remove. cal interference from nearby wiring could loved one has been catastrophically injured cause the airbags to fail. In the event of a or died, or you have any questions about Home Depot argued that CAFA’s refer- crash, electrical signals sent from crash nursing home abuse and neglect, contact ence to “any defendant” was not limited to sensors to the electronic component that Rhon Jones or Chris Boutwell at 800-898- original defendants, and this removal controls the airbag could overstress and 2034 or by email at Rhon.Jones@beasleyal- authority extended to other types of defen- damage the driver- and passenger-side len.com or Chris.Boutwell@ dants, such as counterclaim defendants like airbags units, potentially causing beasleyallen.com. Home Depot. However, Justice Thomas wrote: them to fail. Investigators say the same electronic Although the term ‘any’ ordinarily component (the application specific inte- XIX. carries an expansive meaning...the grated circuit, or ASIC) that controls the context here demonstrates that Con- airbags also controls the seatbelt pre-ten- An Update On gress did not expand the types of sioners. As a result, seatbelts in the affected Class Action parties eligible to remove a vehicles may fail to function properly class action. in a crash Litigation Although ZF TRW hasn’t recalled the The law that a third-party counterclaim airbag units under investigation, some auto- defendant can’t remove a case to federal makers have taken measures to address the court has been well established for quite Justices Support Limits on Class Action problem in some of the vehicles. Last year, some time. This recent effort by Home Hyundai and Kia recalled nearly a million Removal Authority Depot to change that well established legal cars and trucks to fix wiring that could precedent appears to be more of an attempt On Tuesday May 28, the U.S. Supreme interfere with airbags, including the at tort reform than a “clarification” of the Court declined to close what Home Depot 2011-13 Hyundai Sonata, the 2011-12 Sonata law. The U.S. Supreme Court defended the and other business interests have argued is Hybrid, the 2010-13 Kia Forte and Forte integrity of that well-established precedent a legal loophole allowing plaintiffs’ lawyers Koup, the 2011-13 Kia Optima, the 2011-12 and ruled correctly. This is a very impor- to trap big-dollar class actions in state Optima Hybrid, and the 2011-12 tant decision for consumers who bring court. The Court ruled that third-party Kia Sedona. class action lawsuits. The high court’s counterclaim defendants in class actions William Wallace, a safety policy advocate opinion is legally and logically sound. can’t remove claims filed against them to for Consumer Reports, said that auto com- federal court. The High Court ruled that Source: Law360.com panies don’t have to wait for NHTSA inves- when a “defendant files class-action coun- tigation to recall their cars, and that they terclaims that bring a previously unin- shouldn’t wait. Mr. Wallace said, according volved party into a state court case, that to Consumer Reports: additional party—a third-party counter- Like the Takata [airbag] crisis, the claim defendant—cannot remove the current investigation focuses on claims to federal court under either the safety issues with faulty airbags that still aren’t resolved after several

22 BeasleyAllen.com years and problems that stretch unjust enrichment as a result of the allega- There are currently nearly 34,000 class across multiple car companies. tions. The class demands financial relief for members who have already registered their the class as well as equitable relief, and a cars to be fixed. The objection rate was If you or someone you know suffered a jury trial. also said to be “vanishingly” small. Cur- moderate to significant frontal collision Beasley Allen lawyers Dee Miles, Clay rently, there are 3,192 opt-outs. Judge Chen without airbag deployment, contact Barnett, Leslie Pescia and Chris Baldwin was asked by the automaker to keep the Beasley Allen lawyers Clay Barnett, Leslie are hanlding this class action lawsuit, along opt-out litigation stayed, so that Defense Pescia or Chris Baldwin. Their class action with Ben Bailey and Jonathon Boggs of counsel will have a chance to try to con- is Sigfredo Rubio et al v. ZF-TRW, Automo- Bailey & Glasser, LLP. Persons who have vince those Plaintiffs to join the settlement. tive Holdings Corp, TRW Automotive U.S. potential claims can contact our firm at All of the opt-out cases are either before LLC, FCA US LLC, American Honda Motor 800-898-2034 and ask for one of the Judge Chen or in Texas state court. Judge Co., Inc., and Toyota Motor Sales, U.S.A, lawyers handling this lawsuit. Chen agreed to the stay and set a status Inc., (Civ Action No. 12:19-cv-11295) filed conference for Sept. 6. in the Eastern District of Michigan South- The settlement comes two years after a ern Division. judicial panel transferred the litigation to Fiat’s $307 Million Emissions Settlement Judge Chen and it’s one of multiple settle- Approved By The Court ments that Fiat Chrysler has recently cut to Beasley Allen Has Filed A Consumer Class A California federal judge has approved end claims over its defeat devices. In Action Against Ford Alleging False Fuel Fiat Chrysler’s $307 million settlement to January, the company agreed to pay the Economy Ratings end claims the automaker equipped diesel government a $305 million civil penalty to vehicles with emissions-cheating devices, settle claims it violated the Clean Air Act. Our lawyers have filed a consumer class along with an additional $66 million for the Those funds will be divided between the action against Ford Motor Company alleg- Plaintiffs’ lawyers. During a hearing, U.S. federal government and the state of ing that Ford markets and sells its 2019 District Judge Edward Chen said he California. Ford Rangers and 2018 Ford F-150s with reviewed the three objections to the settle- Fiat Chrysler will also pay $6 million to false fuel-economy ratings. Ford conducted ment filed by class members, who had com- settle U.S. Customs and Border Protection inadequate and inaccurate Environmental plained, among other things, that the claims that it illegally imported 1,700 non- Protection Agency (EPA) fuel economy devices caused major drivability problems compliant vehicles, and it agreed to pay testing, which has resulted in vehicles with and the fix would impact their vehicles’ $72.5 million, which will be split among overstated miles-per gallon EPA fuel performance. The judge said he is anxious the 49 states except for California, to settle economy ratings. Instead of stating the true to get the settlement “on the road” and get various state law claims. Bosch also settled fuel economy for its vehicles, Ford repre- the fixes done. its part in the matters with payments of up sented to customers that its vehicles had Judge Chen said none of the objections to $131 million. The impetus for the MDL achieved specific MPG estimates. are “on point” and would justify denying against Fiat Chrysler stems from the notices As a result of Ford’s actions, customers approval. Overall, he found the proposed of violation that the U.S. Environmental are potentially being misled into purchas- settlement in the multidistrict litigation Protection Agency and the California Air ing Ford vehicles with a quality different (MDL) to be fair and reasonable. “I’m Resources Board issued against the auto- than that represented by Ford. Consumers anxious to get this on the road, so to speak, maker in January 2017. will pay higher fuel costs as a result. and get this fix done, because that’s in the The settlement accomplishes the con- Ford Motor Company is currently under best interest of the consumers and the sumers’ goal of holding the companies criminal investigation by the U.S. Justice public,” the judge said. accountable for their diesel emissions Department (DOJ) over its emissions certi- The settlement resolves class claims cheating. Eligible class members will now fication practices, the auto giant disclosed alleging Fiat Chrysler Automobiles NV and be able to begin the claims process. The two weeks ago. The inquiry is focused on auto parts maker Robert Bosch GmbH ille- consumers are represented by lead counsel Ford’s analytical modeling and resistance gally outfitted certain vehicles with 3.0- Elizabeth J. Cabraser of Lieff Cabraser testing practices, the company said in a liter V6 “ECODiesel” engines with software Heimann & Bernstein LLP, along with steer- filing with the U.S. Securities and Exchange that enabled them to cheat federal and state ing committee members Dee Miles of Commission (SEC). Ford said the investiga- emissions standards. The vehicle models Beasley Allen; Roland K. Tellis of Baron & tion did not involve the use of defeat affected include the 2014-2016 Ram 1500 Budd PC; Lesley E. Weaver of Bleichmar devices, the likes of which were used by and Jeep Grand Cherokee and includes a Fonti & Auld LLP; David S. Casey Jr. of Volkswagen to disguise emissions readings class of approximately 100,000 members. Casey Gerry Schenk Francavilla Blatt & in millions of vehicles over at least Under the settlement, Fiat Chrysler Penfield LLP; Steve W. Berman of Hagens six years. agreed to offer a software update that will Berman Sobol Shapiro LLP; Lynn Lincoln After Ford employees raised concerns fix the issue and ensure the vehicles are in Sarko of Keller Rohrback LLP; Joe Rice of about the accuracy of emissions and gas compliance with the law. It also provides Motley Rice LLC; Rachel L. Jensen of mileage modeling methods in September, owners with extended warranty benefits Robbins Geller Rudman & Dowd LLP; and the company brought in an outside firm to worth an additional $239.5 million, accord- Stacey P. Slaughter of Robins Kaplan LLP. review its emissions practices and hired an ing to court documents. Class members The case is In re: Chrysler-Dodge-Jeep independent lab to conduct tests, the who repair their vehicles and submit a EcoDiesel Marketing, Sales Practices and company announced in February. claim will receive $3,075, while former Products Liability Litigation, (case The lawsuit, filed Federal District Court, owners and lessees will be entitled to a number 3:17-md-02777) in the U.S. District Middle District of Alabama, Northern Divi- $990 payout. If every car owner submits a Court for the Northern District of sion in Montgomery, Alabama, alleges viola- valid claim, the total value of the deal will California. tions of trade practices throughout the U.S., be $307 million. Source: Law360.com a breach of express and implied warranty, fraud, negligent misrepresentation, and

JereBeasleyReport.com 23 Additional Class Action Settlements ahead of its $25 billion initial public offer- states. According to their damages expert, ing. The proposed settlement would the investors said the maximum potential The following are some recent class resolve a securities class action claiming damages were about $361 million, but action settlements of significance. We will the Chinese e-commerce giant concealed a SanDisk’s expert said the most the class give a brief summary of the settle- meeting with China’s commerce regulator, could get was about $85 million, the ments below. the State Administration of Industry and motion says. Commerce (SAIC), during which the The suit, which dates to March 2015, was Drivers Reach $40 Million agency allegedly ordered Alibaba to stop brought by a group of investors led by Settlement With GM illegal business practices, including the sale Union Asset Management Holding AG and Car owners have reached a settlement of counterfeit goods. alleged SanDisk, CEO Sanjay Mehrotra and with General Motors valued at between The settlement should resolve all former Chief Financial Officer Judy Bruner $40 million and $45 million to resolve pending securities lawsuits against the misled potential shareholders through false claims in three proposed class actions that company, its officers and directors, Alibaba statements that inflated SanDisk’s stock engines in certain Chevrolet Equinox and said in a securities filing. The settlement price. After the company disclosed its GMC Terrain SUVs are defective and guzzle covers investors who bought Alibaba Amer- enterprise business was underperforming, oil. The proposed settlement covers three ican depositary shares between its IPO on the stock price plunged, resulting in sub- related suits alleging the 2.4-liter Ecotec Sept. 19, 2014, and Jan. 28, 2015, around stantial losses to investors, the Plain- engines in 2010-2013 Equinox and Terrain when the meeting was disclosed. The tiffs said. SUVs are defectively designed and have dispute stems from Alibaba’s July 2014 The suit points to SanDisk’s March 2015 piston rings that wear out too quickly. closed-door meeting with SAIC about “a announcement that it would miss its Under the terms of the settlement, GM variety of illegal business practices,” revenue projections of $1.4 billion for the agreed to set up a program to pay for the according to a consolidated complaint. The first quarter by about $100 million due to cost of repairs after the warranty has investors said that SAIC threatened signifi- production qualification delays and lower expired and to reimburse owners who paid cant penalties if Alibaba failed to address than expected sales figures and that it fore- out-of-pocket to replace their vehicle’s the misconduct. cast its 2015 revenue estimates to be nega- piston assembly because of excessive oil A few months after the meeting, in Sep- tively affected. Shares of SanDisk fell more consumption, the owners said. tember 2014, Alibaba completed a record than 18% after the announcement, closing GM has also agreed to pay attorney fees $25 billion initial public offering. The at $66.20, down $14.98 per share. and expenses of up to $3.5 million. The set- company had yet to disclose its meeting The certified class includes all persons tlement ends the suit filed in September by with SAIC. Before doing so, Alibaba execu- and entities who purchased or acquired Floridians Ellen Berman and Dayana Guach tives and other shareholders unloaded SanDisk’s publicly traded common stock alleging the vehicles consume as much as 1 more than $25 billion worth of the compa- from Oct. 16, 2014, through April 15, 2015, quart of oil for every 1,000 miles driven, ny’s ADS, according to the investors. When and were damaged as a result. The judge without notifying drivers of dangerously the meeting was eventually mentioned in a excluded those who sold their stock prior low oil levels, as well as related class white paper in early 2015, the price of Alib- to the first corrective disclosure on actions filed in California in 2017 and in aba’s ADS declined, ultimately wiping out March 26, 2015. Illinois in April 2018, according to almost $33 billion in shareholder value, the The case is In re: SanDisk LLC Securities the filing. investors said. Litigation, (case number 3:15-cv-01455) in Similarly, the drivers in the Illinois suit The case is Christine Asia Co. Ltd., et al., the U.S. District Court for the Northern Dis- claimed that the vehicles’ excessive oil con- v. Alibaba Group Holding Ltd. et al., (case trict of California. sumption caused multiple problems, such number 1:15-md-02631) in the U.S. District Source: Law360.com as unexpected engine shutdowns and loss Court for the Southern District of power, engine stalls, and the potential of New York. Restoration Hardware To Pay $50 for engine fires. Source: Law360.com Million To End Investors’ Suit Eligible class members under the settle- Restoration Hardware has agreed to a ment are anyone nationwide who bought SanDisk Will Pay $50 Million In $50 million settlement with a certified or leased a new or used 2010-2013 Equinox Investors’ Class Action Suit class of investors who claim the retailer or Terrain. The cases are Berman et al. v. A group of SanDisk investors has asked a overstated the success of one of its luxury General Motors LLC, (case number 2:18-cv- California federal judge to approve a $50 home furnishing collections. This allegedly 14371) in the U.S. District Court for the million settlement to resolve class action caused the shareholders to lose more than Southern District of Florida, Hindsman et claims that the digital storage maker falsely $3 billion. Under the settlement, class al. v. General Motors LLC, (case number pumped up its production and sales fore- members will receive a pro rata share of 3:17-cv-05337) in the U.S. District Court for casts, leading its stock to lose nearly one- the settlement fund depending on when the Northern District of California, and fifth of its value when the truth came out. they bought and sold Restoration Hardware Sanchez et al. v. General Motors LLC, After more than three years of litigation Inc. stock, according to a motion for pre- (case number 1:18-cv-02536) in the U.S. and several months of mediation, SanDisk liminary settlement approval. District Court for the Northern District Corp. agreed to the proposed cash settle- If approved, the settlement would of Illinois. ment with a group of investors in exchange resolve a pair of proposed class actions Alibaba Agrees To $250 Million for releasing their claims that the memory filed by two pension funds—the City of Settlement Ending Stock-Drop Suit card manufacturer duped them over Miami General Employees’ & Sanitation company share prices, according to a Employees’ Retirement Trust and the Alibaba Group Holding Ltd. has agreed to motion in court last month. Arkansas Teacher Retirement System—that pay $250 million to settle investors’ lawsuit No portion of the $50 million cash deal, were consolidated before U.S. District in New York federal court over a stock which the investors call “significant,” will Judge Yvonne Gonzalez Rogers in 2017. drop they say was caused by the company’s be reverted to SanDisk, the settlement The suit targets the Corte Madera, Califor- failure to disclose regulatory scrutiny

24 BeasleyAllen.com nia-based retailer; its CEO Gary Friedman; the Plaintiffs and Deutsche Bank AG, Bar- blunt force trauma that can cause injury or and its former Chief Financial Officer clays PLC and HSBC Holdings PLC. death. Beasley Allen would like to review Karen Boone. The case is Sullivan v. Barclays PLC et any claim of injury or death. Beasley Allen The investors claim that the company al., case number 1:13-cv-02811, in the U.S. is also handling Honda airbag cases with aggressively marketed its new RH Modern District Court for the Southern District smaller injuries that normally would not luxury furnishing and home decor line in of New York. qualify for claims under our usual review early 2015 with photo-edited images of process, even an injury that does not high-end products that didn’t exist at the appear to be permanent or life-threatening. time. As a result, customers who ordered Contact: Cole Portis or Chris Glover at the products experienced yearlong delays XX. [email protected] or Chris. in delivery or ended up canceling CURRENT CASE [email protected]. their orders. Once the company disclosed its inven- ACTIVITY AT Truck Accidents—There are significant tory issues, its stock plunged approxi- differences between handling an interstate mately 75% from its class-period high of BEASLEY ALLEN trucking case and other car wreck cases. It $106.49 per share, erasing more than $3 is imperative to have knowledge of the Federal Motor Carrier Safety Regulations, billion in shareholder value, the suit says. Because of the constant requests our technology, business practices, insurance Judge Gonzalez Rogers in October 2018 lawyers are getting, we will give a periodic coverages, and to have the ability to dis- certified a class of investors who acquired update on the types of cases that Beasley cover written and electronic records. Restoration Hardware stock between Allen lawyers are currently working on. Expert testimony is of utmost importance. March 26, 2015, and June 8, 2016. The This update will be included in the Report Accidents involving semi-trucks and pas- motion notes that the settlement represents at least bi-monthly. As we have previously senger vehicles often result in serious inju- between 43% and 16% of the maximum stated, our firm operates in four separate ries and wrongful death. Trucking damages that could be realistically recov- Sections with each Section focusing on a companies and their insurance companies ered with a trial win, which is reasonable specific area of litigation. The four Sections almost always quickly send accident inves- considering other securities class action are: Personal Injury & Products Liability, tigators to the scene of a truck accident to settlements that have been approved by headed by Cole Portis; Mass Torts, headed begin working to limit their liability in federal courts represented about 8% to 9% by Andy Birchfield; Toxic Torts, headed by these situations. Our lawyers, staff and in- of the maximum recoverable damages in Rhon Jones; and Consumer Fraud & Com- house accident investigators immediately those cases. mercial Litigation, headed by Dee Miles. begin the important task of documenting A hearing on the motion is set for June Information on the current litigation will and preserving the evidence. We would 18. The case is In Re. RH Inc. Securities be set out below for each Section. Litigation, case number 4:17-cv-00554, in like to review any case involving cata- the U.S. District Court for the Northern Dis- strophic injury or death. Contact Chris trict of California. Glover or Mike Crow at Chris.Glover@beas- Personal Injury & Products Liability leyallen.com or Mike.Crow@beas- Source: Law360.com Section leyallen.com. $182.5 Million Euribor The personal Injury & Products Liability Product Liability—Beasley Allen lawyers Settlement Approved Section is handling cases in a number of continue to focus on accident cases involv- A Manhattan federal judge has approved areas. Currently, the Section has 18 lawyers ing automobiles, heavy equipment and con- a $182.5 million settlement between JPMor- and 31 support staff. Sloan Downes is the sumer products. Some of these auto cases gan Chase & Co., Citigroup and investors Section Administrator. The lawyers and involve single-vehicle crashes, while others who accuse the two megabanks of rigging support staff are working on the areas of involve multiple-vehicle accidents. We a key euro rate. U.S. District Judge P. Kevin litigation set out below. The primary would like to review any case involving cat- Castel’s approval came after he tasked lawyer contact will be listed for each astrophic injury or death. Contact Cole Lowey Dannenberg PC and Lovell Stewart type case. Portis, Greg Allen, Ben Baker, Chris Glover, Halebian Jacobson LLP, which represent Mike Andrews or Graham Esdale at Cole. Plaintiffs including the 950,000-member Boeing Litigation—Lawyers in the [email protected], Greg.Allen@beas- California State Teachers’ Retirement Section are investigating and preparing to leyallen.com, [email protected], System and individual investor Stephen Sul- file suits arising out of the two crashes [email protected], Mike. livan, with detailing arrangements with referred to in this issue. Mike Andrews is [email protected] and Graham. their clients. handling the litigation. He can be called at [email protected]. The investors’ 2013 lawsuit says banks 800-898-2034 or reached by email at Mike. schemed to fix the Euro Interbank Offered [email protected]. Defective Tires—Tire failure can result in Rate, or Euribor, from 2005 until 2011. Citi a serious car crash and even a vehicle roll- and JPMorgan are the last major Defendants Takata Airbag Recall—We wrote last over accident, causing serious injury or to settle in what the Plaintiffs call a month about the largest automotive recall death to vehicle occupants. Air, heat and “massive, complex, and expensive” litiga- in history, which centered on the defective sunlight can cause the rubber in tires to tion. The Plaintiffs’ law firms will receive Takata airbags found in millions of vehicles break down. When a tire is defective, $34.7 million of fees and $1.1 million of manufactured by Honda, BMW, Chrysler, potentially serious problems like detreads expenses from the Citi and JPMorgan Daimler Trucks, Ford, General Motors, and blowouts can occur long before the settlement. Mazda, Mitsubishi, Nissan, Subaru, and tire would be expected to wear out. If the Judge Castel approved more than $300 Toyota. The defect results in shrapnel-like tire failure is the result of design or manu- million of settlements last year between metal shards and airbag components being facturing defects, and the manufacturer is propelled throughout the vehicle interior. aware of the problem, they have an obliga- This frequently results in lacerations and tion to alert consumers to the potential

JereBeasleyReport.com 25 danger. Contact Ben Baker or LaBarron would like to investigate any cases where various elements including magnesium, Boone at [email protected] or severe injury or death results. Contact Mike silicon and oxygen. Talc is ground to make [email protected]. Crow, Ben Locklar or Warner Hornsby at talcum powder which is used to absorb [email protected], Ben. moisture and is widely available in various On-the-job Product Liability—Many [email protected] or Warner. products including baby powder and adult times product claims arise from worker’s [email protected]. products including body and facial powder. compensation claims. After we investigate Talc products used regularly in the genital the circumstances that caused the injuries, Negligent Security—Under the law, area increase the risk of ovarian cancer. In many times we discover a defective owners of establishments owe a duty to February 2016, a jury found Johnson & machine may be the cause of the injuries. patrons and guests to ensure that the prem- Johnson knew of the cancer risks associ- Contact Kendall Dunson or Evan Allen at ises are reasonably safe and secure from ated with its talc products but failed to [email protected] or anticipated dangers. These cases normally warn consumers, and awarded the family [email protected]. take the form of shootings, fights, stab- of our client $72 million. She died of bings, or other physical violence (including Heavy Truck Product Liability Claims— ovarian cancer after using J&J talc-contain- sexual assault) where severe injury or ing products for more than 30 years. Tractor trailers and other heavy trucks are death occurs due to the establishment not required to contain many of the same owner’s failure to take reasonable safety Ted Meadows heads up our talc litigation protections for occupants as smaller pas- measures. When this occurs, the establish- team handling individual claims. Leigh senger cars. They can contain dangerous ment owner, as well as those contractors O’Dell head up the team of lawyers han- defects putting the truck driver or passen- charged with security, may be held respon- dling the talc multidistrict litigation (MDL), gers at risk of serious injury or death. These sible for the injuries suffered by individuals which is in New Jersey. trucks many times have particularly weak or groups of individuals on the premises. roofs that crush in rollovers. The passenger While the laws vary from state to state, our Contact Ted Meadows, Leigh O’Dell or compartments are often not protected by firm is actively investigating and litigating Melissa Prickett at Ted.Meadows@beasley- effective cab guards, and this allows loads these cases where severe injury or death allen.com, [email protected] to shift into the truck cab. We would like to results. Contact Parker Miller or Rob Regis- or [email protected]. review any case involving catastrophic ter at [email protected] or JUUL vaping devices—The use of JUUL injury or death. Contact Ben Baker or Greg [email protected]. Allen at [email protected] or and other vaping devices has reached epi- [email protected]. Nursing Home Abuse and Neglect— demic levels, especially among teenagers Nursing homes are supposed to be in the and young adults. JUUL and other vape Aviation Accidents—Aviation litigation business of providing skilled nursing care device manufacturers fueled this epidemic can be extremely complex and often to elderly and disabled residents. Unfortu- by targeting and deceiving youth and ado- involves determining the respective liabil- nately, statistics indicate residents in lescents with misleading social media mar- ity of manufacturers, maintainers, retrofit- nursing homes suffer abuse and neglect keting and sweet, fruit-flavored pods ters, dispatchers, pilots and others. In some more and more frequently at the hands of containing high levels of nicotine. Use of circumstances, the age of the aircraft nursing home corporations. In many cases these products has been associated with involved can limit or completely preclude residents have died or have been severely numerous adverse health effects, such as an injured party from compensation. abused as a result of neglect. They may seizures, nicotine addiction, nicotine poi- Soaring through the sky hundreds of miles suffer physical abuse, emotional or psycho- soning, breathing problems, behavioral and an hour, thousands of feet above the logical abuse, or neglect. We are investigat- psychological problems, and other serious ground in an airplane or helicopter leaves ing cases involving serious injury or death health conditions. Contact Joseph Van- little room for error. One small mechanical resulting from nursing home abuse or Zandt or Melissa Prickett at Joseph.Van- problem, misjudgment or faulty response neglect. Contact Rhon Jones or Chris Bout- [email protected] or Melissa. in the air can spell disaster for air passen- well at [email protected] or [email protected]. gers and even unsuspecting people on the [email protected]. ground. We are handling cases involving all Testosterone Replacement Therapy types of aircraft, military and civilian. (TRT) products for men have been linked Contact Mike Andrews or Cole Portis at to an increased risk of death, heart attack [email protected] or Cole. The Mass Torts Section and stroke. Researchers found men who [email protected]. used testosterone therapy were 30 percent The Mass Torts Section is handling a more likely to have a heart attack, stroke, Premises Liability—In premises liability number cases involving pharmaceuticals or die after three years of use. A second claims, patrons of establishments are often and medical devices. Currently, there are study found that men had a significant injured because the premises, for some 39 lawyers and 85 support staff in the increase in risk of heart attack and stroke reason, was unsafe. Premises liability Section. Melissa Pricket, a lawyer, serves as in just the first 90 days of testosterone claims can take many forms, including the Section Administrator. The lawyers and therapy use. Furthermore, men who when severe injury or death results when a support staff are working in the areas of lit- started the study with clear, unobstructed building or structure collapses, merchan- igation set out below. The contact lawyer coronary arteries were just as likely to have dise falls, during swimming pool accidents, will be supplied in each case. a heart attack, stroke or die as men who due to poor lighting, falling debris, unse- entered the study with established coro- Talcum powder and ovarian cancer— cured fixtures and furniture that falls or nary artery disease. Testosterone therapy, Our firm as you know is heavily involved in tips over, unsecure drainage that creates such as the prescription topical treatments the talc litigation. As many as 2,200 cases drowning or fall hazards, slippery surfaces, Androgel, Testim and Axiron, are used to of ovarian cancer diagnosed each year may and inadequate maintenance. Beasley Allen help boost testosterone levels in men who have been caused by regular use of talcum lawyers have successfully handled a have a deficiency of the male hormone. powder. Talc is a mineral made of up number of premises liability cases, and we Symptoms of low testosterone include

26 BeasleyAllen.com decreased libido and low energy. Contact was observed in a number of the patients Zofran—Manufactured by GlaxoSmith- Matt Teague or Melissa Prickett at Matt. taking Taxotere. In December 2015, the Kline, Zofran (ondansetron) was approved [email protected] or Melissa.Prick- FDA announced it had ordered Sanofi-Aven- to treat nausea during chemotherapy and [email protected]. tis to change Taxotere’s label to warn following surgery. Zofran (ondansetron) patients of the risk of permanent hair loss. works by blocking serotonin in the areas of Bone Cement—The type of bone cement While hair loss during chemotherapy is the brain that trigger nausea and vomiting. used during knee replacement surgery expected, patients undergoing chemother- Between 2002 and 2004, GSK began pro- affects the outcome of that surgery. High apy with Taxotere were not warned they moting Zofran off-label for the treatment of viscosity bone cement (HVC) boasts could potentially experience permanent morning sickness during pregnancy, shorter mixing and waiting times and hair loss. Permanent hair loss is an despite the fact the drug has not been longer working and hardening phases, extremely debilitating condition, especially approved for pregnant women and there meaning surgeons can handle and apply for women. We are currently investigating have been no well controlled studies in the cement earlier than with low- or claims for women who suffered permanent pregnant women. The FDA has received medium-viscosity cements. Although HVC hair loss following chemotherapy with Tax- nearly 500 reports of birth defects linked may be more convenient to use, there is otere for breast cancer. Contact Beau to Zofran. Birth defect risks include cleft mounting evidence that the bond it pro- Darley or Melissa Prickett at Beau.Darley@ palate and septal heart defects. Contact: duces is not as strong. Researchers have beasleyallen.com or Melissa.Prickett@beas- [email protected] or Melissa. observed more early failures with the use leyallen.com. [email protected]. of HVC, even when used in combination with a previously well-performing implant. Metal-on-Metal Hip Replacement Physiomesh—Intended for hernia repair, Complications associated with knee parts—The FDA has ordered a review of all Physiomesh is a flexible polypropylene replacements performed with HVC include metal-on-metal hip implants due to mount- mesh designed to reinforce the abdominal loosening and debonding (where the ing patient complaints. Problems with wall, preventing future hernias from occur- implant fails to adhere to the cement inter- metal-on-metal include, but are not limited ring. Though there are several types of face on the shin or thigh bone), which to loosening, metallosis (ie: tissue or bone hernias, most occur when an organ or requires revision surgery. Other reported death), fracturing, and/or corrosion and tissue protrudes through a weak spot in problems include new onset chronic pain fretting of these devices, which require abdominal muscles. The condition often and instability. Contact Roger Smith, Liz revision surgery. Many patients that require requires surgery where mesh, like Physio- Eiland or Melissa Prickett at Roger.Smith@ revision surgery due to these devices suffer mesh, which is intended for laparoscopic beasleyallen.com, Liz.Eiland@beasleyallen. significant post-revision complications. We use, is used to fill in a hole in the abdomi- com or [email protected]. are investigating all cases involving metal- nal muscle or laid over or under it to on-metal hip implants, including the DePuy prevent any further protrusions. Indepen- Proton Pump Inhibitors—Proton pump Orthopaedics ASR XL Acetabular System dent studies have found Physiomesh to lead inhibitors (PPIs) such as Nexium, Prilosec and the DePuy ASR Hip Resurfacing to high rates of complications including and Prevacid were introduced in the late System, recalled in August 2010; the hernia reoccurrence, organ perforation, 1980s for the treatment of acid-related dis- Stryker Rejuvenate and ABG II modular- mesh migration, sepsis and even death. In order of the upper gastrointestinal tract, neck stems, recalled in July 2012; the May 2016, Ethicon issued a market with- including peptic ulcers and gastrointestinal Stryker LFIT Anatomic v40 Femoral Head drawal of Physiomesh in the U.S. and reflux disorders, and are available both as (recalled August 29, 2016); the Zimmer recalled the product in Europe and Austra- prescription and over-the-counter drugs. Durom Cup, and the Biomet M2A “38mm” lia. We are currently investigating cases Beasley Allen is currently investigating PPI- and M2A-Magnum hip replacement involving serious injury or death as a result induced Acute Interstitial Nephritis (AIN), systems, which have not been recalled. of Ethicon’s Physiomesh. Contact: Melissa. which is a condition where the spaces Reported problems include pain, swelling [email protected]. between the tubules of the kidney cells and problems walking. Contact Navan become inflamed. The injury appears to be Ward or Melissa Prickett at Navan.Ward@ Opioids—As we all know, Opioid abuse more profound in individuals older than beasleyallen.com or Melissa.Prickett@beas- has reached epidemic proportions in the 60. While individuals who suffer from AIN leyallen.com. United States. According to the Department can recover, most will suffer from some of Health & Human Services, 12.5 million level of permanent kidney function loss. In IVC Filters—Retrievable IVC filters are people misused prescription opioids and rare cases individuals suffering from PPI- wire devices implanted in the vena cava, 33,091 Americans died from opioid over- induced AIN will require kidney trans- the body’s largest vein, to stop blood clots dose in 2015 alone. These medications plant. Contact Navan Ward or Melissa from reaching the heart and lungs. These provide important pain relief for many. Prickett at [email protected] devices are used when blood thinners are However, over the years, drug companies or [email protected] not an option. Manufacturers include Bard, inflated the effectiveness of delayed-release Cook and Johnson & Johnson. While per- medications like OxyContin and down- Taxotere—Taxotere (docetaxel) is a che- manent IVC filters have been used since played their addictive properties, creating motherapy drug approved in the treatment the 1960s with almost no reports of failure, conditions ripe for abuse. Beasley Allen is of breast cancer along with other forms of retrievable IVC filters were introduced in investigating cases involving opioid-related cancer. It is administered intravenously 2003, promoted for use in bariatric surgery, deaths and overdose requiring hospitaliza- through a vein, and is a member of a family trauma surgery and orthopedic surgery. tion, as well as cases involving treatment of drugs called taxanes. In 2007, manufac- Risks associated with the retrievable IVC for addiction to prescription opioids. turer Sanofi-Aventis issued a press release filters include migration, fracture and per- Contact: Melissa.Prickett@beasleyallen. touting the efficacy of Taxotere based on a foration, leading to embolism, organ com, [email protected] or Liz. clinical study. However, Sanofi-Aventis damage and wrongful death. Contact: [email protected]. failed to inform the U.S. Food & Drug [email protected]. Administration (FDA), health care provid- Opioids and Infants—The opioid epi- ers, and the public that permanent hair loss demic has also taken its toll on the most

JereBeasleyReport.com 27 vulnerable among us. According to the Baldwin at [email protected], care/Medicaid charges are fraudulent. National Institute on Drug Abuse, every 25 [email protected], leslie.pescia@ Common schemes involve double-billing minutes, a baby is born addicted to opi- beasleyallen.com or chris.baldwin@beas- for the same service, inaccurately coding oids—a condition called Neonatal Absti- leyallen.com. services, and billing for services not per- nence Syndrome (NAS). Babies with NAS formed. Additionally, the Commission on suffer painful symptoms of opioid with- Life Insurance Fraud—We have uncov- Wartime Contracting has warned that the drawal in the hours and days after they are ered alleged fraudulent accounting prac- lack of oversight of government contrac- born and are more likely to suffer long-term tices by life insurance companies tors has led to massive fraud and waste. complications like developmental delays concerning premium increases. The Contact Lance Gould, Larry Golston, Leslie and hearing or vision impairment, com- accounting method may result in the poli- Pescia or Tyner Helms at lance.gould@beas- pared to babies born to mothers who did cyholder being charged excessive insur- leyallen.com, larry.golston@beasleyallen. not use opioids. We are investigating cases ance premiums. A client that has a life com, [email protected] or on behalf of children who were born with insurance policy and has been notified of a [email protected]. NAS after their mothers were prescribed substantial increase in premium payments, opioids before or during pregnancy. or if they have been told their policy’s “cost Health Care Fraud—We are looking into Contact Melissa Prickett, Roger Smith or of insurance” has increased, may have a cases of fraud within the health care indus- Liz Eiland at Melissa.Prickett@beasleyallen. valuable legal claim that our firm would try. These may include cases dealing with com, [email protected] or Liz. like to investigate. Contact Dee Miles, pricing, off-label prescriptions, or other [email protected]. Rachel Boyd or Paul Evans at Dee.Miles@ health care abuse. Contact Alison Haw- beasleyallen.com, Rachel.Boyd@beasleyal- thorne or Dee Miles at alison.hawthorne@ len.com, or [email protected]. beasleyallen.com or dee.miles@beasleyallen.com. Consumer Fraud & Commercial Litigation Property Insurance Fraud—Insurance Section companies nationwide are unjustly depreci- State and Municipalities Litigation— ating labor costs on adjusted property Our firm has represented numerous states The Consumer Fraud & Commercial Liti- claims (roof or fence damage for example). throughout the country. These cases have gation Section has 14 lawyers and 21 The depreciation of labor costs is contrary been handled through the attorneys support staff. Michelle Fulmer is the to many insurance policy forms and leads general and have involved various civil Section Administrator. Lawyers and to policyholders either being undercom- actions. Many times, individuals are barred support staff in the Section are working on pensated for their claims or not compen- from bringing a consumer fraud type claim, the litigation areas set out below. The sated at all as they fail to meet their but the state government is not. We primary lawyer contact will be supplied for deductible once labor costs are depreci- recently concluded litigation in seven of each type case. ated. If you have had an insurance claim on eight states for a recovery dealing with your property in the past six years, then we Medicaid fraud. In addition, we are repre- Pension Plan Litigation (ERISA)—Many would like to review the adjuster’s estimate senting five states in related pharmaceuti- large corporations are improperly funding and your homeowner’s or manufactured cal pricing litigation. For more information, their Employee Benefit plans and / or trans- home policy as you may have a case. contact Dee Miles or Alison Hawthorne at ferring these Pension Plans to other entities Contact: Dee Miles, Rachel Boyd or Paul [email protected] or alison.haw- that cannot properly fund the plans. The Evans at [email protected], [email protected]. result is that employees’ life savings for [email protected], or Paul. retirement is either lost, compromised or [email protected]. Self-funded Health and Pharmacy reduced substantially. These transfers and Insurance Plans—Third Party Administra- inadequate funding measures are all Supplemental Disability Insurance tors and Pharmacy Benefit Managers may designed to increase earnings for the cor- Denial—We have successfully litigated bad have been charging unauthorized fees to porations at the expense of its employees. faith denial of benefits cases for years in self-funded insurance health and pharmacy Our firm is committed to pursuing the the disability insurance area and we are benefit plans. These extra fees may be in preservation of employee benefits / retire- interested in reviewing cases involving violation of the contracts with the self- ment by challenging these abuses through denial of Individual and Group disability funded plan and a breach of fiduciary duty ERISA litigation and class actions. For more insurance. These cases can be either under ERISA. We are looking into these information contact Dee Miles, James employee sponsored benefit plan policies cases on behalf of self-funded plans. Eubank or Rachel Boyd at Dee.Miles@beas- (ERISA), individually owned policies or Contact Alison Hawthorne at alison.haw- leyallen.com, James.Eubank@beasleyallen. non-ERISA governed supplemental insur- [email protected]. com or [email protected]. ance. Contact Larry Golston, Rachel Boyd, James Eubank or Paul Evans at larry. Pharmaceutical Pricing—We are continu- Auto Defect Class Actions—We are con- [email protected], rachel.boyd@ ing to handle claims involving chain phar- tinuing to work on numerous auto defect beasleyallen.com, james.eubank@beasleyal- macies falsely reporting their generic class actions against many of the major len.com or [email protected]. pricing transactions to state Medicaid agen- automobile manufacturers like VW, Toyota, cies. This misconduct has led to millions of General Motors, Ford and even some sup- False Claims Act / Whistleblower—We dollars in overpayments by Medicaid agen- pliers like Takata. These cases continue to are handling and investigating whistle- cies for generic drugs to the chain pharma- be filed because of corporate misconduct blower claims of government fraud ranging cies. Contact Alison Hawthorne or Leslie in designing and manufacturing unsafe from Medicare/Medicaid to military con- Pescia at alison.hawthorne@beasleyallen. vehicles that are purchased by consumers, tracts, and any other type of fraud involv- com or [email protected]. corporations and state agencies. We con- ing a government contract. Under the False tinue to investigate these automobile prob- Claims Act (FCA) the whistleblower is enti- Antitrust—We are handling claims related lems for class relief treatment. Contact Clay tled to a percentage of the recovery. Studies to the violation of federal and state anti- Barnett, Dee Miles, Leslie Pescia or Chris show that as much as 10 percent of Medi- trust laws. We are currently involved in

28 BeasleyAllen.com claims alleging a wide array of anticompeti- on the areas of litigation set out below. The year. For years, asbestos was widely used in tive conduct, including illegal tying, exclu- primary contact lawyer for each type case many industrial products and in building sive dealing, monopolization, and price will be listed. construction for insulation and fire protec- fixing. Contact Dee Miles, Archie Grubb, tion. When asbestos is broken or disturbed Alison Hawthorne or Leslie Pescia at dee. State and Municipalities Litigation— it can release microscopic fibers that can [email protected], archie.grubb@ Our firm is representing the States of be inhaled or ingested, posing a health risk, beasleyallen.com, alison.hawthorne@beas- Alabama and Georgia in the opioid litiga- including the development of asbestos dis- leyallen.com or leslie.pescia@beasley- tion. We also represent states and certain eases and mesothelioma. Contact Sharon allen.com. local governments in environmental or Zinns or Rhon Jones at sharon.zinns@beas- toxic exposure claims. Many times, individ- leyallen.com or rhon.jones@beasley- Sexual Harassment—Sexual harassment uals are either barred from bringing an allen.com. is outlawed by Title VII of the Civil Rights environmental claim or it is not a practical Act of 1964 because it is a form of discrimi- solution. These types of government cases Defective 3M Earplugs—Beasley Allen nation, as explained by the Equal Employ- may involve issues of environmental catas- lawyers are investigating claims related to ment Opportunity Commission (EEOC). trophe, or some other type of pollution. defective combat earplugs manufactured The agency defines sexual harassment as One of the most notable cases handled by by Minnesota-based 3M Company. The ear- “[u]nwelcome sexual advances, requests Beasley Allen on behalf of states for envi- plugs were issued to thousands of military for sexual favors, and other verbal or physi- ronmental issues is the BP Oil Spill litiga- personnel serving in combat and used in cal conduct of a sexual nature constitute tion. For more information, contact Rhon training exercises in the United States. sexual harassment when this conduct Jones at [email protected]. Numerous soldiers are now complaining of explicitly or implicitly affects an individu- permanent hearing loss related to the al’s employment, unreasonably interferes Opioids—Beasley Allen is representing defective ear plugs. Other soldiers have with an individual’s work performance, or Alabama and Georgia against both manu- complained of tinnitus, commonly referred creates an intimidating, hostile, or offen- facturers and distributors of opioids for to as “ringing” in the ears. The dual-sided sive work environment.” We are looking at increased costs related to the opioid epi- earplugs allegedly were improperly any claim involving extreme sexual harass- demic. These lawsuits allege the crisis was designed and manufactured so that the ear- ment or sexual assault. Contact Larry created by the pharmaceutical industry, plugs did not fit snugly in the wearer’s ear Golston, Lauren Miles or Leon Hampton at which instead of investigating suspicious canal. Contact Rhon Jones or William [email protected], lauren. orders of prescription opiates, turned a Sutton at [email protected] or [email protected] or leon.hampton@ blind eye in favor of making a profit. They [email protected]. beasleyallen.com. intentionally misled doctors and the public about the risks of these dangerous drugs, Leukemia and Benzene exposure— Employment Law—Beasley Allen lawyers and state governments are left struggling to Benzene is widely used in a number of are handling employment cases. Situations cope with the consequences. Contact Rhon industries and products, yet many people that may be addressed in this area include Jones or Jeff Price at rhon.jones@beasleyal- remain unaware of the toxic danger of this minimum wage and overtime pay, unfair len.com or [email protected]. chemical substance. Exposure to products labor practices, all types of discrimination, containing benzene, whether through employee benefits, and whistleblower Roundup / glyphosate—Roundup is the inhalation or skin absorption, can cause claims. Contact Larry Golston, Lauren most widely used herbicide in the world life-threatening diseases including Acute Miles or Leon Hampton at larry.golston@ and the second-most used weed killer for Myeloid Leukemia (AML), Myelodysplastic beasleyallen.com, lauren.miles@beasleyal- home and garden, government and indus- Syndrome (MDS), lymphomas and aplastic len.com or leon.hampton@beasley- try, and commerce. It was introduced com- Anemia. Some of these diseases do not allen.com. mercially by Monsanto Company in 1974 manifest themselves until several years and is used by landscapers, farmers, after exposure to benzene. Due to certain Fair Labor Standards Act (FLSA)—Our groundskeepers, and commercial garden- statute of limitations for bringing a claim of firm is handling several cases involving Fair ers. The primary ingredient in Roundup is this nature it is important to contact an Labor Standards Act (FLSA) violations. The glyphosate, a chemical that kills weeds by attorney as soon as possible if you believe FLSA cases are brought on behalf of clients blocking proteins essential to plant growth. your condition is a result of benzene expo- whose job title is misclassified by their Glyphosate has been linked to a type of sure. Contact John Tomlinson or Grant employers so that employees are not com- cancer called non-Hodgkin lymphoma. Our Cofer at [email protected] pensated for overtime worked. Cases may lawyers are investigating cases involving or [email protected]. also involve unequal pay, where women non-Hodgkin lymphoma related to the com- are paid less for doing the same job as men. mercial application of Roundup/glypho- Severe Lung Disease—We are investigat- Contact Lance Gould, Larry Golston or sate. Contact John Tomlinson, Rhon Jones ing numerous cases involving severe lung Lauren Miles at lance.gould@beasleyallen. or Grant Cofer at john.tomlinson@beasley- disease, including where a client has com, [email protected], or allen.com, [email protected] or received any of the following diagnoses: [email protected]. [email protected]. any interstitial lung disease, pulmonary fibrosis (whether idiopathic or not), silico- Mesothelioma—Mesothelioma is a highly sis, bronchiolitis obliterans, sarcoidosis, aggressive and rare form of cancer usually berylliosis or chronic beryllium lung Toxic Torts Section affecting the lining of the lungs (pleural) or disease, metal lung disease, hypersensitiv- abdominal cavity (peritoneal). Occasion- The Toxic Torts Section has a number of ity pneumonitis, pneumoconiosis, and non- ally, it also may affect the lining of the ongoing projects at present. Currently, the smoker’s lung cancer and emphysema. heart (pericardial). The only known cause Section has 13 lawyers and 16 support staff. These are grave diseases that oftentimes of mesothelioma is exposure to asbestos. Sandra Walters is the Section Administra- result in either death or a lung transplant, About 2,000 new cases of mesothelioma tor. Lawyers and support staff are working and they are frequently caused by exposure are diagnosed in the United States each to dusts, fibers, metals, chemicals, vapors,

JereBeasleyReport.com 29 food flavoring additives or other tiny parti- XXI. claims were brought under the federal cles in the workplace or as a result of a False Claims Act, which imposes treble defective product. Often overlooked, these THE CONSUMER damages and penalties on those who can be very good cases. Contact Sharon submit false claims for federal funds, in Zinns or Rhon Jones at sharon.zinns@beas- CORNER addition to the Tennessee Medicaid False leyallen.com or rhon.jones@beas- Claims Act. Don Cochran, U.S. Attorney for leyallen.com. the Middle District of Tennessee, said: DOJ Settles Medicare & Medicaid Fraud PFC Contamination in Water Systems— Claims For $18 Million With Vanguard Simply stated, our elderly and vul- In May 2016, the U.S. Environmental Pro- Healthcare nerable citizens who can’t care for tection Agency (EPA) issued new lifetime themselves deserve far better treat- health exposure guidelines for perfluo- Vanguard Healthcare LLC, and related ment than what they were subjected rooctane sulfonate (PFOS) and perfluo- Vanguard companies agreed to pay the to by Vanguard. The substandard rooactanoic acid (PFOA) in the water Department of Justice (DOJ) more than $18 care that many of these facilities’ res- supply. After the EPA issued the new expo- million to settle claims alleging that the idents endured while the companies sure limits, Beasley Allen filed suit for two companies billed Medicare and Medicaid were raiding the public coffers is water systems impacted in Alabama. The for grossly substandard nursing home ser- deplorable. EPA advisory focused on PFOA and PFOS, vices, putting their own financial gain In addition to the settlement recovery, man-made chemical compounds that are before the care of their patients. Vanguard agreed to enter into a five-year used in the manufacture of non-stick, stain- The lawsuit alleged that from 2010 to Corporate Integrity Agreement (CIA) that resistant, and water-proofing coatings on 2015, five Vanguard-owned skilled nursing subjects Vanguard to heightened compli- fabric, cookware, firefighting foam, and a facilities subjected patients to wound infec- ance obligations designed to ensure that variety of other consumer products. tions and other conditions by failing to the facilities implement and maintain Contact Ryan Kral or Rhon Jones at ryan. provide standard infection control; failed systems to address the quality of resident [email protected] or rhon.jones@beas- to then provide wound care as ordered; care. The CIA additionally requires a leyallen.com. improperly administered medications; quality of care monitor selected by the gov- failed to take steps intended to prevent E-cigarette Explosions—Our firm is ernment to be retained by Vanguard. Due painful pressure ulcers; used unnecessary investigating cases involving severe injuries to the filing of bankruptcy proceedings by physical restraints on patients; and failed to caused by exploding e-cigarette devices the Vanguard entities, the United States meet patients’ most basic nutrition and and exploding e-cigarette batteries. These anticipates that the total government recov- hygiene requirements. explosions have been linked to faulty e-cig- ery in this case will ultimately exceed As stated by Assistant Attorney General arette products, defective lithium-ion bat- $6 million. Jody Hunt of the Department of Justice’s teries, and insufficient warnings for users. This type of litigation sends the message Civil Division, “Seniors rely on the Medi- These cases involve personal injury includ- that health care companies that fail to care and Medicaid programs to provide ing serious burn injuries. Contact our Toxic provide proper care to patients and fraudu- them with quality care and to ensure that Torts section for assistance with cases you lently bill Medicaid and Medicare need to they are treated with dignity and respect.” may have involving these devices. Contact be held accountable for their actions. Despite Vanguard’s alleged mistreatment William Sutton at william.sutton@beasley- Beasley Allen lawyers handle a variety of of these vulnerable patients, the facilities allen.com. cases involving health care fraud commit- still billed the government for their sub- ted against federal, state, and local govern- standard services. The lawsuit also alleged If you have any difficulty reaching any of ments. Our lawyers welcome the that over a period of two years, the compa- the lawyers listed above as the primary opportunity to investigate instances of nies submitted hundreds of preadmission contact for a specific case, you can contact fraudulent conduct of which you may be forms to Tennessee’s Medicaid Program one of our Section Directors and she will aware. If you have any questions about our that contained forged nurse and physician put you in touch with a lawyer working on firm’s health care fraud practice, contact signatures. Derrick L. Jackson, Special the drug or medical device you are asking Ali Hawthorne, a lawyer in our Consumer Agent in Charge at the U.S. Department of about. As stated above, the Section Direc- Fraud & Commercial Litigation Section, at Health and Human Services, Office of tors, who do a tremendous job for the firm, 800-898-2034 or by email at Alison.Haw- Inspector General in Atlanta said in a are: Melissa Prickett, Mass Torts Section; [email protected]. Sloan Downes, Personal Injury & Products statement: Source: U.S. Department of Justice Liability Section; Michelle Fulmer, Con- This nursing home chain allegedly sumer Fraud & Commercial Litigation neglected its patients and billed Section and Sandra Walters, Toxic Torts worthless services to Medicare and Section. They can be reached at 800-898- FDA Puts Black Box Warning On Ambien Medicaid in order to pad their 2034 or by email at Melissa.Prickett@beas- And Other Sleep Drugs bottom line. This settlement should leyallen.com, Sloan.Downes@beasleyallen. send a clear message to health care com, [email protected] or The U.S. Food and Drug Administration providers that we will do everything [email protected]. (FDA) has mandated updated labels for pre- in our power to protect our most vul- scription sleep drugs like Ambien and nerable citizens from corpo- Lunesta to warn patients about risks that rate greed. range from drowning to getting behind the With Vanguard being a Tennessee-based wheel of a car while asleep. The makers of company, the lawsuit was filed in the insomnia medicines like eszopiclon and Middle District of Tennessee by the United zolpidem, sold under the brand names States and the State of Tennessee. The Sonata, Edluar, Intermezzo and Zolpimist in addition to Lunesta and Ambien, will have

30 BeasleyAllen.com to add the agency’s strongest form of health care providers to notify them about XXII. warning, a black box, to the labels stating the new warnings and develop drug use the risks associated with sedative-hpynotic guides for patients, according to agency RECALLS UPDATE drugs and sleep-related behaviors. Manu- press releases. facturers are also required to offer guides Source: Law360.com to help patients better understand the risks We are again reporting a large number of of using the drugs. safety-related recalls. We have included Sixty-two individuals reported suffering some of the more significant recalls that NHTSA Investigating Scope Of GM Power burns, sleep driving, self-inflicted gunshot were issued in May. If more information is wounds and suicide attempts while on the Steering Recall needed on any of the recalls, readers are medications, according to the FDA’s encouraged to contact Shanna Malone, the The National Highway Traffic Safety adverse event reporting system from 1992 Executive Editor of the Report. We would Administration (NHTSA) is investigating to 2018, the agency said. Twenty of the also like to know if we have missed any whether a 2016 General Motors recall to fix cases resulted in fatalities. Patients who safety recalls that should have been power steering problems in some pickup reported serious injuries said they didn’t included in this issue. truck models went far enough. As we previ- remember experiencing the events that led ously reported, GM recalled about 3,000 to them, according to the report. FDA Chevrolet Colorado and GMC Canyon Acting Commissioner Ned Sharpless said in Automobile Recalls pickups that lost power steering due to a a statement: poor electrical connection in 2016. Since Volvo is recalling 34,006 of its 2016 XC90 then NHTSA has since received complaints We recognize that millions of Ameri- SUVs. The recall, according to the National from drivers reporting a loss of power cans suffer from insomnia and rely Highway Traffic Safety Administration steering in pickups that weren’t included in on these drugs to help them sleep (NHTSA), is because a coolant leak could the recall. NHTSA’s Office of Defects Inves better at night. While these incidents - lead to a fire. A hose that carries engine are rare, they are serious and it’s tigation is assessing the scope of the recall coolant—the liquid that helps keep a car’s important that patients and health and is looking into the causes and effects of engine from running too hot—might crack care professionals are aware of the the power steering failure in the affected after exposure to heat and humidity over risk. Today’s action is an important vehicles. The investigation covers about time. If coolant leaks from the cracked step in our ongoing effort to call 115,000 vehicles, according to NHTSA. The hose, it could accumulate near a part of the more attention to these critical original recall covered cars made between vehicle’s emissions system that gets as hot safety issues. January and March 2015. as 1,112º F (600º C) and stays hot even after NHTSA says the power steering failures the vehicle is shut off. Because engine Michael Carome, the director of health have happened in a range of conditions. coolant is flammable, that could lead research at Washington, D.C.-based con- Thus far the agency hasn’t received any to a fire. sumer advocacy group Public Citizen told reports of crashes or injuries. However, Law360 that while the number of incidents one Texas driver did report a close call Volkswagen Group of America, Inc. underscore the need for the warning, they when the power steering on a 2015 Chevro- (Audi) is recalling certain 2018-2019 Audi only tell part of the story. Carome said: let Colorado suddenly shut off during a Q5 and SQ5 vehicles. The brake master cyl- turn on the highway. The driver nearly hit inder casting may be too short. A short The data at minimum warrants a another car in oncoming traffic because casting can cause a sudden loss of brakes, black box warning. Those numbers the wheel wouldn’t turn. increasing the risk of crash. The electronic represent probably only a fraction of A California driver also told NHTSA that parking brake and its emergency brake the number of patients who have suf- the power steering on his GMC Canyon has function are not affected and will fered these complications. We do failed at least five times, including on the still function. think these warnings can be useful. freeway and in traffic. The power steering Is this going to lead to a dramatic also failed twice in half an hour, according Chrysler (FCA US LLC) is recalling certain decrease in prescribing these medica- to the complaint, and the driver’s wife is 2019 Jeep Cherokee vehicles. The front pas- tions? Probably not. now afraid to use the car since she can’t senger seat mounting bolts may be loose. In the event of a crash, the seat may move, The FDA’s announcement underscored turn the wheel when the power steering is increasing the risk of injury. that incidents have occurred in patients off. The driver said he contacted GM about the issue but has been told he needs to pay with and without a history of sleep-related Chrysler (FCA US LLC) is recalling certain to fix it. The driver said: behaviors, such as sleepwalking and engag- 2019 Dodge Charger vehicles. The driver ing in activities while not fully awake, and GMC is hiding the fact that the and passenger sun visors may lack the even at the lowest recommended doses or recall ... is larger than they claimed. required air bag warning information. As after just a single dose. Alcohol consump- This safety issue needs to be such, these vehicles fail to comply with tion or the use of other depressants like addressed ASAP before someone is Federal Motor Vehicle Safety Standard opioids and anxiety medication don’t nec- injured or killed because of a known (FMVSS) number 208, “Occupant Crash essarily trigger the dangerous behaviors, issue the GMC will not own. Protection.” Failure to provide the air bag the agency added. warning information increases the risk The FDA says it has been watching sleep Our lawyers will monitor the NHTSA of injury. disorder drugs for over a decade. In 2007, it investigation. General Motors LLC (GM) is recalling asked manufacturers of sedative-hypnotic Source: Law360.com drugs to strengthen their product labeling certain 2019 Chevrolet Silverado 4500, to include tougher language about risks 5500 and 6500 vehicles and 2017-2019 like sleep driving. At the time, manufactur- Chevrolet Silverado 2500 and 3500 vehicles ers were also required to send letters to and GMC Sierra 2500 and 3500 vehicles

JereBeasleyReport.com 31 equipped with Duramax 6.6 liter diesel rectly illuminate, it can confuse other Tiffin Motorhomes, Inc. (Tiffin) is recall- engines and an optional engine-block drivers, possibly increasing the risk ing certain 2018-2019 Phaeton, Allegro Bus, heater. The engine block heater cord or the of a crash. and Zephyr motorhomes. The alternating terminals that connect the heater cord to current electrical wires may have been the block heater may short circuit and fail. TransitWorks is recalling certain 2015- improperly secured in the Energy Manage- A short-circuit may damage the engine 2018 Ford Transit, 2018 Ford Transit ment Module, causing increased electrical components and increase the risk of fire. Connect, and 2016 Dodge Ram ProMaster resistance. The additional resistance can vehicles modified to be equipped with cause the wires to overheat, increasing the Erwin Hymer Group USA LP dba Ameri- Freedman Seating GO-ES seats. When the risk of a fire. can Fastbacks (EHGUSA-AF) is recalling backseat cushion is rotated from the certain 2018 Jeep Wrangler vehicles sold stowed position to the upright position, the Waldoch Crafts, Inc. (Waldoch) is recall- with a roof top tent installed. The top cover seat cushion may not remain locked into ing certain 2018 Ford Transit shuttle vans of the roof top tent may crack or break, place when under load, such as in a crash modified to be equipped with Freedman possibly resulting in the cover detaching or a sudden stop. In the event of a crash, if GO-ES Foldaway Seats, part number 43705. from the vehicle while moving. If the roof the seat back moves, the seat occupant has When the back seat cushion is rotated from top tent cover detaches from the vehicle an increased risk of injury. the stowed position to the upright position, while moving, it can create a road hazard, the seat cushion may not remain locked increasing the risk of a crash. Check to see whether your vehicle has an into place when under load, such as in a open recall at www.nhtsa.gov. If you plug crash or a sudden stop. In the event of a Mercedes-Benz USA, LLC. (MBUSA) is your car’s 17-digit vehicle identification crash, if the seat back moves, the seat occu- recalling certain 2019 A220 and A220 number (VIN) into NHTSA’s website and a pant has an increased risk of injury. 4MATIC vehicles. Due to improper recall doesn’t appear, it means your vehicle welding, the pedal plate may bend, impair- doesn’t currently have any. Because auto- REV Ambulance Group Orlando, Inc. ing the operation of the brake pedal. makers issue recalls often (and for many (REV) is recalling certain 2018-2019 Road Impaired operation of the brake pedal may older vehicles), we recommend checking Rescue Ultramedic emergency vehicles increase the risk of crash. back regularly. equipped with ASA Electronics backup camera displays recalled under 19E-009. BMW of North America, LLC (BMW) is The displays may revert to the factory recalling certain 2019 X3 sDrive30i, X3 default settings which may cause the Motorcycle Recalls xDrive30i, X3 M40i, and X4 M40i vehicles. camera image to be reversed. The driver The instrument panel assembly may have Yamaha Motor Corporation, USA may inadvertently turn the wrong direction been improperly manufactured, possibly (Yamaha) is recalling certain 2019 YZFR3 to avoid an object behind the vehicle, affecting the deployment of the passenger’s motorcycles. Porosities in the front brake increasing the risk of a crash. frontal air bag. If the front passenger air lever may cause it to break if it is gripped bag does not deploy properly in the event SVO Group Inc. (SVO Group) is recalling with a strong force. A broken front brake of a crash, the occupant has an increased certain 2018 Embassy shuttle buses. The lever can affect front braking ability, risk of injury. U-bolts that hold the leaf spring to the rear increasing the risk of crash. axle may have been insufficiently tight- BMW of North America, LLC (BMW) is Triumph Motorcycles America, LTD ened. The loose U-bolts may further loosen recalling certain 2018 i3 BEV and i3 REx (Triumph) is recalling certain accessory or break allowing the axle to separate and hybrid electric vehicles. A circuit board fairing kits, part numbers A9708301, cause a loss of vehicle control, increasing problem within the Electric Motor Elec- A9708412, A9938255, A9938257, A9938265, the risk of a crash. tronics (EME) module may shut down the A9938267, A9938323, and A9938325 sold supply of high voltage electrical power. A Eldorado National- Kansas (Eldorado) is for accessory installation on 2016-2018 shutdown of high-voltage electrical power recalling certain 2017-2018 Aerotech Thruxton 1200, Thruxton 1200R, Thrux- would result in a loss of propulsion, shuttle buses built on a Ford chassis ton 1200 Dual Seat and Thruxton 1200R increasing the risk of a crash. equipped with ASA Electronics back-up Dual Seat motorcycles. Insufficient clear- camera display recalled under 19E-009. The ance for the wiring may result in damage to Toyota Motor Engineering & Manufac- displays may revert back to the factory the harnesses causing a loss of headlights, turing (Toyota) is recalling certain 2019 default settings, possibly causing the turn signals or possibly a stall. An engine Lexus ES vehicles. These vehicles are camera image to be reversed. If the display stall or a loss of the headlight or turn equipped with a driver knee air bag assem- displays the image in reverse, the driver signals can increase the risk of a crash. bly mounted to the lower instrument panel may unintentionally turn the opposite (IP) that may have been improperly direction, increasing the risk of crash. installed, possibly affecting the deployment of the knee air bag in the event of a crash. Other Vehicle Recalls Prime-Time Specialty Vehicles (Prime- In the event of a crash, there is an Time) is recalling certain 2016-2018 Ram increased risk of injury if the knee air bag ProMaster and Ford Transit vehicles modi- does not deploy properly. Newmar Corporation (Newmar) is recall- fied to be equipped with Freedman GO-ES ing certain 2018-2019 Bay Star, Essex, New Foldaway Seats. When the seat back Curbtender, Inc. (Curbtender) is recalling Aire, 2018 Bay Start Sport, Canyon Star, cushion is rotated from the stowed position certain 2018 Ford F-650 and QT06 vehicles Dutch Star, King Aire, Mountain Aire, to the upright position, the seat cushion with curbtenders equipped with Whelen Ventana LE, Ventana, and London Aire may not remain locked into place when brake lights. Depending on the specific motorhomes. The power supply for the under load, such as in a crash or a sudden wiring of the vehicle, these brake lights WiFiRanger may overheat. An overheated stop. In the event of a crash, if the seat may illuminate when the brake pedal has power supply can increase the risk of a fire. back moves, the seat occupant has an not been pressed. If the brake lights incor- increased risk of injury.

32 BeasleyAllen.com Jayco, Inc. (Jayco) is recalling certain 2019 Custom Fab & Body LLC (Custom Fab & ring may fail and the valve stem may forci- Jay Flight TF travel trailers, model 32RLOK. Body) is recalling certain 2018 Ford F-650 bly eject from the valve body. The forcible The supports for the fresh water tank may XLT Crew Cab, 2017-2018 International ejection of the stem may increase the risk be too thin, resulting in the brackets break- 7500 4x4, and 2018 International 7500 4x2, of injury to those nearby. Additionally, the ing and the tanks detaching from the Freightliner M2-112 and M2-106, and Ken- unintended release of CNG can increase trailer. A detached water tank would be a worth T-370-based emergency vehicles the risk of a fire. road hazard, increasing the risk of crash. equipped with Whelen brake lights. Depending on the specific wiring of the Supreme Corporation (Supreme) is Wilson Trailer Company (Wilson) is vehicle, these brake lights may illuminate recalling certain 2014-2018 Service Body recalling certain 2019-2020 Punch Side when the brake pedal has not been vehicles built on a Ford Transit chassis. The Gooseneck Livestock trailers. The axles pressed. As such, these vehicles fail to vehicles may lack the required padded trim may lack the proper amount of grease on comply with the requirements of Federal that protects occupants from head impact. the inner and outer bearings on the hubs, Motor Vehicle Safety Standard (FMVSS) As such, these vehicles fail to comply with which may lead to bearing failure. The number 108, “Lamps, Reflective Devices, the requirements of Federal Motor Vehicle ungreased axle bearings could result in a and Associated Equipment.” If the brake Safety Standard (FMVSS) number 201, wheel locking up, possibly affecting lights incorrectly illuminate, it can confuse “Occupant Protection in Interior Impact.” vehicle handling and increasing the other drivers, possibly increasing the risk In the event of a crash, there is an risk of crash. of a crash. increased risk of injury, due to the missing padding. Osage Industries, Inc. (Osage) is recall- Vantage Mobility International, LLC ing certain 2015-2019 Osage Brave, Warrior (Vantage) is recalling certain 2015-2018 Cabot Coach Builders, Inc DBA Royale and Super Warrior Type I and Type III Ford Transit Van, Mercedes-Benz Sprinter, (Royale Limousine) is recalling certain ambulances equipped with Whelen brake and 2007 Ford F-250-based shuttle vehicles 2015-2017 Mercedes Sprinter-based mini lights. Depending on the specific wiring of equipped with Freedman GO-3S foldaway coaches equipped with Freedman GO-ES the vehicle, these brake lights may illumi- seats. When the back seat cushion is Foldaway Seats, part numbers 437052OLHI- nate when the brake pedal is not being rotated from the stowed position to the FOLD and 43705PFOLDSS. When the back pressed. If the brake lights incorrectly illu- upright position, the seat cushion may not seat cushion is rotated from the stowed minate, it may confuse other drivers, remain locked into place when under load, position to the upright position, the seat increasing the risk of a crash. such as in a crash or a sudden stop. In the cushion may not remain locked into place event of a crash, if the seat back moves, the when under load, such as in a crash or a Excellance, Inc. (Excellance) is recalling sudden stop. In the event of a crash, if the certain 2018 Ambulances and Emergency seat occupant has an increased risk of injury. seat back moves, the seat occupant has an Vehicles built on Ford E-350, E-450, F-650, increased risk of injury. F-550 4x4, Chevrolet G4500, G4500 Diesel, VT Hackney, Inc. (VT Hackney) is recall- C3500, G3500, Freightliner M2, Interna- ing certain 2018-2019 Beverage Body vehi- Cabot Coach Builders, Inc. DBA Royale tional 4300, and Dodge 4500 chassis and cles equipped with ASA Electronics Limousine (Royal) is recalling certain equipped with Whelen brake lights. back-up camera displays recalled under 2015-2018 Ford Transit-based mini-coaches Depending on the specific wiring of the 19E-009. The displays may revert back to equipped with Freedman GO-ES foldaway vehicle, these brake lights may illuminate the factory default settings which may seats recalled under 18E-076. When the when the brake pedal has not been cause the camera image to be reversed. back seat cushion is rotated from the pressed. As such, these vehicles fail to The driver may inadvertently turn the stowed position to the upright position, the comply with the requirements of Federal wrong direction to avoid an object behind seat cushion may not remain locked into Motor Vehicle Safety Standard (FMVSS) the vehicle, increasing the risk of a crash. place when under load, such as in a crash number 108, “Lamps, Reflective Devices, or a sudden stop. In the event of a crash, if and Associated Equipment.” If the brake Daimler Trucks North America LLC the seat back moves, the seat occupant has lights incorrectly illuminate, it can confuse (DTNA) is recalling certain 2019-2020 an increased risk of injury. other drivers, possibly increasing the risk Thomas Built C2 Saf-T-Liner school buses of a crash. built on an FCCC chassis. The clamp for the steering gear return hose may have been Tire Recalls Osco Tank & Truck Sales, Inc. (Osco improperly installed, allowing the hose to Tank & Truck Sales) recalling certain emer- separate from the steering gear. If the hose Trans Texas Tire (TTT) is recalling gency vehicles built on 2018 Peterbilt 348 separates from the steering gear, there may certain Contender 5.70-8 tires sold exclu- and 2012 Kenwoth T440 chassis and be a loss of steering assist which could sively through Discount Tire stores. The equipped with Whelen brake lights. result in a potentially disabled school bus. tire sidewalls are incorrectly labeled, in Depending on the specific wiring of the If the school bus is occupied when the that each side of the tire may state different vehicle, these brake lights may illuminate steering assist is lost, the occupants would PLY and PSI markings. As such, these vehi- when the brake pedal has not been need to exit the vehicle and be transferred cles fail to comply with the requirements of pressed. As such, these vehicles fail to to another vehicle, increasing the risk 49 CFR Part 574, “Tire Identification & comply with the requirements of Federal of injury. Recordkeeping.” The incorrect PLY and PSI Motor Vehicle Safety Standard (FMVSS) markings may result in underinflating or number 108, “Lamps, Reflective Devices, Labrie Enviroquip Group (Labrie Enviro- overloading the tires, increasing the and Associated Equipment.” If the brake quip) is recalling certain 2017-2018 risk of crash. lights incorrectly illuminate, it can confuse Automizer and Expert compressed natural other drivers, possibly increasing the risk gas (CNG)-powered refuse trucks. The Dynamic Tire Corp (Dynamic) is recall- of a crash. CNG tanks are equipped with Luxfer valves ing certain Sailun tires, S698 157/154 L recalled under 18E-111. If the valve knob is PR20, size 315/80R22.5, produced June 18, turned more than one turn, the valve’s snap 2018-June 25, 2018. Tires with an incom-

JereBeasleyReport.com 33 plete TIN and subject to a safety recall 0818 through A33TKWUY 1318. Continen- immediately put the coolers out of the would be impossible to identify as being tal Tire the Americas, LLC (Continental reach of children. Contact Igloo for instruc- affected by a safety recall. Using tires Tire) is recalling certain Conti Hybrid HS3 tions on removing and disposing of the old affected by a safety recall can increase the tires, size 11R22.5 LI 146/143, Load Range latch and for a free replacement latch. risk of a crash. H with DOT codes A33TKWUY 0818 Contact Igloo toll-free at 866-509-3503 through A33TKWUY 1318. These tires may between 8 a.m. to 5 p.m. PT Monday Yokohama Tire Corporation (Yoko- have cords visible through the innerliner. through Friday, or online at www. hama) is recalling certain Yokohama RY023 igloocoolers.com and click on “Contact Us” tires, size 295/75R22.5 (14G), that have Continental Tire the Americas, LLC. at the bottom left of the webpage. DOT date code 2318. Yokohama Tire Cor- (Continental) is recalling certain Conti poration (Yokohama) is recalling certain Coach HA3 tires, size 315/80R22.5 157/154 Starbucks Recalls Bodum Recycled Yokohama RY023 tires, size 295/75R22.5 L, with DOT codes A372KWUU 3517 Coffee Presses (14G),that have DOT date code 2318. The through A372KWUU 1618. These tires may rubber compound may be incorrect, possi- have cords visible through the innerliner. Starbucks Corporation of Seattle, Wash- bly resulting in the tread separating from ington, is recalling about 263,000 Bodum + Continental Tire the Americas, LLC. the casing. As such, these tires fail to Starbucks recycled coffee presses sold in (Continental Tire) is recalling certain Conti comply with the requirements of Federal the U.S., and Canada. The coffee press’ Hybrid HS3 tires, size 11R22.5 Load Range Motor Vehicle Safety Standard (FMVSS) plunger knob can break and expose the G, with tire identification numbers (TIN) number 119, “New Pneumatic Tires-Other metal rod, posing a laceration hazard. The A33TKWUX and DOT date codes of 0918 than Passenger Cars.” company has received eight reports of the through 1118. Cords may be visible through plunger’s knob breaking in the U.S. and Pt.Multistrada Arah Sarana, TBK (Multi- the innerliner. one report of the plunger’s knob breaking strada) is recalling certain Achilles Desert in Canada, resulting in lacerations or punc- Hawk A/P LT tires, size LT215/85 R16 Kumho Tire U.S.A., Inc. (Kumho) is ture injuries. This recall involves Bodum + 115/112R 10PR, with DOT date code 1915 recalling certain Solus KH16 tires, size Starbucks co-branded coffee presses par- through date code 3618. Pt.Multistrada P225/65R17. The tire belts may separate tially made from recycled materials. The Arah Sarana, TBK (Multistrada) is recalling under severe conditions. 8-cup French coffee press’ cylindrical glass certain Achilles Desert Hawk A/P LT tires, beaker, screen and plunger are held in size LT215/85 R16 115/112R 10PR, with place by a plastic dark gray frame with DOT date code 1915 through date code Other Consumer Recalls locking lid and a light gray handle and 3618. The lower sidewall of the tires may knob. The coffee presses measure about 9 separate. As such, these vehicles fail to inches high by about 4 inches in diameter. comply with the requirements of Federal Igloo Recalls Marine Coolers SKU number 011063549 is printed on a Motor Vehicle Safety Standard (FMVSS) white label on the bottom of the base. number 139, “New Pneumatic Radial Tires Igloo Products Corp., of Katy, Texas, has Bodum and Made in Portugal are embossed for Light Vehicles.” recalled about 60,000 Igloo Marine Elite Coolers. The cooler’s stainless-steel latch on the bottom of the dark gray plastic base. Bridgestone Americas Tire Operations, can automatically lock when the lid is The coffee presses, manufactured in Portu- LLC (BATO) is recalling certain Firestone closed, allowing a person to become locked gal, were sold at Starbucks stores nation- FS818 tires with date codes 2318-2418, inside the air tight container, posing wide and online at Starbucks.com from Bridgestone M854 tires with date codes entrapment and suffocation hazards. This November 2016, through January 2019, for 2418-2518, Bridgestone M860A tires with recall includes only Igloo Marine Elite line about $20. date code 2518, and Bridgestone M864 tires of coolers that are white with stainless- Consumers should immediately stop with date codes 2318-2418, all of size steel latches. The coolers were made for using the recalled coffee press and contact 425/65R22.5. The sidewall steel body cords use on boats and marine environments. Starbucks for instructions on how to return may be exposed, which can cause unex- The Igloo logo is embossed on the metal it to receive a full refund in the form of a pected rapid air loss during use. As such, latch and on the outside of the coolers. The store credit. Returns will not be accepted these tires may fail to comply with the coolers were sold in 54, 72, 94, 110, and in stores. Consumers may contact Star- requirements of Federal Motor Vehicle 150 quart sizes. “Igloo Marine Elite Cooler” bucks toll-free at (888) 843-0245 from 8 Safety Standard (FMVSS) number 119, “New and the quart size are printed on a label on a.m. to 5 p.m. (ET) Monday through Friday Pneumatic Tires—Other than Pas- the coolers. The 110 quart model of the or online at www.starbucks.com and click senger Cars.” cooler has two wheels and a metal handle on “Customer Service” at the bottom of the that can be used to pull the cooler. Igloo page and then select “Starbucks” under Achieva Rubber Corp. (Achieva) is recall- cooler models included are: Igloo Marine Recall Information for more information. ing certain Innova Ultra Runner tires sizes Elite 54 quart, Igloo Marine Elite 72 quart, 5.30-12 in 6 ply and 4.80-12 in 4ply with Igloo Marine Elite Legend 94 quart, Igloo 12 Million Pounds Of Tyson Foods the date code rage of 0114 through 3917. Marine Elite Glide 110 quart, and Igloo Frozen Chicken Strips Being Recalled The tires fail to comply with the require- Marine Elite Contour 150 quart. Igloo has ments of Federal Motor Vehicle Safety Stan- received one report of a child who became Tyson Foods is voluntarily recalling dard (FMVSS) number 119, “New entrapped in the cooler before being freed nearly 12 million pounds of frozen, ready- Pneumatic Tires—Other Than Pas- by an adult. to-eat chicken strip products because of senger Cars.” The coolers were sold at West Marine, possible foreign matter. The frozen chicken Sportman’s Warehouse, other home and strip products, according to the U.S. Continental Tire the Americas, LLC Department of Agriculture’s Food Safety (Continental Tire) is recalling certain Conti recreational stores nationwide, and online at Amazon.com and www.igloocoolers.com and Inspection Service (FSIS), may be con- Hybrid HS3 tires, size 11R22.5 LI 146/143, taminated with pieces of metal. Load Range H with DOT codes A33TKWUY from January 2015 through March 2019 for between $10 and $180. Consumers should

34 BeasleyAllen.com Several products involved in the recall in a supervisory role under several IT man- become a lawyer, I might do some good were produced on various dates from Oct. agers over the years and served as the just like Thurgood Marshall.” 1, 2018, through March 8, 2019. The prod- acting IT manager several times Now, LaBarron’s background and experi- ucts were shipped nationwide and have when needed. ence as an industrial engineer, as well as use-by dates of Oct. 1, 2019 through March Scott and his wife Emily have just cele- his mother’s urging him to “make this 7, 2020. Subject to the recall are products brated their 11th wedding anniversary and world a better place,” helps guide his advo- with “P-7221” on the back of the packages. together they have four children: Brianna cacy for his clients. LaBarron says he con- Several varieties and size packages are (20), Max (18), Victoria (15) and Caitlyn stantly strives to be a gatekeeper for listed in the recall including 25-ounce and (9). Brianna is a Freshman at AUM and is fairness, justice and equality when it comes 40-ounce frozen packages of Tyson Fully pursuing a degree in Nursing. Victoria and to consumer safety. Labarron says: Cooked Crispy Chicken Strips, Tyson Fully Caitlyn both attend Chapman Christian Cooked Buffalo Style Chicken, Tyson Fully Academy. Victoria is a Girl Scout and is a Each one of my cases involves cata- Cooked Honey BBQ Flavored, Best Choice member of a local Writing Club. strophic harms and losses to people Buffalo Style Chicken Strips made with Scott has been part of Grace Life Church and families. Some cases even impact white meat chicken breast strips, Great for seven years. The church family meets in safety worldwide. It is so fulfilling to Value Fully Cooked Chicken Strips Chicken the Prattville YMCA and the members set play a small role in making this Breast Strip Fritters and Food Lion crispy up and tear down every weekend. Scott world a safer and better place as I chicken strips fully cooked chicken breast serves on the Leadership Team and over- have been able to do through some of strip fritters. The Meijer brand of Crispy sees the Media Department where he is the cases I have worked on. Chicken Strips and Crispy Chicken Strips responsible for the audio and video pre-pro- Many of the cases LaBarron has handled Honey BBQ flavored are also on the duction, production and post-production of have made an impact on highway and recall list. each service. Scott also enjoys working on product safety. He has been lead counsel This recall is an expansion of the original challenge puzzles like Sudoku, Kakuro, and on a large number of product liability cases recall of March 21, 2019, in which nearly Picture Cross; or watching one of his favor- that have resulted in verdicts and settle- 70,000 pounds of the frozen, ready-to-eat ite movies like The Princess Bride or any- ments amounting to millions of dollars for chicken strip products were recalled. The thing from the Marvel Cinematic Universe. clients. Several of his cases resulted in cor- concern, the FSIS says, is that products may Scott says his favorite thing about porations making significant changes in be in consumers freezers. If you have any working at Beasley Allen is working with how they operate, resulting in defective of the products, the FSIS is urging consum- such great people and the friendships that products being removed from the market ers not to consume them and throw them he has made with his co-workers. Scott is a and changes made in designing products. out or return them to the store of purchase. very hard-working, dedicated employee LaBarron was featured in the Dec. 13, and we are blessed to have him as an As you can see, there have been a large 1999, issue of Jet Magazine for his work on employee of the firm in a most some very important cases. The Houston number of recalls since the last issue. Most important role. of them are included in this issue. Those Chronicle also featured LaBarron for his work with Johnny Cochran on suits con- we felt to be of the highest importance and LABARRON BOONE cerning Enron’s role in one of America’s urgency are included. If you need more LaBarron Boone, who joined the firm in largest financial scandals. A Wall Street information on any of the recalls listed 1995, has been instrumental in handling Journal story featured a case handled by above, visit our firm’s web site at BeasleyAl- product liability and personal injury cases. LaBarron highlighting the danger of len.com. We would also like to know if we He is a member of the firm’s five-person recalled, defective tires. have missed any significant recall that Executive Board. As a Beasley Allen lawyer Labarron is Martindale Hubbell AV Pre- involves a safety issue. If so, please let us for almost 25 years, LaBarron has handled a eminent Rated and has been regularly know. As indicated at the outset, you can vast array of important and highly signifi- selected by his peers for inclusion in The contact Shanna Malone at Shanna.Malone@ cant cases. Best Lawyers in America. He was recog- beasleyallen.com for more recall informa- Although LaBarron says he never nized as Beasley Allen Litigator of the Year tion or to supply us with information intended to become a lawyer, he says that in 2007 and he says he is especially proud on recalls. God had other plans and led him to the to have been selected as Beasley Allen’s practice of law. Initially, LaBarron earned 2016 & 2017 Product Liability Lawyer his B.S. from Auburn University in Indus- of the Year. trial Engineering. An opportunity came up LaBarron said that Beasley Allen is XXIII. for LaBarron to attend law school while unique because of its principles and how it working for an engineering firm. The FIRM ACTIVITIES prioritizes those principles—God first, company paid for two young engineers, family second and work third. The princi- one being LaBarron, to attend the Univer- ples also embody his mother’s motto of sity of Alabama Law School. “making the world a better place.” Lawyer And Employee Spotlights LaBarron attributes his readiness for this LaBarron says: opportunity to his mother who always SCOTT BARTON asked him to “make the world a better I know, for a fact, Beasley Allen has Scott Barton, who is our firm’s Informa- place.” He was also influenced by the done just that! We fight injustice tion Technology Project Manager, cele- esteemed U.S. Supreme Court Justice Thur- everywhere we find it, and when cor- brates his 24th anniversary with the Firm good Marshall, whom LaBarron says he porate greed leads to catastrophic this year. He started out as a Runner with revered. As a lawyer, Justice Marshall dealt suffering, we are there to fight for the firm but transitioned into technical a death blow to school segregation and those families injured because of the support even before the firm had created later became the first African American to tragic choices of others. an official IT Department. Scott has served serve on the U.S. Supreme Court. LaBarron says: “I thought surely if I was able to

JereBeasleyReport.com 35 LaBarron is also actively involved in School where they are involved in theatre Sharon Zinns Honored By Women Of PALS many community and social activities, such and sports. Their grandson’s name is Briggs as serving on the Cleveland Avenue YMCA who Laurie says, “stole the show from Sharon was also the recipient of the inau- Board of Management, Resurrection Catho- everyone else”. gural Women of PALS Elizabeth Cady lic Church Board of Trustees, Child Protect In her free time, Laurie says she is with Stanton award during the Plaintiffs Asbes- Board of Trustees, the Dexter Avenue King kids and family! She loves to refinish furni- tos Litigation Seminar (PALS) last month. Memorial Foundation, and serving on the ture and go hunting with Brent. Her secret Sharon has dedicated her law practice to board of Medical Outreach Ministries hobby is that she loves to crochet, which helping clients affected by asbestos-related (MOM). He also serves on the Central she says is making a comeback! illnesses including mesothelioma, lung Alabama Community Foundation Board of Laurie says that she “thoroughly enjoys cancer, and asbestosis. Sharon helped orga- Trustees (CACF), one of the largest charita- making connections with clients that last nize the women’s group as part of PALS to ble foundations in the state of Alabama for years.” She adds that the different hats encourage networking among female with assets exceeding $27 million. LaBar- that legal assistants wear “include psychol- lawyers with similarly focused practices. ron was also selected to serve on the ogist, prayer warrior, friend, encourager, Sharon says, “I was truly honored and Alabama State University 2011 and 2013 cheerleader” and being a Legal Assistant. I humbled.” She thanked her colleagues and Presidential Search Committees. feel good at the end of the day if I’ve been friends for recognizing her and for their LaBarron and his wife Lori have two chil- able to help one of our clients hold the thoughtful comments. Sharon also recog- dren, Micah and Logan. He is a tremen- pieces together when their day started to nized other nominees including Lindsey dously talented lawyer, who more fall apart. What we do here matters, and it’s Cheek, Jessica Dean, and Jackie Olinger importantly, is a good man who loves the not just a job at all,” she says. “who do so much to advance the cause of Lord and serves him daily. We are blessed The role of legal assistants at Beasley women in our bar,” saying “each one of to have LaBarron with our firm. Allen is critically important to the success them deserves this honor too.” of a case. Laurie is a dedicated employee The Elizabeth Cady Stanton award recog- ASHLEY LOCKLAR who works hard for the clients that Ben nizes “a lawyer who supports, initiates and Ashley Locklar, who joined the Firm in represents. We are most fortunate to have sustains the advancement and progress of 2009, has worked in the Accounting Laurie with the firm. women in our field; contributes to materi- Department for the last eight years. She ally altering the structural barriers to the processes Accounts Payables, which success of women in our field within his or includes visa reconciling for all lawyers/ her firm or practice area; provides leader- employees, utilities, membership dues, XXIV. ship in his or her firm and the wider legal insurance payments and charities. Ashley community on issues related to gender facilitates the import of transactions into SPECIAL equity; and effectively and consistently our Accounting Software for our online RECOGNITIONS speaks truth to power.” The award was research vendor payments. named for Elizabeth Cady Stanton, an aboli- Ashley and her husband Chuck will be tionist who, along with her friend Lucretia celebrating their ninth wedding anniver- Mott, organized the Women’s Rights Con- Beasley Allen Atlanta Lawyers Have Been sary this year. Their son Cal just turned 10 vention in 1848, widely considered the Quite Active and attends Prattville Elementary School. launching point for the Women’s Rights Cal loves to draw and recently created his movement in the U.S. own series of comics called Comic Clan. Chris Glover Appointed to GTLA Their daughter Lola is 4 and loves ballet. In Parker Miller Graduates From GLTA LEAD Education Committee her spare time, you can find Ashley Parker Miller, who is in our Atlanta cooking, crafting, traveling or playing pool. Chris Glover, who heads up our Atlanta office, graduated from the Georgia Trial Ashley says her favorite thing about office, has been appointed co-chair of the Lawyers Association’s (GTLA) LEAD class working at Beasley Allen is all the possibili- Georgia Trial Lawyers Association’s (GTLA) during the annual convention this past ties for personal and professional growth. Education Committee. This committee April. Parker was selected to the highly She says she loves how the Firm shows works to secure speakers for the Continu- competitive class of 17 lawyers last appreciation to the staff and is grateful for ing Legal Education programs hosted by summer. The Program is designed to all of the opportunities she has been given the organization. The GTLA strives to assemble the top up-and-coming trial while employed here. Ashley is a dedicated, provide quality CLEs that provide its lawyers in the State of Georgia at venues hard-working employee and we are most members the “solid nuts and bolts of infor- across the State, and this year, it did not dis- fortunate to have her with us! mation on a wide variety of topics.” This is appoint. The Class featured lawyers that quite an honor for Chris and one that is have been recognized as leaders in their LAURIE WAREN well deserved. We are very much a part of Laurie has been with the Firm for the field. Events included a meetings with State the Georgia legal community and want to Legislators under the Golden Dome in past 18 years. She has worked in the Per- serve in any way that we can. sonal Injury & Products Liability Section as Atlanta, and sessions in Athens, Columbus, Atlanta and Savannah. Legal Assistant to Ben Baker the entire time Sharon Zinns Named Editor of GTLA she has been employed at Beasley Allen. The Georgia Trial Lawyers Leadership Verdict Magazine Laurie is married to Brent who also Education & Advanced Direction (LEAD) Program serves to train and equip GTLA works for the Firm in the IT department. Sharon Zinns was appointed editor of the members who have been identified as Together they have four children and one GTLA’s Verdict Magazine during the Associ- potential leaders in the Association with grandchild. Hannah is an RN at Jackson ation’s recent convention. The role will also the necessary tools to take the next steps in Hospital, and Madyson is an RN at the allow Sharon to lend her leadership talents their legal careers, both in and out of the Montgomery Cancer Center. Madelyn and to the GTLA’s Executive Committee. Grady are 14 years old and attend Pike Road courtroom. Class members must have less

36 BeasleyAllen.com than 10 years of legal practice experience defective industrial machinery as a member Beasley Allen Family Serving As or be 35 years of age or younger. Each year, of Beasley Allen Law Firm’s Personal Injury March Of Dimes Ambassadors the GTLA LEAD Program provides remark- & Products Liability Section. He has able young attorneys with the opportunity worked on numerous important and highly Ryan Beattie is a lawyer in Beasley Allen’s to learn from and engage with some of our significant cases to compensate clients for Mass Torts Section where he works on the state’s best and brightest minds through a their losses and to influence corporations talcum powder litigation. However, he has series of educational and network- to design and manufacture safer products. been involved in another field of service ing events. Kendall has handled product liability cases that involves families in Alabama. Prema- Parker is in the firm’s Personal Injury & that by way of jury verdict or settlements ture birth is a heartbreaking experience Products Liability Section. The LEAD obtained millions of dollars for his clients. that takes so much from families. Ryan and Program continues Parker’s involvement in Several of Kendall’s cases have also resulted his wife Heidi are sharing their experience various leadership positions. He currently in major changes in corporate conduct con- as the 2019 Central Alabama March of serves as a Vice Chair to AAJ’s Products Lia- cerning safety of products. Dimes March for Babies Ambassador bility Section. Previously, he held numer- Kendall has served as the president of Family. Heidi is an Assistant Professor in ous leadership positions in the Alabama both the Alabama Lawyers Association and the Psychology Department at Troy State Bar, including as a member of the the Capital City Bar Association. He was University. Alabama State Bar President’s Executive inducted into the American Board of Trial Heidi went into preterm labor and deliv- Committee, as a Board of Bar Commis- Advocates (ABOTA) at the Alabama Chap- ered twins at 23 weeks, 6 days pregnant. sioner, former elected President of the ter’s annual meeting Nov. 16, 2017, recently Heidi says the twins were determined to Alabama State Bar Young Lawyer’s Divi- completed a term as a Board member for make their entrance and she had to have an sion, member of the Alabama State Bar’s the National Bar Association and was emergency cesarean section. Ryker was Leadership Forum, and as an elected Execu- named a 2017 Alabama Law Foundation born weighing 1 pound, 9 ounces and just tive Committee member of the Alabama Fellow. In addition, he served on the Board 12.5 inches long. Layla was even smaller, Association for Justice’s Emerging of the Montgomery County Bar Association weighing 1 pound, 5 ounces and only 12 Leaders Caucus. until he was elected to the Executive Com- inches long. mittee. Kendall is also past president of the Heidi says the births of the babies came Montgomery County Bar Association and with immense fear. They had to struggle has the distinct honor of being its first Afri- through the first three months of their life, Kendall Dunson Named Kershaw can-American President. requiring numerous medical interventions. YMCA Volunteer Of The Year Kendall is a member of the Alabama The twins were placed in the Neonatal Kendall Dunson, a lawyer in the firm’s State Bar and serves on the Diversity Com- Intensive Care Unit (NICU) at Baptist Personal Injury & Products Liability mittee and the Client Security Fund com- South, a local Montgomery hospital, where Section, was selected as the Kershaw mittees, positions appointed by the State they received around-the-clock care from Family Branch Volunteer of the Year by the Bar President. He served on the Alabama medical professionals skilled at caring for YMCA of Greater Montgomery. Kendall was Curriculum Committee for the Board of preemies. For these first three months, not recognized at the YMCA’s Annual Support Examiners, where he authored the new only were the twins struggling, Ryan and Campaign Celebration held on May 6. Tort Section and videotaped the presenta- Heidi were also experiencing struggles of Kendall serves on the Board for the tion to be viewed by all taking the their own, visiting the NICU daily, helping Metro YMCA and the Kershaw branch of Alabama Bar Exam. their new babies fight for survival. Heidi the YMCA. In addition to serving on the Over the years, Kendall has participated recalled: in numerous legal and community organi- Board, he participates in the yearly fund- We experienced so many emotions raising campaign for the YMCA and sup- zations, including a task force charged with reconfiguring Alabama’s method of render- during this time, but the feeling that I ports the campaign as a Chandler think preterm parents feel the stron- supporter, which is the highest level. ing legal services to the State’s underprivi- leged population. Kendall is a charter gest is helplessness. The helplessness Kendall also participates in the mentoring that we felt every night after having program, speaking to students about life, member of the 100 Black Men of Birmingham. to leave our children in the NICU was college and the legal profession. almost unbearable. Kendall says: Kendall was selected as Beasley Allen’s Litigator of the Year in 2013, and again in The twins were a month old before Ryan The YMCA does a great job serving 2015. In 2014, Kendall was recognized as and Heidi could hold them for the first the Montgomery community. I’m our firm’s Personal Injury Section Lawyer time. Layla was finally able to come home honored to be a small part of the sig- of the Year. He also has been selected for after 97 days and Ryker followed six days nificant programs provided to every- inclusion on the Best Lawyers in America later having spent 103 days in the NICU. one, but especially children. The list since 2016 and the Super Lawyers list Ryan and Heidi are grateful to the children we serve come from families since 2017. medical professionals at the Baptist Hospi- where the parent or parents have 9-5 Kendall is an outstanding trial lawyer tal System (Baptist East and South in Mont- jobs; thus, they need assistance and a credit to the legal profession. His gomery) for their expertise and the care raising their children and the YMCA compassion and desire to seek justice is given to Ryker and Layla. They are also steps in when and where needed. It’s well known around the country and we are thankful to the March of Dimes for its an honor to serve and I’m grateful to blessed to have Kendall in the firm. investment in helping preterm babies and be recognized by such a wonderful their families. and well-lead organization. The March of Dimes leads the fight for In his law practice, Kendall handles the health of all moms and babies. It does product liability, general personal injury this by educating medical professionals and and workers’ compensation cases involving the public about best practices; supporting

JereBeasleyReport.com 37 lifesaving research; providing comfort and that we are, as children of God, ing. In all thy ways acknowledge him, and support to families in NICUs; and advocat- mighty and invincible. We can lay our he shall direct thy paths. Proverbs 3:5-6 ing for moms and babies. Through the orga- fears to rest. We can give God our When doubts filled my mind, your nization’s support, medical technology has cares and burdens and place our trust comfort gave me renewed hope and cheer been developed to give moms and babies a completely in him. Psalm 94:19 fighting chance; things like a steroid shot From the end of the earth will I cry unto Heidi received to help with the babies’ I have set the Lord always before thee, when my heart is overwhelmed: lead lung development before birth and an oscil- me; because he is at my right me to the rock that is higher than I. lator ventilator that Layla needed were hand, I shall not be moved. Psalm 61:2 developed with support from the Psalm 16:8 Jason King, a digital marketing specialist March of Dimes. Lauren said further: in our firm’s marketing group, sent in Ryan and Heidi say they also appreciate Psalm 91:2 as his favorite verse. Jason says Beasley Allen for putting family first and Nothing can be louder or more intimi- “this simple sentence illustrates to me just allowing them the time off they needed to dating than silence when we are how deep and how wide you can not only care for their children. Ryan and Heidi waiting for an answer to our prayers. trust in Him but find peace, comfort, report that Ryker and Layla are doing great! We have all experienced this panic. In shelter and protection.” Heidi says: the nighttime of the soul, God’s I will say of the Lord, He is my refuge silence thunders down at you, rattling and my fortress; my God in whom I trust. They are happy, sweet 18-month-olds your confidence and leaving you won- Psalm 91:2 who are continuing to grow each day dering if he has abandoned you. At and who are meeting developmental those times when God is silent, we milestones with their corrected, and must place our hope in two truths: the in some cases with their actual age. truth of God’s sovereignty and the XXVI. Layla is a little bookworm, who loves truth of his faithfulness. God answers CLOSING to “read” books and Ryker is a all our prayers, but always in his own handyman who loves his toy work- time and in his own way. When we OBSERVATIONS bench and is always walking around place our hope in him, we will not be the house “fixing” things. disappointed—even when the answer Their personal experience has given is not what we expected. We are wise The Individual Toll Of The Opioid Epidemic Is Ryan and Heidi a greater appreciation for to trust him and wait patiently. It is in Tragically Huge the March for Babies than when they par- these times that I have found my faith ticipated in their first walk. They are grate- to be tested, strengthened, and We have previously reported on the ful to be able to support other preemies established. immense scope of our nation’s opioid epidemic. It is a national crisis and one that is and their families this year in raising aware- I love the Lord because he hears far from over. I believe it’s necessary to ness as Central Alabama’s Ambassador and answers my prayers. Because again point out the tragic effects this crisis Family. This year’s Central Alabama March he bends down and listens, I will has had on people and also on cities, coun- for Babies will be held in Montgomery pray as long as I have breath! ties, states and the U.S. Government. on June 1. Psalm 116:1-2 From 1999-2017, more than 200,000 Beverly Larkin, who is in our Accounting people died from an overdose involving Department, sent in her favorite Bible opioids, including prescription and illicit XXV. verses this month. After losing her son a opioids. On average, 130 Americans die FAVORITE BIBLE year and a half ago, Beverly says she has every day from an opioid overdose. The had a difficult time. She says when she annual death toll has risen year after year VERSES didn’t think she would make it, she held on since the 1990s, as the amount of opioids to her faith to get her through the tough prescribed to patients grew. The crisis was times. Beverly says: caused by companies run by individuals Lauren Razick, a staff attorney at Beasley These scriptures kept me going. who were motivated by a combination of Allen, sent in her favorite bible verses for Knowing that one day it will all be over greed and no concern for the welfare this issue. She made these timely down here. Still going through so much dif- of people. comments: ficulty dealing with so many family The toll on our communities throughout the U.S. is undeniable. As pharmaceutical We all live with a daily onslaught of members being sick. Sometimes it gets too companies pushed for more and more pre- tragic news from around the world hard but I know my redeemer lives. I don’t scriptions at higher and higher doses, rates and close to home—heartbreaking understand his ways but I trust Him. He see of addiction, overdose, and crime have sky- images from the television or sad the end while I am still at the beginning. rocketed, leaving state and local govern- stories from a dear friend. These hard Let not your heart be troubled: ye believe ments struggling to deal with the fallout. realities can rob us of our joy and in God, believe also in me. In my Father’s But behind each of these staggering statis- replace it with fear. We must con- house are many mansions: if it were not so, tics are real people whose lives have virtu- stantly bolster our hope in the eternal I would have told you. I go to prepare a ally been destroyed. Beasley Allen is love and protection of God, who place for you. And if I go and prepare a honored to have the opportunity to help guides us always. His power touches place for you, I will come again, and right the wrongs that caused this national our heart, mind, and soul. This receive you unto myself; that where I am, crisis. Our goal is to see that justice is done mystery of God’s daily work in our there ye may be also. John 14:1-3 in every respect. lives is beyond our ability to under- Trust in the Lord with all thine heart; stand. It is this great mystery of life and lean not unto thine own understand-

38 BeasleyAllen.com Our Monthly Reminders causes me to tremble for the safety of Alabama under the direction of Frances my country....corporations have been McGowin and Ashley Taylor. On March 6, If my people, who are called by my enthroned and an era of corruption in 2015, Frances, with the help of a number of name, will humble themselves and high places will follow, and the money dedicated individuals, officially incorpo- pray and seek my face and turn from power of the country will endeavor to rated Service Dogs Alabama as an indepen- their wicked ways, then will I hear prolong its reign by working upon the dent non-profit. My long-time friend Guice from heaven and will forgive their prejudices of the people until all Slawson, who has been a huge supporter of sin and will heal their land. wealth is aggregated in a few hands the organization, introduced Sara and me and the Republic is destroyed.” to SDA several years back. We learned 2 Chron 7:14 quickly that SDA was doing great work that U.S. President Abraham Lincoln, was badly needed. Both of us were amazed All that is necessary for the triumph Nov. 21, 1864 at what the service dogs could do and were of evil is that good men do nothing. actually doing. In his December 1902 State of the Union Service Dogs trained by SDA are pro- Edmund Burke address, Theodore Roosevelt said of corpo- vided to children, adults, and veterans with rations: “We are not hostile to them; we are disabilities. Intervention Facility Dogs also Woe to those who decree unrighteous merely determined that they shall be so are trained for schools and youth facilities, decrees, Who write misfortune, handled as to subserve the public good. We as well as placed with Youth Probation offi- Which they have prescribed. To rob draw the line against misconduct, not cers and First Responder Departments. It is the needy of justice, And to take what against wealth.” unbelievable what these service dogs can is right from the poor of My people, do. It is absolutely amazing. That widows may be their prey, And The ‘Machine politicians’ have shown SDA rescues dogs from shelters and that they may rob the fatherless. their colors. I feel sorry for the rescue organizations and socializes and country however as it shows the raises them utilizing professional trainers Isaiah 10:1-2 power of partisan politicians who and volunteers. When they are at an appro- think of nothing higher than their priate age or stage in the evaluation I am still determined to be cheerful own interests, and I feel for your process, the dogs are sent to select correc- and happy, in whatever situation I future. We cannot stand so corrupt a tions facilities to be trained by inmates spe- may be; for I have also learned from government for any great length cifically for SDA’s programs. The training experience that the greater part of of time.” period usually lasts one-and-a-half to two years. There are about 3,000 hours spent in our happiness or misery depends Theodore Roosevelt Sr., one-on-one training for each dog prior to upon our dispositions, and not upon December 16, 1877 our circumstances. placement. In the process of fulfilling its mission, Martha Washington (1732—1802) SDA rescues more than 50 dogs a year, and rehabilitates at least 50 inmates a year who The only title in our Democracy supe- XXVII. train SDA dogs in prison. It’s important to rior to that of President is the title PARTING WORDS note that inmates participating in the SDA of Citizen. dog training program have very low recidi- vism rates. Louis Brandeis, 1937 SDA is the only Apprentice Member U.S. Supreme Court Justice Service Dogs Of Alabama accepted by Assistance Dogs International (ADI) and Animal Assisted Intervention I would like for our readers to become The dictionary is the only place that International (AAI-Int.) for training support familiar with an organization located in success comes before work. Hard animals for facilities. Service Dogs Alabama Montgomery, Alabama, that does tremen- work is the price we must pay for has its own unique training curriculum, dous work. Service Dogs Alabama (SDA) is success. I think you can accomplish and constantly researches populations that dedicated to providing medical and psychi- anything if you’re willing to pay could benefit from a specially trained atric assistance to children, adults, and Vet- the price. service dog. erans with disabilities, and School Dogs I encourage all of you to learn all you can Vincent Lombardi trained to assist educators and counselors about the mission of SDA and its remark- with student interventions that create able work. You can go to servicedogsala- drama-free classrooms. Founded in 2011 as bama.com for the needed information, Kindness is a language which the K-9s for Kids, the program is now the deaf can hear and the blind can see. email [email protected], or oldest and largest non-profit organization phone 334-676-3733. I also encourage you Mark Twain (1835-1910) in Alabama serving both veterans and chil- to help finance SDA by making a financial dren with disabilities. donation. For those in Alabama, you may K-9s 4 Kids and, later, K-9s 4 Heroes well want to be a volunteer and “I see in the near future a crisis service dog programs were originally con- work with SDA. approaching that unnerves me and ceived and operated by Easter Seals of

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On January 7, 1979, Jere L. Beasley established a one-lawyer ﬁrm in Montgomery, Alabama, which has grown into the ﬁrm now known as Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. During his tenure he also brieﬂy served as Governor, while Gov. George Wallace recovered from an assassination attempt.

Since returning to his law career, Jere has tried hundreds of cases. His numerous courtroom victories include landmark cases that have made a positive impact on our society. His areas of practice include litigation in products liability, insurance fraud, business, nursing home and personal injury.

It has been more than 40 years since he began the firm with the intent of “helping those who need it most.” Today, Beasley Allen has offices in Atlanta and Montgomery, and employs more than 285 people, including more than 85 attorneys. Beasley Allen is one of the country’s leading firms involved in civil litigation on behalf of claimants, having represented hundreds of thousands of people.

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